What is behind the current international status of Taiwan?

Part of the “Letters” Series About Taiwan’s History and Status

Editor’s Note: This is the first installment of a planned series on Taiwan’s History and Status that will be released over the next year.

Dear Mr. Kent:

You wrote to ask me to explain to you the current international status of Taiwan. This is a topic rife with misconceptions, the most common one being that Taiwan is part of China. It actually is not. Rather, under international law, Taiwan’s status remains undetermined. It is an island in limbo, and no one has decided who owns it.

Generalissimo Chiang Kai-shek, President Franklin D. Roosevelt, Prime Minister Winston Churchill, Madame Chiang Kai-shek at the Cairo Conference [Image: Harry S. Truman Library & Museum]

The unique status of Taiwan is a result of the postwar political situation. Before and during World War II, Taiwan was a colony of Japan, and Japan exercised undisputed sovereignty over it. In the big meeting of the wartime leaders Roosevelt, Churchill, and Chiang Kai-shek at Cairo in 1943, the US initially agreed to give Taiwan to China, then called the Republic of China, controlled by the Nationalists. China was one of the wartime allies, and in the traditional manner, the big powers were trying to decide who got what spoils from the Japanese territories after the war. The promise of Cairo was reiterated at the Potsdam conference in 1945. However, these promises have no binding effect under international law. They were just declarations and agreements among the Powers about possible future policies. Indeed, the idea that the US could simply give Taiwan to China without consulting its people was against international law in 1943.

MacArthur in Manila, Philippines c. 1945

However, after the end of World War II, the Nationalists were again embroiled in the civil war in China, fighting the Communists. In 1945, as one of the wartime allies under the orders of General MacArthur, the Republic of China (that’s the Chinese Nationalists led by Chiang Kai-shek) occupied Taiwan.

This is when all the confusion arose. The Republic of China (ROC) claimed that Taiwan had been “returned” to “China” and that it was now part of the ROC. Whereas, in reality, the ROC was simply occupying Taiwan on behalf of the wartime allies until the island’s status could be formalized. This meant that the ROC government was administrating Taiwan but did not actually own it. It had no internationally-recognized sovereignty over the island. To this day, the ROC government, which retreated to Taiwan in 1949, has continued to stridently claim it owns Taiwan, and to this day, the ROC has no internationally recognized sovereignty over the island.

The civil war in China continued, and the Nationalists lost to the Communists and retreated to Taiwan in 1949. The Communists founded the People’s Republic of China (PRC) that same year. Both the regime in Taiwan, the Nationalist government, and the regime in China, the Communist government, claimed to be the sole government of China. As such, they both claimed that Taiwan was part of China.

However — and this is important — the postwar treaty to formally end the war had not been negotiated. This meant that nobody had internationally recognized title to the island of Taiwan. The two Chinese governments were just making noise because they had realized it might be possible to annex the island as part of the post-war division of spoils.

The US was busy sorting out the situation in East Asia and determining what its policies would be. Even in the late 1940s it was well known to US observers that the majority of Taiwanese would have preferred to set up an independent state of their own. Moreover, the US did not want to hand Taiwan to either of the murderous, authoritarian, and corrupt governments then in power in Taiwan and in China. Moreover, in 1950, the Korean War began. It was then that Truman made his famous statement of Dec 27, 1950:

“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. … Also, the United States believes that declarations such as that issued at Cairo must necessarily be considered in the light of the United Nations Charter, the obligations of which prevail over any other international agreement.”

Note that Truman makes two key points. First, whatever was said at the wartime conferences was meaningless until it had been confirmed by a formal peace treaty. Second, that the United Nations Charter is the highest international law. The latter point is often forgotten in discussions of how international law applies to Taiwan.

In 1951, as the Korean War raged, delegates from all the powers except the two Chinese governments met in San Francisco to hash out the postwar treaty, now known as the San Francisco Peace Treaty (SFPT). Under Chapter 2, Article 2, Section B of the treaty, it states that Japan “renounces all right, title, and claim to Formosa and the Pescadores.” However — as designed by the US — the SFPT doesn’t say who received Taiwan. It merely states that Japan has given it up. The Treaty simply leaves the question of Taiwan’s sovereignty open, for resolution at a later date. Over sixty years later, it remains unresolved.

Signing the San Francisco Peace Treaty

The SFPT took effect on April 28, 1952. That means that the formal sovereign power over Taiwan from the end of WWII until that date was Japan. Even today, if you want to sue someone in Japan over something that happened in Taiwan during the colonial period, Japanese courts will recognize Japanese sovereignty over Taiwan until that date. That also means that since that date, no one has title over Taiwan, and its status remains undetermined. That same day Japan and the government in Taipei signed a peace treaty, the Treaty of Taipei, which also does not recognize that Taiwan is part of China, and is subordinate to the San Francisco Peace Treaty.

Today US policy is that the status of Taiwan is undetermined. A recent Congressional Research Service report on US-Taiwan policy succinctly states US policy:

“The United States has its own ‘one China’ policy (vs. the PRC’s ‘one China’ principle) and position on Taiwan’s status. Not recognizing the PRC’s claim over Taiwan nor Taiwan as a sovereign state, U.S. policy has considered Taiwan’s status as unsettled.”

That is also the policy of Japan, Australia, Canada, the UK, New Zealand, and other powers. These countries “acknowledge” or “take note of” China’s claim, but they do not “recognize” that claim. That is the US position.

In the early 1970s more confusion occurred. The Nixon Administration decided to sell out Taiwan in order to gain Chinese cooperation in the Vietnam War. Until the early 1970s it was the custom of the State Department to testify before Congress annually and publicly state that Taiwan’s status remained unsettled. Nixon stopped that. The US position went underground. Today the State Department no longer publicly states that Taiwan’s status is undetermined.

Richard Nixon and Zhou Enlai celebrate the signing of the Shanghai Communique with a banquet in Beijing; February 27, 1972

In 1972 Nixon signed the Shanghai Communique with China, which stated…

The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.

This led to more confusion, because of the word “acknowledges”. When it uses the word “acknowledges” the US means “Yeah, we know you claim Taiwan.” Nowhere does the US say it “recognizes” the Chinese claim to Taiwan. But even today, repeatedly, you see news organizations saying that the US acknowledges that Taiwan is part of China, which it does not. It acknowledges only the existence of the claim.

Because of Nixon, the US position went underground and is now never stated in public by US government officials. Instead, such officials offer a strange word salad about the Communiques and the Reassurances that only insiders understand. Actually, they are quite simple: they boil down to:

The US position is that the status of Taiwan is undetermined, same as it is under international law.

So Mr. Kent, next time you hear someone say that Taiwan is part of China according to the US, you can easily correct them by saying “Nope, the US follows international law and says that Taiwan’s status is undetermined.”

I hope this has been helpful to you.

Sincerely, 
Michael


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