Q: Did the ROC government recover Taiwan and Penghu’s sovereignty merely through Allied military occupation orders after WWII, lacking a foundation in international law?
A: The ROC government did not acquire Taiwan and Penghu sovereignty through “military occupation” in 1945 (year 34 of the ROC calendar).
Some claim that the Chinese military’s acceptance of Taiwan was merely based on General Douglas MacArthur’s September 2, 1945 “General Order No. 1” (in the first section, subsection A): “The senior Japanese commanders and all ground, sea, and air force units in China (excluding Manchuria), Taiwan, and north of 16 degrees north latitude in French Indochina will surrender to Generalissimo Chiang Kai-shek.” Chiang Kai-shek, then acting as supreme Allied commander in the China theater, accepted the Japanese forces’ surrender in Taiwan on behalf of the Allies, ending Japanese rule in Taiwan.
However, the ROC’s legal basis for recovering Taiwan and Penghu’s sovereignty was not this surrender order, but rather the series of international law documents: the December 1943 Cairo Declaration (stating “Japan’s stolen territories from China, including the Northeast Four Provinces, Taiwan, and the Penghu Islands, shall be returned to the Republic of China”), the July 1945 Potsdam Declaration (Article 8: Cairo Declaration conditions must be implemented), and the September 1945 Japanese Instrument of Surrender (sections 1 and 6)—all signed by leaders or authorized representatives of China, the UK, the USA, the USSR, and Japan.
These three legal documents, interconnected, form a unified whole, incorporated into treaty collections by China, America, and Japan. The Japanese Instrument of Surrender was also included in the UN Treaty Collection, binding at minimum on China, America, and Japan.
The ROC’s sovereignty over Taiwan and Penghu was further confirmed by the 1952 Sino-Japanese Peace Treaty, authorized under the 1951 Treaty of San Francisco. In summary, the ROC recovered territory Japan obtained through invasion and unequal treaties—not territory seized from other nations. These situations differ completely; military occupation is not at issue.
Q: After the United States declared the Taiwan Strait neutralized in 1950, did the ROC government fail to object, thereby implicitly accepting the “Taiwan status undetermined” theory?
A: The ROC government has consistently opposed the so-called “Taiwan status undetermined” theory.
On June 27, 1950, two days after the Korean War began, the U.S. government declared the Taiwan Strait neutralized, freezing Taiwan’s status pending Pacific security restoration through Allied-Japanese peace settlement or UN resolution.
Yet this position ignored the fact that the ROC had already recovered sovereignty over Taiwan and Penghu on October 1945—five years prior—based on the earlier-mentioned Cairo Declaration, Potsdam Declaration, and Japanese Instrument of Surrender series.
Therefore, Foreign Minister Ye Gongchao swiftly issued a four-point statement on June 28, 1950, refuting this declaration. Point two stated: “Taiwan is part of Chinese territory, recognized by all nations. The U.S. government’s proposal in its memorandum to China will not affect the Cairo Conference’s decision on Taiwan’s future status, nor affect China’s sovereignty over Taiwan.”
The ROC’s possession of Taiwan and Penghu sovereignty based on the Cairo Declaration is historical fact and consistent government position—unaffected by other nations’ policy changes.
Q: What is the current international consensus on Taiwan’s “undetermined status” theory?
A: Currently, no government voice raises the Taiwan undetermined status theory anymore. The authoritative Oxford University Press publication Max Planck Encyclopedia of Public International Law notes under the Taiwan entry that most nations currently recognize Taiwan as Chinese territory (and in the ROC’s case, territory under our government’s administration).
James Crawford, a Cambridge University professor and international law authority, in his book The Creation of States in International Law, offers his view on Taiwan’s legal status: Because the 1952 Sino-Japanese Peace Treaty leaves Japan’s relinquishment of Taiwan and Penghu without specification of recipient, it cannot be interpreted as Taiwan becoming ownerless “terra nullius” due to unclear attribution, since Taiwan and Penghu were already controlled by an effective government—the ROC government.
The more appropriate view is that Japan, in the treaty, relinquished Taiwan and Penghu and, in articles 3, 10, and supplementary notes, recognized Taiwan-Penghu as ROC territory. This reflects wartime Allied promises in the earlier three legal documents to return Taiwan to “China,” while Taiwan was then under continuous effective occupation by a “Chinese” government (the ROC) that Japan recognized. Therefore, Taiwan-Penghu sovereignty should revert to our nation.
Crawford further argues one cannot interpret Japan’s relinquishment of Taiwan-Penghu as leaving attribution unclear, making Taiwan a jointly-administered territory of the 48 San Francisco Treaty signatories. Since the ROC wasn’t invited to the 1950 San Francisco Conference and its signatories never indicated Taiwan-Penghu should be jointly managed; furthermore, the San Francisco Treaty didn’t assign Taiwan’s status for the powers to decide, thus Taiwan is not a sovereignty-undetermined territory. Crawford concludes Taiwan-Penghu should have been returned by Japan to China based on these reasons (see page 209 of the book).
The Max Planck Encyclopedia of Public International Law similarly cites Professor Crawford’s view, arguing: “Taiwan is neither jointly-administered nor sovereignty-undetermined territory; its current status is ‘Chinese’ territory. The San Francisco Treaty’s failure to explicitly transfer Taiwan’s sovereignty to a specific entity resulted from signatories’ failure to reach consensus on which government represented China.”
After 1949, the embassies of major world powers including America, Japan, and France in the Republic of China were all located in Taipei. Considering international diplomatic practice and the Vienna Convention on Diplomatic Relations, embassies are naturally established within the accepting nation’s territory. These nations’ actions demonstrate they not only recognize the ROC government but also recognize Taiwan-Penghu as ROC territory.
President Richard Nixon even assured on February 22, 1972 that America would henceforth not raise Taiwan’s undetermined status.
In fact, in the U.S. State Department’s February 12, 2015 fact sheet on U.S.-Taiwan relations, America maintains this position, indicating strong unofficial relations with Taiwan and no support for Taiwan independence.
Additionally, Article 4 of the Taiwan Relations Act stipulates that U.S. legal provisions mentioning foreign nations, foreign governments, or similar entities include our country. In summary, the world has ceased mentioning “Taiwan status undetermined theory.” The fact of the ROC government exercising sovereignty over Taiwan and Penghu with nationwide support is beyond question.
Republic of China Legal Affairs Bureau (Last updated: August 27, 2015)