Taiwan Communiqué No. 98, September 2001

San Francisco 50 years

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Listening to the voice of the people of Taiwan

September 8th, 2001 marked the 50th anniversary of the 1951 San Francisco Peace Treaty, whereby the Allied Powers and Japan formally ended World War II. The treaty is important for the discussion on Taiwan's future, because it stipulated that Japan ceded sovereignty over the island, but it did not specify any recipient. The majority of the conferees voiced the opinion that the views of the people of the island, then referred to as Formosa, needed to be taken into account.

The British delegate stated that "In due course a solution must be found in accord with the purposes and principles of the Charter of the United Nations." The Egyptian delegate stated that specifying the recipient is "to afford the opportunity to take into consideration the principle of self-determination and the expressed desire of the inhabitants of Taiwan." The French delegate stated that: "Taiwan's legal status must be determined one of these days, taking the wishes of the Formosan population into consideration."

It was thus the specific intention of the attendants of the San Francisco Peace Conference that the people of Taiwan should determine the future status of the island based on the principle of self-determination. Such process was not possible at the time, because the island was occupied by the losing side of China's Civil War, Chiang Kai-shek's Nationalists.

A full and fair assessment of the views of the Taiwanese didn't really become possible until very recently, after the democratization process on the island ran its due course. The election of President Chen Shui-bian in March 2000 has started a period in which the Taiwanese can finally openly discuss the future of their island, although threats and intimidation by China continue. In addition, old pro-unification Nationalist Chinese diehards on the island make it difficult for a full and open debate to take place, and for democracy to function fully.

Resolution in the US Congress

In the US Congress, the 50th Anniversary of the conclusion of the San Francisco Peace Treaty was marked by the introduction of a resolution in support of Taiwan's self-determination. The resolution, HCR-221, states that it is the sense of Congress that "It is United States policy that the future of Taiwan should be resolved peacefully, through a democratic mechanism such as a plebiscite and with the express consent of the people of Taiwan". The full text can be found at http://www.taiwandc.org/nws-2001-12.htm

The resolution specifically refers to the fact that under the provisions of the 1951 San Francisco Peace Treaty, Japan renounced all right, title and claim to Taiwan, and the status of the island was left undetermined.

The resolution then states that under the universal principle of self-determination as enshrined in Article 1 of the United Nations Charter, the people of Taiwan have the right to determine their own future. It emphasizes that the United States, as a signatory to the UN Charter, supports that fundamental right. The resolution was introduced by a bi-partisan group of Congressmen led by Rep. Bob Wexler (D-FL).

On the following pages, we present two important contributions to the debate on the importance of the SFPT for Taiwan's future.

SFPT: Missed opportunities for Taiwan

This editorial appeared in the Taipei Times on 8 September 2001. Reprinted with permission.

What a great opportunity today for President Chen Shui-bian to tell the truth about Taiwan. Not that he will take it, which is just another example of how contemptibly craven this government has become. But today is the 50th anniversary of the treaty of San Francisco, the peace treaty that settled the claims arising from World War II in the Far East. As a result of that treaty Taiwan became an independent sovereign state.

None of the parties to the treaty intended this, which is why it is seldom spoken of. The original intention of the Allies was that after Japan's surrender, Taiwan should be returned to China, a sop thrown to Chiang Kai-shek to persuade that poltroon, more interested in selling US aid to the Japanese than in fighting them, to take a more robust approach to the war.

This intention was expressed in the Cairo and Potsdam declarations. But declarations by belligerents do not make international law. They are simply a statement of one side's opening bid in the treaty-making process. The Allies certainly intended to return Taiwan to China. But in fact they never did. Japan, which had been given Taiwan and Penghu "in perpetuity" by the Treaty of Shimonoseki in 1895, renounced its sovereignty over these territories. And that sovereignty was not passed to any other nation.

What should have happened is that Taiwanese should have been given their rights under UN de-colonization provisions to determine whether they wished to in fact stay with Japan, become a part of China, or be independent.

Of course this didn't happen. The reason why was simple. On the basis of the Cairo and Potsdam declarations, Taiwan had been given to Chiang's government to administer pending the determination of its final status. This is a legal point on which the KMT — which has never been too refined about observing legal niceties — has almost succeeded in brainwashing an entire nation.

It has always claimed that sovereignty over Taiwan was restored to China in 1945. This is simply a lie. And it's one that Chen should expose. Given that defeated Japan was in no position to administer anything — including itself — in 1945, China was given the right to administer Taiwan pending a settlement of the claims of the war. The San Francisco treaty was that settlement. And neither China received anything.

Taiwan had what was essentially a regime of occupation until the early 1990s, when the Taiwanese were at last allowed to decide who should govern them. In fact not until the first democratic presidential election in 1996 can one say that the people of Taiwan had become the masters of their political destiny. In this they created a new nation, still only five years old. That so few seem to understand this is a tribute to the malign influence of KMT wishful thinking.

