Thread: Truth behind Taiwan's legal status

(Hi people, below is post that I copied from Michael Le Houllier's thread in a nother forum. I would like to share with everyone)


Taiwan is NOT a part of China

A. History

The notion that Taiwan is a part of China is taken as a matter of faith among China’s government and most of its citizens. It is also similarly taken as a matter of faith among the Chinese Nationalist Party (KMT), which formerly ruled the islad and still retains a strong presence in local Taiwanese politics. However, rarely is an actual examination taken of the legitimacy and legal veracity of these claims.

The indigenous population of the island is proto-Austronesian peoples who are believed to be the progenitors of the Malayo-Polynesian peoples who have spread through Southeast Asia and as far west as Madagascar and as far east as Hawaii, Easter Island, and perhaps even mainland South America. They had lived in Taiwan in relative isolation, with only limited and infrequent Chinese contacts, as late as the 16th century.

As the 17th century dawned, Taiwan was still out of the realm of China. China had never established governmental authority east of the Pescadores Island chain in the Taiwan Strait. Even that authority was short-lived. In 1624, the Dutch established a trade outpost in the Pescadores. This elicited the opposition of the Ming Chinese government, who ousted the Dutch. The Ming, however, offered no objection to the Dutch using southern Taiwan as an outpost because they conceded that it was outside their jurisdiction.

A half-Japanese pirate, and Ming loyalist, by the name of Koxinga (Jheng Chenggong) led a naval raid on the Dutch settlement at Anping (present-day Tainan) and ousted the Dutch in 1660. However, the Ming Dynasty had fallen nearly two decades earlier and he had no authority from the Ming remnants fighting a losing battle in southwestern China at the time. Thus, it cannot be said that Chinese sovereignty over Taiwan was assumed at that time. Shortly thereafter, the Manchus from a region northeast of China took complete control of the country. In 1683, they added Taiwan to their list of conquests and made it a part of their empire. This is the first time in history that Taiwan and China were a part of the same political entity, and the reality is that both were conquered and occupied by an outside power, the Manchus.

Now, we fast forward to the 1880s. The Manchus still controlled both China and Taiwan and attempted to make Taiwan more integrated with their empire. The fact is that most of Taiwan still lay outside of their control as late as the 1870s as the east coast and the mountain areas were outside their jurisdiction. Taiwan was made a province of the Qing Dynasty in 1886 and they made a short-lived effort to modernize the island. However, the corrupt empress dowager, Cixi, put a stop to it. Regardless, it did not matter as the fate of Taiwan would be decided far from its shores. China managed to get itself into a war with Japan, a war that Japan was itching for, but a war that China provoked and was completely ill-prepared for. The cause was intervention in Korea. The resulting Treaty of Shimonoseki transferred sovereignty of Taiwan to Japan in perpetuity, meaning forever.

Taiwan became a part of the Japanese empire. Japan tried to turn Taiwan into an integral part of the country. Taiwan’s economy and educational system were developed to an extent not seen in other territories occupied by Japan. Sure, there were Japanese atrocities in Taiwan, especially against the aboriginal population who resisted Japanese rule. However, on balance, Japanese rule over Taiwan was relatively benign, even to the extent that a limited degree of self-rule was introduced in the 1930s.

Japan invaded China in 1937, beginning the Asian phase of what became World War II. A variety of documents emerged from this war what will be addressed later in this essay. However, virtually all of China’s claims that Taiwan belongs to it stem from this eight-year conflict. Japan was defeated by the Allied powers (which included China) in 1945. KMT forces from China came to Taiwan to accept Japan’s surrender on behalf of the Allied powers. The San Francisco Peace Treaty was signed in 1951 (taking effect the following year) which formally ended the war in the Pacific.

B. China’s claim

As mentioned in the above section, China’s claims to Taiwan mostly stem from World War II and the agreements and treaties that were signed as a result of the conflict. The notion that Taiwan is a part of China rests on four agreements and a basic theory of international law known as “state succession.”

American President Roosevelt, British Prime Minister Churchill and Republic of China Generalissimo Chiang Kaishek (Jiang Jhongjheng) met in Cairo, Egypt in November, 1943. The Cairo Declaration was a joint declaration that the territories “stolen” by Japan are to be returned to China following the end of the war. Taiwan was one of the territories referenced.

Less than two years later, after the war in Europe was concluded, there was a meeting near Berlin including the United States, Britain, and the Soviet Union. They reaffirmed the content of the Cairo Declaration in that meeting and demanded Japan’s unconditional surrender.

Japanese representatives signed an Instrument of Surrender on September 2, 1945 in which they stated an acceptance to accept the provisions of the Potsdam Proclamation. Japanese and American military commanders were the only signatories.

Finally, a bilateral treaty was signed between the Republic of China government (by then in exile in Taiwan) and Japan in 1952. In it, Japan signified that it had “returned” Taiwan to the Republic of China. This document is used by the KMT to bolster its claim that Taiwan is a part of China.

This document is NOT used by the PRC, however. In fact, they do not even recognize its legitimacy. They use another rationale to support their claim. They claim that Taiwan was “returned” to China on either September 2, 1945 (with the signing of the Instrument of Surrender) or on October 25, 1945 when KMT troops accepted Japan’s surrender in Taiwan. Theoretically, as Taiwan was a part of China when the Communist Party won the civil war in 1949, and under the successor state theory, all agreements signed by the previous government (including boundaries) are binding on the successor government.

