A group of islands, called Taiwan or Formosa, lie on the westernmost of the Pacific between Okinawa and the Philippines. The group comprises the Island of Taiwan (Island of Formosa) and sixty-four small islands, known as the Pescadores. Historically Taiwan was originally inhabited by tribes of the Malay-Polynesian origin.

As a part of the eastwards movement in the early 17th century, the Dutch, with headquarters at Batavia, Indonesia, made invasions to Taiwan in 1624 and ruled a part of the Island of Taiwan from 1624 to 1662. In about the same period, the Philippines-based Spaniards joined the Dutch in the ventures and occupied a northern part of the Island from 1626 to 1642.

Defeated in his efforts to defend the ailing Ming dynasty from the invading Manchus, Koxinga moved into Taiwan and drove the Dutch out of the Island in 1662 and reconsolidated his political power by creating a new regime over the Island of Taiwan and the Pescadores. Thus a single political entity over both region emerged for the first time.

The Koxinga regime lasted for only twenty-one years. In 1683, the Ch'ing, a newly emerged Manchurian dynasty on the Chinese mainland, crashed Koxinga's government and controlled Taiwan. Thus started the Ch'ing's rule of about two centuries over Taiwan. In 1895, as a result of her defeat in the Sino-Japanese war, the Ch'ing ceded Taiwan to Japan in accordance with the Sino-Japanese Peace Treaty of 1895. By that time the population of Taiwan including the immigrants from Canton and Fukien had reached 2.6 million.

In accordance with Article 5 of the Peace Treaty, the inhabitants of Taiwan were to be given freedom and a two-year legal delay in which period they could choose their nationalities between the Ch'ing and Japan. But when the deadline expired on May 8, 1897, only 4,500, or 0.16 percent, of the total population decided to choose the Ch'ing nationality and repatriated to the Chinese mainland. However, more than 99.0 percent of the population chose to remain on Taiwan and to share the fate of their homeland (Note 1). Their choice, of course, should not in any way be considered as their submission to the Japanese rule. As a matter of fact, the Taiwanese and a few Ch'ing officials resided in Taiwan declared independent and set up a republic of Formosa in May of 1895. The republic lasted for only five months after its birth and was demolished at the hands of the Japanese Army. The Taiwanese anti-Japanese resistance thenceforth turned to guerilla activities which lasted for twenty years thereafter. (Note 2)

Japan maintained a colonial rule over Taiwan for fifty years until her defeat in World War II in 1945. Then the Republic of China (ROC), one of the Big Five and later a permanent member of the United Nations Security Council, moved in to occupy Taiwan by the order of Gen. Douglas MacArthur, the Supreme Commander of the Allied Powers.

The period of 1945-1949 saw a series of civil strives between the ROC and the Chinese Communists. With the growing support by the Chinese people, the Chinese Communist Party established in 1949 its own regime, the People's Republic of China (PRC), with its capital in Peking. Expelled from the mainland, the ROC moved its government machinery to Taiwan in 1949. The ROC lost all the territories under its rule, which it had acquired since its founding in 1911, being left then with no other proper territories than the offshore islands of Quemoy and Matsu. Should an attempt by the PRC to seize the offshore islands in 1949 have not failed, the ROC would have been totally wiped out of the Continent of China for good. But the attempt failed and the ROC survived. (Note 3)

The sheer existence on Taiwan of the refugee regime led by Chiang Kai-shek is mainly enabled by the U. S. support, however, it should be noted that the ROC is undoubtedly a sovereign state from the point of view of international law since it has been consistently a member state of the United Nations since its establishment, and it still today maintains diplomatic relations with scores of countries. What is in dispute, however, is whether the ROC has any legal ground to take a position that the regime still represents the 800 million Chinese people on the Chinese mainland. Because of this contention, the situation has created the problem of representation.

Now it should be clearly noted that the issue of the U. N. representation of China is a matter entirely different from the issue of the title over Taiwan.

Historically, Taiwan is not a proper state territory of "China", or, in the light of international law, a state territory of "China". Moreover, the PRC's supremacy has never reached Taiwan since its founding in 1949 while, from the point of view of international law, the ROC has never in possession of Taiwan all through the years since 1945.

The present essay is focused on these problems to give light on the legal status of Taiwan. Needless to say, the term Taiwan (Formosa) is used in this essay to mean the geographical area comprising the Island of Taiwan and the Pescadores (Note 4).

II. Statement of U. S. State Department

Arguments over the legal status of Taiwan came into being since about 1949 when some countries had in fact thrown doubt on this problem, but it hardly came to the fore except at the time of the Korean War and the Peace Conference with Japan. It was after the U. S. State Department took it up in April, 1971 that this old issue suddenly attracted a fresh attention.

On April 28, 1971 the U.S. State Department issued the following statement on the question of the legal status of Taiwan: "In our view, the sovereignty over Taiwan and the Pescadores is an unsettled question subject to future international resolution. Both the ROC and the PRC have not agreed to such resolution. Both regard Taiwan and the Pescadores as part of a sovereign state of China. Obviously we cannot hope to resolve this dispute between the two rival governments. Our position has been and will be that in whatever way the dispute between the ROC in Taiwan and the PRC on the mainland is to be resolved it should be done by peaceful means." (Translated from The Mainichi Shimbun, April 29, 1971)

The reaction of the Foreign Affairs Department of the ROC came in the form of a protest. The U. S. Ambassador to ROC was summoned the following day and reminded that both Cairo and Potsdam Declarations clearly stipulated the restoration of Taiwan to China and its status as state territory of China was confirmed both in the Treaty of Peace between the Republic of China and Japan of 1952 and the Mutual Defense Treaty between the United States of America and the Republic of China of 1954 and that the State Department's utterance at this time on the legal status of Taiwan was incomprehensible.

