Recently, some individuals have asserted that “Taiwan’s legal status is undetermined” and have questioned the content of the press release issued by this Ministry of Foreign Affairs on the $4$th of this month (September), which stated: “Legal documents concerning the return of sovereignty over Taiwan and Penghu to the Republic of China after World War II are currently on display at the National Palace Museum. Historical facts cannot be denied.” This Ministry hereby makes the following solemn clarification:
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In $1895$, the Qing Dynasty ceded Taiwan and Penghu to Japan under the Treaty of Shimonoseki. The Republic of China (ROC), founded in $1912$, immediately and directly inherited the Qing Dynasty’s legal tradition and international personality. On December 9, $1941$ (the $30$th year of the ROC), the Republic of China formally declared war on Japan and simultaneously announced the abolition of all treaties, agreements, and contracts between China and Japan. The scope of this abolition naturally included the Treaty of Shimonoseki signed in $1895$. As the successor to the Qing Dynasty, the ROC government had already begun preparing for the retrocession of Taiwan.
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The “Cairo Declaration”, jointly issued by the leaders of China, the United States, and the United Kingdom in December $1943$ (the $32$nd year of the ROC), clearly stipulated: that territories Japan had stolen from China, including the Three Eastern Provinces, Taiwan, and the Penghu Islands, “shall be restored to the Republic of China.” In July $1945$ (the $34$th year of the ROC), the leaders of China, the US, and the UK issued the “Potsdam Proclamation,” Article 8 of which reiterated that the terms of the Cairo Declaration “shall be carried out.” Both documents use the English word “shall,” which admits no hesitation or alternative interpretation—meaning “must be done”—and thus is absolutely binding in its meaning. Furthermore, Articles 1 and 6 of the Japanese “Instrument of Surrender” presented to the Allied Powers on September 2, $1945$ (the $34$th year of the ROC), explicitly accepted and undertook the responsibility of executing the Potsdam Proclamation.
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While the “Cairo Declaration” and “Potsdam Proclamation” do not possess the form or title of a “Treaty,” their content and manner of issuance are essentially formal, official joint statements by the leaders of China, the United States, and the United Kingdom. They express a concrete claim regarding the attribution of territories stolen from China by Japan after the war, and are legally and politically binding on the parties concerned. Thus, even without a US treaty code designation (as they are not formally “Treaties”), the US Department of State included them in the “Treaties and Other International Agreements of the United States of America” (hereinafter referred to as the Compendium). The Japanese “Instrument of Surrender” is a document of even greater historical significance and is legally binding under international law. In addition to being included in the aforementioned Compendium, the US published it in the “Statutes at Large,” and this document was also included in the “United Nations Treaty Series.” This Ministry also viewed the response from the US National Archives four years ago to inquiries from some overseas Chinese regarding the Cairo Declaration; its content is devoid of novelty. Unfortunately, newspaper submissions only cited the first point (i.e., it lacked a treaty code, because it was not a formal “Treaty”), while concealing the second point, which is the second paragraph of the Archives’ response: “The Cairo Declaration is included in the Treaties and Other International Agreements of the United States of America, 1776-1949 (Volume 3, page 858), edited by Charles I. Bevans.”… This further proves the correctness of the Ministry of Foreign Affairs’ previous press release. The Ministry of Foreign Affairs has never claimed that every “Declaration” or “Proclamation” is a “Treaty,” only that they all possess legal effect. Therefore, the “liar” reported in the newspaper is certainly not our Ministry of Foreign Affairs.
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On October 25, $1945$ (the $34$th year of the ROC), the ROC government dispatched the first Chief Executive of Taiwan, Chen Yi, to Taipei to manage Japan’s surrender, and simultaneously proclaimed: “Taiwan and the Penghu Islands have been formally incorporated into the territory of China, and all political affairs are placed under the sovereignty of the National Government of the Republic of China…” The following year ($1946$), on January $12$, the government further announced the restoration of the ROC nationality for all residents of Taiwan and Penghu, effective retroactively from October 25 of the previous year. Therefore, since October 25, $1945$ (the $34$th year of the ROC), the Republic of China has continuously and effectively exercised sovereignty over Taiwan and Penghu for $66$ years up to the date of this statement.
