Legal status of Taiwan
Encyclopedia
The legal status of Republic of China (commonly known as Taiwan) is a controversial issue which stems from the complex post-Second World War history of Taiwan. Various 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
. In practice, sovereignty over Taiwan
is exercised by the Republic of China.
(Formosa) and the Pescadores
were permanently ceded by Qing Dynasty
China
to Imperial Japan via Articles 2b and 2c of the Treaty of Shimonoseki
in 8 May 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.
In 1895, subsequent to the Treaty of Shimonoseki
, officials in Taiwan declared independence in the hope of returning the island to Qing rule. The Republic of Taiwan (1895) collapsed after 12 days due to political infighting, but local leaders continued resistance in the hope of achieving self-rule. The incoming Japanese crushed the island's independence bid in a five-month campaign.
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.
military forces. At the Cairo Conference
, the U.S., United Kingdom
, and the ROC agreed that Taiwan was to be restored to the ROC after the war. This agreement was enunciated in the Cairo Declaration
and the Potsdam Declaration
, which outlined the terms of Japanese surrender, specified that the terms of the Cairo Declaration shall be carried out.
When Japan
unconditionally surrendered, it accepted in its Instrument of Surrender
the terms of the Potsdam Declaration. Whether the sovereignty of Taiwan, was formally transferred or not at that time is disputed. 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) on behalf of the Allies
, according to the directions of General Douglas MacArthur
, head of the United States Military Government, in General Order No. 1, which was issued 2 September 1945. Chief Executive Chen Yi
of Republic of China
soon proclaimed "Taiwan Retrocession Day
" on 25 October 1945.
erupted on 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 Taiwanese residents were reported to be talking of appealing to the United Nations to put the island under an international mandate, since China's possession of Taiwan had not been formalized by any international treaties by that time 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.
Harry S. Truman
appeared to accept the idea that sovereignty over Taiwan was already settled when the United States Department of State
stated that "In keeping with these[Cairo and Potsdam] declarations, Formosa was surrendered to Generalissimo Chiang-Kai Shek, and for the past 4 years, the United States and Other Allied Powers have accepted the exercise of Chinese authority over the Island."
However, after the outbreak of the Korean War
, 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 mainland China. He then 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." 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. The PRC denounced his moves as flagrant interference in the internal affairs of China.
On 8 September 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.
in December 1949 as a result of the Chinese Civil War
and had retreated to Taiwan. The PRC, which was proclaimed 1 October 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.
The UK at that time stated for the record that the San Francisco Peace Treaty "itself does not determine the future of these islands," and therefore the UK, along with Australia
and New Zealand
, was happy to sign the peace treaty. One of the major reasons that the delegate from the Soviet Union gave for not signing the treaty was that: "The draft contains only a reference to the renunciation by Japan of its rights to these territories [Taiwan] but intentionally omits any mention of the further fate of these territories."
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.
was concluded between the ROC and Japan on 18 April 1952(effective 5 August), 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. Article 10 of the treaty specifies:
's position was, and remains: "As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution."
Arguments common to both the PRC and ROC
The ROC and PRC both officially support the One China policy and thus share common arguments. In the arguments below, "Chinese" is an ambiguous term that could mean the PRC and/or ROC as legal government(s) of China
.
Arguments in support of ROC sovereignty claims
Arguments in support of PRC sovereignty claims
Arguments by various groups that claim Taiwan should declare itself to be an independent sovereign nation
holds in trust the sovereignty over Taiwan based on the San Francisco Peace Treaty's cession of Taiwan without a recipient. Article 23 of the San Francisco Peace Treaty designated the US as "the principal occupying power" with respect to the territories covered by the geographical scope of the treaty, including "Formosa and the Pescadores."
The argument also states that the ROC troops were acting under the directions of the United States when taking over the administration of Taiwan after the completion of the Oct. 25, 1945, Japanese surrender ceremonies. The principal-agent relationship between the USA and the ROC was argued to never have been formally terminated.
On October 24, 2006, Dr. Roger C. S. Lin led a group of Taiwanese residents, including members of the Taiwan Nation Party, to file a Complaint for Declaratory Relief in the United States District Court for the District of Columbia
. According to their lawyer, Mr. Charles Camp, "[t]he Complaint asks the Court to declare whether the Taiwanese plaintiffs, including members of the Taiwan Nation Party, have certain rights under the United States Constitution and other US laws". Their central argument is that, following Japanese renunciation of all rights and claims to Taiwan, Taiwan came under U.S. jurisdiction based on it being the principal occupying power as designated in the Treaty of Peace with Japan and remains so to this day. Moreover, the plaintiffs claimed that the United States has never recognized the incorporation of Taiwan into Chinese national territory. The defendant in this case was the United States government.
The District Court agreed with United States government on March 18, 2008 and ruled that the case presents a political question
; as such, the court concluded that it had no jurisdiction to hear the matter and dismissed the complaint. This decision was appealed by plaintiffs. The appeals court
unanimously upheld the district court ruling and dismissed the appeal.
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
(PRC), the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
(ROC), and supporters of Taiwan independence
Taiwan independence
Taiwan independence is a political movement whose goals are primarily to formally establish the Republic of Taiwan by renaming or replacing the Republic of China , form a Taiwanese national identity, reject unification and One country, two systems with the People's Republic of China and a Chinese...
over this question, with a variety of arguments advanced by all sides. The question has significant bearing on the political status of Taiwan
Political status of Taiwan
The controversy regarding the political status of Taiwan hinges on whether Taiwan, Penghu, Kinmen, and Matsu should remain effectively independent as territory of the Republic of China , become unified with the territories now governed by the People's Republic of China , or formally declare...
and touches upon many aspects of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. In practice, sovereignty over Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
is exercised by the Republic of China.
