For years, the People's Republic of China (PRC), has looked to claim sovereignty over Taiwan on the basis of international law precedents and tradition. Since its creation in 1949, the PRC has consistently picked specific treaties and declarations that it feels bolsters its claim in a legal sense, then twists and molds these respective agreements until they fit into its perception of reality. It does not hesitate, however, to cast aside treaties and and international jus cogens protocol when agreements not only fail to support their claims over Taiwan, but often contradict or invalidate certain arguments completely. A common phrase that is heard spoken by government officials in Beijing is that "Taiwan has been an inalienable part of China since ancient times". This phrase should not be ignored due to the fact that the Chinese Communist Party (CCP) has consistently used such wording since 1949 in an attempt to lay the groundwork for a claim to Taiwan on historical grounds. It is important to explore this claim in more detail.
"Taiwan has been a part of China since Ancient Times"
It was during the Sui Dynasty (581-615 CE) that Taiwan is first mentioned in Imperial Chinese records. It was not until the Song Dynasty (1127-1279), that any form of legal control was exercised by a Chinese Imperial government over the island, which was done by placing military garrisons in the neighboring Penghu (Pescadores) islands, and placing the jurisdiction of the garrisons under Fuijan province. In the Dynasties that followed, both the Yuan and Ming continued to authorize jurisdiction over the islands by maintaining an Administration of Patrol and Inspection. It should be noted that from 585 until 1624, when the Dutch successfully controlled the Western coast of Taiwan and began an occupation that lasted for 38 years, Taiwan was never raised to the status of an official Province of the empire, and the highest legal title given to the island was one of "...an island under the jurisdiction of Fuijan Province". In 1885, the Emperor Guangxu formally upgraded Taiwan to a status of full province. It could be argued that while China had some form of control over Taiwan, such control was sporadic, and subject to a particular Emperor's interest in exerting control over Taiwan, which often was deemed too time consuming, as the Taiwan Strait had many periods in which pirates, and foreign navies made such control difficult. For the current government of the PRC to claim that multiple dynasties had some form of control over Taiwan throughout the centuries would imply that the PRC recognizes that such Imperial governments were the legal governing body of Chinese territory during this time, and therefore had the right to not only govern, but to levy taxes, raise standing armies, as well as to be recognized by other states of their respective times, and maintain the ability to demand tribute from neighboring states, as well as enter into treaties with foreign states.
"The Treaty of Shinmoneseki was an unfair treaty signed under duress, and therefore is invalid"
Following the First Sino-Japanese War of 1894-1895, The Treaty of Shinmoneseki was signed in 1895, during which time the Qing Dynasty ceded Taiwan and the Pescadores Islands to the Empire of Japan. It is with this treaty that many advocates of "reunification" begin to shift the argument for PRC sovereignty over Taiwan from one of historical ties to one that is grounded in international law. A number of Chinese analysts have stated that due to the unequal terms in treaties that were signed by the Qing in the waning days of its rule, that such treaties should be considered invalid due to such agreements being signed "under duress". The primary reason of many treaties signed at this time, analysts argue, were to serve the interests of "imperialist powers" and not to be of mutual benefit. This argument is weak in two aspects. First, while the PRC has stated in its view that the Treaty of Shinmoneseki is invalid due to the aforementioned reasons, it has accepted the legality of other treaties from within the same time period with similar traits of inequality that were ratified by the Imperial government. The PRC Foreign Ministry has stated previously that, "...although the Sino-Russian Kashgar Boundary Treaty (1884) was signed by the Chinese (Qing) government under tsarist Russian duress, the treaty remains the only valid boundary treaty determining the alignment of the Chinese and Russian frontiers in the Pamirs". The PRC also recognized the Treaty of Nanking of 1842, in which Imperial China ceded the Port city of Hong Kong to Great Britain, which reverted the city back to Chinese control in 1997, as per the treaty specifications. Secondly, as early as 1625, Hugo Grotius, a Dutch Jurist who is known for laying much of the groundwork for modern international law, commented that a stronger states imposing its will on a weaker one via treaty is "a legally binding arrangement on both of the powers". In 1921, Brazil proposed an amendment to the League of Nations that would have voided any international treaty that violated clauses prohibiting aggression. Although the amendment was never adopted, the proposal makes clear that such treaties were considered legal and binding, or such a proposal would not have been necessary! While the PRC claims that the 1945 ROC act of abrogating all prior Chinese Imperial treaties with the Japanese is justification for the ROC reclamation of Taiwan, it does not have legal merit in international law. Professor Y. Frank Chiang wrote in 2005 that there are "No international law principles which can serve to validate a unilateral proclamation to abrogate a territorial treaty, weather based on a charge of being "unequal", or due to a subsequent "aggression" of the other party to the treaty, or any other reason." Both the PRC and ROC claims of the legal unilateral abrogation of the Treaty of Shinmoneseki is further invalidated under the international law Principle of Estopel, which states that "Party A cannot claim a right from which Party B if Party A previously took actions or made statements that were contrary to the current claims and which led party B to take action that is the subject of the current claim." With Imperial China, as well as the ROC having made numerous references to Taiwan under Japanese rule, these actions give further credence that make it irrefutable that Taiwan legally belonged to Japan from 1895 until it relinquished control of the island following the Second World War.
