The True Legal Status of Taiwan

What China Said in Its One China White Paper 2000

The Chinese White Paper on Cross Strait Relations (issued on February 21, 2000) stressed that Taiwan belonged to China on the following basis which are not true:

"I. The Basis for One China, de Facto and de Jure.
Taiwan is an inalienable part of China. All the facts and laws about Taiwan prove that Taiwan is an inalienable part of Chinese territory.

In April 1895, through a war of aggression against China, Japan forced the Qing (Ching) government to sign the unequal Treaty of Shimonoseki, and forcibly occupied Taiwan. In July 1937, Japan launched an all-out war of aggression against China. In December 1941, the Chinese government issued the Proclamation of China's Declaration of War Against Japan, announcing to the world that all treaties, agreements and contracts concerning Sino-Japanese relations, including the Treaty of Shimonoseki, had been abrogated, and that China would recover Taiwan. In December 1943, the Cairo Declaration was issued by the Chinese, U.S. and British governments, stipulating that Japan should return to China all the territories it had stolen from the Chinese, including Northeast China, Taiwan and the Penghu Archipelago. The Potsdam Proclamation signed by China, the United States and Britain in 1945 (later adhered to by the Soviet Union) stipulated that The terms of the Cairo Declaration shall be carried out. In August of that year, Japan declared surrender and promised in its instrument of surrender that it would faithfully fulfill the obligations laid down in the Potsdam Proclamation. On October 25, 1945, the Chinese government recovered Taiwan and the Penghu Archipelago, resuming the exercise of sovereignty over Taiwan."

What Is The Truth About Taiwan's Sovereignty

The Legal Status of Formosa (Taiwan) In the Post 1945 era:

Occupied Territory

Most high ranking government officials in the world's leading countries do not consider Taiwan (or the Republic of China) to be a sovereign nation. However, these officials are certainly not denying the "popular sovereignty" held by the Taiwanese people.

"Popular sovereignty" is the right for the people to hold elections, to institute impeachment proceedings and the like. However, this should not be confused with "territorial sovereignty," also sometimes called "state sovereignty."

The "territorial sovereignty" of a country is always owned by the government, and this fact is easily seen by overviewing the subject of "territorial cession."

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: Louisiana in 1803, Florida in 1821, California in 1848, Alaska in 1867, Guam in 1899, Puerto Rico in 1899, Virgin Islands in 1917, etc.

Notably, the local populace had little or no say in the final disposition of these territories. Typically however, when each territory was ceded, there was a specification in the peace treaty to the effect that the members of the local populace could retain their "original nationality" by undertaking a certain registration procedure within a one year period. Failing to complete this procedure, the members of the local populace would be considered to have gained the nationality of their new (i.e. "receiving country") national government, according to its laws and regulations.

The many examples of territorial cession in the post-1830 period clearly show the true facts of how "territorial sovereignty" is dealt with. In 100% of all cases, territorial cession is conducted between governments. The government is construed as holding the title to the territory, and hence the government is recognized as having the final say in territorial cession matters (whether in regard to "ceding" or "receiving" territory.)

After researching these aspects of the historical and legal record, it is clear that the territorial sovereignty of a country or geographic area is owned/held by a government, it is not owned/held by the local populace.

After the completion of the Japanese surrender ceremonies on Oct. 25, 1945, Taiwan's international legal status was "occupied territory." The United States is the principal occupying power. The military forces under the ROC's Chiang Kai-shek are a subordinate occupying power. None of the leading Allies recognized any transfer of Taiwan's territorial sovereignty to the Republic of China on the date of the Oct. 25, 1945 surrender ceremonies.

China's Sovereignty Claims

The basic document China uses to claim the title of Taiwan is the so-called Cairo Declaration, but it was not signed. Even if it were singed, the phrase "Formosa and the Pescadores shall be restored to the Republic of China" was completely against the Atlantic Charter signed by China itself, So, both in history and by law, China's claims are void. The bellicose statement That Taiwan is a part of China is nothing but an excuse for China to invade Taiwan.

All of the relevant legal documents and important events are presented and summarized with comments below:

The Atlantic Charter (1941.08.14):
a. First, the Charter announced that "their countries seek no aggrandizement, territorial or other." China's announced annexation of Formosa (Taiwan) is obviously a territorial aggrandizement.
b. Second, the Charter said that "they declare to see no territorial changes that do not accord with the freely expressed wishes of the people concerned." Therefore, whether or not Formosa be "restored" to China as China claimed, the people of Formosa would have to be consulted first, but so far there has been no such consultation made.
c.Third, "they respect the right of all peoples to choose the form of government under which they will live, and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them." The so-called "restoration" of Formosa to China does not respect the people of Formosa in the sovereign right and the right of choosing a government.
This Charter was endorsed by China in the "Declaration by the United Nations" below.

Declaration by the United Nations (1942.01.01) stated that "The Government signatories ( U.S., U.K., Soviet Union, China . . . . etc. total 26 countries) hereto, having subscribed to a common program of purposes and principles embodied in the Joint Declaration of the President of the United States of America and the Prime Minister of the United Kingdom of Great Britain and Northern Ireland dated August 14, 1941, known as the Atlantic Charter." China is one of the signatories of the Declaration, thus claiming the sovereign right of Formosa is a violation of the Charter per se.

The Cairo Conference (1943.11.22 - 26):
Records kept by Chinese Government showed that President Roosevelt, Premier Churchill and Chiang Kai-shek of China agreed that Japan should be stripped of all the islands she had seized or occupied in the Pacific, including Formosa and the Pescadores. The disposal of these islands was not determined at that time. The phrase "Formosa and the Pescadores shall be restored to the Republic of China" on the so-called Cairo Declaration was a unilateral request by Chiang Kai-shek, Churchill rejected and substituted the phrase with "Formosa and the Pescadores should be renounced by Japan" but Chiang insisted not to change, therefore the Declaration was not signed. So, the common purpose of the Cairo Conference is to strip of Japanese colonies (such as Formosa and the Pescadores) and occupations.

