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ICJ: Kosovo Independence is Legal

Demon of Light

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The United Nations International Court of Justice says Kosovo's unilateral declaration of independence from Serbia in 2008 did not violate international law.

That non-binding opinion was issued Thursday in The Hague. It is expected to clear the way for more countries to extend formal recognition to the government in Pristina.

Kosovo Foreign Minister Skender Hyseni, who spoke to reporters after the court session, called the ruling "great news for Europe." He said it "affirmed that the people of Kosovo did the right thing."

Source: Voice of America

I am not surprised people here are not paying attention to this issue, but this is probably one of the most important developments in the world so far this year. Kosovo's declaration of independence two years ago essentially sparked of the war between Russia and Georgia and now that there is legal cover for the declaration it could mean a wave of secessions.
 

donsutherland1

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For those who are interested, the advisory opinion can be found at: http://www.icj-cij.org/docket/files/141/15987.pdf?PHPSESSID=ae8bc11beb4cce138a047c72b9262685

The International Court of Justice's advisory opinion is interesting, but not surprising. There is no prohibition of declarations of independence in international law nor is there customary precedent whereby such declarations would be viewed as being superseded by the principle of territorial integrity. Indeed, the ICJ ruled that the principle of territorial integrity is a matter of state relations, not parties within states. Hence, a party could declare its independence in a given state and international law would not preclude that declaration. However, if a party declared independence and another sovereign state decided to assist that party, that would raise issues concerning territorial integrity. It should also be noted that the ICJ suggested that declarations of independence could be illegitimate if, for example, they were connected to "the unlawful use of force or other egregious violations of norms of general international law..."

IMO, the absence of a principle in international law that established clear criteria as to when declarations of independence are/are not legitimate, made the decision fairly likely. Having said that, whether other countries should recognize breakaway entities is an entirely different matter. On that matter, more specifically whether Kosovo is a legitimate sovereign state, the ICJ issued no opinion. Its opinion concerned the narrow question as to whether declarations of independence are prohibited under international law.

Overall, even if the ICJ did not intend the decision to be a destablizing one, it has the potential to have that impact. Restive areas within sovereign states will be encouraged by the decision, even as it is non-binding. At the same time, sovereign states having concern that such declarations could be viewed by others as legitimate given that they are not prohibited under international law could well be inclined to resort to force more quickly to head off such movements than might otherwise have been the case.

In sum, even as I believe the decision was probably the only one the ICJ could reach, I do not believe it is a helpful one.
 

ludahai

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I am actually quite surprised, though pleasantly so, at this decision.

Traditionally, the independence of a separatist area was not internationally recognized until the state recognized as sovereign over the area accepted the independence of the area -- either willingly or through a war for independence. There are exceptions to this, but that has been the general rule. The international recognition of Bosnia as well as its admission to the UN while the war was ongoing. At the time, there were scholars who suggested that this might signal a change in the traditional rule. I would not like to comment on that until I read the advisory opinion, however, as it regards Kosovo.

The devil will be in the details. However, there will be many places looking at this for direction. Places like Somaliland have a situation quite analogous to Kosovo. Others, like Western Sahara and Taiwan have far stronger cases than Kosovo while even places like Abkhazia, South Ossetia, Transnistria, Tannu Tuva and many others, though their cases on the face of them appear weaker than that of Kosovo, must now be reassessed in light of the details contained in this opinion.
 

Demon of Light

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Here is a html version of the ruling for anyone who has trouble with PDF files: International Court of Justice advisory opinion on Kosovo’s declaration of independence | Public International Law

The International Court of Justice's advisory opinion is interesting, but not surprising. There is no prohibition of declarations of independence in international law nor is there customary precedent whereby such declarations would be viewed as being superseded by the principle of territorial integrity. Indeed, the ICJ ruled that the principle of territorial integrity is a matter of state relations, not parties within states. Hence, a party could declare its independence in a given state and international law would not preclude that declaration. However, if a party declared independence and another sovereign state decided to assist that party, that would raise issues concerning territorial integrity. It should also be noted that the ICJ suggested that declarations of independence could be illegitimate if, for example, they were connected to "the unlawful use of force or other egregious violations of norms of general international law..."

IMO, the absence of a principle in international law that established clear criteria as to when declarations of independence are/are not legitimate, made the decision fairly likely. Having said that, whether other countries should recognize breakaway entities is an entirely different matter. On that matter, more specifically whether Kosovo is a legitimate sovereign state, the ICJ issued no opinion. Its opinion concerned the narrow question as to whether declarations of independence are prohibited under international law.

Actually I think the ruling fully endorsed the recognition of Kosovo's independence by other states. While the headline is the final conclusion how they reached that conclusion is significant as well. Specifically they ruled that the declaration of independence was not issued under UNSCR 1244, but instead was "an attempt to determine finally the status of Kosovo" after the interim period. In other words any subsequent actions are also attempts to determine finally the status of Kosovo. The fact UNMIK continues is irrelevant because it would still conceivably be able to transfer all authority to the independent government. UNMIK will still maintain a presence so long as no resolution can be reached, but they would essentially be doing nothing.