The Concept of Kuo
In addition to the PRC claims over Taiwan that are based on contemporary international law, it also uses the ancient ideals of the Confucian concept of state sovereignty in which the area over which a state, or "kuo" had sovereignty, not as a function of legal limits, but as one of social organization, history, and the loyalty of subjects. In this idea, sovereignty was expressed by influence rather than definitive boundaries that one could locate to on a map. During various periods of Imperial China, portions, or even entire states that are recognized today (Vietnam, Myanmar, Mongolia, Korea, Bhutan, Malaysia, and Nepal), fall into this category. If one was to apply this Confucian logic that the PRC maintains towards its claims over Taiwan, it would appear that the PRC would have a much stronger case over sovereignty over Vietnam and the Korean Peninsula, as both were tributary states of Imperial China as early as 200 BCE. It is also important to note that Beijing does not give a specific time frame in which an area that historically fell under Chinese influence could be considered "historical Chinese territory". It would appear that Taiwan would not fit into such qualifications for this historical sovereignty claim, as it spent less than a decade as a Province of Imperial China. In comparison, why should claims to Taiwan be based on historical record be any more binding than if Turkey were to claim lands that were once part of the Ottoman Empire somehow were a part of its modern territory? In simple terms, under international law, ancient claims may not serve as the legal basis for gaining title to a given territory. Additionally, there is no legal distinction between a country's ancient territory and any other territory.
The Founding of Modern China
Although there are a number of wars, treaties, and developments that took place between the founding of the ROC in 1912 and today, there are some basic points that need to be made regarding Taiwan's place in the creation of the modern Chinese state, or perhaps its absence :
- It is not difficult to draw the following conclusion that, by the ROC not including Taiwan in its original Constitutional drafts that the ROC authorities did not consider Taiwan to be part of its sovereign territory during its inception. This would also mean that upon the creation of the PRC, Taiwan would have also remained outside its legal sovereign territorydue to the facts listed above.On January 12th, 1912 Sun Yat-Sen, who was chosen as interim president by the provisional national assembly of provincial delegates, proclaimed the establishment of the 'Republic of China'. During this time, Taiwan was under Japanese sovereignty and not included in the territory of the ROC during its inception.
- In the draft constitutions of the ROC in 1925, 1934, and 1936, Taiwan did not appear as a province in the new republic.
- A declaration from the Chinese Nationalist Party's 2nd National Party Congress in 1926 commented on Taiwan's nationalist revolution, along with those in Korea, Vietnam, and the Philippines, expressing the party's support for independence for the Taiwanese. In a similar show of support for the Taiwanese independence movement, Chaing Kai-Shek, during a speech to the KMT's Provisional Party Congress in 1938, endorsed Sun Yat-Sen's view that independence for Korea and Taiwan would be beneficial in consolidating the ROC's position in China and laying the groundwork for peace in East Asia. The ROC also made repeated statements from 1912 to 1943 stating its desire to see "Taiwanese independence". With these statements, the ROC validated the legitimacy of Japanese sovereignty over Taiwan according to the international principle of estopel, hence the ROC could not unilaterally invalidate a treaty that it has previously validated in the form of recognizing Taiwan under Japanese sovereignty.
