This essay is taken from  Historical and Legal Aspects of the International Status of Taiwan (Formosa)

by Ng Yuzin Chiautong, Chairman,

World United Formosan for Independence  

The article was published on August 28, 1971, in Tokyo, Japan. The author holds a Ph.D. degree from the University of Tokyo. The author wishes to acknowledge his gratitude to Dr. William K. Chung, guest scholar of the Brooking Institute's Center for Advanced Study, for his assistance and collaboration in drafting this paper.  

Our Editorial Team has reviewed the entire paper as of January 1, 2003, and made several corrections where the author was in error. 

 

Chinese historical background overview, 1937 to 1949:

adapted from http://acc6.its.brooklyn.cuny.edu/~phalsall/texts/chinhist.html

In China, World War II broke out on July 7, 1937, with a seemingly insignificant little battle between Chinese and Japanese troops near Peking, called the Marco Polo Bridge Incident. Within a few days, the Japanese had occupied Peking, and the fighting spread rapidly. The war in China fell into three stages. The first (1937-1939) was characterized by the phenomenally rapid Japanese occupation of most of China's east coast, including such major cities as Shanghai, Nanjing, and Canton. The Nationalist government moved to the interior, ultimately to Chongqing in Sichuan, and the Japanese established puppet governments in Peking in 1937 and in Nanjing in 1940. The second stage (1939-1943) was a period of waiting, as Chiang blockaded the Communists in the northwest (despite the united front) and waited for help from the United States, which had declared war on Japan in 1941.

In the final stage (1944-1945), the United States provided massive assistance to Nationalist China, but the Chongqing government, weakened by inflation, impoverishment of the middle class, and low troop morale was unable to take full advantage of it. Feuds among the KMT generals and between Chiang and his United States military adviser, General Joseph Stilwell, further hampered the KMT.

When Japanese defeat became a certainty in the spring of 1945, the Communists seemed in a better position to take over from the Japanese garrisons than the KMT, which was far away in the rear of the formation. A United States airlift of KMT troops enabled them to occupy many cities, but the countryside stayed with the Communists.

After the end of World War II in Europe in May 1945, the Allied war effort moved to the east. The Soviet Union joined the war against Japan at the end of July. On August 6 and 9 the United States dropped the world's first atomic bombs on the Japanese cities of Hiroshima and Nagasaki. On Aug. 14, 1945, the Japanese surrendered. In China, however, civil war raged over who should take charge of the Japanese arms and equipment. At the end of August an agreement was reached in Chongqing between a CCP delegation and the KMT, but the truce was brief.

In January 1946 a cease-fire was negotiated by United States General George C. Marshall. The Nationalist government returned to Nanjing, and China was recognized by the new United Nations as one of the five great powers. The United States supplied the Chiang government with an additional $2 billion ($1.5 billion had been spent for the war). Although the KMT's dominance in weapons and supplies was enormous, it was kept under guard in the cities, while the Communists held the surrounding countryside. As inflation soared, both civilians and the military became demoralized. The CCP, sensing the national mood, proposed a coalition government. The KMT refused, and fighting erupted again.

The short and decisive civil war that followed was resolved in two main places: Manchuria and the Huai River area. Despite a massive airlift of KMT forces by the United States, Manchuria was lost in October 1948 after 300,000 KMT forces surrendered to the CCP. By the end of 1948 the KMT had lost over half a million men, more than two thirds of whom had defected. In April 1949 the Communists moved south of the Yangtze.

After the fall of Nanjing and Shanghai, KMT resistance evaporated. By the autumn, the Communists had taken all mainland territories except Tibet. Chiang Kai-shek and a number of his associates fled to the island of Taiwan, where they set up what they claimed was the rightful government of China.

 

 

A Dissection of Differing Historical Views on the Taiwan Status

 

 

Alternate view #1: The Treaty of Shimonoseki was already invalid in December 1941, As a result, Japan had no rightful claim to Taiwan and the Pescadores in 1945 at the end of WWII, especially in regard to any actions “ceding” these areas.

 Analysis: It is known that, even after the downfall of the Ch'ing Dynasty (1644 to 1911) and the subsequent founding of the ROC in 1911, the ROC government was never capable of maintaining effective control over its entire territory, and a weak republican form of government existed, by many accounts, even up until 1949.  As a result, the ROC cannot necessarily be considered a legitimate successor to the Ch'ing, and even moreso when we consider the philosophy which motivated its establishment, being a complete rejection of the “dynastic system”. But, supposing we admitted the ROC as the “rulers of China”, and then we can examine the such, the beloved conjecture of both the ROC and the PRC denying the validity of the Sino-Japanese Peace Treaty of 1895, and which is often brought out in their discussion of the legal status of Taiwan.  We may provide some analysis and dissection of this as follows:  

   On December 9, 1941, one day after the outbreak of the Pacific War, the ROC, in the name of Lin Shen, Chairman of the Chinese Nationalist Government (KMT), declared war against Japan, stating to the effect that all treaties, agreements and contracts between China and Japan would be denounced. The essence of their argument is that the above declaration nullified the treaty of peace between the Ch'ing and Japan which had stipulated for Taiwan's session to Japan and thus restored the pre-cession conditions.

 

   Generally speaking a war has the effect of nullifying all treaties existing between countries at war. In this sense this particular section of the ROC's declaration of war against Japan seemed to be redundant. It was only after the issue of Taiwan's legal status that gave rise to much discussion that the section in point arrested attention. The ROC contended, and the PRC agreed, that the portion of the document referring to the treaties between Japan and China should be interpreted as covering the treaties between Japan and the Ch'ing. Mei Ju-ao, once a ROC member of the International Military Tribunal for the Far East, wrote later in the People's Daily on January 31, 1955:

      "At the declaration of war against Japan, China denounced all treaties existing between China and Japan. Since Japan's occupation of Taiwan had been based on the Treaty of Shimonoseki [Sino-Japanese Peace Treaty of 1895] the ground for the Japanese rule of Taiwan was thus lost on the day the declaration was made.

   During the anti-Japanese war Taiwan remained virtually under the Japanese occupation. Since the day of declaration of war onward, China reserves the right to have recovered full sovereignty to Taiwan."

 

   Chen Yu-chin, head of the fourth section of the Chinese Nationalist Party (KMT), referred to the legal status of Taiwan in his report to the KMT's party operation conference on May 10, 1971, as follows:

   "At the declaration of war against Japan, China denounced all her existing treaties with Japan. Thenceforth, Japan lost the legal ground for her control of Taiwan. Theoretically an international treaty cannot be denounced unilaterally by either side, except, as recognized by scholars of international law, such treaties as are forced on by the invaders in the course of a war. The Treaty of Shimonoseki [1895] was concluded by pressure from Japan, and the government of China has a sufficient reason to denounce it.

   Moreover, Article IV of the Treaty of Peace between the ROC and Japan of 1952 explicitly states that Japan agreed that all treaties concluded between China and Japan before 1941 were void.

   The return of Taiwan is therefore what the international law defines as 'postliminium' with full recognition and consent of the country concerned (Note 6)."

 

   It is true that the Treaty of Peace between the ROC and Japan of 1952 stipulates in Article IV that "all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war". Japan acknowledged that the treaties, agreements and so on between Japan and China as indicated in the article above mentioned were including all of those concluded between Japan and the Ch'ing (Note 7). This, however, should not justify the allegation of both the ROC and the PRC as told by Mei and Chen.

