In an article “US Policy and International Law: Taiwan’s Friend,” published in The Diplomat on July 17, 2014, authors Michael Turton and Brian Benedictus assert inaccurately that Taiwan’s status is uncertain. The following is intended to correct this misunderstanding.
1. Taiwan became Chinese territory in 1683, but was ceded to Japan in 1895.
Taiwan came under the rule of China’s Qing dynasty in 1683 as Taiwan prefecture, a part of Fujian province. In July of 1894, the First Sino-Japanese War broke out. After suffering decisive defeats both on land and at sea by October of the same year, the Qing dynasty signed the Treaty of Shimonoseki with Japan on April 17, 1895, ceding “the whole of Taiwan and all its appurtenant islands” to Japan. Subsequently, Japan took control of Taiwan from the Qing court, and Taiwan and all its appurtenant islands including the Penghu Islands (also known as the Pescadores) remained under Japanese rule for 50 years (1895-1945).Enjoying this article? Click here to subscribe for full access. Just $5 a month.
2. The Republic of China declared war against Japan in 1941 and abrogated the Treaty of Shimonoseki under which Taiwan was ceded.
On December 9, 1941, the Republic of China (ROC) officially declared war against Japan—and allied itself with the United States—after the Japanese attack on Pearl Harbor. The Declaration of War states that “all treaties, agreements and contracts concerning Sino-Japanese relations are hereby annulled.” Accordingly, the Treaty of Shimonoseki, the legal basis for Japan’s claim to Taiwan and its appurtenant islands, became null and void. This launched the process of restoring Taiwan to the ROC.
3. The Allied powers demanded that Japan restore Taiwan to the Republic of China under three legally binding wartime documents: the Cairo Declaration, the Potsdam Proclamation, and the Japanese Instrument of Surrender.
On December 1, 1943, the ROC, the United States, and the United Kingdom jointly announced the Cairo Declaration, which stipulates: “…all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.”
On July 26, 1945, the Allied powers – the ROC, the United States, the United Kingdom, and the Soviet Union – announced the Potsdam Proclamation, Article 8 of which stipulates that “the terms of the Cairo Declaration shall be carried out.” And the Japanese Instrument of Surrender of September 2, 1945, under which the Japanese emperor surrendered unconditionally to the Supreme Commander for the Allied Powers, also clearly states Japan’s acceptance of the Potsdam Proclamation.
Because the Japanese Instrument of Surrender accepts the Potsdam Proclamation, and this in turn requires adherence to the Cairo Declaration, it follows that the Japanese Instrument of Surrender fully integrates these two documents. All three documents are included in the third volume of Treaties and Other International Agreements of the United States of America 1776–1949 published in 1969 by the U.S. Department of State. For the United States, the Cairo Declaration and other two documents are effective, legally binding treaties or agreements signed with other Allies. These three wartime documents are also included in Volume 1 of the Japanese Foreign Ministry’s Treaties Series 26 published in 1948 and again in Japan’s Diplomatic Chronology and Major Documents published in 1966.
The Japanese Instrument of Surrender, which is included in the 59th volume of United States Statutes at Large published in 1946 and the 139th volume of United Nations Treaty Series published in 1952, is a legally binding document for Japan, the United States, and the ROC.
4. The ROC-Japan Peace Treaty of 1952 finalized the transfer of Taiwan’s sovereignty from Japan to the Republic of China.
After the end of World War II, the ROC signed the Treaty of Peace between the Republic of China and Japan, also known as the Sino-Japanese Peace Treaty, in Taipei in 1952. Both the San Francisco Peace Treaty signed in 1951 and the Sino-Japanese Peace Treaty signed in 1952 stipulate that “Japan renounces all right, title and claim to Formosa and the Pescadores.”
In the Sino-Japanese Peace Treaty signed in 1952, Article 4 stipulates that “all treaties, conventions and agreements concluded before December 9, 1941 between Japan and China have become null and void as a consequence of the war.” Article 3 stipulates that the disposition of property and claims of Japan and its nationals in Taiwan and Penghu shall be the subject of special arrangements between the governments of the ROC and Japan. And Article 10 stipulates that “nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores).” Moreover, Note No. 1 in the Exchange of Notes accompanying the Sino-Japanese Peace Treaty stipulates that “the terms of the present Treaty shall, in respect of the Republic of China, be applicable to all the territories which are now, or which may hereafter be, under the control of its Government.” Consequently, at that time Japan agreed that Taiwan is part of the territory of the ROC.
According to the Cairo Declaration, Potsdam Proclamation, and Japanese Instrument of Surrender, the United States and the United Kingdom pledged along with Japan that Taiwan and the outlying Penghu Islands would be restored to the ROC. Therefore, following the victory of the Allies in World War II, the ROC government began exercising its sovereignty over Taiwan on October 25, 1945, including by accepting a document of surrender from the Japanese army, declaring the restoration of Taiwan as an integral part of the ROC’s territory, and restoring ROC citizenship to the people of Taiwan and Penghu, in addition to establishing a provincial government and arranging elections to choose representatives of the people. Taiwan and Penghu have thus been a part of the ROC’s sovereign territory since 1945.
5. The ROC Government’s exercise of sovereignty over Taiwan has been fully recognized by the Allied powers.
In a press conference held on January 5, 1950, then U.S. President Harry Truman stated that Taiwan had been handed over to Generalissimo Chiang Kai-shek, and in the previous four years the United States and its allies had recognized China’s (referring to the ROC’s) sovereignty over Taiwan. U.S. Secretary of State Dean Acheson also made a similar remark on January 12 the same year. In addition, the position paper about Taiwan’s status released by the Office of the Legal Adviser of the United States Department of State in 1959 reiterated that, according to a series of international documents including the Cairo Declaration, Taiwan was restored to the ROC and that this was accepted by the Allied powers.
In summary, starting from the Cairo Declaration and continuing with the Potsdam Proclamation and Japanese Instrument of Surrender, the Allied powers (including the United States, the United Kingdom and the Soviet Union) and Japan jointly agreed that Taiwan should be “restored” to the ROC. In the San Francisco Peace Treaty of 1951, Japan renounced its claim to Taiwan. And the Sino-Japanese Peace Treaty of 1952, which nullified the Treaty of Shimonoseki, reconfirmed the legal transfer of sovereignty over Taiwan, Penghu, and all other appurtenant islands to the ROC. Hence, the restoration of Taiwan, Penghu, and all other appurtenant islands as an integral part of the ROC’s territory is without question legally binding. The ROC government and the majority of its people strongly disagree that Taiwan’s position is uncertain.
Gary Sheu is Director of Press & Information Dept. of the Taipei Economic and Cultural Representative Office in Japan.