That is how I interpret it at least. It seems to me this ruling implies the recognitions are also not illegal under international law, but in fact efforts to effect a settlement on the future status.

There are exceptions to this, but that has been the general rule. The international recognition of Bosnia as well as its admission to the UN while the war was ongoing.

Bosnia had the clear and explicit right under the Yugoslav constitution to secede. The war itself was an ethnic conflict attempting to take parts of the country and incorporate them into other countries.

However, there will be many places looking at this for direction. Places like Somaliland have a situation quite analogous to Kosovo. Others, like Western Sahara and Taiwan have far stronger cases than Kosovo while even places like Abkhazia, South Ossetia, Transnistria, Tannu Tuva and many others, though their cases on the face of them appear weaker than that of Kosovo, must now be reassessed in light of the details contained in this opinion.

I'll do this one-by-one:

Somaliland has an even stronger case as they opted into Somalia and there is currently no stable Somali government.

Western Sahara's case is explicitly authorized. In fact, it is one of the great travesties as they were supposed to have a vote on independence nearly two decades ago under a UN resolution Morocco agreed to, but Morocco changed its mind and refuse to allow the vote. This is one potential worry we should have with regards to Southern Sudan's independence referendum next year.

Taiwan definitely does not have a stronger case. That Taiwan is a part of China is undisputed in the world as well as supported by every relevant part of international law.

I agree generally with the post-Soviet separatist states, though.
 

ludahai

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Somaliland has an even stronger case as they opted into Somalia and there is currently no stable Somali government.

no argument there... Shameful that no one has recognized it...

Western Sahara's case is explicitly authorized. In fact, it is one of the great travesties as they were supposed to have a vote on independence nearly two decades ago under a UN resolution Morocco agreed to, but Morocco changed its mind and refuse to allow the vote. This is one potential worry we should have with regards to Southern Sudan's independence referendum next year.

I believe it was a GA resolution, not a SC resolution (i have to check) so there is no legal binding level of authority for the referendum. However, as Western Sahara was a part of Spanish territory and when Spain relinquished control over it, it did NOT transfer control to Morocco, Morocco's claims to sovereignty is spurrious..

Taiwan definitely does not have a stronger case. That Taiwan is a part of China is undisputed in the world as well as supported by every relevant part of international law.

Absolutely wrong. It is disputed. Furthermore, Taiwan was a part of Japan. In the post-war treaty, there is no transfer of sovereignty over Taiwan to China following the war. It is a clear principle of international law that territory can only be transferred from one state to another state through a properly ratified and executed treaty. Taiwan's situation is more analogous to Western Sahara or East Timor where the previous soveriegn surrendered sovereignty over the territory but did not assign a new sovereign over the territory.

I agree generally with the post-Soviet separatist states, though.

I haven't finished reading the opinion yet... posting on here and reading it article by article between sets of my dumbell workout... I won't comment more specifically about those separatist states until I have fully digested the advisory opinion...

Bosnia had the clear and explicit right under the Yugoslav constitution to secede. The war itself was an ethnic conflict attempting to take parts of the country and incorporate them into other countries.

Can you please link it? I would like to look at it. English, French, or traditional Chinese would do.
 

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I believe it was a GA resolution, not a SC resolution (i have to check) so there is no legal binding level of authority for the referendum. However, as Western Sahara was a part of Spanish territory and when Spain relinquished control over it, it did NOT transfer control to Morocco, Morocco's claims to sovereignty is spurrious..

Here's the Security Council Resolution: United Nations Security Council Resolution 690 - Wikipedia, the free encyclopedia

Western Sahara probably has one of the strongest arguments for independence in the world right now, which is partly why they are recognized by the African Union and countless nations. The only comparable situation is that of East Timor, though Western Sahara has only been subjected to oppression rather than genocide and ethnic cleansing.

Absolutely wrong. It is disputed.

By Taiwan and its supporters, but no one else.

Furthermore, Taiwan was a part of Japan. In the post-war treaty, there is no transfer of sovereignty over Taiwan to China following the war.

Yeah the U.S. just allowed the ROC to control the territory with its military because they thought Taiwan should have independence.

Taiwan's situation is more analogous to Western Sahara or East Timor where the previous soveriegn surrendered sovereignty over the territory but did not assign a new sovereign over the territory.

The Potsdam Declaration, accepted in the Japanese Instruments of Surrender, explicitly says Japan will carry out the terms of the Cairo Declaration, which included the return of Chinese sovereignty over Formosa (Taiwan) and the Pescadores (Penghu). At no point was Chinese sovereignty over Taiwan in question. In fact, given that the recognized government of China has never even been granted actual authority over territory internationally recognized as its own then there is no argument for remedial secession either. In essence there is no conceivable legal argument in favor of Taiwanese independence. So we could say Taiwan has the weakest case for independence compared to nearly every unrecognized state in the world. It is certainly weaker than Kosovo's case where one could argue remedial secession and that independence was clearly allowed as a final status for it.

