What was Taiwan’s legal status after WWII?

(4) What was Taiwan’s legal status after WWII?

Many people contend that Taiwan was “returned” to China in 1945. In order to discuss this issue, we need to consider the following: Is there any international law or international treaty which can prove that Taiwan has been incorporated into Chinese territory in the period of 1945 to the present?

Also important in answering this question is the concept of the “successor government theory.” This is explained as follows.

The people who established the People’s Republic of China (PRC) as a country were the Chinese citizens in mainland China, and these same people were indeed the original citizens of the Republic of China (ROC).

The final period of the civil war in Mainland China saw the saw the founding of the PRC on Oct. 1, 1949, with the KMT/ROC government officials fleeing to Taiwan in December of that year. Hence, effectively speaking, the ROC was put out of existence when the PRC was founded on Oct. 1, 1949, and the PRC drafted a new constitution for China.

Under international law this is significant, because it means that the PRC has succeeded the ROC, and therefore the PRC government gains the rights to all assets that the ROC government had.

The “successor government theory” began to be applied in the late 1940’s in regard to the domestic Chinese political situation. Obviously, more and more people accepted the legitimacy of this theory when the ROC was expelled from the United Nations in October 1971, and when the United States announced its impending break in relations with the ROC in December 1978.

Today many people would say that this “successor government theory” defines the legal reality of the world situation in which we live here in the 21st century. In other words, the PRC has succeeded the ROC in the international community as the sole legitimate government of China, and therefore (in their view) Taiwan belongs to the PRC.

A Flaw in the “Successor Government Theory”

Is there a flaw in this argument? Yes, there is. The flaw is “Taiwan Retrocession Day.” Specifically, Chinese officials on both sides of the Taiwan Strait have always stressed that the surrender ceremonies on Oct. 25, 1945, resulted in Taiwan’s sovereignty being transferred to China. However, the Allies did not recognize any such transfer of sovereignty. Nor does international law allow the surrender ceremonies to be interpreted in such a way.

Legally speaking, the completion of the surrender ceremonies merely means that the military occupation of Taiwan has begun. Under international law, “military occupation” does not transfer sovereignty; hence the claim that Oct. 25, 1945 is “Taiwan Retrocession Day” is simply Chinese propaganda. Realization of the true significance of the events of this October day is important if we want to understand the proper scope of application of the “successor government theory.”

Additionally we have to recognize that the territorial sovereignty of “Formosa and the Pescadores” was not transferred to the ROC in the post war treaty, i.e. the San Francisco Peace Treaty (SFPT) of April 28, 1952. So, the ROC in Taiwan is a government without a “territory.”

The Hague and Geneva Conventions and the One China Policy

Under the Hague and Geneva Conventions, details such as “Who surrendered to whom,” or “Who defeated whom,” are not particularly significant. The key point is: “Who is the occupying power?” It is a matter of historical record that all military attacks against targets in Formosa and the Pescadores during the WWII period were conducted by United States military forces. Hence, the United States is “the conqueror.” Under the customary laws of warfare of the post-Napoleonic period, the United States will be “the (principal) occupying power.”

From this perspective, the military troops under Chiang Kai-shek are only exercising delegated administrative authority for the military occupation of Taiwan beginning Oct. 25, 1945. They have effective territorial control over Taiwan, but there has been no transfer of sovereignty. Later, when the KMT/ROC government officials fled to Taiwan in late 1949, they became a government-in-exile.

In the SFPT of 1952, there was no transfer of sovereignty of “Formosa and the Pescadores” to the Republic of China. Hence, up to the present day, the Republic of China in Taiwan is merely continuing to fulfill its dual roles of (1) subordinate occupying power beginning Oct. 25, 1945, (2) and government-in-exile beginning mid-Dec. 1949.

With a realization of these facts, we can clearly see that the PRC is the “sole legitimate government of China,” and therefore the One China Policy is essentially correct. Taiwan remains under the administrative authority of “the principal occupying power” (the United States), because military occupation is, fundamentally, a transitional period, or a period of interim (political) status. To put this in perspective, an examination of the Truman Statement of June 27, 1950, the SFPT, and all other relevant legal (or quasi-legal) pronouncements up to the present day, it is clear that Taiwan has not yet reached a final political status.

At the same time, we must be careful to realize that the One China policy cannot be interpreted to mean that Taiwan is already a part of China. This was confirmed in President Reagan’s “Six Assurances” of July 14, 1982, and more recently in a Congressional Research Service report China/Taiwan: Evolution of the “One China” Policy (July 9, 2007), but the legal rationale for such an interpretation goes back many decades. Indeed, this rationale was conveyed in a “top secret” State Department position paper to Secretary of State John Foster Dulles in October 1954, which noted that the “future” status of Taiwan and the Pescadores “was deliberately left undetermined, and the US as a principal victor over Japan has an interest in their ultimate future. We are not willing that that future should be one which would enable a hostile regime to endanger the defensive position which is so vital in keeping the Pacific a friendly body of water.” See Foreign Relations of the United States, 1952-1954, Volume XIV, China and Japan (Part 1) (Washington: US Government Printing Office, 1985), p. 760.

