Tuesday, February 5, 2013

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

     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 since, 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.
The Treaty of Shinmoneseki 

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:

*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.

     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 territory due to the facts listed above.

Part 2 will examine developments that took place following the Second World War

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