Questions and Answers on the Taiwan status

THE SEVEN CONCLUSIONS

Based on the provisions of all relevant treaties, and the dictates of international law, the following seven conclusions may be reached as of April 28, 2003. 

(1) In the international sense, Taiwan remains juridically impaired. 

(2) Taiwan is a sub-sovereign foreign state equivalent. 

(3) Final status of the Taiwan Question has not been achieved. 

(4) Taiwan is undetermined, unorganized, and unincorporated territory of the United States Military Government. 

(5) Taiwan remains in "interim status," with sovereignty held in trust by the United States Military Government.  

(6) The People's Republic of China is the sole legal government of China. The Republic of China on Taiwan is a subordinate occupying power and a government in exile.

(7) There is no "Taiwan Republic", no "two Chinas", and no "one Taiwan - one China."


A NEW RECOGNITION OF ALL PRE-EXISTING US GOVERNMENT POLICY 

This clarification of Taiwan's true international position amounts to a new recognition of all pre-existing US government policy.  This is explained by noting that for Taiwan, the conclusions of Flowchart Analysis of the Transfer of Sovereignty, and the seven conclusions presented above, do not violate any existing guidelines, consensus, law, regulation, assurance, communique, treaty, guiding principle, directive, decree, etc. to which the USA is a party. 

Interim status (also called "insular status") is recognized under international law. It is a neutral status, meaning that all options for the future remain open. Such options would include but not be limited to (1) a Self Autonomous Region of the People's Republic of China (one country, two systems), (2) commonwealth status under the USA (similar to Puerto Rico), or ascension to the status of Freely Associated State with the USA, (3) Taiwan Independence, (4) or some other scenario. 

Based on the specifications of the Shanghai Communiques, the first option is most likely, however when this would be achieved, will be subject to the successful outcome of "negotiations between the Chinese on both sides of the Taiwan Strait." 

Based on the "Stability Index (100 year timeline)", a final status of unification with the People's Republic of China would not be expected before 2052, if then.


Abbreviations and Terminology

PRC: People's Republic of China

ROC: Republic of China

USMG: United States Military Government

WTO: World Trade Organization

TRA: Taiwan Relations Act

Formosa and the Pescadores: collectively called "Taiwan"


Q1: The riddle of Taiwan's position in the international community has puzzled researchers for over fifty years. Is there a simple statement of the seven conclusions given above?

A1: The simplest statement would be to say that "Taiwan is unincorporated territory of the USMG."

Q2: Doesn't the recognition of such a status amount to saying that the USA is annexing Taiwan?

A2: Absolutely not.  The US Supreme Court has continually held that insular areas are part of, but separate from, the USA.  Initially, the essence of "interim status" may be difficult to grasp, but suffice it to say that all options for the future finalization of status are open.   The Chinese nationalists are free to claim that Taiwan remains on the path of an future unification with the PRC, in accordance with the will of the Chinese people. The Taiwan independence advocates are free to claim otherwise .....  

Q3: Isn't Taiwan recognized as a separate customs territory by the WTO?  Isn't this separate customs territory status at odds with any other formulation? 

A3: The concept of a separate customs territory comes from military occupation.   The above seven conclusions do not alter Taiwan's status in WTO in any way, but only serve to further clarify the exact nature of it.     

Q4: But isn't the PRC currently the legal government of Taiwan?

A4: Since the founding of the PRC in 1949, their laws have never had any effect over the Taiwanese, who have maintained their own Legislative Yuan and their own legal system.  Additonally, the Taiwanese have no income tax or corporate tax liability to the PRC, and Taiwan maintains its own Directorate General of Customs, police force, coast guard, etc.  

Given that currently the PRC is not exercising any defacto control over Taiwan whatsoever, it can only be said that the assertion that the PRC is the "legal government of Taiwan" is at odds with reality.  

Q5: If the true nature of insular status is to say that Taiwan is separate from the USA, why is it that the the Taiwanese people now owe the USA  allegiance?

A5: The doctrine of "temporary allegiance" is well documented in international law, especially in military law, and is in full conformity with the Geneva and Hague Conventions.  It is part of the nature of "interim status", and arises from the law of occupation.   

Q6: But the One China Policy states that "There is but one China and Taiwan is a part of China."  Isn't this a contradiction?

