Preface

Preface

After decades of dictatorial and authoritarian rule, Taiwan (under the nomenclature of the “Republic of China”) had emerged by the late 1990s as an increasingly democratic society, with its first popular elections for President held in 1996. The KMT candidate Lee Teng-hui was the winner.

Meanwhile, during the 1990s, increasing numbers of Legislative seats in the Republic of China’s Legislative Yuan were being made available to popularly elected candidates, thus ending some fifty years of KMT stranglehold on the composition of that government body. 

Then in 2000, the opposition Democratic Progressive Party candidate, Chen Shui-bian, won the Presidency.  He was the first non-KMT party member to hold that high office since the Republic of China (ROC) moved its central government to Taiwan in December 1949. 

It is not surprising then, that during the last ten or more years, many media commentators have praised the peaceful transition of Taiwan into a fully fledged democratic nation. 

However, in overviewing the history of the ROC in Taiwan from 1945 to the present, the members of the Formosa Nation Legal-strategy Association (FNLA) suggest that there is an urgent need to clarify the following questions.

 

The Three Compound Questions 

Q1: Does Taiwan have its own government? Is the ROC the legitimate government for Taiwan?  

Q2: Should there be an ROC Legislative Yuan, ROC Ministry of Foreign Affairs, ROC Ministry of National Defense, etc. on Taiwanese soil? 

Q3: Is Taiwan/ROC a country??  Are native Taiwanese people correctly classified as ROC citizens?    

 

Treaties, Laws, and Executive Orders 

Overviewing the 1952 Senate-ratified San Francisco Peace Treaty, the 1979 Taiwan Relations Act, and the 1996 US Executive Order 13014, it would be hard to justify a “Yes” answer to any of the above three compound questions.  

As an important additional clarification regarding the status of Taiwan in relation to the People’s Republic of China (PRC), a Congressional Research Service report of July 2007 China/Taiwan: Evolution of the “One China” Policy clearly stated that neither the 1972, 1979, and 1982 Joint USA-PRC Communiques, nor any other official US policy statements have ever recognized the PRC’s sovereignty over Taiwan.   

If we want to obtain a clear statement of Taiwan/ROC’s legal status, the proper organization of its government structure, the civil rights of its inhabitants, etc. we quickly come face to face with many US government promulgated paradoxes and international paradoxes surrounding the Taiwan issue. 

 

The Six Paradoxes

PARADOX #1: In the post-war San Francisco Peace Treaty (SFPT), Japan renounced all right, title, and claim to Taiwan, but the Republic of China (ROC) was not designated as the “receiving country.” However, the United States continued to recognize the ROC as the lawful government of China up through Dec. 31, 1978. 

PARADOX #2: The Taiwan Relations Act (TRA) is a domestic law of the United States, and not an international treaty, yet it appears to be dealing with foreign affairs. Specifically, the TRA stipulates that under US law Taiwan is to be treated as a foreign country.  At the same time, the US Executive Branch continually denies that Taiwan is a sovereign nation.  

PARADOX #3: The ROC on Taiwan controls the areas of Formosa, the Pescadores, and other neighboring islands. The PRC controls mainland China.  However, the US Executive Branch continuously repeats a “One China” mantra, and vigorously opposes any notion of “Two Chinas.”  Many members of the US Congress are reported to be diametrically opposed to the President’s stance on this matter.

PARADOX #4: ROC/Taiwan certainly appears to meet the Montevideo Convention’s criteria for statehood, but it entered the World Trade Organization as an “independent customs territory” (aka “separate customs territory”), and not as a country.

PARADOX #5: Some countries recognize ROC/Taiwan as a state, but most do not. ROC/Taiwan has been repeatedly denied admission to the United Nations.

PARADOX #6: The websites of many international organizations treat Taiwan as a part of the PRC, however most native Taiwanese people object to this classification. In their view, Taiwan already functions as a de-facto independent country in the world community.

 

The members of the FNLA believe that the answers to the above mentioned Three Compound Questions can easily be found by solving the Six Paradoxes.  In other words, several years of research by FNLA members now make it possible to provide a clear statement of ROC/Taiwan’s international legal position, and the true legal relationship between Taiwan and the USA. 

In the current era, the situation of Taiwan and the ROC can be explained in a few short sentences. Such analysis flows directly from the (a) historical record and (b) the Senate-ratified SFPT, both of which must be examined from the point of view of the “customary laws of warfare”: 

Important clauses in the SFPT which are relevant to a discussion of Taiwan’s international legal position are given in a later section.  

 

A Concise Statement of Taiwan’s International Legal Position 

Legal Framework: Since the cession from Japan effective April 28, 1952, Taiwan has remained as “occupied territory.” There has been no change in this legal status to date. 

The United States of America is the principal occupying power. A US federal agency called the “United States Military Government” (USMG) has jurisdiction rights over Taiwan territory.  In other words, Taiwan is occupied territory of the United States of America.  (This is, however, certainly not equivalent to saying that “Taiwan is part of the United States.”) 

The legal status of Chiang Kai-shek’s military troops and government officers (commonly referred to as: “Republic of China”) in Taiwan is

1.      subordinate occupying power, beginning Oct. 25, 1945,

2.      government in exile, beginning mid-December 1949.

 

In other words, the ROC is exercising delegated administrative authority for the military occupation of Taiwan.  However, there has been no transfer of the territorial sovereignty of Taiwan to the ROC.  As occupied territory, the final political status of Taiwan remains to be determined. 

Notably, the explanation given above clearly shows that –

(1) the terms of “Taiwan” and the “Republic of China” are not synonymous, and should not be used interchangeably. 

(2) the One China Policy of the US Executive Branch must be interpreted to mean that the People’s Republic of China is the sole legitimate government of China. It does not say that Taiwan is part of China.  Hence, this policy is essentially correct. 

(3) the ROC does not meet the Montevideo Convention’s criteria for “statehood” in the international community.  The ROC is not the legitimate government of Taiwan, it is a government in exile.  The ROC does not exercise sovereignty over Taiwan, only “effective territorial control.”  The classification of native Taiwanese people as ROC citizens is without legal basis. 

The Six Paradoxes regarding Taiwan/ROC’s legal status, as well as other confusing aspects of US Executive Branch policy on Taiwan, can all be fully explained within this legal framework.  There are no contradictions.   Much additional supporting analysis is given in the following pages. 

 

The Key Parameters of Taiwan’s Undetermined Political Status 

The key parameters of the undetermined political status of Taiwan were given in an FNLA document dated Sept. 6, 2009. 

The contents of this document are provided in Chapter 1.

Chapter 1