The Treaty of Taipei is a pact between Japan and countries that are not signatories to the San Francisco Peace Treaty (SFPT). Article 26 states: “Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty.”
Article 10 of the Treaty of Taipei states that “nationals of the Republic of China [ROC] shall be deemed to include all the inhabitants and former inhabitants of Taiwan.” This is a definition of terms, not a decision on sovereignty.
Taiwanese were forced to adopt ROC citizenship in 1946, but the Fourth Geneva Convention states that occupation transfers administrative rights, but not sovereignty, “quasi-sovereignty” or national title.
The SFPT could not include a decision on territory conflicting with basic principles of international law. Based on the principle of self-determination, Japan’s renouncement of Taiwan and Penghu transferred that territory to Taiwan.
China’s interests are stipulated in Article 10 of the SFPT and Article 5 of the Treaty of Taipei. Treaties invalidated following the war did not include the Treaty of Shimonoseki, which was not signed by the ROC.
Article 42 of the Vienna Convention on the Law of Treaties states that a treaty can only be terminated by applying treaty provisions or the Vienna Convention. Article 43 states that a treaty losing validity does not impair the duty of a state to fulfill treaty obligations to which it would be subject under international law independently of the treaty. This shows that the Treaty of Shimonoseki is customary law.
Chiang Kai-shek (蔣介石) accepted Japan’s surrender in Taiwan as the representative of the allied powers. But Taiwan was not uninhabited, therefore a claim of first occupation was never possible. Furthermore, with violent rule there is no peaceful occupation, thus a claim to the acquisition of sovereignty after a certain amount of time could not be valid. International law does not recognize occupation of territories by the use of force, which is precisely why Japan renounced Taiwan.
In The Creation of States, James Crawford, a professor at the University of Cambridge, writes that although Taiwan has the prerequisites to be recognized as a state, it has not been recognized because it has not declared itself an independent nation, separate from China.
This means that although Taipei may have proposed the “special state-to-state” and the “one country on either side [of the Taiwan Strait]” models and has repeated the old “one China” policy, Taiwan is not, and does not belong to, the ROC.
Japan’s leading authority on international law and a former judge with the International Court of Justice, Shigeru Oda, says the “special state-to-state” and “one country on either side” models only explain Taiwan’s relations with the People’s Republic of China, not with the ROC.
He suggests that there are “two Chinas and one Taiwan,” with Kinmen and Matsu being ROC territory, while Taiwan and Penghu belong to Taiwan.
German academic and International Court of Justice judge Simma Bruno says the ROC exercises sovereignty over foreign territory.
In a book on international law, Taiwanese international law expert Chiu Hung-dah (丘宏達) quotes former US secretary of state John Foster Dulles as saying the legal status of Taiwan and Penghu differs from the outlying islands of Kinmen and Matsu and that the Treaty of Taipei did not return Taiwan to China.
All of this is evidence that the Treaty of Taipei did not transfer sovereignty over Taiwan.
Huang Chi-yao is a visiting researcher at the Max Planck Institute.TRANSLATED BY DREW CAMERON
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