The ROC's Territorial Claim Over "Formosa and the Pescadores"

Based on an in-depth overview of the historical and legal record, it is hard to understand on what basis the Republic of China can be considered the legal government of Taiwan and the representative of the 23 milion people living thereon. With reference to international law, this is explained as follows.

Background: "Formosa and the Pescadores" had been ceded to Japan in the 1895 Treaty of Shimonoseki. Consequently, at the time of the founding of the ROC in 1912, "Formosa and the Pescadores" belonged to Japan.

After the events of August 1945, Gen. Douglas MacArthur directed Chiang Kai-shek to go to Taiwan and accept the surrender of Japanese troops. Under international law, the surrender ceremonies only mark the beginning of the "military occupation" of Taiwan.

It is well known that in the in the post-war San Francisco Peace Treaty, which came into effect April 28, 1952, Japan renounced the sovereignty of "Formosa and the Pescadores." Unfortunately for the supporters of the ROC however, this sovereignty was not awarded to the Republic of China.

In order to be considered the legal government of Taiwan, three criteria would appear to be most relevant.

• First, the ROC would have to be able to produce an international treaty reference which (unequivocally) shows that the sovereignty of "Formosa and the Pescadores" has been transferred to the ROC.
  
  
• Second, it would be necessary to prove that Taiwan has been officially "incorporated" into the territory of the ROC according to the procedures outlined in ROC domestic laws. As most people know, Article 4 of the Constitution of the Republic of China states that: "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly."
  
  
• Third, after fulfilling the above two conditions, it would then be necessary to show that a law was passed by the legislative branch (Legislative Yuan) of the ROC government (sometime in the mid-1950's) specifying the mass naturalization of all native Taiwanese persons as "ROC citizens."

In fact, none of these three most basic qualifying criteria have been fulfilled. In other words, there are no specifications in any international treaty which verify that the sovereignty of "Formosa and the Pescadores" has ever been transferred to the ROC. Additionally, there is no Resolution of the National Assembly on record to justify the alleged "incorporation" of Taiwan into ROC territory. Lastly, the Legislative Yuan in Taiwan has never passed a law to provide for the mass-naturalization of native Taiwanese persons as ROC citizens after the close of the WWII period.

So, the question arises, what is the status of the ROC on Taiwan?


The Events of late 1949

According to the historical record, many of the military forces and various high-ranking officials of the Republic of China fled from China in the final months of 1949. If these ROC personnel had fled to Japan, Korea, or the the Philippines, and continued to conduct their governmental business there, it would be easy to recognize the fact that they had become a government in exile.

However, these ROC personnel fled to Taiwan, which at that time had been under ROC jurisdiction for a number of years. Under such circumstances, does the ROC qualify as a government in exile beginning in late 1949?

The following definitions of "government in exile" have been collected from various sources and are offered here for reference.

Definitions of government in exile

A government whose chief executive and other principal officials have fled their state in the face of hostile armed forces but which is recognized as the de jure government of its native country by at least one other state.

A temporary government moved to or formed in a foreign land by exiles who hope to rule when their country is liberated.

A government established outside of its territorial base.

A political group that claims to be a country's legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country. Governments in exile usually operate under the assumption that they will one day return to their native country and regain power.

A government which has either been forced out by revolution or usurpation, or invaded and taken over by another nation, and is now taking refuge elsewhere.

A body which claims to be the legitimate government of a state, but which is unable to establish itself in the state in question.

The Significance of October 25, 1945

In order to examine the status of the Republic of China in Taiwan from the time of late October 1945 up to December 1949, we must first discuss the significance of the surrender of Japanese troops on October 25, 1945.

Under international law, the date of October 25, 1945, merely marks the beginning of the military occupation of Taiwan. There was no transfer of the sovereignty of Taiwan to the ROC on that date. It is necessary to look at the legal formulation of this military occupation in more detail.