 

   Article IV of the Treaty of Peace between the ROC and Japan is explicit in stipulating that the Sino-Japanese treaties of the past "have become null and void as a consequence of the war" and not of the ROC's statement at the declaration of war.  As we know, Japan signed the official Instrument of Surrender on the USS Missouri in Tokyo Bay on 02 September 1945, ending the war. 

In international law, the effect of past treaties should be defined in the light of what is called in time of war the "effects of war on a treaty".

 

In international law, there are divergent theories over the definition of such effects of war, however, it is widely recognized that the clause of cession will not be affected by a war. Because, once the obligations of territorial cession have been fulfilled, the clause of the treaty itself ceases to exist.

 

   In other words, we can conclude that to the extent that the particular provision in the Sino-Japanese Peace Treaty of 1895 regarding the cession of Taiwan had been fulfilled by the Ch'ing, any portion of the Sino-Japanese Peace Treaty which can be nullified as a consequence of the war should be limited only to those provisions which had not yet been fulfilled in its entirety. The cession provision which had already been carried out was no longer existent and, therefore, could no longer be subjected to nullification.

 

   Looking again at Article IV of the Treaty of Peace between the ROC and Japan of 1952 -- the article expressly stipulates that the treaties concluded between Japan and China before December 9, 1941 became void, not that treaties between Japan and China became void as from that date. Though lacking any distinctive remark, the Sino-Japanese Treaty of 1895 may be interpreted as to have invalidated all but certain provisions that had already been duly fulfilled; namely, the cession provision, reparation provision, etc. That is to say, all those fulfilled provisions had already become extinct. As is well known, the Ch'ing was required to pay, and had actually paid, the sum of 200 million taels to Japan in the fulfillment of Article III of the' Sino-Japanese Peace Treaty. If such fulfilled provisions were to be invalidated altogether, Japan then would have to refund the sum to "China". But the ROC has not claimed any refund, nor has even the PRC made such a demand on Japan. Similarly, if the reparation provisions were declared invalid, Japan would have to refund the 500 thousand taels paid by the Ch'ing in accordance with the Sino-Japanese Agreement of 1874 on the Japanese Expedition to Taiwan and also the 34.8 million taels Boxer Indemnity received from the Ch'ing in fulfillment of Article V of the Final Protocol for the Settlement of the Disturbances of 1900 after the Boxer Rebellion. All these the ROC tacitly regarded "fulfilled provisions" to which the "invalidity clause (Art. IV)" in the Treaty of Peace between the ROC and Japan of 1952 was not to be applied. This is the point where the argument of both the ROC and the PRC denying the validity of the Sino-Japanese Peace Treaty of' 1895 proves to be self-contradictory. Since they themselves keep those "fulfilled provisions" outside the range of application of the "invalidity clause" they cannot at least theoretically deny the validity of the cession of Taiwan. The aforementioned theories of Mei and Chen are therefore erroneous.

　

 

Alternate view #2: The Cairo Declaration and the Potsdam Declarations clearly state that all territories which Japan has stolen from the Chinese shall be restored to the Republic of China

 

Those who maintain that Taiwan has been reverted to the People’s Republic of China and is now a Chinese possession turn to the Cairo Declaration for the legal bases of their arguments. In the joint declaration made by the United States, the United Kingdom and. the Republic of China at Cairo on November 27, 1943, it is said :

"It is their [America, Republic of China and United Kingdom] purpose..... 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".

 

   The Cairo Declaration was later incorporated into another three-power declaration, the Potsdam Declaration, made on July 26, 1945. Article VIII of the Potsdam Declaration stipulates:

"The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu and such minor islands as we determine".

 

   With the participation of the Soviet Union, the Potsdam Declaration later became a four-power declaration. On August 14, 1945, Japan notified the Allied Powers of her acceptance of the provisions of the Potsdam Declaration and signed the Instrument of Surrender to the Allied Powers in September. The Instrument of Surrender states, in part, that:

"We hereby undertake for the Emperor, the Japanese Government and their successors to carry out the provisions in good faith ....."

 

   Both the ROC and the PRC either demand fulfillment of the Cairo and Potsdam Declarations or else regard them as having been carried out. In any event these declarations contain many points of controversy.  These may be delineated as follows:

 

    The Cairo and Potsdam Declarations are in essence designed for boosting the fighting morale of the Allied Armies. The portion regarding Taiwan, in particular, is totally inappropriate, as it was intended as a "sugar-coated" pill for the ROC's territorial expansion. The Cairo Declaration stipulates that:

"All the territories Japan has stolen from the Chinese, such as..... Formosa and the Pescadores, shall be restored to the Republic of China."

 

This wording requires a close examination.

 

   (1) First, the word "stolen" is quit notable.  From ancient times, until the coming into being of internationally accepted principles and laws on the transfer and acquisition of territory, (an extensive compilation of which was made in 1758 by  Emmerich de Vattel in his opus “The Law of Nations”), powerful states had taken and annexed territories of other states at will and without any treaty. But since international law has become established to stipulate for the transfer and acquisition of dominium, cession is recognized internationally as a means of acquiring new territories. It might invite the criticism of being aggressive, but it has validity from the point of view of moral principles. In so far as international law is concerned it is deemed appropriate, and this is particularly so if territorial cession is effected in fulfillment of a treaty of peace.

 

Viewed in this light it is of no legal significance to define the cession of Taiwan effected in accordance with the Sino-Japanese Peace Treaty of 1895 as an act of stealing.

 

We should not look upon Japan's acquisition of Taiwan as an act of stealing any more than we would do America's acquisition of New Mexico by virtue of a treaty after the U. S.-Mexican War of 1848.

 

Thus such a wording is no more than an expression of hatred and retaliation towards Japan, made during the mid 1940’s in the heat of the war effort.

 

   What then is the use of the word "restoration"? International law on acquisition of territories gives no instance where such a word as "restoration" is used. The Frankfurt Treaty of 1871 caused the cession of Alsace-Lorraine from the French Empire of Louis Napoleon to the newborn Empire of Germany. After World War I the German Empire, in fulfillment of the Treaty of Versailles, ceded Alsace-Lorraine to the Republic of France. It is not "restoration" but "cession" which was used both nominally and virtually. In any treaty no word meaning "restoration" of territories can be found.

 Historical notes:

(a) In Taiwan, October 25, 1945, is commonly referred to as “Restoration Day” or “Retrocession Day”.  The background to this is as follows. On September 1, 1945, the first Allied US troops had arrived in Taiwan.  When these Americans landed, the Japanese were still armed and the Japanese flag still flying. On September 10, another American deputation, a team of fifteen officers and men flew in from Kunming, China, to represent the U. S. Office of Strategic Services (OSS). It was not until October 15 that the first KMT troops entered Taiwan from China.  October 25 marked the official surrender of Japanese troops on Taiwan, with Lt. George Kerr duly authorized to take the surrender for the US Commander-in-Chief General Douglas MacArthur,.  However, without a peace treaty formally in place to clarify the status of Taiwan on October 25, there is no valid claim to “cession” or “retrocession” or “restoration” to the Chinese on that date.  The fact that occupation does not transfer sovereignty is an accepted principle of international law.

