The Status of the
Republic of China on Taiwan
Government in Exile
by Richard W. Hartzell
Roger C. S. Lin, Ph. D.
Does the Republic of China on Taiwan fit the definition of "government in exile"? The answer to this question is examined in the following sections, and a conclusion is offered. Additional references are given at the end of the discussion.
The ROC's Territorial Claim Over "Formosa and the Pescadores"
Based on an in-depth overview of the historical and legal record, it is hard to understand on what basis the Republic of China can be considered the legal government of Taiwan and the representative of the 23 milion people living thereon. With reference to international law, this is explained as follows.
Background: "Formosa and the Pescadores" had been ceded to Japan in the 1895 Treaty of Shimonoseki. Consequently, at the time of the founding of the ROC in 1912, "Formosa and the Pescadores" belonged to Japan.
After the events of August 1945, Gen. Douglas MacArthur directed Chiang Kai-shek to go to Taiwan and accept the surrender of Japanese troops. Under international law, the surrender ceremonies only mark the beginning of the "military occupation" of Taiwan.
It is well known that in the in the post-war San Francisco Peace Treaty, which came into effect April 28, 1952, Japan renounced the sovereignty of "Formosa and the Pescadores." Unfortunately for the supporters of the ROC however, this sovereignty was not awarded to the Republic of China.
In order to be considered the legal government of Taiwan, three criteria would appear to be most relevant. First, the ROC would have to be able to produce an international treaty reference which (unequivocally) shows that the sovereignty of "Formosa and the Pescadores" has been transferred to the ROC.
Secondly, it would be necessary to prove that Taiwan has been officially "incorporated" into the territory of the ROC according to the procedures outlined in ROC domestic laws. As most people know, Article 4 of the Constitution of the Republic of China states that: "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly."
Third, after fulfilling the above two conditions, it would then be necessary to show that a law was passed by the legislative branch (Legislative Yuan) of the ROC government (sometime in the mid-1950's) specifying the mass naturalization of all native Taiwanese persons as "ROC citizens."
In fact, none of these three most basic qualifying criteria have been fulfilled. In other words, there are no specifications in any international treaty which verify that the sovereignty of "Formosa and the Pescadores" has been transferred to the ROC. Additionally, there is no relevant Resolution of the National Assembly on record to justify the alleged "incorporation" of Taiwan into ROC territory. Lastly, the Legislative Yuan in Taiwan has never passed a law to provide for the mass-naturalization of native Taiwanese persons as ROC citizens after the close of the WWII period.
So, the question arises, what is the status of the ROC on Taiwan?
The Events of late 1949
According to the historical record, many of the military forces and various high-ranking officials of the Republic of China fled from China in the final months of 1949. If these ROC personnel had fled to Japan, Korea, or the the Philippines, and continued to conduct their governmental business there, it would be easy to recognize the fact that they had become a government in exile.
However, these ROC personnel fled to Taiwan, which at that time had been under ROC jurisdiction for a number of years. Under such circumstances, does the ROC qualify as a government in exile beginning in late 1949?
The following definitions of "government in exile" have been collected from various sources and are offered here for reference.
Definitions of government in exile
A government whose chief executive and other principal officials have fled their state in the face of hostile armed forces but which is recognized as the de jure government of its native country by at least one other state.
A temporary government moved to or formed in a foreign land by exiles who hope to rule when their country is liberated.
A government established outside of its territorial base.
A political group that claims to be a country's legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country. Governments in exile usually operate under the assumption that they will one day return to their native country and regain power.
A government which has either been forced out by revolution or usurpation, or invaded and taken over by another nation, and is now taking refuge elsewhere.
A body which claims to be the legitimate government of a state, but which is unable to establish itself in the state in question.
The Significance of October 25, 1945
In order to examine the status of the Republic of China in Taiwan from the time of late October 1945 up to December 1949, we must first discuss the significance of the surrender of Japanese troops on October 25, 1945.
Under international law, the date of October 25, 1945, merely marks the beginning of the military occupation of Taiwan. There was no transfer of the sovereignty of Taiwan to the ROC on that date.
