Notes on the Legal Status of Taiwan Territory
  -- with particular reference to the maneuverings of Mr. Henry Kissinger

ITEM 1: The status of Taiwan was always stated as "undetermined" up through the Korean War period.

July 14, 1971
SUBJECT: My Talks with Chou En-lai

[Taiwan] was described by Chou as the basic issue between the U.S. and the PRC, going back to the Korean war, when we "surrounded" Taiwan and declared -- in contrast to our previous position -- that its status was "undetermined." Chou maintained that this was still our position, citing as a case in point a recent statement by the State Department press spokesman to the effect that Taiwan status was legally undetermined.
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ITEM 2: This method of expression was later changed by Kissinger to "between Taiwan and PRC" ....

During the process of Cold War rapprochement between Beijing and Washington in 1971-72, Premier Zhou Enlai pressed National Security Advisor Henry Kissinger to recognize that Taiwan is part of China. Rather than agreeing to this formula, Dr. Kissinger merely agreed not to discuss the U.S. position on Taiwan's unsettled status in public. This posture did not change during the normalization process under the Carter Administration. Even when Washington transferred diplomatic recognition from Taipei to Beijing in January 1979, the "undetermined" status of Taiwan remained.
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ITEM 3: Official US policy and Kissinger's secret assurance

Since the end of the Second World War, it has been the official policy of the United States government that the post-World War II status of Taiwan is "an unsettled question subject to future international resolution." Taiwan was a former colony of the Empire of Japan to which Japan abjured in the document of surrender all "right, title and claim" in perpetuity. However, Japan pointedly did not designate any of its victorious enemy nations as the recipient of Taiwan, leaving it for the allied powers to sort out in the fullness of time.(FN 2)
2. See Memorandum from the Department of State Legal Advisor (L/EA - Robert I. Starr) to the Director of the Office of Republic of China Affairs (Charles T. Sylvester), July 13, 1971, "Subject: Legal Status of Taiwan." This memorandum is reprinted as Appendix C in John J. Tkacik, ed., Rethinking One China (Washington, D.C.: The Heritage Foundation, 2004), p. 181.

The Korean War and the Cold War intervened to prevent the allies from designating "China" (either Chiang Kai-shek's government-in-exile on Taiwan or Mao Zedong's new "People's Republic of China" in Beijing) as the new sovereign over Taiwan, and the matter went unsettled when the final peace treaty with Japan was signed in San Francisco in September 1951.

The "unsettled" status of Taiwan remains the policy of the United States government to this day, except that constant repetition of the phrase "one China policy" has given America's political leaders, in both the Congress and the executive branch, the vague impression that somehow the United States formally recognizes that Taiwan is a part of China.

Compounding the confusion is the Administration's resolute refusal to be clear on the matter (and this is not just a problem with the present Administration, but with all previous ones dating back to President Nixon's first term).

Dr. Henry Kissinger apparently gave a secret assurance to Chinese Premier Zhou Enlai in 1971 that the State Department would no longer refer in public to the status of Taiwan as undetermined.(FN 8) Apparently through some misplaced loyalty to Dr. Kissinger's secret assurances to Beijing 34 year ago, State Department officials still refuse to say in public that U.S. policy is that Taiwan's legal status remains "unsettled."

8. See Kissinger's record of his conversation with Premier Zhou of October 21, 1971, classified TOP SECRET/SENSITIVE/EXCLUSIVELY EYES ONLY, White House, "Memorandum of Conversation," October 21, 1971, p. 27.