Meanwhile, Peking's own reaction appeared in the May 4, 1971 issue of the People's Daily, refuting the U.S. State Department statement on the ground that Taiwan had been a part of Chinese territory from old time and its restoration to China in 1945 was declared in the Cairo and Potsdam Declarations. As expected, the ROC was as frustrated by the statement as was the PRC, since the ROC shares with Peking the claim that Taiwan is a Chinese territory. From the viewpoint of the Taiwanese, however, Taiwan can not but be possession of the people of Taiwan who were born and raised there.

Territorial issues have hitherto been treated politically outside the bounds of international law on the back stage by national powers. Issues among the weak states or among the strong for that matter, often develop into armed clashes, but between the weak and the strong, territorial problems seem always to be resolved at the sacrifice of the weak. The fate of those without homeland has been even more despairing. Their native lands would be ceded from one power to another one day and then to another the next day and would be trampled on by alien powers that do not identify their interests with those of the natives. To avoid resistance by the native, a new formula has been introduced to allow the inhabitants of newly annexed areas to elect nationalities of their preferences. Even though, in the eyes of the sovereign state, such a freedom should not be construed to be as a "God-given right" but rather as a "favor" granted by the ruling state to the ruled. But can this conception be consistent with the principle of self-determination?

Since the founding of the United Nations, resolutions have been adopted to give the right of self-determination to native inhabitants, namely, the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, and the International Covenants on Human Rights. When it comes to practical application, however, these UN resolutions still leave much to be desired. It is, nonetheless, remarkable that the question of the rights of former colonial peoples has been gaining wider attention.

Viewed from this angle, the territorial claims by the ROC and the PRC over Taiwan are, indeed, contentions against the post war current political thought. In what follows, we shall examine from various viewpoints the validity or lack of it, of their claims. The essence of their arguments can be summarized as follows:

   (1) Historically Taiwan is a proper territory of China,
   (2) China's declaration of war against Japan in 1941 
       nullified all treaties existing between Japan and China,
   (3) The Cairo Declaration assured Taiwan's restoration to China.
   (4) The Treaty of Peace between the ROC and Japan of 1952
       established the ROC's possession of Taiwan,
   (5) The Mutual Defense Treaty between the ROC and the U. S. 
       of 1954 confirmed the ROC's possession of Taiwan, and
   (6) The ROC began ruling Taiwan in effect from October 25,
       1945 on and no nation has voiced objection.

While above six points support the argument of the ROC, the PRC bases its theory only on the first three since it does not recognize the ROC. International jurists have their own views on the question of the legal status of Taiwan, but we shall this time limit our attention to examining, point by point, the claims by the ROC and the PRC.

III. Refutation against PRC and ROC

1. Taiwan Is Not Part of China Historically

Any claim that Taiwan is a possession of China stands on a set of "historical facts": that in the year 610 A. D., Chen Ling, a general of the Sui dynasty (A. D. 581-618) made an expedition of Taiwan; that in the middle of the 14th century the Yuan (Mongolian Empire) set up an outpost of the government in the Pescadores and later in 1563 the Ming dynasty had its own setups there, each for a period of few years. Further more, this school of argument utilizes for advancing its contention the fact that the Ch'ing dynasty had taken possession of Taiwan from late 17th century for two centuries. But all these "historical grounds" are not necessarily right. The idea of bringing in Chen Ling's expedition of Taiwan to support China's claim is only a hindsight to apply to the argument the concept of "occupation" in international law. But the meaning of "occupation" in terms of international law implies:

   A. that a country exercising occupation has to indicate 
      in some forms its intention of making its own territory 
      of the land.

   B. that the country has to effectively control the land. 

There is no evidence that the Chen Ling expedition fulfilled either, much less both, of the above-mentioned conditions. His expedition was only to enhance national prestige and hardly meant the Sui's occupation of Taiwan.

It is appropriate to say that the acquisition of the land by occupation was achieved for the first time by the Yuan, occupying though only for a short period the Pescadores in the 14th century by setting up a government outpost of its own there. However its supremacy never extended to as far as the Island of Taiwan. When withdrew its outpost and abandoned the Pescadores in years later, the Pescadores then returned to the status of terra nullius or unclaimed territory. (Later sections shall deal with terra nullius.)

Since the Pescadores had already been abandoned by the Yuan when the Ming set up its own government outpost there, it is proper to say that the Ming occupied the unclaimed territory of the Pescadores. As with the Yuan, there again the Island of Taiwan did not come under the Ming's supremacy. As a matter of fact, the Ming closed down its outpost in the Pescadores in an equally short time, providing an opportunity for the Dutch to occupy it. Later the Ming filed a protest against the invading Dutch and the Dutch, bowed to the protest and withdrew from the Pescadores.

The Dutch withdrew from the Pescadores and moved into the Island of Taiwan. For the first time the sovereignty of a state was extended to the Island of Taiwan. (A later section shall discuss the sovereignty of the aborigines.) From the point of view of the conception in modern law of nations the Dutch were the first power to effect the sovereignty on the Island of Taiwan in 1624. The Dutch occupation, however, was limited to a southwestern region of the island and never extended over the whole island. A similar situation existed in the northern part of the island where the Spanish invaders also managed to establish their own occupation of that particular part of the island. To sum up, the claimants in accordance with the concept of "occupation" as is defined in modern international law can be listed as follows:

      Pescadores: The Yuan and the Ming
      South-Western Region of Island of Taiwan: The Dutch
      Northern Region of Island of Taiwan: The Spanish

The fore-going argument presupposes that Taiwan, including the Pescadores, was an unclaimed territory. In international law an "unclaimed territory" is not meant to be an uninhabited land but rather a land over which no state sovereignty is extended. Therefore the fact that Taiwan was then actually inhabited cannot provide any clue for judging whether or not Taiwan was an unclaimed territory. Such a judgment should be based on whether any state sovereignty actually existed in Taiwan in those days.