(b) The case of Okinawa may also be cited as an example where the term “restoration” is commonly used.  However, it should be pointed out that Okinawa has never been ceded by Japan to any alien country but is only being occupied by the occupation forces of the United States.

(c) In international treaties, charters, and declarations, the words “restore” or “restoration” are typically only used in connection with rights, and not of territory.   A phrase such as “the restoration of sovereign rights and self-government to those peoples who have been forcibly deprived of them by the aggressor nations” may be cited as representative.

 

   (2) The Cairo Declaration, and the Potsdam Declaration as well for that matter, arose out of the Allied Powers' war objectives. It is illustrative to quote the Joint Declaration made by the President of the United States and the Prime Minister of the United Kingdom on August 14, 1941 that set forth war objectives as follows:

   "First, their countries seek no aggrandizement, territorial or other; Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned; Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them."

 

   This declaration, popularly called the Atlantic Charter, as it was announced somewhere on the Atlantic Ocean, is very noble in contents:

Article I stipulates for territorial non-expansion, Article II respects the will of the peoples concerned on territorial alterations, and Article III protects the rights of all peoples.

 

The Atlantic Charter is, however, not an exclusive property of the United States and Britain. A total of twenty six countries, including the United States, Britain, the Soviet Union, and the Republic of China signed the Declaration by United Nations on January 1, 1942, in which "the Governments signatory hereto, leaving subscribed to the common program of purposes and principles embodied in... the Atlantic Charter" jointly upheld it. The preamble to the Declaration by United Nations says that "complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands."

See Atlantic Charter

http://www.yale.edu/lawweb/avalon/wwii/atlantic.htm

 

   Nevertheless, the United States and Britain had no sooner made so noble a pronouncement than that they hand in hand concluded the Yalta Agreement on February 4-11, 1945, and sold the Kuriles to the Soviet Union. Also, they decided to give the Soviet Union part of the rights and interests of the Japanese Empire in Manchuria. While helped by her allies the Soviet Union advanced to territories of the neighboring countries in Europe and furthermore to the Baltic countries, namely, Estonia, Latvia and Lithuania. The ROC lost part of her interests in Manchuria but conspired to secure Taiwan as her own lion's share under the cloak of "restoration".

See Yalta Conference

http://www.yale.edu/lawweb/avalon/wwii/yalta.htm

 

The United States procured mandated territories. Britain recovered her colonies, and France and the Netherlands recovered their own colonies, though part of their colonies later declared independence and left them.

 

That the WWII hostilities in the China theatre were motivated by imperialistic aims, beginning with the Marco Polo Bridge Incident of July 7, 1937, is not deniable.  As a result, in the eyes of historians WWII continues to carry the overtones of an imperialistic war between imperialist states. Seen in this light, the Cairo and Potsdam Declarations were no more than declarations of "allocation" made in the process of an imperialistic war. Immediately after the termination of the war, Britain issued a statement to the effect that "the Cairo Declaration merely indicated a course of action in the midst of the war and the status of Taiwan still remains undefined."  (This is discussed briefly in George Kerr’s Formosa Betrayed, Chapter 22.  See

http://www.romanization.com/books/formosabetrayed/chap22.html )

 

 

Since the Chinese Communist Party's victory in the civil war and the subsequent founding of the PRC on October 1, 1949, the government has been treasuring the Cairo Declaration concluded by the United States and Britain whom it so bitterly detested and Chiang Kai-shek's ROC, the very party against whom the PRC continues to wage a diplomatic battle on every front. Why does the PRC government, the self-approved "liberator of the peoples", treasure a declaration made by the American and British "imperialists" and Chiang Kai-shek whom many of its government pronouncements have in days past looked upon as "enemies of mankind and the peoples"? This can only be due to its expansionist tendencies forever seeking after territorial gains.  In fact, the Chinese have a long history of attempting fait accompli arguments on the basis of historical claims.  The Potsdam Declaration has nothing to do in a binding sense with the SFPT as international law.  The US Senate ratified the SFPT and TRA reaffirms it.   Neither the Potsdam or Cairo Declarations are ratified treaties, hence they do not have “stand alone” legal validity.  They may be classified as executives agreement for preliminary negotiations on the terms of surrender. The SFPT is a conquest by cession.  The principles of acquisition of territorial sovereignty recognize both conquest and cession.  Conquest, however, must be finalized by a cession, and neither of the Declarations are even that. 

 

   Here in 2003, Formosa and the Pescadores have not yet been legally passed into the possession of the PRC.  There currently no PRC troops stationed on Taiwan soil, nor are males of military service age in the Taiwan area conscripted for service in the PRC military. In connection with any and all activities in the Taiwan area, there is no record of the residents thereof having paid one single RMB in income taxes, business taxes, land taxes, or other taxes to the PRC authorities at any time since the PRC’s founding in 1949.  Clearly, the residents of Taiwan have no allegiance to the PRC.

 

Looking at the historical record of WWII, the United States, as the Commander in the Southwest Pacific, Supreme Commander for the Allied Powers, and supreme occupational authority after the surrender of the Japanese authorities in Taiwan on October 25, 1945, has an unfinished obligation to return to the provisions of SFPT and the Laws of War in dealing with the limbo cession status. 

 

   (3) The Cairo Declaration is not a treaty. International jurists unanimously agree and it leaves no room for doubt that the binding power of a treaty over its signatories is far stronger. Barring a very few cases, a treaty requires ratification while a declaration does not. This clearly shows the difference in binding power between the two. For a declaration to have binding power, to the extent proportionate to that of a treaty, it must follow ratification procedures. For instance, when the Russo-Japanese Joint Declaration was concluded on October 19, 1956, as a temporary measure until the conclusion of a full treaty of peace, ratification procedures were followed by both sides to attach authority proportionate to that of a treaty to the Declaration. In the case of the Cairo Declaration, none of the signatories has followed ratification procedures. Therefore, it only indicates a future course of action and does not legally bind the countries which participate in the declaration.  The Cairo Declaration comprises two sections: first, the obligations of the signatories are stipulated and, second those of the non-signatories are set forth. The following section defines the obligations of the signatories:

   "The Three Great Allies expressed their resolve to bring unrelenting pressure against their brutal enemies by sea, land and air..... They covet no gain for themselves and have no thought of territorial expansion."

 

    It is a mutual pledge of the three countries, whereby they impose obligations to one another, which it is their duty to observe. The Cairo Declaration was later incorporated into the Potsdam Declaration, and, since the Soviet Union participated in the latter she is equally obligated to observe it.

 

The other section reads:  "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..... Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed."

 

   This is a demand on or an action to be taken against the sovereign non-signatory, namely, Japan. International law provides that any stipulation in a treaty regarding a sovereign third power cannot bind the third power. If we regard the Cairo Declaration as something which might be treated as a treaty, this particular section of the declaration cannot bind a sovereign third power. Moreover this section does not stipulate for mutual transfer of interests among the signatories. If a country, having promised to pass onto another its own interests, failed to keep her promise, she might be open to due criticism. For example, on June 25, 1950, North Korea invaded South Korea with 135,000 men, initiating the Korean War.  On June 27, President Harry S. Truman deployed the 7th Fleet to waters off Taiwan to prevent the spread of the conflict to other Far East waters.  Let it be imagined that the United States had asked for the ROC to participate in the conflict and to send a contingent of 100,000 to the front.  In return for this the United States then promised to present Hawaii to the ROC after successful completion of the war effort, and yet later violated this pledge.  At that point, the United States could be accused of non-fulfillment of the declaration.

