On April 17, 1895, the Qing Dynasty signed the Treaty of Shimonoseki with Japan, agreeing to cede “to Japan in perpetuity and full sovereignty ... the island of Formosa [Taiwan], together with all islands appertaining or belonging to the said island of Formosa, the Pescadores Group, that is to say, all islands lying between the 119th and 120th degrees of longitude east of Greenwich and the 23rd and 24th degrees of north latitude.”
According to the acquisition of sovereignty principle recognized by international law at the time, Taiwan had become a legal part of Japanese territory. Taiwan remained de jure a part of Japanese territory until Oct. 25, 1945, when the Taiwan Army of Japan surrendered to the highest Allied commander in the China Theater and the Allies agreed to its occupation by the Republic of China (ROC).
Taiwanese became the people of a defeated nation ruled by Allied forces.
The Berlin Declaration issued in 1945 by the Allies, which addressed the situation in occupied nations, along with resolutions issued by the UN General Assembly and UN Security Council, said occupying nations were not allowed to directly annex the territory of defeated nations. Hence, the ROC government had no right to “reclaim” or “restore” Taiwan.
Some people have argued that when the Treaty of Taipei was signed on April 28, 1952, the occupation ended, and since Japan renounced Taiwan, the ROC government could claim sovereignty over Taiwan because it was the first to annex terra nullius — “nobody’s land” — Taiwan.
However, the concept of terra nullius has long been rejected internationally because it runs counter to the right of nations to self-determination. Moreover, the ROC did not sign the Treaty of San Francisco, which formally ended the war between Japan and the Allies, and therefore had no right to unilaterally abrogate the Allies’ order to occupy Taiwan. However, after 70 years, Taiwan continues to be under the occupation of the ROC government.
Taiwanese, the people of a nation that was defeated 70 years ago, face two issues. The first concerns the occupying power’s obligation to abide by the Hague Convention, the Geneva Convention, the Convention for the Protection of Cultural Property in the Event of Armed Conflict and other international humanitarian laws.
After its occupation of Taiwan in 1945, the ROC government set up the Taiwan Provincial Administrative Executive Office and the Taiwan Provincial Police Administration, imposed military rule and martial law, annulled the Japanese laws observed in Taiwan at the time, unjustifiably levied and appropriated Taiwanese property, demolished or destroyed buildings and public facilities built by the Japanese, provoked the 228 Incident, massacred Taiwanese and subjected them to political persecution until martial law was lifted, all of which were international criminal offenses in violation of humanitarian law and the Convention on the Prevention and Punishment of the Crime of Genocide.
Taiwanese should swiftly hold the principal criminal, the Chinese Nationalist Party (KMT), responsible and demand the establishment of a special International Criminal Tribunal to put the transgressors on trial and mete out punishment.
The second issue concerns the ROC’s legitimacy as a government — which after UN General Assembly Resolution 2758 was passed in 1971, was forfeited and replaced by the People’s Republic of China — and, in particular, President Ma Ying-jeou’s (馬英九) relentless attempts to conclude an agreement to govern Taiwan with the Chinese government, which will result in the ROC’s occupation of Taiwan passing into the hands of China.
Taiwanese must seek self-determination and independence as soon as possible and free Taiwan from occupation by a foreign power.
As Ma continues to put on a show with Beijing to boast of what they say is China’s victory in World War II — a term humiliating to Taiwanese — people must seriously address the two issues, exercising the right to self-determination and obtaining legal independence — something that has been delayed for 70 years — charge the KMT with the international crimes it has committed in Taiwan since 1945 and stop supporting the “status quo.”
Otherwise, the utter defeat of Taiwanese is on the cards.
Chris Huang is an associate professor in National Tsing Hua University’s Institute of Law for Science and Technology.
Translated by Ethan Zhan
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