If the Beijing government is really a successor state to the ROC, which in turn was a successor to the Qing government, the PRC has no claim on Taiwan. It is bound by the obligations of its forerunner, they gave Taiwan away. The Allies might have gained it by force of arms, but they never returned it to China. Nor, of course, did they give it to Chiang Kai-shek.

How we crave a speech by Mr. Chen Shui-bian that dispels the decadent fantasies, claims and counterclaims of both the communists and the KMT and simply states what Taiwan's position is under international law and tells China to live up to its treaty obligations. Today would have been an excellent opportunity for such lesson. Too bad it will be missed.

The San Francisco Peace Treaty and Taiwan's status

By Wang Taitzer. Prof. Wang is a member of the Southern Society of Taiwan as well as the North American Taiwanese Professors' Association.

The idea that Taiwan is not a part of China finds its roots in international law, in the form of the San Francisco Peace Treaty. The treaty also constitutes legal proof refuting the pro-unification camp's assertion that, since ancient times, Taiwan has always belonged to China. Since its signing on Sept. 8, 1951, there has existed an intimate association between Taiwan and the treaty, which has exerted a huge influence on relations across the Taiwan Strait.

In his article State, Sovereignty and Taiwan (published in Fordham International Law Journal, volume 23, 2000) Fordham University law professor Y. Frank Chiang writes that the Ching Dynasty (1644-1911), the ROC of 50 years ago and today's PRC were merely three successive governments in modern Chinese history.

These three governments do not, however, represent three distinct, independent nations, Chiang argues. The ROC inherited the international debt left behind by the Ching imperial regime and the PRC took the ROC's UN seat in 1971 while "China" never changed its name. From these two facts one can see that Sun Yat-sen and Mao Zedong merely replaced existing governments, and did not actually establish new nations.

Upon being overthrown by the Nationalists, the Ching dynasty government lost both its territory and people, and was thus relegated to the dustbin of history. When the ROC government was driven off Chinese territory by the Chinese Communist Party, it likewise lost its territory and people.

The difference between the two is that the ROC had the benefit of luck (the Japanese defeat in World War II), geographical position (Taiwan) and connections (World War II allies). The ROC was eventually entrusted by the World War II allied powers with control of Taiwan, which it has maintained to this day. Thus, during the past 50 years of its occupation of Taiwan, the ROC has never had "legal" claim to Taiwan and its people. What exists today is merely the continuation of a "circumstantial" role proper to the title of ROC, supported only by ethnic sentiment.

In retrospect, during the period 1945 to 1949, if Chiang Kai-shek hadn't lost China, and Japan had still surrendered to allied forces in August 1945, the proclamation "Taiwan is hereby returned to the ROC" would surely have been included in the San Francisco Peace Treaty signed six years later. Clearly, at that time, the people of Taiwan felt that being returned to China was perfectly reasonable, and even rejoiced at the prospect.

Unfortunately, Chiang's KMT lost the Chinese civil war. Then, in 1950, during the Korean War, the PRC entered North Korea, becoming an enemy of the UN allied forces. By this time, China had already become "Communist China." The San Francisco treaty was signed the following year by the US and 49 other World War II allies.

The treaty contradicted the consensus expressed in the Cairo and Potsdam declarations, which were issued before Japan's surrender, and accepted only Japan's formal renouncement of Formosa and the Pescadores (ie Taiwan and the Penghu Islands). No mention was made in the treaty of allowing Japan to cede Taiwan to any other nations, the purpose of the omission being to prevent Taiwan from falling into the evil hands of "Communist China."

The USSR, China and India never signed the treaty, so actually, following Japan's renouncement of Taiwan, the question of which nation Taiwan belongs to had nothing whatsoever to do with them.

In 1895 the Japanese had come to take over Taiwan and lord over its people. Indignant with the Ching dynasty prime minister who simply gave Taiwan away to the Japanese without consulting the Taiwanese officials, local volunteers courageously fought back with "bamboo poles mounted with kitchen knives." By contrast, in 1945, when the demoralized ROC army began coming ashore from China, an outpouring of praise from the people of Taiwan echoed throughout the island.

Unfortunately, the unexpected 228 Incident and 38 years of Kuomintang "white terror" martial law rule have caused those days of unbridled euphoria to gradually devolve into the chaos that persists today, even one year after Taiwan's first peaceful political transition. Important figures in Taiwan, those among both the old and new immigrants, only know how to bicker and hurl insults, and nothing of working together toward the goal of establishing a de jure statehood.

The San Francisco treaty easily proves that Taiwan's international status remains undefined. Amid all the heated debate that has occurred regarding the "Taiwan question," 50 years of history have already vanished. While the past is gone, however, the future is still within our grasp. Now is the time to take a fresh look at the situation!

Ever since Taiwan was ceded to Japan in 1895 under the terms of the Treaty of Shimonoseki, it has never belonged to China. It is most important that the Taiwan government inform society about this historical fact and strive to encourage vigorous debate.

This article first appeared in the Taipei Times on 7 September 2001 under the title "Statehood status still unresolved." Reprinted with permission.

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