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Taiwan is NOT a part of China
A. History
The notion that Taiwan is a part of China is taken as a matter of faith among China’s government and most of its citizens. It is also similarly taken as a matter of faith among the Chinese Nationalist Party (KMT), which formerly ruled the islad and still retains a strong presence in local Taiwanese politics. However, rarely is an actual examination taken of the legitimacy and legal veracity of these claims.
The indigenous population of the island is proto-Austronesian peoples who are believed to be the progenitors of the Malayo-Polynesian peoples who have spread through Southeast Asia and as far west as Madagascar and as far east as Hawaii, Easter Island, and perhaps even mainland South America. They had lived in Taiwan in relative isolation, with only limited and infrequent Chinese contacts, as late as the 16th century.
As the 17th century dawned, Taiwan was still out of the realm of China. China had never established governmental authority east of the Pescadores Island chain in the Taiwan Strait. Even that authority was short-lived. In 1624, the Dutch established a trade outpost in the Pescadores. This elicited the opposition of the Ming Chinese government, who ousted the Dutch. The Ming, however, offered no objection to the Dutch using southern Taiwan as an outpost because they conceded that it was outside their jurisdiction.
A half-Japanese pirate, and Ming loyalist, by the name of Koxinga (Jheng Chenggong) led a naval raid on the Dutch settlement at Anping (present-day Tainan) and ousted the Dutch in 1660. However, the Ming Dynasty had fallen nearly two decades earlier and he had no authority from the Ming remnants fighting a losing battle in southwestern China at the time. Thus, it cannot be said that Chinese sovereignty over Taiwan was assumed at that time. Shortly thereafter, the Manchus from a region northeast of China took complete control of the country. In 1683, they added Taiwan to their list of conquests and made it a part of their empire. This is the first time in history that Taiwan and China were a part of the same political entity, and the reality is that both were conquered and occupied by an outside power, the Manchus.
Now, we fast forward to the 1880s. The Manchus still controlled both China and Taiwan and attempted to make Taiwan more integrated with their empire. The fact is that most of Taiwan still lay outside of their control as late as the 1870s as the east coast and the mountain areas were outside their jurisdiction. Taiwan was made a province of the Qing Dynasty in 1886 and they made a short-lived effort to modernize the island. However, the corrupt empress dowager, Cixi, put a stop to it. Regardless, it did not matter as the fate of Taiwan would be decided far from its shores. China managed to get itself into a war with Japan, a war that Japan was itching for, but a war that China provoked and was completely ill-prepared for. The cause was intervention in Korea. The resulting Treaty of Shimonoseki transferred sovereignty of Taiwan to Japan in perpetuity, meaning forever.
Taiwan became a part of the Japanese empire. Japan tried to turn Taiwan into an integral part of the country. Taiwan’s economy and educational system were developed to an extent not seen in other territories occupied by Japan. Sure, there were Japanese atrocities in Taiwan, especially against the aboriginal population who resisted Japanese rule. However, on balance, Japanese rule over Taiwan was relatively benign, even to the extent that a limited degree of self-rule was introduced in the 1930s.
Japan invaded China in 1937, beginning the Asian phase of what became World War II. A variety of documents emerged from this war what will be addressed later in this essay. However, virtually all of China’s claims that Taiwan belongs to it stem from this eight-year conflict. Japan was defeated by the Allied powers (which included China) in 1945. KMT forces from China came to Taiwan to accept Japan’s surrender on behalf of the Allied powers. The San Francisco Peace Treaty was signed in 1951 (taking effect the following year) which formally ended the war in the Pacific.
B. China’s claim
As mentioned in the above section, China’s claims to Taiwan mostly stem from World War II and the agreements and treaties that were signed as a result of the conflict. The notion that Taiwan is a part of China rests on four agreements and a basic theory of international law known as “state succession.”
American President Roosevelt, British Prime Minister Churchill and Republic of China Generalissimo Chiang Kaishek (Jiang Jhongjheng) met in Cairo, Egypt in November, 1943. The Cairo Declaration was a joint declaration that the territories “stolen” by Japan are to be returned to China following the end of the war. Taiwan was one of the territories referenced.
Less than two years later, after the war in Europe was concluded, there was a meeting near Berlin including the United States, Britain, and the Soviet Union. They reaffirmed the content of the Cairo Declaration in that meeting and demanded Japan’s unconditional surrender.
Japanese representatives signed an Instrument of Surrender on September 2, 1945 in which they stated an acceptance to accept the provisions of the Potsdam Proclamation. Japanese and American military commanders were the only signatories.
Finally, a bilateral treaty was signed between the Republic of China government (by then in exile in Taiwan) and Japan in 1952. In it, Japan signified that it had “returned” Taiwan to the Republic of China. This document is used by the KMT to bolster its claim that Taiwan is a part of China.
