Stephen S. F. Chen, a retired career diplomat, was formerly a principal representative of the Republic of China to the United States, having served in Washington from 1997 to 2000. His report entitled Taiwan Belongs to the Republic of China has apparently been widely circulated in Washington DC, and has been influential in some circles. In fact, it contains abundant errors, which can be easily rebutted by a careful reference to various official US government documents, the historical record, modern legal principles,
and other commentary by researchers of note.
Strictly speaking, based on the Republic of China Constitution, it would be farfetched to refer to the Republic of China as being "on Taiwan" ("the government of the Republic of China on Taiwan," however, is a correct phraseology), let alone defining the Republic of China as "tantamount to Taiwan." "Taiwan belongs to the Republic of China" would be a more reasonable statement.
COMMENT: The author's reference to the ROC Constitution is curious. It can be easily shown that the ROC Constitution cannot be construed as the true "organic law" of Taiwan. Specifically, Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.
As confirmation of this, in the 1959 DC Circuit case of Sheng v. Rogers,
the judges found that Taiwan was not a part of the national territory of the Republic of China (ROC).
The Republic of China is the successor state to the Manchu Dynasty of China, and as such succeeded all treaties signed between the Manchu Dynasty and foreign countries, including the Treaty of Shimonoseki, signed in 1895, in which the Manchu Dynasty ceded Taiwan to Japan following its defeat in the First Sino-Japanese War of 1894-1895.
Japan started invading China as early as 1931, with its sweep of Manchuria; however, only after the Marco Polo Bridge Incident in 1937 did China organize a full-scale war of resistance against Japanese aggresion,
marking the beginning of the Second Sino-Japanese War. In 1941, Japan launched a surprise attack on Pearl Harbor and invaded American and British colonies in Asia. The Republic of China followed the footsteps of the US and Britain in declaring war on Japan; the three countries formed an alliance against Japan. The Republic of China, in accordance with international law, declared that all treaties signed between China and Japan, including the Treaty of Shimonoseki, were null and void.
REBUTTAL: In 1941, China proclaimed that all treaties with Japan were abrogated. Though this act was deviod of legality and effect in international law, China pressed its case at meetings of the Allies and succeeded, at last, in having some of its territorial demands incorporated in the Cairo Declaration of Dec. 1, 1943 . . . . More . . .
In an authoritative essay regarding the The Validity of Sino-Japanese Peace Treaty of 1895 published in Tokyo in 1972, the author concluded that:
In international law, there are divergent theories over "the effects of war on a treaty", however, it is widely recognized that the clause of cession will not be affected by a war. This is because once the obligations of territorial cession have been fulfilled, the clause of the treaty itself ceases to exist . . . . More . . .
The Cairo Conference took place between the US, the UK, and China in December 1943. In the Cairo Declartion that ensued, the three counties required that Japan should return all the territories stolen from the Republic of China including Manchuria, Formosa, and the Pescadores. The stipulation was later repeated in the Potsdam Declaration of 1945, and accepted by Japan in its Instrument of Surrender in 1945.
REBUTTAL: In view of the Chinese claim that the surrender of Japan amounted to a transfer of sovereignty over Formosa and the Pescadores (aka "Taiwan"), it seems surprising that little attention is given by China to the Japan surrender documents and the events surrounding the surrender. Instead, the legal basis for China's claim to sovereignty over Taiwan rests almost entirely on the Cairo Declaration, a non-binding press release, issued unilaterally by a group of belligerents years before victory over the enemy was certain . . . . More . . .
Following Japan's unconditional surrender (not "ending of war" as described by certain Japanese and pro-Japan individuals) in August 1945, the Republic of China government immediately reclaimed Manchuria, Formosa, and the Pescadores. Back then, not a single country in the world questioned Taiwan's status or objected to Taiwan's return to the Republic of China's jurisdiction.
REBUTTAL: In the Fall of 1945, the administration of Formosa was taken over from the Japanese by the Chinese forces at the direction of the Supreme Commander of the Allied Powers; but this was not a cession, nor did it in itself involve any change of sovereignty. The arrangement made with Chiang Kai-shek put him there on a basis of military occupation pending further arrangements and did not of themselves constitute the territory Chinese . . . . More . . .
Unfortunately, the Chinese Civil War resumed shortly after, while thereafter the unfortunate 2/28 Incident occurred in 1947. The Republic of China government relocated from Nanjing to Taipei in 1949 after losing control of the Mainland to the Chinese Communists. It was the worst of times for the Republic of China government; however, Divine Providence did not forsake the ROC. An epic victory in the Battle of Kuningtou on Kinmen Island on October 25, 1949 was a crucial morale-booster.
