Written by Chai Boon Kheng.
The question of Taiwan is more than just a territorial dispute couched in terms of international law. It underlies a great schism between the East and the West on institutions governing statehood and warfare.
A popular contention among Chinese nationals and diaspora is that the “Taiwan question” began with the establishment of separate governance across the Taiwan Strait as a result of Second Chinese Civil War. However, Taiwan must be considered in the context of diplomatic history beginning after the cessation of hostilities between the Allied Powers and Japan.
On 25 October 1945, the Republic of China (ROC) gained actual territorial control over Taiwan and celebrated “Taiwan Retrocession Day”, notwithstanding that other members of the Allied Powers did not recognise the transfer of sovereignty of Taiwan from Japan. In 1946 the ROC began mass naturalisation of Taiwanese people, which led to a request for clarification by the United States and diplomatic protests by the United Kingdom. China asserted that the act restored Chinese nationality to Taiwanese people, but the United States stressed that alleged Taiwanese people in Japan were without documentary proof of Chinese identity.
This development reflects a millennia old East-West schism that is attributed to vastly distinct course of history experienced in the Eastern and Western worlds. Developments in 17th century Europe such as the Thirty Years War and Peace of Westphalia led to the formation of nation states, ushered in paradigm shifts and laid the foundations of modern international law. A distinction came to be made between military occupation of foreign territory and territorial acquisition by invasion and annexation, later espoused by Emer de Vattel in the 1758 Law of Nations. The onset of the Napoleonic Wars further propelled this paradigm shift in Europe. Territorial acquisition by invasion and direct annexation ceased to be recognised by international law after the end of the Napoleonic Wars in 1820.
Sovereignty over Taiwan under International Law
China has been an imperial State since the Qin Empire. As an empire crumbled, uprisings and wars of dynastic succession began in which the dominant warlord sought to eliminate other warlords. Since the victorious warlord would proclaim himself the new emperor and assert sovereignty over the controlled territories, the concept of military occupation did not develop in China.
The conclusion of Treaty of Nanking imposed on China modern international law. After Japan surrendered during the Second World War, China equated surrender of the enemy with the entitlement to regain sovereignty over lost territories.
The basis of the argument for Chinese governance of Taiwan were two documents pertaining to the military, the Japanese Instrument of Surrender and General Order No. 1. Under modern international law, Chinese governance of Taiwan after the Japanese surrender can only be characterised as belligerent military occupation of enemy territory. It would be necessary to define the extent of Japan during the Second World War, which included the Japanese home islands, South Sakhalin, the Kurile Islands, the Korean Peninsula, the Bonin Islands, the Ryukyus, Taiwan, Penghu, the Paracel Islands and Spratly Islands. As the United States was the conqueror over Japan, it was designated the principal occupying power. Other members that partook in the occupation of Japanese sovereign territories were subordinate occupying powers, acting as agents of the United States. In the absence of any treaty, Japan retained de jure sovereignty of Taiwan; China was not entitled to proclaim sovereignty over Taiwan at that time.
State Responsibility and Occupying Powers
The outbreak of the Second Chinese Civil War and the proclamation of the People’s Republic of China (PRC) by the Chinese Communist Party (CCP) necessitate the invocation of another branch of international law, state responsibility, vis-a-vis Taiwan. In this case, the CCP established the PRC as a new de facto government of China, and the ROC was exiled to its occupied territory of Taiwan whilst continuing to enjoy recognition as the legitimate government of China. A core maxim of state responsibility for the change of government of a state is that the event neither modify nor cease existing obligations of the state. By this maxim, although the CCP do not have actual control over Taiwan, the PRC inherited obligations as the subordinate occupying power.
The Treaty of Peace with Japan (Treaty of San Francisco) brought several interesting interpretations of the law of war. Under Article 2, territories were renounced by Japan without naming any recipient state, leaving laypersons perplexed. This ambiguity can be clarified by invoking a maxim on territorial sovereignty which states that the existence of sovereignty goes hand in hand with the presence of a population forming a political community on the territory in question. These territories in Article 2 are said to have their sovereignty in abeyance; de jure ownership belongs to the inhabitants of the territories but is held in trust by the Allied Powers. However, neither the ROC nor the Soviet Union were party to the Treaty of San Francisco, as Article 25 provided that membership of the Allied Powers was restricted to states both at war with Japan and that signed and ratified the treaty.
The coming into force of the Treaty of San Francisco placed these territories in Article 2 under friendly occupation. The treaty also implicitly awarded juridical position over Taiwan, South Sakhalin, the Kurile Islands, the Paracel Islands and the Spratly Islands to all members of the Allied Powers according to Article 25. The Treaty denied juridical position to ROC (and thereby the PRC) and the Soviet Union, regardless of actual control over these territories. Consequently, by action of a treaty, occupying powers may or may not possess juridical position over occupied territory.
As the world worked to normalise relations with PRC in the 1970s, China intransigently demanded recognition of Taiwan as Chinese sovereign territory. Several prominent states refused to give in to these demands out of legal obligations arising from Treaty of San Francisco, and instead stated in their joint communiques that the Chinese position is acknowledged, taken note of, understood, respected etc. or instead made no mention of Taiwan. This diplomatic positioning can be interpreted that vis-a-vis Taiwan, China and the West will act according to their own position and understanding.
*This is the second of two articles on the history of Taiwan’s status under international law arising from Treaties ending the Second World War
Chai Boon Kheng now practises macrobiotics, a philosophy of healthy eating at an organic grocery store in Kuala Lumpur, after submitting his postgraduate thesis with the Department of Biomedical Sciences, University of Nottingham Malaysia Campus. An ethnic Chinese from Malaysia, he sees Taiwan in a new light after an arduous journey of catharsis. He tweets at @biopolymath