Five Observations and Annotations on Recent Chinese History
with particular attention to sovereignty issues regarding Formosa and the Pescadores
After reviewing Recent Chinese History (from the Chinese viewpoint), we can make the following five observations and annotations:
- It is very important to recognize that upon the coming into force of the 1895 Treaty of Shimonoseki, all previous claims of China regarding the ownership of Taiwan and the Pescadores, whether due to history, culture, language, race, geography, geology, etc., became null and void.
- From the period of 1937.07.07 to the late 1940's, the Republic of China (KMT) is reported to have announced the unilateral cancellation of the Treaty of Shimonoseki on more than one occasion. However, in fact the Treaty of Shimonoseki contained no such provisions which would allow such a unilateral cancellation, either by the Ching Dynasty, or by a successor dynasty, or a non-dynasty, such as a republic. Certainly, the Chinese statement of the cancellation of the Treaty of Shimonoseki was not recognized by Japan, other countries, or by any other international bodies.
- Even if the Republic of China (KMT) was able to effectively cancel the Treaty of Shimonoseki during the period of the late 1930's to the late 1940's, this still would not affect the cession of Formosa and the Pescadores to Japan. In regard to treaties between countries, the opinion of international legal scholars is that such items as territorial cessions and the assumption of debts come into effect after ratification of the treaty. After this time, the clauses authorizing these actions effectively cease to exist, because they are "fulfilled provisions." According to this customary law practice, even if an international treaty between countries is later terminated according to its own provisions, a territorial cession or original assumption of debt is not effected, unless an entirely new treaty is drawn up and ratified.
Note: The Republic of China was not a signatory to the San Francisco Peace Treaty (SFPT) and according to Articles 21 and 25 therein, cannot claim any special benefits in regard to ownership of Formosa and the Pescadores via the SFPT. Nor can the ROC claim to be an "Allied Power" as defined therein. The Treaty of Taipei did not contain any clauses which would alter these facts.
- According to international law, 1945.10.25, cannot be called "Taiwan Retrocession Day," because there was no transfer of sovereignty on that date. As early as the beginning of the 1800's, the opinion of legal scholars was that "occupation does not transfer sovereignty," and this was later codified in the 1949 Geneva Conventions. In summary, in 1895 Formosa and the Pescadores were ceded to Japan, and these areas were no longer "internal affairs of China," but were "internal affairs of Japan," and indeed of concern to the world community. After WWII, in order to transfer the sovereignty of Formosa and the Pescadores, the drafting of a formal international treaty was necessary.
- The original "Nationality Law" of the Republic of China was promulgated on 1929.02.05. At that time, the residents of Formosa and the Pescadores held Japanese nationality. In the 1940's (or even earlier by some accounts) the Republic of China announced on numerous occasions that the residents of Formosa and the Pescadores were effectively undergoing a mass naturalization and becoming ROC citizens. According to the 1952.08.05 Treaty of Taipei, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendents who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores). However, in fact the "Nationality Law" of the Republic of China was never formally amended to include any such provisions. The next revision of the "Nationality Law" after 1929.02.05 was on 2000.02.09, and no mention was made of the "mass naturalization" of residents of Formosa and the Pescadores as ROC nationals. Even if there was any sort of emergency situation in effect after WWII, or with the imposition of martial law, the residents of Formosa and the Pescadores might have been naturalized by a "decree" or "proclamation" which was later confirmed by the Legislative Yuan. In reality, no such Legislative confirmation was ever made.
According to the customary law of treaties, there is typically a grace period (often as long as two years) where the local residents can choose whether to retain their original nationality or assume a new one. No such provisions were announced in Formosa and the Pescadores, which further calls the "due process" of any sort of mass naturalizations into question. Of course from another angle, the sovereignty of Formosa and the Pescadores was never transferred to the Republic of China, so any such claims of mass naturalization of the local residents are clearly invalid. Also notable is that Japanese courts have held that the residents of Formosa and the Pescadores were Japanese nationals up through 1952.04.28. In summary, the assumption that since the late 1940's or the early 1950's the residents of these areas are properly termed "Republic of China nationals" is open to serious debate.