Now, observing the situation in Taiwan in those days, we find that Taiwan was inhabited predominantly by the aborigines of the Indonesian origin and small numbers of Japanese and Chinese (to be more specific the Han's origin) pirate merchants. Those pirate merchants, be it the Japanese or the Chinese, did not constitute a single political unit. Neither, for that matter, did the aborigines themselves, and no nation comprising the whole of Taiwan was ever in existence. Yet, the aborigines are known to have been divided into several tribal groups, each forming a political entity of its own. The political structures were more or less a village community under a tribal chief or native states with systems of government looser from the rigid standards of national law developed in the Western World. Nonetheless, if the histories of the numerous countries during the days of Confucius, the sixteen countries which existed in the mainland throughout the 3rd and 4th centuries and those dual dynasties created in repetition at various points of time in the history, can be taken to constitute the history of one single China, it follows then that the aborigines "countries" on Taiwan should also be viewed as a history of an independent Taiwan. Viewed in this light, the occupation of the Pescadores by the Yuan, the Ming, and of the Island of Taiwan by the Dutch and the Spanish can be considered as nonexistent. From the point of view of modern international law it was, in effect, "conquest".

By "Occupation" or "conquest", the sovereignty over Taiwan fell into the hands of the alien powers.

It was the dynasty founded by Koxinga that replaced the Dutch. Thus emerged an independent regime with authority over Taiwan.

In 1683, the Koxinga dynasty, or the kingdom of Taiwan, was conquered by the Ch'ing, which extended its sovereignty over Taiwan. The shift of political dominance in this case was clearly an act of "conquest" and not of "occupation", since a state sovereignty did exist in Taiwan at that time. In other words, the Ch'ing's possession of Taiwan was the consequence of a war.

As a result of the War of 1895, the Ch'ing ceded Taiwan to Japan. By that time the Western international law had already attained a position which had an international binding power. What is to be noted specifically here is that: acquisition of territories by force of arms, even by an act of aggression, can be rectified by concluding a legal treaty between the belligerent countries. If it was appropriate for the Ch'ing to destroy the Koxinga dynasty and acquire Taiwan, so was it for Japan, though by force of arms in effect, to have taken Taiwan by virtue of a treaty of peace.

Among the dynasties which have ruled over the Continent of China, the Ch'ing was the first to put Taiwan, inclusive of the Pescadores, under its control. Yet, it is apparent from the following four reasons that the Ch'ing did not look upon Taiwan as part of its territories proper.

Firstly, the Ch'ing concerned itself more than anything about eliminating any enemy in Taiwan which might cause a political threat to the Ch'ing dynasty, and had least thought of territorializing Taiwan. The question of territorializing a land already conquested hardly deserves any serious interest in Peking. It is an interesting historical fact that after the conquest the Ch'ing Government once resolved on not territorializing Taiwan but went even further in trying to abandon Taiwan. This policy, however, did not materialize because of an earnest recommendation of Commander Shih Lang who had led the Ch'ing's invading force into Taiwan.

Secondly, the second emperor of the Ch'ing admitted in an official document that Taiwan was not part of China proper but a land newly acquired' by the Ch'ing through conquest. (Note 5)

Thirdly, the Ch'ing regarded Taiwan as a "special area" even after the establishment of its possession and administration of Taiwan, for immigrants from the Chinese Continent were barred entry into Taiwan and the stationary troops were sent in from the mainland and never recruited locally. In one of the communications with foreign governments the Ch'ing openly referred to Taiwan as an "area of outlaws".

Fourthly, the effectiveness of control over Taiwan has been suspected by foreign countries. Britain, for instance, was of the view that the eastern part of Taiwan was an unclaimed territory even at the period of the late 19th century.

The theory that Taiwan is a possession or a proper territory of the state of "China" then amounts to be, at best, politically motivated, on argument which can hardly stand the test of historical facts and the philosophy of international law.

Can Taiwan since 1683, the year of the Ch'ing's conquest of Taiwan, be then looked upon as a land belonging to "China" from ancient times? In relation to this problem we shall first examine some aspects of the modern Chinese nationalism and the territorial issue.

"China" is often described with an attribute, that is, "With an eternal history and vast land". Used in a literary sense, this may be a generally fitting expression. One may wish to trace the history of "China" all the way back to the world of mythology and maintain that "China" has a history of five thousand years. But this is not anything peculiar to "China" alone. For, how to define the length of a history, people are generally apt to read mythology and old legends with a great deal of romanticism. Nonetheless, when they speak of "China's eternal history and her vast land", they subconsciously bring such an ambiguity of romanticism which goes with history into their concept of state territory and come unconditionally to associate "China" with some undefinable immensity. State territory, however, is a political reality, certainly not anything that can be treated romantically. Arguments defining Taiwan as a land consistently belonging to "China" are in fact making this very erroneous. Before pointing out what exactly the error is, we shall pose here a couple of questions:

A. What is the extent to which "China" is entitled to hold "territorial rights"?

B. And what area does not come within the domain of "China"?

The writer would be delighted to meet any one, historically minded or nationalistically oriented Chinese, if any at all, who can answer these questions. Even an extreme Chinese nationalist may be accepted so long as his argument is not self-contradictory. To begin with, the meaning of the term "China" is historically very ambiguous, at best. Often it is used to denote a particular political unit, as in the political unit as in the Republic of China (ROC) and the People's Republic of China (PRC), on the other hand, the term can also be used in ways as the term "Africa" and so forth to point to a geographical region or a sphere of civilization. And yet the Chinese nationalists themselves still continue to be possessed with, and even dare advocate, the illusion that a single national entity called "China" has been in existence from a time immemorial.

