Sovereignty Of Taiwan

The controversy surrounding the political status of Taiwan or the Taiwan issue is a result of World War II, the second phase of the Chinese Civil War (1945–1949), and the Cold War.

The basic issue hinges on who the islands of Taiwan, Penghu, Kinmen, and Matsu should be administered by. Main options include:
#Maintain the current ROC/ PRC (Taiwan/China) status quo.
#Taiwan as a ''de facto'' separate self-governing entity.
#Become part of China as a special administrative region of the PRC under the one country, two systems framework (like Hong Kong and Macau).
#Formally abolish the ROC and establish a ''de jure'' independent Taiwanese state.
# Unify with mainland China under the Government of the ROC.
#Unify with mainland China under the Government of the PRC.

This controversy also concerns whether the current ''status quo'' of existence and legal status as a sovereign state of both the ROC and the PRC is legitimate as a matter of international law.

The ''status quo'' is accepted in large part because it does not define the legal or future status of Taiwan, leaving each group to interpret the situation in a way that is politically acceptable to its members. At the same time, a policy of status quo has been criticized as being dangerous precisely because different sides have different interpretations of what the status quo is, leading to the possibility of war through brinkmanship or miscalculation. The PRC seeks the end of Taiwan's ''de facto'' independence through the process of unification, and has not ruled out the use of force in pursuit of this goal. Internationally, the United Nations and countries that have diplomatic relations with the PRC handle relations with Taiwan according to the " One China" policy.

Background

Taiwan (excluding Penghu) was first populated by Austronesian people and was partially colonized by the Dutch, who had arrived in 1623. The Kingdom of Tungning, lasting from 1661 to 1683, was the first Han Chinese government to rule part of the island of Taiwan. From 1683, the Qing Dynasty ruled much of the western plains of the island as a prefecture and in 1875 divided the island into two prefectures, Taiwan and Taipeh. In 1885 the island was made into a separate province to speed up development in this region. In the aftermath of the First Sino-Japanese War, Taiwan and Penghu were ceded by the Qing Dynasty to Japan in 1895 under the Treaty of Shimonoseki. The Republic of China overthrew the Qing dynasty in 1912. At the end of World War II, the Republic of China, on behalf of the Allied Powers, accepted the surrender of Japanese troops in Taiwan, putting Taiwan under control of a Chinese government again after 50 years of Japanese rule. The ROC would then claim sovereignty on the basis of the Qing dynasty's administration, Cairo Declaration, Potsdam Declaration, and Japanese Instrument of Surrender, but this became contested by pro-independence groups in subsequent years due to different perceptions of the said documents' legality. Upon losing the Chinese civil war in 1949, the ROC government retreated to Taipei, and kept control over a few islands along the coast of mainland China and in the South China Sea. The People's Republic of China (PRC) was established in mainland China on 1 October 1949, claiming to be the successor to the ROC.

Quemoy, Matsu and Wuchiu on the coast of Fukien, Taiping and Pratas in the South China Sea, are part of the ROC's present territory, but were not ceded to Japan. Some arguments supporting the independence of Taiwan do not apply to these islands.

Development of the controversy

Taiwan, Penghu, Kinmen, Matsu, and some other minor islands effectively make up the jurisdiction of the state with the official name of the Republic of China (ROC), commonly known as "Taiwan". The ROC, which asserted control of Taiwan (as well as Penghu and other nearby islands) in 1945, had ruled mainland China and claimed sovereignty over Tibet (now controlled by the PRC as the Tibet Autonomous Region), Outer Mongolia (now Mongolia) and Tannu Uriankhai (now a part of Tuva, Russia) before losing the Chinese Civil War to the Chinese Communist Party and relocating its government and capital city from Nanjing to Guangzhou, Chongqing and Chengdu before arriving at Taipei as the temporary capital in December 1949. The Communists established a new government on the mainland as People's Republic of China (PRC) in October 1949.