Treaty of Shimonoseki
TaiwanTaiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
(Formosa) and the Pescadores
Pescadores
The Penghu Islands, also known as Pescadores are an archipelago off the western coast of Taiwan in the Taiwan Strait consisting of 90 small islands and islets covering an area of 141 square kilometers....
were permanently ceded by Qing Dynasty
Qing Dynasty
The Qing Dynasty was the last dynasty of China, ruling from 1644 to 1912 with a brief, abortive restoration in 1917. It was preceded by the Ming Dynasty and followed by the Republic of China....
China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
to Imperial Japan via Articles 2b and 2c of the Treaty of Shimonoseki
Treaty of Shimonoseki
The Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
in 8 May 1895 in one of what the Chinese term as an unequal treaty. Kinmen
Kinmen
Kinmen , also known as Quemoy , is a small archipelago of several islands administered by the Republic of China : Greater Kinmen, Lesser Kinmen, and some islets. Administratively, it is Kinmen County of Fujian Province, ROC. The county is claimed by the People's Republic of China as part of its...
and Matsu Islands
Matsu Islands
The Matsu Islands are a minor archipelago of 19 islands and islets in the Taiwan Strait administered as Lienchiang County , Fujian Province of the Republic of China . Only a small area of what is historically Lienchiang County is under the control of the ROC...
on the coast of Fukien, and the islands in the South China Sea
South China Sea Islands
The South China Sea Islands consist of over 250 around 1-km² islands, atolls, cays, shoals, reefs, and sandbars in the South China Sea, most of which have no indigenous people, many of which are naturally under water at high tide, some of which are permanently submerged...
currently administered by the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
on Taiwan were not part of the cession.
In 1895, subsequent to the Treaty of Shimonoseki
Treaty of Shimonoseki
The Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
, officials in Taiwan declared independence in the hope of returning the island to Qing rule. The Republic of Taiwan (1895) collapsed after 12 days due to political infighting, but local leaders continued resistance in the hope of achieving self-rule. The incoming Japanese crushed the island's independence bid in a five-month campaign.
The Chinese
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
Qing Dynasty
Qing Dynasty
The Qing Dynasty was the last dynasty of China, ruling from 1644 to 1912 with a brief, abortive restoration in 1917. It was preceded by the Ming Dynasty and followed by the Republic of China....
was subsequently overthrown and replaced by the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
(ROC). Upon the outbreak of the Second Sino-Japanese War
Second Sino-Japanese War
The Second Sino-Japanese War was a military conflict fought primarily between the Republic of China and the Empire of Japan. From 1937 to 1941, China fought Japan with some economic help from Germany , the Soviet Union and the United States...
, the ROC declared the Treaty of Shimonoseki
Treaty of Shimonoseki
The Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
void in its declaration of war on Japan. The war soon merged with World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, and Japan was subsequently defeated in 1945 by the Allied Powers, of which the ROC was a part.
Potsdam Declaration and surrender of Japan
The United States entered the War in December 1941. Most military attacks against Japanese installations and Japanese troops in Taiwan were conducted by United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
military forces. At the Cairo Conference
Cairo Conference
The Cairo Conference of November 22–26, 1943, held in Cairo, Egypt, addressed the Allied position against Japan during World War II and made decisions about postwar Asia...
, the U.S., United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, and the ROC agreed that Taiwan was to be restored to the ROC after the war. This agreement was enunciated in the Cairo Declaration
Cairo Declaration
The Cairo Declaration was the outcome of the Cairo Conference in Cairo, Egypt, on November 27, 1943. President Franklin Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-shek of the Republic of China were present...
and the Potsdam Declaration
Potsdam Declaration
The Potsdam Declaration or the Proclamation Defining Terms for Japanese Surrender is a statement calling for the Surrender of Japan in World War II. On July 26, 1945, United States President Harry S...
, which outlined the terms of Japanese surrender, specified that the terms of the Cairo Declaration shall be carried out.
When Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
unconditionally surrendered, it accepted in its Instrument of Surrender
Japanese Instrument of Surrender
The Japanese Instrument of Surrender was the written agreement that enabled the Surrender of Japan, marking the end of World War II. It was signed by representatives from the Empire of Japan, the United States of America, the Republic of China, the United Kingdom, the Union of Soviet Socialist...
the terms of the Potsdam Declaration. Whether the sovereignty of Taiwan, was formally transferred or not at that time is disputed. Japanese troops in Taiwan were directed to surrender to the representatives of the Supreme Allied Commander in the China Theater, Chiang Kai-shek
Chiang Kai-shek
Chiang Kai-shek was a political and military leader of 20th century China. He is known as Jiǎng Jièshí or Jiǎng Zhōngzhèng in Mandarin....
(i.e. the Republic of China military forces) on behalf of the Allies
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
, according to the directions of General Douglas MacArthur
Douglas MacArthur
General of the Army Douglas MacArthur was an American general and field marshal of the Philippine Army. He was a Chief of Staff of the United States Army during the 1930s and played a prominent role in the Pacific theater during World War II. He received the Medal of Honor for his service in the...