Let us look at the legal formulation of this military occupation in more detail.
First, who is "the conqueror"? It is a matter of historical record that during the WWII period all military attacks against "Formosa and the Pescadores," and indeed against the four main Japanese islands, were made by United States military forces. The Republic of China military forces did not participate. Hence, the United States is "the conqueror."
Second, who is "the occupying power"? In a pre-Napoleonic age, "the conqueror" would simply annex the conquered territory. However, in a post Napoleonic age, the customary laws of warfare disallow "annexation." After conquest, "the conqueror" only occupies the territory. Hence, in relation to "Formosa and the Pescadores, the United States is "the occupying power". However, beginning October 25, 1945, the United States has delegated the administrative authority for the military occupation of "Formosa and the Pescadores" to the Chinese Nationalists under Chiang Kai-shek.
Third, what is the status of "Formosa and the Pescadores" in the post-war peace treaty? In the San Francisco Peace Treaty of April 28, 1952, Japan renounced the sovereignty of "Formosa and the Pescadores," but this sovereignty was not awarded to any other country.
- CONCLUSION #1:
- For a territorial cession, the military government of the principal occupying power does not end with the coming into force of the post-war peace treaty, but continues until legally supplanted. (This is thoroughly explained in many US Supreme Court cases.) By recognizing this fact, we can see that under the terms of the San Francisco Peace Treaty, "Formosa and the Pescadores" remain under the administrative control of the United States Military Government (USMG).
Importantly, this conclusion is fully supported by Articles 2b, 4b, and 21 of the San Francisco Peace Treaty. The territorial sovereignty of "Formosa and the Pescadores" was definitely not awarded to the Republic of China. Additionally, Article 23 confirms that the United States is "the principal occupying power."
- CONCLUSION #2:
- Up to the present day, United States Military Government administrative authority over "Formosa and the Pescadores" has not yet ended.
- CONCLUSION #3:
- Beginning October 25, 1945, in relation to the administration of "Formosa and the Pescadores," the Republic of China has been a subordinate occupying power under the United States.
Customary Law and the ROC on Taiwan
Many people claim that the Republic of China is the legal government of Taiwan based on the provisions of the following legal (or quasi-legal) announcements, documents, and/or doctrines.
(1) Abrogation of all treaties, conventions, agreements, and contracts regarding relations between China and Japan (including the Treaty of Shimonoseki) by the ROC government in 1937
(2) Cairo Declaration of Dec. 1, 1943
(3) Potsdam Proclamation of July 26, 1945
(4) Japanese Surrender Documents of Sept. 2, 1945
(5) Treaty of Taipei (Sino-Japanese Peace Treaty)
A comprehensive overview is offered as follows.
In regard to the 1895 Sino-Japanese Peace Treaty, once the obligations of territorial cession were fulfilled via Article 2, that clause of the treaty itself ceased to be active. In other words, to the extent that the particular provisions in the 1895 Treaty regarding the cession of Taiwan had been fulfilled by the Qing, any portion of the Treaty which could be nullified as a consequence of the war which (arguably) began in July 1937, or the abrogation of the Treaty itself at some date, etc. would have to be limited to those provisions which had not yet been fulfilled in their entirety. The cession provision which had already been carried out was no longer active and therefore could no longer be subjected to nullification or any sort of retro-active cancellation.
With respect to the Cairo Declaration and the Potsdam Proclamation, it is significant to note that in the post-Napoleonic period there is no international precedent to show that a "Declaration" or "Proclamation" has the international force of law to transfer the sovereignty of a geographic area from one government to another. Nor is there any precedent to say that the specifications of Surrender Documents have any such force of law between nations.
Moreover, in regard to the Treaty of Taipei (which came into force on Aug. 5, 1952), Article 2 of the Treaty merely acknowledged Article 2(b) of the SFPT, stating: "It is recognized that under Article 2" of the SFPT "Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)." Indeed, upon the coming into force of the Treaty of Taipei on Aug. 5, 1952, the SFPT had already been in force over three months, hence Japan was no longer holding the territorial title to Formosa and the Pescadores at that time. Obviously, in August 1952 Japan could not make any specifications regarding the disposition of territory which it no longer possessed.
