Legal status of Taiwan

The legal question of which legal entity holds de jure sovereignty over the island of Taiwan is a controversial issue. Various legal claims have been made by the People's Republic of China (PRC), the Republic of China (ROC), and supporters of Taiwan independence over this question, with a variety of arguments advanced by all sides. The question has significant bearing on the political status of Taiwan, and touches upon many aspects of international law. On a de facto basis, sovereignty over Taiwan is exercised by the ROC.

Historical overview

Taiwan and associated lands, also called "Formosa and the Pescadores", were permanently ceded by the Qing Dynasty to Japan via Articles 2b and 2c of the Treaty of Shimonoseki in May 8, 1895 in one of what the Chinese term as an unequal treaty. Kinmen and Matsu Islands on the coast of Fukien, and the islands in the South China Sea currently administered by the Republic of China on Taiwan were not part of the cession.

The Chinese Qing dynasty was subsequently overthrown and replaced by the Republic of China (ROC). Upon the outbreak of the Second Sino-Japanese War, the ROC declared the Treaty of Shimonoseki void in its declaration of war on Japan. The war soon merged with World War II, and Japan was subsequently defeated in 1945 by the Allied Powers, of which the ROC was a part.

The United States entered the War in December 1941. Most military attacks against Japanese installations and Japanese troops in Taiwan were conducted by United States military forces. At the Cairo Conference, the U.S., United Kingdom, and the ROC agreed that Taiwan was to be returned to the ROC after the war, and the Potsdam Declaration outlined the terms of surrender.

When Japan unconditionally surrendered, it accepted in its Instrument of Surrender the terms of the Potsdam Declaration. Japanese troops in Taiwan were directed to surrender to the representatives of the Supreme Allied Commander in the China Theater, Chiang Kai-shek (i.e. the Republic of China military forces), according to the directions of General Douglas MacArthur, head of the United States Military Government, in General Order No. 1, which was issued September 2, 1945. Chief Executive Chen Yi soon proclaimed "Taiwan Retrocession Day" on October 25, 1945.

When the 228 Incident erupted in February 28, 1947, the U.S. Consulate-General in Taipei prepared a report in early March, calling for an immediate intervention in the name of the U.S. or the United Nations. Based on the argument that the Japanese surrender did not formally transfer sovereignty, Taiwan was still legally part of Japan and occupied by the United States (with administrative authority for the occupation delegated to the Chinese Nationalists), and a direct intervention was appropriate for a territory with such status. This proposed intervention, however, was rejected by the U.S. State Department. In a news report on the aftermath of the 228 Incident, some Formosans were reported to be talking of appealing to the United Nations to put the island under an international mandate, since China's possession of the Taiwan had not been formalized by any international treaties by that time [1] and the island was therefore still under belligerent occupation. They later made a demand for a treaty role to be represented at the forthcoming peace conference on Japan, in the hope of requesting a plebiscite to determine the island's political future[2].

After the outbreak of the Korean War, U.S. President Harry S. Truman decided to "neutralize" Taiwan claiming that it could otherwise trigger another world war. In June 1950, President Truman, who had previously given only passive support to Chiang Kai-shek and was prepared to see Taiwan fall into the hands of the Chinese Communists, vowed to stop the spread of communism and sent the U.S. Seventh Fleet into the Taiwan Strait to prevent the PRC from attacking Taiwan, but also to prevent the ROC from attacking the mainland. He declared that "the determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations."[3] President Truman later reaffirmed the position "that all questions affecting Formosa be settled by peaceful means as envisaged in the Charter of the United Nations" in his special message to the Congress in July 1950.[4] The PRC denounced his moves as flagrant interference in the internal affairs of China.

On September 8, 1950, President Truman ordered John Foster Dulles, then Foreign Policy Advisor to the U.S. Secretary of State, to carry out his decision on "neutralizing" Taiwan in drafting the Treaty of Peace with Japan (San Francisco Peace Treaty) of 1951. According to George H. Kerr's memoir Formosa Betrayed, Dulles devised a plan whereby Japan would first merely renounce its sovereignty over Taiwan without a recipient country to allow the sovereignty over Taiwan to be determined together by the United States, the United Kingdom, Soviet Union, and Republic of China on behalf of other nations on the peace treaty. The question of Taiwan would be taken into the United Nations (which the ROC was still part), if these four parties could not reach into an agreement within one year.