, head of the United States Military Government, in General Order No. 1, which was issued 2 September 1945. Chief Executive Chen Yi
Chen Yi (Kuomintang)
Chen Yi and later Gongqia , sobriquet Tuisu ; 1883 – June 18, 1950) was the Chief Executive and Garrison Commander of Taiwan after it was surrendered by Japan to the Republic of China, which acted on behalf of the Allied Powers, in 1945...
of Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
soon proclaimed "Taiwan Retrocession Day
Retrocession Day
Retrocession Day is an annual observance in the Republic of China to commemorate the end of 50 years of Japanese colonial rule of Taiwan on October 25, 1945.-Background:...
" on 25 October 1945.
1947 – 228 Incident
When the 228 Incident228 Incident
The 228 Incident, also known as the 228 Massacre, was an anti-government uprising in Taiwan that began on February 27, 1947, and was violently suppressed by the Kuomintang government. Estimates of the number of deaths vary from 10,000 to 30,000 or more...
erupted on February 28, 1947, the U.S. Consulate-General in Taipei
Taipei
Taipei City is the capital of the Republic of China and the central city of the largest metropolitan area of Taiwan. Situated at the northern tip of the island, Taipei is located on the Tamsui River, and is about 25 km southwest of Keelung, its port on the Pacific Ocean...
prepared a report in early March, calling for an immediate intervention in the name of the U.S. or the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
. 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 Taiwanese residents were reported to be talking of appealing to the United Nations to put the island under an international mandate, since China's possession of Taiwan had not been formalized by any international treaties by that time 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.
1950–1953 – Korean War and U.S. intervention
At the start of 1950, U.S. PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Harry S. Truman
Harry S. Truman
Harry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice president and the 34th Vice President of the United States , he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...
appeared to accept the idea that sovereignty over Taiwan was already settled when the United States Department of State
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
stated that "In keeping with these
However, after the outbreak of the Korean War
Korean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...
, 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
Taiwan Strait
The Taiwan Strait or Formosa Strait, formerly known as the Black Ditch, is a 180-km-wide strait separating Mainland China and Taiwan. The strait is part of the South China Sea and connects to East China Sea to the northeast...
to prevent the PRC from attacking Taiwan, but also to prevent the ROC from attacking mainland China. He then 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." 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
United Nations Charter
The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...
" in his special message to the Congress in July 1950. The PRC denounced his moves as flagrant interference in the internal affairs of China.
On 8 September 1950, President Truman ordered John Foster Dulles
John Foster Dulles
John Foster Dulles served as U.S. Secretary of State under President Dwight D. Eisenhower from 1953 to 1959. He was a significant figure in the early Cold War era, advocating an aggressive stance against communism throughout the world...
, 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
George H. Kerr
George H. Kerr , also known in Taiwan as 葛超智 , was a United States diplomat during World War II, and in later years he was an author and an academic...
's memoir Formosa Betrayed
Formosa Betrayed (1965 book)
Formosa Betrayed is a book written by George H. Kerr, a US diplomatic officer in Taiwan, who witnessed the 228 Incident and the corruption and killings committed by the KMT in Taiwan after World War II.-External links:...
, 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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
, 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
China and the United Nations
China's seat in the United Nations and membership of the United Nations Security Council was originally occupied by the Republic of China since October 24, 1945. During the Chinese Civil War, the Communist Party of China repelled the government of the ROC from Mainland China to the island of...
), if these four parties could not reach into an agreement within one year.
1952 – Treaty of Peace with Japan (San Francisco)
When Japan regained sovereignty over itself in 1952 with the conclusion of the Treaty of Peace with Japan (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 ChinaMainland China
Mainland China, the Chinese mainland or simply the mainland, is a geopolitical term that refers to the area under the jurisdiction of the People's Republic of China . According to the Taipei-based Mainland Affairs Council, the term excludes the PRC Special Administrative Regions of Hong Kong and...
in December 1949 as a result of the Chinese Civil War
Chinese Civil War
The Chinese Civil War was a civil war fought between the Kuomintang , the governing party of the Republic of China, and the Communist Party of China , for the control of China which eventually led to China's division into two Chinas, Republic of China and People's Republic of...
and had retreated to Taiwan. The PRC, which was proclaimed 1 October 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
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
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.
The UK at that time stated for the record that the San Francisco Peace Treaty "itself does not determine the future of these islands," and therefore the UK, along with Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, was happy to sign the peace treaty. One of the major reasons that the delegate from the Soviet Union gave for not signing the treaty was that: "The draft contains only a reference to the renunciation by Japan of its rights to these territories [Taiwan] but intentionally omits any mention of the further fate of these territories."
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.
1952 – Treaty of Taipei
Subsequently, the Treaty of TaipeiTreaty of Taipei
The Sino-Japanese Peace Treaty , commonly known as the Treaty of Taipei , was a peace treaty between Japan and the Republic of China signed in Taipei, Taiwan on April 28, 1952...
was concluded between the ROC and Japan on 18 April 1952(effective 5 August), 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. Article 10 of the treaty 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 descendants 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)."However, the ROC Minister of Foreign Affairs George Kung-ch'ao Yeh told the Legislative Yuan after signing the treaty that: "The delicate international situation makes it that they [Taiwan and Penghu] do not belong to us. Under present circumstances, Japan has no right to transfer [Taiwan] to us; nor can we accept such a transfer from Japan even if she so wishes." In July 1971 the U.S. State Department
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
's position was, and remains: "As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution."