Territorial Cession is Accomplished by Treaty
Customary international law in the post-1830 period has clearly established that territorial cession is accomplished by treaty. Relevant examples are too numerous to mention. In the history of the United States, for example, all territorial cessions were done via the specifications of a treaty, including the following well-known examples:
Gadsden Purchase, 1853
Puerto Rico, 1899
Virgin Islands, 1917
Additional International Law Doctrines
International law doctrines such as irredentism, postliminium, prescription, terra sine domino, terra nullius, uti possidetis, etc., are often used to justify the legitimacy of the Republic of China on Taiwan. An overview of these doctrines is provided as follows.
irredentism: claiming a right to territories belonging to another state on the grounds of common ethnicity and/or prior historical possession, actual or alleged.
Comments: Technically speaking, "irredentism" is a doctrine from the sphere of identity politics, cultural & ethnic studies, and political geography. It is not a legal doctrine per se, and hence carries little or no weight in discussing legal claims on territory.
postliminium: the right by virtue of which persons and things taken by an enemy in war are restored to their former state when coming again under the power of the nation to which they belonged.
Comments: The transfer of the title of territory by treaty is an internationally recognized valid method for transmission and reassignment of "ownership." Regardless of the future outbreak of war between the affected parties, or the military occupation of each other's countries, international law does not recognize any claim to "retroactive reversion of title" to previously ceded territory, and the doctrine of "postliminium" cannot be invoked under such circumstances.
prescription: (1) the process of acquiring title to property by reason of uninterrupted possession of specified duration, (2) acquisition of ownership or other real rights in movables or immovables by continuous, uninterrupted, peaceable, public, and unequivocal possession for a period of time.
Comments: Certain countries with a long history have obtained title to their lands based on "prescription." However, Taiwan was a territorial cession in Article 2b of the San Francisco Peace Treaty (SFPT), hence there must be a clear transfer of territorial title in order to be recognized as valid. The doctrine of "prescription" cannot be invoked under such conditions. This analysis is fully confirmed when we recognize that October 25, 1945, was the beginning of the military occupation of Taiwan, and international law specifies that "military occupation does not transfer sovereignty."
terra sine domino: [spoken of populated territory] "land without master," land with no central government, abandoned territory.
Comments: Taiwan was Japanese territory up until April 28, 1952. There is no basis under international law to say that by 1949 Taiwan had already become "terra sine domino," and was thus subject to casual annexation by any other country such as the ROC.
terra nullius: [spoken of unpopulated territory] uninhabited islands or lands.
Comments: In late 1945, Taiwan had a population of approximately six million, and could certainly not be claimed under the doctrine of "terra nullius."
uti possidetis: a principle that recognizes a peace treaty between parties as vesting each with the territory and property under its control unless otherwise stipulated. (Latin: uti possidetis, ita possideatis -- "as you possess, so may you continue to possess.")
Comments: This principle is not applicable to a discussion of Taiwan's international legal status after WWII because (1) the Republic of China was not a party to the SFPT, in which Japan ceded Taiwan, (2) October 25, 1945, only marks the beginning of the military occupation of Taiwan, and the Republic of China (founded in 1912) had never held legal possession of "Formosa and the Pescadores" at any time before the coming into effect of the peace treaty. (3) Furthermore, Article 21 of the SFPT clearly stipulates the benefits to which "China" is entitled under the treaty, and "Formosa and the Pescadores" are not included.
The ROC on Taiwan: A More Detailed Overview
On September 2, 1945, the Japanese government unconditionally surrendered to the Allied Powers consisting of the United States, China, Great Britain, and the Soviet Union. That same day, General Douglas MacArthur, Supreme Commander for the Allied Powers, issued General Order No. 1 under which, according to United States Secretary of State John Foster Dulles, the "Republic of China was entrusted with authority over [Formosa and the Pescadores]" as agent for the Allied Powers. Such trust on behalf of the Allied Powers remains in effect today.