Since the ROC lost its United Nations seat as "China" in 1971 ( replaced by the PRC), most sovereign states have switched their diplomatic recognition to the PRC, recognizing the PRC as the representative of all China, though all countries that have established formal diplomatic ties with the PRC use terms such as "respects", "acknowledge", "understand", "take note of" in regards to the PRC's claim over Taiwan which avoids clarifying what territories are meant by "China" in order to associate with both the PRC and ROC. , just 15 countries maintain diplomatic relations with the ROC, although informal relations are maintained with nearly all others. Agencies of foreign governments such as the American Institute in Taiwan operate as ''de facto'' embassies of their home countries in Taiwan, and Taiwan operates similar ''de facto'' embassies and consulates in most countries under such names as "Taipei Representative Office" (TRO) or "Taipei Economic and Cultural (Representative) Office" (TECO). In certain contexts, Taiwan is also referred to as Chinese Taipei.

The ROC government has in the past actively pursued the claim as the sole legitimate government over mainland China and Taiwan. This position began to change in the early 1990s as democracy was introduced and new Taiwanese leaders were elected, changing to one that does not actively challenge the legitimacy of PRC rule over mainland China. Both the PRC and the ROC carry out Cross-Strait relations through specialized agencies (such as the Mainland Affairs Council of the ROC and the Taiwan Affairs Office of the PRC), rather than through foreign ministries. Different groups have different concepts of what the current formal political situation of Taiwan is.

In addition, the situation can be confusing because of the different parties and the effort by many groups to deal with the controversy through a policy of deliberate ambiguity. The political solution that is accepted by many of the current groups is the perspective of the status quo: to unofficially treat Taiwan as a state and, at a minimum, to officially declare no support for the government of this state making a formal declaration of independence. What a formal declaration of independence would consist of is not clear and can be confusing given the fact that the People's Republic of China has never controlled Taiwan and the Republic of China still exists, albeit on a decreased scale.

Argument for Taiwan being legally part of China

In the Cairo Conference of 1943, the allied powers agreed to have Japan restore "all the territories Japan has stolen from the Chinese", specifically listing "Formosa" and Penghu, to the Republic of China after the defeat of Japan. According to both the People's Republic of China and the Republic of China, this agreement was given legal force by the Instrument of Surrender of Japan in 1945. The PRC's UN Ambassador, Wang Yingfan, has stated multiple times in the UN general committee: "Taiwan is an inseparable part of China's territory since antiquity" and "both the 1943 Cairo Declaration and the 1945 Potsdam Declaration have reaffirmed in unequivocal terms China's sovereignty over Taiwan as a matter of international law." The PRC rejects arguments involving the lack of a specific treaty (San Francisco Peace Treaty) transferring Taiwan's sovereignty to China by noting that neither PRC nor ROC was a signatory to any such treaty, making the treaties irrelevant with regard to Chinese claims. Also, according to the Treaty of Shimonoseki, China legally surrendered its sovereignty and jurisdiction over Taiwan (Formosa) forever. So, this treaty therefore renders Japan's declaration of the returning of sovereignty over Taiwan to China as well as the PRC's UN Ambassador, Wang Yingfan's claims regarding China's right to sovereignty over Taiwan, as legally extraneous and unsubstantiated. The US and UK governments also hold that the Cairo Declaration made in 1943 is just a war-time statement of intention and cannot itself transfer the sovereignty of Taiwan from Japan to China.

The ROC argues that the Treaty of Taipei implicitly transferred sovereignty of Taiwan to it, however the US State Dept. disagreed with such an interpretation in its 1971 Starr Memorandum.

Arguments against Taiwan being legally part of China

A number of supporters of Taiwan independence argue that Taiwan was only formally incorporated as a Chinese territory under the Qing Dynasty in 1683, and as a province in 1885. Subsequently, because of the Shimonoseki Treaty of 1895, Taiwan had been '' de jure'' part of Japan when the ROC was established in 1912 and thus was not part of the Chinese republic. Also, because the Cairo Declaration was an unsigned press communiqué, the independence advocates argue that the legal effectiveness of the Declaration is highly questionable. Furthermore, they point out that the Instrument of Surrender of Japan was no more than an armistice, a "modus vivendi" in nature, which served as a temporary or provisional agreement that would be replaced with a peace treaty. Therefore, only a military occupation of Taiwan began on 25 October 1945, and both the Treaty of San Francisco and Treaty of Taipei hold legal supremacy over the surrender instrument. These treaties did not transfer the title of Taiwan from Japan to China. Some argue that Taiwan was returned to the people of Taiwan when Japan renounced sovereignty of Taiwan based on the policy of self-determination which has been applied to "territories which detached from enemy states as a result of the Second World War" as defined by article 76b and 77b of the United Nations Charter and also by the protocol of the Yalta Conference. The United Nations General Assembly has not been particularly receptive to this argument, and the ROC's applications for admission to the United Nations have been rejected 15 times.