Running through the history of this region called China is a host of dynasties. Those dynasties existed, in the time before the concept of a state in the present day political science terminology had not been formed. According to the rules of power politics, which prevailed in those days, any family could exercise its ruling power over their domain by virtue of its strength. If a family could gain enough power to subjugate neighboring "states" it would grow up to be a dynasty even more powerful. On the contrary a declining dynasty would be either encroached on by other powerful rivals or taken over by an emerging dynasty. There are countless instances at various points of time in the history of the China area of a number of tribal states contending For supremacy over each other. In other words, the "history" of the state of China is itself a body containing histories of small states in that region. To this extent, it is similar in essence to that of Europe.

From the mid-19th century onwards, as the European Powers, already well acquainted with modern concepts of the state, began to spread their influences into East Asia. By the time their influence reached "China", a decisive change had been brought about in the history of this region. The invasion of a common enemy coming from an entirely foreign sphere of civilization ignited a sense of common identity or nationalism (racial consciousness), in the minds of the peoples under the Ch'ing's rule. Although it was in only a limited number of them, this sense of nationalism was existing for the first time in the history of this region.

The Opium War of 1840 served as the immediate stimulant. It was then that China emerged as a state, albeit in a vague sense of the term. For the Ch'ing Court at that time never regarded itself as merely the government of a single state. It was the "Celestial Empire" and "the Middle Kingdom", the center of the whole world.

No "state" consciousness in a modern sense of the word had ever existed. In its association with the neighboring peoples the idea of diplomatic relations on an equal basis never occurred to the Ch'ings. Their neighbors had to be either in a lord-and-vassal relationship with them offering tributes every two or three years or else conquered and assimilated. This is a basic pattern of foreign relations of the dynasties that existed in Chinese Continent, not necessarily peculiar to the Ch'ing dynasty alone. It is derived from a traditional concept of life and the world surviving through the ages since the eras of Han, Sui and T'ang. (In fact, Japan, Korea. Vietnam and other neighboring countries have from old time been given similar treatments.)

Britain, a self-appointed champion of the world in the beginning of the 19th century, was no exception. Lord Macartney and Lord Amherst, the British envoys to the Ch'ing, were not regarded as representing the state of Britain which was on the equal level with the state of the Ch'ing. Asked to perform the tributary ritual, i. e., knees and head down on the floor, they were inflamed with anger.

Emergence of a modern national consciousness in China was seen, as pointed out earlier, after the Opium War and the Taiping Rebellion which followed a decade later. The process of its emergence was a very complex one, indeed. It is a fact that Sun Yat-sen, the father of China's modern nationalism, never looked upon the Ch'ing as his own country. It was conspicuous that he was very strongly influenced by the Han consciousness which emerged already at the time of the Taiping Rebellion as against the Manchus. His attempt as not a revolution against a feudal system called the Ch'ing but an effort to drive the alien Manchus out of the country on his way to founding a Han state. Sun Yat-sen's nationalism, at least in an early stage, was no more than the Han's antagonism against the Manchus. Chinese nationalism of which we speak these days is something which emerged in later stages, it is an well known historical fact that Sun Yat-sen, in advancing his cause, realized that the Han nationalism could not convincingly cover such regions as Mongol, Tibet, Sinkiang, Manchuria, etc. To remedy the shortcoming, he coined a new slogan, "the union of five main races in a Chinese Republic", to promote the "Chinese nationalism".

These circumstances suffice to illustrate the similar irrationality of the claims of the governments of Chiang Kai-shek and Mao Tse-tung who set themselves as orthodox successors to Sun Yat-sen. Taiwan was ceded in the days of the Ch'ing and placed outside its control in 1895 and, as pointed out earlier, never became a part of the state territory of the ROC since its founding in 1911. It might be added at this junction that, let alone formality, the ROC is not necessarily a successor to the Ch'ing from the point of view of the philosophy which motivated its establishment as well as of its racial structure. How can a credit being given up by an old man be reclaimed years afterwards by someone who is not even his legitimate child? The credit in this case is the Taiwanese.

However, when it comes to the modern sense of human rights both the ROC and the PRC lag shamefully behind and in their ideas concerning the state territory, the time honored concept still remains intact. The term "Chung-hua", used in the names of both the ROC (Chung-hua Min-kuo) and the PRC (Chung-hua Jen-min Kung-ho-kuo), means a "land of glory in the center of the world". Even among the present-day Chinese, be it Nationalist or Communist, there is a strong tendency to look upon some of the former tributaries of Chinese dynasties as their possessions.

It is well known that Chiang Kai-shek and his regime do not even recognize the Mongolian People's Republic which they still maintain as formally belonging to them. The PRC, in deference to the Soviet Union, its former ally, recognizes the Mongolian People's Republic but the PRC's enmity against the Soviet Union whose plot had taken away a land traditionally belonging to it is often found boldly expressed in the PRC's publications. It should be also pointed out that the Mongols harbor a strong hostility against both the ROC and the PRC are very keenly vigilant.

People well informed of the internal situation of the North Vietnam have pointed out a similar feeling existing among the people in that country. Laos and Cambodia have similar relations with "China". About a century ago, the Ch'ing fought against France for sovereignty over these regions. It will be mistaken if one ignores such an anti-Chinese sentiment among the peoples of these regions. The very attitude of the Chinese towards these former "satellite" states contains an element which causes the peoples of these areas to be repulsive.

