State Department Legal Advisor: The Legal Status of Taiwan

July 13, 1971
Foreign Relations of the United States

 Memorandum
July 13, 1971

To: EA/ROC – Mr. Charles T. Sylvester
From: L/EA – Robert I. Starr
Subject: Legal Status of Taiwan

You have asked for a comprehensive memorandum analyzing the question of the legal status of Taiwan in terms suitable for Congressional presentation. Attached is a paper that should serve this purpose. It is drawn mainly from the February 3, 1961 Czyzak memorandum, and contains no sensitive information or reference to classified documents.

Concurrence: L – Mr. Salans

L:L/EA:RIStarr:cdj:7/13/71 ex 28900

 

 

Legal Status of Taiwan

Prior to the Korean Hostilities

From the middle of the 17th century to 1895, Formosa (Taiwan) and the Pescadores (Penghu) were part of the Chinese Empire. China then ceded these islands to Japan in 1895 in the Sino-Japanese Treaty of Shimonoseki.[1]

In the Cairo Declaration of 1943, the United States, Great Britain, and China stated it to be their purpose that “all the territories that Japan has stolen from the Chinese, such as…Formosa and the Pescadores, shall be restored to the Republic of China”.[2] These same three governments on July 26, 1945 issued the Potsdam Proclamation declaring that “the terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine”.[3] On August 8, 1945 the Soviet Union adhered to the Potsdam Proclamation. By an Imperial Rescript of September 2, 1945, the Japanese Emperor accepted the terms of the Potsdam Declaration, and in the Instrument of Surrender signed on the same date, the Japanese Government “and their successors” undertook to carry out the provisions of the Declaration.[4]

Pursuant to Japanese Imperial General Headquarters General Order No. 1, issued at the direction of the Supreme Commander for the Allied Powers (SCAP), Japanese commanders in Formosa surrendered to Generalissimo Chiang Kai-shek “acting on behalf of the United States, the Republic of China, the United Kingdom and the British Empire, and the Union of Soviet Socialist Republics.” Continuously since that time, the Government of the Republic of China has occupied and exercised authority over Formosa and the Pescadores.

The view of the U.S. in the intermediate post-war period was typified by a statement on April 11, 1947 of then Acting Secretary of State Acheson, in a letter to Senator Ball, that the transfer of sovereignty over Formosa to China “has not yet been formalized.”

After a prolonged period of civil strife the Chinese Communists succeeded in driving the Government of the Republic of China off the Chinese mainland. On October 1, 1949 the Chinese Communists proclaimed the establishment of the People’s Republic of China. The seat of the Government of the Republic of China was transferred to Formosa, and in early December 1949, Taipei became its provisional capital.

Shortly thereafter, President Truman, in a statement of January 5, 1950, referred to a U.N. General Assembly Resolution of December 8, 1949, (Res. 291(IV)) which called on all states to refrain from “(a) seeking to acquire spheres of influence or to create foreign controlled regimes within the territory of China; (b) seeking to obtain special rights or privileges within the territory of China.” He said:

“A specific application of the foregoing principles is seen in the present situation with respect to Formosa…

“The United States has no predatory designs on Formosa or on any other Chinese territory, The United States has no desire to obtain special rights or privileges or to establish military bases on Formosa at this time… the United States Government will no pursue a course which will lead to involvement in the civil conflict in China.”[5]

The Korean Conflict

The outbreak of hostilities in Korea on June 25, 1950 brought to the fore the question of the status of Formosa and the Pescadores. President Truman ordered the U.S. Seventh Fleet to prevent any attack on Formosa, and as a corollary called upon the Chinese Government on Formosa to cease all operations against the mainland. In addition, he stated that “the determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.”[6]

On August 24, 1950 the United States explained its position to the United Nations Security Council in the following terms:

“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.”[7]

By a letter dated September 20, 1950,[8] the United States requested that the question of Formosa be placed on the agenda of the fifth session of the U.N. General Assembly. In an explanatory note of September 21, the United States, citing the Cairo and Potsdam declarations and the Japanese surrender, stated nevertheless:

“Formal transfer of Formosa to China was to await the conclusion of peace with Japan or some other appropriate formal act.”

That note also stated:

The Government of the United States has made it abundantly clear that the measures it has taken with respect to Formosa were without prejudice to the long-term political status of Formosa, and the United States has no territorial ambitions and seeks no special position of privilege with respect to Formosa. The United States believes further that the future of Formosa and of the nearly eight million people inhabited there should be settled by peaceful means in accordance with the Charter of the United Nations.”[9]

Japanese Peace Treaty

From September 4 to 8, 1951 a conference for the conclusion and signature of a Treaty of Peace was held at San Francisco. China was not represented at the Conference because of the disagreement among the participants as to who actually represented the government of that country. Reflecting this disagreement is article 2 of the Peace Treaty, which reads in its pertinent part:

“(b) Japan renounces all right, title, and claim to Formosa and the Pescadores.”[10]

John Foster Dulles, U.S. delegate at the Conference, commented on this provision in article 2:

“Some Allied Powers suggested that article 2 should not merely delimit Japanese sovereignty according to Potsdam, but specify precisely the ultimate disposition of each of the ex-Japanese territories. This, admittedly, would have been neater. But it would have raised questions as to which there are now no agreed answers. We had either to give Japan peace on the Potsdam Surrender Terms or deny peace to Japan while the allies quarrel about what shall be done with what Japan is prepared, and required, to give up. Clearly, the wise course was to proceed now, so far as Japan is concerned, leaving the future to resolve doubts by invoking international solvents other than this treaty.”[11]

The delegate of the United Kingdom remarked:

“The treaty also provides for Japan to renounce its sovereignty over Formosa and the Pescadores Islands. The treaty itself does not determine the future of these islands.”[12]

The USSR refused to sign the Treaty. It objected, among other things, to the provision regarding Formosa and the Pescadores:

“…this draft grossly violates the indisputable rights of China to the return of integral parts of Chinese territory: Taiwan, the Pescadores, the Paracel and other islands…. The draft contains only a reference to the renunciation by Japan of its rights to these territories but intentionally omits any mention of the further fate of these territories.”[13]

It is clear from these and other statements made at San Francisco, that although the Treaty provision constituted an appropriate act of renunciation by Japan, the future status of Formosa and the Pescadores was not considered to have finally been determined by the Peace Treaty.

The Senate Committee on Foreign Relations also took this view. In its Report on the Treaty dated February 14, 1952, the Committee stated:

“It is important to remember that article 2 is a renunciatory article and makes no provision for the power or powers which are to succeed Japan in the possession of and sovereignty over the ceded territory.

“During the negotiation of the Treaty some of the Allied Powers expressed the view that article 2 of the treaty should not only relieve Japan of its sovereignty over the territories in question but should indicate specifically what disposition was to be made of each of them. The committee believes, however, that this would have complicated and prolonged the conclusion of the peace. Under the circumstances it seems far better to have the treaty enter into force now, leaving to the future the final disposition of such areas as South Sakhalin and the Kuriles.”[14]

Although China was not a party to the San Francisco Treaty, a separate Treaty of Peace between the Republic of China and Japan was signed in Taipei on April 28, 1952.[15] Article II of that treaty provided:

“It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the united States of America on September 8, 1951…, Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)….”

Explaining this provision to the Legislative Yuan, Foreign Minister Yeh of the Republic of China stated that under the San Francisco Peace Treaty “no provision was made for the return [of these islands] to China.” He continued:

“Inasmuch as these territories were originally owned by us and as they are now under our control and, furthermore, Japan has renounced in the Sino-Japanese peace treaty these territories under the San Francisco Treaty of Peace, they are, therefore, in fact restored to us.”[16]

At another point, Foreign Minister Yeh stated that “no provision has been made either in the San Francisco Treaty of Peace as to the future of Taiwan and Penghu.”[17] During the interpellations of the Sino-Japanese Peace Treaty in the Legislative Yuan, the Foreign Minister was asked, “What is the status of Formosa and the Pescadores?” He replied:

“Formosa and the Pescadores were formerly Chinese territories. As Japan has renounced her claim to Formosa and the Pescadores, only China has the right to take them over. In fact, we are controlling them now, and undoubtedly they constitute a part of our territories. However, the delicate international situation makes it that they do not belong to us. Under present circumstances, Japan has no right to transfer Formosa an the Pescadores to us; nor can we accept such a transfer from Japan even if she so wishes…In the Sino-Japanese peace treaty, we have made provisions to signify that residents including juristic persons of Formosa and the Pescadores bear Chinese nationality, and this provision may serve to mend any future gaps when Formosa and the Pescadores are restored to us.”[18]

Chinese Mutual Defense Treaty

Against the background of a Chinese Communist propaganda campaign in July, 1954 for the “liberation” of Taiwan, supplemented in September, 1954 by military action against Quemoy and other offshore islands, the United States and the Republic of China signed a Mutual Defense Treaty on December 2, 1954.[19] The first paragraph of Article V of the Treaty reads:

“Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.”

Article VI provides that for the purpose of Article V the term “territories” shall mean in respect to the Republic of China, “Taiwan and the Pescadores.” In an exchange of notes accompanying the Treaty, there appears the statement, “The Republic of China effectively controls both the territory described in Article VI of the Treaty… and other territory.”

In its report on the Treaty, the Senate Committee of Foreign Relations discussed the question of the true status of Formosa and the Pescadores:

“By the peace treaty of September 8, 1951, signed with the United States and other powers, Japan renounced ‘all right, title and claim to Formosa and the Pescadores.’ The treaty did not specify the nation to which such right, title and claim passed. Although the Republic of China was not a signatory to the Treaty, it recognized that it did not dispose finally of Formosa and the Pescadores….

“…he (Secretary Dulles) informed the committee that the reference in article V to ‘the territories of either of the Parties’ was language carefully chosen to avoid denoting anything one way or the other as to their sovereignty.

“It is the view of the committee that the coming in to force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores. The treaty appears to be wholly consistent with all actions taken by the United States in this matter since the end of World War II, and does not introduce any basically new element in our relations with the territories in question. Both by act and by implication we have accepted the Nationalist Government as the lawful authority on Formosa.