First, who is "the conqueror"? It is a matter of historical record that during the period of WWII in the Pacific (December 1941 to the Fall of 1945) all military attacks against "Formosa and the Pescadores," and indeed against the four main Japanese islands, were made by United States military forces. The Republic of China military forces did not participate. Hence, the United States is "the conqueror."

Second, who is "the occupying power"? In a pre-Napoleonic age, "the conqueror" would simply annex the conquered territory. However, in a post Napoleonic age, the customary laws of warfare disallow "annexation." After conquest, "the conqueror" only occupies the territory. Hence, in relation to "Formosa and the Pescadores, the United States is "the occupying power". However, beginning October 25, 1945, the United States has delegated the administrative authority for the military occupation of "Formosa and the Pescadores" to the Chinese Nationalists under Chiang Kai-shek.

Third, what is the status of "Formosa and the Pescadores" in the post-war peace treaty? In the San Francisco Peace Treaty of April 28, 1952, Japan renounced the sovereignty of "Formosa and the Pescadores," but this sovereignty was not awarded to any other country.

CONCLUSION #1:

For a territorial cession, the military government of the principal occupying power does not end with the coming into force of the post-war peace treaty, but continues until legally supplanted. (This is thoroughly explained in many US Supreme Court cases.) By recognizing this fact, we can see that under the terms of the San Francisco Peace Treaty, "Formosa and the Pescadores" remain under the administrative control of the United States Military Government (USMG).

Importantly, this conclusion is fully supported by Articles 2(b), 4(b), and 21 of the San Francisco Peace Treaty. The territorial sovereignty of "Formosa and the Pescadores" was definitely not awarded to the Republic of China. Additionally, Article 23(a) confirms that the United States is "the principal occupying power."

CONCLUSION #2:

Up to the present day, United States Military Government administrative authority over "Formosa and the Pescadores" has not yet ended.

CONCLUSION #3:

Beginning October 25, 1945, in relation to the administration of "Formosa and the Pescadores," the Republic of China has been a subordinate occupying power under the United States.

Customary Law and the ROC on Taiwan

Many people claim that the Republic of China is the legal government of Taiwan based on the provisions of the following legal (or quasi-legal) announcements, documents, and/or doctrines.

(1) Abrogation of all treaties, conventions, agreements, and contracts regarding relations between China and Japan (including the Treaty of Shimonoseki) by the ROC government in 1937
(2) Cairo Declaration of Dec. 1, 1943
(3) Potsdam Proclamation of July 26, 1945
(4) Japanese Surrender Documents of Sept. 2, 1945
(5) Treaty of Taipei (Sino-Japanese Peace Treaty)

A comprehensive overview is offered as follows.

In regard to the 1895 Sino-Japanese Peace Treaty, once the obligations of territorial cession were fulfilled via Article 2, that clause of the treaty itself ceased to be active. In other words, to the extent that the particular provisions in the 1895 Treaty regarding the cession of Taiwan had been fulfilled by the Qing, any portion of the Treaty which could be nullified as a consequence of the war which (arguably) began in July 1937, or the abrogation of the Treaty itself at some date, etc. would have to be limited to those provisions which had not yet been fulfilled in their entirety. The cession provision which had already been carried out was no longer active and therefore could no longer be subjected to nullification or any sort of retro-active cancellation.

With respect to the Cairo Declaration and the Potsdam Proclamation, it is significant to note that in the post-Napoleonic period there is no international precedent to show that a "Declaration" or "Proclamation" has the international force of law to transfer the sovereignty of a geographic area from one government to another. Nor is there any precedent to say that the specifications of Surrender Documents have any such force of law between nations.

Moreover, in regard to the Treaty of Taipei (which came into force on Aug. 5, 1952), Article 2 of the Treaty merely acknowledged Article 2(b) of the SFPT, stating: "It is recognized that under Article 2" of the SFPT "Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)." Indeed, upon the coming into force of the Treaty of Taipei on Aug. 5, 1952, the SFPT had already been in force over three months, hence Japan was no longer holding the territorial title to Formosa and the Pescadores at that time. Obviously, in August 1952 Japan could not make any specifications regarding the disposition of territory which it no longer possessed.


