Republic of China
| CRITERIA |
Republic of China |
Preliminary Explanation |
Additional Explanation |
| permanent population |
none and/or illegal |
Although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the legal basis of native Taiwanese persons as having ROC nationality is a Jan. 12, 1946, order issued by the ROC military authorities. |
This Jan. 1946 order was never ratified by the Legislative Yuan, nor made into a law. Moreover, to make such an order before the territorial cession of Taiwan was legally finalized in the peace treaty is illegal under international law. (See: Note A) |
| defined territory |
none and/or illegal |
The ROC presumably includes the geographic areas of Formosa and the Pescadores, an area comprising nearly 13,900 sq. miles. However these areas were initially "obtained" and "held" under military occupation, and to date there has been no transfer of title. |
None of the Allies recognized any transfer of the territorial sovereignty of Taiwan to the ROC on the Oct. 25, 1945, surrender date of Japanese troops. Moreover, Taiwan was not awarded to the ROC in the post-war peace treaties. (See Note B) |
| government |
government in exile |
On Taiwan there is a fully functioning government called the "Republic of China." However, this is a government in exile. According to international law, there is no way for a government in exile to obtain legitimacy other than by returning to its "original location" and reasserting its governance there.
| There are no actions, methods, or procedures whereby a government in exile can become the legal government of its current locality of residence. (See Note C) |
| capacity to enter into relations with the other states |
government in exile |
The ROC has formal diplomatic relations with over twenty countries. However, these diplomatic relations are conducted under the auspices of the "Republic of China," which is a government in exile. |
A government in exile can have diplomatic relations with other states, but the establishment and/or maintenance of such diplomatic relations does not cause it to become "the legally recognized government of its current locality of residence." (See Note D) |
Notes:
A) Article 26 of the San Francisco Peace Treaty (SFPT) serves to authorize the drafting of a peace treaty between the ROC and Japan. Article 10 of the Sino-Japanese Peace Treaty (Treaty of Taipei) of August 5, 1952 specifies: "For the purposes of the present Treaty, 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 descendents 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) .... "
The ROC Nationality Law was originally promulgated in Feb. 1929, when Taiwan was a part of Japan. It was revised in Feb. 2000, however there were no Articles addressing the mass naturalization of Taiwanese persons as ROC citizens. Hence, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan .... " have yet to be fulfilled.
B) Notably, Article 4 of the ROC Constitution specifies 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." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.
C) There was no "Taiwan Retrocession Day" on Oct. 25, 1945. Under international law, the only possible significance of the completion of the surrender ceremonies in Taipei is to mark the beginning of the belligerent occupation of Taiwan. (Taiwan remained as sovereign Japanese territory until ceded in the San Francisco Peace Treaty effective April 28, 1952.) The ROC's original position in Taiwan beginning Oct. 25, 1945, would best be described as subordinate occupying power.
Thus, when the ROC moved its central government to occupied Taiwan in Dec. 1949 it became a government in exile. The ROC has retained these dual statuses up to the present day.
D) International law recognizes that a government in exile may undertake many types of actions in the conduct of its daily affairs. These actions include:
- becoming a party to a bilateral or international treaty
- amending or revising its own constitution
- giving foreign aid
- retaining (or "newly obtaining") diplomatic recognition by sovereign states
- issuing identity cards
- allowing the formation of new political parties
- instituting democratic reforms
- holding elections
- exercising authority over immigration procedures
- allowing for direct (or more broadly-based) elections of its government officers, etc.
However, none of these actions can serve to legitimatize a government in exile to become the internationally recognized legal government of its current locality. By definition, a government in exile is spoken of in terms of its native country, hence it must return to its native country and regain power there in order to obtain legitimacy as the legal government of that geographic area.
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