Fri, Jun 16, 2000 - Page 12 News List

Rethinking the legal status of Taiwan

By Lloyd Fan 范盛保

The legal status of Taiwan has long been the subject of debate.

First of all, the 1943 Cairo Proclamation -- on which the ROC's claim to Taiwan rests -- was "expressed" by the military missions of the Allied powers instead of heads of government.

Thus, it is clear that it is only a statement of intention and not a legal document in a formal sense. Likewise, the Potsdam Proclamation of 1945 -- which also related to the legal status of Taiwan -- was also only another statement of intention.

When these two proclamations were issued, Japan was the legal occupant of Taiwan based on the 1895 Shimonoseki Treaty. Japan then had acquired a de facto title over Taiwan and had not yet surrendered to the Allies, nor was it involved in the arrangement of the two proclamations. Thus, the two proclamations were unilateral statement of intentions which excluded Japan's involvement.

Second, the San Francisco Peace Treaty and peace treaty between Japan and Taiwan are international agreements, which should prevail over the declarations. These treaties did not specify who would be the beneficiary of Taiwan and its associated islands.

The decision to keep Taiwan's status undetermined was deliberate. As indicated by the British delegate at the Japanese Peace Conference, at which the treaty was concluded:

"[T]he future of Formosa was referred to in the Cairo Declaration but that Declaration also contained provisions in respect to Korea, together with the basic principles of non-aggression and no territorial ambition. Until China shows by her action that she accepts those provisions and principles, it will be difficult to reach a final settlement of the problem of Formosa.

"We therefore came to the conclusion that the proper treatment of Formosa in the context of the Japanese peace treaty was for the treaty to provide only for renunciation of Japanese sovereignty."

Since neither the PRC nor ROC was the beneficiary in the peace treaties terms, it is arguable that the legal status of Taiwan has been determined.

Third, when Japan surrendered in 1945, General Douglas MacArthur authorized the KMT to accept the surrender of Taiwan from the Japanese and to temporarily undertake the military occupation of the island on behalf of the Allied Powers. In international law, the mere occupation of enemy territory in the course of war does not make it the territory of the occupying belligerent -- which does not gain sovereignty.

Hence, the KMT did not acquire sovereignty over Taiwan either in 1945 or in 1951, when the San Francisco Treaty was signed. This view was espoused by the British government among others.

It was put in the following way, for example, by Sir Anthony Eden in a written reply in 1955: "[I]n September 1945, the administration of Formosa was taken over from the Japanese by 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 arrangements made with Chiang Kai-Shek (蔣介石) put him there on a basis of military occupation pending future arrangements, and did not of themselves constitute the territory Chinese."

Taiwan's undetermined status was resolved in 1991 when it gave up claiming sovereignty over mainland China, which makes it clear that its defined territory is limited to the Taiwan area. The ROC's occupation has been legitimized by the past decade's democratization, which has allowed people to decide the future of their territory.

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