But if the United States had promised to present the North Island of New Zealand to the ROC after successful completion of the war effort, this pledge would have to be viewed in a totally different light.  Any stipulation for the transfer of any territory which the United States does not actually possess can have no legal binding power. Those governments and people who demand fulfillment of the Cairo Declaration unconsciously or deliberately lay emphasis only on the latter section which has no binding power where it reads: "Formosa and the Pescadores shall be restored to the Republic of China" and refuse to refer to the former section where the signatories' obligations are set forth.

In the Cairo Declaration, Generalissimo Chiang Kai-shek of the Republic of China, too, expressed his "resolve to bring unrelenting pressure against their brutal enemies by sea, land, and air". Unfortunately this was only his "resolve", which was stated here in words, but not put into action, because from the period of July 7, 1937 to September 2, 1945, there is no historical record of troops under Chiang Kai-shek actually attacking the Japanese islands by sea or by air. 

   Since the Soviet Union was signatory to the Potsdam Declaration into which the Cairo Declaration had been incorporated she was supposed to be under obligation to observe the Cairo Declaration.  It is, nevertheless, doubtful whether the Soviet Union cooperated in restoring to the Republic of China "all the territories Japan has stolen from the Chinese, such as Manchuria....." as stipulated in the Cairo Declaration, in fact the opposite is true. It is even more doubtful if the Cairo Declaration allies had acted up to their determination expressed in the Declaration:

"The afore-said three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent."

 

   The Soviet Union did not easily hand over to the ROC Manchuria then under her occupation and, worse still, removed materials back to the Soviet Union. Korea was made a split state by the intention of the United States and the Soviet Union. Today no voice is heard coming from any quarters to accuse such infringements of the declaration. This clearly shows that the Cairo Declaration is merely a general proclamation, a direction for its allies to pursue, and does not bear the status of a treaty which is binding on participatory parties.

 

   This clearly illustrates that it is unfair indeed to bring forward the Cairo Declaration, Potsdam Declaration, and so forth only in relation to the status of Taiwan. Such is but an argument done for argument's sake.

 

   (4) The "Instrument of Surrender" must wait arrangements for a treaty of peace for its full execution. The Cairo Declaration is a unilateral proclamation made by the three powers, the United States, Britain and the ROC, and Japan is not bound by it. It is only that Japan accepted the provisions of the Potsdam Declaration and, since the Cairo Declaration is incorporated into it, Japan is indirectly bound by it. In the Instrument of Surrender signed on September 2, 1945 by the Japanese plenipotentiary on board of the battleship Missouri in Tokyo Bay, Japan formally accepted the provisions of the Potsdam Declaration, into which had been incorporated the Cairo Declaration. The validity of the Cairo Declaration aside, Japan is under an obligation to cede Taiwan according to the Instrument of Surrender. However, it is also seen by a careful reading of the articles of the San Francisco Peace Treaty, particularly Article 2(b), no specification was made to whom Formosa and the Pescadores were to be ceded.  Thus the reality of a limbo cession is clearly evident.

 

Additionally, the case of Korea clearly shows that the disposition of territory does not take effect automatically at the signing of an instrument of surrender and new arrangements are later required to effectuate it.  This was the situation in the case of the surrender of Japan after WWII, even though Japan's actual control of the area of Korea did not continue farther on.

 

The Cairo Declaration provides for Korea's independence but, for the sake of formality, an international conference was convoked. In December, 1945, the Moscow Conference of the Foreign Ministers, attended by the United Kingdom, the United States, and the Soviet Union was held to discuss on the provision for Korean independence which was to be incorporated in the forthcoming treaty of peace with Japan. The ROC later joined in the resolution of the foreign ministers of the three countries. The San Francisco Peace Treaty (signed at San Francisco, September 8, 1951, and initially entered into force April 28, 1952 ) completed the legality whereby Japan, in Article 2(a) "recognizing the independence of Korea, renounced all right, title and claim to Korea". Therefore, we can say with certainty that during the period of 1945 to 2002, there has been no similar arrangement for the disposition of Taiwan, and it remains as a limbo cession, under the supreme occupational authority of the United States Military Government (USMG).

 

 

Alternate view #3: The Peace Treaties signed with Japan have clearly stipulated that Formosa and the Pescadores belong to China

 

So far two treaties of peace have been signed with Japan : the San Francisco Peace Treaty and the Treaty of Peace between the ROC and Japan. The San Francisco Peace Treaty was signed on September 8, 1951 by forty-eight countries and took effect on April 28 the following year. Of the former Allied Powers--the United States, the United Kingdom, the Soviet Union and the ROC--the Soviet Union signified her dissatisfaction at the non-participation of the PRC and refused to sign the treaty. The ROC was unable to take part in the treaty on such an account dealing with the problem of Chinese representation which arose in the wake of the ROC's expulsion from the mainland and the subsequent founding of the PRC in its former territory--Chinese mainland.

 

   It is often stated that the Soviet Union and the ROC, who did not sign the San Francisco Peace Treaty, are not bound by it. According to this logic, only Japan and the forty-eight signatories of the treaty are bound by it. On the territorial issue of Taiwan, the SFPT, Article 2(b) stipulates as follows:

   "Japan renounces all right, title and claim to Taiwan and the Pescadores".

　

   This provision is important for the following reasons:

   (1) The issue of Taiwan's legal status had hitherto stimulated a variety of arguments and proclamations but this was the first concrete provision in the form of a legally binding treaty.

 

   (2) With Japan's renunciation of Taiwan, Taiwan was placed outside the sovereignty of Japan legally. Since Japan renounced not only her right and title to Taiwan but territorial claim as well, Japan will have no territorial claim to Taiwan in the future.

 

   (3) By the San Francisco Peace Treaty, Japan fulfilled all obligations, including the disposition of Taiwan, to the Allied Powers. But it is often alleged that separate treaties of peace had to be concluded with the Soviet Union and the ROC who were not bound by the San Francisco Peace Treaty.  This analysis of course ignores the role of the USMG, and does not acknowledge the internationally accepted principles which comprise the laws of war.  

 

   In 1952 Japan did conclude a peace treaty with the ROC and later on October 16, 1956, the Russo-Japanese Joint Declaration, which was "treated as a treaty of peace" then when Japan was unable to sign a formal treaty with the Soviet Union with whom she had not reached an agreement on her northern territories, was inked in Moscow by the representatives of both countries and the exchange of ratifications was completed in Tokyo on December 12. Neither the Treaty of Peace with the ROC nor the Joint Declaration with the Soviet Union stipulated to which country Taiwan should be ceded in terms of its “final status.” Nor did either document take cognizance of Taiwan’s “interim status” under the USMG.

 

To further confound the issue, there are arguments in some quarters contending that since Japan concluded a peace treaty with the ROC and there she recognized Taiwan as a territory of China, therefore Taiwan legally belongs to the ROC. The Central Daily News, Kuomintang (KMT, literally the Chinese Nationalist Party) official newspaper, said in its editorial on May 1, 1971, as follows:

   "Since Japan recognized in the Treaty of Peace with the ROC renouncing of her sovereignty over Taiwan, the problem of Taiwan's status is already resolved. Furthermore, the Japanese delegate stated in the Exchange of Notes between Japan and the ROC No. I, April 28, 1952, that, in respect of the ROC, the provisions of the peace treaty should be applicable to all the territories which are now or which may hereafter be under the control of the ROC. In the light of the above-mentioned treaty of peace and the exchange of notes Taiwan clearly belongs to the ROC."