Although the interpretation of the peace treaties was used to challenge the legitimacy of the ROC on Taiwan before the 1990s, the introduction of popular elections in Taiwan has compromised this position. Except for the most extreme Taiwan independence supporters, most Taiwanese support the popular sovereignty theory and no longer see much conflict between this theory of sovereignty and the ROC position. In this sense, the ROC government currently administering Taiwan is not the same ROC which accepted Japanese surrender because the ruling authorities were given popular mandate by different pools of constituencies: one is the mainland Chinese electorate, the other is the Taiwanese constituencies. In fact, former president Chen Shui-bian has been frequently emphasizing the popular sovereignty theory in his speeches.

However, as of 2010, the conflict between these two theories still plays a role in internal Taiwanese politics. The popular sovereignty theory, which the pan-green coalition emphasizes, suggests that Taiwan could make fundamental constitutional changes by means of a popular referendum. The ROC legal theory, which is supported by the pan-blue coalition, suggests that any fundamental constitutional changes would require that the amendment procedure of the ROC constitution be followed.

Historical overview

1895–1945 – Japanese rule

Treaty of Shimonoseki

Taiwan (Formosa) including the Pescadores were permanently ceded by Qing Dynasty China to Imperial Japan via Articles 2b and 2c of the Treaty of Shimonoseki on 8 May 1895 in one of what the Chinese term an unequal treaty. Kinmen and Matsu Islands on the coast of Fukien, and the islands in the South China Sea currently administered by the Republic of China on Taiwan were not part of the cession.

In 1895, subsequent to the Treaty of Shimonoseki, officials in Taiwan declared independence. The Republic of Taiwan (1895) collapsed after 12 days due to political infighting, but local leaders continued resistance in the hope of achieving self-rule. The incoming Japanese crushed the island's independence bid in a five-month campaign.

The Chinese Qing Dynasty was subsequently overthrown and replaced by the Republic of China (ROC). Upon the outbreak of the Second Sino-Japanese War, the ROC declared the Treaty of Shimonoseki void in its declaration of war on Japan. The war soon merged with World War II, and Japan was subsequently defeated in 1945 by the Allied Powers, of which the ROC was a part.

Potsdam Declaration and surrender of Japan

The United States entered the War in December 1941. Most military attacks against Japanese installations and Japanese troops in Taiwan were conducted by United States military forces. At the Cairo Conference, the U.S., United Kingdom, and the ROC agreed that Taiwan was to be restored to the ROC after the war. This agreement was enunciated in the Cairo Declaration and the Potsdam Declaration, which outlined the terms of Japanese surrender, specified that the terms of the Cairo Declaration shall be carried out.

When Japan unconditionally surrendered, it accepted in its Instrument of Surrender the terms of the Potsdam Declaration. Japanese troops in Taiwan were directed to surrender to the representatives of the Supreme Allied Commander in the China Theater, Chiang Kai-shek (i.e. the Republic of China military forces) on behalf of the Allies, according to the directions of General Douglas MacArthur, head of the United States Military Government, in General Order No. 1, which was issued 2 September 1945. Chief Executive Chen Yi of Republic of China soon proclaimed "Taiwan Retrocession Day" on 25 October 1945.

1945–present – post-World War II status

1947 – 228 Incident

When the 228 Incident erupted on 28 February 1947, the U.S. Consulate-General in Taipei prepared a report in early March, calling for an immediate intervention in the name of the U.S. or the United Nations. Based on the argument that the Japanese surrender did not formally transfer sovereignty, Taiwan was still legally part of Japan and occupied by the United States (with administrative authority for the occupation delegated to the Chinese Nationalists), and a direct intervention was appropriate for a territory with such status. This proposed intervention, however, was rejected by the U.S. State Department. In a news report on the aftermath of the ''228 Incident'', some Taiwanese residents were reported to be talking of appealing to the United Nations to put the island under an international mandate, since China's possession of Taiwan had not been formalized by any international treaties by that time and the island was therefore still under belligerent occupation.
They later made a demand for a treaty role to be represented at the forthcoming peace conference on Japan, in the hope of requesting a plebiscite to determine the island's political future.