With reference to US State Dept. documents, the Congressional Research Service’s report China/Taiwan: Evolution of the “One China” Policy, and other relevant data, Senior Research Fellow in Asian Studies at The Heritage Foundation John J. Tkacik, Jr. concludes that: “For more than six decades, the United States has explicitly declined to recognize Chinese’ sovereignty over Taiwan, even under the ‘Republic of China.’ ” See “Taiwan’s Elections: Sea Change in the Strait,” Heritage Foundation WebMemo No. 1865, March 24, 2008.

The US State Department’s webpage – Background Note: Taiwan

The author is fully aware that the US State Department’s webpage on Taiwan contains the sentence “At the end of World War II in 1945, Taiwan reverted to Chinese rule.” However, the author must point out that this webpage was written by civilian scholars, who lack any in-depth knowledge of the customary laws of warfare of the post-Napoleonic period. This lack of knowledge is quickly shown by noting that under international law, a war cannot be said to have ended until the peace treaty comes into effect. Hence, World War II in the Pacific did not end in 1945, but only in 1952, with the coming into force of the peace treaty. In other words, the statement that “At the end of World War II in 1945, Taiwan reverted to Chinese rule” is erroneous.

In fact, the view of the US government in the intermediate post-war period was typified by a statement on April 11, 1947 of then Acting Secretary of State Acheson, in a letter to Senator Ball, that the transfer of sovereignty over Formosa to China “has not yet been formalized.” In other words, under international law, the date of Oct. 25, 1945, only marks the beginning of the belligerent occupation of Taiwan.

Moreover, in a US State Dept. memorandum of September 19, 1949 to Ambassador Jessup, concerning the “Legal Status of Formosa”, the Legal Adviser made the following statement respecting the breadth of authority granted by the often mentioned inter-Allied agreements: “It is believed that the statement of the Cairo Conference was at most a declaration of intention with respect to future disposition of certain parts of the Japanese Empire, and that there is nothing in the Potsdam Proclamation, or in its acceptance by the Japanese Emperor, or in the Instrument of Surrender, which purports to make a present cession to China of sovereignty over Formosa. From the language of all of these instruments it appears that future action is contemplated, and the Japanese obligation is to take whatever action which may be required in the future to give effect to the Potsdam Proclamation, and hence to the Cairo Declaration. From the standpoint of accepted international law, any transfer of sovereignty must be upon the basis of a formal treaty or instrument to which the ceding nation is a signatory. 1 Hyde, 358-359; 1 Oppenheim, 500.”

Summary and Conclusion

Taiwan remained as Japanese territory up until April 28, 1952, when it was ceded in the SFPT. Pursuant to this treaty, Japan renounced its sovereignty over Taiwan (Formosa) and title to its territory. Article 2(b) of the treaty provided, “Japan renounces all right, title and claim to Formosa and the Pescadores.”

China never became a party to the SFPT. Neither the ROC government, which occupied the island of Taiwan as agent for the “principal occupying power,” nor the government of PRC, which controlled mainland China, signed, ratified, or adhered to the SFPT.

Article 25 of the SFPT specifically provided that the Treaty did “not confer any rights, titles or benefits on any State which [was] not an Allied Power [as defined in Article 23(a).] Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan (Formosa).

The Treaty of Peace between the ROC and Japan (aka the”Treaty of Taipei”), entered into force on August 5, 1952, did not transfer sovereignty over Taiwan from Japan to China either.

While Article 2(b) of the SFPT did not designate a recipient of “all right, title and claim to Formosa and the Pescadores,” Article 23(a) of the SFPT designated the United States as “the principal occupying power” with respect to the geographic areas covered by the treaty, including “Formosa and the Pescadores.” Following the entry into force of the SFPT, the government of the ROC continued to occupy Taiwan as agent for the United States, “the principal occupying power.”

SFPT Article 4(b) further confirmed the jurisdiction of the United States Military Government (USMG) over Taiwan. Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.

Hence, whether examined from the point of view of the Oct. 25, 1945, date of the surrender of Japanese troops, the December 1949 movement of the ROC central government to Taiwan, or the coming into force of the post-war peace treaties, it is clear that the ROC has never exercised sovereignty over Taiwan nor held title to its territory, and therefore native Taiwanese people cannot be correctly classified as “Republic of China citizens.” Moreover, since the ROC has never held the sovereignty of Taiwan, the PRC cannot claim to own the sovereignty of Taiwan based on the “successor government theory” either. Taiwan’s legal status after WWII, and indeed up to the present day, is as an overseas territory under the jurisdiction of USMG.

Since Taiwan has not yet reached a final political status, it may also be said to be undetermined. National Security Council Senior Director for Asian Affairs, Mr. Dennis Wilder, reaffirmed this on Aug. 30, 2007, when he said: “Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC — Republic of China — is an issue undecided, and it has been left undecided, as you know, for many, many years.”

Chapter 10, Essay #3   |   Chapter 10, Essay #5