To avoid any possibility of misunderstanding on this aspect of the treaty, the committee decided it would be useful to include in this report to following statement:

It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies.[20]

In presenting the Committee’s report to the Senate on February 9, 1955, Senator Walter George referred to the question of the legal status of Taiwan:

“The view was advance during committee’s consideration of the treaty that it may have the effect of recognizing that the government of Chiang Kai-shek has sovereignty over Formosa and the Pescadores. On the one hand, reference was made to the Cairo Declaration which stated that Japan was to be stripped of her island territories in the Pacific and that territories stolen from the Chinese such as Formosa and the Pescadores shall be restored to the Republic of China. On the other hand, reference was made to the fact that while Japan renounced all right, title and claim to Formosa and the Pescadores, such title was not conveyed to any nation. After full exploration of this matter with Secretary Dulles, the committee decided that this treaty was not a competent instrument to resolve doubts about sovereignty over Formosa. It agreed to include in its report the following statement

It is the understanding of the Senate that nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty of the territories referred to in article VI. (sic)

In other words, so far as the United States in concerned, it is our understanding that the legal status of the territories referred to in article VI, namely, Formosa and the Pescadores – whatever their status may be – is not altered in any way by the conclusion of this treaty.”[21]

Quemoy and Matsu

It may be well to note the special status of the offshore islands, the Quemoy and Matsu groups, in contrast to that of Formosa and the Pescadores as described here. The offshore islands have always been considered as part of “China.” As Secretary Dulles explained in 1954:

“The legal position is different…, by virtue of the fact that 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. Therefore the juridical status of these islands, Formosa and the Pescadores, is different from the juridical status of the offshore islands which have always been Chinese territory” (underscore added)[22]

Recent Restatement of the United States Position

The position of the United States was set forth by the States Department in connection with the 1970 Hearings before the Subcommittee on the United States Security Agreements and Commitments Abroad of the Senate Committee on Foreign Relations (91st Cong., 2d Sess.):

“Legal Status of Taiwan as Defined in Japanese Peace Treaty and Sino-Japanese Peace Treaty

“Article 2 of the Japanese Peace treaty, signed on September 8, 1951 at San Francisco, provides that ‘Japan renounces all right, title and claim to Formosa and the Pescadores.’ The same language was used in Article 2 of the Treaty of Peace between China and Japan signed on April 28, 1952. In neither treaty did Japan cede this area to any particular entity. As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution. Both the Republic of China and the Chinese Communists disagree with this conclusion and consider that Taiwan and the Pescadores are part of the sovereign state of China. The United States recognized the Government of the Republic of Taiwan as legitimately occupying and exercising jurisdiction over Taiwan and the Pescadores.”[23]

The future relationship of Taiwan to mainland China and the resolution of disputes dividing the governments in Taipei and Peking involve issues that the United States cannot resolve. We have made clear that our primary concern is that these issues should be resolved by peaceful means, without resort to the use of force. Until such a resolution is achieved we may continue to deal respectively with the government of the Peoples Republic of China and the Government of the Republic of China on matters affecting mutual interests, accepting the practical situation as we find it.

July 12, 1971

 

 

Endnotes

 

[1]

Treaty of Peace Between Japan and China, May 8, 1895, 1 Recueil des Traites et Conventions entre le Japon et lese Puissances Etrangeres 375

 

[2]

A Decade of American Foreign Policy, 1941-1949, at p. 22.

 

[3]

Id., at p.49.

 

[4]

Id., at p. 625

 

[5]

II American Foreign Policy, 1950-1955, at p. 2448.

 

[6]

XXIII Dept. State Bull. 5 (1950).

 

[7]

U.N. Doc. No. S/1716.

 

[8]

U.N. Doc. No. A/1373.

 

[9]

U.N. Doc. No. A/1381.

 

[10]

U.S. TIAS 2490; 3 UST 3169, 3172; 136 UNTS 45, 48, 50.

 

[11]

Record of the Proceedings of the Conference for the Conclusion and Signature of the Treaty of Peace with Japan, at p. 78, Dept. State Publication 4392 (1951).

 

[12]

Id., at p. 93.

 

[13]

Id., at p. 112.

 

[14]

S. Exec. Report No. 2, 82d Cong., 2d Sess., at p. 8.  American Foreign Policy 1950-1955, at p. 470.

 

[15]

138 UNTS 3.

[16]

Despatch No. 31 from the American Embassy in Taipei to the Department of State, July 23, 1952, Enclosure 2, at p. 1.

 

[17]

Id., at p. 2.

 

[18]

Id., Enclosure 3 at p. 4.

 

[19]

U.S. TIAS 3178; 6 UST 433; 248 UNTS 213.

 

[20]

S. Exec. Report No. 2, 84th Cong., 1st Sess., at p. 6, I American Foreign Policy 1950-1955, at pp. 962-3.

 

[21]

101 Cong. Rec. 1381 (1955).

 

[22]

XXXI Dept. State Bull. 896 (1954)

 

[23]

Hearings, Part 4 (Republic of China), at p. 948 (1970).

 

 



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