Importantly, on April 28, 1952, the Treaty of Peace with Japan signed on September 8, 1951, in San Francisco, California (the "SFPT") entered into force. In Article 2(b) of the SFPT, Japan renounced "all right, title and claim to Formosa and the Pescadores." Nothing in the SFPT -- or in any other treaty ever executed by or between the Republic of China ("ROC") and the other Allied Powers -- has altered the trusteeship granted by the Allied Powers to the ROC over Taiwan.
Following the Sino-Japanese War, the governments of China and Japan signed a peace treaty known as the Treaty of Shimonoseki on April 17, 1895. The Treaty of Shimonoseki entered into force on May 8, 1895.
Pursuant to the Treaty of Shimonoseki, China ceded Taiwan (Formosa) to Japan. Article 2 of the Treaty of Shimonoseki provided, "China ceded to Japan in perpetuity and full sovereignty . . . the island of Formosa, together with all islands appertaining or belonging to the said island of Formosa." Following the Treaty of Shimonoseki, Japan exercised sovereignty over Taiwan and held title to its territory.
The Allied Powers defeated Japan, and it surrendered on September 2, 1945. The Japanese representatives signed the Instrument of Surrender aboard the battleship USS Missouri anchored with other United States and British ships in Tokyo Bay.
Shortly after the signing of the Instrument of Surrender, General Douglas MacArthur, Supreme Commander for the Allied Powers, issued General Order No. 1 ordering the "senior Japanese commanders and all ground, sea, air and auxiliary forces within . . . Formosa" to "surrender to Generalissimo Chiang Kai-shek." Pursuant to the General Order No. 1, Chiang Kai-shek, a military and political leader of the ROC, was a "representative of the Allied Powers empowered to accept surrender " of the Japanese forces, himself or through a representative.
On October 25, 1945, Chiang Kai-shek's representative in Taipei, Taiwan (Formosa), accepted the surrender of the Japanese forces there.
The surrender and repatriation of the Japanese forces in Taiwan (Formosa) was carried out with substantial assistance of the United States armed forces.
Following the surrender and pending a peace settlement, Taiwan (Formosa) remained de jure Japanese territory. General Douglas MacArthur stated at a congressional hearing in May 1951, "legalistically Formosa is still a part of the Empire of Japan."
The Allied Powers (led by the United States), the principals, authorized Chiang Kai-shek's ROC government, the agent, to accept the surrender of the Japanese forces in Taiwan (Formosa) and to undertake the post-surrender occupation of Taiwan (Formosa) on behalf of the Allied Powers. The ROC government occupied Taiwan (Formosa) on behalf of the Allied Powers (led by the United States) pending a peace treaty with Japan, which would change the legal status of Taiwan (Formosa).
On September 8, 1951, the Allied Powers and Japan signed the SFPT. The SFPT entered into force on April 28, 1952, and it remains in force in the present day.
Pursuant to the SFPT, Japan renounced its sovereignty over Taiwan (Formosa) and title to its territory. Article 2(b) of the SFPT provided, "Japan renounces all right, title and claim to Formosa and the Pescadores."
The SFPT did not designate the recipient of the "right, title and claim to Formosa and the Pescadores." Thus, no state received any right, title, or claim to Taiwan (Formosa) under the SFPT according to its terms.
China never became a party to the SFPT. Neither the ROC government, which occupied the island of Taiwan (Formosa) as agent for the "principal occupying Power," nor the government of the People's Republic of China ("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),]" subject to certain narrow exceptions set forth in Article 21. Accordingly, China, a non-party, did not receive "any right, titles or benefits" under the SFPT except as specifically provided in Article 21.
Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan (Formosa). The parties to the SFPT chose not to give any "right, title [or] claim to Formosa and the Pescadores" to China.
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 of the SFPT designated the United States as "the principal occupying Power" with respect to the territories covered by the SFPT, including "Formosa and the Pescadores."
Following the entry into force of the SFPT, the government of the ROC continued to occupy Taiwan (Formosa) as agent for the United States, "the principal occupying Power."