Territorial Cession is Accomplished by Treaty

Customary international law in the post-1830 period has clearly established that territorial cession is accomplished by treaty. Relevant examples are too numerous to mention. In the history of the United States, for example, all territorial cessions were done via the specifications of a treaty, including the following well-known examples:

Louisiana, 1803
Florida, 1821
California, 1848
Gadsden Purchase, 1853
Alaska, 1867
Guam, 1899
Puerto Rico, 1899
Virgin Islands, 1917
        etc.

Additional International Law Doctrines

International law doctrines such as irredentism, postliminium, prescription, terra sine domino, terra nullius, uti possidetis, etc., are often used to justify the legitimacy of the Republic of China on Taiwan. An overview of these doctrines is provided as follows.

irredentism: claiming a right to territories belonging to another state on the grounds of common ethnicity and/or prior historical possession, actual or alleged.

Comments: Technically speaking, "irredentism" is a doctrine from the sphere of identity politics, cultural & ethnic studies, and political geography. It is not a legal doctrine per se, and hence carries little or no weight in discussing legal claims on territory.

postliminium: the right by virtue of which persons and things taken by an enemy in war are restored to their former state when coming again under the power of the nation to which they belonged.

Comments: The transfer of the title of territory by treaty is an internationally recognized valid method for transmission and reassignment of "ownership." Regardless of the future outbreak of war between the affected parties, or the military occupation of each other's countries, international law does not recognize any claim to "retroactive reversion of title" to previously ceded territory, and the doctrine of "postliminium" cannot be invoked under such circumstances.

prescription: (1) the process of acquiring title to property by reason of uninterrupted possession of specified duration, (2) acquisition of ownership or other real rights in movables or immovables by continuous, uninterrupted, peaceable, public, and unequivocal possession for a period of time.

Comments: Certain countries with a long history have obtained title to their lands based on "prescription." However, Taiwan was a territorial cession in Article 2b of the San Francisco Peace Treaty (SFPT), hence there must be a clear transfer of territorial title in order to be recognized as valid. The doctrine of "prescription" cannot be invoked under such conditions. This analysis is fully confirmed when we recognize that October 25, 1945, was the beginning of the military occupation of Taiwan, and international law specifies that "military occupation does not transfer sovereignty."

"De facto control" does not constitute ownership as we can clearly see from US military occupation of Iraq and Afghanistan. Such military occupation does not mean that the US has possession of the de jure sovereignty over these lands.

terra sine domino: [spoken of populated territory] "land without master," land with no central government, abandoned territory.

Comments: Taiwan was Japanese territory up until April 28, 1952. There is no basis under international law to say that by 1949 Taiwan had already become "terra sine domino," and was thus subject to casual annexation by any other country such as the ROC.

terra nullius: [spoken of unpopulated territory] uninhabited islands or lands, abandoned lands, etc. which are not being used for the advantage of human beings.

Comments: In late 1945, Taiwan had a population of approximately six million, and could certainly not be claimed under the doctrine of "terra nullius."

uti possidetis: a principle that recognizes a peace treaty between parties as vesting each with the territory and property under its control unless otherwise stipulated. (Latin: uti possidetis, ita possideatis -- "as you possess, so may you continue to possess.")

Comments: This principle is not applicable to a discussion of Taiwan's international legal status after WWII because (1) the Republic of China was not a party to the SFPT, in which Japan ceded Taiwan, (2) October 25, 1945, only marks the beginning of the military occupation of Taiwan, and the Republic of China (founded in 1912) had never held legal possession of "Formosa and the Pescadores" at any time before the coming into effect of the peace treaty. (3) Furthermore, Article 21 of the SFPT clearly stipulates the benefits to which "China" is entitled under the treaty, and "Formosa and the Pescadores" are not included.

