In terms of international law, Taiwan has not been a part of China since 1895. Taiwan has become a country through a continuous process of evolution. In the process of democratization and Taiwanization -- and thanks to the effective self-determination of its people -- Taiwan has evolved from a territory under military occupation following World War II to a country with the sovereignty and independence of a nation-state. This theory of Taiwan's evolution into a state conforms to historical developments, changing political conditions and the dynamic character and principles of international law. I support this theory of evolved nationhood, which I described previously on this page ("The evolution of Taiwan's statehood," Aug. 9, page 8).
There are other theories regarding Taiwan's international legal status in addition to the evolutionary theory of statehood.
One theory is that Taiwan is part of China. This is what the People's Republic of China (PRC) argues, citing history, the Cairo Declaration, the Potsdam Declaration, succession to the Republic of China (ROC), UN General Assembly Resolution 2758, and that "Taiwan is an internal affair of China," to support its position.
Yet Beijing's argument fails the tests of both reality and international law, for the following reasons.
One, Taiwan has been fought over by foreigners for hundreds of years, while the Taiwanese have battled for their existence and self-governance. There have been the indigenous peoples and the Han Chinese, the Dutch and Spanish colonial empires competing over Taiwan, Cheng Cheng-kung's (鄭成功) family dynasty, the nominal rule of the Qing dynasty (which ceded Taiwan to Japan shortly after making it a province), the brief establishment of the Republic of Formosa, 50 years of Japanese colonial rule and the military occupation following World War II.
Taiwan has evolved into a sovereign and independent nation. Clearly, Taiwan has not been "an inseparable part of China since ancient times."
Two, as for ownership of Taiwan's territory, the Cairo and Potsdam declarations were overridden by the 1951 Treaty of San Francisco with Japan. The Taiwan that Japan gave up in the treaty, including the Penghu Islands, belonged to neither the PRC nor the ROC. No wonder Beijing has avoided bringing up the treaty, which carries the most weight in international law.
Three, when the PRC was established on Oct. 1, 1949, the ROC had "militarily occupied" Taiwan on behalf of the Allied forces but not acquired sovereignty over or ownership of Taiwan. It is impossible for the PRC -- nor does it have the right -- to inherit powers that the ROC never had.
Four, UN Resolution 2758 does not accede that Taiwan is a part of the PRC.
Five, since its founding the PRC has never effectively controlled, ruled or exercised jurisdiction over Taiwan. By international law, Taiwan is not an "internal affair of China" but a question of international concern.
Taiwan and the PRC are two different countries, therefore the dispute over Taiwan's legal status involves interpretations of international agreements and international law; the PRC's threats toward Taiwan jeopardize peace in the Asia-Pacific region and the world; China's "Anti-Secession" Law violates international law; and Taiwan's future involves the effective implementation of the principles of self-determination enshrined in international law, and will affect the fundamental human rights and wellbeing of 23 million Taiwanese.
The second theory about Taiwan's international status is that it was left undetermined. According to the Treaty of San Francisco, which took effect in 1952, Japan officially gave up all rights, title and claims over Taiwan. Yet the treaty did not stipulate who Taiwan would belong to.
Thus, Taiwan does not belong to China, and its international legal status is still undetermined.
The ideal way to resolve this problem is to apply the principle of self-determination of the people stipulated in the UN Charter by holding a national plebiscite under the auspices of the UN and let the people of Taiwan decide. But international and domestic political constraints have prevented this from happening. Therefore, there are still many proponents of this theory today.
The third theory is that Tai-wan's position was undetermined in the past and remains undetermined now. Some say Taiwan is still under the military occupation of the ROC; some say the US has sovereignty over Taiwan because it was the main victor over Japan; still others think sovereignty over Taiwan belongs to the Taiwanese people, but that Taiwan still is not a country because the ROC has not ceased to exist and the Taiwanese government has not declared independence.
This theory is a rigid interpretation of international law, and ignores that the formation and application of international law is dynamic. There have been major developments worldwide since 1952, just as there have been in Taiwan. Taiwan's international position cannot be frozen as if it were still 1952.
As Taiwan's international position has evolved from undetermined to determined, the expression of the Taiwanese collective democratic has played a crucial part in the successes Taiwan has achieved.