Can you please link it? I would like to look at it. English, French, or traditional Chinese would do.

Link what? Do you mean the provisions of the Yugoslav constitution allowing Bosnian secession? Right now the only version in any of those languages I found is Google Books and it's a very limited preview, which I doubt is what you'd want.
 

ludahai

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Thanks

Western Sahara probably has one of the strongest arguments for independence in the world right now, which is partly why they are recognized by the African Union and countless nations. The only comparable situation is that of East Timor, though Western Sahara has only been subjected to oppression rather than genocide and ethnic cleansing.

I agree with most of this statement, except that Taiwan's situation is also comparable as like Taiwan, Western Sahara's sovereignty was abandoned by its previous soveriegn (Spain in this case) but soveriegnty was not assigned to another state.


By Taiwan and its supporters, but no one else.

That is all that matters... Political support does not equate to legal legitimacy.


Yeah the U.S. just allowed the ROC to control the territory with its military because they thought Taiwan should have independence.

The ROC military occupied Taiwan in 1946 ON BEHALF of the allies. There was no transfer of sovereignty.


The Potsdam Declaration, accepted in the Japanese Instruments of Surrender, explicitly says Japan will carry out the terms of the Cairo Declaration, which included the return of Chinese sovereignty over Formosa (Taiwan) and the Pescadores (Penghu).

However, these are not treaties -- they are statements. Under international law, the only way territory can be transferred from one state to another state is through a signed, ratified, and executed treaty between the states involved. There is no such treaty in which Japan ceded control of Taiwan to another state. Some cite the Treaty of Taipei, but that occurred AFTER Japan surrendered soveriegnty without assigning it to another state in the Peace Treaty of San Francisco.

At no point was Chinese sovereignty over Taiwan in question. In fact, given that the recognized government of China has never even been granted actual authority over territory internationally recognized as its own then there is no argument for remedial secession either. In essence there is no conceivable legal argument in favor of Taiwanese independence.

On what basis? Again, the only way sovereignty can be transferred is through a treaty. There is no treaty in this case. This is long established international law based on centuries of state practice. The legal argument for Taiwan's independence is FAR STRONGER than that of Kosovo which was regarded as an integral part of Yugoslav territory confirmed by the Treaty of London following the First Balkan War. There are no treaties confirming that Taiwan was a part of Chinese territory.

So we could say Taiwan has the weakest case for independence compared to nearly every unrecognized state in the world. It is certainly weaker than Kosovo's case where one could argue remedial secession and that independence was clearly allowed as a final status for it.

Hardly, given that Taiwan has its own functioning government that represents the people, has its own armed forces, its own currency, and is technically terra derelicta in accordance with the fact that Japan relinquished sovereignty over Taiwan in 1952 and failed to name a beneficiary in accordance with international law in the San Francisco Peace Treaty.

Link what? Do you mean the provisions of the Yugoslav constitution allowing Bosnian secession? Right now the only version in any of those languages I found is Google Books and it's a very limited preview, which I doubt is what you'd want.

Let's both keep looking and post what we find. As the weather here today is crappy, I have a lot of time on my hands. If I find it, I will post it...
 

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I support Kosovo for purely selfish reasons.
Hope ICJ know they may have opened a Pandora's box.
 

ludahai

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84. For the reasons already given, the Court considers that general international law contains
no applicable prohibition of declarations of independence
. Accordingly, it concludes that the
declaration of independence of 17 February 2008 did not violate general international law. Having
arrived at that conclusion, the Court now turns to the legal relevance of Security Council
resolution 1244, adopted on 10 June 1999.

Still reading through the decision, but this part of the decision is quite interesting... If there is to be a blanket acceptance that there is no prohibition on declarations of independence, what happens to North Cyprus, Somaliland, Transnistria, and many other successionist states with limited recognition (or no recognition in the case of Somaliland).
 

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Still reading through the decision, but this part of the decision is quite interesting... If there is to be a blanket acceptance that there is no prohibition on declarations of independence, what happens to North Cyprus, Somaliland, Transnistria, and many other successionist states with limited recognition (or no recognition in the case of Somaliland).

It means we should theoretically be able to declare ourselves Independent and it should be recognised.
 

ludahai

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It means we should theoretically be able to declare ourselves Independent and it should be recognised.

Recognition is a political act, not a legal one. I thought Somaliland already declared independence from Somalia. Just because a declaration of independence is legal doesn't obligate a state to recognize the independence of that state.
 

ludahai

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I do find it interesting that of the four judges that voted against the majority decision, two are from countries with an indirect vested interest in the outcome of the advisory opinion.

