The legal question of which legal entity holds de jure sovereignty over Taiwan is a controversial issue. Various legal 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. On a de facto basis, sovereignty over Taiwan is exercised by the Republic of China. This article is intended only to describe Taiwan's sovereignty status on a de jure basis.

Historical overview

Taiwan and associated lands, also called "Formosa and the Pescadores", was permanently ceded by the Qing Dynasty to Japan via Articles 2b and 2c of the Treaty of Shimonoseki in May 8, 1895 in one of what the Chinese term as an unequal treaty. The Chinese Qing dynasty was subsequently overthrown and replaced by the 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 the Taiwan cession 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 returned to the ROC after the war, and the Potsdam Declaration outlined the terms of surrender.

When Japan unconditionally surrendered, it accepted in its Instrument of Surrender the terms of the Potsdam Declaration. The representatives of the Supreme Allied Commander in the China Theater, Chiang Kai-shek (i.e. the Republic of China military forces), were directed to go to Taiwan and accept the surrender of Japanese troops according to the directions of General Douglas MacArthur, head of the United States Military Government, in General Order No. 1, which was issued September 2, 1945. The Japanese troops there subsequently surrendered to ROC military forces as directed, and Chief Executive Chen Yi soon proclaimed "Taiwan Retrocession Day" on October 25, 1945.

When the 228 Incident erupted in February 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 would still legally be part of Japan and occupied by Allied Powers. and a direct intervention was appropriate for a territory with an such status. This proposed intervention, was rejected by the U.S. State Department. In a news report on the aftermath of the 228 Incident, Formosans were reported to be talking of appealing to the United Nations to put the island under an international mandate, since China's possession of the Taiwan has not been formalized by any international treaties by that time.[1] Formosans 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]

After the outbreak of the Korean War, U.S. President Harry S. Truman decided to "neutralize" Taiwan for fear of it prompting 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 the mainland. He also 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."[3] 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.[4] The PRC denounced that move as flagarant interference in the internal affairs of China.

On September 8, 1950, the 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 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. 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 retreated to Taiwan. The PRC, which was proclaimed October 1, 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 as such); 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 establshed relations with the PRC, while others, such as the U.S. and Japan, still held relations with the ROC.

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 ceding 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.

Subsequently, the Treaty of Taipei was concluded between the ROC and Japan in 1952, where Japan again relinquished sovereignty over Taiwan and basically affirmed the terms of the San Francisco Peace Treaty, and formalized the peace between the ROC and Japan. It also nullified all previous treaties made between China and Japan, implicitly repealing the Treaty of Shimonoseki.

Legal arguments

Arguments in favor of Chinese sovereignty

Arguments common to both the PRC and ROC ("Chinese" here is an ambiguous term that could mean both the PRC and ROC as legal governments of China.)

1. The waging of aggressive war by Japan against China in 1931 and beyond violates the peace that was brokered in the Treaty of Shimonoseki, and with the declaration of war against Japan, that treaty is void. Therefore, with no valid transfer of sovereignty having taken place, Taiwan sovereignty naturally belongs to China.
2. The Cairo conference and Potsdam declaration were accepted by Japan in its surrender. Those documents clearly state that Taiwan was to be returned to Chinese sovereignty at the end of World War II.
3. The proclamation of Taiwan retrocession in 1945 by the ROC (while the PRC had not yet been founded) was uncontested by any party. Had another party been sovereign over Taiwan, the party had a period of years with which to protest. This lack of protest voids whatever alternative claims that could of existed. The PRC can use this argument because it was founded only in 1949, and as the successor state to the ROC (in its view) it acquired the benefits and obligations undertaken by its predecessor.
4. The San Francisco Peace Treaty's omission of China as a participant was an accident of history and possibly due to cold war manuvering, and it was protested. Excluding China from the conference itself could be illegal, or even if not, then perhaps signs of bad faith on the part of the other allies. The exclusion of China as an allied power ignores the history of World War II. Not specifically specifying the recipient of Taiwan was an accident of history. Japan, as a not yet fully sovereign state, really had no choice with the treaty terms.
5. Taiwanese and Chinese culture are extremely similar, and the majority of Taiwanese are decended from migrants who moved there from mainland China.

Argument unique to the PRC
The original Treaty of Shimonoseki was an unequal treaty signed as a result of aggressive war. Hence, it is unjust and void ab initio. As the successor government to the Qing and ROC in that order, then the PRC would naturally possess Taiwan sovereignty as it would of never been ceded in the first place. The PRC does not recognize the validity of any of the unequal treaties the Qing signed in the "century of humiliation," as it considers them all unjust and illegal.