The Treaty of Peace between the ROC and Japan, which was signed on April 28, 1952, and entered into force on August 5, 1952 (the "Treaty of Taipei"), did not transfer sovereignty over Taiwan (Formosa) from Japan to China either. Article 2 of the Treaty of Taipei merely acknowledged Article 2(b) of the SFPT, "It is recognized that under Article 2" of the SFPT "Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)." The Treaty of Taipei did not designate China as a recipient of "all right, title and claim" to Taiwan.
In the aftermath of the SFPT, the governments of the leading allies interpreted the SFPT to mean that no state acquired sovereignty over Taiwan (Formosa) and title to its territory. For example, United States Secretary of State John Foster Dulles told the Senate in December 1954, "[the] technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese peace treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese peace treaty, nor is it determined by the peace treaty which was concluded between the [ROC] and Japan." Likewise, British Foreign Secretary Anthony Eden told the British House of Commons, "under the Peace Treaty of April, 1952, Japan formally renounced all right, title and claim to Formosa and the Pescadores; but again this did not operate as a transfer to Chinese sovereignty, whether to the [PRC] or to the [ROC]. Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the de jure sovereignty over which is uncertain or undermined." Similarly, in 1964, President Georges Pompidou (then premier) stated that "Formosa (Taiwan) was detached from Japan, but it was not attached to anyone" under the SFPT. Thus the leading allies were in consensus that China did not acquire sovereignty over Taiwan or title to its territory pursuant to the SFPT.
The SFPT did not terminate the agency relationship between the United States, the principal, and the ROC, the agent, with regard to the occupation and administration of Taiwan (Formosa). In 1955, United States Secretary of State John Foster Dulles confirmed that the basis for ROC's presence in Taiwan was that "in 1945, the [ROC] was entrusted with authority over [Formosa and the Pescadores]" and "General Chiang [Kai-shek] was merely asked to administer [Formosa and the Pescadores] for the Allied . . . [P]owers pending a final decision as to their ownership." In the words of British Prime Minister Winston Churchill, "Chiang Kai-shek . . . took refuge upon Formosa, where he still remains [in 1954]" after he "was driven out of [mainland China] by a Communist revolution."
Following the entry into force of the SFPT on April 28, 1952, the ROC did not exercise sovereignty over Taiwan and did not have title to its territory.
From 1945 to the present, Taiwan has been an occupied territory of the United States, "the principal occupying Power." Currently, Taiwan is an occupied territory of the United States, and Taiwan's statehood status is disputed and uncertain. Neither the SFPT nor the Treaty of Taipei nor any other subsequent legal instruments changed the status of Taiwan. Nor have any other events of the nature of novus actus interveniens occurred from 1945 to the present date which changed the status of Taiwan.
The agency relationship between the United States, the principal, and the ROC, its agent in Taiwan, never terminated. General Douglas MacArthur's General Order No. 1 empowering the government of ROC to accept the surrender of the Japanese troops in Taiwan and to occupy Taiwan on behalf of the Allied Powers (led by the United States) following the Pacific War is still valid. Neither the Treaty of San Francisco nor the Taiwan Relations Act nor any other legal instrument terminated the agency relationship between the United States and the ROC for the purpose of the occupation and administration of Taiwan.
The United States as the principal occupying Power never issued a formal statement or declaration that the occupation of Taiwan has ended.
The United States as the principal occupying Power is still holding the sovereignty over Taiwan and title to its territory in trust for the benefit of the Taiwanese people. The occupying Power never transferred the sovereignty over Taiwan or title to its territory to any other government.
The international community does not recognize Taiwan as a state.
The United Nations has never recognized Taiwan as a state and has never granted Taiwan's (ROC's) application for membership.
Most importantly, the United States does not recognize Taiwan as a state. Pursuant to the Taiwan Relations Act of 1979, which embodies the United States congressional policy towards Taiwan, the United States does not maintain inter-state relations with Taiwan. Instead, "the people of the United States" maintain "commercial, cultural, and other relations" with "the people of Taiwan." Section 3301 of the Taiwan Relations Act reflects the United States' position that "the future of Taiwan" is still not "determined."
