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The legal status of Republic of China (commonly known as Taiwan) is a controversial issue which stems from the complex post-Second World War history of Taiwan. Various claims have been made by the People's Republic of China (PRC), the Republic of China (ROC), and supporters of Taiwan independence over this question, with a variety of arguments advanced by all sides. The question has significant bearing on the political status of Taiwan and touches upon many aspects of international law. In practice, sovereignty over Taiwan is exercised by the Republic of China.
Taiwan (Formosa) including the Pescadores were permanently ceded by Qing Dynasty China to Imperial Japan via Articles 2b and 2c of the Treaty of Shimonoseki in 8 May 1895 in one of what the Chinese term as an unequal treaty. Kinmen and Matsu Islands on the coast of Fukien, and the islands in the South China Sea currently administered by the Republic of China on Taiwan were not part of the cession.
In 1895, subsequent to the Treaty of Shimonoseki, officials in Taiwan declared independence in the hope of returning the island to Qing rule. The Republic of Taiwan (1895) collapsed after 12 days due to political infighting, but local leaders continued resistance in the hope of achieving self-rule. The incoming Japanese crushed the island's independence bid in a five-month campaign.
The Chinese Qing Dynasty was subsequently overthrown and replaced by the Republic of China (ROC). Upon the outbreak of the Second Sino-Japanese War, the ROC declared the Treaty of Shimonoseki void in its declaration of war on Japan. The war soon merged with World War II, and Japan was subsequently defeated in 1945 by the Allied Powers, of which the ROC was a part.
The United States entered the War in December 1941. Most military attacks against Japanese installations and Japanese troops in Taiwan were conducted by United States military forces. At the Cairo Conference, the U.S., United Kingdom, and the ROC agreed that Taiwan was to be restored to the ROC after the war. This agreement was enunciated in the Cairo Declaration and the Potsdam Declaration, which outlined the terms of Japanese surrender, specified that the terms of the Cairo Declaration shall be carried out.
When Japan unconditionally surrendered, it accepted in its Instrument of Surrender the terms of the Potsdam Declaration. Whether the sovereignty of Taiwan, was formally transferred or not at that time is disputed. Japanese troops in Taiwan were directed to surrender to the representatives of the Supreme Allied Commander in the China Theater, Chiang Kai-shek (i.e. the Republic of China military forces) on behalf of the Allies, according to the directions of General Douglas MacArthur, head of the United States Military Government, in General Order No. 1, which was issued 2 September 1945. Chief Executive Chen Yi of Republic of China soon proclaimed "Taiwan Retrocession Day" on 25 October 1945.
When the 228 Incident erupted on February 28, 1947, the U.S. Consulate-General in Taipei prepared a report in early March, calling for an immediate intervention in the name of the U.S. or the United Nations. Based on the argument that the Japanese surrender did not formally transfer sovereignty, Taiwan was still legally part of Japan and occupied by the United States (with administrative authority for the occupation delegated to the Chinese Nationalists), and a direct intervention was appropriate for a territory with such status. This proposed intervention, however, was rejected by the U.S. State Department. In a news report on the aftermath of the 228 Incident, some Taiwanese residents were reported to be talking of appealing to the United Nations to put the island under an international mandate, since China's possession of Taiwan had not been formalized by any international treaties by that time and the island was therefore still under belligerent occupation.[1] They later made a demand for a treaty role to be represented at the forthcoming peace conference on Japan, in the hope of requesting a plebiscite to determine the island's political future.[2]
At the start of 1950, U.S. President Harry S. Truman appeared to accept the idea that sovereignty over Taiwan was already settled when the United States Department of State stated that "In keeping with these [Cairo and Potsdam] declarations, Formosa was surrendered to Generalissimo Chiang-Kai Shek, and for the past 4 years, the United States and Other Allied Powers have accepted the exercise of Chinese authority over the Island."[3] However, after the outbreak of the Korean War, Truman decided to "neutralize" Taiwan claiming that it could otherwise trigger another world war. In June 1950, President Truman, who had previously given only passive support to Chiang Kai-shek and was prepared to see Taiwan fall into the hands of the Chinese Communists, vowed to stop the spread of communism and sent the U.S. Seventh Fleet into the Taiwan Strait to prevent the PRC from attacking Taiwan, but also to prevent the ROC from attacking mainland China. He then declared that "the determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations."[4] President Truman later reaffirmed the position "that all questions affecting Formosa be settled by peaceful means as envisaged in the Charter of the United Nations" in his special message to the Congress in July 1950.[5] The PRC denounced his moves as flagrant interference in the internal affairs of China.
On 8 September 1950, President Truman ordered John Foster Dulles, then Foreign Policy Advisor to the U.S. Secretary of State, to carry out his decision on "neutralizing" Taiwan in drafting the Treaty of Peace with Japan (San Francisco Peace Treaty) of 1951. According to George H. Kerr's memoir Formosa Betrayed, Dulles devised a plan whereby Japan would first merely renounce its sovereignty over Taiwan without a recipient country to allow the sovereignty over Taiwan to be determined together by the United States, the United Kingdom, Soviet Union, and Republic of China on behalf of other nations on the peace treaty. The question of Taiwan would be taken into the United Nations (which the ROC was still part), if these four parties could not reach into an agreement within one year.