When Japan regained sovereignty over itself in 1952 with the conclusion of the San Francisco Peace Treaty with 48 nations, Japan renounced all claims and title over Taiwan and the Pescadores. Many claim that Japanese sovereignty only terminated at that point. Notably absent at the peace conference was the ROC which was expelled from mainland China in December 1949 as a result of the Chinese Civil War and had retreated to Taiwan. The PRC, which was proclaimed October 1, 1949, was also not invited. The lack of invitation was probably due to the dispute over which government was the legitimate government of China (which both governments claimed to be); however, Cold War considerations might have played a part as well. Some major governments represented in the San Francisco Conference, such as the UK and Soviet Union, had already established relations with the PRC, while others, such as the U.S. and Japan, still held relations with the ROC.

Article 25 of this treaty officially stipulated that only the Allied Powers defined in the treaty could benefit from this treaty. China was not listed as one of the Allied Powers; however, article 21 still provided limited benefits from Articles 10 and 14(a)2 for China. Japan's cession of Taiwan is unusual in that no recipient of Taiwan was stated as part of Dulles's plan of "neutralizing" Taiwan. The ROC protested its lack of invitation to the San Francisco Peace conference, to no avail.

Subsequently, the Treaty of Taipei was concluded between the ROC and Japan (effective August 5, 1952), where Japan basically re-affirmed the terms of the San Francisco Peace Treaty, and formalized the peace between the ROC and Japan. It also nullified all previous treaties made between China and Japan, implicitly repealing the Treaty of Shimonoseki.

Legal arguments

Arguments for ROC and/or PRC sovereignty claims

Arguments common to both the PRC and ROC ("Chinese" here is an ambiguous term that could mean the PRC and/or ROC as legal government(s) of China.)

1. Taiwan has been a part of Chinese territory since ancient times. National territorial boundaries are established by history.
2. The waging of aggressive war by Japan against China in 1937 and beyond violates the peace that was brokered in the Treaty of Shimonoseki, and with the declaration of war against Japan, that treaty is void. Therefore, with no valid transfer of sovereignty having taken place, the sovereignty of Taiwan naturally belongs to China.
3. The Cairo Declaration of December 1, 1943 and Potsdam Proclamation of July 26, 1945 were accepted by Japan in its surrender. Those documents clearly state that Taiwan was to be returned to Republic of China sovereignty at the end of World War II. It was made with the Republic of China led by President Chiang Kai-shek. No aggreement was made with the Chinese Communists.
4. The proclamation of Taiwan Retrocession Day on October 25, 1945, by the ROC (when the PRC had not yet been founded) was entirely uncontested. Had another party been sovereign over Taiwan, that party would have had a period of years in which to protest, and its failure to do so represents cession of rights in the manner of prescription. The lack of protest by any non-Chinese government persists to this day, further strengthening this argument.
5. The exclusion of Chinese governments (both ROC and PRC) in the negotiation process of the San Francisco Peace Treaty (SFPT) nullified any legal binding power of SFPT on China. In addition, the fact that neither ROC nor PRC government ever ratified SFPT terms, prescribes that SFPT is irrelavent to any discussion of Chinese sovereignty over Taiwan.
6. Taiwanese and Chinese culture are extremely similar, and the majority of Taiwanese are descended from migrants who moved there from mainland China over the past several hundred years.
7. No state in the world recognizes Taiwan as an independent state. Regardless of which government PRC or ROC is recognized, the recognition is of the only legitimate government of China. The United Nations regards Taiwan as a "province of China" [[5]].

Further arguments in support of ROC sovereignty claims

1. The Treaty of Taipei formalized the peace between Japan and the ROC. In it, Japan reaffirmed Cairo Declaration and Postdam Declaration and voided all treaties conducted between China and Japan (including the Treaty of Shimonoseki).
2. Article 4 of the ROC Constitution clearly states that "The territory of the Republic of China" is defined "according to its existing national boundaries . . . " Taiwan was historically part of China and is therefore naturally included therein.
3. Post WWII, no country ever contested ROC's sovereignty over Taiwan till now, except old civil war rival PRC. The absence of contest from non-Chinese entities validates ROC's sovereignty claim over Taiwan.
4. The ROC - USA Mutual Defense Treaty of 1955 implicitly recognizes ROC sovereignty over Taiwan.
5. While Taiwan independence supporters once used arguments not in favor of Chinese sovereignty to dispute to legitimacy of the Kuomintang-controlled government that ruled over Taiwan, these arguments have been dropped by a majority (except the most extreme) supporters of independence due to the democratization of Taiwan. This has allowed the more moderate supporters of independence, such as President Chen Shui-bian, to stress the popular sovereignty theory in order to accept the legitimacy of the Republic of China (whose government the Democratic Progressive Party now controls) in Taiwan. President Chen has repeatedly confirmed that the "Republic of China is Taiwan."

