Sat, May 09, 2009 - Page 8 News List

Taiwanese statehood has a legal justification

By Lin Chia-lung 林佳龍

The Treaty of Peace between the Republic of China and Japan, commonly known as the Treaty of Taipei, was signed and came into effect in 1952. In considering the legal aspects of this treaty, it is essential to distinguish between the questions of jurisdiction over the territory of Taiwan and the legal status of the Republic of China (ROC).

While the former concerns a territorial dispute under international law, the latter is a matter of the nature of states and governments. The issues are quite different.

The Treaty of Taipei confirmed the terms of the 1951 San Francisco Peace Treaty. It could not lay down terms exceeding those in that treaty. In both treaties, Japan renounced its claim to the territories in question. The Treaty of Taipei does not mention to whom those territories would be transferred.

President Ma Ying-jeou’s (馬英九) opinion that the treaty confirmed the transfer of sovereignty over Taiwan and Penghu (the Pescadores) to the ROC simply does not comply with the facts.

From a legal point of view, the main point of the Treaty of Taipei was to deal with the question of which government had the right to represent China. According to the wording of the treaty, Japan signed it with “the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores),” as opposed to the People’s Republic of China (PRC) government in Beijing.

By this wording, Japan made clear that the Chinese government it recognized was the one that then represented China in the UN — the ROC.

The situation now is quite different. The world largely accepts the principle of “one China” championed by the PRC government in Beijing. Those who claim that Taiwan belongs to the ROC reduce the Taiwan question to one resulting from the division of China through civil war.

These days there is no longer any question of two Chinas existing side by side, and the PRC is widely recognized as the successor state to the ROC.

That being the case, those who equate Taiwan with the ROC are actually providing the government in Beijing with justification for claiming the right to inherit ownership of Taiwan.

Another school of thought holds that Taiwan’s sovereignty remains undetermined — an argument that has some legal validity. However, no other country lays claim to sovereignty over Taiwan. The ROC has exercised effective and stable rule over Taiwan for many decades. On these grounds, the ROC may claim ownership of Taiwan based on the principles of prescription and effective rule in international law.

If that be the case, and given that, as already mentioned, the PRC is successor to the ROC, then the former would have legal grounds for taking over Taiwan.

Both theories on Taiwan’s sovereignty — that it is undetermined and that it has been returned to China — treat Taiwan in the same way as when dealing with changes of territorial demarcation between international legal entities (states or international organizations).

In fact, Taiwan is not the object of a territorial dispute between China and any country.

The question is one of establishing Taiwan as a country in itself. It is not necessary for the inhabitants of Taiwan to first prove that Taiwan does not belong to China or that its legal status is undetermined as a precondition for declaring independence.

Just as with the US long ago, the inhabitants of Taiwan only need to clearly and unambiguously state their desire to establish a new state. Such a declaration would have a firm basis and justification in international law.

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