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The Dutch-Taiwanese Submarines Deal: legal aspects*

Published online by Cambridge University Press:  07 July 2009

Ko Swan Sik
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Extract

Dutch-Chinese realations were brought into the limelight in 1980 in connention with the sale of two submarines to the authorities in Taiwan by a Dutch shipyard. The transaction raised several questions concerning the compatibility of the transaction or, more particularly, of the involvement of the Dutch Government, with the non-recognized status of Taiwan and the obligations of the Netherlands towards China.

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Articles
Information
Netherlands Yearbook of International Law , Volume 13 , December 1982 , pp. 125 - 141
Copyright
Copyright © T.M.C. Asser Press 1982

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References

1. The present author has dealt with this subject-matter more briefly as part of a paper entitled: “Multi-system nations and international law, with special reference to Dutch practice”, submitted to a conference in August, 1981, and now published in Hungdah, Chiu and Downen, R., eds., Multi-system Nations and International Law: The International Status of Germany, Korea and China (Proceedings of a regional conference of the American Society of International Law), Occasional Paper/Reprints Series in Contemporary Asian Studies No. 8–1981 (School of Law, University of Maryland) pp. 75–112.Google Scholar

2. See the newspaper report on the signing of the final contract by the director of RSV and the representatives of the ROC (Republic of China) Navy in early September 1981: NRC Handelsblad, 7 Sept. 1981 p. 1.

3. In view of the Taiwan Relations Act, US-Taiwan relations can in fact never be similar.

4. Quoted in a letter from the Minister of Economic Affairs to Parliament, 8 Dec. 1980, Bijl. Hand. II 1980/81 - 16520 No. 1.

5. NRC-Handelsblad, 26 Nov. 1980.

6. The request for recall was not a persona non grata declaration within the meaning of Art. 9 of the Vienna Convention, since it did not concern the person of the Dutch ambassador (See Satow's, Guide to Diplomatic Practice, 5th ed., (1979) p. 178)Google Scholar. That fact was demonstratively emphasized by the ambassador being offered an official farewell luncheon. On the other side, the recall of the Chinese ambassador to The Hague was not a “recall of mission” within the meaning of Art. 45 of the Vienna Convention, and had no impact on the continuance of diplomatic relations at ambassadorial level. Consequently, the caretaker was a chargé d'affaires ad interim.

7. In both Chinese notes of 16 Jan. 1981 and 27 Feb. 1981.

8. NRC-Handelsblad, 29 Apr. 1981 p. 2.

9. NRC-Handelsblad, 6 May 1981 p. 1.

10. Letter cited in n. 4.

10a. The new Pinyin spelling of the Mandarin pronunciation of Chinese words will be applied throughout this article, Beijing thus replacing Peking.

11. Jaarboek van het Ministerie van Buitenlandse Zaken [Yearbook of the Ministry of Foreign Affairs] 1949/1950 p. 298.

12. A/1365. The draft contained the following paragraphs:

“…

The General Assembly,

Noting that the Republic of China is a Member of the United Nations and of various organs thereof;

Considering that the obligations of a Member under the Charter of the United Nations cannot be carried out except by a Government which, with a reasonable expectancy of permanence, actually exercises control over the territory of that Member and commands the obedience of its people;

Recognizing that the Central Government of the People's Republic of China is the only such Government functioning in the Republic of China as now constituted;

Decides that the aforesaid Central Government through its head, or its Minister for Foreign Affairs, or its accredited representatives, as the case may be, shall be entitled to represent the Republic of China in the General Assembly; …”

13. The draft resolution was rejected, with 33 votes against, 16 votes for (among which the Netherlands), and 10 abstentions.

14. Under this resolution the question of a change in Chinese representation was not to be discussed in the current UN General Assembly session.

15. When in the course of time support for the Moratorium Resolution dwindled and when, correspondingly, it became increasingly difficult to block discussion on the change in representation, Resolution 1668(XVI) was adopted, under which the subject of change in Chinese representation was characterized as an “important matter”, requiring a majority of two-thirds for any decision on it.