Arguments for the Republic of China and/or People's Republic of China sovereignty claims
Today, the ROC is the de facto government of Taiwan; whereas the PRC is the de facto government over Mainland China. However, each government claims to be the legitimate government of all China de jure. The arguments below are frequently used by proponents and/or opponents of these claims.Arguments common to both the PRC and ROC
The ROC and PRC both officially support the One China policy and thus share common arguments. In the arguments below, "Chinese" is an ambiguous term that could mean the PRC and/or ROC as legal government(s) of China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
.
- The waging of aggressive war by Japan against China in 1937 and beyond violates the peace that was brokered in the Treaty of ShimonosekiTreaty of ShimonosekiThe Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
. In 1941, with the declaration of war against Japan, the Chinese government declared this treaty void ab initio (never happened in the first place). Therefore, some argue that, with no valid transfer of sovereignty taking place, the sovereignty of Taiwan naturally belongs to China. - The Cairo DeclarationCairo DeclarationThe Cairo Declaration was the outcome of the Cairo Conference in Cairo, Egypt, on November 27, 1943. President Franklin Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-shek of the Republic of China were present...
of 1 December 1943 was accepted by Japan in its surrender. This document states that Taiwan was to be restored to the Republic of China at the end of World War II. Likewise, the Potsdam DeclarationPotsdam DeclarationThe Potsdam Declaration or the Proclamation Defining Terms for Japanese Surrender is a statement calling for the Surrender of Japan in World War II. On July 26, 1945, United States President Harry S...
of 26 July 1945, also accepted by Japan, implies that it will no longer have sovereignty over Taiwan by stating that "Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands". - The proclamation of Taiwan Retrocession DayRetrocession DayRetrocession Day is an annual observance in the Republic of China to commemorate the end of 50 years of Japanese colonial rule of Taiwan on October 25, 1945.-Background:...
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 prescriptionPrescription (law)In law, prescription is the method of sovereignty transfer of a territory through international law analogous to the common law doctrine of adverse possession for private real-estate...
. The lack of protest by any non-Chinese government persists to this day, further strengthening this argument. - The exclusion of Chinese governments (both ROC and PRC) in the negotiation process of the San Francisco Peace TreatyTreaty of San FranciscoThe Treaty of Peace with Japan , between Japan and part of the Allied Powers, was officially signed by 48 nations on September 8, 1951, at the War Memorial Opera House in San Francisco, California...
(SFPT) nullified any legal binding power of the SFPT on China, including any act of renouncing or dispossing of sovereignty. In addition, the fact that neither ROC nor PRC government ever ratified SFPT terms, prescribes that the SFPT is irrelevant to any discussion of Chinese sovereignty. - Even if the SFPT were determinative, it should be interpreted in a manner consistent with the Potsdam and Cairo Declarations, therefore sovereignty would still have been transferred to China.
- SFPT's validity has come into question as some of the countries participating in the San Francisco conference, such as the USSR, Poland, Czechoslovakia and North and South Korea refused to sign the treaty.
- Assuming SFPT is valid in determining the sovereignty over Taiwan, Japan, in the article 2 of the SFPT, renounced all rights, without assigning a recipient, regarding Taiwan. Japan in the same article also renounced, without assigning a recipient, areas which are now internationally recognised as territories of Russia as well as other countries. Given that the sovereignty of these countries over renounced areas are undisputed, the Chinese sovereignty over Taiwan must also be undisputed.
Arguments in support of ROC sovereignty claims
- The ROC fulfills all requirements for a state according to the Convention of Montevideo, which means it has a territory, a people, and a government.
- The ROC continues to exist since its establishment in 1911, only on a reduced territory after 1949.
- The creation and continuity of a state is only a factual issue, not a legal question. Declarations and recognition by other states can't have any impact on their existence. According to the declaratory theory of recognition, the recognition of third states are not a requirement for being a state. Most of the cited declarations by American or British politicians are not legal statements but solely political intents.
- The PRC has never exercised control over Taiwan since 1949.
- The Treaty of TaipeiTreaty of TaipeiThe Sino-Japanese Peace Treaty , commonly known as the Treaty of Taipei , was a peace treaty between Japan and the Republic of China signed in Taipei, Taiwan on April 28, 1952...
formalized the peace between Japan and the ROC. In it, Japan reaffirmed Cairo Declaration and Potsdam DeclarationPotsdam DeclarationThe Potsdam Declaration or the Proclamation Defining Terms for Japanese Surrender is a statement calling for the Surrender of Japan in World War II. On July 26, 1945, United States President Harry S...
and voided all treaties conducted between China and Japan (including the Treaty of Shimonoseki). - Applying the principle of uti possidetisUti possidetisUti possidetis is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by treaty; if such a treaty doesn't include conditions regarding the possession of property and territory taken during the war,...
with regard to the Treaty of Taipei would grant Taiwan's sovereignty to the ROC, as it is undisputed that at the coming into force of the treaty, the ROC controlled Taiwan. - 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. Also, as Treaty of ShimonosekiTreaty of ShimonosekiThe Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
is void ab initio, China has never legally dispossessed of the sovereignty of the territory. There is, accordingly, no need to have a National Assembly resolution to include the territory. - The ROC – USA Mutual Defense Treaty of 1955Sino-American Mutual Defense TreatySino-American Mutual Defense Treaty was a treaty between the United States of America and the Republic of China; it was signed on December 2, 1954 at the Zhongshan Hall in Taipei and came into force on March 3, 1955...
states that "the terms "territorial" and "territories" shall mean in respect of the Republic of China, Taiwan and the Pescadores" and thus can be read as implicitly recognizing the ROC sovereignty over Taiwan. However, the treaty was terminated in 1980.
