Thursday, February 7, 2013

Part 2: Seeking Truth From Facts: Challenging the People's Republic of China's Territorial Claims over Taiwan

     While part one of this series dealt with Chinese sovereignty  claims over Taiwan from ancient times up until the end of World War II, part two will examine the post war landscape up until present day.

     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.

General MacArthur and Chiang

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.  

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