The Cairo and Potsdam Declarations
Two declarations that are often referenced by advocates of Taiwanese-PRC integration are the Cairo Declaration of 1943, and the Potsdam Declaration of 1945. The Cairo Declaration was issued by China (Under ROC jurisdiction), Great Britain, and the United States on December 1st, 1943. It proclaimed, among other issues, that "Japan shall be stripped of all the islands in the Pacific which she seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan stole from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. The Potsdam Declaration, created two years later, emphasized the terms of the Cairo Declaration to be carried out, and that "Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and other islands as we determine." Advocates of unification often point to these declarations to bolster their claim that the allies of World War II sought to pry Taiwan away from Japanese control and return it to its pre-1895 status as a Province of China. Although these declarations were undoubtedly important in the idea that the Allied powers were looking to create international stability following the end of World War II by making their public their intentions for a number of questioned territories, a number of questions remain over the legal importance of these declarations, including the actual validity of both being binding documents on par with recognized treaties.
The International Law Commission, when developing the Vienna Convention on the Law of Treaties, decided against the inclusion of joint statements of policy or intention by incorporating in its definition the requirement that an international agreement must be "governed by international law" in order to be a treaty. Both declarations in effect were little more than the intended actions of states who agreed to the declarations desired to take in the in the future when conditions were permissible. A second factor to consider regarding the two documents is that even if such documents were recognized under international law as binding, the binding force of any international agreement is limited to signatory nations and cannot extend to third party nations that are not signatories, nor can it demand obligations of third party nations. Japan was not a signatory to either declaration, hence the documents have no actual force in international law, as Taiwan was a territory of Japan at the time the document was signed.
The Atlantic Charter of 1941
It is worth noting that while the PRC frequently mentions the aforementioned documents as a basis of claiming sovereignty over Taiwan, it does not recognize the Atlantic Charter of 1941. The Charter, which was endorsed by the ROC, Breat Britain, and the United States, states that in regards to Taiwan, there would be no territorial change without the expressed wishes of the people concerned, that the people have the right to choose the form of government they will live under, and that "sovereign right and self-government be restored to those who have been forcibly depressed." This is a critical point and should be repeated:
there would be no territorial change without the expressed wishes of the people concerned, that the people have the right to choose the form of government they will live under, and that "sovereign right and self-government be restored to those who have been forcibly depressed." -The Atlantic Charter of 1941
Crimea (Yalta) Conference of 1945
This conference stated that "Taiwan and the Pescadores be put into the trusteeship system after World War II," wording which was later defined under articles 76 and 77 in the United Nations Charter. This conference also cannot be considered binding under international law due to the fact that the Charter was ratified on June 26th, 1945, a full six years before the Japanese Empire officially ceded sovereignty claims over Taiwan under an official binding treaty, the Treaty of San Francisco.
General Order No. 1
On September 2nd, 1945 officials from the Japanese government signed the official Japanese instrument of surrender, officially ending World War II. It was during this time that the United States, in accordance with international law, became an occupying power of the Empire of Japan and its respective territories. On this day, General Douglas, the Supreme Commander of the Allied Forces, issued General Order No.1, which directed ROC General Chaing Kai-Shek to enter Taiwan and accept the surrender of Japanese troops. The military troops under Chiang Kai-Shek, while exercising delegated administrative authority for the military occupation of Taiwan beginning on October 25th, 1945, had (and continue to have) effective territorial control over Taiwan. Yet many international law experts claim that the ROC does not have legal authority over Taiwan, as there has never been an official transfer of sovereignty. On this date, the ROC was only an occupying force on Taiwan, whereas the United States remained the principal occupying power of the island.
Treaty of San Francisco
It was with the Treaty of San Francisco (TOSF) that Japanese sovereignty over Taiwan officially ceased. The treaty was signed not only by the victorious Allies, but by the Japanese as well. Under international law, the treaty is highly significant and of a far higher legal stature than other international documents where only a portion of states are signatories. Until the TOSF was ratified in 1952, Japan technically had yet to lose sovereignty over Taiwan. Under Chapter 2, Article 2, Section B of the treaty, it states that Japan "renounces all right, title, and claim to Formosa and the Pescadores". The treaty did not state that the previous treaties which granted Japan territories from prior agreements were invalid, which effectively nullifies the claim made by both the PRC and ROC that Taiwan reverted back under ROC control following the 1943 ROC declaration that it was unilaterally nullifying the Shinmoneseki Treaty. The TOSF also did not explicitly state the sovereignty status of Taiwan after Japanese reunification. In 1955, John Foster Dulles, co-author of the San Francisco Peace Treaty, affirmed that that the treaty ceded Taiwan to no one; that Japan "merely renounced sovereignty over Taiwan." The ROC was not a signatory to the TOSF and according to Articles 21 and 25, "cannot claim any special benefits in regard to ownership of Formosa and the Pescadores via the treaty", nor can the ROC claim to be an "Allied Power" as defined in the treaty.