Arguments in support of PRC sovereignty claims
- The PRC does not recognize the validity of any of the unequal treaties the Qing signed in the "century of humiliation," as it considers them all unjust and illegal, as is the position during Transfer of sovereignty of Hong Kong from the United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
to the PRC. As such, the cession of Taiwan in the 1895 Treaty of ShimonosekiTreaty of ShimonosekiThe Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
actually never took place in a de jure fashion. The PRC, as the successor to the Qing and ROC in that order, therefore inherited the sovereignty of Taiwan. - The return of the sovereignty of Taiwan to the ROC was confirmed on October 25, 1945, on the basis of the Cairo DeclarationCairo DeclarationThe Cairo Declaration was the outcome of the Cairo Conference in Cairo, Egypt, on November 27, 1943. President Franklin Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-shek of the Republic of China were present...
, Potsdam ProclamationPotsdam DeclarationThe Potsdam Declaration or the Proclamation Defining Terms for Japanese Surrender is a statement calling for the Surrender of Japan in World War II. On July 26, 1945, United States President Harry S...
, Japanese Instrument of SurrenderJapanese Instrument of SurrenderThe Japanese Instrument of Surrender was the written agreement that enabled the Surrender of Japan, marking the end of World War II. It was signed by representatives from the Empire of Japan, the United States of America, the Republic of China, the United Kingdom, the Union of Soviet Socialist...
, and the invalidity of the Treaty of ShimonosekiTreaty of ShimonosekiThe Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
. According to United Nations General Assembly Resolution 2758, the PRC became the successor government to the ROC in representing China, and as such the PRC unquestionably holds the sovereignty of Taiwan. - In the Joint Communique of the Government of Japan and the Government of the People's Republic of ChinaJoint Communiqué of the Government of Japan and the Government of the People's Republic of ChinaThe Joint Communiqué of the Government of Japan and the Government of the People's Republic of China was signed in Beijing on September 29, 1972. This established diplomatic relations between Japan and the People's Republic of China and resulted in the severing of official relations between Japan...
to the end of Treaty of Taipei, the document signifying the commencement of the PRC and Japan's formal relations, Japan in article 3 stated that it fully understands and respects the position of the Government of the People's Republic of China that Taiwan is an inalienable part of the territory of the People's Republic of China. Japan also firmly maintains its stand under Article 8 of the Potsdam DeclarationPotsdam DeclarationThe Potsdam Declaration or the Proclamation Defining Terms for Japanese Surrender is a statement calling for the Surrender of Japan in World War II. On July 26, 1945, United States President Harry S...
which says "the terms of the Cairo DeclarationCairo DeclarationThe Cairo Declaration was the outcome of the Cairo Conference in Cairo, Egypt, on November 27, 1943. President Franklin Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-shek of the Republic of China were present...
shall be carried out". The Cairo Declaration says "All territories Japan has stolen from China, including Manchuria, Taiwan, and the Pescadores, shall be restored to the Republic of China". The PRC argues that it is a successor state of the ROC and is therefore entitled to all of the ROC's holdings and benefits.
Arguments for Taiwanese self-sovereignty claims
Arguments for Taiwan already being an independent, sovereign nation- The peace that was brokered in the Treaty of ShimonosekiTreaty of ShimonosekiThe Treaty of Shimonoseki , known as the Treaty of Maguan in China, was signed at the Shunpanrō hall on April 17, 1895, between the Empire of Japan and Qing Empire of China, ending the First Sino-Japanese War. The peace conference took place from March 20 to April 17, 1895...
was breached by the Boxer RebellionBoxer RebellionThe Boxer Rebellion, also called the Boxer Uprising by some historians or the Righteous Harmony Society Movement in northern China, was a proto-nationalist movement by the "Righteous Harmony Society" , or "Righteous Fists of Harmony" or "Society of Righteous and Harmonious Fists" , in China between...
, which led to the conclusion of the Boxer Protocol of 1901 (Peace Agreement between the Great PowersHistorical powersHistorical powers include great powers, nations, or empires in history.The term "Great power" represent the most important world powers. In a modern context, recognised great powers came about first in Europe during the post-Napoleonic era. The formalization of the division between small powers and...
and China), and China, not by the Second Sino-Japanese WarSecond Sino-Japanese WarThe Second Sino-Japanese War was a military conflict fought primarily between the Republic of China and the Empire of Japan. From 1937 to 1941, China fought Japan with some economic help from Germany , the Soviet Union and the United States...
. 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 without a new treaty specifically reversing that clause). Hence, the unequal treaty doctrine cannot be applied to this treaty. By way of comparison, as 200,000,000 Kuping taelTaelTael can refer to any one of several weight measures of the Far East. Most commonly, it refers to the Chinese tael, a part of the Chinese system of weights and currency....
s were not returned to China from JapanJapanJapan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, and KoreaKoreaKorea ) is an East Asian geographic region that is currently divided into two separate sovereign states — North Korea and South Korea. Located on the Korean Peninsula, Korea is bordered by the People's Republic of China to the northwest, Russia to the northeast, and is separated from Japan to the...
had not become a Chinese-dependent country again, the cession in the treaty was executed and cannot 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 as "all the territories Japan has stolen from the Chinese" in Cairo DeclarationCairo DeclarationThe Cairo Declaration was the outcome of the Cairo Conference in Cairo, Egypt, on November 27, 1943. President Franklin Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-shek of the Republic of China were present...
