Mon, Mar 16, 2009 page8

• Taiwan’s status must be clarified

  • By Huang Chi-yao 黃啟堯
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  The San Francisco Peace Treaty, also known as the Treaty of Peace with Japan, which came into effect on April 28, 1952, is the most important legal document concerning Taiwan’s sovereign status. Article 2(b) of the treaty states: “Japan renounces all right, title and claim to Formosa and the Pescadores [Penghu].”

  The treaty did not transfer sovereignty over these territories to any country. Article 23 of the treaty clearly identifies “the United States of America as the principal occupying power.”

  Occupation does not transfer sovereignty. It should be pointed out that the peace treaty was based on the UN Charter, and the Treaty of Taipei — the Treaty of Peace between the Republic of China (ROC) and Japan — was based on the San Francisco Peace Treaty. A subsidiary law may not exceed or contravene the scope and content of the parent law. The right of the people of Taiwan to establish an independent state according to the right to self-determination given in Article 1 Part 2 of the UN Charter is not only in keeping with the spirit and purpose of the UN Charter, it also complies with the aims of the San Francisco Peace Treaty and the obligations of the occupying power.

  General Order No. 1 issued by General Douglas MacArthur and approved by then US president Harry Truman on Aug. 17, 1945, assigned the ROC under Chiang Kai-shek (蔣介石) to accept the surrender of Japanese forces on Taiwan on behalf of the Allied Forces. When ROC forces took control of Taiwan on Oct. 25, 1945, Chiang unilaterally declared the “retrocession” of Taiwan to China.

  Then, in 1946, Chiang’s government incorporated the people of Taiwan collectively and without their consent as nationals of the ROC. From 1947 onwards, Chiang’s forces launched a massacre on Taiwan in which many of the island’s elite were killed and imposed martial law and a regime of White Terror. In so doing, Chiang was guilty of war crimes, genocide and other crimes against humanity. In effectively annexing Taiwan, he was also guilty of the crime of aggression.

  The US, as the legally defined principal occupying power, failed to carry out necessary measures of humanitarian intervention and to send the perpetrators to trial in an international court. On the contrary, it recognized Chiang’s exile government on Taiwan and, in 1954, signed the Mutual Defense Treaty with the ROC. The terms of this treaty stated that it applied to Taiwan and the Pescadores, thus giving tacit approval to the ROC’s illegal occupation and rule over Taiwan.

  The US established diplomatic relations with the People’s Republic of China on Jan. 1, 1979, and terminated the Mutual Defense Treaty exactly one year later. In place of the treaty, the US Congress passed the Taiwan Relations Act (TRA). Article 2 B (5) of the TRA obliges the US to “to provide Taiwan with arms of a defensive character,” providing for mutual defense beyond the occupied territories.

  Section 4 B (1) of the TRA places Taiwan under the category of “foreign countries, nations, states, governments or similar entities” instead of defining it as an unincorporated territory, which would be defined as domestic territory under the US Constitution. Section 15 (2) of the TRA defines “Taiwan” as including not only “the islands of Taiwan and the Pescadores [and] the people on those islands,” but also “the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, and any successor governing authorities” — a definition different from the terms of the San Francisco Peace Treaty. By these means, the US apparently condoned the exiled Chinese government’s illegal rule over Taiwan while negating its own legal status as the principal occupying power.

  The concept of “occupation” in the laws of war is based on actual authority exercised by external military forces over a particular territory. In reality, the US never actually exercised its right of occupation over Taiwan, nor did it end its occupation and hand Taiwan back to its people according to its obligations under treaties and international law. This resulted in massive violations of human rights.

  Because the land and people of Taiwan and Penghu do not legally belong to the ROC, Taiwan lacks essential conditions for statehood and its status remains undetermined. It is necessary, therefore, to clarify through a proper process the legal relations between the entities concerned.

  Huang Chi-yao is a visiting researcher at the Max Planck Institute and a consultant in international law.

  TRANSLATED BY JULIAN CLEGG

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