Resolving Cross-Strait Relations Between China and Taiwan
American Journal of International Law   July 2000

Research Item #1

The Chinese Nationalists occupied Taiwan in 1945 as result of the Japanese surrender.

Research Item #2

Neither the Cairo Declaration nor the Potsdam Proclamation served to transfer the sovereignty of Taiwan to China. In 1952, the post-war peace treaties nullified sovereignty of Japan over Taiwan, without ceding Taiwan to any particular state.

Historical and Legal Aspects of the International Status of Taiwan (Formosa)
World United Formosans for Independence (Tokyo)   1972

Research Item #1

The specifications of Article X of the 1952 Sino-Japanese Peace Treaty (Treaty of Taipei) are not an affirmative definition of ROC nationality for native Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese by the Japanese government.

Research Item #2

In the Fall of 1945, the administration of Formosa was taken over from the Japanese by the Chinese forces at the direction of the Supreme Commander of the Allied Powers; but this was not a cession, nor did it in itself involve any change of sovereignty. The arrangement made with Chiang Kai-shek put him there on a basis of military occupation pending further arrangements and did not of themselves constitute the territory Chinese.

Research Item #3

The cession of Taiwan to Japan in the Sino-Japanese Peace Treaty of 1895 (Treaty of Shimonoseki) is not subject to nullification or abrogation.

Who Owns Taiwan: A Search for International Title
The Yale Law Journal   March 1972

Research Item #1

Title 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.

Research Item #2

The Cairo Declaration is not, in the formal sense, a "legal" document. It was not ratified and, indeed, the missions of the three declarants probably did not have authorizations to conclude a policy revision of such scope. The factual erors in the document indicate that the declarants had not even fully briefed themselves. More importantly, the interpretations attached to the Declaration subsequently by the United States and the United Kingdom reinforce the impression that the Declaration was merely a perorative conclusion to what had been a planning session for a complex military campaign.

Research Item #3

At the conclusion of World War II, the Supreme Commander of the Allied Command in the Pacific, General Douglas MacArthur, authorized the Nationalist Chinese authorities to accept the surrender of Formosa from the Japanese and to undertake temporarily military occupation of the island . . . .

Research Item #4

. . . . the United States and the Republic of China signed a mutual defense treaty, in December 1954, by which the United States committed itself to the defense of Formosa and the Pescadores and "such other territories as may be determined by mutual agreement."   Mindful of controversies over the legal status of Formosa and the Pescadores, the United States Senate in ratifying the mutual defense treaty noted that "nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty" of Formosa and the Pescadores.

One-China Policy and Taiwan
Fordham International Law Journal   December 2004

Research Item #1

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.

In general, the PRC government claims the island 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.

Research Item #2

. . . by 1949, the ROC government had lost control over most of China's territory to the Chinese Communists in a civil war and taken refuge in Formosa, outside of China's territory.

Research Item #3

With respect to the island of Taiwan, the term "Allied Powers" or "Allies" essentially refers to the United States. To clarify, in describing the Second World War and the Peace Treaty of San Francisco, we often refer to the victorious States over Japan as Allied Powers or Allies. But it is clear that it was the United States that fought with and defeated Japan. It was the United States that, as the victorious State, won the right to dispose of Japan's territory as it wished. It was the United States that assigned Chiang Kai-shek's ROC government to occupy and administer the island of Taiwan on its behalf. So, over half-a-century later, the ROC government still acts as an agent of the United States. The passage of time will not change, and has not changed, the legal relationship of agent and principal.

Research Item #4

. . . it is important to note that in recognizing the PRC government, the Carter Administration did not recognize China's claim over Taiwan. This position is clear in the policy statement made in the Joint Communique on Establishment of Diplomatic Relations Between the United States of American and the People's Republic of China ("Second Communique").

Research Item #5

It is common for a victorious army in a war to occupy the territory of the defeated State. Territory, after all, is an important element of the defeated State. The occupation of an enemy's territory after the enemy surrenders pending a settlement, however, does not give the occupying State the title to the territory that it occupies. It has become a rule of customary international law that if title to a territory of the defeated State is to be changed after a war, then it must be achieved by a territorial treaty.

The war between Japan and the Allied Powers did not formally end until April 28, 1952, when the Treaty of Peace with Japan (the "Peace Treaty of San Francisco"), to which China is not a party, entered into force. The war between Japan and China did not end until August 5, 1952, when the Peace Treaty between Japan and China, represented by the ROC government, entered into force.