 

   Is this claim by the ROC authorities legitimate? We shall raise some points in the following in order to examine this claim:

   (1)The Treaty of Peace between the ROC and Japan in its territorial provision (Article II) only stipulates that:

   "It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951..... Japan renounced all right, title and claim to Taiwan (Formosa) and Penghu (the    Pescadores)...."

 

   It means that Japan only renounced Taiwan and the provision made no mention of the country to which Taiwan was to be ceded. In other words, the status of Taiwan, as it stands now, is a limbo cession under peace treaty. There is no logic to say that since the treaty was concluded with the ROC and the ROC is the beneficiary of the treaty, the ROC should receive Taiwan so renounced by Japan. Furthermore, Article II of the Treaty of Peace between the ROC and Japan (Treaty of Taipei) is based on the San Francisco Peace Treaty, in which Japan similarly renounced Taiwan.

 

   (2) It is true that exchanges of notes were passed between Japan and the ROC regarding the area to which the Treaty of Peace between the ROC and Japan should be applied. The Japanese text of the Exchange of Notes reads as follows:

   "...the present Treaty shall in respect of the Republic of China be applicable to all the ryoiki (ling3 yu4) which are now, or which may hereafter be, under the control of its Government."

 

   Here, the part where the term ryoiki is used reads ling-tu (ling3 tu3) in the Chinese text and in the one in English, to which a reference should be made if any doubt about interpretation arises, it reads "territories". The ROC insisted on the use of the more explicit term ling-tu (literally, territorial land), while Japan steadfastly refused it and instead stuck to the term ryoiki (literally, territory) to surest a different meaning. In the course of negotiations for the treaty of peace with Japan, the ROC in fact was aware and agreed that the term "territories" used in the Treaty would be different in meaning from "state territories" in the possession of a sovereign state. This point was made clear in the course of deliberations in the Japanese National Diet prior to the ratification of the Treaty of Peace with the ROC. One of the Japanese policy makers on the peace treaty with the ROC, Mr. Eiji Wajima, testified at the House of Representatives Standing Committee for Foreign Affairs on May 23, 1952, as follows:

"The present situation [of the ROC] is somewhat different from any normal circumstances. The position of the ROC controlling Taiwan is somewhat different from that of any other state exercising sovereignty over its land or state territories or territorial waters. (Note 8)"

 

   At the committee meeting on the same day Mr. Wajima further testified:

"In common international practice some cases are found where the term 'territory' is not so strictly interpreted as to mean 'state territory'. As it is used in the present treaty, the term is not to be taken so strict as to mean 'state territory'. It was from this point of view that we translated into the Japanese term 'ryoiki'. 'Ryoiki' is broader in meaning than 'state territories'.  Both parties agreed that it should be rendered ling-tu (territorial land) in the Chinese text."

 

   In any event the term "territories" in the original English text was rendered ryoiki in the Japanese text and ling-t'u in the Chinese, and thus two different expressions were employed for otherwise one single term. But even if we interpreted ryoiki as meaning ling-tu, the Exchange of Notes could not establish Japan's cession of Taiwan to the ROC. For even if Taiwan were deemed to be a territory which is "now under the control of the [ROC] Government", it could not be the "state territories" of the Republic of China, just as the "Ryukyu Islands are the territories which are now under the control of the United States" but are not the "state territories of the United States". If we read the afore-mentioned Exchange of Notes carefully, we will see that it is only a provision for the extent of application of the treaty not for "state territories". We should also note in this connection that the extent of application of the Treaty does not coincide with the extent of "state territories".

 

   As a matter of fact there are territories in the possession of a country to which a treaty concluded by the country cannot be applicable. The amended treaties concluded in 1894 by Japan with the United Kingdom and France, for instance, were not applied to a number of territories of the United Kingdom and France. On the contrary, there often are some territories that are not in the possession of a certain country but only happen to be under control of the country to which a treaty effected by the country is applied.

 

An instance in point is the West Pacific islands, mandated territories of the United States. The collective defense treaties concluded between some Asian countries and the United States are applicable to these islands. In essence, the clause "areas to which a treaty is applicable" is no synonym of "state territories". It is improper to regard an area a possession of a certain country only because a treaty concluded by the country is applicable to that particular area. Therefore it is improper to say that Taiwan is a state territory of the ROC just because a treaty concluded by the ROC is applicable to Taiwan.

 

   (3) Article X of the Treaty of Peace between the ROC and Japan stipulates as follows for the nationality of the Taiwanese:

   "For the purpose of the present Treaty, the 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)...."

 

   Simply stated, the "nationals of the ROC shall be deemed to include the Taiwanese." The use of the words "deemed" calls for attention. This is not an affirmative definition of the Chinese nationality of the Taiwanese people, hut merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as the ROC nationals.

 

On this point, Mr. Eiji Wajima, Director of the Asian Affairs Bureau, the Japanese Ministry of Foreign Affairs, told the House of Representatives Standing Committee for Foreign Affairs (May 23, 1952), in his capacity as government member, that the status of Taiwan remained undefined and that since the inhabitants of Taiwan who were formerly Japanese nationals lost their Japanese citizenship, and so unless some measure was taken, they would not be able to travel to Japan. Therefore, they were "deemed" to be Chinese nationals (Note 9). At the same committee on May 30, Mr. Kanichiro Ishihara, Vice Minister of Foreign Affairs, was more explicit in his answer to a question raised by Mr. Hyakuro Hayashi, a member of the Standing Committee:

Hyakuro Hayashi : "When it says 'deemed to conclude', how different is it from saying 'are nationals' ?"

Ishihara: "The word 'deemed' is used here because the territorial issue has not yet been brought to a final resolution." (Note 10)

 

   (4) In the Treaty of Peace between the ROC and Japan the term "residents" is clearly distinguished from "nationals". To refer to the Japanese the treaty says "Japanese nationals", but it does not call the Taiwanese "Chinese nationals" but instead, it prefers the term "residents". This shows that the Taiwanese are not "Chinese nationals" but only "deemed" to be such. Article III of the Treaty is illustrative of this point:

"The disposition of property of Japan and of its nationals in Taiwan...., and their claims, including debts, against the authorities of the Republic of China in Taiwan and the residents thereof, and the disposition in Japan of property of such   authorities of residents and their claims, including debts against Japan and its nationals, shall be the subject of special agreements between the Government of Japan and the Government of the Republic of China."

 

   Arguments of both Japan and the ROC in the stage of negotiations for the Treaty of Peace between the ROC and Japan have been made clear in the course of deliberations in the Japanese National Diet. The ROC persisted in its demand for clearly identifying Taiwan as its state territory, while Japan refused to comply with the demand.

 

Examining the utterances of Katsuo Okazaki, Foreign Affairs Minister, Kanichiro Ishihara, Vice Foreign Affairs Minister, Fiji Wajima. Director of the Asian Affairs Bureau and those others who took part in the conclusion of the Treaty, we can summarize Japan's position on the question of the sovereignty over Taiwan as follows:

(A) Though the ultimate status of Taiwan is expected to reside in the ROC, it still remains undefined in the light of international law.

