The Legal Status of Taiwan

By Tze-chung Li, Professor and Dean Emeritus, Dominican University

China ceded Taiwan [Formosa] and Pescadores to Japan in 1895 by the Treaty of Shimonoseki.[1] In World War II, Japan was defeated and surrendered on August 15, 1945. After Japan signed the Instrument of Surrender on September 2, 1945, [2] General Douglas MacArthur issued on the same day General Order Number 1 which dictated "[t]he senior Japanese commanders and all ground, sea, air and auxiliary forces within Formosa [Taiwan] shall surrender to Generalissimo Chiang Kai-shek [of the Republic of China]." [3]

But the Republic of China (ROC) was unprepared to immediately take over Taiwan, after Japan's surrender. For full six weeks after the surrender, Taiwan was in limbo. Not until October 5, an advance team from the ROC arrived for preparation of formal transfer of Taiwan to China on October 25. [4] Some 12,000 men of 62nd and 70th divisions of the Chinese Nationalist army with the U. S. help arrived in Taiwan on October 15.[5]

Before signing the San Francisco Peace Treaty with Japan on September 8, 1951, there had been no dispute on the status of Taiwan. Taiwan is part of China and was rightfully returned to China. Citing the Cairo Declaration and the Open Door policy, President Truman stated on January 5, 1950 that Taiwan was part of China and that the United States sought no special privileges on Chinese territory. [6]

Three major events occurred between 1949 to 1951. First, after Chinese rule in Taiwan, widespread corruption, misrule, and administrative abuse agitated local people. Maurice Meisner wrote, the Kuomintang had succeeded in alienating virtually all segments of the native population by inaugurating a military regime that treated Formosa as a conquered territory rather than a liberated area and the mass pillaging, official corruption and political repression that marked the early period of of Kuomintang rule in Formosa set in motion of the tragic events in 1947. The accident of February 27, 1947 in which an alleged illegal cigarette vendor was killed by Monopoly Bureau agents exploded into uprising next day. The uprising was nevertheless quashed by force. The cruel and unfair treatment of Taiwan natives provoked the idea of United Nations trusteeship or American control of Taiwan before Taiwan was legally transferred to China.[7] One of the supporters of this idea was George H. Kerr, an American diplomat, who witnessed the early stage of Chinese rule in Taiwan.[8]

In August, 1947, General Albert Wedemeyer, then Special Envoy to China, in his report to the Secretary of State, said "Formosans would be receptive toward the United states guardianship and United Nations trusteeship." [9] H. Maclear Bate also reported the result of his miniature poll that the majority of Formosans "thought that first and foremost they would like sovereign independence; as an alternative they would welcome status as a trusteeship territory under the United Nations or American tutelage." [10] Taiwan for independence movement began to develop.

Second, the civil strife between the Nationalists and Communists continued. The Nationalists lost China mainland and retreated to Taiwan. On October 1, 1949, the Communists declared the founding of the People's Republic of China (PRC). In late 1949 and early 1950, the US State Department believed the eventual fall of Taiwan to the Communists and was inclined to write off Taiwan and recognize the Communists, but this policy never materialized due to Congress and general public opposition.[11] Senators Knowland, Smith, Taft, and Vandenberg vigorously argued for supporting the Nationalist Government to keep Taiwan out of the Communist hand. [12]

Third, on June 25, 1950 North Korea invaded South Korea. United Nations Security Council condemned the invasion and called for collective measure to stop North Korea.]13] On June 27, President Truman "ordered the Seventh Fleet to prevent attack on Formosa . . . calling upon the Chinese government on Formosa to cease all air and sea operations against the mainland." He declared a "neuturalized Taiwan", thus saving Taiwan from falling into the Communists.[14]

These events, particularly the last two, had serious impacts on concluding the San Francisco Peace Treaty (SFPT). The SFPT drafts provided that "Japan hereby cedes to China in full sovereignty the island of Taiwan (Formosa) and adjacent minor islands." The final version of the treaty dropped the provision and is silent on the secession of Taiwan to China.[15]