. - It should also be noted that the Qing court exercised effective sovereignty over primarily the west coast of Taiwan only, and even then did not regard the area as an integral part of national Chinese territory.
- The "Cairo DeclarationCairo DeclarationThe Cairo Declaration was the outcome of the Cairo Conference in Cairo, Egypt, on November 27, 1943. President Franklin Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-shek of the Republic of China were present...
" was merely an unsigned press communique which does not carry a legal status, while the Potsdam ProclamationPotsdam DeclarationThe Potsdam Declaration or the Proclamation Defining Terms for Japanese Surrender is a statement calling for the Surrender of Japan in World War II. On July 26, 1945, United States President Harry S...
and Instrument of SurrenderJapanese Instrument of SurrenderThe Japanese Instrument of Surrender was the written agreement that enabled the Surrender of Japan, marking the end of World War II. It was signed by representatives from the Empire of Japan, the United States of America, the Republic of China, the United Kingdom, the Union of Soviet Socialist...
are simply modus vivendiModus vivendiModus vivendi is a Latin phrase signifying an agreement between those whose opinions differ, such that they agree to disagree.Modus means mode, way. Vivendi means of living. Together, way of living, implies an accommodation between disputing parties to allow life to go on. It usually describes...
and armisticeArmisticeAn armistice is a situation in a war where the warring parties agree to stop fighting. It is not necessarily the end of a war, but may be just a cessation of hostilities while an attempt is made to negotiate a lasting peace...
that 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. - 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 initioAb initioab initio is a Latin term used in English, meaning from the beginning.ab initio may also refer to:* Ab Initio , a leading ETL Tool Software Company in the field of Data Warehousing.* ab initio quantum chemistry methods...
. After the San Francisco Peace Treaty came into effect, the sovereignty of Taiwan naturally belonged to the Taiwanese people. - While Taiwan independence supporters once used arguments not in favor of Chinese sovereignty to dispute to legitimacy of the KuomintangKuomintangThe Kuomintang of China , sometimes romanized as Guomindang via the Pinyin transcription system or GMD for short, and translated as the Chinese Nationalist Party is a founding and ruling political party of the Republic of China . Its guiding ideology is the Three Principles of the People, espoused...
-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 to stress the popular sovereigntyPopular sovereigntyPopular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
theory in order to accept the legitimacy of the Republic of China (whose government the Democratic Progressive PartyDemocratic Progressive PartyThe Democratic Progressive Party is a political party in Taiwan, and the dominant party in the Pan-Green Coalition. Founded in 1986, DPP is the first meaningful opposition party in Taiwan. It has traditionally been associated with strong advocacy of human rights and a distinct Taiwanese identity,...
used to control) in Taiwan. Former President Chen Shui-bianChen Shui-bianChen Shui-bian is a former Taiwanese politician who was the 10th and 11th-term President of the Republic of China from 2000 to 2008. Chen, whose Democratic Progressive Party has traditionally been supportive of Taiwan independence, ended more than fifty years of Kuomintang rule in Taiwan...
, by his interpretation of the "Republic of China", has repeatedly confirmed that the "Republic of China is Taiwan." - Sovereignty transfer to the ROC by prescriptionPrescription (law)In law, prescription is the method of sovereignty transfer of a territory through international law analogous to the common law doctrine of adverse possession for private real-estate...
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, 2) Prescription as a rule for acquiring sovereignty itself is not universally accepted. The International Court of JusticeInternational Court of JusticeThe International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
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., 3) Also by way of comparison, even after 38 years of continuous control, the international community did not recognize sovereignty rights to the Gaza StripGaza Stripthumb|Gaza city skylineThe Gaza Strip lies on the Eastern coast of the Mediterranean Sea. The Strip borders Egypt on the southwest and Israel on the south, east and north. It is about long, and between 6 and 12 kilometres wide, with a total area of...
by IsraelIsraelThe State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, 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 incident228 IncidentThe 228 Incident, also known as the 228 Massacre, was an anti-government uprising in Taiwan that began on February 27, 1947, and was violently suppressed by the Kuomintang government. Estimates of the number of deaths vary from 10,000 to 30,000 or more...
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, 5) Taiwanese residents were unable to make a protest after the 228 incident228 IncidentThe 228 Incident, also known as the 228 Massacre, was an anti-government uprising in Taiwan that began on February 27, 1947, and was violently suppressed by the Kuomintang government. Estimates of the number of deaths vary from 10,000 to 30,000 or more...
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 occupationMilitary occupationMilitary occupation occurs when the control and authority over a territory passes to a hostile army. The territory then becomes occupied territory.-Military occupation and the laws of war:...
at the time; however it did not renounce its sovereignty over Taiwan until April 28, 1952.
Arguments by various groups that claim Taiwan should declare itself to be an independent sovereign nation
- As one of the "territories which detached from enemy states as a result of the Second World War" defined in the articles 76b and 77b of the United Nations CharterUnited Nations CharterThe Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...