16. See Ko Swan, Sik, “The establishment of diplomatic relations and the scope of diplomatic immunity: the Dutch experience with China”, in Cohen, J.A., ed., China's Practice of International Law: some case studies (1972) pp. 57–85, at pp. 58–68.Google Scholar

17. Belgium still recognized the government at Taiwan as the legitimate government of China at that time.

18. See Bot, R.R., Non-recognition and Treaty Relations (1968) pp. 49–50.Google Scholar

19. Statement of 20 Oct. 1971, Ministry of Foreign Affairs publication No. 100 p. 231.

20. Reply to written questions, 10 March 1971, 4 NYIL (1973) p. 309.

21. Text in Yearbook of the Ministry of Foreign Affairs 1971–1972, Addenda p. 86.

22. Hand. II 1980/81, p. 2734, and p. 2635, respectively.

23. Text in Parry's Consolidated Treaty Series, vol. 181 p. 216.

24. Text in Whiteman's, M.M.Digest of International Law, vol. 3 (1964) p. 478.Google Scholar

25. Id., p. 484.

26. Hungdah, Chiu, ed., China and the Question of Taiwan (1973), doc. 15 at p. 209.Google Scholar

27. Whiteman, Digest, vol. 3 p. 487.

28. Chiu, op.cit. in n. 26, doc. 18 at p. 212.

29. Id., docs. 19 and 20 at p. 213–4.

30. See President Truman's statement on US policy on the status of Taiwan of 5 January 1950, and the elaborating remarks by the US Secretary of State of the same day, texts in Chiu, op.cit. in n. 26, docs. 24 and 25 pp. 220–2.

31. Chiu, op.cit. in n. 26, doc. 27 p. 228.

32. Record of conversation between ambassadors Koo and Dulles concerning the Japanese Peace Treaty, 20 October 1950. See Chiu, op.cit. in n. 26, doc. 33, p. 236–7.

33. 136 UNTS p. 45.

34. 138 UNTS p. 38.

34a. It should be noted that the Dutch position differed legally from that of the United States. The latter did recognize the Taibei-based government as the de jure Chinese government.

35. Hand. II 1980/81 p. 2746.

36. Canadian Communiqué, Oct. 1970, 9 ILM (1970) p. 1244–5; Japanese Communique of 29 Sept. 1972, 17 Jap.AIL (1973) p. 81; US Communiqué 1972, 11 ILM (1972) p. 445; US Communiqué 1978, 18 ILM (1979) p. 274.

37. For the scope of the Dutch statement, see infra. In the case of the US it should be noted that in the Joint Communiqué of Feb. 1972, the US declared with respect to the Chinese claim: “The United States Government does not challenge that position”. Morton A. Kaplan has fully appreciated the legal scope of this declaration, see “Recognition policy with respect to multi-system states: the case of China”, in Chiu, and Downen, , eds., Multi-system Nations, pp. 167-76, at p. 173Google Scholar: “Had it not been for Congressional passage of the Taiwan Relations Act, the right of the US to […] supply it [i.e. Taiwan] with weapons, … except on terms acceptable to the People's Republic, could have been challenged at some future date on the basis of the agreement [sic] between the two governments. Even though the US did not formally acknowledge the right of the People's Republic to control Taiwan, it did ‘not challenge’ that control …”. While his understanding of the Communiqué wording is revealing, it is difficult to see how the municipal TRA could determine the international rights of the US.

38. Since the decentralized nature of a community implies a wider freedom of action for each of its subjects, the use made of that freedom must accordingly be allowed consequences in the legal field. The Eastern Greenland case and the Nuclear Tests cases are examples of the International Court attaching legal consequence to a unilateral declaration. In a highly heterogeneous international community it becomes increasingly difficult to reach express common ground in respect of the most sensitive issues. Joint communiqués are becoming ever more fashionable in place of formal agreements; joint unilateral declarations replace the definition of mutual rights and obligations. It is submitted that in these cases, as well as in those of non-mandatory recommendations by plenary assemblies of international organizations, more weight should be attached to unilateral declarations and to affirmative votes or abstentions from a negative vote.

39. Hand. II 1980/81 p. 2747.

40. The difference between the legal positions of countries (like the Netherlands) which had recognized the Beijing Government as the de jure government of China, and those (like the US before 1979) which had, on the contrary, continued to treat the Taiwan-based “ROC” government as such, is evident. So far as the latter states had not treated the Taiwan-based government as a government in exile (which none of them did) they necessarily had to accept, legally, that Taiwan was a part of China. It is submitted that these states, among which was the US, were legally precluded at the time of their de-recognition of the Taibei Government and their recognition of the Beijing Government as the de jure government of China, from changing their view of Taiwan being part of the Chinese state.

41. Stb. 1962 No. 295.

42. Stb. 1963 No. 128.

43. See, on the system of the Act and the Decree, 8 NYIL (1977) pp. 331–3 and 12 NYIL (1981) p. 293 et seq.

44. See Art. 2 of the Decree. This “list of strategic goods” is updated whenever necessary. See, for its latest version, Royal Decree of 12 June 1981, Stb. 1981 No. 351, see infra, p. 315.