Argument unique to the ROC
The Treaty of Taipei formalized the peace between Japan and the ROC. In it, Japan agreed to cede Taiwan (but again, without explicitly specifying a recipient) and void all treaties conducted between China and Japan (including the Treaty of Shimonoseki). Implicitly though, since the treaty was made between the ROC and Japan, the recipient of the cession would be the ROC. To support that contention, the residents of Taiwan were regarded as ROC nationals in the treaty. Otherwise the treaty generally follows the terms of the San Francisco Peace Treaty. As the undisputed direct successor government to the Qing, the ROC would be entitled to Taiwan's sovereignty since the transfer of sovereignty in the Treaty of Shimonoseki would be void, and no such transfer would of actually taken place de jure back when the now voided treaty came into force. The treaty was not protested by any state. Again, if some other party had Taiwan's sovereignty, that party had an obligation to protest what would of been a void transfer; the lack of protest voided whatever claims that party had. However, the PRC considers this treaty illegitimate as the Treaty of Taipei was concluded by the ROC after the PRC's founding proclamation. Japan abrogated it upon establishing diplomatic relations with the PRC.

Arguments not in favor of Chinese sovereignty

Arguments by various pro-Taiwan-independence/self-determination groups

1. The peace that was brokered in the Treaty of Shimonoseki was breached by the Boxer Rebellion which lead to the conclusion of the Boxer Protocol of 1901 (Peace Agreement between the Great Powers and China)[5], not by the second Sino-Japanese War. The Treaty of Shimonoseki was a dispositive treaty , therefore it is not voidable or nullifiable. This doctrine being that treaties specifying particular actions which can be completed, once the action gets completed, cannot be voided or reversed absent a new treaty specifically reversing that clause. The unequal treaty doctrine can not be applied on to this treaty. As 200,000,000 Kuping taels was not returned to China from Japan, and Korea had not become Chinese dependent country again, the cession in the treaty was executed and can not be nullified. The cession of Formosa in this treaty was a legitimate cession by conquest, and thus is not a theft as described "all the territories Japan has stolen from the Chinese" in Cairo Declaration.
2. The so-called Cairo Declaration was merely an unsigned press communique which does not bear any legal effectiveness. Whereas the Potsdam Declaration and Instrument of Surrender are simply modus vivendi and armistice which function as temporarily record and do not bear legal binding power to transfer sovereignty. Good faith of interpretation only take place at the level of treaties.
3. Culture and history do not constitute legal basis for claim of sovereignty.
4. The retrocession proclaimed by ROC in 1945 was legally null and impossible since Taiwan was still de jure part of Japan before the peace treaties signed.
5. Sovereignty transfer by prescription does not apply on to Taiwan's case since: 1) Prescription is the manner of acquiring property by a long, honest, and uninterrupted possession or use during the time required by law. The possession must have been possessio longa, continua, et pacifica, nec sit ligitima interruptio (long, continued, peaceable, and without lawful interruption). For prescription to apply, the state with title to the territory must acquiesce to the action of the other state. Yet, PRC has never established an occupation on Taiwan and exercise sovereignty for one single day. 2) Prescription as a rule for acquiring sovereignty itself was not universally accepted. International Court of Justice ruled that Belgium retained its sovereignty over territories by non-assertion of its rights and by acquiescence in acts of sovereignty alleged to have been exercised by the Netherlands over a period of 109 years.[6], 3) A pro-independence group, which formed a Provisional Government of Formosa in 2000, argued that both the 228 incident of 1947 and the Provisional Government of Formosa have constituted protests against ROC government's claim of retrocession within a 50 year acquiescence period[7], 4) Taiwanese residents were unable to make a protest after the 228 incident due to the authoritarian rule under KMT regime which suppressed all pro-independence opinion. 5) Japan was not able to cast a protest as it has yet resumed her sovereignty over Taiwan in between 1945 to 1952[8], 6) In the Six Assurances offered to Taiwan in the 80s, U.S. explicitly does not recognize the sovereignty claim over Taiwan from PRC. The U.S. also denied the sovereignty claim from ROC in the congress report in the 70s[9].
6. The San Francisco Peace Treaty is definitive, where Japan ceded Taiwan without specifying a clear recipient. China was prohibited from benefiting from Taiwan sovereignty in SFPT when the treaty was initially drafted. Subsequent Japanese cessions (such as Treaty of Taipei) are void, as Japan cannot cede what it no longer possessed. Since the peace brokered in the Boxer Protocol of 1901 was breached by the second Sino-Japanese War, the San Francisco Peace Treaty specifies that the date to be used in returning territory to China in the Article 10 was 1901, not 1895. The postliminium restoration of China was completed without Taiwan sovereignty since Taiwan was not part of China when the first Chinese Republic was established in 1911. Moreover, the treaty of Taipei was abrogated by Japan upon the PRC's request in 1972.
7. Cession of Taiwan without a recipient was neither unusual nor unique, since Cuba, as a precedence, was cessioned by Spain without recipient in Treaty of Paris of 1898 as the result of Spanish-American War. At the end of WWII, Libya and Somaliland were also relinquished without receipient by Italy in the Treaty of peace with Italy of 1947 and both reached independence later. As one of the "territories which detached from enemy states as a result of the Second World War" defined in the article 76b and 77b of the United Nations Charter which China signed in 1945 and also defined in the protocol of Yalta Conference, Taiwan qualifies the UN trusteeship program. China would have a treaty obligation to comply with the UN Chater and help people living in Taiwan enjoy the right for self-determination.
8. Due to the "limbo cession," the United States would temporarily hold Taiwan's sovereignty in trust as the principal occupying power as defined in SFPT Article 23. International law specifies that the sovereignty of an area under military occupation is held in trust by the principal occupying power, and this is an interim status condition. Hence, the sovereignty of Taiwan was held in trust by the United States beginning on October 25, 1945. Under Field Manual 27-10 Law of land warfare article 353 and 354[10], the Republic of China is acting as the "agents" for the United States military government in this arrangement.