, which China signed in 1945 and also defined in the protocol of Yalta ConferenceYalta ConferenceThe Yalta Conference, sometimes called the Crimea Conference and codenamed the Argonaut Conference, held February 4–11, 1945, was the wartime meeting of the heads of government of the United States, the United Kingdom, and the Soviet Union, represented by President Franklin D...
, 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, has a treaty obligation to comply with the UN Charter and to help the people living in Taiwan enjoy the right of self-determinationSelf-determinationSelf-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
. - The San Francisco Peace Treaty is definitive, where Japan ceded Taiwan (like SakhalinSakhalinSakhalin or Saghalien, is a large island in the North Pacific, lying between 45°50' and 54°24' N.It is part of Russia, and is Russia's largest island, and is administered as part of Sakhalin Oblast...
and Kuril IslandsKuril IslandsThe Kuril Islands , in Russia's Sakhalin Oblast region, form a volcanic archipelago that stretches approximately northeast from Hokkaidō, Japan, to Kamchatka, Russia, separating the Sea of Okhotsk from the North Pacific Ocean. There are 56 islands and many more minor rocks. It consists of Greater...
etc.) without specifying a clear recipient. China was prohibited from acquiring Taiwan sovereignty as a benefit when the treaty was finalized. Moreover, the Treaty of TaipeiTreaty of TaipeiThe Sino-Japanese Peace Treaty , commonly known as the Treaty of Taipei , was a peace treaty between Japan and the Republic of China signed in Taipei, Taiwan on April 28, 1952...
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 TaipeiTreaty of TaipeiThe Sino-Japanese Peace Treaty , commonly known as the Treaty of Taipei , was a peace treaty between Japan and the Republic of China signed in Taipei, Taiwan on April 28, 1952...
cannot be interpreted to have ceded the sovereignty of Taiwan to the ROC or the PRC, but only as a recognition of the territories which ROC had and under its control, as Japan cannot cede what it no longer possessed. - 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 postliminiumPostliminiumThe principle of postliminium, as a part of public international law, is a specific version of the maxim ex injuria jus non oritur, providing for the invalidity of all illegitimate acts that an occupant may have performed on a given territory after its recapture by the legitimate sovereign...
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 TaipeiTreaty of TaipeiThe Sino-Japanese Peace Treaty , commonly known as the Treaty of Taipei , was a peace treaty between Japan and the Republic of China signed in Taipei, Taiwan on April 28, 1952...
was abrogated by Japan upon the PRC's request in 1972. - Cession of Taiwan without a recipient was neither unusual nor unique, since CubaCubaThe Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
, as a precedent, was ceded by Spain without recipient in Treaty of Paris of 1898Treaty of Paris (1898)The Treaty of Paris of 1898 was signed on December 10, 1898, at the end of the Spanish-American War, and came into effect on April 11, 1899, when the ratifications were exchanged....
as the result of Spanish-American WarSpanish-American WarThe Spanish–American War was a conflict in 1898 between Spain and the United States, effectively the result of American intervention in the ongoing Cuban War of Independence...
. Cuba reached independence in May 1902. At the end of WWII, LibyaLibyaLibya is an African country in the Maghreb region of North Africa bordered by the Mediterranean Sea to the north, Egypt to the east, Sudan to the southeast, Chad and Niger to the south, and Algeria and Tunisia to the west....
and SomalilandSomalilandSomaliland is an unrecognised self-declared sovereign state that is internationally recognised as an autonomous region of Somalia. The government of Somaliland regards itself as the successor state to the British Somaliland protectorate, which was independent for a few days in 1960 as the State of...
were also relinquished without recipient by Italy in the Treaty of peace with Italy of 1947Treaty of peace with Italy (1947)The Treaty of Peace with Italy was a treaty signed in Paris on February 10, 1947, between Italy and the victorious powers of World War II, formally ending the hostilities...
and both reached independence later. - 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 TaipeiTreaty of TaipeiThe Sino-Japanese Peace Treaty , commonly known as the Treaty of Taipei , was a peace treaty between Japan and the Republic of China signed in Taipei, Taiwan on April 28, 1952...
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 descendants 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. - Furthermore it is recognized that the ROC government currently administering Taiwan is not the same ROC that 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 coalitionPan-Green CoalitionThe Pan-Green Coalition or Pan-Green Camp, is an informal political alliance of the Republic of China, commonly known as "Taiwan", consisting of the Democratic Progressive Party , Taiwan Solidarity Union , and the minor Taiwan Independence Party...
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 coalitionPan-Blue CoalitionThe Pan-Blue Coalition 泛藍聯盟 or Pan-Blue Force is a political alliance in the Republic of China , consisting of the Kuomintang , the People First Party , and the New Party . The name comes from the party colours of the Kuomintang...
suggests that any fundamental constitutional changes would require that the amendment procedure of the ROC constitution be followed.) - Nevertheless the popular sovereignty theory does not contradict any arguments in favor of self-determinationSelf-determinationSelf-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
, nor does it affirm arguments in favor of Chinese sovereignty. This means that at present the only obstacle against 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. - The San Francisco Peace Treaty's omission of China as a participant was not an accident of history, but reflected the status that the ROC had failed to maintain its original position as the de jure and de facto government of the whole China. By fleeing of the ROC government to Taiwan island in December 1949, and the ROC is then arguably to become a government in exileGovernment in exileA government in exile is a political group that claims to be a country's legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country. Governments in exile usually operate under the assumption that they will one day return to their...
status. Under international law, there are no actions which a government in exileGovernment in exileA government in exile is a political group that claims to be a country's legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country. Governments in exile usually operate under the assumption that they will one day return to their...
can take in its current location of residence in order to be recognized as the local legitimate government. Hence, Taiwan's current international situation has arisen from the fact that the ROC is not completely internationally recognized as a legitimate state. (Note: the ROC government has limited recognition as the sole legitimate government of China (including Taiwan), but not as a government of Taiwan island.)