Mohamed Bennouna is from Morocco, and of course parallels to Western Sahara, to which Morocco claims sovereignty, has already been brought up in this thread.

Leonid Skotnikov is from Russia and everyone knows from day one that Russia was Serbia's strongest supporter on this issue.

The other two are from Slovakia and Sierra Leone.
 

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The ROC military occupied Taiwan in 1946 ON BEHALF of the allies. There was no transfer of sovereignty.

It wasn't on anyone's behalf and that's just an absurd notion altogether. Had anyone considered Taiwan to be anything but a territory of China they would not have consented to the ROC having control of Taiwan.

However, these are not treaties -- they are statements. Under international law, the only way territory can be transferred from one state to another state is through a signed, ratified, and executed treaty between the states involved. There is no such treaty in which Japan ceded control of Taiwan to another state.

The Japanese Instrument of Surrender was a written agreement signed by a competent representative of the Japanese government. It was not called a treaty, but it was by all means a treaty under international law.

Some cite the Treaty of Taipei, but that occurred AFTER Japan surrendered soveriegnty without assigning it to another state in the Peace Treaty of San Francisco.

Those treaties did not say anything about sovereignty at all. Japan just renounced any claim to those territories because under the surrender they were already considered to have been transferred to China.

Hardly, given that Taiwan has its own functioning government that represents the people, has its own armed forces, its own currency

None of these have any meaning in terms of the legal case.
 

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Taiwan definitely does not have a stronger case. That Taiwan is a part of China is undisputed in the world as well as supported by every relevant part of international law.

The Taiwanese certainly dispute it, and while Red China has state sovereignty Taiwan has the only state sovereignty which matters IE popular sovereignty which Red China certainly lacks, on that basis Taiwan is more of a legitimate state than Red China, if I am to accept the sovereignty of states at all it can only be those states which govern with the consent of the governed, but of course I don't accept the sovereignty of states but rather uphold the concept that sovereignty should be invested within the individual if not then we are all nothing more than the property of the state but at least under popular sovereignty the slaves get a vote.
 
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ludahai

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It wasn't on anyone's behalf and that's just an absurd notion altogether. Had anyone considered Taiwan to be anything but a territory of China they would not have consented to the ROC having control of Taiwan.

Wrong. ROC forces occupied Taiwan in belligerant occupation in accordance with General Order 1. In the absense of a treaty, there is no transfer of sovereignty. Under this theory, why isn't northern Vietnam part of China and why isn't Manchuria part of Russia?

The Japanese Instrument of Surrender was a written agreement signed by a competent representative of the Japanese government. It was not called a treaty, but it was by all means a treaty under international law.

Not so. It was not ratified by any government and only representatives of the Japanese, American and several other MILITARIES signed the document. At that time, no ratification no treaty. It was not signed by civilian government officials.

Those treaties did not say anything about sovereignty at all. Japan just renounced any claim to those territories because under the surrender they were already considered to have been transferred to China.

They were not transferred to China under international law. The reason it was not transferred to China was primarily due to differences in relations. Some signatories had relations with the PRC while most had relations with the ROC.

None of these have any meaning in terms of the legal case.

Actually, if you look at ICJ decisions over the past 20-30 years, they have been using a doctrine known as effective control. In this case, effective control over Taiwan is held by its people and has been for fourteen years. So, even IF China had a legal claim to Taiwan (and it doesn't), the Taiwanese people and NOT China have effective control over the island.

Furthermore, looking at this ICJ decision, there is nothing to stop Taiwan from making a legal declaration of independence.
 

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Wrong. ROC forces occupied Taiwan in belligerant occupation in accordance with General Order 1. In the absense of a treaty, there is no transfer of sovereignty. Under this theory, why isn't northern Vietnam part of China and why isn't Manchuria part of Russia?



Not so. It was not ratified by any government and only representatives of the Japanese, American and several other MILITARIES signed the document. At that time, no ratification no treaty. It was not signed by civilian government officials.



They were not transferred to China under international law. The reason it was not transferred to China was primarily due to differences in relations. Some signatories had relations with the PRC while most had relations with the ROC.



Actually, if you look at ICJ decisions over the past 20-30 years, they have been using a doctrine known as effective control. In this case, effective control over Taiwan is held by its people and has been for fourteen years. So, even IF China had a legal claim to Taiwan (and it doesn't), the Taiwanese people and NOT China have effective control over the island.

Furthermore, looking at this ICJ decision, there is nothing to stop Taiwan from making a legal declaration of independence.

Nothing legally to stop it, it might not be recognized by many states, which does not really matter in the case of Taiwan as it would still do a lot of trade with plenty of countries. What would and does stop Taiwan from declaring independance is the the very realistic threat of China taking military action should it do so
 

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Nothing legally to stop it, it might not be recognized by many states, which does not really matter in the case of Taiwan as it would still do a lot of trade with plenty of countries. What would and does stop Taiwan from declaring independance is the the very realistic threat of China taking military action should it do so

Actually, it is more like the pro-KMT gerrymandered legislative system that has made it impossible for Taiwan to declare independence...
 