The SFPT was participated by 52 nations, but 49 nations signed it. Both the ROG and the PRC were excluded. Since both Chinese governments did not participate, transfer of Taiwan to China was not mentioned in the SFPT. As such, it has been alleged that Taiwan's legal status is unsettled. John J. Tkacik, Jr., a stronger support for independent Taiwan, considers Taiwan's status uncertain, so as a number of others. [16] Bonnie Glaser in her keynote speech at the Global Summit for China's Peaceful Unification, went further saying that the U.S. considers Taiwan's status uncertain.[17]

The controversy of Taiwan's uncertain status has not subsided, but, instead, gets drumbeat recently. In May 2009, Masaki Saito, head of the Taipei Office of Japan's Interchange Association Japans de facto embassy in Taiwan, said that Taiwan's status is still unresolved.[18] In October 2006, Roger Lin and others filed a legal suit in the District Court in D.C. alleging the Taiwan's status has been unsettled and therefore Taiwan is not belonged to China.[19]

The legal suit arguments are not new, primarily based on those advocated by Lung-chu Chen and Harold D, Lasswell in the 1960s[20] The arguments may be summarized as follows:

(1) The United States that conquered Japan and her overseas territories bears the responsibility for the final disposition of these areas. Considering that the SFPT did not award the sovereignty of Taiwan to China (either the ROC or the PRC), Taiwan is, therefore, still under the jurisdiction of the military arm of the US government, and that Taiwanese people are entitled to hold some form of US overseas passports.



(2) The US Executive Branch has continually stated that neither Taiwan nor the Republic of China is a state in the international community, hence it follows that native Taiwanese persons (currently holding ROC passports) are essentially stateless.

(3) Japan ceded control of the island Formosa to the United States. The U.S. in turn allowed the nationalist Republic of China to set up shop on the island as a 'Cold War' government-in-exile following the 1949 Communist revolution. The United States has never ceded the island to anyone thus creating the current 'Taiwan question.

The law suit was dismissed.[21] Plaintiffs appealed. The Court of Appeals affirmed the lower court judgment on April 7, 2009.[22] Both courts did not deal with substantial issues of Taiwan's uncertain status. They dismissed the case on the ground that the issue is a political one and therefore beyond the jurisdiction of the court to decide. Plaintiffs appealed to the Supreme Count but failed. The Supreme Count refused to hear the case on October 5, 2009.

Taiwan ex-President Chen shui-bian petitioned on September 23, 2009 to the United States Court of Appeals for the Armed Forces seeking a Write of Mandamus. His arguments is along with the same line as Roger Lin v. United States.

Chen in his petition sought: (1) Order the United States Military Government for Taiwanto acknowledge its agent, Chen Shui-bian, (2) acknowledge that Chen Shui-bian's actions for which he has been sentenced to prison were undertaken while acting as United States Military Government de facto Civil Administrator; (3) Order the United States Military Government to instruct the current de facto Civil Administrator for Taiwan, to cease the politically motivated prosecution of Chen Shui-bian and those associated with him, rescind the life sentence and restore his human and civil rights; and (4) Appoint a Special Master if required and any other relief this Court deems necessary to resolve the matter. His petition was denied by the US Court of Appeals for Armed Forces for lack of jurisdiction,

It must be noted that the 1943 Cairo Declaration states that all territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China.[23] The Cairo Declaration was reiterated in the Potsdam Declaration.[24] The Potsdam Declaration was accepted in the Instrument of Surrender on September 2, 1945 which states Japan accepts the provisions set forth in the declaration issued by the heads of the Governments of the United States, China, and Great Britain on 26 July 1945 at Potsdam.[25]