However, it is undeniable that the Republic of China was experiencing a Dark Ages on the diplomatic front at that time. Its plight was evident following the release of a White Paper by the US State Department in August 1949. After the creation of the People's Republic of China, US President Harry S. Truman, however, stressed in a press conference on January 5, 1950, "In the Joint Declaration at Cairo on December 1, 1943, the President of the United States, the British Prime Minister, and
the President of China stated that it was their purpose that territories Japan had stolen from China, such as Formosa, should be restored to the Republic of China. The United States was a signatory to the Potsdam Declaration of July 26, 1945, which declared that the terms of the Cairo Declaration should be carried out. The provisions of this declaration were accepted by Japan at the time of its surrender. In keeping with these declarations, Formosa was surrendered to Generalissimo Chiang Kai-shek, and for the past 4 years the United States and other Allied Powers have accepted the exercise of Chinese [referring to the Republic of China] authority over the island."
REBUTTAL: Foreign Relations of the United States, (Jan. 19, 1949)
To date, Taiwan is still legally a part of the Empire of Japan
Formosa and the Pescadores are under the de facto control of the Chinese Nationalists, but legally still part of the Empire of Japan . . . . More . . .
It is important to note that by 1949, the ROC government had lost control over most of China's territory to the Chinese Communists in a civil war and taken refuge in Formosa, outside of China's territory . . . . More . . .
Later that day, Secretary of State Dean Gooderham Acheson, citing the Cairo Declaration and the Potsdam Declaration, said, "In the middle of the war, the President of the United States, the Prime Minister of Great Britain, and the President of China [referring to the Republic of China] agreed at Cairo that among the areas stolen from China by Japan was Formosa and Formosa should go back to China.
"As the President pointed out this morning, that statement was incorporated in the declaration at Potsdam and that declaration at Potsdam was conveyed to the Japanese as one of the terms of their surrender and was accepted by them, and the surrender was made on that basis.
"Shortly after that, the Island of Formosa was turned over to the Chinese in accordance with the declarations made and with the conditions of the surrender.
REBUTTAL: In regard to the post-war peace treaty, United States issued an aide memoire dated Dec. 27, 1950:
" . . . 2. The Cairo Declaration of 1943 stated the purpose to restore 'Manchuria, Formosa and the Pescadores to the Republic of China.' That declaration, like other wartime declarations such as those of Yalta and Potsdam, was in the opinion of the United States Government subject to any final peace settlement where all relevant factors should be considered . . . " . . . . More . . .
"The Chinese [referring to the Republic of China] have administered Formosa for 4 years. Neither the United States nor any other ally ever questioned that authority and that occupation. When Formosa was made a province of China nobody raised nay lawyers' doubts about that. That was regarded as in accordance with the commitments.
REBUTTAL: A declassified CIA report on Taiwan written in March 1949 clearly stated that: "From the legal standpoint, Taiwan is not part of the Republic of China." Furthermore the report concluded that
"Pending a Japanese peace treaty, the island remains occupied territory in which the US has proprietary interests."
More . . .
"Now, in the opinion of some, the situation is changed. They believe that the forces now in control of the mainland of China, the forces which undoubtedly will soon be recognized by some other countries, are not friendly to us, and therefore they want to say, "Well, we have to wait for a treaty." We did not wait for a treaty on Korea. We did not wait for a treaty on the Kuriles. We did not wait for a treaty on the islands over which we have trusteeship.
"Whatever may be the legal situation, the United States of America, Mr. Truman said this morning, is not going to quibble on any lawyers' words about the integrity of its position. That is where we stand.
REBUTTAL: Hansard: UK Parliament, (May 4, 1955)
The Chinese Nationalists began a military occupation of Formosa and the Pescadores in 1945.
The case of Formosa is different. The sovereignty was Japanese until 1952. The Japanese Treaty came into force, and at that time Formosa was being administered by the Chinese Nationalists, to whom it was entrusted in 1945, as a military occupation . . . .
More . . .
"Therefore, the President says, we are not going to use our forces in connection with the present situation in Formosa. We are not going to attempt to seize the Island. We are not going to get involved militarily in any way on the Island of Formosa. So far as I know, no responsible person in the Government, no military man has ever believed that we should involve our forces in the island."
The international political scene experienced a drastic change after the Korean War broke out on June 25, 1950. Seeing Taiwan's strategic importance, President Truman ordered the Seventh Fleet to patrol the Taiwan Strait and declared, "Regarding confirmation of Taiwan's status . . . it should not be decided until after peace and stability are restored in the region, or until after a peace treaty is signed with Japan, or until the United Nations reaches a decision on the subject."