Arguments for Taiwan already being an independent, sovereign nation

1. The peace that was brokered in the Treaty of Shimonoseki was breached by the Boxer Rebellion which lead to the conclusion of the Boxer Protocol of 1901 (Peace Agreement between the Great Powers and China)[6], not by the Second Sino-Japanese War. The Treaty of Shimonoseki was a dispositive treaty, therefore it is not voidable or nullifiable. This doctrine being that treaties specifying particular actions which can be completed, once the action gets completed, cannot be voided or reversed absent a new treaty specifically reversing that clause. Hence, the unequal treaty doctrine can not be applied on to this treaty. By way of comparison, as 200,000,000 Kuping taels was not returned to China from Japan, and Korea had not become Chinese dependent country again, the cession in the treaty was executed and can not be nullified. The disposition of Formosa and the Pescadores in this treaty was a legitimate cession by conquest, confirmed by treaty, and thus is not a theft as described "all the territories Japan has stolen from the Chinese" in Cairo Declaration . It should also be noted that the Qing court exercised effective rule over primarily the west coast of Taiwan only, and even then did not regard the areas as an integral part of national Chinese territory.
2. The so-called Cairo Declaration was merely an unsigned press communique which does not carry a legal status, while the Potsdam Proclamation and Instrument of Surrender are simply modus vivendi and armistice which function as temporary records and do not bear legally binding power to transfer sovereignty. Good faith of interpretation only takes place at the level of treaties.
3. The retrocession proclaimed by ROC in 1945 was legally null and impossible since Taiwan was still de jure part of Japan before the post-war San Francisco Peace Treaty came into effect on April 28, 1952. Consequently, the announcement of the mass-naturalization of native Taiwanese persons as ROC citizens in January 1946 is unjust and void ab initio. After the San Francisco Peace Treaty came into effect, the sovereignty of Taiwan naturally belonged to the Taiwanese people.
4. Chinese claims of culture, history, and irredentism do not constitute legal bases for a recognizing any transfer of sovereignty to China.
5. Sovereignty transfer to the ROC by prescription does not apply to Taiwan's case since:

1) Prescription is the manner of acquiring property by a long, honest, and uninterrupted possession or use during the time required by law. The possession must have been possessio longa, continua, et pacifica, nec sit ligitima interruptio (long, continued, peaceable, and without lawful interruption). For prescription to apply, the state with title to the territory must acquiesce to the action of the other state. Yet, PRC has never established an occupation on Taiwan and exercised sovereignty for one single day, 2) Prescription as a rule for acquiring sovereignty itself is not universally accepted. The International Court of Justice ruled that Belgium retained its sovereignty over territories even by non-assertion of its rights and by acquiescence to acts of sovereign control alleged to have been exercised by the Netherlands over a period of 109 years.[7], 3) Also by way of comparison, even after 38 years of continuous control, the international community did not recognize sovereignty rights to the Gaza Strip by Israel, and the Israeli cabinet formally declared an end to military rule there as of September 12, 2005, with a removal of all Israeli settlers and military bases from the Strip, 4) A pro-independence group, which formed a Provisional Government of Formosa in 2000, argued that both the 228 incident of 1947 and the Provisional Government of Formosa have constituted protests against ROC government's claim of retrocession within a reasonable twenty-five year (or more) acquiescence period[8], 5) Taiwanese residents were unable to make a protest after the 228 incident due to the authoritarian rule under KMT regime which suppressed all pro-independence opinion, 6) Japan was not able to cast a protest as it was under military occupation at the time, however it did not renounce its sovereignty over Taiwan until April 28, 1952. [9].

Arguments by various groups which claim Taiwan should declare itself to be an independent sovereign nation