(B) Japan renounces Taiwan but its status is subjected to future resolution by the Allied Powers.

(C) Which countries constitute the "Allied Powers" depends on the concept of such "Allied Powers". It is not all that clear whether the "Allied Powers" are the four major Powers (the United States, the United Kingdom, the ROC and the Soviet Union) or the nine countries (besides the above four, Australia, Canada, France, Netherlands and New Zealand) that were aboard the U. S. S. Missouri to accept Japan's instrument of surrender, or all the thirteen countries (the above nine plus India, the Philippines, Pakistan and Burma) that took part in the Far    Eastern Committee. The "Allied Powers" would be such as the Allied Powers consider appropriate.

(D) It is true that the ROC is actually controlling Taiwan and that the “independence for action” seems to be exercised partially over Taiwan.

(E) Taiwan is a territory under the control of the ROC but not a state territory of the ROC. The right of exercising administrative authority over a certain territory does not mean in possession of the respective territory as a part of state territory. In comparison, the meaning of "territory" is broader than "state territory".

(F) As regards the term "territory" in the original attested text of the Treaty in English, both Japanese and Chinese Plenipotentiaries agreed to translate the term "territory" as ryoiki in the Japanese text, and ling-tu in the Chinese text.  It should not be taken to mean that Japan recognized Taiwan as a state territory of the ROC.

 

As the aforementioned Diet statements clearly show, the ROC was fully aware, throughout the negotiation stage, of the position of Japan on the territorial problem of Taiwan. Sufficiently aware of it, the ROC went on with the signing and ratification of the Treaty.

 

While studying the Treaty of Peace between the ROC and Japan we must take special note of the fact that in so far as the ROC is concerned, Japan has fulfilled all the obligations in respect of the territorial problem of Taiwan. It is true that at the stage of signing the treaty of peace with Japan, the proper state territory of the ROC was limited to the islands of Quemoy and Matsu and the Chiang Kai-shek regime was the government to represent the ROC, i.e. the juridical person of China. It is true, too, that the ROC did not and could not represent the people on the mainland China who were then nationals of the PRC.  However the country of the ROC, which declared war against Japan in 1941 and with the other Allies accepted the surrender by Japan in 1945, still existed in 1952 and concluded a peace treaty with Japan. On the ground of Japan's Instrument of Surrender, the ROC reserves the right to take over Taiwan from Japan and Japan is under an obligation to hand it over to the ROC. However, that ROC was only able to have Japan agree to renouncing Taiwan means that, as far as the ROC was concerned, she, even if not completely, gave up "legal possession of Taiwan". Japan, on the other hand, only renounced Taiwan to satisfy the ROC and fulfilled all the obligations regarding Taiwan as was stipulated in the Instrument of Surrender.

 

   It is necessary at this point to consider the problem of "peace treaty" between Japan and the PRC.

 

   Is Japan then obligated to conclude a treaty of peace with the PRC? Viewed in the light of international law, Japan is not obligated to do so.  This is based on the following considerations.

(1) It was the ROC that declared war against Japan, and the founding of the PRC was four years after the end of the war. There is no fact that Japan has ever been at war with the PRC.  The Communist Party was in fact at war with Japan but only as a Communist Party within the ROC. Japan never treated it as       a "belligerent community" independent of the ROC.

(2) It is important that at the point of the coming into effect of the Treaty of Peace between the ROC and Japan on August 5, 1952, as many as forty countries had, though motivated by a grand fiction, recognized arid maintained continuous diplomatic relations with the ROC (whereas only twenty-six        countries had recognized the PRC), and the ROC Government held a seat at the United Nations as the representative of the ROC. That is to say, the state of war was ended between Japan and the ROC, consequent upon the conclusion of a treaty of peace between the ROC and Japan against whom the ROC had declared war.

(3) The tenure of office of President Chiang Kai-shek elected on the basis of the ROC Constitution was due to expire in May, 1954, and therefore it was legally, if not politically appropriable, proper of Japan to have concluded a treaty of        peace with the ROC Government of President Chiang Kai-shek in 1952. (Note 11)

 

Viewed from these angles Japan is not, in our opinion, obligated to conclude a treaty of peace with the PRC. It is a fact that Japan afflicted sufferings on the people in the mainland of China, and if Japan is disposed, be it from moral or political motives, to compensate such damages done to the people there, it is a matter of paying reparations and not at problem of peace treaty.

 

The Mutual Defense Treaty between the United States of America and the Republic of China

 

   The Mutual Defense Treaty between the U. S. and the ROC which was signed in December, 1954 and took effect as from March the following year is also used by the ROC, as a basis for her territorial claim, an improper claim, indeed, to Taiwan. Even if the United States ever recognized the ROC's possession of Taiwan, such recognition given by party with no right to single-handedly dispose of Taiwan, would have no effect whatsoever, In point of fact, the Treaty does not contain such provision, Provisions which might cause misunderstanding are as follows:

Article II: In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack and communist subversive activities directed from without against their territorial integrity and political stability.

Article V: Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its own pence and safety.

Article VI: For the purpose of Article II and V, the term "territorials" and "territories" shall mean in respect of the Republic of China, Taiwan and the Pescadores; and in respect of the United States of America, the island territories in the West Pacific under its jurisdiction."

 

   A careful reader will notice that the Treaty tactfully avoids to recognize in clear terms Taiwan as a possession of the ROC. Article II does not deal with the problem of Taiwan’s legal status but only refers to preventing the communists' subversion of "territorial integrity and political stability". "Territorial integrity" is a term which implies that the defense of not only the state territories of each country but also other territories under its control or trusteeship are included. Evidence for this is that, as clearly seen in Article VI, the territorial integrity of the United States includes the defense of the Micronesian islands, though of all the islands in the West Pacific Area Guam is the only state territory of the United States. Furthermore, if we refer to both Articles V and VI we will see that the "territories" of the United States and the ROC as defined in Article V include those areas under their control and trusteeship, and are not, strictly speaking, supposed to be "state territories" as such.

 

   Now let us examine the Exchange of Notes of December 10, 1954, between John Foster Dulles, Secretary of State of the U. S. and George K. C. Yeh, Minister of Foreign Affairs of the ROC, which contained the following:

"The Republic of China effectively controls both the territories described in article VI of the treaty.... and other territory.

It possesses with respect to all territory now and hereafter under its control the inherent right of self-defense."

 

   In this Exchange of Notes, the United States recognized ROC's effective control of Taiwan. Here we should take care to note that it only considers the degree of the ROC's control to be effective and does not confirm Taiwan to be the ROC's state territory in the similar sense that the United States now effectively controls her territories in the west Pacific Area including such remote areas as Lamotrek Atoll. But the three islands that compose Lamotrek Atoll do not comprise "state territory" of the United States.

 

What then is the implication of the part where it says that the ROC "possesses with respect to all territories now under its control the inherent right of self-defense"? This too does not confirm Taiwan to be a state territory of the ROC. In fact the "rights of self-defense" are not applicable only to the state territories of a sovereign state. The rights of self-defense are applicable to such areas as the administrating authority extends. The United States, for instance, holds the administrative authority over Okinawa and in the event of an armed attack on Okinawa the United States can exercise her rights of self-defense to effect a counterattack, But it does not mean that Okinawa is a state territory of the United States.