Arguments for United States sovereignty claims
A small number of people have argued that the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
holds in trust the sovereignty over Taiwan based on the San Francisco Peace Treaty's cession of Taiwan without a recipient. Article 23 of the San Francisco Peace Treaty designated the US as "the principal occupying power" with respect to the territories covered by the geographical scope of the treaty, including "Formosa and the Pescadores."
The argument also states that the ROC troops were acting under the directions of the United States when taking over the administration of Taiwan after the completion of the Oct. 25, 1945, Japanese surrender ceremonies. The principal-agent relationship between the USA and the ROC was argued to never have been formally terminated.
On October 24, 2006, Dr. Roger C. S. Lin led a group of Taiwanese residents, including members of the Taiwan Nation Party, to file a Complaint for Declaratory Relief in the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
. According to their lawyer, Mr. Charles Camp, "[t]he Complaint asks the Court to declare whether the Taiwanese plaintiffs, including members of the Taiwan Nation Party, have certain rights under the United States Constitution and other US laws". Their central argument is that, following Japanese renunciation of all rights and claims to Taiwan, Taiwan came under U.S. jurisdiction based on it being the principal occupying power as designated in the Treaty of Peace with Japan and remains so to this day. Moreover, the plaintiffs claimed that the United States has never recognized the incorporation of Taiwan into Chinese national territory. The defendant in this case was the United States government.
The District Court agreed with United States government on March 18, 2008 and ruled that the case presents a political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
; as such, the court concluded that it had no jurisdiction to hear the matter and dismissed the complaint. This decision was appealed by plaintiffs. The appeals court
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
unanimously upheld the district court ruling and dismissed the appeal.
See also
- Anti-Secession Law of the People's Republic of ChinaAnti-Secession Law of the People's Republic of ChinaThe Anti-Secession Law is a law of the People's Republic of China. It was passed by the third conference of the 10th National People's Congress of the People's Republic of China . It was ratified on March 14, 2005, and went into effect immediately. Hu Jintao, President of the People's Republic of...
- History of Republic of China
- Free Area of the Republic of ChinaFree Area of the Republic of ChinaThe Free area of the Republic of China is a legal and political description referring to the territories under the control of the government of Republic of China , consisting of the island groups of Taiwan, Penghu, Kinmen, Matsu and some minor islands...
- Political status of TaiwanPolitical status of TaiwanThe controversy regarding the political status of Taiwan hinges on whether Taiwan, Penghu, Kinmen, and Matsu should remain effectively independent as territory of the Republic of China , become unified with the territories now governed by the People's Republic of China , or formally declare...
- Taiwan ProvinceTaiwan ProvinceTaiwan Province is one of the two administrative divisions referred to as provinces and is controlled by the Republic of China . The province covers approximately 73% of the territory controlled by the Republic of China...
- Taiwan Province, People's Republic of China
- Three CommuniquésThree CommuniquesThe Three Communiqué or The Three Joint Communiqués are a collection of three joint statements made by the governments of the United States and the People's Republic of China. The communiqué played a crucial role in the normalization of relations between the U.S. and the P.R.C...
Further reading
- Bush, R. & O'Hanlon, M. (2007). A War Like No Other: The Truth About China's Challenge to America. Wiley. ISBN 0471986771
- Bush, R. (2006). Untying the Knot: Making Peace in the Taiwan Strait. Brookings Institution Press. ISBN 0815712901
- Carpenter, T. (2006). America's Coming War with China: A Collision Course over Taiwan. Palgrave Macmillan. ISBN 1403968411
- Cole, B. (2006). Taiwan's Security: History and Prospects. Routledge. ISBN 0415365813
- Copper, J. (2006). Playing with Fire: The Looming War with China over Taiwan. Praeger Security International General Interest. ISBN 0275988880
- Federation of American Scientists et al. (2006). Chinese Nuclear Forces and U.S. Nuclear War Planning
- Gill, B. (2007). Rising Star: China's New Security Diplomacy. Brookings Institution Press. ISBN 0815731469
- Shirk, S. (2007). China: Fragile Superpower: How China's Internal Politics Could Derail Its Peaceful Rise. Oxford University Press. ISBN 0195306090
- Tsang, S. (2006). If China Attacks Taiwan: Military Strategy, Politics and Economics. Routledge. ISBN 0415407850
- Tucker, N.B. (2005). Dangerous Strait: the U.S.-Taiwan-China Crisis. Columbia University Press. ISBN 0231135645
External links
- Foreign Ministry of the People's Republic of China
- 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)
- Taiwan Documents Project A complete collection of Taiwan-related documents, based in Los Angeles, USA (favors Taiwan Independence)
- Taiwan and the World Trade Organization (by Steve Charnovitz)
- Who Owns Taiwan: A Dissection of International Title
- America and Taiwan, 1943–2004