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Wrong. ROC forces occupied Taiwan in belligerant occupation in accordance with General Order 1. In the absense of a treaty, there is no transfer of sovereignty. Under this theory, why isn't northern Vietnam part of China and why isn't Manchuria part of Russia?

The Soviets had already agreed to the declaration which called for returning Manchuria to China. None of the other territories were previously territories of China.

Not so. It was not ratified by any government and only representatives of the Japanese, American and several other MILITARIES signed the document. At that time, no ratification no treaty. It was not signed by civilian government officials.

For heaven's sake, look into the definition of a treaty and look into the instrument of surrender itself. It was signed by the Japanese Foreign Minister and there is no requirement that civilian officials be involved only that those who sign it are representatives of the parties signing. That these representatives were acting on the explicit authority of their respective governments is all that matters. Ratification only requires that the representatives had such authority to accept the agreement and did so.

They were not transferred to China under international law. The reason it was not transferred to China was primarily due to differences in relations. Some signatories had relations with the PRC while most had relations with the ROC.

Actually no, it was transferred to China upon the Japanese surrender, which is why you find no mention of sovereignty in subsequent treaties as all territories were ceded to their previous sovereigns, save for some Pacific territories placed under U.S. authority, in that agreement.

Furthermore, looking at this ICJ decision, there is nothing to stop Taiwan from making a legal declaration of independence.

True, but no one is prohibited from such a declaration.
 

ludahai

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The Soviets had already agreed to the declaration which called for returning Manchuria to China. None of the other territories were previously territories of China.

Actually, northern Viet Nam WAS previously a territory of China. Regardless, it is irrelevant as at the time, Taiwan was Japanese territory, NOT Chinese.

For heaven's sake, look into the definition of a treaty and look into the instrument of surrender itself. It was signed by the Japanese Foreign Minister and there is no requirement that civilian officials be involved only that those who sign it are representatives of the parties signing. That these representatives were acting on the explicit authority of their respective governments is all that matters. Ratification only requires that the representatives had such authority to accept the agreement and did so.

You are probably looking at the post-1969 definition. Furthermore, treaties need to be ratified. In most countries, including the United States that was a party to the Instrument of Surrender, the legislature (or part of the legislature) is required to ratify the treaty. This did not happen with the U.S. nor with any of the other Allied signatories of the treaty. None of the Allied powers regard the Instrument of Surrender as being a treaty.


Actually no, it was transferred to China upon the Japanese surrender, which is why you find no mention of sovereignty in subsequent treaties as all territories were ceded to their previous sovereigns, save for some Pacific territories placed under U.S. authority, in that agreement.

Actually, no it wasn't because a treaty is required to transfer territory from one state to another state. Post-war territorial possession is NOT sufficient for transfer of soveriegnty. There is plenty of precedent for this position. After World War I, the French army occupied territory that was part of Germany but had been part of France prior to the Franco-Prussian war five decades earlier. Despite this, the treaty ending WWI specifically included a provision to transfer sovereignty from Germany to France.

Question -- do you know why following the Spanish-American War why Puerto Rico and the Philippines came under American soveriegnty while Cuba did not?

True, but no one is prohibited from such a declaration.

According to the recent ICJ advisory opinion, that would seem to be the case. However, Kosovo was a part of Serbia as confirmed by by the Treaty of London. There is no such treaty that confirmed Taiwan as being part of China.
 

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Actually, northern Viet Nam WAS previously a territory of China. Regardless, it is irrelevant as at the time, Taiwan was Japanese territory, NOT Chinese.

I'm not talking about some long-lost territory, but territories that had belonged to the Qing Dynasty and not long before the war with Japan.

You are probably looking at the post-1969 definition. Furthermore, treaties need to be ratified. In most countries, including the United States that was a party to the Instrument of Surrender, the legislature (or part of the legislature) is required to ratify the treaty. This did not happen with the U.S. nor with any of the other Allied signatories of the treaty. None of the Allied powers regard the Instrument of Surrender as being a treaty.

The internal laws regarding treaties are irrelevant as to what constitutes a treaty under international law and the 1969 convention was merely codifying long-held standards.

According to the recent ICJ advisory opinion, that would seem to be the case. However, Kosovo was a part of Serbia as confirmed by by the Treaty of London. There is no such treaty that confirmed Taiwan as being part of China.

Obviously your refusal to accept a treaty as a treaty is just your little dance to satisfy your misguided position. Not only was China's sovereignty over Taiwan recognized by treaty, independence was not even allowed as an option like it was with Kosovo. That it was a treaty is obvious by the behavior of the parties. Not a one challenged Taiwan's status as Chinese territory. All have consistently recognized Taiwan since the surrender as part of China. No mention of transfers of sovereignty were included about any territories held by Japan in the peace treaty. Obviously all recognized that the legal transfer of sovereignty had been required with the surrender and took effect when the Chinese military took control of Taiwan. If there had been any doubt about this it would have been included in the peace treaty.