When Japan regained sovereignty over itself in 1952 with the conclusion of the Treaty of Peace with Japan (San Francisco Peace Treaty) with 48 nations, Japan renounced all claims and title over Taiwan and the Pescadores. Many claim that Japanese sovereignty only terminated at that point.[6] Notably absent at the peace conference was the ROC which was expelled from mainland China in December 1949 as a result of the Chinese Civil War and had retreated to Taiwan. The PRC, which was proclaimed 1 October 1949, was also not invited. The lack of invitation was probably due to the dispute over which government was the legitimate government of China (which both governments claimed to be); however, Cold War considerations might have played a part as well. Some major governments represented in the San Francisco Conference, such as the UK and Soviet Union, had already established relations with the PRC, while others, such as the U.S. and Japan, still held relations with the ROC.
The UK at that time stated for the record that the San Francisco Peace Treaty "itself does not determine the future of these islands," and therefore the UK, along with Australia and New Zealand, was happy to sign the peace treaty.[7] One of the major reasons that the delegate from the Soviet Union gave for not signing the treaty was that: "The draft contains only a reference to the renunciation by Japan of its rights to these territories [Taiwan] but intentionally omits any mention of the further fate of these territories."[7]
Article 25 of this treaty officially stipulated that only the Allied Powers defined in the treaty could benefit from this treaty. China was not listed as one of the Allied Powers; however, article 21 still provided limited benefits from Articles 10 and 14(a)2 for China. Japan's cession of Taiwan is unusual in that no recipient of Taiwan was stated as part of Dulles's plan of "neutralizing" Taiwan. The ROC protested its lack of invitation to the San Francisco Peace conference, to no avail.
"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 descendants 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)."
Today, the ROC is the de facto government of Taiwan; whereas the PRC is the de facto government over Mainland China. However, each government claims to be the legitimate government of all China de jure. The arguments below are frequently used by proponents and/or opponents of these claims.
Arguments common to both the PRC and ROC
The ROC and PRC both officially support the One China policy and thus share common arguments. In the arguments below, "Chinese" is an ambiguous term that could mean the PRC and/or ROC as legal government(s) of China.
Arguments in support of ROC sovereignty claims
Arguments in support of PRC sovereignty claims
Arguments for Taiwan already being an independent, sovereign nation
Arguments by various groups that claim Taiwan should declare itself to be an independent sovereign nation
A small number of people have argued that the United States holds in trust the sovereignty over Taiwan based on the San Francisco Peace Treaty's cession of Taiwan without a recipient.[24] Article 23 of the San Francisco Peace Treaty designated the US as "the principal occupying power" with respect to the territories covered by the geographical scope of the treaty, including "Formosa and the Pescadores."
The argument also states that the ROC troops were acting under the directions of the United States when taking over the administration of Taiwan after the completion of the October 25, 1945, Japanese surrender ceremonies. The principal-agent relationship between the USA and the ROC was argued to never have been formally terminated.
On October 24, 2006, Dr. Roger C. S. Lin led a group of Taiwanese residents, including members of the Taiwan Nation Party, to file a Complaint for Declaratory Relief in the United States District Court for the District of Columbia. According to their lawyer, Mr. Charles Camp, "[t]he Complaint asks the Court to declare whether the Taiwanese plaintiffs, including members of the Taiwan Nation Party, have certain rights under the United States Constitution and other US laws".[25] Their central argument is that, following Japanese renunciation of all rights and claims to Taiwan, Taiwan came under U.S. jurisdiction based on it being the principal occupying power as designated in the Treaty of Peace with Japan and remains so to this day. Moreover, the plaintiffs claimed that the United States has never recognized the incorporation of Taiwan into Chinese national territory.[26] The defendant in this case was the United States government.
The District Court agreed with United States government on March 18, 2008 and ruled that the case presents a political question; as such, the court concluded that it had no jurisdiction to hear the matter and dismissed the complaint.[27][28] This decision was appealed by plaintiffs.[29] The appeals court unanimously upheld the district court ruling and dismissed the appeal.[30]
Qing Dynasty, Jilin, Heilongjiang, Korea, Liaodong Peninsula
Harry S. Truman, World War II, United Kingdom, Human rights, New Mexico
Franklin D. Roosevelt, Winston Churchill, Chiang Kai-shek, Egypt, Japanese Instrument of Surrender
Chinese language, Taiwan, World War II, Second Sino-Japanese War, Cold War
Hong Kong, Beijing, Macau, Shanghai, Taiwan
Almanac, European Union, Central Intelligence Agency, United States, United States Department of State
Switzerland, Geneva, /anization, International trade, Globalization
Taiwan, Jimmy Carter, Foreign relations of Taiwan, Wisconsin, Soviet Union