Fortunately these peoples escaped Chinese annexation. But to be pitied are Tibetans and the Wigours whose homeland is Chinese Turkestan. Under the Han race's unilaterally declared slogan of the union of five races, the Tibetans were forcibly united to China. Despite of the forcible annexation of the weak by the strong, the world left them to their own fate. Sinkiang, the Chinese term of Turkestan, means a "new frontier", implying that it is a territory newly acquired by China. This area has been inhabited by the Wigours from ancient times. The nomadic Wigours do not seem to possess any concept of national boundaries. In the last days of the Ch'ing, General Tsuo Chung-tang, subdued, or invaded in the present-day terminology, this area, but it was after the founding of the PRC that the Chinese actually succeeded in establishing their rule there. To the Wigours the union of the five races, of which they were one, must have been a nuisance. Many of them fled into the Russian territory and started a resistance against the Chinese aggression. Today this region is one of the most politically unstable parts of the world. The Wigours nationalism can erupt any moment in the confusion of the so-called Sino-Soviet border dispute.

We have seen above how the Chinese concept of territory is derived from certain ideas and feelings. Their unjustifiable territorial demand over Taiwan is nothing but another aspect of their ego-centered thinking. If China were allowed to have her demand on Taiwan in defiance of the Taiwanese protest, the Russians would lose a logical ground to claim against the Chinese their sovereignty over Siberia, the Japanese over Okinawa, and the Mongols over themselves. For Siberia, Mongolia, Okinawa and Taiwan are historically "part of China" and should then be considered as "China's territory proper."

2. The Validity of Sino-Japanese Peace Treaty of 1895 examined

It is known that, even after the downfall of the Ch'ing and the subsequent founding of the ROC, the ROC government was never capable of maintaining effective control over its entire territory. As we have pointed out in the preceding pages, the ROC cannot necessarily be a legitimate successor to the Ch'ing when we consider the philosophy which motivated its establishment. But, supposing we admitted the ROC as such, the favorite theory of both the ROC and the PRC denying the validity of the Sino-Japanese Peace Treaty of 1895, which they brought out in their discussion of the legal status of Taiwan, would be found a false argument in the sense of international law. The following section shall analyze this point.

On December 9, 1941, one day after the outbreak of the Pacific War, the ROC, in the name of Lin Shen, Chairman of the Chinese Nationalist Government, declared war against Japan, stating that all treaties, agreements and contracts between China and Japan would be denounced. The essence of their argument is that the above declaration nullified the treaty of peace between the Ch'ing and Japan which had stipulated for Taiwan's cession to Japan and thus restored the pre-cession conditions.

Generally speaking, a war has the effect of nullifying all treaties existing between countries at war. In this sense this particular section of the ROC's declaration of war against Japan seemed to be redundant. It was only after the issue of Taiwan's legal status that gave rise to much discussion that the section in point arrested attention. The ROC contended, and the PRC agreed, that the portion of the document referring to the treaties between Japan and China should be interpreted as covering the treaties between Japan and the Ch'ing. Mei Ju-ao, once a ROC member of the International Military Tribunal for the Far East, wrote later in the People's Daily on January 31, 1955:

      "At the declaration of war against Japan, China denounced
   all treaties existing between China and Japan. Since Japan's 
   occupation of Taiwan had been based on the Treaty of Shimonoseki
   [Sino-Japanese Peace Treaty of 1895] the ground for the Japanese
   rule of Taiwan was thus lost on the day the declaration was made.
   During the anti-Japanese war Taiwan remained virtually under the
   Japanese occupation. Since the day of declaration of war onward,
   China reserves the right to have recovered full sovereignty to
   Taiwan."

Chen Yu-chin, head of the fourth section of the Chinese Nationalist Party (KMT), referred to the legal status of Taiwan in his report to the KMT's party operation conference on May 10, 1971, as follows:

   "At the declaration of war against Japan, China denounced 
   all her existing treaties with Japan. Thenceforth, Japan 
   lost the legal ground for her control of Taiwan. Theoretically 
   an international treaty cannot be denounced unilaterally by 
   either side, except, as recognized by scholars of international 
   law, such treaties as are forced on by the invaders in the course 
   of a war. The Treaty of Shimonoseki [1895] was concluded by 
   pressure from Japan, and the government of China has a sufficient 
   reason to denounce it. Moreover, Article IV of the Treaty of Peace 
   between the ROC and Japan of 1952 explicitly states that Japan 
   agreed that all treaties concluded between China and Japan before 
   1941 were void. The return of Taiwan is therefore what the 
   international law  defines as 'postliminium' with full recognition 
   and consent of the country concerned (Note 6)."
   

It is true that the Treaty of Peace between the ROC and Japan of 1952 stipulates in Article IV that "all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war". Japan acknowledged that the treaties, agreements and so on between Japan and China as indicated in the article above mentioned were including all of those concluded between Japan and the Ch'ing (Note 7). This, however, should not justify the allegation of both the ROC and the PRC as told by Mei and Chen.

Article IV of the Treaty of Peace between the ROC and Japan is explicit in stipulating that the Sino-Japanese treaties of the past "have become null and void as a consequence of the war" and not of the ROC's statement at the declaration of war. Therefore, the effect of past treaties should be defined in the light of what is called in international law in time of war the "effects of war on a treaty". In international law, there are divergent theories over the definition of such effects of war, 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.

In other words, we can conclude that to the extent that the particular provision in the Sino-Japanese Peace Treaty of 1895 regarding the cession of Taiwan had been fulfilled by the Ch'ing, any portion of the Sino-Japanese Peace Treaty which can be nullified as a consequence of the war should be limited only to those provisions which had not yet been fulfilled in its entirety. The cession provision which had already been carried out was no longer existent and, therefore, could no longer be subjected to nullification.