Their actions clearly speak to the fact that it was a treaty and Taiwan was thus ceded by Japan to China.
 

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I'm not talking about some long-lost territory, but territories that had belonged to the Qing Dynasty and not long before the war with Japan.

Just trying to clarify the record. You DO know I hope that even during the Qing Dynasty, the Chinese only controlled about one-third of the island at most.


The internal laws regarding treaties are irrelevant as to what constitutes a treaty under international law and the 1969 convention was merely codifying long-held standards.

Not true. The treaty itself specifically states that the codification in the treaty does not predate the treaty. Furthermore, since you are referring to long-held standards, it is a long held standard that territory can only be transferred from one state to another state via a properly signed, ratified, and executed treaty. An instrument of surrender doesn't even come close to meeting that standard.


Obviously your refusal to accept a treaty as a treaty is just your little dance to satisfy your misguided position. Not only was China's sovereignty over Taiwan recognized by treaty, independence was not even allowed as an option like it was with Kosovo.

Actually, the problem is that you are according the status of treaty to something that in no way even comes close to the standards of treaty and you are ignoring the high standards required for the transfer of territory from one state to another state.

That it was a treaty is obvious by the behavior of the parties. Not a one challenged Taiwan's status as Chinese territory.

Actually, that is not true. There are several documents from representatives of state actors to international legal specialists in the late 1940s and early 1950s that in fact challenges this assertion.

All have consistently recognized Taiwan since the surrender as part of China.

Actually, this is not the case. Even today, the U.S. does not formally RECOGNIZE China's sovereignty over Taiwan, it merely ACKNOWLEDGES the claims of the Chinese. The Japanese have used even more ambiguous language than the Americans.

No mention of transfers of sovereignty were included about any territories held by Japan in the peace treaty.

And consequently, with the exception of Korea and territories transferred to the Allied powers, it doesn't not formally recognize claims of sovereignty by China over Taiwan or by Russia over Karafuto or the Chishima Islands.

Obviously all recognized that the legal transfer of sovereignty had been required with the surrender and took effect when the Chinese military took control of Taiwan. If there had been any doubt about this it would have been included in the peace treaty.

This is simply not true, and even if it were, recognition is a POLITICAL act, not a legal one.

Their actions clearly speak to the fact that it was a treaty and Taiwan was thus ceded by Japan to China.

Not as clear as you think and not in accordance with international law as established by practice. Notice how you ignored my point that it required a properly ratified treaty to transfer territory and you further ignored the two examples (of which there are MANY, MANY more) which illustrates this point. Then again, such ignoring of such points is common among the Chinese/pro-Chinese online.
 

Demon of Light

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Just trying to clarify the record. You DO know I hope that even during the Qing Dynasty, the Chinese only controlled about one-third of the island at most.

Are you referring to the one third that then and now constitutes most of Taiwan's population and essentially all of its coastline? No, I admit I did not know this, but it makes no real difference whether they actively controlled the mountains or not. All of it was incorporated into China.

Not true. The treaty itself specifically states that the codification in the treaty does not predate the treaty. Furthermore, since you are referring to long-held standards, it is a long held standard that territory can only be transferred from one state to another state via a properly signed, ratified, and executed treaty. An instrument of surrender doesn't even come close to meeting that standard.

This one sure as hell does. It was signed, ratified, and executed without question and it was clearly legitimate. Consider the situation of Sakhalin. Nowhere did Japan transfer sovereignty in any peace agreement because it doesn't even have a peace agreement with Russia. Yet no one considers the status of any part of Sakhalin to be disputed. None of the other territories are disputed even though none were mentioned in the peace treaties as being transferred to another country. That is because the Allies all considered the matter legally settled with the surrender terms to which Japan agreed. Whatever they called it, the Japanese Instrument of Surrender was a treaty that did transfer sovereignty over those respective territories to China.

To suggest it wasn't a treaty would require you to declare the entire surrender of Japan illegitimate. You would have to argue that the Allies illegally occupied Japan, illegally took administrative control of Japan, and illegally took territories of Japan. It was a treaty, this much is settled history and law. Taiwan has no legal claim to independence.

Actually, the problem is that you are according the status of treaty to something that in no way even comes close to the standards of treaty and you are ignoring the high standards required for the transfer of territory from one state to another state.

The problem is you just misrepresent the facts to justify your own personal bias.

Actually, that is not true. There are several documents from representatives of state actors to international legal specialists in the late 1940s and early 1950s that in fact challenges this assertion.

No doubt when it became clear that the government they didn't like would be in control of China. Any claims disputing Taiwan's status as a territory of China outside Taiwan are either the result of misunderstandings of the law or deliberate obfuscation in advancement of a political agenda.

