(Editor’s note: the author is a political scientist and law professor. He used to teach at the universities in Hamburg, Mannheim as well as in Heidelberg. The text below was his speech in 2019 in Köln. The UN will hold the Assembly on September 10., Taiwan’s diplomat will propose to discuss the 2758 Resolution from 1971, which has replaced Taiwan through the People’s Republic of China in the Security Council. Taiwan left the UN and lost ever since its membership. Prof. Sattler’s speech argues that the 2758 Resolution was based on a fraudulent trick. Would Taiwan overthrow this historical UN decision…. )
As a professor of law speaking to you, you will expect to hear about the intricacies of human rights legal operations and international law problems regarding the relations between the ROC (Republic of China) and the PROC (People’s Republic of China). But I will be very general and not address particularities. The attitude that is necessary to address such problems is my topic, ethically and morally. What attitudes are to be taken? From what moral and ethical position must we argue?
The violations of Human Rights committed by official state agencies (police, courts, administration, party councils) in the PROC are tantamount: against minorities (Tibetan, Mongol, Uighur, etc.), individuals, authors, artists, businessmen, lawyers, families, etc. etc. All violations count. Every violation is one too much. The Rule of Law should operate against all violations. The legal system should be one, that functions as a safeguard against such violations.
As all these violations of Human Rights are in detail relevant it should be the obligation of all of us to talk about them in detail. They should all be openly discussed and put on the table. I cannot do this, but I can give you the argument, why we all suffer from the fact, that these violations happen, and why this suffering must be articulated in public. If these violations disappear behind a veil of oblivion, if they are repressed, they will remain as repressed facts and will continue to work the more they are repressed.
The suffocated spirit of Liberty cannot and will not be repressed forever.
” (Modern)Democracy” is used as a notion to grasp the essentials of the modern form of government as conceived for the member states by the United Nations Charter of 1945 after the catastrophe of World War II. It is a document which is not a description of a form of public order of political bodies. It advocates what the conduct of people and institutions within a UN member state should be at its best. Our conscience, our responsibility, our moral obligation is needed to adequately take a stand in these political matters. The UN is not an arbitrary agreement of several sovereign nations. It is intrinsically oriented by ethics and morality. The Charter is the document in which we find what the people and the institutions of a country should be striving for. Its articles comprehend many implications: free elections and a plurality of parties, parliamentarian legislature, an executive created by majority rule, civil rights of the individual citizens as a defense against violations, an independent judiciary, restrictions on the excessive freedoms of the economy by the law of equality, etc., etc. All these elements of Modern Democracy together are called a Constitution of Liberty, they are the spirit of Liberty of the constitution for the public order. Complicated, yes.
These are universals, they are elements that are relevant to all mankind and all governments. No “cultural difference” permits watering down these elements. One world and the evolution from despotic public order for centuries created a worldwide family of nations which considers the ethics of this just public order. The Constitution of Liberty, or the “Free State” as it is also called, “The Rule of Law” is a commitment of all humankind. All member states of the UN have a responsibility toward each other if in another member state shortcomings regarding these elements evolve. There exists an obligation among the member states to look for the ethical and moral keeping of the standards of the spirit of Liberty. The shortcomings within member states evolve – as time goes by – in all member states. Case Law promulgated by courts, administrative practices, and openly unconstitutional statuary law infringe constantly the spirit of Liberty laid down in member constitutions. The constitutionality of the law in a member state must therefore be safeguarded again and again by an independent constitutional court. This complex process of reassuring the constitutionality of law is called the Rule of Law or “Modern Democracy”. The sovereignty of nations is insofar limited. Absolute sovereignty does not exist for United Nations members. Insisting on absolute sovereignty implies the loss of UN membership.
The PROC never aimed at this “Rule of Law”. When the civil war was won by the Communist Party of China, there was no conviction that the “Rule of Law” should constitute the public order in China. The plight, the famine, and the general disorder were taken as a scapegoat which necessitated strategic actions by the one-party regime. The
Leninist concept implied strategic politics, and total government control over the society, so the one-party control was introduced. From 1911 – the end of the Qing Dynasty – China was trying to reach the balance of a “Rule of Law”. Under foreign aggression and inner civil war turbulances the goal to establish an ethically oriented Constitution after 1949 (founding of the PROC) was lost and the spirit of Liberty, the “Rule of Law”, was totally perverted.