On October 25, 2004, United States Secretary of State Colin Powell confirmed the United States' continuing policy towards Taiwan. He stated, "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."
Conclusion: Taiwan is currently "occupied territory," and the occupying power is the United States of America. Hence, the territorial sovereignty of Taiwan is currently held by the United States Military Government (USMG).
The Republic of China on Taiwan is a government in exile. It has effective territorial control over Taiwan, but not sovereignty.
Introduction to Sovereignty: A Case Study of Taiwan
Introduction to Sovereignty: A Case Study of Taiwan
Stanford Program on International and Cross-Cultural Education
published 2004 (160 pages)
Enmeshed in a civil war between the Nationalists and the Communists for control of China, Chiang's government mostly ignored Taiwan until 1949, when the Communists won control of the mainland. That year, Chiang's Nationalists fled to Taiwan and established a government-in-exile.
After the war China established a garrison on Itu Aba, which the Chinese Nationalists maintained after their exile to Taiwan.
excerpted from Encyclopedia Britannica
born October 31, 1887, Chekiang province, China
died April 5, 1975, Taipei, Taiwan
soldier and statesman, head of the Nationalist government in China from 1928 to 1949, and subsequently head of the Chinese Nationalist government in exile on Taiwan.
excerpted from Encyclopedia Britannica
Let Taiwan Be Taiwan
Documents on the International Status of Taiwan
Edited with Analysis and Commentary by Marc J. Cohen and Emma Teng
Center for Taiwan International Relations, Washington, DC
p. 33 --
A Chinese title, under international law, cannot be deduced from the presence of the Chiang Kai-shek exile government on Taiwan.
p. 132 --
I am sure that the sponsors of the draft resolution...seeking to preserve a seat for the Formosa regime ... are aware of the controversy that is raging as to the representative character of the Government based on that island. My Government has been inundated with documents and petitions from people who claim to be Formosans, arguing that the so-called Republic of China in exile cannot claim to represent the people of Taiwan.
p. 133 --
The exiled nationalist Chinese regime does not represent the people of Formosa....
p. 166 --
According to Professor Gene Hsiao, since the San Francisco Peace Treaty and the separate KMT treaty with Japan did not specify to whom Japan was ceding Taiwan and the Pescadores, the implication of the U.S . position was that --
Legally, and insofar as the signatories of those two treaties were concerned, Taiwan became an "ownerless" island and the KMT, by its own assent to the American policy, a foreign government-in-exile.
New Dictionary of Cultural Literacy
People's Republic of China The government of China set up in 1949 after the victory of the communist forces of Mao Zedong. The People's Republic ruled the mainland of China, forcing the government of Nationalist China into exile on the island of Taiwan. For years, many Western nations, especially the United States, refused to recognize the People's Republic as the government of mainland China; instead, they exchanged ambassadors only with Nationalist China. The United States recognized the People's Republic as the government of China in 1979.
excerpted from the bartleby website, quoting from --
The New Dictionary of Cultural Literacy, Third Edition, 2002.
Taiwan's Current International Legal Status
Chen, Lung-chu (1998). Taiwan's Current International Legal Status
In New England Law Review, 32, p. 675.
Introduction -- http://www.nesl.edu/lawrev/VOL32/3/CHEN.HTM
. . . . At the end of World War II, after the Japanese surrender, General MacArthur instructed Chiang Kai-shek, then Generalissimo of the Republic of China, to administer Taiwan pending the resolution of its ultimate disposition. Thus Chiang's Kuomintang (KMT) regime acquired de facto control of the island as a form of military occupation on behalf of the Allied Powers.
Several significant events ensued: the mass massacre of Taiwanese leaders from all walks of life by KMT's occupation forces during the 228 Incident of 1947 to suppress Taiwanese protests against the Chinese atrocities; Chiang Kai-shek's exile to Taiwan after being expelled from the Chinese mainland as a result of the establishment of the PRC in 1949; and the drastic increase in strategic importance of Taiwan for the United States in the Western Pacific after the outbreak of the Korean War in June 1950.