President Ma Ying-jeou (馬英九) said last Monday that the sovereignty of Taiwan was returned to the Republic of China (ROC) based on the Cairo Communique (1943), the Potsdam Declaration (1945), the surrender instrument of Japan (1945) and then-US president Harry Truman’s statement on Jan. 5, 1950.
It is nothing new that Ma and his Chinese Nationalist Party (KMT) tend to ignore the existence of the Treaty of Peace with Japan of 1951, of which Article 2(b) stipulated that “Japan renounces the right, title and claim to Formosa and the Pescadores.”
The question is: why did Japan and the allies agree to use the term “renounce” instead of “cede.” Why was the text not that “Japan cedes the right, title and claim to Formosa and the Pescadores to China.” Why did the treaty leave out the question of “to whom.”
Is there another explanation based on international law rather than the fact of anti-communist Cold War confrontation, in which China was an enemy, that the allies should not give Taiwan to?
To get the whole picture, we need to go back to 1895, when Japan defeated the Qing empire in the First Sino-Japanese War.
In the Treaty of Shimonoseki, signed on April 17, 1895, the Qing ceded to Japan in perpetuity the full sovereignty of the souther part of Fengtien Province as well as Formosa and the Pescadores (known collectively today as Taiwan). The transfer immediately triggered a diplomatic crisis, known as the Triple Intervention. Russia, Germany and France submitted a “three-point note” to Japan on May 30, which strongly opposed the transfer. They were deeply concerned over the impact of the transfer of the southern portion of Fengtien; the re-cession of Taiwan, and free navigation through the Taiwan Strait.
After months of repeated diplomatic efforts, Japan accepted and recognized the following:
Japan, under international pressure, concluded a separate treaty with the Qing government on Nov. 8, 1895. The Qing agreed to give Japan 30 million kuping taels of silver in exchange for the southern portion of Fengtien that was ceded to Japan in the Treaty of Shimonoseki.
As far as the other two points, the “free navigation of the Taiwan Strait” and the “re-cession of Taiwan” were concerned, the Japanese Cabinet finalized the text of a declaration which can be translated as “Third. The Imperial Government examined the requests of the three governments and considered the interests of international commerce and hereby declare as follows: the Imperial Government recognizes that all portions of the Taiwan Strait should be a public channel, which does not pertain to Japan and does not fall under the jurisdiction of Japan. The Japanese Imperial Government also agrees that Japan should seek no -cession of Taiwan and the Pescadores to other countries.”
Japan formally sent -notification of the declaration to the envoys of nine countries, namely Russia, Britain, Germany, France, the US, Italy, Austria-Hungary, the Netherlands and Korea.
The “no cession of Taiwan” and “free navigation of the Taiwan Strait” were the Japanese commitments to the international community and have become a part of international law. A diplomatic commitment remains in effect unless it is otherwise revised by another legal document. Any new document needs the consent of the associated states to make it legitimate under international law. No government is allowed to void it without the due process mentioned above.
In fact, we can find that Japan’s adoption of the phrase “renounce Taiwan” instead of “cede Taiwan” in the Treaty of Peace with Japan of 1951 was in fact meant to honor the “no--cession commitment” of 1895 in a round about way. Of course, the allies concurred.
A review of the history of the Triple Intervention of 1895, makes clear that anychange in the status change of Taiwan is not merely an issue of territorial sovereignty, it also relates to the nationality of those who live on Taiwan. It may also affect the free navigation of merchant ships and war vessels sailing through the Taiwan Strait.
Freedom of navigation on the high seas is a principle that was established in the 17th century by Hugo Grotius. It has now become a core element of the UN Convention on the Law of the Sea.
Now let’s look back at The Associated Press (AP) interview with Ma on Oct. 19. AP reported that, “Taiwan’s Ma moves ahead with China” in which “Ma said his government is prepared to discuss political agreements, including security issues, as soon as the priority economic issues are dealt with” and he “suggested that those political talks could start as early as a second four-year term if he wins re-election in 2012.”
However, international law does not allow the Taiwan issue to become a bargaining chip in secret talks by the so-called “two sides across the Taiwan Strait.”
Any dialogue must be held under the supervision of the international community and the people of Taiwan, particularly the parties to the Treaty of Peace with Japan of 1951. The results of such dialogue need the concurrence of those other countries as well as the consent of the Taiwanese. Academics and political leaders, including the leaders of the American Institute in Taiwan and even US State Department, officials should explore the Japanese commitments in 1895 before they comment any further on the political dialogue between Taipei and Beijing.
HoonTing is an independent Taiwanese researcher focusing on the issue of Taiwan’s status.
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