President Truman said that it was traditional practice to respect the territorial integrity of China. Formosa [Taiwan] had been handed back to the Chinese under terms of the Cairo and Potsdam Declarations.[26]

It is true that the return of Taiwan to China is silent in the SFPT. Lung-chu Chen and Harold D. Lasswell stated that according to the SFPT, Formosa was detached from Japan and it was not attached to anyone[27] But, it is a fact that Taiwan was returned to China under the terms of the Potsdam Declaration and the Instrument of Surrender as noted earlier. Secretary of State Dulles points out "Chapter II [of the treaty] deals with that. Japan formally ratifies the territorial provisions of the Potsdam Surrender Terms, provisions which, so far as Japan is concerned, were actually carried into effect 6 years ago [such as return of Taiwan to China in 1945]. The Potsdam Surrender Terms constitute the only definition of peace terms to which, and by which, Japan and the Allied Powers as a whole are bound. The renunciations contained in article 2 of chapter II strictly and scrupulously conform to that surrender term."[28]

He also explained exclusion of China from treaty signatures "The absence of China from this Conference is a matter of deep regret. Hostilities between Japan and China first began in 1931 and open warfare began in 1937. China suffered the longest and the deepest from Japanese aggression. It is greatly to be deplored that the Sino-Japanese war cannot be formally terminated at this occasion. Unhappily, civil war within China and the attitudes of the Allied Governments have created a situation such that there is not general international agreement upon a single Chinese voice with both the right and the power to bind the Chinese nation to terms of peace. . .. [The] choice was for the Allied Powers generally to proceed to conclude peace without any present Chinese co-signature, leaving China and Japan to make their own peace, on terms, however, which would guarantee full protection of the rights and interests of China."[29]

Furthermore. following the SFPT, China (ROC) and Japan signed a peace treaty of which Article 4 provides "all treaties, conventions and agreements concluded before December 9, 1941 between China and Japan have become null and void as a consequence of the war."[30] Taiwan was ceded to Japan by China in 1895 by the Treaty of Shimonosek, noted above. As stated in the peace treaty, the Treaty of Shimonoseki became null and void. Accordingly, Taiwan had been returned to China as a matter of course. Those who argue for the uncertain status of Taiwan are shy from mentioning the peace treaty between China (ROC) and Japan.

Article 23 (a) of the SFPT treaty effective date of the treaty, providing "when instruments of ratification have been deposited by Japan and by a majority, including the United States of America as the principal occupying Power, of the following States. . ." The United States as the principal occupying Power is not equivalent to having sovereignty over Taiwan and it is short of saying that the United States is the occupying power." As stated in the Court of Appeals judgment, "[the treaty] does not declare which government exercises sovereignty over Taiwan. It does generally identify the United States as 'the principal occupying Power', but does not indicate over what."[31] Japan surrendered to the Allied Force which includes China as General Xu Yong-chang representing China put his signature on the Surrender Instrument.

The 1954 Mutual Security Treaty between U.S. and the Republic of China clearly recognizes Taiwan a part of China(ROC). [32] Article 6 of the treaty provides the terms 'territorial' and 'territories' shall mean in respect of the Republic of China, Taiwan and the Pescadores. The treaty unequivocally recognizes that Taiwan and Pescadores are part of China and the United States would not have signed a treaty with a government in exile. Its supplement agreement was negotiated in 1955 on three parts: military base, logistic support, and jurisdiction. This writer was one of three ROC representatives in charge of jurisdiction to negotiate with the U.S. Jurisdiction involves sovereignty. There is no doubt that the U.S. considers Taiwan part of ROC.

