When former president Lee Teng-hui (
When US President George W. Bush, insisted that any resolution of the dispute between Taiwan and the PRC must be supported by the consent of the people of Taiwan, he similarly seemed to simply be voicing basic democratic principles.
In fact, however, these two statements combined constituted a milestone in the evolution of Taiwan's legal status.
Students of US policy toward China and Taiwan are well aware of then-president Harry Truman's statement in 1950 that Taiwan's status remained to be determined. But they didn't pay much attention to the fact that, technically, the San Francisco Peace Treaty with Japan failed to settle the issue of Taiwan's sovereignty.
"No provision has been made either in the San Francisco Treaty or the Sino-Japanese Treaty as to the future of Taiwan and Penghu," the late foreign minister George Yeh (葉公超) explained to the Legislative Yuan.
"In fact, we control them now, and undoubtedly they constitute a part of our territories. The delicate international situation, however, means that they do not belong to us. In these circumstances, Japan has no right to transfer Formosa [Taiwan] and the Pescadores [Penghu] to us. Nor could we accept such a transfer from Japan even if she wished to do so," Yeh added.
This was one of the statements cited by legal experts at the US State Department to support their position that, legally, Taiwan's sovereignty remained undetermined.
In declassified State Department files, I have found two memoranda concerning the legal status of Taiwan. One was an analysis written in 1961 by John Czyzak, legal adviser at the Far East Affairs Bureau. The other was a rewriting in non-technical language, by Robert Starr in 1971, of Czyzak's analysis.
According to Czyzak's study, four legal theories had been advanced concerning the status of Taiwan and Penghu. The first was that sovereignty over the islands of Penghu had not been finally determined. The second was that they belonged to the ROC. The third was that the islands belonged to China. The fourth was that the islands now formed a condominium belonging either to the victorious parties of World War II or to the parties to the Japanese Peace Treaty.
At the end of his lengthy anal-ysis, Czyzak concluded, "The most tenable theory regarding the status of Formosa and the Pescadores is that sovereignty over the islands has not been finally deter-mined." The conclusion was restated in Starr's memorandum in 1971 and accepted as the legal and political position of the US.
In fact, Charles Bray, the then spokesman for the State Department, repeated this position on April 28, 1971. And in preparations for the normalization of relations with the PRC, John Stevenson, legal adviser at the State Department, wrote a memorandum to Marshall Green, assistant secretary of state, on Nov. 12, 1971, in which he stated that, "Since the 1952 Japanese Peace Treaty, the United States has taken the position that [the] status of Taiwan is undetermined, subject to some future international resolution. That position has been stated publicly from time to time."
According to Stevenson, such a position has formed an important legal basis for the mutual defense treaty with Taiwan and "a potential legal basis for Taiwan Independence if that should ever become a realistic possibility."
Stevenson didn't realize that Henry Kissinger, national security advisor to late president Richard Nixon, had already assured then-Chinese premier Zhou Enlai (周恩來) during his secret visit to Bei-jing that the US government would never repeat Bray's statement.
Nixon made the same promise in conversations with Zhou in 1972. "There will be no more statements made, if I can control our bureaucracy, to the effect that the status of Taiwan is undetermined." Even though Nixon and his successors have indeed succeeded in silencing the bureaucracy on this issue, the validity of Czyzak's legal analysis cannot be denied.
According to Czyzak, Taiwan and Penghu might eventually belong to a single state of China; the state of the ROC as it had been left as a result of the Chinese civil war; or a new state.
"The decision can be made through agreement by the countries that were victorious in World War II or by agreement of the parties to the Peace Treaty, through a plebiscite or through international recognition of the continued occupation by an authority claiming full sovereignty," he wrote.
That is why Lee's statement of "sovereignty residing in the people" was a milestone in the evolution of Taiwan's legal status. Since the ROC has been "Taiwanized" through democratic pro-cesses, even if it is not a new state, it is a separate state from the PRC and its claims of sovereignty over Taiwan are the most tenable.
In that sense it is especially heartening to have heard Bush solemnly state that the resolution of disputes between Taiwan and the PRC must be supported by the consent of the people of Taiwan. This is the best he can say short of recognizing Taiwan as a sovereign state.
Clearly, Bush is in tune with Lee's view that sovereignty resides in the people.
James Wang is a Washington-based journalist.
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