INTRODUCTION TO TAIWAN'S LEGAL STATUS

  TREATY OF SHIMONOSEKI  




After the First Sino-Japanese War, the Treaty of Shimonoseki came into force on May 8, 1895. The treaty contains the following specifications:

Article 2

China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon:X
  1.   . . . . . . .
  2. The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa.
  3. 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.

Following the 1895 Treaty of Shimonoseki, Japan exercised sovereignty over Taiwan and held title to its territory.

The title to Taiwan territory vested in Japan at the time of, and/or because of, the 1895 Treaty of Shimonoseki, as the language of the Treaty clearly indicated. Such title, insofar as it is title, ceases to be a bilateral contractual relationship and becomes a real relationship in international law. Though contract may be a modality for transferring title, title is not a contractual relationship.
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The validity of the specifications of the Treaty of Shimonoseki was further confirmed in 1922, with the coming into force of the Washington Naval Treaty.

Article XIX of the treaty made numerous clarifications in regard to the territories possessed by the United States, the British Empire, and Japan, and agreed to maintain the status quo with regard to fortifications and naval bases thereon. These territories were specified as --

. . . . . . .

(3) The following insular territories and possessions of Japan in the Pacific Ocean, to wit: the Kurile Islands, the Bonin Islands, Amami-Oshima, the Loochoo Islands, Formosa and the Pescadores, and any insular territories or possessions in the Pacific Ocean which Japan may hereafter acquire

In regard to this recognition of the "Formosa and the Pescadores" (aka "Taiwan") as being "an insular area of Japan," China did not file any protest with the governments of the five signatory countries of Britain, the USA, Japan, France or Italy either in 1922 or at any time thereafter.


Japan Invades China

Japan invaded China in 1937, to begin the Second Sino-Japanese War. This conflict later expanded into WWII in the Pacific. From the period of July 1937 to the late 1940's, the Republic of China (KMT) is reported to have announced the unilateral cancellation of the 1895 Treaty of Shimonoseki on more than one occasion.

Unfortunately, a close examination of the Treaty of Shimonoseki reveals no clauses which would allow such a unilateral cancellation, either by the Qing Dynasty, or by a successor dynasty, or a non-dynasty, such as a republic. Certainly, the Chinese statement of the cancellation of the Treaty of Shimonoseki was not recognized by Japan, other countries, or by any other international bodies. Nor are there any international court cases on record which recognize the validity of such a unilateral cancellation.


Validity of the 1895 Treaty

Additional analysis on the validity of the 1895 Treaty of Shimonoseki is presented as follows:

A treaty which involves a cession of territory is "unequal" by definition. A treaty in which a defeated State is forced to cede a territory is necessarily unequal because the defeated State is not in an equal bargaining position with the victorious State. The defeated State cedes the territory to end the war and save the State. The term "unequal treaty" is a political concept rather than a legal term recognized in international law.

The cession of Taiwan to Japan in the Sino-Japanese Peace Treaty of 1895 (Treaty of Shimonoseki) is not subject to nullification or abrogation.
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In general, the PRC government claims the island(s) of Taiwan on three grounds: historical ownership, abrogation of the Treaty of Shimonoseki, and the Cairo Declaration. None of these grounds are valid in international law.
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Additional Webpages of Interest

Ryukyu Island Group and Taiwan

Search for a Non-Chinese Identity

Japan - Taiwan Relationship






TEXT of the

Treaty of Shimonoseki