ROC not legitimate
James Wang (王景弘) asserts that the exiled Republic of China (ROC) has developed into a “representative, legitimate constitutional government” and therefore should be diplomatically recognized by the US (“US should reconsider the status of Taiwan,” Dec. 23, page 6).
Wang no doubt consulted the San Francisco Peace Treaty of April 28, 1952, whereby Japan renounced its sovereignty over Taiwan. Before that date, Taiwan was still part of Japan’s sovereign territory, although under belligerent occupation, as confirmed in a March 1949 CIA report (“CIA report shows Taiwan concerns,“ June 9, 2013, page 1).
The description of the “ROC government in exile” necessarily follows from the fact that when the ROC moved its central government to occupied Taiwan in early December 1949, it was moving outside of China’s national territory.
However, I find Wang’s analysis somewhat confusing. Please allow me to clarify some relevant points that Wang appears to have missed.
A government in exile does not have sovereignty. By clarifying the status of the ROC in Taiwan under the treaty, we can clearly see that there was no Taiwan Retrocession Day, and Taiwan remained a sovereign Japanese territory during the mid to late 1940s and early 1950s. The date of Oct. 25, 1945, only marked the beginning of the military occupation.
Given these facts, we are forced to conclude that Taiwan has never been incorporated into China’s national territory. Importantly, this means that there is no legal basis for the promulgation of the ROC Constitution in Taiwan, nor for the establishment of an ROC government structure in Taiwan.
Moreover, international law does not recognize any actions, methods or procedures whereby a government in exile can become the legally recognized government of its current locality of residence. There is no scheme or routine that could enable the exiled ROC government to be transformed into a “representative, legitimate constitutional government” in Taiwan. The solution lies elsewhere. To speak more plainly, for the ROC government to reobtain full legitimacy, it would have to return to Nanjing, China, and resume governance there.
When talking to US officials, it is helpful to keep these points in mind. Additionally, it must be stressed that the treaty has a higher legal weight than the Three Joint Communiques, the Taiwan Relations Act and the “one China” policy. Neither the treaty, nor the Aug. 5, 1952, Treaty of Taipei awarded Taiwan to China. This was confirmed many years ago by official US Department of State memoranda on the “Legal Status of Taiwan,” issued in 1961 and 1971.
Unfortunately, current department and American Institute in Taiwan officials seem unaware of these previous legal conclusions, as they still require Taiwanese to hold a “Republic of China” passport to complete US Customs procedures. Such a requirement causes US Customs and Border Protection officials to accept both “People’s Republic of China” and “Republic of China” passports as valid travel documents, in direct contravention of the US’ often-touted “one China” policy.
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