Let us once again turn our attention to Article IV of the Treaty of Peace between the ROC and Japan of 1952. The article expressly stipulates that the treaties concluded between Japan and China before December 9, 1941 became void, not that treaties between Japan and China became void as from that date. Though lacking any distinctive remark, the Sino-Japanese Treaty of 1895 may be interpreted as to have invalidated all but certain provisions that had already been duly fulfilled; namely, the cession provision, reparation provision, etc. That is to say, all those fulfilled provisions had already become extinct. As is well known, the Ch'ing was required to pay, and had actually paid, the sum of 200 million taels to Japan in the fulfillment of Article III of the Sino-Japanese Peace Treaty. If such fulfilled provisions were to be invalidated altogether, Japan then would have to refund the sum to "China". But the ROC has not claimed any refund, nor has even the PRC made such a demand on Japan. Similarly, if the reparation provisions were declared invalid, Japan would have to refund the 500 thousand taels paid by the Ch'ing in accordance with the Sino-Japanese Agreement of 1874 on the Japanese Expedition to Taiwan and also the 34.8 million taels Boxer Indemnity received from the Ch'ing in fulfillment of Article V of the Final Protocol for the Settlement of the Disturbances of 1900 after the Boxer Rebellion. All these the ROC tacitly regarded "fulfilled provisions" to which the "invalidity clause (Art. IV)" in the Treaty of Peace between the ROC and Japan of 1952 was not to be applied. This is the point where the argument of both the ROC and the PRC denying the validity of the Sino-Japanese Peace Treaty of 1895 proves to be self-contradictory. Since they themselves keep those "fulfilled provisions" outside the range of application of the "invalidity clause", they cannot at least theoretically deny the validity of the cession of Taiwan. The afore-mentioned theories of Mei and Chen are therefore erroneous.

3. Cairo and Potsdam Declarations and the Instrument of Surrender

Those who maintain that Taiwan has been reverted to China and is now a Chinese possession turn to the Cairo Declaration for the legal bases of their arguments. There is no doubt in the joint declaration made by the United States, the United Kingdom and the Republic of China at Cairo on November 27, 1943 that said :

   "It is their [America, Republic of China and United Kingdom]  
   purpose..... 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".
   

The Cairo Declaration was later incorporated into another three-power declaration, the Potsdam Declaration, made on July 26, 1945. Article VIII of the Potsdam Declaration stipulates:

   "The terms of the Cairo Declaration shall be carried out and
   Japanese sovereignty shall be limited to the islands of Honshu,
   Hokkaido, Kyushu and such minor islands as we determine".
   

With the participation of the Soviet Union, the Potsdam Declaration later became a four-power declaration. On August 14, 1945, Japan notified the Allied Powers of her acceptance of the provisions of the Potsdam Declaration and signed the Instrument of Surrender to the Allied Powers in September. The Instrument of Surrender states, in part, that:

   "We hereby undertake for the Emperor, the Japanese Government and
   their successors to carry out the provisions in good faith ....."
   

Both the ROC and the PRC either demand fulfillment of the Cairo and Potsdam Declarations or else regard them as having been carried out. In any event these declarations contain many points of controversy. The following discusses these controversies.

The Cairo and Potsdam Declarations are in essence designed for boosting the fighting morale of the Allied Armies. The portion regarding Taiwan, in particular, is totally inappropriate, as it was intended as a "sugar-coated" pill for the ROC's territorial expansion. The Cairo Declaration stipulates that:

   "All the territories Japan has stolen from the Chinese, such
   as..... Formosa and the Pescadores, shall be restored to the
   Republic of China."
   

But the wording here requires a close examination.

(1) First, the word "stolen" is an instance in point. Until the coming into being of international law on the transfer and acquisition of territory, powerful states had taken and annexed territories of other states at will without any treaty. But since international law is established to stipulate for the transfer and acquisition of dominium, cession is recognized internationally as a means of acquiring new territories. It might invite the criticism of being aggressive, but it is from the point of view of moral principles. In so far as international law is concerned it is deemed appropriate. Particularly so if territorial cession is effected in fulfillment of a treaty of peace. Viewed in this light it is of no legal significance to define the cession of Taiwan effected in accordance with the Sino-Japanese Peace Treaty of 1895 as an act of stealing. We should not look upon Japan's acquisition of Taiwan as an act of stealing any more than we would do America's acquisition of New Mexico by virtue of a treaty after the U. S.-Mexican War of 1848. Thus such a wording is no more than an expression of hatred and retaliation towards Japan.

What then is the use of the word "restoration"? International law on acquisition of territories gives no instance where such a word as "restoration" is used. The Frankfurt Treaty of 1871 caused the cession of Alsace-Lorraine from the French Empire of Louis Napoleon to the newborn Empire of Germany. After World War I the German Empire, in fulfillment of the Treaty of Versailles, ceded Alsace-Lorraine to the Republic of France. It is not "restoration" but "cession" which was used both nominally and virtually. In any treaty no word meaning "restoration" of territories can be found. (The case of Okinawa may be cited as an example to the contrary. But it should be pointed out that Okinawa has never been ceded by Japan to any alien country but is only being occupied by the occupation forces of the United States.)

(2) The Cairo Declaration, and the Potsdam Declaration as well for that matter, steps out of the Allied Powers' war objectives. We quote the Joint Declaration made by the President of the United States and the Prime Minister of the United Kingdom on August 14, 1941 that set forth war objectives as follow:

   "First, their countries seek no aggrandizement, territorial
   or other; Second, they desire to see no territorial changes 
   that do not accord with the freely expressed wishes of the 
   peoples concerned; Third, they respect the right of all 
   peoples to choose    the form of government under which 
   they will live; and they wish    to see sovereign rights 
   and self-government restored to those who have been forcibly 
   deprived of them."
   