The Crimea (Yalta) Conference (1945.02.04 - 11):
The future of Taiwan was partially determined in this Conference. Under the caption "Territorial Trusteeship" of "World Organizations" of Protocol Proceedings it read "its being made clear that territorial trusteeship will only apply to . . . . . (b) territories detached from the enemy as a result of the present war . . . ."
According to this agreement, Formosa, the Pescadores, and other Japanese colonies should be placed under trusteeship after World War Two, because the Cairo Conference decided to strip them off from Japan which constituted a "detach of the colonies "from Japan.

The Charter of the United Nations via Article 77 (1945.06.26) confirmed Crimea Agreement by regulating that "The trusteeship system shall apply to such territories as . . . . b. territories which may be detatched from enemy states as a result of the Second World War." This meant Taiwan should be put under trusteeship after the War.

Charter of the United Nations Article 76 (1945.06.26) stipulated: "the basic objectives of the trusteeship system . . . . shall be to promote political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government and independence." China is to blame, since it is one of the signatories of the UN Charter, but now it has reneged on its words and is pursuing imperialism.

Postdam Proclamation (1945.07.26). Article 8 read "The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine." Since the terms of the Cairo Declaration was to strip all Japanese colonies such as Formosa and the Pescadores, and let them be detached from Japan, therefore, to carry out these terms requires that Taiwan be placed under the jurisdiction of some other government, via the terms of a post-war peace treaty.

Instrument of Surrender by Japan (1945.09.02) read: "accept the provisions set forth in the declaration issued by the heads of the Governments of the United States, China, and Great Britain on 26 July 1945, at Potsdam, and subsequently adhered to by the Union of Soviet Socialist Republics, which four powers are hereafter referred to as the Allied Powers . . . . " However, in the post-war peace treaty, China was not considered a member of the Allied Powers, because it was not a signatory.

San Francisco Peace Treaty with Japan (signed: 1951.09.08, entered into force: 1952.04.28), Article 2(b) read: "Japan renounces all right, title and claim to Formosa and the Pescadores." This is the legal confirmation of Formosa's detachment from Japan, and Taiwan remains under the jurisdiction of the treaty's principal occupying power as an interim status condition. Military occupation is conducted under military government. Article 23a of the treaty confirms that the United States of America is the principal occupying power, and Article 4b confirms the jurisdiction of the United States Military Government (USMG) over Taiwan.

However, the Chinese regime, the Republic of China, represented by Chiang Kai-shek took advantage of the General Order No.1 of the Allied Commander and exceeded his authority to institute various new legal measures during the occupation of Taiwan while the Order only granted permission him to accept the surrender of Japanese troops in Taiwan. The Republic of China occupied Taiwan by force since 1945 and started the notorious 1947 Massacre getting rid of Taiwanese elite so that nobody knew how to make petitions to the UN for independence, therefore the Taiwan independence process was interrupted till now.

All UN members have the obligation to move to blame China for their sixty years of aggression against Taiwan and admit that under international law Taiwan is occupied territory of the United States of America. Additionally, any official matters regarding Taiwan in the United Nations should be handled by the United States Ambassador to the UN.

United Nations Charter Theory

In many postings on the www.taiwannation.com.tw website and other websites, Dr. Sim Kiantek advances the theory that Taiwan is independent based on Articles 76 and 77 of the United Nations Charter, which was signed by China and most of the states in the world. The following Q&A analyzes this theory.

Q: Can any refutation be made against Dr. Sim Kiantek's arguments that Taiwan is already an independent state under the terms of the UN Charter?

A: As a starting point of reference, we have put relevant portions of the UN Charter on this page -- http://www.taiwanbasic.com/un/charter.htm

Please note that Article 79 speaks of the "terms of trusteeship for each territory," Article 80 speaks of "individual trusteeship agreements," and Article 81 speaks of the "individual trusteeship agreements" and the "administering authority."

In regard to Taiwan, there is no record of an individual trusteeship agreement which has been concluded under the auspices of the United Nations, nor is there any record of the appointment or selection of an "administering authority." As everyone familiar with the history of Taiwan in the post 1945 period knows, Taiwan was never under any UN trusteeship agreement.

Q: Were there any specifications for UN trusteeships in the San Francisco Peace Treaty of 1952?

A: In the SFPT, the UN trusteeship agreements are stipulated in Article 3. However, the disposition of "Formosa and the Pescadores" (aka Taiwan) is made in Article 2(b).

Also, please note that Article 107 clearly invalidates Mr. Dr. Sim Kiantek's explanations of the applicability of Article 77 to Taiwan's situation, since this Article fully confirms all the arrangements of the SFPT as being valid.

Dr. Sim Kiantek consistently fails to take note of Article 107 and its legal implications.

Q: So, you are saying that there is no claim that Taiwan qualifies as a UN trusteeship under the UN Charter?

A: Correct. No such claim whatsoever can be made. Moreover, as we know, there is no tribunal in the United Nations by which any sort of "official interpretation" of Dr. Sim Kiantek's theories could be obtained.

However, the following listing of Trust or Non-Self-Governing Territories 1945 to 1999 gives some authoritative insight into this matter. Taiwan is not included. http://www.taiwanbasic.com/un/nonself.htm

We can only conclude that under the UN Charter, Dr. Sim Kiantek's arguments are totally invalid. The specifications of Articles 76 and 77 of the UN Charter have nothing to do with Taiwan whatsoever.