The Chinese people have an inbuilt moral conduct and a private sense of ethics which goes, maybe, back to Confucius through many reinterpretations. From 1949 onward their public institutions negated the spirit of Liberty, the “Modern Democracy” and the “Rule of Law”. Perverted forms of ideological talk about Chinese Human Rights, Chinese Rule of Law re-defined as Rule by Law, and People Democracy – all imported from Western European totalitarian ideological traditions – dominate the political discourse as a big lie in China. We have to take a stand against these willfully articulated lies. No moderation, no “understanding of the cultural differences”, no oblivion of the universality of the fate of humankind and its struggle for liberty is justified, based on such entanglements.
Liu Xiaobo and his friends, in the Charta 08 with its 6 principles and 19 reform projects, took the understanding of Constitutional Liberty right into the Chinese public debate again. Like the 4th of June 1989 massacre and the reintroduction of a Constitutional Law of Order by Liu Xiaobo, both were cracked down by the Chinese Communist Party. It is the successful repression of Liberty by the Leninist doctrine of total control over a nation of 130.000.000 women and men. We must stand up and articulate our doubts and demand Liberty in the name of humankind.
By the way: The replacement in 1971 of the ROC by the PROC as a member of the UN Security Council was based on a fraudulent trick. The UN Assembly at the time had 130 delegations or members. 3 delegations were not present when the resolution 2758 stipulating the replacement was proposed. 17 members abstained, 75 voted for the replacement, and 35 wanted the ROC to remain as a member also in the Security Council. According to Article 18 paragraph 2 a two-third majority was necessary for a successful replacement. Two-thirds of the 130 members are 86. Only 75 voted for the replacement. By a fraudulent trick – reducing the total from 130 to 110 – subtracting the not present delegations (3) and the abstaining delegations (17) from the total (130) to 110 – an unheard and utterly mischievous manipulation – was used to claim the success of the replacement by a vote of 75. Two-thirds of the fraudulently claimed total of 110 instead of the 130 members would be 74. A 75 vote for the replacement – based on a lie – was announced as a positive vote on resolution 2758.
順便一提：1971年中華人民共和國取代中華民國成為聯合國安理會成員是基於一個欺詐手段。當時的聯合國大會有130個代表團或成員。提出替代方案的第2758號決議時，有3個代表團缺席。 17個成員國投了棄權票，75個成員國投票支持替代者，35個成員國希望中華民國繼續擔任安理會成員。根據第 18 條第 2 款，成功更換需要三分之二多數。 130 名成員中，三分之二是 86 人。透過欺騙手段——將總數從130 個減少到110 個——從總數（130 個）中減去缺席代表團（3 個）和棄權代表團（17 個）到110 個——這是一種聞所未聞且完全惡作劇的操縱——被用來宣稱成功以75 票贊成替代者。 —基於謊言－被宣佈為對第2758 號決議投了贊成票。新疆的統治違反了聯合國的原則Charta——當時被認為是一種普遍的信仰。
The climate in the UN general assembly in 1971 was such, that the “Realpolitik” (power politics, the prevailing right of the stronger over the Rule of Law) – PROC dominating in Tibet, Mongolia, and Xinjiang was breaking the principles of the UN Charta – was considered at the time a prevailing belief.
The “One China Policy” with the implication that there can be different constitutional types within China has been betrayed by the PROC because she is trying to undermine and thereby violate the Hongkong Constitution daily. The ROC evolved into a Constitution which has achieved the standards of Liberty and the Rule of Law. Hongkong – despite some restrictions under British Colonial rule – has almost reached the Rule of Law standards. But as we can observe a growing infringement of the essentials of the Rule of Law, especially about the freedom of speech, the freedom of demonstration, and other civil rights, it proves that the PROC pursues the harmonious introduction of the perverted one-party rule in Hongkong putting aside all essentials of the Rule of Law. The economic relations – through the investment of Taiwanese money in the PROC – will not lead to the slow trickling down of the Rule of Law essentials in the PROC. Low-interest payments are the attraction for these investments. So they are a form of exploitation, which is also violates the Rule of Law.