A6: Inherent in the above seven conclusions is that there is no "Taiwan Republic", no "two Chinas", and no "one Taiwan - one China."  This is precisely the US government's position.  For example, in the Three Noes (1998.06.30) President Clinton said: "We don't support independence for Taiwan, or two Chinas, or one Taiwan-one China."  He further clarified " . . . and we don't believe that Taiwan should be a member of any organization for which statehood is a requirement. "

Q7: But clearly President Clinton would have seen that the next logical step in Taiwan's development would be a direct unification with the PRC, and not continuance as a separate entity outside of the motherland.  Isn't that true?

A7: There have been fifty years of confusion in the world community due to the claims of all Chinese that 1945.10.25 was "Taiwan Retrocession Day."  This has been further confounded by the "successor government" rationale advanced by many legal scholars.  Such a rationale states that Taiwan belongs to the PRC because the PRC is the fully recognized and legally legitimate "successor government" to the ROC.  

However, in regard to the subject of territorial cession, from the early 1800's onward the law of nations has distinguished that "military occupation does not transfer sovereignty," and a formal treaty specification is necessary.    After WWII the Japanese renounced all right, claim, and title to Formosa and the Pescadores, but the sovereignty of these areas was not transferred to any other country.  In such a situation, the sovereignty is held in trust by the principal occupying power, and under the terms of the San Francisco Peace Treaty, this was specified as the United States Military Government.  Hence, the ROC has never held the sovereignty of Taiwan.

Successive US government administrations from the June 1950 (under President Truman) to the present day (under President Bush) have upheld this interpretation.  President Clinton carefully reiterated this position with his pronouncement of the Three Noes. 

As revealed by Clinton aides, the "Three No's" policy rested on two key policy grounds: First, after the missile face-off of 1995-96, the Clinton Administration came to share the Chinese argument and concern that if Taiwan continued to move down the road of independence, China would have to take military action. Hence, there was a need to warn Taipei that it should not push its cause of Taiwan independence too far, lest it would run the risk of losing US support when China attacks. The US would not want to get involved in a war provoked by Taiwan. 

Second, the Clinton Administration desired to make clear that the  issue of Taiwan should not always be an impediment blocking the progress of the big vision of building "strategic partnership" with China.  

Q8: In fact, Taiwan has belonged to China since ancient times, and this has been consistently recognized by historians.  Even though Formosa and the Pescadores were ceded to Japan by the 1895 Treaty of Shimonoseki , Chiang Kai-shek unilaterally cancelled that treaty in the 1930's.  Clearly, the entire territorial sovereignty of Taiwan reverted to China at that time. Doesn't this explanation clearly show that the above seven conclusions are in error?

A8:   An explanation more in conformance to the law of nations would say that upon the coming into force of the 1895 Treaty, all previous claims of China regarding the ownership of Formosa and the Pescadores, whether due to history, culture, language, race, geography, geology, etc., became null and void.  Moreover, close examination of the 1895 Treaty fails to find any article or provision which would allow for unilateral cancellation by the "original" Ching Dynasty government, or by the ROC as the "successor government" to the Ching.   

In WWII, after the end of hostilities in Asia, it is known that the USMG forces entered Taiwan in early September 1945.  When the ROC (KMT) troops arrived in Taiwan in mid-October, the Japanese flag was still flying, and the Japanese colonial administration was still functioning.  Hence, it is hard to understand how (in the 1930's) the ROC's so-called unilateral cancellation of the 1895 Treaty had any influence on the ownership or sovereignty of Taiwan.

Q9: But doesn't an analysis of President Reagan's Six Assurances (1982.07.14) clearly show that the US recognizes the Chinese position on the sovereignty over Taiwan?    

A9:   The Six Assurances remain as binding elements of US policy to this day.  President Reagan stated that (1) US has not agreed to set a date for ending arms sales to Taiwan, (2) US has not agreed to hold prior consultations with China on such arms sales, (3) US will not play any mediation role between Taipei and Beijing, (4) US has not agreed to revise the Taiwan Relations Act, (5) US has not altered its position regarding sovereignty over Taiwan, (6) US will not exert pressure on Taiwan to enter into negotiations with China.  

It is to be expected that the United States will continue to respect the Six Assurances and their implications under international law. Whether the goal of the eventual unification of Taiwan with the PRC is included therein, would be a decision which would have to take into account the opinions of the Taiwanese people.    