Treaty of Taipei
In 1952 Japan and the ROC officially ended hostilities between each other by signing the Treaty of Taipei (TOT). While both the ROC and PRC have stated that the Treaty enhances their claim over the sovereignty of Taiwan, in the realm of international law, it does not. The treaty states in Article 4 that "...all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of war". It is puzzling how the PRC would find validity in this specific treaty, as it claimed to be the sole representative of all China in 1949, a full three years prior to the ROC signing the treaty with the Japanese. There is also the issue of the Treaty of San Francisco to be considered, which under the rules of the Geneva Convention, effectively placed Taiwan under ROC military occupation, under the consent of the United States as the legal trustee of the island as an Allied member from World War II. Furthermore, Great Britain and American officials did not recognize and transfer of Taiwan's sovereignty to "China" in either of the post-war treaties. While it would appear that Japan was recognizing the sovereignty of the ROC on Taiwan, Yuzin Chiautong of the World United Formosans for Independence (WIFI) proposed an alternative viewpoint in 1972, stating that Article 10 of the treaty was not an affirmitive definition of the Chinese nationality of the Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as ROC nationals, because otherwise they would be considered stateless and be ineligible for documentation to enable them to travel to Japan.
United Nations Resolution 2758
"The General Assembly Decides to restore all its rights to the People's Republic of China and to recognize the representative of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek for the place which the unlawfully occupy at the United Nations and in all the organizations related to it." (UN-1971) While this resolution recognized the PRC as the legitimate representative of China, it did not specifically state that Taiwan was included as part of China. In 1964, when France decided to establish diplomatic relations with the PRC, President Charles de Gaulle hoped to continue a concurrent diplomatic relationship with the ROC. Greece also desired to maintain its diplomatic relationship with the ROC government. The only potential that existed for this scenario to have occurred would have been for the ROC to alter its stanceof being the sole legitimate representative of China, and declare Taiwan a separate sovereign entity. These governments were aware of this fact, and were likely not the only states hoping that the ROC would alter its foreign policy in order to justify diplomatic recognition. Chaing Kai-shek, however, insisted on maintaining a one China policy with the hopes of reclaiming China proper, and with this policy further isolated the ROC diplomatically and left Taiwan frozen in a state of legal limbo.
While states generally recognize the PRC one China policy in diplomatic settings, the ROC's authority is dually recognized both in fact and in law. In 1997, judicial courts in Nova Scotia specifically recognized Taiwan as a "flag state" under the Laws of the Seas and decided that Taiwan possesses exclusive jurisdiction over Taiwanese nationals in high seas. While Taiwan maintains its own government, territorial jurisdiction, standing military, internationally recognized sovereign land, air, and maritime territory, and a permanent population it is still not a state in the de jure sense. International Law expert Daniel O'Connell has asserted that "a government is only recognized for what it claims to be." Taiwan is still not a "state" because it still has not unequivocally asserted its separation from China and is not recognized as a state distinct from China. Yet the claims of China still remain. It is with good reason that the PRC has shown a great deal of insecurity in its diplomatic attempts to convince the world of its legal claims of sovereignty over Taiwan, for its arguments, both historic and legal, are filled with inconsistencies and inaccuracies. The PRC's depiction of Taiwan historically being a constant part of the Chinese territorial makeup does not match the historical record of the island. Even if the concept of ancient claims were to be accepted, the PRC has never clearly stated a definitive time frame for which it considers the length in which a territory is required to be controlled and administered, as well as how far into history a state should be legally allowed to claim such a condition. This is perhaps intentional, as areas within the current territory of China has been occupied by other states and empires (ie Russia, Japan, Mongolia, Korea) for much longer periods of time than the PRC could claim jurisdiction over Taiwan. While there are still a number of unanswered questions regarding the legal status of Taiwan in accordance to accepted norms within international law, the question of Beijing's territorial claims to Taiwan have been answered for some time, and the truth has become a bitter pill for China to swallow.