The declaration, popularly called the Atlantic Charter, as it was announced somewhere on the Atlantic Ocean, is very noble in contents: Article I stipulates for territorial non-expansion, Article II respects the will of the peoples concerned on territorial alterations, and Article III protects the rights of all peoples. The unimpreachable Atlantic Charter is, however, not an exclusive property of the United States and Britain. A total of twenty six countries, including the United States, Britain, the Soviet Union and the Republic of China signed the Declaration by United Nations on January 1, 1942, in which "the Governments signatory hereto, having subscribed to the common program of purposes and principles embodied in... the Atlantic Charter" jointly upheld it. The preamble to the Declaration by United Nations says that "complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands."

Nevertheless, the United States and Britain had no sooner made so noble a pronouncement than that they hand in hand concluded the Yalta Agreement (February 11, 1945) and sold the Kuriles to the Soviet Union. Also, they decided to give the Soviet Union part of the rights and interests of the Japanese Empire in Manchuria. While helped by her allies the Soviet Union advanced to territories of the neighboring countries in Europe and furthermore to the Baltic countries, namely, Estonia, Latvia and Lithuania. The ROC lost part of her interests in Manchuria but conspired to secure Taiwan as her own lion's share under the cloak of "restoration". The United States procured mandated territories. Britain recovered her colonies, and France and the Netherlands recovered their own colonies, though part of their colonies later declared independence and left them.

In essence, World War II was for either side an imperialistic war between imperialist states. And the Cairo and Potsdam Declarations were no more than declarations of "allocation" made in the process of an imperialistic war. Immediately after the termination of the war, Britain issued a statement to the effect that "the Cairo Declaration merely indicated a course of action in the midst of the war and the status of Taiwan still remains undefined." In a sense this statement by Britain may be taken as an expression of her reflection. Here we shall see the PRC's strange argument.

Since the Chinese Communist Party's victory in the civil war and the subsequent founding of the PRC, the government has been treasuring the Cairo Declaration concluded by the United States and Britain whom it so bitterly detested and Chiang Kai-shek's ROC, the very party against whom the PRC is fighting. Why does the PRC government, the self-approved "liberator of the peoples", treasure a declaration made by the American and British "imperialists" and Chiang Kai-shek whom it looks upon as "enemies of mankind and the peoples"? In short, the PRC government is, too, an expansionist forever seeking after territorial gains.

Luckily Taiwan has not yet been legally passed into the possession of the PRC. The former Allied Powers are still left with a chance of going back to the spirit of the Atlantic Charter.

(3) The Cairo Declaration is not a treaty. International jurists unanimously agree and it leaves no room for doubt that the binding power of a treaty over its signatories is far stronger. Barring a very few cases, a treaty requires ratification while a declaration does not. This clearly shows the difference in binding power between the two. For a declaration to have binding power, to the extent proportionate to that of a treaty, it must follow ratification procedures. For instance, when the Russo-Japanese Joint Declaration was concluded on October 19, 1956, as a temporary measure until the conclusion of a full treaty of peace, ratification procedures were followed by both sides to attach authority proportionate to that of a treaty to the Declaration. In the case of the Cairo Declaration, none of the signatories has followed ratification procedures. Therefore, it only indicates a future course of action and does not legally bind the countries which participate in the declaration.

The Cairo Declaration comprises two sections: first, the obligations of the signatories are stipulated and, second those of the non-signatories are set forth. The following section defines the obligations of the signatories:

   "The Three Great Allies expressed their resolve to bring
   unrelenting pressure against their brutal enemies by sea, 
   land and air..... They covet no gain for themselves and 
   have no thought of territorial expansion."
   

It is a mutual pledge of the three countries, whereby they impose obligations to one another, which it is their duty to observe. The Cairo Declaration was later incorporated into the Potsdam Declaration, and, since the Soviet Union participated in the latter she is equally obligated to observe it.

The other section reads:

   "It is their purpose that Japan shall be stripped of all the
   islands in the Pacific which she has seized or occupied since 
   the beginning of the first World War in 1914, and that all the
   territories Japan has stolen from the Chinese, such as.....
   Formosa, and the Pescadores, shall be restored to the Republic
   of China. Japan will also be expelled from all other territories
   which she has taken by violence and greed."
   

This is a demand on or an action to be taken against the nonsignatory, namely, Japan. International law provides that any stipulation in a treaty regarding a third power cannot bind the third power. If we regard the Cairo Declaration as something which might be treated as a treaty, this particular section of the declaration cannot bind a third power. Moreover this section does not stipulate for mutual transfer of interests among the signatories. If a country, having promised to pass onto another its own interests, failed to keep her promise, she might be open to due criticism. If, for instance, the United States promised to present Hawaii to the ROC if the latter made efforts to win the war and yet later violated pledge, the United States could be accused of non-fulfillment of the declaration. But any stipulation for the transfer of Taiwan which neither the United States nor Britain possesses should have no legal binding power. Those governments and people who demand fulfillment of the Cairo Declaration unconsciously or deliberately lay emphasis only on the latter section which has no binding power where it reads: "Formosa and the Pescadores shall be restored to the Republic of China" and refuse to refer to the former section where the signatories' obligations are set forth. In the Cairo Declaration, Generalissimo Chiang Kai-shek of the Republic of China, too, expressed his "resolve to bring unrelenting pressure against their brutal enemies by sea, land, and air". It is only that his "resolve" failed to accomplish anything by sea and air.

Since the Soviet Union was signatory to the Potsdam Declaration into which the Cairo Declaration had been incorporated she was supposed to be under obligation to observe the Cairo Declaration. It is, nevertheless, doubtful whether the Soviet Union cooperated in restoring to the Republic of China "all the territories Japan has stolen from the Chinese, such as Manchuria....." as stipulated in the Cairo Declaration. It is even more doubtful if the Cairo Declaration allies had acted up to their determination expressed in the Declaration:

   "The afore-said three great powers, mindful of the enslavement
   of the people of Korea, are determined that in due course Korea
   shall become free and independent."
   