This document is NOT used by the PRC, however. In fact, they do not even recognize its legitimacy. They use another rationale to support their claim. They claim that Taiwan was “returned” to China on either September 2, 1945 (with the signing of the Instrument of Surrender) or on October 25, 1945 when KMT troops accepted Japan’s surrender in Taiwan. Theoretically, as Taiwan was a part of China when the Communist Party won the civil war in 1949, and under the successor state theory, all agreements signed by the previous government (including boundaries) are binding on the successor government.
C. Examination of International Law on State-to-State Transfer of Territory
However, when these claims are illuminated under the light of international law, their argument is shown to be built on shifting sands.
According to international law, there is only one mechanism by which territory can be transferred from one state to another: a legally ratified and binding peace treaty. This is confirmed by state practice, the leading source of international law in the pre-World War II era.
The Treaty of Shimonoseki, the very treaty in which Taiwan was transferred to Japanese control in the first place, includes a specific mention of that transfer. Article two of that treaty provided for the transfer of Taiwan to Japan. The transfer is specifically referenced as is the beneficiary power.
The Versailles Treaty ended World War I and was signed in Paris in 1919. In this treaty, territory transfers and new boundaries were specifically spelled out. All territorial transfers were specifically referenced with both the surrendering power and beneficiary being specifically referenced at all points in the document.
Japan completely defeated Russia in the Russo-Japanese War of 1904-1905. Japan already occupied territory that it was granted by the Treaty of Portsmouth (N.H.) in 1905. However, all of the territories to be transferred as well as the beneficiary (Japan) are specifically mentioned in the document, although common sense would inform someone that it was not necessary.
The 1848 Treaty of Guadelupe-Hidalgo was signed by the United States and Mexico when the former had already occupied a significant amount of territory of the later in a war that was begun when Mexican troops crossed into U.S. territory. Regardless, Mexican territory that was transferred to the United States was specifically spelled out in the treaty.
The 1898 Treaty of Paris concluded the Spanish-American War. At the conclusion of the war, the U.S. physically occupied Puerto Rico, the Philippines, and Cuba, all Spanish colonies at the onset of the war. This treaty is very useful in pointing out the power of the mechanism to transfer territory from one state to another. On the one hand, the transfer of the Philippines and Puerto Rico to American sovereignty is specifically mentioned in the treaty. However, there is no such mention of Cuba being designated as being U.S. territory. Consequently, shortly thereafter, Cuba was granted independence rather than being incorporated as a U.S. territory as were Puerto Rico and the Philippines.
There are countless more examples where these came from, but the point has been sufficiently made that territory can only be transferred from one state to another through the peace treaty.
A. History
The notion that Taiwan is a part of China is taken as a matter of faith among China’s government and most of its citizens. It is also similarly taken as a matter of faith among the Chinese Nationalist Party (KMT), which formerly ruled the islad and still retains a strong presence in local Taiwanese politics. However, rarely is an actual examination taken of the legitimacy and legal veracity of these claims.
The indigenous population of the island is proto-Austronesian peoples who are believed to be the progenitors of the Malayo-Polynesian peoples who have spread through Southeast Asia and as far west as Madagascar and as far east as Hawaii, Easter Island, and perhaps even mainland South America. They had lived in Taiwan in relative isolation, with only limited and infrequent Chinese contacts, as late as the 16th century.
As the 17th century dawned, Taiwan was still out of the realm of China. China had never established governmental authority east of the Pescadores Island chain in the Taiwan Strait. Even that authority was short-lived. In 1624, the Dutch established a trade outpost in the Pescadores. This elicited the opposition of the Ming Chinese government, who ousted the Dutch. The Ming, however, offered no objection to the Dutch using southern Taiwan as an outpost because they conceded that it was outside their jurisdiction.
A half-Japanese pirate, and Ming loyalist, by the name of Koxinga (Jheng Chenggong) led a naval raid on the Dutch settlement at Anping (present-day Tainan) and ousted the Dutch in 1660. However, the Ming Dynasty had fallen nearly two decades earlier and he had no authority from the Ming remnants fighting a losing battle in southwestern China at the time. Thus, it cannot be said that Chinese sovereignty over Taiwan was assumed at that time. Shortly thereafter, the Manchus from a region northeast of China took complete control of the country. In 1683, they added Taiwan to their list of conquests and made it a part of their empire. This is the first time in history that Taiwan and China were a part of the same political entity, and the reality is that both were conquered and occupied by an outside power, the Manchus.
Now, we fast forward to the 1880s. The Manchus still controlled both China and Taiwan and attempted to make Taiwan more integrated with their empire. The fact is that most of Taiwan still lay outside of their control as late as the 1870s as the east coast and the mountain areas were outside their jurisdiction. Taiwan was made a province of the Qing Dynasty in 1886 and they made a short-lived effort to modernize the island. However, the corrupt empress dowager, Cixi, put a stop to it. Regardless, it did not matter as the fate of Taiwan would be decided far from its shores. China managed to get itself into a war with Japan, a war that Japan was itching for, but a war that China provoked and was completely ill-prepared for. The cause was intervention in Korea. The resulting Treaty of Shimonoseki transferred sovereignty of Taiwan to Japan in perpetuity, meaning forever.