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ITEM 4: US government policy on the Taiwan issue

.... but the important thing is, what is the policy, and the policy is determined by the President. The State Department has a role in formulation and implementation, AIT has a role in implementation. And the policy, as determined by the President, is we do not support Taiwan independence.
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ITEM 5: Formal Statements of Policy on the Taiwan issue

Washington's "one China" policy does not mean that the United States recognizes Beijing's claims to sovereignty over Taiwan.(FN 7) On the contrary, on July 14, 1982, Washington gave specific assurances to Taiwan that the United States did not accept China's claim to sovereignty over the island (see "The 'Six Assurances' to Taiwan"),(FN 8) and the U.S. Department of State informed the Senate that "[t]he United States takes no position on the question of Taiwan's sovereignty."(FN 9)
7. See, for example, "Transcript: Sec. Powell En Route to Canberra July 29, 2001 (Outlining results of visit to Asia Pacific region) (4820)," at Powell told reporters that he had raised the issue of the differing American and Chinese views of the "one-China" policy: "SECRETARY: ...I think it got us past that, and allowed them to make sure that I had a clear understanding, which I did, of the one-China policy as they see it and allowed me to reinforce to them our one-China policy understanding as well, based on the TRA and the three communiques."

8. For a detailed description of the U.S. "one China" stance, see Ambassador Harvey Feldman, "A Primer on U.S. Policy Toward the `One-China' Issue: Questions and Answers," Heritage Foundation Backgrounder No. 1429, April 12, 2001.

9. Hearings, The Taiwan Communique and the Separation of Powers, Subcommittee on the Separation of Powers, Committee on the Judiciary, U.S. Senate, 97th Cong., 2nd Sess., September 17 and 27, 1982, p. 140.

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ITEM 6: Background

There was an Exchange of Notes of December 10, 1954, between John Foster Dulles, Secretary of State of the U. S. and George K. C. Yeh, Minister of Foreign Affairs of the ROC, which contained the following:
"The Republic of China effectively controls both the territories described in article VI of the treaty ... and other territory...."

Hence, it should be clear that the Exchange of Notes between Dulles and Yeh, not to mention the Mutual Defense Treaty between the U. S. and the ROC, did not recognize Taiwan to be the ROC's state territory. In fact, throughout the negotiations for the Mutual Defense Treaty, the ROC made every effort to establish its possession of Taiwan but the United States rejected such a move.

On December 1, 1954, a few days before his delivery if the Exchange of Notes to George K.C. Yeh, John Foster Dulles made it abundantly clear at a press conference that "sovereignty over Formosa and the Pescadores has never been settled.... The future title is not determined..... Therefore, the judicial status of these islands [Formosa and the Pescadores] is different from the judicial status of the off-shore islands [Quemoy and Matsu] which have always been Chinese territory." The Exchange of Notes of December 10th was composed with such an observation in view and only proves that the United States had never recognized Taiwan to be a state territory of the ROC. On the legal status of Taiwan, the United States has consistently maintained the view that it remained undefined ever since President Harry S. Truman declared on June 27, 1950, that the "determination of the future status of Formosa must await the restoration and security in the Pacific, a peace settlement with Japan, or consideration by the United Nations." While the Mutual Defense Treaty between the U. S. and the ROC was under deliberation at the U. S. Senate, some feared that the Treaty might come to have the effect of having the United States shift her policy of regarding the status of Taiwan undefined and recognize ROC's possession of Taiwan. So the Senate Foreign Relations Committee inserted in its report that "it is the understanding of the Senate that nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty of the territories referred to in Article VI."
(Reference: U.S. Congressional Record - Senate, Vol. 101, Part 1, p. 1381.)

Mutual Defense Treaty Between the United States and the Republic of China, March 3, 1955

ITEM 7: History creates present problems

When Henry Kissinger, national security adviser to US president Richard Nixon, met Chinese premier Zhou Enlai on Oct, 21, 1971, he said that the US was "not encouraging any government to maintain the position that the status is undetermined ... But [I cannot confirm] what tactical position we will take if another government raises whether the status of Taiwan is undetermined. I can confirm our position to bring about peaceful solution within the framework of one China."

Kissinger's words had an important influence on the US' Taiwan policy. Washington had assured Beijing it would not say that "the status of Taiwan is still undetermined," but deep down, the US kept thinking that it was. And because the status of Taiwan was still undetermined, the US could build up relations with Taiwan on all levels through the Taiwan Relations Act. How would the US resolve these difficult issues? ....

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