1950–1953 – Korean War and U.S. intervention

At the start of 1950, U.S. President Harry S. Truman appeared to accept the idea that sovereignty over Taiwan was already settled when the United States Department of State stated that "In keeping with these airo and Potsdam/nowiki> declarations, Formosa was surrendered to Generalissimo Chiang-Kai Shek, and for the past four years, the United States and Other Allied Powers have accepted the exercise of Chinese authority over the Island."
However, after the outbreak of the Korean War, Truman decided to "neutralize" Taiwan claiming that it could otherwise trigger another world war. In June 1950, President Truman, who had previously given only passive support to Chiang Kai-shek and was prepared to see Taiwan fall into the hands of the Chinese Communists, vowed to stop the spread of communism and sent the U.S. Seventh Fleet into the Taiwan Strait to prevent the PRC from attacking Taiwan, but also to prevent the ROC from attacking mainland China. He then declared that "the determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations." President Truman later reaffirmed the position "that all questions affecting Formosa be settled by peaceful means as envisaged in the Charter of the United Nations" in his special message to the Congress in July 1950. The PRC denounced his moves as flagrant interference in the internal affairs of China.

On 8 September 1950, President Truman ordered John Foster Dulles, then Foreign Policy Advisor to the U.S. Secretary of State, to carry out his decision on "neutralizing" Taiwan in drafting the Treaty of Peace with Japan ( San Francisco Peace Treaty) of 1951. According to George H. Kerr's memoir '' Formosa Betrayed'', Dulles devised a plan whereby Japan would first merely renounce its sovereignty over Taiwan without a recipient country to allow the sovereignty over Taiwan to be determined together by the United States, the United Kingdom, Soviet Union, and Republic of China on behalf of other nations on the peace treaty. The question of Taiwan would be taken into the United Nations (of which the ROC was still part), if these four parties could not reach into an agreement within one year.

1952 – Treaty of Peace with Japan (San Francisco)

When Japan regained sovereignty over itself in 1952 with the conclusion of the Treaty of Peace with Japan (San Francisco Peace Treaty) with 48 nations, Japan renounced all claims and title over Taiwan and the Pescadores. Many claim that Japanese sovereignty only terminated at that point. Notably absent at the peace conference was the ROC which was expelled from mainland China in December 1949 as a result of the Chinese Civil War and had retreated to Taiwan. The PRC, which was proclaimed 1 October 1949, was also not invited. The lack of invitation was probably due to the dispute over which government was the legitimate government of China (which both governments claimed to be); however, Cold War considerations might have played a part as well. Some major governments represented in the San Francisco Conference, such as the UK and Soviet Union, had already established relations with the PRC, while others, such as the U.S. and Japan, still held relations with the ROC.

The UK at that time stated for the record that the San Francisco Peace Treaty "itself does not determine the future of these islands," and therefore the UK, along with Australia and New Zealand, was happy to sign the peace treaty. One of the major reasons that the delegate from the Soviet Union gave for not signing the treaty was that: "The draft contains only a reference to the renunciation by Japan of its rights to these territories aiwanbut intentionally omits any mention of the further fate of these territories."

Article 25 of this treaty officially stipulated that only the Allied Powers defined in the treaty could benefit from this treaty. China was not listed as one of the Allied Powers; however, article 21 still provided limited benefits from Articles 10 and 14(a)2 for China. Japan's cession of Taiwan is unusual in that no recipient of Taiwan was stated as part of Dulles's plan of "neutralizing" Taiwan. The ROC protested its lack of invitation to the San Francisco Peace conference, to no avail.

1952 – Treaty of Taipei

Subsequently, the Treaty of Taipei was concluded between the ROC and Japan on 28 April 1952 (effective 5 August), where Japan essentially re-affirmed the terms of the San Francisco Peace Treaty, and formalized the peace between the ROC and Japan. It also nullified all previous treaties made between China and Japan. Article 10 of the treaty specifies:

"For the purposes of the present Treaty, nationals of the Republic of China shall be deemed

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