1. As one of the "territories which detached from enemy states as a result of the Second World War" defined in the article 76b and 77b of the United Nations Charter which China signed in 1945 and also defined in the protocol of Yalta Conference, Taiwan qualifies for the UN trusteeship program, and after a period of time would later be considered fully independent. The ROC, as a founding member of the United Nations, would have a treaty obligation to comply with the UN Charter and help the people living in Taiwan enjoy the right of self-determination.
2. The San Francisco Peace Treaty is definitive, where Japan ceded Taiwan without specifying a clear recipient. China was prohibited from acquiring Taiwan sovereignty as a benefit when the treaty was finalized. Moreover, the Treaty of Taipei only became effective on Aug. 5, 1952, over three months after the coming into force of the San Francisco Peace Treaty on April 28, 1952. Hence, the Treaty of Taipei cannot be interpreted to have ceded the sovereignty of Taiwan to the ROC or the PRC, as Japan cannot cede what it no longer possessed.
3. Since the peace brokered in the Boxer Protocol of 1901 was breached by the second Sino-Japanese War, the San Francisco Peace Treaty specifies that the date to be used in returning territory to China in Article 10 was 1901, not 1895. The postliminium restoration of China was completed without sovereignty over Taiwan since Taiwan was not part of China when the first Chinese Republic was established in 1911. Moreover, the Treaty of Taipei was abrogated by Japan upon the PRC's request in 1972.
4. Cession of Taiwan without a recipient was neither unusual nor unique, since Cuba, as a precedent, was ceded by Spain without recipient in Treaty of Paris of 1898 as the result of Spanish-American War. Cuba reached independence in May 1902. At the end of WWII, Libya and Somaliland were also relinquished without recipient by Italy in the Treaty of peace with Italy of 1947 and both reached independence later.
5. In the Six Assurances offered to Taiwan in the 1980s, the U.S. is explicit in not recognizing the sovereignty claim over Taiwan by the PRC. The U.S. also denied the sovereignty claim by the ROC in a congressional report in the 1970s.[10].
6. The Nationality Law of the Republic of China was originally promulgated in February 1929. However, no amendment or change to this law or any other law has ever been made by the Legislative Yuan in the post WWII period to reflect any mass-naturalization of native Taiwanese persons as ROC citizens. This is important because Article 10 of the Treaty of Taipei specifies: "For the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendents who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores) ... " Since no relevant laws or regulations have ever been promulgated, there is no legal basis to consider native Taiwanese persons as ROC citizens.
7. The sovereignty of Taiwan naturally belongs to the Taiwanese people, who are entitled to form their own government under the nomenclature of their own chosing. According to recent polls in Taiwan, an increasing percentage of the populace favors Taiwan independence under the moniker of Republic of Taiwan. Self-determination is a fundamental right of peoples everywhere.
8. Furthermore it is recognized that the ROC government currently administering Taiwan is not the same ROC which accepted Japanese surrender in 1945, because the ruling authorities were given popular mandate by different pools of constituencies: one is the mainland Chinese electorate, the other local Taiwanese. The popular sovereignty theory, to which the pan-green coalition subscribes, emphasizes that Taiwan could make fundamental constitutional changes and choose a new national title by means of a popular referendum. (In contrast, the ROC legal theory, which is supported by the pan-blue coalition suggests that any fundamental constitutional changes would require that the amendment procedure of the ROC constitution be followed.)
9. Nevertheless the popular sovereignty theory (which currently has wide support in Taiwan) does not contradict any arguments in favor of self-determination, nor does it affirm arguments in favor of Chinese sovereignty. This means that at present the only obstacle towards declaring Taiwan independence is a lack of consensus among the Taiwanese people to do so, however it is clear that the consensus is changing as the Taiwanese people begin preparations for their 15th application for entrance to the United Nations in the Fall of 2007.
10. The San Francisco Peace Treaty's omission of China as a participant was not an accident of history, but reflected the very true fact that the ROC had failed to maintain its original position as the de jure and de facto government of China. By fleeing to occupied Taiwan in December 1949, the ROC had already become a government in exile.
11. Under international law, there are no actions which a government in exile can take in its current location of residence in order to be recognized as the local legitimate government. Hence, Taiwan's current international problems have arisen from the fact that the ROC government in exile is not internationally recognized as the legitimate government of Taiwan. The ROC should be dissolved and succeeded by the ROT.

Arguments for United States sovereignty claims

A small number of people have argued that the United States holds sovereignty over Taiwan based on the San Francisco Peace Treaty's cession of Taiwan without a recipient, and the argument that the ROC troops were acting under the directions of the United States when entering Taiwan. The relationship has never been formally terminated, hence the basis for the claim. The U.S. has not acted ever thereby terminating any possible relationship.

See also

• Anti-Secession Law of the People's Republic of China
• History of China
• History of Taiwan
• Political status of Taiwan
• Free Area of the Republic of China

External links

• Foreign Ministry of the People's Republic of China (English)
• Government Information Office - Republic of China -->
• Taiwan Affairs Office of the State Council - White Papers on Taiwan Issue by the PRC
• China Taiwan Information Center (PRC perspective)
• [11] American Council on Foreign Relations paper on the US position.
• Understanding the San Francisco Peace Treaty's Disposition of Formosa and the Pescadores
• Taiwan Documents Project A complete collection of Taiwan-related documents, based in Los Angeles, USA (favors Taiwan Independence)
• Taiwan is US territory
• Taiwan and the World Trade Organization (by Steve Charnovitz)