Even if Taiwan's position remains undetermined and it continues to be occupied by the ROC, one cannot ignore the reality that the ROC has undergone "Taiwanization" which has changed the nature of its military occupation.
The US never advocated having sovereignty over Taiwan after Japan gave it up at the end of the war. The Taiwan Relations Act treats Taiwan practically as a country.
Since Japan gave Taiwan up, the assertion that sovereignty belongs to all of its residents conforms to the principles of sovereignty being in the people and self-determination enshrined in international law.
Is the ROC extinct? When did it die? Opinions are especially divided on this issue. As Taiwan has evolved into a sovereign nation, it is worth considering whether or not it needs a US-style declaration of independence. Applying to become a member state of the UN using the name "Taiwan" is both in form and substance an active declaration that Taiwan is a sovereign and independent country.
The fourth theory is that Tai-wan has de facto independence, but it still does not have de jure independence.
The standards for differentiating between de facto and de jure independence are quite vague. Is it determined by the quality and size of the countries that recognize the country? Or what degree of universal recognition must be reached before a country has de jure independence? From the examples of the more than 100 countries that have achieved independence over the past half century, this kind of differentiation has become meaningless.
According to international law, countries enjoy sovereign equality and independence regardless of their size, strength, wealth, which countries recognize them or how many diplomatic allies they have.
Taiwan has evolved from an occupied territory into a country, but it is still not a normal country. The reality is that Taiwan represents our state and the "Republic of China" is an illusory title which creates divisions in national identification and makes it more difficult for Taiwan to progress internationally. The international community uses the name "Taiwan" but objects to Taiwan's government and its people using that same name, which is utterly unreasonable.
Taiwan needs to normalize itself. Turning Taiwan into a normal country both in name and in fact is the true path for Taiwanese to follow.
Chen Lung-chu is chairman of the Taiwan New Century Foundation, president of the Taiwanese Society of International Law and a law professor at New York Law School.
Translated by Marc Langer
George Santayana wrote: “Those who cannot remember the past are condemned to repeat it.” This article will help readers avoid repeating mistakes by examining four examples from the civil war between the Chinese Communist Party (CCP) forces and the Republic of China (ROC) forces that involved two city sieges and two island invasions. The city sieges compared are Changchun (May to October 1948) and Beiping (November 1948 to January 1949, renamed Beijing after its capture), and attempts to invade Kinmen (October 1949) and Hainan (April 1950). Comparing and contrasting these examples, we can learn how Taiwan may prevent a war with
A recent trio of opinion articles in this newspaper reflects the growing anxiety surrounding Washington’s reported request for Taiwan to shift up to 50 percent of its semiconductor production abroad — a process likely to take 10 years, even under the most serious and coordinated effort. Simon H. Tang (湯先鈍) issued a sharp warning (“US trade threatens silicon shield,” Oct. 4, page 8), calling the move a threat to Taiwan’s “silicon shield,” which he argues deters aggression by making Taiwan indispensable. On the same day, Hsiao Hsi-huei (蕭錫惠) (“Responding to US semiconductor policy shift,” Oct. 4, page 8) focused on
Taiwan is rapidly accelerating toward becoming a “super-aged society” — moving at one of the fastest rates globally — with the proportion of elderly people in the population sharply rising. While the demographic shift of “fewer births than deaths” is no longer an anomaly, the nation’s legal framework and social customs appear stuck in the last century. Without adjustments, incidents like last month’s viral kicking incident on the Taipei MRT involving a 73-year-old woman would continue to proliferate, sowing seeds of generational distrust and conflict. The Senior Citizens Welfare Act (老人福利法), originally enacted in 1980 and revised multiple times, positions older
Nvidia Corp’s plan to build its new headquarters at the Beitou Shilin Science Park’s T17 and T18 plots has stalled over a land rights dispute, prompting the Taipei City Government to propose the T12 plot as an alternative. The city government has also increased pressure on Shin Kong Life Insurance Co, which holds the development rights for the T17 and T18 plots. The proposal is the latest by the city government over the past few months — and part of an ongoing negotiation strategy between the two sides. Whether Shin Kong Life Insurance backs down might be the key factor
RSS