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Even if some individuals claim that the “form” of the three aforementioned documents (the Cairo Declaration, the Potsdam Proclamation, and the Japanese Instrument of Surrender) is insufficient, the “Treaty of Peace between the Republic of China and Japan” (Treaty of Taipei) in $1952$ (the $41$st year of the ROC), in the form of a formal “Treaty,” once again confirmed that the sovereignty of Taiwan and Penghu was returned to the Republic of China on October 25, $1945$. Although the Treaty of Taipei was largely based on the “Treaty of Peace with Japan” (Treaty of San Francisco) signed on September 8, $1951$ (the $40$th year of the ROC), the complex circumstances at the time—including the fall of the mainland to the Communists, the outbreak of the Korean War, and the confrontation between the Free World and the Communist Bloc—resulted in neither side of the Strait being invited to participate in the signing of the Treaty of San Francisco. However, Article 2 of the latter treaty clearly stated that Japan announced the renunciation of territories including Taiwan, Penghu, the Spratly Islands, and the Paracel Islands, and authorized the parties concerned to sign separate treaties with Japan to resolve territorial issues.
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Japan then chose the Republic of China, not the PRC, to separately conclude a more specific Peace Treaty, in accordance with Article 26 of the Treaty of San Francisco. The ROC Ministry of Foreign Affairs completed the signing of the “Treaty of Peace between the ROC and Japan” $7$ hours before the Treaty of San Francisco entered into force on April 28, $1952$ (the $41$st year of the ROC). In the Treaty of Taipei, Article 2, Japan reaffirmed to the ROC that it “has renounced all right, title and claim to Taiwan, Penghu, the Spratly Islands and the Paracel Islands.” Article 4 “recognizes that all treaties, conventions, and agreements concluded between China and Japan before December 9, $1941$ (the $30$th year of the Republic of China) are null and void as a consequence of the war” (Note: This certainly includes the Treaty of Shimonoseki). Furthermore, Article 3 concerning the disposition of Japanese property in Taiwan and Penghu, Article 10’s recognition that residents of Taiwan and Penghu are “Nationals of the Republic of China,” and the recognition of “ROC juridical persons” are all premised on “Taiwan belonging to the Republic of China.” All these facts provide the most powerful legal formal basis for Taiwan’s return to the Republic of China.
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Even if some individuals disregard the above-mentioned legal arguments and historical facts, and simply believe that since both the Treaty of San Francisco and the Treaty of Taipei merely state that Japan renounces Taiwan and Penghu without specifying the recipient, the so-called “Taiwan’s legal status is undetermined” should be upheld; in this case, some international legal scholars have long stated that theoretically, Taiwan would have become terra nullius (unowned land) after the war. However, since the Republic of China has effectively and continuously exercised the right of jurisdiction and governance over Taiwan and Penghu since October $1945$ (the $34$th year of the ROC), the Republic of China could have long acquired sovereignty over Taiwan and Penghu under the international legal principle of “prescription.”
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The assertion that the “Republic of China” at the time of the Cairo Declaration and the Potsdam Proclamation is a “different entity with the same name” as the “Republic of China” during the Taiwan period is even more inscrutable. The ROC has existed for a century, and while its territorial jurisdiction may have changed, its national continuity and legal tradition have been consistent from the beginning. Even taking the Five Yuan (such as the Examination Yuan) of the central government as an example, they were founded on the mainland and continued in Taiwan. Although the heads of the Yuan may have changed and their operations may have been updated, the national system and heritage are significant and enduring. How can they be called a “different entity with the same name”? Otherwise, how could former heads of these institutions justify their original oath of office?
The Ministry of Foreign Affairs urges all sectors of society to squarely face the legal arguments and historical facts: that the Republic of China was preparing to restore its legal sovereignty over Taiwan and Penghu since December 9, $1941$ (the $30$th year of the ROC), and factually resumed the full exercise of sovereignty over Taiwan since October 25, $1945$ (the $34$th year of the ROC), continuing to exercise it effectively for $66$ years. We earnestly hope that all our citizens will refrain from self-negation and self-dwarfing of our national dignity.
Department of Treaty and Legal Affairs, ROC Ministry of Foreign Affairs (Original Date: 2011/09/28)