Q10: In the 1992 Cross-Straits' Consensus between ARATS and SEF (1992.10.30), both sides agreed to a number of important points.     In the years since then, it has always been held that Taiwan is part of China.  Doesn't this consensus clearly invalidate the above seven conclusions?  

A10: Under the terms of the 1992 Cross-Straits' Consensus, the "one-China" principle was upheld.  However it is important to remember that the Taiwan governing authorities and the PRC officials each claimed a different interpretation of the meaning of this principle.  Most significantly, the following Six Conclusions were reached:  

(1) Firmly oppose the split of China's sovereignty and territorial integrity. 
(2) Firmly oppose the division of any part of the Chinese territory. 
(3) Firmly oppose any conspiracy between any political party or leader and foreign power to obstruct Chinese unification for private gains.
(4) Firmly oppose any form of divisionism seeking "Taiwan Independence". 
(5) Chen Shui-bian should conform to the mainstream opinion of Chinese population, renounce his divisionist position, acknowledge that Taiwanese are also Chinese, and accept the one-China principle. 
(6) Oppose U.S. arms sales to Taiwan. Selling arms to Taiwan does no one any good but is harmful to world peace and counterproductive to the development of humanity. 

Although the 1992 Cross-Straits' Consensus was between the Taiwan governing authorities and the PRC officials, the key point of "opposing any division of Chinese territory" is recognized as a key component of US policy as well.

Q11: Doesn't President Bush's cross-strait policy contain other elements which would contradict these seven conclusions?

A11: President Bush's cross-strait policy is composed of the Three Pillars: (1) "one China," (2) peaceful settlement of cross-strait problems through negotiations, and (3) no provocation by either side of the Strait.  In accordance with the third pillar, Bush has the Two Principles: (1) objection to China's use of military force on Taiwan and (2) no support for Taiwan's declaration of independence.  

This reflects a consistent US policy position over the last several decades.

Q12: Even assuming that Taiwan is in "interim status" under the San Francisco Peace Treaty of 1952, why not just leave it alone?  Why should the United States step in and put Taiwan under the US flag at this point?

A12:   Formosa and the Pescadores had become a separate customs territory on October 25, 1945, with the beginning of belligerent occupation.  With the coming into force of the San Francisco Peace Treaty on April 28, 1952, these areas were separated from Japan.  The civil affairs administration of USMG continued, although delegated to the ROC (KMT) as local military governors.    The USA was faced with the Taiwan question.  The USMG held the sovereignty of Taiwan, so should it be kept?  Or given away?  Made independent?  Made into a US Trust Territory?  Under the Truman statement of June 1950 it was clear that no decision on the "final status" of Taiwan had been formulated.  Then in the first USA - PRC Joint Communique, President Nixon and Henry Kissinger officially altered this condition of the final status being "undetermined" to being "between" the ROC and the PRC.    

Under the US system of government, constitutionally "permanent" means joining the Union.  However, outside of the Union and without any civil government legislation by Congress any territory is still subject to civil affairs administration of USMG until a resolution of the interim status.  Moreover, after 1898, all ceded territories are constitutionally subject to the doctrine of unincorporated territory.  The law of occupation can continue indefinitely under such circumstances but this is only meant to be a more temporary condition like a trust territory.  

The question then arises: Where are the US Constitutional rights of Taiwan's "island citizens" during the interim status under SFPT?  Under insular law, they are "outside" the US Constitution except for certain fundamental rights.  The US General Accounting Office has produced a detailed set of reports on the "Applicability of Constitutional Provisions to US Insular Areas," and these fully outline the constitutional articles which are applicable.  In short, Taiwan can't be left alone any more after the US President and Congress realize that Taiwan's "island citizens" have rights under the Constitution.      

Q13: If the ROC has never held the sovereignty of Taiwan, then where is the justification of compulsory military conscription over the Taiwanese populace?

A13: Compulsory military conscription in Taiwan violates Articles 40, 45, and 51 of the "Geneva Convention relative to the Protection of Civilian Persons in Time of War" (1949),  as well as violating Article 45 of the "Annex to the Hague Convention No. IV embodying the Regulations Respecting the Laws and Customs of War on Land" (1907).  