Additional References

Introduction to Sovereignty: A Case Study of Taiwan

Introduction to Sovereignty: A Case Study of Taiwan
    Stanford Program on International and Cross-Cultural Education
    published 2004 (160 pages)
    http://spice.stanford.edu/catalog/introduction_to_sovereignty_a_case_study_of_taiwan/

Quote:

Enmeshed in a civil war between the Nationalists and the Communists for control of China, Chiang's government mostly ignored Taiwan until 1949, when the Communists won control of the mainland. That year, Chiang's Nationalists fled to Taiwan and established a government-in-exile.

Encyclopedia Britannica

Quote:

After the war China established a garrison on Itu Aba, which the Chinese Nationalists maintained after their exile to Taiwan.

excerpted from Encyclopedia Britannica
http://www.britannica.com/eb/article-9069237/Spratly-Islands



Encyclopedia Britannica

Quote:

Chiang Kai-shek born October 31, 1887, Chekiang province, China died April 5, 1975, Taipei, Taiwan soldier and statesman, head of the Nationalist government in China from 1928 to 1949, and subsequently head of the Chinese Nationalist government in exile on Taiwan.

excerpted from Encyclopedia Britannica
http://www.britannica.com/eb/article-9023957/Chiang-Kai-shek



Let Taiwan Be Taiwan

    Documents on the International Status of Taiwan
    http://homepage.usask.ca/~llr130/ctir1/ctir1.pdf
    Edited with Analysis and Commentary by Marc J. Cohen and Emma Teng
      1990
    Center for Taiwan International Relations, Washington, DC

Quotes:

p. 33 -- A Chinese title, under international law, cannot be deduced from the presence of the Chiang Kai-shek exile government on Taiwan.

p. 132 -- I am sure that the sponsors of the draft resolution...seeking to preserve a seat for the Formosa regime ... are aware of the controversy that is raging as to the representative character of the Government based on that island. My Government has been inundated with documents and petitions from people who claim to be Formosans, arguing that the so-called Republic of China in exile cannot claim to represent the people of Taiwan.

p. 133 -- The exiled nationalist Chinese regime does not represent the people of Formosa....

p. 166 -- According to Professor Gene Hsiao, since the San Francisco Peace Treaty and the separate KMT treaty with Japan did not specify to whom Japan was ceding Taiwan and the Pescadores, the implication of the U.S . position was that -- Legally, and insofar as the signatories of those two treaties were concerned, Taiwan became an "ownerless" island and the KMT, by its own assent to the American policy, a foreign government-in-exile.

New Dictionary of Cultural Literacy

People's Republic of China   The government of China set up in 1949 after the victory of the communist forces of Mao Zedong. The People's Republic ruled the mainland of China, forcing the government of Nationalist China into exile on the island of Taiwan. For years, many Western nations, especially the United States, refused to recognize the People's Republic as the government of mainland China; instead, they exchanged ambassadors only with Nationalist China. The United States recognized the People's Republic as the government of China in 1979.

excerpted from the bartleby website, quoting from --
    The New Dictionary of Cultural Literacy, Third Edition, 2002.
    http://www.bartleby.com/59/13/peoplesrepub.html



Taiwan's Current International Legal Status

Chen, Lung-chu (1998). Taiwan's Current International Legal Status
    In New England Law Review, 32, p. 675.
    Introduction -- http://www.nesl.edu/lawrev/VOL32/3/CHEN.HTM

. . . . At the end of World War II, after the Japanese surrender, General MacArthur instructed Chiang Kai-shek, then Generalissimo of the Republic of China, to administer Taiwan pending the resolution of its ultimate disposition. Thus Chiang's Kuomintang (KMT) regime acquired de facto control of the island as a form of military occupation on behalf of the Allied Powers. Several significant events ensued: the mass massacre of Taiwanese leaders from all walks of life by KMT's occupation forces during the 228 Incident of 1947 to suppress Taiwanese protests against the Chinese atrocities; Chiang Kai-shek's exile to Taiwan after being expelled from the Chinese mainland as a result of the establishment of the PRC in 1949; and the drastic increase in strategic importance of Taiwan for the United States in the Western Pacific after the outbreak of the Korean War in June 1950.