According to the Shanghai Communiqué of 1972, [33] reaffirmed in 1979,[34] "[t]he United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position." The 1982 Communiqué further elaborates "that the United States of America recognized the Government of the People's Republic of China as the sole legal Government of China, and it acknowledged the Chinese position that there is but one China and Taiwan is part of China."[35]

The joint communiqué of Japan and the People's Republic of China in 1972 provides regarding Taiwan's sovereignty, the Government of Japan "firmly maintains its stand under Article 8 of the Potsdam Proclamation."[36]

The 1982 U.S. Six Assurance in number 5 provides 'The United States would not alter its position about the sovereignty of Taiwan which was, that the question was one to be decided peacefully by the Chinese themselves, and would not pressure Taiwan to enter into negotiations with China."[37]

Some Chinese news reports consider that the uncertain status is U.S. official position as reported in the World Journal Weekly and World Journal.[38] The Central News Agency citing Dennis Wilder's statement that the position of U.S. government is that the status of the ROC is "an issue undecided." [39] Wilder, National Security Council Senior Director for Asian Affairs, in a press conference made comments on Taiwan's UN membership. He said that "membership in the United Nations requires statehood. Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC- - Republic of China is an issue undecided."[40] Taiwan's status undecided differs from Taiwan's issue of UN membership undecided.

Taiwan's status is unequivocally clear. It belongs no doubt to China. Before 1949, Taiwan was part of China under the Nationalist Government or ROC. In 1949, ROC retreated to Taiwan and has effectively controlled it since then ROC and PRC are legally and technically engaged in the civil strife. China is run by two governments: one on mainland China and the other on Taiwan. But, there are not two Chinas.

Notes

1. The treaty of April 17 1895 provides in Article 2 "China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon. . .(b) The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa. (c) The Pescadores Group, that is to say, all islands lying between the 119th and 120th degrees of longitude east of Greenwich and the 23rd and 24th degrees of north latitude" Taiwan at the Crossroads: An Expose of Taiwan's New Dictatorship, (2003),

2.It provides that "We [acting by command of and in behalf of the Emperor of Japan, the Japanese Government and the Japanese Imperial General Headquarters] hereby undertake for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith, and to issue whatever orders and take whatever actions may be required by the Supreme Commander for the Allied Powers or by any other designated representative of the Allied Powers for the purpose of giving effect to that Declaration"

3. It dictate that "The senior Japanese commanders and all ground, sea, air and auxiliary forces within China (excluding Manchuria), Formosa and French Indo-China north of 16 north latitude shall surrender to Generalissimo Chiang Kai-shek."

4. Formosa Betrayed, by George H. Kerr (1965, 2005, pp.71-72)

5. Ibid., 73.

6. Useful Adversaries: Grand Strategy, Domestic Mobilization, and Sino-American Conflict, 1947-1958 (1996), by Thomas J. Christensen, p. 109.

7. Maurice Meisner, "The Development of Formosan Nationalism" (in ark Mancall, ed., Formosa Today (1964),, p. 147; Joyce C. Huang, also noted "Taiwanese began to feel that the motherland was not treating them all that well." The huge discrepancy between the expectation and the reality, on top of the extreme exploitation of Taiwan towards the end of Japanese occupation, the massive wave of post-war unemployment, and the government's continuous string of mistaken policies, eventually led to Taiwan's economic collapse in 1947, social turmoil, and the shattering of people's aspirations. Taiwan at the Crossroads: An Expose of Taiwan's New Dictatorship, (2003), p. 71.

8. Formosa Betrayed, pp. 313ff.

9. United States Relations with China, p. 309.

10. H. Maclear Bate, Report from Formosa (1952), p. 47.

11. "Secretary of State Dean Acheson's strategy." The Pentagon did not like it advocating defense of Taiwan. A number of Congressmen opposed Acheson's strategy and pointing out Acheson's approach inconsistent with the Truman Doctrine which supports free people against Communism. Useful Adversaries, pp. 107ff.