 

As we have discussed earlier, "territories" imply a broader area than "state territories".

 

   A sovereign state may possess (1) state territories which include land, waters and air over all of which the sovereign state holds an exclusive sovereignty the state is able to cede any of such territories or dispose of them at will. The territory of a sovereign state may include (2) non-state territories and as long as any restrictions are not imposed on the land, water, and air the sovereign state reserves the right to exercise an exclusive control but not to cede them at will to other states. The ROC position about Taiwan is the case in point. Sovereignty of the Taiwan cession has not passed into the control of the governing authorities in Taiwan. 

 

   It should be clear now that the Exchange of Notes between Dulles and Yeh, not to mention the Mutual Defense Treaty between the U. S. and the ROC, does not recognize Taiwan to be the ROC's state territory. In fact, throughout the negotiations for the Mutual Defense Treaty, the ROC made every effort to establish its possession of Taiwan but the United States rejected such a move.

 

   On December 1, a few days before his delivery if the Exchange of Notes to George K.C. Yeh, John Foster Dulles made it abundantly clear at a press conference that "sovereignty over Formosa and the Pescadores has never been settled.... The future title is not determined..... “.  Therefore, the judicial status of these islands [Formosa and the Pescadores] is different from the judicial status of the off-shore islands [ Quemoy and Matsu] which have always been Chinese territory." The Exchange of Notes of December 10th was composed with such an observation in view and only proves that the United States had never recognized Taiwan to be a state territory of the ROC. On the legal status of Taiwan, the United States has consistently maintained the view that it remained undefined ever since President Harry S. Truman declared on June 27, 1950, that the "determination of the future status of Formosa must await the restoration and security in the Pacific, a peace settlement with Japan, or consideration by the United Nations." While the Mutual Defense Treaty between the U. S. and the ROC was under deliberation at the U. S. Senate, some feared that the Treaty might come to have the effect of having the United States shift her policy of regarding the status of Taiwan undefined and recognize ROC's possession of Taiwan. So the Senate Foreign Relations Committee inserted in its report that "it is the understanding of the Senate that nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty of the territories referred to in Article VI" (Note 12).

 

Legal Aspects of ROC's Rule of Taiwan.

 

   To identify Taiwan as a Chinese territory on the ground of the ROC's effective rule of Taiwan since October 1945, raises a host of problems. General Douglas MacArthur, Supreme Commander of the Allied Powers, issued on September 2, 1945, "General Order No. 1". Article I (a) of the Order reads:

   "The senior Japanese Commanders and all ground, sea, air and auxiliary forces within China, (excluding Manchuria), Formosa and French Indo-China North of 16 degrees North latitude, shall surrender to Generalissimo Chiang Kai-shek."

 

   Acting on the Order, the ROC Army moved into Taiwan. The Japanese armed forces in Taiwan and the administration authorities surrendered to a delegation sent by Chiang.

 

   On September 20, of the same year, the ROC issued the "Regulations by the Office of Administrator General in Taiwan Province", made the Office of Administrator General the topmost administrative organ in Taiwan and placed it under the Executive Yuan (the cabinet of the ROC).

 

On October 25 Chen Yi, Administrator General and concurrently Supreme Commander in Taiwan, performed the Ceremony of Surrender and declared annexation of Taiwan to the Republic of China. For over fifty years the ROC has ruled Taiwan.

 

   The ROC makes a pretext of such circumstances to contend that its possession of Taiwan is a fait accompli, and, arguing that no protest has been voiced by any nation, insists that its possession of Taiwan is completed in the light of law as well as of facts.

 

   But in so far as the matter of territorial annexation and effective rule is concerned an identical situation is found in the treatment of the Kuriles by the Soviet Union. Unless the Soviet Union's legal possession of the Kuriles is to be recognized by Japan, one cannot be expected to accept the case of Taiwan which was once subjected to Japanese occupation under similar circumstances.

 

   Many nations have also voiced their reservations regarding the legal status of Taiwan. Sir Anthony Eden, the British Foreign Minister, stated on February 4th, 1955 as follows:

   "In September 1945, the administration of Formosa was taken over from the Japanese by the Chinese forces at the direction of the Supreme Commander of the Allied Powers; but this was not a cession, nor did it in itself involve any change of sovereignty. The arrangement made with Chiang Kai-shek put him there on a basis of military occupation pending further arrangements and did not of themselves constitute the territory Chinese. Under the Peace Treaty of April, 1952, Japan formally renounced all right, title and claim to Formosa and the Pescadores; but again this did not operate as a transfer to Chinese sovereignty, whether to the People's Republic of China or to the Chinese Nationalist authorities. Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the de jure sovereignty over which is uncertain or undetermined.”  (Note 13)

 

   France held a similar view concerning the issue. As reported in The New York Times (April 24, 1964), the then Premier Georges Pompidou maintained that as a result of the Treaty of Peace in which Taiwan was detached from Japan, but it was not attached to anyone, its legal status became undetermined. A U. N. representative of Ireland went further in the 21st Session of the U. N. General Assembly to state as follows:

   "We believe that the Chinese have as little right to pretend that the nation of Formosa is an integral part of the state variously referred to as 'China', the 'Republic of China', and the 'People's Republic of China'. “ (Note 14)

 

   As for Japan, the Yoshida Administration maintained since 1951 the official position of the Japanese Government to regard the status of Taiwan as undefined. Later the Ikeda Administration also continued to maintain the same stand and Prime. Minister Ikeda himself made this point clear at the blouse of Representatives Budget Committee on February 29, 1964 (Note 15). The Sato Administration which succeeded from Prime Minister Ikeda was closely attached to the ROC but at the question of Taiwan's legal status viewed strictly from the viewpoint of international law and often declared that the status of Taiwan was not yet determined. In fact some opposition parties, notably the Japan Democratic Socialist Party, also share the same view. It is note-worthy that members of the opposition parties, other than the DSP, have spoken in a similar tone at the Japanese National Diet. Though the views of the opposition parties have been changed in recent years, we introduce below for reference their viewpoints in 1952 or thereabouts:

 

   Hisao Kuroda, M. P. (Labor and Farmers' Party) At the Committee for    Foreign Affairs, House of Representatives, May 23, 1952:

"Taiwan and the Pescadores are at present terra nullius (unclaimed territories). The sovereignty or territorial rights of the Republic of China does not exist in Taiwan and the Pescadores. Article II (b) of the San Francisco Peace Treaty or Article II of the Treaty of Peace between the ROC and Japan only provides that these areas have left the sovereignty of Japan, and its eventual status has not yet been defined. That is how we look at the matter. It is true that the Cairo    Declaration touches upon the status issue, but it only sets out how it is expected to be. Some concrete treaty must be introduced to finalize it. ‘ (Note 16)

 

Richard W. Hartzell comments: The statement that Taiwan and the Pescadores” were “terra nullius” at any time after WWII indicates a severe misunderstanding of the meaning of the term “terra nullius” and its usage under international law.

