Taiwanese state is an ‘illegal structure’

By Peng Ming-min 彭明敏  / 

Tue, Feb 13, 2018 - Page 8

At a legislative hearing on Jan. 25 to assess his suitability, Control Yuan nominee Chen Shih-meng (陳師孟) touched upon the issue of Taiwan’s legal status when he said: “Taiwan is the name of a geographical area, not a country.”

This question is rarely discussed these days. Perhaps it is too abstract to interest most people, or they think there is no way to change the existing situation, so there is no point in talking about it.

However, if Taiwanese are not even clear about where their government came from, that is a big gap in their knowledge about their own history.

The “government of Taiwan” that has existed since 1945 is just a massive “illegal structure” built on someone else’s land, so other nations cannot recognize it.

When Japan surrendered in 1945, the Allied powers ordered the Republic of China (ROC) to cross over to Taiwan to accept the surrender of the Japanese forces stationed there, just as other Allied members went to Germany and Japan to accept their respective surrenders.

These were all temporary military occupations and international law imposes strict limits on the powers of occupying armies, such as that they cannot change the sovereign status of the occupied territory, collect taxes or impose military conscription.

As soon as the ROC’s Nationalist Army landed on Taiwan, the ROC government declared that Taiwan was part of China. In so doing, it trampled on international law by altering Taiwan’s sovereign status and turning Taiwanese into Chinese citizens.

Japan did not surrender solely to China, but to all the Allies, as shown by the flags of the Soviet Union, the US, the ROC and the UK that hung over the stage at the surrender ceremony in Taipei’s Zhongshan Hall.

When the ROC annexed Taiwan, the UK immediately questioned the move and raised objections. However, nations around the world were too busy rebuilding their war-damaged lands to concern themselves with other nations’ business, so nothing was done about the ROC’s unlawful annexation.

On this issue, it is pointless to refer to the 1943 Cairo Declaration, which was no more than a news release and has no legal effect. As for Taiwanese, they indicated that they would welcome the Chinese Nationalist Army before it arrived, but two years after it landed, armed resistance broke out across the island, and that uprising was followed by nearly 40 years of White Terror under martial law.

Even if you read every post-war document relating to Taiwan in detail, you will not find a single document that says Taiwan belongs to China. The KMT’s hired academics can therefore only resort to inapplicable legal terms like uti possidetis or “occupation as possession” to try to give legitimacy to the “government of Taiwan.”

An illegal structure might have a living room, bedrooms, a kitchen, a bathroom and a garage, but however luxurious it might be, it is still illegal.

As for the “government of Taiwan,” it has a president, a legislature and ministries — all the trappings of statehood — but that does not stop it from being an “illegal structure.”

Its political parties and elections are all about wrangling over who will manage this “illegal structure” and they cannot turn it into a legal one.

The only way to make the government of Taiwan legitimate would be to write a new constitution that matches Taiwan’s realities and put it to a referendum. If the majority of voters accept it, the government can become the legal government of Taiwan.

However, it will take a different kind of leader and a different kind of Referendum Act (公投法) to reach that point.

Peng Ming-min was an adviser to former president Chen Shui-bian.

Translated by Julian Clegg