Historically and legally, the ROC is a "non-recognized government in exile". The TRA is very clear in stating that the "Republic of China" is not a recognized government after January 1, 1979. Additionally, the USA - ROC Mutual Defense Treaty was terminated on January 1, 1980.

The question of military service is covered in the UN Charter for trust territories which authorizes the defense of the territory by the administering authorities.   It does not authorize (i.e. cannot be interpreted to authorize) the conduct of offensive operations against China, per se, nor the conscription of local inhabitants by the administrative authorities because of the laws of occupation remaining in force.  

UN Charter
Article 84

It shall be the duty of the administering authority to ensure that the trust territory shall play its part in the maintenance of international peace and security. To this end the administering authority may make use of volunteer forces, facilities, and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the administering authority, as well as for local defense and the maintenance of law and order within the trust territory. 

In the SFPT, while it is true that the Article 2 cession of Taiwan is not a trust territory of the Article 3 cessions, the Detaining Powers are obligated to closely observe the spirit of the UN Charter in the preamble of the SFPT.   The imposition of conscription is just one more economic sanction or continuing reparation of war being imposed upon the local populace by the ROC.  The original conscription of the Taiwanese might have been sanctioned by the UN Security Council in the early days of the Korean War against China, but the continuation of this practice at the present time is questionable.  Self-defense forces like a conscripted militia might be allowable, if based on the Swiss military model.

Q14: It does not seem possible that these seven conclusions could be advanced without a formal revision of relevant US laws.  Certainly there must be some elements here which contradict the TRA?

A14:  The TRA has a "foreign state equivalency" clause -- 

* Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan. 

Unfortunately this has been misinterpreted by many people over the last twenty years.  President Clinton's Three Noes actually provided a clearer indication of the true meaning of this clause, i.e.  "Taiwan is a sub-sovereign foreign state equivalent."  This also forms an inherent part of the seven conclusions.  

Other important considerations of the TRA are upheld in their entirety.  Important examples are: 

* It is the policy of the United States (1) to preserve and promote extensive, close, and friendly commercial, cultural, and other relations between the people of the United States and the people on Taiwan, as well as the people on the China mainland and all other peoples of the Western Pacific area; 
(2) to declare that peace and stability in the area are in the political, security, and economic interests of the United States, and are matters of international concern; 
* Nothing contained in this Act shall contravene the interest of the United States in human rights especially with respect to the human rights of all the approximately 18 million inhabitants of Taiwan. The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States.
* Nothing in this Act may be construed as a basis for supporting the exclusion or expulsion of Taiwan from continued membership in any international financial institution or any other international organization. 
* For all purposes, including actions in any court in the United States, the Congress approves the continuation in force of all treaties and other international agreements, including multilateral conventions, entered into by the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, and in force between them on December 31, 1978, unless and until terminated in accordance with law. 
* The Congress affirms its expectation that the future status of Taiwan will be determined by peaceful means, that the people of both sides of the Taiwan Strait should determine their own future, and that it considers any effort to determine or influence Taiwan's future status by other than peaceful means a threat to the peace and security of the Western Pacific region and of grave concern to the US. 

Q15: What about the provisions of the three Shanghai Communiques between the United States of America and the People's Republic of China?  Will a fourth communique be necessary to clarify the exact relationship between Taiwan and the PRC?      

A15: After reflecting on the seven conclusions, the true significance under international law of the three Joint Communiques comes into much clearer focus.  

The following provisions are noteworthy:

(Joint Communique of 1972.02.28) 
* There are essential differences between China and the United States in their social systems and foreign policies. However, the two sides agreed that countries, regardless of their social systems, should conduct their relations on the principles of respect for the sovereignty and territorial integrity of all states, non-aggression against other states, non-interference in the internal affairs of other states, equality and mutual benefit, and peaceful coexistence. International disputes should be settled on this basis, without resorting to the use or threat of force. The United States and the People's Republic of China are prepared to apply these principles to their mutual relations.
* The two sides reviewed the long-standing serious disputes between China and the United States. The Chinese side reaffirmed its position: the Taiwan question is the crucial question obstructing the normalization of relations between China and the United States; the Government of the People's Republic of China is the sole legal government of China; Taiwan is a province of China which has long been returned to the motherland; the liberation of Taiwan is China's internal affair in which no other country has the right to interfere; and all US forces and military installations must be withdrawn from Taiwan. The Chinese Government firmly opposes any activities which aim at the creation of "one China, one Taiwan", "one China, two governments", "two Chinas", an "independent Taiwan" or advocate that "the status of Taiwan remains to be determined".
* The US side declared: The 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. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves. With this prospect in mind, it affirms the ultimate objective of the withdrawal of all US forces and military installations from Taiwan. In the meantime, it will progressively reduce its forces and military installations on Taiwan as the tension in the area diminishes. The two sides agreed that it is desirable to broaden the understanding between the two peoples. To this end, they discussed specific areas in such fields as science, technology, culture, sports and journalism, in which people-to-people contacts and exchanges would be mutually beneficial. Each side undertakes to facilitate the further development of such contacts and exchanges.
 