Taiwan became a part of the Japanese empire. Japan tried to turn Taiwan into an integral part of the country. Taiwan’s economy and educational system were developed to an extent not seen in other territories occupied by Japan. Sure, there were Japanese atrocities in Taiwan, especially against the aboriginal population who resisted Japanese rule. However, on balance, Japanese rule over Taiwan was relatively benign, even to the extent that a limited degree of self-rule was introduced in the 1930s.
Japan invaded China in 1937, beginning the Asian phase of what became World War II. A variety of documents emerged from this war what will be addressed later in this essay. However, virtually all of China’s claims that Taiwan belongs to it stem from this eight-year conflict. Japan was defeated by the Allied powers (which included China) in 1945. KMT forces from China came to Taiwan to accept Japan’s surrender on behalf of the Allied powers. The San Francisco Peace Treaty was signed in 1951 (taking effect the following year) which formally ended the war in the Pacific.
B. China’s claim
As mentioned in the above section, China’s claims to Taiwan mostly stem from World War II and the agreements and treaties that were signed as a result of the conflict. The notion that Taiwan is a part of China rests on four agreements and a basic theory of international law known as “state succession.”
American President Roosevelt, British Prime Minister Churchill and Republic of China Generalissimo Chiang Kaishek (Jiang Jhongjheng) met in Cairo, Egypt in November, 1943. The Cairo Declaration was a joint declaration that the territories “stolen” by Japan are to be returned to China following the end of the war. Taiwan was one of the territories referenced.
Less than two years later, after the war in Europe was concluded, there was a meeting near Berlin including the United States, Britain, and the Soviet Union. They reaffirmed the content of the Cairo Declaration in that meeting and demanded Japan’s unconditional surrender.
Japanese representatives signed an Instrument of Surrender on September 2, 1945 in which they stated an acceptance to accept the provisions of the Potsdam Proclamation. Japanese and American military commanders were the only signatories.
Finally, a bilateral treaty was signed between the Republic of China government (by then in exile in Taiwan) and Japan in 1952. In it, Japan signified that it had “returned” Taiwan to the Republic of China. This document is used by the KMT to bolster its claim that Taiwan is a part of China.
This document is NOT used by the PRC, however. In fact, they do not even recognize its legitimacy. They use another rationale to support their claim. They claim that Taiwan was “returned” to China on either September 2, 1945 (with the signing of the Instrument of Surrender) or on October 25, 1945 when KMT troops accepted Japan’s surrender in Taiwan. Theoretically, as Taiwan was a part of China when the Communist Party won the civil war in 1949, and under the successor state theory, all agreements signed by the previous government (including boundaries) are binding on the successor government.
C. Examination of International Law on State-to-State Transfer of Territory
However, when these claims are illuminated under the light of international law, their argument is shown to be built on shifting sands.
According to international law, there is only one mechanism by which territory can be transferred from one state to another: a legally ratified and binding peace treaty. This is confirmed by state practice, the leading source of international law in the pre-World War II era.
The Treaty of Shimonoseki, the very treaty in which Taiwan was transferred to Japanese control in the first place, includes a specific mention of that transfer. Article two of that treaty provided for the transfer of Taiwan to Japan. The transfer is specifically referenced as is the beneficiary power.
The Versailles Treaty ended World War I and was signed in Paris in 1919. In this treaty, territory transfers and new boundaries were specifically spelled out. All territorial transfers were specifically referenced with both the surrendering power and beneficiary being specifically referenced at all points in the document.
Japan completely defeated Russia in the Russo-Japanese War of 1904-1905. Japan already occupied territory that it was granted by the Treaty of Portsmouth (N.H.) in 1905. However, all of the territories to be transferred as well as the beneficiary (Japan) are specifically mentioned in the document, although common sense would inform someone that it was not necessary.
The 1848 Treaty of Guadelupe-Hidalgo was signed by the United States and Mexico when the former had already occupied a significant amount of territory of the later in a war that was begun when Mexican troops crossed into U.S. territory. Regardless, Mexican territory that was transferred to the United States was specifically spelled out in the treaty.
The 1898 Treaty of Paris concluded the Spanish-American War. At the conclusion of the war, the U.S. physically occupied Puerto Rico, the Philippines, and Cuba, all Spanish colonies at the onset of the war. This treaty is very useful in pointing out the power of the mechanism to transfer territory from one state to another. On the one hand, the transfer of the Philippines and Puerto Rico to American sovereignty is specifically mentioned in the treaty. However, there is no such mention of Cuba being designated as being U.S. territory. Consequently, shortly thereafter, Cuba was granted independence rather than being incorporated as a U.S. territory as were Puerto Rico and the Philippines.
There are countless more examples where these came from, but the point has been sufficiently made that territory can only be transferred from one state to another through the peace treaty.