Political status of Taiwan

End of Japanese rule[edit]

In 1942, after the United States entered the war against Japan and on the side of China, the Chinese government under the KMT renounced all treaties signed with Japan before that date and made Taiwan's return to China (as with Manchuria, ruled as the Japanese wartime puppet state of "Manchukuo") one of the wartime objectives. In the Cairo Declaration of 1943, the Allied Powers declared the return of Taiwan (including the Pescadores) to the Republic of China as one of several Allied demands. The Cairo Declaration was never signed or ratified. Both of the US and the UK considered it not legally binding.^[17] The ROC, on the other hand, asserts that it is legally binding and lists later treaties and documents that "reaffirmed" the Cairo Declaration as legally binding.^[18]


In 1945, Japan unconditionally surrendered with the signing of the instrument of surrender and ended its rule in Taiwan as the territory was put under the administrative control of the Republic of China government in 1945 by the United Nations Relief and Rehabilitation Administration.^[19][20] The Office of the Supreme Commander for the Allied Powers ordered Japanese forces in China and Taiwan to surrender to Chiang Kai-shek. On 25 October 1945, Governor-General Rikichi Andō handed over the administration of Taiwan and the Penghu islands to the head of the Taiwan Investigation Commission, Chen Yi.^[21][22] On 26 October, the government of the Republic of China declared that Taiwan had become a province of China.^[12] The Allied Powers, on the other hand, did not recognize the unilateral declaration of annexation of Taiwan made by the government of the Republic of China.^[23]


In accordance with the provisions of Article 2 of San Francisco Peace Treaty, the Japanese formally renounced the territorial sovereignty of Taiwan and Penghu islands, and the treaty was signed in 1951 and came into force in 1952. At the date when the San Francisco Peace Treaty came into force, the political status of Taiwan and Penghu Islands was still uncertain.^[19] The Republic of China and Japan signed the Treaty of Taipei on April 28, 1952, and the treaty came into force on August 5, which is considered by some as giving a legal support to the Republic of China's claim to Taiwan as "de jure" territory. The treaty stipulates that all treaties, conventions, and agreements between China and Japan prior to 9 December 1941 were null and void, which according to Hungdah Chiu, abolishes the Treaty of Shimonoseki ceding Taiwan to Japan. The interpretation of Taiwan becoming the Republic of China's '"de jure" territory is supported by several Japanese court decisions such as the 1956 Japan v. Lai Chin Jung case, which stated that Taiwan and the Penghu islands came to belong to the ROC on the date the Treaty of Taipei came into force.^[22] Nevertheless, the official position of the Government of Japan is that Japan did not in the Treaty of Taipei express that Taiwan and Penghu belong to the Republic of China,^[24] that the Treaty of Taipei could not make any disposition which is in violation of Japan's renouncing Taiwan and Penghu in San Francisco Peace Treaty,^[25] and that the status of Taiwan and Penghu remain to be determined by the Allied Powers in the future.^[26]


Writing in the American Journal of International Law, professors Jonathan I. Charney and J. R. V. Prescott argued that "none of the post–World War II peace treaties explicitly ceded sovereignty over the covered territories to any specific state or government."^[27] The Cairo Conference from November 22–26, 1943 in Cairo, Egypt was held to address the Allied position against Japan during World War II, and to make decisions about postwar Asia. One of the three main clauses of the Cairo Declaration was that "all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China". According to Taiwan Civil Society quoting the Taiwan Documents Project, the document was merely a statement of intent or non-binding declaration, for possible reference used for those who would draft the post-war peace treaty and that as a press release it was without force of law to transfer sovereignty from Taiwan to the Republic of China. Additional rationale to support this claim is that the Act of Surrender, and SCAP General Order no. 1, authorized the surrender of Japanese forces, not Japanese territories.^[28]


In 1952, Winston Churchill said that Taiwan was not under Chinese sovereignty and the Chinese Nationalists did not represent the Chinese state, but that Taiwan was entrusted to the Chinese Nationalists as a military occupation. Churchill called the Cairo Declaration outdated in 1955. The legality of the Cairo Declaration was not recognized by the deputy prime minister of the United Kingdom, Anthony Eden, in 1955, who said there was a difference of opinion on which Chinese authority to hand it over to.^{[22][29][30][31]} In 1954, the United States denied that the sovereignty of Taiwan and the Penghu islands had been settled by any treaties, although it acknowledged that the Republic of China effectively controlled Taiwan and Penghu.^[32][33] In the 1960 Sheng v. Rogers case, it was stated that, in the view of the U.S. State Department, no agreement has purported to transfer the sovereignty of Taiwan to the ROC, though it accepted the exercise of Chinese authority over Taiwan and recognized the Government of the Republic of China as the legal government of China at the time.^[34][35]


The position of the US stated in the Department of State Bulletin in 1958 is that any seizure of Taiwan by the PRC “constitutes an attempt to seize by force territory which does not belong to it" because the Allied Powers had yet to come to a decision on the status of Taiwan.^[35] According to Vincent Wei-Cheng Wang, a minority of scholars and politicians have argued that the international status of Taiwan is still undecided, and that this has been used as an argument against the People's Republic of China's claim over Taiwan. They point to President Truman's statement on the pending status of Taiwan in 1950, the lack of specificity on whom the title of Taiwan was transferred to in the 1951 San Francisco peace treaty, and the absence of explicit provisions on the return of Taiwan to China in the 1952 Treaty of Taipei. However Wang notes that this is a weak argument, citing 2 LASSA OPPENHEIMER, INTERNATIONAL LAW, under the principle of effective occupation and control, if nothing is stipulated on conquered territory in the peace treaty, the possessor may annex it.^[36] Still, the notion that a possessor may annex a conquered territory despite the peace treaty not stipulating so, was a means of territorial transfer recognized by classical international law, and its legality in recent years is either not recognized or disputed.^[37] According to Jian-De Shen, a Taiwanese independence activist, applying such a notion on the Republic of China's territorial claim for Taiwan is invalid because the conqueror of World War II is the whole body of the Allied Powers rather than the Republic of China alone.^[38] The Theory of the Undetermined Status of Taiwan is supported by some politicians and jurists to this day, such as the Government of the United States and the Japanese diplomatic circle.^[39][40][41]