Actually, this is not the case. Even today, the U.S. does not formally RECOGNIZE China's sovereignty over Taiwan, it merely ACKNOWLEDGES the claims of the Chinese. The Japanese have used even more ambiguous language than the Americans.

The U.S. clearly does recognize Taiwan as part of China. There is certainly no ambiguity with regards to Japan:

The Government of the People's Republic of China reiterates that Taiwan is an inalienable part of the territory of the People's Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People's Republic of China, and it firmly maintains its stand under Article 8 of the Postsdam Proclamation.

Joint Communiqu of the Government of Japan and the Government of the People's Republic of China

Such a position could not be any clearer. Japan accepted the terms of the Potsdam Declaration in the Instrument of Surrender and reiterated that it supports that decision. The declaration clearly establishes that Taiwan is a part of China.

This is simply not true, and even if it were, recognition is a POLITICAL act, not a legal one.

Recognition is clearly a legal act and it certainly is true. Had the ROC remained in control there is no question as to the result for Taiwan. Only when a government they opposed was poised for control did they ever question this mater.

Not as clear as you think and not in accordance with international law as established by practice. Notice how you ignored my point that it required a properly ratified treaty to transfer territory and you further ignored the two examples (of which there are MANY, MANY more) which illustrates this point. Then again, such ignoring of such points is common among the Chinese/pro-Chinese online.

My position is not about China, but about accepting the rule of law. Japan agreed to a treaty that clearly recognized Taiwan as part of China, period. That Taiwan was transferred to China is indisputable. China taking control of Taiwan was the realization of the Cairo Declaration terms that Taiwan be restored to China. To interpret this any other way is to challenge the legitimacy of the surrender in its entirety.

I have not ignored anything. You think I have not noted such a treaty because it would seem you insist the Japanese Instrument of Surrender was not a treaty based off some spurious claims that have no legitimacy under international law in any way shape or form.
 

ludahai

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Are you referring to the one third that then and now constitutes most of Taiwan's population and essentially all of its coastline? No, I admit I did not know this, but it makes no real difference whether they actively controlled the mountains or not. All of it was incorporated into China.

Basically, most of the western plain was under Qing control, but the mountains and most of the east coast (except Ilan) were outside of Chinese control. How can you incorporate territory into your country that you don't even control? Even the Japanese saw the absurdness of this as early as the 1870s in an exchange of diplomatic notes between their foreign ministery and the Zongli Yamen.

This one sure as hell does. It was signed, ratified, and executed without question and it was clearly legitimate. Consider the situation of Sakhalin. Nowhere did Japan transfer sovereignty in any peace agreement because it doesn't even have a peace agreement with Russia. Yet no one considers the status of any part of Sakhalin to be disputed. None of the other territories are disputed even though none were mentioned in the peace treaties as being transferred to another country. That is because the Allies all considered the matter legally settled with the surrender terms to which Japan agreed. Whatever they called it, the Japanese Instrument of Surrender was a treaty that did transfer sovereignty over those respective territories to China.

It was signed, but most certainly was NOT ratified. There were no instruments of ratification exchanged amongst the signatory parties. There was no vote in the U.S. Senate to ratify it on behalf of the United States nor did any other signatory ratify the instrument of surrender. There was NO ratification. Also, as for the southern part of Sakhalin (known to the Japanese as Karafuto) you are wrong as the Japanese DO NOT recognize Russian sovereignty over the southern half of the island precisely because there was no treaty signed between the two. If you look at a JAPANESE map of the region, that along with most of the Kurile Islands (known as Chishima Islands in Japanese) show up as white -- meaning their status is legally untermined. The only exception to this is the four small islands at the southern end of the Kurile/Chishima chain which Japan still claims as their own.

To suggest it wasn't a treaty would require you to declare the entire surrender of Japan illegitimate. You would have to argue that the Allies illegally occupied Japan, illegally took administrative control of Japan, and illegally took territories of Japan. It was a treaty, this much is settled history and law. Taiwan has no legal claim to independence.

It is legal to occupy pending a peace treaty. There are countless examples of this in the history of international state to state relations. This should be obvious to you. It is known as belligerant occupation and has occurred at end of a large number of wars pending the final peace treaty. In fact, the instrument of surrender amounts to little more than an armistice, much like was signed at the end of World War I. Between the signing of an armistice and the ratification of a peace treaty, occupation by the victor (at least partial) is quite legal.

The problem is you just misrepresent the facts to justify your own personal bias.

This coming from someone who claims a document to be a treaty that clearly is not. I have already pointed to examples where it is clear that a treaty specifically indicated a transfer of sovereignty of territory from one state to another state even when the territory was occupied and furthermore noted an examples of a treaty that, although the victor already occupied the territory, sovereignty was NOT granted. Not only have you ignored those examples, you have also declined to present counter-examples to make your point.


