BEIJING LEGAL SCHOLAR ALLEGES DPP UN REFERENDUM

C O N F I D E N T I A L SECTION 01 OF 02 BEIJING 006234

SIPDIS

SIPDIS

NSC FOR WILDER AND HAENLE

E.O. 12958: DECL: 09/06/2037
TAGS: PREL TW CH
SUBJECT: BEIJING LEGAL SCHOLAR ALLEGES DPP UN REFERENDUM
EQUIVALENT TO DECLARATION OF INDEPENDENCE

REF: A. :(A) BEIJING 5888


B. (B) BEIJING 5326

C. (C) BEIJING 4813

D. (D) SHANGHAI 601

E. (E) GUANGZHOU 1051

F. (F) TAIPEI 2116

Classified By: Ambassador Clark T. Randt, Jr. for reasons 1.4 (b/d)

SUMMARY
--------------


1. (C) A Chinese legal scholar and National People's Congress
(NPC) adviser specializing in Chinese constitutional issues,
Wang Zhenmin (protect),alleged that passage of a Taiwan
Democratic Progressive Party (DPP) referendum endorsing UN
membership "in the name of Taiwan" would be legally
equivalent to a Taiwan declaration of independence, noting
that China's reaction to such a clear violation of its "red
line" is unpredictable. A rival Kuomintang (KMT) referendum
does not raise the same concerns. Many in China fear the DPP
referendum has a strong chance of passage. "Responsible
officials" in China, Taiwan and the United States need to
work to avoid a situation that might lead China to overreact
"disastrously." END SUMMARY.

DPP's Referendum = Independence Declaration ...
-------------- --


2. (C) Wang Zhenmin, Vice Dean of Tsinghua University Law
School, told POLOFF on September 14 that passage of a
DPP-sponsored referendum endorsing UN membership "in the name
of Taiwan" would be legally equivalent to Taiwan's declaring
independence. Though the referendum would have no real
effect on Taiwan's bid to join the UN, the DPP referendum
text, specifically the phrase "in the name of Taiwan," would
materially change Taiwan's constitutional basis. Passage of
the DPP referendum would change Taiwan legally from a
province in a state (i.e., the Republic of China),whose
constitution was previously promulgated in mainland China
(i.e., in Nanjing),to a separate nation. He said Taiwan's
2003 Referendum Law stipulates that, once passed, the
provisions of a referendum have the force of law and
supersede other constitutional provisions. In short, passage
of the DPP-sponsored referendum would clearly contravene
China's Anti-Secession Law and "cross China's red line."

... KMT's Does Not
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3. (C) Wang said that the Chinese Government had carefully
avoided criticism of the KMT's rival referendum proposal to
"reenter" the UN under the name of the Republic of China.
Obviously, China is not happy about any Taiwan attempt to
join the UN, but "routine" annual efforts to rejoin as the
"Republic of China" clearly do not change the status quo or
cross China's red line. Wang was pessimistic about the
chances of the KMT and DPP agreeing on a joint referendum
proposal that would strip out the offending words "in the
name of Taiwan." The KMT has little incentive to agree on a
joint referendum proposal, which would only motivate the
pan-Green electorate during the general election. In theory,
Taiwan's referendum commission might void a referendum
proposal, but with membership stacked in favor of the DPP,
such a result is unlikely, Wang said. The only plausible
"positive scenario," he said, would be if both camps agree to
withdraw their referendum proposals.

Prospects in Taiwan
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4. (C) Wang believes it is important that the referendum
proposal be withdrawn because, notwithstanding the common
wisdom in Taiwan, many in China fear the DPP referendum has a
good chance of passage. Wang has close ties with the Taiwan
legal community, has visited Taiwan three times and often
receives Taiwan guests in China. As recently as
mid-September, his Taiwan contacts had assured him that
passage of the DPP referendum was very unlikely. However,
Wang said reading the political tea leaves in Taiwan is
difficult and many in China are still concerned. The "simple
math" (i.e., very high poll numbers in support of Taiwan's
entry into the UN combined with a motivated pan-Green
electorate likely to turn out in force) make passage a
possibility, according to the views of many in China.

Chinese Response "Unpredictable"
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BEIJING 00006234 002 OF 002



5. (C) Wang speculated that over the next month or two
China's reaction to the referendum issue would be relatively
restrained. He predicted that President Hu Jintao would not
make extraordinarily strong statements at the upcoming 17th
Chinese Communist Party Congress, though military
representatives to the Congress might make bellicose remarks.
Nor would China introduce new resolutions at the UN.
Interestingly, Wang said that in internal meetings some
People's Liberation Army (PLA) representatives counsel
relative restraint in PRC public statements. "Some in the
military," Wang said, "say to give Taiwan an implicit green
light, since passage of the referendum would give China a
perfect pretext for strong action against Taiwan." Wang
called this view "irresponsible."

U.S. Role
--------------


6. (C) Wang applauded Deputy Secretary Negroponte's recent
remarks on Hong Kong's Phoenix television channel opposing
Taiwan's holding of a UN referendum. He said that the United
States had been helpful in dampening the issue at the United
Nations as well. (Wang said he has seen DAS Christensen's
speech but did not comment on it specifically.) Wang
asserted that nonetheless most U.S. observers underestimate
the significance of the referendum issue. He urged the U.S.
Government to view passage of the referendum as an extremely
destabilizing act equivalent to Taiwan's declaring
independence. He said it was the duty of responsible
officials in China, Taiwan and the United States to use their
influence to avoid a situation leading to a Chinese
"overreaction," which would be disastrous for both sides of
the Taiwan Strait.

Comment
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7. (C) Wang is a respected legal scholar with many contacts
in Taiwan, Hong Kong and the United States and does not
appear by nature a hard-liner. He, for example, acknowledges
the need to manage Chinese "hawks" on Taiwan, whose actions
might cause harm to China itself. However, Wang's
interpretation of the legal issues surrounding the referendum
lead him to a conclusion similar to the tough views
previously put forth by the Taiwan Affairs Office (TAO) and
some PLA-affiliated scholars with whom post has previously
spoken. In contrast, other Chinese contacts, while stressing
the dangers of the referendum, nevertheless recently argued
that, as a political issue, it was unlikely to cross
Beijing's "red line" (Refs A-C). These contacts did note,
however, that there are "other voices" in China who view the
referendum more starkly, and Wang appears to be
representative of such views.
Randt