12. Joseph W. Ballantine, Formosa: A Problem for United States Foreign Policy (1952), pp. 117-26.

13. A series of Security Council on Korean conflict: 82, 25 June 1950; 83, 27 June 1950; 84, 7 June 195085, 31 July 195088, 8 November 1950.� Resolution 82 notes with grave concern the armed attach on the Repuiblic of Korea by forces from North Korea , determines that this action constitutes a breach of the peace; and call for the immediate cessation of hostilities and calls upon all Member States to render every assistance to the United Nations in the execution of this resolution and to refrain from giving assistance to the North Korean authorities.

14. US. Department of State Bulletin, vol. 23 (July 5, 1950, p. 5.

15. Treaty of Peace with Japan, signed at San Francisco, 8 September 1951 provides in Article 2(b) "Japan renounces all right, title and claim to Formosa and the Pescadores."

16. Rethinking "One China", edited by John J. Tkacik, Jr. (2004). A collection of papers delivered at the Heritage Foundation symposium, Taiwan uncertain status is one of the five reasons for making Taiwan independent from China.

17. November 16-18, 2007, Washington, D.C. In her presentation, 'Toward a U.S.-China Partnership,' Glaser states '[U.S.] considers Taiwan's status to be unsettled,"

18. Saito made the comments at an annual meeting of the Republic of China (ROC) -International Relations Association on May 1 at National Chung Cheng University in Chiayi County. Reported in Taipei Times, May 3, 2009.

19. Civil Action no. 06-1862.

20. Lung-chu Chen and Harold D. Lasswell, Formosa, China and the United Nations: Formosa in the World Community (1967), pp.85-97

21. Judgment by Rosemary M. Collyer, United States District Judge, on March 18, 2008.�

22. 561 F. 3d 502 (2009).

23. At Cairo, Generalissimo Chiang Kai-shek, President Franklin attended November 22-26, 1943. They issued a declaration December 1, 1943, stating "It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China."

24. At Potsdam, New York, U.S. President Harry Truman, British Prime Minister Winston Churchill, and Chinese Generalissimo Chiang Kai-shek issued the following proclamation outlining the terms under which they would halt their war against Japan on July 26, 1945. "(8) The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine."

25. See note 2.

26. Quoted in Taiwan Betrayed, by George H. Kerr, p. 386.

27. Chen and Lasswell, supra,p. 85.

28. John Foster Dulles's Speech at the San Francisco Peace Conference September 5, 1951.

29. Ibid.

30.Treaty of Peace between the Republic of China and Japan, signed at Taipei, 28 April 1952.

31. See note 22.

32. Mutual Defense Treaty between the United States of America and the Republic of China, signed at Washington 2 December 1954, entered into force 3 March 1955 by the exchange of instruments of ratification at Taipei. Terminated by the United States of America 1980

33. Joint Communiqu� of the United States of America and the People's Republic of China, February 28, 1972.

34. Joint Communiqué, n the Establishment of Diplomatic Relations Between the People's Republic of China and the United States of America, January 1, 1979

35. Joint Communiqué between the People's Republic of China and the United States of America, August 17, 1982

36. Joint Communiqué of the Government of Japan and the Government of the People's Rublic of China,ïSeptember 29, 1972; Potsdam Proclamation in Article 8 provides: "The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine."

37. In July 1982, during negotiations for the Third United States China Joint Communiqué on Arms Sales to Taiwan, the Taiwan government presented the United States with six points that it proposed the United States use as guidelines in conducting United States - Taiwan relations. The United States agreed to these points, conveyed this assent to Taiwan, and, in late July 1982, informed the Congress of the agreement. making decisions about U.S. arms sales to Taiwan. Point 4: "The United States would not alter its position about the sovereignty of Taiwan which was, that the question was one to be decided peacefully by the Chinese themselves, and would not pressure Taiwan to enter into negotiations with China."

38. World Journal Weekly, May 10, 2009, p. 4; World Journal, May 5, 2009.

39. UN secretary-general stops calling Taiwan part of Chinaï, ROC Central News Agency, September 6, 2007.

40. White House Press Briefing, August 30, 2007.