C. Examination of International Law on State-to-State Transfer of Territory

However, when these claims are illuminated under the light of international law, their argument is shown to be built on shifting sands.

According to international law, there is only one mechanism by which territory can be transferred from one state to another: a legally ratified and binding peace treaty. This is confirmed by state practice, the leading source of international law in the pre-World War II era.

The Treaty of Shimonoseki, the very treaty in which Taiwan was transferred to Japanese control in the first place, includes a specific mention of that transfer. Article two of that treaty provided for the transfer of Taiwan to Japan. The transfer is specifically referenced as is the beneficiary power.

The Versailles Treaty ended World War I and was signed in Paris in 1919. In this treaty, territory transfers and new boundaries were specifically spelled out. All territorial transfers were specifically referenced with both the surrendering power and beneficiary being specifically referenced at all points in the document.

Japan completely defeated Russia in the Russo-Japanese War of 1904-1905. Japan already occupied territory that it was granted by the Treaty of Portsmouth (N.H.) in 1905. However, all of the territories to be transferred as well as the beneficiary (Japan) are specifically mentioned in the document, although common sense would inform someone that it was not necessary.

The 1848 Treaty of Guadelupe-Hidalgo was signed by the United States and Mexico when the former had already occupied a significant amount of territory of the later in a war that was begun when Mexican troops crossed into U.S. territory. Regardless, Mexican territory that was transferred to the United States was specifically spelled out in the treaty.

The 1898 Treaty of Paris concluded the Spanish-American War. At the conclusion of the war, the U.S. physically occupied Puerto Rico, the Philippines, and Cuba, all Spanish colonies at the onset of the war. This treaty is very useful in pointing out the power of the mechanism to transfer territory from one state to another. On the one hand, the transfer of the Philippines and Puerto Rico to American sovereignty is specifically mentioned in the treaty. However, there is no such mention of Cuba being designated as being U.S. territory. Consequently, shortly thereafter, Cuba was granted independence rather than being incorporated as a U.S. territory as were Puerto Rico and the Philippines.

There are countless more examples where these came from, but the point has been sufficiently made that territory can only be transferred from one state to another through the peace treaty.

D. Implications for China’s Claim on Taiwan

The provisions of Cairo and Potsdam are properly regarded as unfulfilled wartime commitments. Three allies announced their plans to give Taiwan to China following the war, but those promises were never formalized in a peace treaty. Remember, there were dozens of countries in the anti-Japan alliance. Three, no matter their size and importance, have no legal legitimacy in making decisions of this nature for the entire alliance.

The Instrument of Surrender is a little closer because it is the first document that is accepted by Japan, the legal sovereign of Taiwan since 1895. However, it was only signed by military commanders of two countries, and had no provisions for ratification because it was technically no more than a cease-fire agreement.

There was a treaty that was signed to end this war. It is a treaty that is all but ignored by China and the Chinese KMT here in Taiwan. In fact, the KMT has prevented it from even being presented in school textbooks here in Taiwan. That is the San Francisco Peace Treaty. This treaty was signed by Japan and about two dozen Allied Powers in 1951. It then went through the ratification process in each and all of the signatory powers before it came into effect in 1952. This treaty has a provision concerning Taiwan. Japan surrendered their sovereign claim over Taiwan as a result of this agreement. However, there is absolutely no provision whatsoever for Taiwan being transferred to China, a clause deemed necessary by public international law to effectuate the transfer of sovereignty. So, simply stated, there is absolutely no legitimacy to the claim by China or the Chinese KMT in Taiwan that Taiwan was handed over to China following World War II.

There is still one more treaty to discuss, the Treaty of Taipei between the ROC and Japan. That treaty was signed AFTER Japan had already given up sovereignty over the island. There is absolutely no legal argument that can be made for Japan designating sovereignty over a territory it had already given up in a bilateral treaty with a government that was not even a party to the treaty that ended the war. The territory had already been disposed of. Japan has no further legal right to have any input as to the future disposition of the territory in question.

E. Where Does that Leave Taiwan?

That is the big question. Unlike Korea, the treaty did not declare Taiwan an independent state. The reality is that Taiwan was neither ceded to a state nor was it declared independent. There is only one solution to this state of affairs. In accordance with the United Nations Charter, Taiwan should have been permitted to exercise its rights in self-determination. The only way to accurately gauge the will of the Taiwanese people would have been through a plebiscite shortly after the ratification of the San Francisco Peace Treaty. The KMT’s denial of that right to the Taiwanese people rendered it an outlaw regime. In fact, the KMT engaged in four decades of repression and murder to prevent Taiwanese people from telling their story to the world.

Today, the rest of the world needs to wake up to the reality of the situation. Many states declare a “one-China” policy without any regard for the legality of their political statements. Essentially, Taiwan is being sacrificed on the alter of “one-China.” This is nothing in international law that supports this position nor is there anything in morality. China is a despotic regime while Taiwan is a peaceful state that has become one of the greatest economic and democratic success stories in Asia. It is time for the world to step up and recognize the rights of Taiwan’s people as they did for the people of East Timor in 1999. Taiwanese have the legal right to a plebiscite on the future status of the island without undue coercion from China.