President Ma Ying-jeou (馬英九) presided over an unveiling ceremony at the Taipei Guest House of a bronze sculpture depicting the signing of the 1952 Sino-Japanese Peace Treaty, also known as the Treaty of Taipei, on April 28. At the ceremony, Ma asserted that the treaty affirmed the transfer of Taiwan’s sovereignty from Japan to the Republic of China (ROC). This move has several political implications.
First, by affirming the Treaty of Taipei, Ma rejected the 1943 Cairo Declaration and accepted the 1951 San Francisco Peace Treaty, admitting that the Japanese government renounced any claim to Taiwan and Penghu and that sovereignty over Taiwan and Penghu should be determined by their inhabitants.
The Qing government and Japan signed the Treaty of Shimonoseki in 1895, which stated that “China cedes to Japan in perpetuity and full sovereignty the following territories ... (b) The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa. (c) The Pescadores Group...” This treaty became void when the San Francisco Peace Treaty was signed in 1951.
The San Francisco Peace Treaty stated that Japan renounced its claim to Taiwan and Penghu, but did not specify the legal successor government of the territories. The charter of the UN, which was established six years before the San Francisco Conference, ensures the fundamental right of self-determination of peoples living on islands that had been occupied as a result of war. How could the representatives from the countries at the San Francisco Conference have possibly violated this principle and allowed Japan to wilfully decide the legal successor government of Taiwan and Penghu?
The Chinese Nationalist Party (KMT) has always based the legal status of Taiwan on the Cairo Declaration, which was merely a consensus reached by Chiang Kai-shek (蔣介石), then-US president Franklin D. Roosevelt and British prime minister Winston Churchill at the Cairo Conference in 1943. The trio did not sign the declaration, but instead released it as a press communique in the three countries.
The Cairo Declaration stated that Japan should abandon all the territories it had conquered and restore Taiwan and Penghu to the ROC — the People’s Republic of China (PRC) did not exist at the time. The précis of the declaration was reiterated in the Potsdam Declaration, which was promulgated on July 26, 1945, and emphasized that “the terms of the Cairo Declaration shall be carried out.” About a month later, Japan released the Japanese Instrument of Surrender and accepted the terms and conditions set out in the Potsdam Declaration. Based on this, the KMT made the Cairo Declaration the legal basis for its claim to sovereignty over Taiwan and Penghu, without mentioning the San Francisco Peace Treaty or the Sino-Japanese Peace Treaty.
Article 2 of the Treaty of Taipei accepts the San Francisco Peace Treaty by stipulating that “Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands.” Since Japan renounced its claim to Taiwan and Penghu at the San Francisco Conference in 1951, it no longer had the right to transfer sovereignty of Taiwan and Penghu to the ROC in 1952. It also means that the People’s Republic of China could not “inherit” sovereignty over the territories from Japan.
But why would Academia Historica director Lin Man-houng (林滿紅) suggest that the KMT claim sovereignty over Taiwan and Penghu based on the Treaty of Taipei? Because she completely ignored Article 2 of the Treaty of Taipei, which copies Article 2 of the San Francisco Peace Treaty. Instead, she only looked at Article 3 and Article 10 of the Treaty of Taipei regarding the disposition of Japan’s property and the nationality of residents, which has nothing to do with the issue of sovereignty. She thus mistook the right of jurisdiction for sovereignty rights.
Article 3 of the Treaty of Taipei stated that the disposition of property of Japan “shall be the subject of special arrangements between the Government of the Republic of China and the Government of Japan.” Article 10 of the treaty stipulated that “nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendants who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores).” Based on this, Lin argued that if sovereignty over Taiwan and Penghu had not been transferred to the ROC, how could Japan have discussed issues on property and nationality with the ROC government?
Lin is wrong. The Treaty of Taipei could not overrule the provisions laid down in the San Francisco Peace Treaty because it was written later. Japan renounced all rights, title, and claim to Taiwan and Penghu to the 51 countries attending the San Francisco Conference rather than the ROC, which could not attend the conference.
In other words, since the Japanese government had already given up its claim to sovereignty over Taiwan and Penghu in the San Francisco Peace Treaty, it had no right to decide on the issue of Taiwan’s sovereignty in the Treaty of Taipei. Japan touched upon the issues of disposition of its property and nationality because Japan had no choice but to sign a bilateral agreement with the ROC as Taiwan was occupied by the ROC government at that point in time. However, just because the ROC had jurisdiction over Taiwan does not mean it had sovereignty over the territory: Sovereignty and jurisdiction are considered two different issues under international law. The issue of sovereignty over Taiwan, therefore, should be discussed in accordance with the fundamental principle of self-determination as laid down in the UN Charter.
Second, Ma should announce to the world that the PRC cannot “inherit” sovereignty over Taiwan and Penghu and that Taiwan and China are two different countries.
Although the PRC government overthrew the ROC government on Oct. 1, 1949, it has never exercised effective sovereignty over Taiwan. The reason why the PRC asserts there is only one China and that Taiwan is part of it is because the ROC claims sovereignty over Taiwan based on the Cairo Declaration. Since the PRC took over the ROC, Beijing believes it should inherit sovereignty over Taiwan and Penghu. However, Ma now says the Treaty of Taipei and the San Francisco Peace Treaty — rather than the Cairo Declaration — affirmed the transfer of Taiwan’s sovereignty to the ROC. How can the PRC, which was founded in 1949, claim the right to inherit anything that has belonged to the ROC since 1952?
Third, Ma should institute a fundamental “two Chinas” policy and engage in rational dialogue with the DPP, which advocates the concept of “one China, one Taiwan.”
Lin considered the Treaty of Taipei the international pact that defines the status of sovereignty over Taiwan and Penghu and argued that the history of Taiwan should be defined as the history of the ROC in accordance with the Sino-Japanese Peace Treaty. What she suggested was that the ROC has co-existed with Taiwan and Penghu since 1952 and that it is separate from the PRC. In other words, if Ma agrees with her suggestion, his latest fundamental national policy should be the “two Chinas” system: the PRC on the mainland and the ROC in Taiwan.
If this is the case, the only difference between the KMT’s “two Chinas” and the DPP’s “one China, one Taiwan” framework lies in the nation’s title. The government and the opposition can thus engage in rational dialogue to work out a long-term plan to seek eternal peace for Taiwan.
Annette Lu is a former vice president.
TRANSLATED BY TED YANG
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