REBUTTAL: [Re: Directing the Seventh Fleet to enter the Taiwan Strait] The action of the United States was expressly to be without prejudice to the future political settlement of the status of the island. The actual status of the island is that it is territory taken from Japan by the victory of the allied forces in the Pacific. Like other such territories, its legal status cannot be fixed until there is international action to determine its future. The Chinese Government was asked by the allies to take the surrender of the Japanese forces on the Island. That is the reason the Chinese are there now. [late August, 1950] . . . .
More . . .
While the US once thought about defining Taiwan's status as "undecided" until the signing of a peace treaty with Japan to save Taiwan from the grip of Communist China, it made its stance clear following its exchange of notes with the Republic of China government in February 1951, which led to the creation of the Joint Defense and Mutual Assistance Agreement. Meanwhile, the US steadfastly refused to recognize the People's Republic of China regime.
In 1951, the Allies of World
War Two, including the US and the UK, began to discuss the signing of a peace treaty with Japan. Pro-PRC countries, including the UK, the Soviet Union, and India, argued that the PRC, not the ROC, should be invited to the peace conference as the representaive of China. The US finally decided not to invite any representative of China to the conference, which meant neither the PRC nor the ROC would be invited. The US postulated that Japan should be allowed to sign a separate peace treaty with either the ROC or the PRC government after restoring its sovereignty following the signing of the Peace Treaty of San Francisco. Japan, at the urging of the US, chose the ROC. The Treaty of Peace between the Republic of China and Japan was signed on April 28, 1952 in Taipei, putting an end to all the uncertainties regarding the so-called undecided status of Taiwan.
REBUTTAL: As recently as June 2007, a State Department letter noted that "Although the United States recognizes the PRC Government as the sole legal government of China, we have not formally recognized Chinese sovereignty over Taiwan. In fact, we have not made any determination as to Taiwan's political status." . . . . More . . .
The signing of ROC-US Mutual Defense Treaty in 1954 greatly improved Taipei's international status. It signified the fact that the Republic of China's sovereignty over Taiwan and Pescadores has been confirmed by international treaties.
REBUTTAL: In conjunction with the review of the ROC-US Mutual Defense Treaty, the US Senate's Committee on Foreign Relations issued a report in early February 1955 stating that no wording in the treaty was to be interpreted to modify or affect the existing legal status of Formosa and the Pescadores . . . . More . . .
If one follows the argument that Taiwan's status had remained undecided even after a separate peace treaty had been signed betweeen the ROC and Japan, how would it have been possible for the United States to sign a treaty of mutual defense with the Republic of China for the specific purpose of protecting Taiwan and Pescadores? It takes only elementary knowledge in international law to see through the fallacy of its logic.
REBUTTAL: [Sheng v. Rogers (D.C. Circuit, Oct. 6, 1959)] According to official pronouncements of the Department of State, it appears that . . . . . the provisional capital of the Republic of China has been at Taipei, Taiwan (Formosa) since December 1949; that the Government of the Republic of China exercises authority over the island; that the sovereignty of Formosa has not been transferred to China; and that Formosa is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into. Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China . . . . More . . .
In view of the foregoing, existing controversies over Taiwan's status should all be dispelled. Taiwan belongs to the Republic of China. Period. The fact that both Japan and the United States later switched diplomatic relations from Taipei to Beijing is irrelevant to the status of Taiwan, as other countries, however small the number may be, continue to recognize the Republic of China to this day.
REBUTTAL: . . . . technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan . . . . More . . .
-- Rebuttals by the Taiwan Status Action Coalition
by the Taiwan Status Action Coalition:
With reference to the findings in the 1959 DC Circuit case of Sheng v. Rogers,
mentioned above, it should not come as a surprise that for many years the "Taiwan" entry in
the U.S. Dept. of State publication Treaties in Force has clearly noted that "The United States
does not recognize the Republic of China as a state or a government."
Hence, it should not be astonishing to conclude that although the United States recognized the "Republic of China" as the sole
legitimate government of China through Dec. 31, 1978, a thorough search of US government records fails to find any documentation which
shows that the United States ever recognized the "Republic of China" as the legitimate government of Taiwan.
Indeed, on August 30, 2007, the Senior Director for Asian Affairs of the National Security Council, Dennis Wilder, stated:
"Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States
government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years."
Additionally, the Congressional Research Service's Aug. 26, 2013, report China/Taiwan: Evolution of the "One China" Policy concluded that the United States has never recognized the sovereignty of the ROC or the PRC over Taiwan. Previous editions of this CRS report have of course given similar conclusions.