No doubt when it became clear that the government they didn't like would be in control of China. Any claims disputing Taiwan's status as a territory of China outside Taiwan are either the result of misunderstandings of the law or deliberate obfuscation in advancement of a political agenda.

It was all political. We all know that. However, that does not change the legal standing of Taiwan vis a vis China and the other allies. There was no transfer of sovereignty. Your claim that the Instrument of Surrender being a treaty (when it CLEARLY was not) notwithstanding.


The U.S. clearly does recognize Taiwan as part of China. There is certainly no ambiguity with regards to Japan:

No, it does not. It ACKNOWLEDGES the claim. I interviewed officials at the State Department about this as a grad student. Same with Japan. Japan's foreign ministery says that it has no say in who has sovereign control over Taiwan and that it surrendered control over the island in the Peace Treaty of San Francisco which was ratified and went into force in 1952. This was according to a Foreign Ministry official I interviewed at the Japanese embassy in Washington and has been repeated (rather controversally according to the current KMT government, but quite correctly) by the then-Japanese de facto representative to Taiwan just a few months ago.

Such a position could not be any clearer. Japan accepted the terms of the Potsdam Declaration in the Instrument of Surrender and reiterated that it supports that decision. The declaration clearly establishes that Taiwan is a part of China.

Then why doesn't the Japanese Foreign Ministry accept that position today?

Recognition is clearly a legal act and it certainly is true. Had the ROC remained in control there is no question as to the result for Taiwan. Only when a government they opposed was poised for control did they ever question this mater.

Recognition is purely political, not legal. Ask nearly any scholar of international law. It is clearly political, not legal. No state has the legal right or authority to compromise the legal rights of any other state or people.


My position is not about China, but about accepting the rule of law. Japan agreed to a treaty that clearly recognized Taiwan as part of China, period. That Taiwan was transferred to China is indisputable. China taking control of Taiwan was the realization of the Cairo Declaration terms that Taiwan be restored to China. To interpret this any other way is to challenge the legitimacy of the surrender in its entirety.

Again, you are giving the status of treaty to somethign that is not a treaty. Frankly, I would love to see the ICJ rule on it, but the chicken leaders in Beijing object to it presumably because they know deep down that in accordance with the law, their case is exceeding weak and is getting weaker all the time in accordance with the effective control doctrine that the ICJ has used in recent decades in several territorial dispute cases.

I have not ignored anything. You think I have not noted such a treaty because it would seem you insist the Japanese Instrument of Surrender was not a treaty based off some spurious claims that have no legitimacy under international law in any way shape or form.

It simply is not a treaty and you have neither shown that it is nor have you countered the examples where treaties were required to confirmed territorial transfers even in cases where effective control was already established nor have you answered the point of the cited case where effective control WAS established but sovereignty was not transferred because not done so in the ratified post-war treaty.

In other words, you to this point have an epic FAIL to your arguments because you have left so many matters of precedence, a vital source of international law, unanswered.
 

Demon of Light

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Basically, most of the western plain was under Qing control, but the mountains and most of the east coast (except Ilan) were outside of Chinese control. How can you incorporate territory into your country that you don't even control? Even the Japanese saw the absurdness of this as early as the 1870s in an exchange of diplomatic notes between their foreign ministery and the Zongli Yamen.

Say what you like it was the reality. Japan obviously thought Taiwan belonged to China since they had China cede the territory to them.

Also, as for the southern part of Sakhalin (known to the Japanese as Karafuto) you are wrong as the Japanese DO NOT recognize Russian sovereignty over the southern half of the island precisely because there was no treaty signed between the two. If you look at a JAPANESE map of the region, that along with most of the Kurile Islands (known as Chishima Islands in Japanese) show up as white -- meaning their status is legally untermined.

Prove it.

It was signed, but most certainly was NOT ratified. There were no instruments of ratification exchanged amongst the signatory parties. There was no vote in the U.S. Senate to ratify it on behalf of the United States nor did any other signatory ratify the instrument of surrender. There was NO ratification.

I get it, you support independence so you regurgitate all the propaganda you've been fed favoring that position, but try being at least a little independent in your thinking. Ratification need not involve an exchange of notes or legislative approval. All it requires is that it is accepted by those with the authority to accept it. The various Allied military representatives obviously had the authority to accept it on behalf of their countries as did those representatives of the Japanese government and military. It in fact had to be a treaty because authority was vested in the Supreme Commander and the Japanese government itself was not dissolved.

In other words, a foreign power was given authority over a country's existing institutions and there are terms regarding the exercise of that authority. This could only be legally effectuated with a binding legal agreement between States. Only if the Japanese government's acceptance of the surrender was legally binding could they vest an office with authority over it.

Something I have not really noted is that one could argue there has been no transfer of sovereignty, but the Japanese Instrument of Surrender clearly requires this to occur in any event making any arguments about "effective control" meaningless.
 
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