The draft guidelines for the high school history curriculum recently announced by the Ministry of Education have sparked controversy. The part of the curriculum on Taiwan history prompted discussions about the San Francisco Peace Treaty and Cairo Declaration, among other agreements.
After World War II, the legal status of Taiwan was "undetermined." However, after close to 60 years of evolution, the legal status of Taiwan has been "determined."
Today, Taiwan is an independent sovereign country -- although not yet a "normal" country. The treaties and documents relevant to this process of evolution need to be explained from the perspective of public international law.
The San Francisco Peace Treaty is the most authoritative international treaty when it comes to defining the territory of defeated Japan after the World War II. The legal force of this treaty surpassed and replaces the Cairo Declaration and Potsdam Declaration. In the 1943 Cairo Declaration, the heads of the state of the US, Great Britain, and China declared their hope that after the end of the World War II Taiwan and Penghu should be returned to China.
The 1945 Potsdam Declaration stated in Article 8 that the agreement in the Cairo Declaration will be followed.
The San Francisco Treaty, which was signed on September 8, 1951 and then came into force on April 28, 1952 explicitly stated that Japan surrendered the sovereignty and all rights over Taiwan and Penghu. However, it did not state which country was the recipient of the rights and sovereignty handed over by Japan. As a result, Taiwan neither belonged to the Republic of China (ROC) nor the People's Republic of China (PRC). The legal status of Taiwan was therefore undetermined at the time.
This is the basis of the claim that Taiwan's status is yet to be determined. The consensus underlying the San Francisco Peace Treaty was that the undetermined status would be decided when the time comes based on principles outlined in the United Nations (UN) Charter, in particular the right to self-determination and opposition against military aggression. For example, when the US and the ROC signed the bilateral joint-defense treaty in 1954, the US secretary of state at that time emphasized that the legal status of Taiwan would be determined at the appropriate time.
The Cairo Declaration and the Potsdam Declaration were political statements jointly issued by the Allies unilaterally prompted by military needs and in the face of expected victory. Japan, which at the time held sovereignty over the territories in question, did not participate in these declarations. Therefore, they had neither legal force under public international law nor the effect of transferring sovereignty.
On the other hand, the post-war San Francisco Peace Treaty had the participation of both the victorious Allies and also defeated Japan. Through the treaty, the holder of sovereignty over Taiwan and Penghu, Japan, explicitly relinquished sovereignty. Unlike that declaration, in this treaty the need to maintain long-term peace and stability was taken into consideration in addition to military needs.
Under public international law, the end of a warring state between countries requires the signing of a peace treaty. The relinquishment or transfer of territories also require treaties as a legal basis. The legal force of the San Francisco Peace Treaty surpassed the Cairo Declaration and overturned that declaration. No wonder that the Chinese government has always emphasized the importance of the Cairo Declaration in taking the position that Taiwan is part of China, while neglecting to make any mention of the San Francisco Peace Treaty.
The Sino-Japan Peace Treaty signed by the ROC and Japan on April 28, 1952 did not change the status of Taiwan. In the process of negotiating the treaty, although the ROC government repeatedly asked Japan to explicitly state that the ROC was the recipient of the sovereignty being handed over, Japan did not comply. Instead, Japan followed the San Francisco Peace Treaty in the provisions dealing with the sovereignty over the territories of Taiwan and Penghu.
Therefore, just like the San Francisco Peace Treaty, Article 2 of the Sino-Japan Treaty contained only a reiteration by Japan of its relinquishment of sovereignty, rights and claims over Taiwan and Penghu. This treaty also failed to state the recipient country.
Before the San Francisco Peace Treaty, no other country, including China, could have legally acquired sovereignty over Taiwan and Penghu. On the other hand, after Japan signed the San Francisco Peace Treaty to relinquish sovereignty, rights and claims over Taiwan and Penghu, thereafter it was no longer in any position to determine the status of Taiwan and Penghu.
Therefore, from the peace treaty signed with the ROC government in 1952, to the joint US-China Shanghai communique of 1972 to the formal US recognition of the PRC in 1979, none said that Taiwan and Penghu belong to the ROC or PRC government.
After Japan surrendered its rights, claims, and sovereignty over Taiwan, Taiwan belonged neither to ROC nor the PRC. It instead belongs to the people of Taiwan. This is the consistent with the principle of self-determination and the inherent power of the people. The right to self-determination -- which became widely accepted after World War II -- emphasized that possession of territory is an issue of survival, human rights and welfare of the inhabitants, and not an issue of a transfer of property.
The theory of absolute sovereignty claimed by the Chinese government essentially states "once part of Chinese territory, always Chinese territory." This is an outdated concept left over from the feudal era, when people were seen as subjects of kings and rulers. This is completely at odds with the spirit and principles of contemporary public international law.
The people of Taiwan have sovereignty over Taiwan. After the war, Taiwan evolved from a land under military occupation by the Allies into an independent sovereign country. It is an ongoing evolution. From the standpoint of public international law, since 1895, when China ceded Taiwan to Japan in the Treaty of Shimonoseki, Taiwan has never been part of the Chinese territory.
Taiwan has become a country through a process of continuous evolution. During this process, Taiwan has experienced a couple of important periods: the Japanese colonial period (1895-1945) and the military occupation by the Allies (1945-1952), ending with the San Francisco Peace Treaty (1952), when Taiwan's status became undetermined after Japan relinquished its sovereignty, rights, and claims over the country.
The 1971 Resolution No. 2758 of the United Nations General Assembly did not resolve the issue of Taiwan's legal status. The exiled Chinese Nationalist Party (KMT) continued its illegal military occupation of Taiwan through authoritarian rule from 1949 through 1987. After the lifting of martial law in Taiwan, the nation underwent political transformation and began a process of nativization and democratization. As a result, from 1988 through 2004, Taiwan has developed its own unique political, economic, social, and cultural systems, fully materializing the right to self-determination of the people of Taiwan.
In the past Taiwan's status was undetermined. However, it has now evolved into an independent sovereign country -- a country that exists independent from the PRC. This is the result of the development of Taiwan's unique political, economic, social and cultural systems, the implementation of the right to self-determination, and the democratization and nativization of ROC.
The "special state-to-state" discourse declared by former president Lee Teng-hui (李登輝) in 1999 and the "one country on each side" declaration issued by President Chen Shui-bian (陳水扁) in 2002 were important testimonies to the nation's evolution into an independent sovereign country.
Taiwan is a country and it possesses all the requirements of statehood: 23 million people, effective and rightful control over the territories of Taiwan, Penghu, Matsu, and Kinmen, a government capable of policy-making, and the power to engage in interactions with other countries of the world.
The root of all the controversy today is this: while Taiwan is an independent country, it is not yet a "normal" country. For Taiwan to become a normal country, three things need to be accomplished:take away the "ROC" banner and rectify the name of the country by making it "Taiwan," draft a Taiwan constitution and become a member of the UN. This is the only way to become a "normal" country.
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