 

   Yobun Kaneko, M. P. (Japan Socialist Party Lobby No. 4 'Left'.) At the Committee for Foreign Affairs, House of Councilors, June 13, 1952:

"It is very doubtful if Taiwan can be called 'China'. It might in due course be annexed to China by the Cairo and Potsdam Declarations, but it is not a Chinese territory at the present moment. The same applies to the Taiwanese' contention that it belongs to them. As you know Taiwan was invaded by China in 1683 and before that it had been an independent state at one time and under Japanese rule at another. In the present circumstances Taiwan is neither a Chinese territory nor a Japanese territory. So the Taiwanese are neither Japanese nor Chinese. From this point of view the Taiwanese people observe February 28th as their Independence Day and keep up their independence movement. “ (Note 17)

 

   Satoko Toganou, M. P. (Japan Socialist Party) The Standing Committee for Foreign Affairs, House of Representatives, June 6, 1952:

   "....the status of Taiwan and the Pescadores has not yet been clearly defined..... The status of Taiwan and the Pescadores which Japan had renounced is a matter which should best be left for the Taiwanese people to resolve. The status of Taiwan may be decided through a free and fair plebiscite of the people of Taiwan at their free will to gain independence. Alien governments should not be allowed to come and establish an artificial rule over Taiwan or to distort the situation there.” (Note 18)

 

General Conclusion on the Legal Status of Taiwan in relation to ownership claims by the PRC or ROC

 

   As we have seen, the claim by the PRC and the ROC that Taiwan is a state territory of "China" has no legal basis. What we see is a naked ambition for territorial gains. We may justly say in conclusion that historically Taiwan is not an inherent possession of China but a land which belongs to the Taiwanese who have lived there for centuries. Postiliminium shout be rightly limited to restoring the state territories immediately prior to the outbreak of the war. Any attempt to go farther back beyond this point would only creates fresh disputes and, therefore, is not recognized by international law. In the case of the War between the ROC and Japan, it should be properly limited to restoring the state territories existing at the outbreak of the Sino-Japanese Incident in 1937 or, at most, the Manchurian Incident in 1931. It would be improper to go as far back as the War between the Ch'ing and Japan in 1895. If it were possible to go back indefinitely, we could even turn back to l683 the downfall of the Koxinga dynasty, the ruined country of the Taiwanese. Japan's possession of Taiwan was established after legal procedures on the transfer of Taiwan between Japan and the Ch'ing in 1895. Therefore, even if the Declaration of War against Japan of 1941 and the provisions of the Treaty of Peace between the ROC and Japan of 1952 invalidated the Sino-Japanese Peace Treaty' of 1895, Japan's possession of Taiwan, which had already been effected, could not be annulled. It should then follow that the invalidation of the Sino-Japanese Peace Treaty does not automatically make Taiwan a territory of "China". The Cairo Declaration only indicates a direction of action and clove not bind its signatories. In the Instrument of Surrender Japan accepted the declaration, but later in the two treaties of peace, Japan reached an agreement first with forty-eight countries including the United States and later with the ROC without nicking any reference to the status issue. The Mutual Defense Treaty between the U. S. and the ROC of 1954 does not by nature bind other nations, and, what is more, even this treaty does not clearly define Taiwan as a state territory of the ROC. It is a fact that the ROC has maintained an effective control of Taiwan since October 1945, but a number or countries have expressed doubt over the ROC's de jure possession of Taiwan.

 

  Under the Insular Cases of 1900, the US Supreme Court ruled that where the United States is the principal occupational authority, the sovereignty of a limbo cession is held in trust by the United States Military Government (USMG) as interim status. Any ceded territory coming under the administrative authority of the USMG is inalienably endowed with 'basic constitutional rights' by the US Supreme Court. These basic rights are 'life, liberty, and property' of the Fifth Amendment and the basic 'equal protections' of the 14th Amendment. These inalienable rights arise from a territorial status known as "unincorporated territory" and categorically it has expressedly included all of "Occupied Cuba" in the past and only in part at the present location of Guantanomo Bay, Cuba. (See Neely v. Henkel) "Gitmo" is currently a US military base, but the land itself is also an unincorporated territory stemming from its "cession" under the US-Cuban Treaty of 1934 (and reaffirmed in 1963). Even if this Cuban 'cession' is only 'undetermined', or just under the direct effective territorial control of the USA as the courts described it in 1994, it still currently enjoys these basic constitutional rights in US Courts stemming from its valid constitutional status. Residual claims of their territorial sovereignty by Cuba or China have little legal effect upon the status of unincorporated territory, as it is a constitutional firewall against these very claimants. The basic civil rights of ceded areas originated from the very same rights of Chinese aliens residing under the Chinese Exclusion Act. The "human rights" of TRA are not undefined and the time is ripe for their Congressionally mandated enhancement.

 

Notes:

 

1. Ng Yuzin Chiautong, "Japan's Occupation of Taiwan: Her Internal and International Measures (1)", The Journal of International Law and Diplomacy, LXIX/2 (July 1970), pp. 89-90. 0.16 percent is computed by using 2.8 million as the total population of Taiwan in 1897.

 

2. In regards with this point, refer to Ng Yuzin Chiautong, A Study on the Republic of Formosa 1895, (Univ. of Tokyo Press, 1970).

 

3. By 1955 the People's Republic of China had built up her capacity to invade Quemoy and Matsu, but until today, she showed no intention of doing so. It is because Chiang Kai-shek's loss of Quemoy and Matsu would only create a "Taiwanese regime" and thus help consolidate the "One Taiwan One China" argument.

 

4. The writer often finds that various statements and documents of foreign governments use the term "Formosa and the Pescadores" to mean "Taiwan (Formosa)". In such documents the writer will retain their usage, instead.

 

5. Manchuria State Dept., Ta Ch'ing Shih-chung Hien Huang-ti Shih-lu (Record of Emperor Shih-chung of the Great Ch'ing), (Hsin-ching, 1937), Vol. 20, p.20.

 

6. Lien Ho pao (United Daily News, Taipei), May 12, 1971.

 

7. The 13th National Diet, House of Councilors, Standing Committee Record, Vol. 5, no. 33, p. 2.

 

8. The 13th National Diet. House of Representatives, Standing Committee Record, Vol. 4, no. 26, p. 34

 

9. Ibid., Vol. 4, no. 25, p. 25.

 

10. Ibid., Vol. 4, no. 28, p. 7.

 

11. After June, 1954 onward, the Government of Chiang Kai-shek ceased, in the light of national law, to represent its own present state territories, Quemoy and Matsu, and the nationals there, not to mention the Chinese mainland and its nationals, For the terms of office of the members of the National Assembly, the slowly which elects President, had expired and never been re-elected, Chiang Kai-shek extended indefinitely the terms of office of such assembly members and had them elect him President, This is, of course, illegal.

 

12. U.S. Congressional Record-Senate, Vol. 101, Part 1, p. 1381.

 

13. Parliamentary Debates (Hansard), House of Commons, Official Report, Vol. 536, no. 26, written answers, p. 159.

 

14. United Nations General Assembly Provisional, A/PV. 1479 (November 28, 1966), p. 5.

 

15. The 46th National Diet, House of Representatives, Standing Committee Record, Vol. 11, no. 17, p. 16.

 

16. The 13th National Diet, House of Representatives, Standing Committee Record, Vol. 4, no. 26, p. 33.

 

17. The 13th National Diet, House of Councilors, Standing Committee Record, Vol. 5, no. 40, p. 3.

 

18. The 13th national Diet, House of Representatives, Standing Committee Record, Vol. 4, no. 30, p. 14.

 

19. The New York Times, April 24, 1964.