While Taiwan independence supporters once used arguments not in favor of Chinese sovereignty to dispute to legitimacy of the Kuomintang-controlled government that ruled over Taiwan, these arguments have been dropped by a majority (except the most extreme) supporters of independence due to the democratization of Taiwan. This allowed moderate supporters of independence, such as President Chen Shui-bian, to stress the popular sovereignty theory in order to accept the legitimacy of the Republic of China (whose government the Democratic Progressive Party now controls) over Taiwan.

In this sense, the ROC government currently administrating Taiwan is not the same ROC which accepted Japanese surrender in 1945, because the ruling authorities were given popular mandate by different pools of constituencies: one is the mainland Chinese electorate, the other is the Taiwanese constituencies. However, popular sovereignty theory, which the pan-green coalition emphasizes, suggests that Taiwan could make fundamental constitutional changes by means of a popular referendum, while the ROC legal theory, which is supported by the pan-blue coalition suggests that any fundamental constitutional changes would require that the amendment procedure of the ROC constitution be followed. The popular sovereignty theory, however, does not contradict the argument in favor of self-determination and nor does it affirm arguments in favor of Chinese sovereignty, meaning that the only obstacle towards declaring Taiwan independence is a lack of consensus among the Taiwanese people to do so.

Position of the United States

The State Department informed the U.S. Senate in 1970 that, "as Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution." As the Republic of China's government maintained its provisional capital in Taipei, the United States did not formally recognize that Chinese government's sovereignty over Taiwan. The long-standing U.S. position only recognized "the Government of the Republic of China as legitimately occupying and exercising jurisdiction over Taiwan...." as ROC legally occupied Taiwan under General Douglas MacArthur's General Order No. 1.

In the Shanghai Communique of February 28, 1972, U.S. President Nixon and top PRC officials agreed that the PRC to be "the lawful government" of the Taiwan cession in the future. However specific details for the unification of the Taiwan cession by the PRC and the Taiwan governing authorities were left up to the officials of both sides of the Taiwan Strait to negotiate separately. In this way, the United States arranged to make transfer of the sovereignty of the Taiwan cession to the PRC in the future without a time table.

The proposed change of political status by PRC and U.S. was not authorized by Taiwanese residents who may or may not agree to be the Chinese referred in the communique. As long as a final conclusion was not reached between the authorities across Taiwan strait, the transfer would be indefinitely delayed. Before such a transfer takes place, it can be said that de jure the United States Military Government still administers Taiwan through the surrogate civil administrative government, but de facto the Republic of China on Taiwan is a 2nd sovereign state of Chinese ethnicity.

This interpretation of Taiwan's de jure status has gained some low level of acceptance in recent years. In a Rotary Club meeting in 2004, the former ROC President Lee Teng-hui, who is recognized as a pro-independence leader, publicly asserted that Taiwan is still a territory administrated by US military government and therefore is not likely to be accepted in U.N. without a determined status.[11] Still, one should note that this is a position held by a small minority, and the United States government has not claimed Taiwan's sovereignty, in spite of the possibility of making such a claim through the San Francisco Peace Treaty. Although the PRC continually stresses the sovereignty of Taiwan to be its domestic affair and the U.S. has "acknowledged" the PRC's position, the U.S. government made it clear that "the United States would not formally recognize Chinese sovereignty over Taiwan" in its Six Assurances offered to Taipei (ROC) in 1982. However, since the ROC was an unrecognized government, the statement "Chinese sovereignty" probably referred to PRC sovereignty. These Six Assurances were reaffirmed in late October 2004 after former Secretary of State Powell remarked in a press conference in Beijing that "Taiwan does not enjoy sovereignty as a nation." (disputed — see talk page)

See also

• History of Taiwan
• Political status of Taiwan

External links

• Commonwealth Foundation (Advocates US Commonwealth Status for Taiwan)
• Taiwan Status: From Grotius to WTO
• Understanding the SFPT's Disposition of Formosa and the Pescadores Legal argument by Richard W. Hartzell in favor of US military government sovereignty over Taiwan (PDF)
• Taiwan Affairs Office of the State Council - White Papers on Taiwan Issue by the PRC
• China Taiwan Information Center (PRC perspective)