45. Nota Ontwapening en Veiligheid [Memorandum on Disarmament and Security], Bijl. Hand. II 1974/75 - 13461 No. 1–2.

46. Loc.cit. p 64,

47. Reference may be made to another major policy memorandum by the Dutch Government of May, 1979, on human rights in foreign policy, which refers to these criteria: Nota inzake de Rechten van de Mens in het Buitenlands Beleid (Memorandum on the place of human rights in foreign policy), Bijl. Hand. II 1978/79 - 15571 Nos. 1–2 p. 65, and also to the replies by the Government to questions from Parliament with regard to this Memorandum, Bijl. Hand. II 1979/80 - 15571 No. 5, especially paras. 79, 80 and 85.

48. Reference may here be made to the abortive 1925 Convention for the Supervision of the International Trade in Arms, Munitions, and Implements of War, and to the 1957 Inter American Protocol to the Convention on Duties and Rights of States in the Event of Civil Strife, Whiteman, Digest, vol. 5, pp. 273–4.

49. This and other terminology, such as the term “insurgents”, might raise political and historical objections. See the comments by Hungdah Chiu on “Multi-system nations and international law, with special reference to Dutch pratice”, loc.cit. at p. 110. The terms will nevertheless be used as terms of art, referring to existing categories of legal relevance in international law. In the present case, the relevant fact is that the ruling authorities in Taiwan exercise their power without title from and against the will of the government which is considered by the Netherlands to be the legitimate government of the country, including Taiwan.

50. See ILC Yearbook 1975 vol. II p. 70 et seq., at p. 74 et seq.

51. Id., p. 70.

51a. The reasoning of the ILC has been followed here. See id., p. 73, para. 11. It is well-known that a different construction also has its adherents: See Oppenheim-Lauterpacht's, International Law, vol. 1 8th ed., (1955) p. 337–8 (paras. 149–150).Google Scholar

52. Draft article 3, ILC Yearbook 1979 vol. II(2) p. 91.

53. Oppenheim, L., International Law (Lauterpacht, H. ed.), vol. 1, 8th ed. (1955) para. 124.Google Scholar

54. Oppenheim-Lauterpacht, op.cit. para. 134.

55. Lauterpacht, H., Recognition in International Law (1974) p. 230.Google Scholar

56. Brownlie, I., International Law and the Use of Force by States (1963) pp. 321-2Google Scholar, Lauterpacht, op.cit. p. 232.

57. Brownlie, op.cit., p. 323 et seq.

58. Lauterpacht, Recognition, p. 270 et seq.; Oppenheim-Lauterpacht, op.cit. para. 75a.

59. See Fraleigh, A., “The Algerian Revolution as a case study in international law”, in Falk, R.A., ed., The International Law of Civil War (1971) pp. 179–243, at p. 213Google Scholar: “The states which supplied aid to the FLN appeared to be unconcerned that thay were violating a precept of traditional international law - that aid is not to be given to the rebel side in a revolution either before or after the rebels attain the status of belligerents”.

60. This is how Fraleigh, preceding footnote, explained the assistance given to the Algerian National Liberation Movement.

61. See Jochen, Abr. Frowein, Das de facto-Regime im Völkerrecht (1968) p. 51Google Scholar: “Das befriedete de facto-Regime”.

62. Reference is made here to “recognition as insurgent government” or “as de facto government” during the Spanish Civil War. See Lauterpacht, Recognition, p. 273 et seq. and p. 279 et seq. See also Kuyper, P.J., “Recognition: Netherlands theory and state practice”, in: International Law in the Netherlands, vol. 3 (1980) pp. 371–403 at p. 394 et seq.Google Scholar, where reference is made to the views of François on the matter.Crawford, J., The Creation of States in International Law (1919) p. 151Google Scholar, characterizes Taiwan as a “consolidated local de facto government in a civil war situation”.

63. Yb. ILC 1975 vol. II p. 81.

64. Draft article 29 para. 1.

65. It may be recalled that there are contending schools of thought concerning the unilateral or bilateral nature of recognition. In the latter case the act of recognition itself may be seen as an offer (to establish normal relations) or as an acceptance (of a claim to be recognized). See Verhoeve, J., La reconnaissance internationale dans la pratique contemporaine (1975), pp. 695 et seq.Google Scholar

66. Op.cit. p. 119. See also p. 143 et seq.

67. Op.cit. p. 151.

68. In contradistinction to the pre-war “balance of power system”, see Morton Kaplan, loc.cit. in n. 37, at p. 168 et seq.

69. This phenomenon has recently been called “multi-system nation”. See the conference devoted to it, cited in n. 1.

70. Herz, John H., “Korea and Germany as divided nations: the systemic impact”, 15 Asian Survey (1975) pp. 957-70.CrossRefGoogle Scholar

71. Morton A. Kaplan, loc.cit. in n. 37, at p. 171.