On Monday, Minister of Foreign Affairs Lin Chia-lung (林佳龍) delivered a welcome speech at the ILA-ASIL Asia-Pacific Research Forum, addressing more than 50 international law experts from more than 20 countries. With an aim to refute the People’s Republic of China’s (PRC) claim to be the successor to the 1945 Chinese government and its assertion that China acquired sovereignty over Taiwan, Lin articulated three key legal positions in his speech:
First, the Cairo Declaration and Potsdam Declaration were not legally binding instruments and thus had no legal effect for territorial disposition. All determinations must be based on the San Francisco Peace Treaty.
Second, the Republic of China (ROC) government representing China in 1945 merely occupied Taiwan under Allied authorization and never acquired territorial sovereignty over Taiwan.
Third, Taiwan’s democratic, rule-of-law constitutional reforms from the 1980s and 1990s, including direct popular election of the president and legislative representatives, not only conferred legitimacy upon the ROC government to represent Taiwan, but also established the principle of mutual non-subordination between the ROC and the PRC.
From an international law perspective, this represents a significant doctrinal shift whereby the Ministry of Foreign Affairs has clearly departed from the “one China” discourse, formally ascertaining an independent Taiwan sovereignty as distinct from China.
Historically, the former Chinese Nationalist Party (KMT) government, based on several considerations, continuously propagated to Taiwanese that Taiwan could only be part of China. Through domestic media and publications, as well as English-language materials internationally, the KMT government appeared to persuade many in international law into believing that Taiwan could only be part of China. This decades-long narrative campaign nearly caused most Taiwanese to forget that Taiwan could be Taiwan for Taiwanese.
The core thesis of the previous KMT government’s sovereignty doctrine was that the ROC in Taiwan was identical to the former ROC in China, asserting that both sides of the strait belong to “one China” — a position remarkably aligned with the Chinese Communist Party’s (CCP) claims regarding Taiwan.
However, under the effective control principle of international law, the ROC government has long ceased to be a legitimate representative of China; only the PRC government qualifies as China’s representative. Under these circumstances, the KMT government’s “both sides of the strait” doctrine effectively enhanced the PRC’s international argument that Taiwan is part of China, creating additional barriers to Taiwan’s international participation, while reducing the political costs and legal hindrances for potential PRC military aggression against Taiwan.
Taiwan’s government must, in accordance with the effective control principle, acknowledge reality and establish a Taiwanese sovereignty doctrine. The first step, as demonstrated by the ministry’s doctrinal shift, is to bid farewell to the 1945 ROC. Not only did the 1945 ROC never acquire territorial sovereignty over Taiwan, but the contemporary ROC has never exercised any effective control over the PRC.
While the ROC cannot and need not completely sever emotional, cultural, ethnic or historical ties with China, under international law, regarding criteria for statehood — such as territory, population and an effective government — it is legally untenable to argue that the modern ROC and the 1945 ROC constitute the same state entity.
The Ministry of Foreign Affairs has clearly espoused the following position: China did not acquire territorial sovereignty over Taiwan in 1945, and the ROC and the PRC are two independent states with mutually non-subordinate sovereignty. This position might not prevent China from continuing to claim that Taiwan is a part of China and naturally cannot prevent the PRC from resorting to armed force to attack Taiwan.
However, when compared with the position adopted by the former KMT government, this position poses no obstacles under international law for other members of the international community who have the capability and willingness to help Taiwan. If they assist Taiwan based on their own interests or ideological considerations, this also does not constitute interference in China’s internal affairs.
Chiang Huang-chih is a professor of international law in the College of Law at National Taiwan University.
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