(Joint Communique of 1979.01.01)
* The United States of America recognizes the Government of the People's Republic of China as the sole legal Government of China. Within this context, the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan. 
* The United States of America and the People's Republic of China reaffirm the principles agreed on by the two sides in the Shanghai Communique and emphasize once again that: --Both wish to reduce the danger of international military conflict. 
--Neither should seek hegemony in the Asia-Pacific region or in any other region of the world and each is opposed to efforts by any other country or group of countries to establish such hegemony. --Neither is prepared to negotiate on behalf of any third party or to enter into agreements or understandings with the other directed at other states 
--The Government of the United States of America acknowledges the Chinese position that there is but one China and Taiwan is part of China. --Both believe that normalization of Sino-American relations is not only in the interest of the Chinese and American peoples but also contributes to the cause of peace in Asia and the world. 
(Joint Communique of 1982.08.17) 
* In the Joint Communique on the Establishment of Diplomatic Relations on 1979.01.01, issued by the Government of the United States of America and the Government of the People's Republic of China, 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. Within that context, the two sides agreed that the people of the United States would continue to maintain cultural, commercial, and other unofficial relations with the people of Taiwan. On this basis, relations between the United States and China were normalized. 
Respect for each other's sovereignty and territorial integrity and non-interference in each other's internal affairs constitute the fundamental principles guiding United States-China relations. These principles were confirmed in the Shanghai Communique of February 28, 1972 and reaffirmed in the Joint Communique on the Establishment of Diplomatic Relations which came into effect on January 1, 1979. Both sides emphatically state that these principles continue to govern all aspects of their relations. 
* The Chinese Government reiterates that the question of Taiwan is China's internal affair. The message to Compatriots in Taiwan issued by China on January 1, 1979 promulgated a fundamental policy of striving for peaceful reunification of the motherland. The Nine-Point Proposal put forward by China on September 30, 1981 represented a further major effort under this fundamental policy to strive for a peaceful solution to the Taiwan question.
 
* The United States Government attaches great importance to its relations with China, and reiterates that it has no intention of infringing on Chinese sovereignty and territorial integrity, or interfering in China's internal affairs, or pursuing a policy of "two Chinas" or "one China, one Taiwan." The United States Government understands and appreciates the Chinese policy of striving for a peaceful resolution of the Taiwan question as indicated in China's Message to Compatriots in Taiwan issued on Jan. 1, 1979 and the Nine-Point Proposal put forward by China on Sept. 30, 1981. The new situation which has emerged with regard to the Taiwan question also provides favorable conditions for the settlement of United States-China differences over United States arms sales to Taiwan. 
* In order to bring about the healthy development of United States-China relations, maintain world peace and oppose aggression and expansion, the two Governments reaffirm the principles agreed on by the two sides in the Shanghai Communique and the Joint Communique on the Establishment of Diplomatic Relations. The two sides will maintain contact and hold appropriate consultations on bilateral and international issues of common interest. 

With the seven conclusions, Taiwan's decision to unify with the PRC is something which will have to take into consideration the will of the Taiwanese people. Now that Taiwan's international legal status is clear, it is unlikely that a fourth Communique will be necessary.

As the Chinese themselves have said, the world community should support the goals of the Three Unifications:

The first unification of the Chinese people was to support the revolution led by Dr. Sun Yat-sen, which overthrew the corrupt feudal government of the Ching Dynasty.

The second unification was when the Chinese across the country supported the cooperation between the Nationalist Government and the Communist Party to defeat the invasion of Imperialist Japan. 

As we stand at another critical moment of history, we hope to facilitate a third unification of the Chinese around the world to bring about a great revival of the Chinese people.

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