The Soviet Union did not easily hand over to the ROC Manchuria then under her occupation and, worse still, removed materials back to the Soviet Union. Korea was made a split state by the intention of the United States and the Soviet Union. Today no voice is heard coming from any quarters to accuse such infringements of the declaration. This clearly shows that the Cairo Declaration is merely a general proclamation, a direction for its allies to pursue.

It is unfair indeed to bring forward the Cairo Declaration and so forth only in relation to the status of Taiwan. Such is but an argument done for argument's sake.

(4) The "Instrument of Surrender" must wait arrangements for a treaty of peace for its full execution. The Cairo Declaration is a unilateral proclamation made by the three powers, the United States, Britain and the ROC, and Japan is not bound by it. However Japan accepted the provisions of the Potsdam Declaration and, since the Cairo Declaration is incorporated into it, Japan is indirectly bound by it. In the Instrument of Surrender signed on September 2, 1945 by the Japanese plenipotentiary on board of the battleship "Missouri" in Tokyo Bay, Japan formally accepted the provisions of the Potsdam Declaration in which had been incorporated the Cairo Declaration. The validity of the Cairo Declaration aside, Japan is under an obligation to cede Taiwan to the ROC according to the Instrument of Surrender. However, the case of Korea clearly shows that the disposition of territory does not take effect automatically at the signing of an instrument of surrender and new arrangements are later required to effectuate it even though Japan's actual control of the respective area does not continue farther on.

The Cairo Declaration provides for Korea's independence but, for the sake of formality, an international conference was convoked later on. In December, 1945, the Moscow Conference of the Foreign Ministers, attended by the United Kingdom, the United States and the Soviet Union was held to discuss on the provision for Korean independence which was to be incorporated in the forthcoming treaty of peace with Japan. The ROC later joined in the resolution of the foreign ministers of the three countries. The San Francisco Peace Treaty signed in 1951 completed legality in which Japan, "recognizing the independence of Korea, renounced all right, title and claim to Korea" (Article 2, a). Therefore, we can say a similar future arrangement is required for the disposition of Taiwan. We shall now examine the contents of the San Francisco Peace Treaty and the Treaty of Peace between the ROC and Japan.

4. Peace Treaties with Japan

So far two treaties of peace have been signed with Japan : the San Francisco Peace Treaty and the Treaty of Peace between the ROC and Japan. The San Francisco Peace Treaty was signed on September 8, 1951 by forty-eight countries and took effect on April 20 the following year. Of the former Allied Powers--the United States, the United Kingdom, the Soviet Union and the ROC--the Soviet Union signified her dissatisfaction at the non-participation of the PRC and refused to sign the treaty. The ROC was unable to take part in the treaty on such an account dealing with the problem of Chinese representation which arised in the wake of the ROC's expulsion from the mainland and the subsequent founding of the PRC in its former territory--Chinese mainland.

Needless to say, the Soviet Union and the ROC, who did not sign the said treaty of peace, are not bound by it. Only Japan and the forty-eight signatories of the treaty are bound by it. On the territorial issue of Taiwan, the San Francisco Peace Treaty stipulates as follows:

"Japan renounces all right, title and claim to Taiwan and the Pescadores" (Article 2, b).

This provision is important for the following reasons:

(1) The issue of Taiwan's legal status had hitherto stimulated a variety of arguments and proclamations but this was the first concrete provision in the form of a legally binding treaty.

(2) With Japan's renunciation of Taiwan, Taiwan was placed outside the sovereignty of Japan legally. Since Japan renounced not only her right and title to Taiwan but territorial claim as well, Japan will have no territorial claim to Taiwan in the future.

(3) Once Japan renounced Taiwan in the San Francisco Peace Treaty she cannot incorporate in a treaty of peace she might conclude with another country in the future any provision for transfer of Taiwan to that country, for Taiwan no longer belongs to Japan and therefore she has no more right to dispose of Taiwan. In the event of Japan concluding afterwards a treaty of peace with non-signatories of the San Francisco Peace Treaty and ceding Taiwan to the respective country, she would be regarded as having granted it greater interests than to the parties to the San Francisco Peace Treaty and would have to grant just much to these countries. For the Treaty in Article 26 provides as follows on this question:

   "Should Japan make a peace settlement or war claims settlement
   with any State granting that State greater advantages than those
   provided by the present Treaty, those same advantages shall be
   extended to the parties to the present Treaty."
   

　 (4) By the San Francisco Peace Treaty, Japan fulfilled all obligations, including the disposition of Taiwan, to the Allied Powers. But separate treaties of peace had to be concluded with the Soviet Union and the ROC who were not bound by the San Francisco Peace Treaty.

Thus in 1952 Japan concluded a peace treaty with the ROC and later on October 16, 1956, the Russo-Japanese Joint Declaration, which was "treated as a treaty of peace". Then when Japan was unable to sign a formal treaty with the Soviet Union with whom she had not reached an agreement on her northern territories, it was inked in Moscow by the representatives of both countries and the exchange of ratifications was completed in Tokyo on December 12. Neither the Treaty of Peace with the ROC nor the Joint Declaration with the Soviet Union stipulated to which country Taiwan should be ceded and, in the light of the San Francisco Peace Treaty, neither obviously reserves the right to cede Taiwan. If the Treaty of Peace between the ROC and Japan should provide for cession of Taiwan to the ROC or the Russo-Japanese Joint Declaration should provide for its cession to either the Soviet Union or any other country, Japan would have to grant equal advantages to the forty-eight signatories of the San Francisco Peace Treaty and Taiwan would become a common possession (condominium) of those countries. There are arguments in some quarters contending that since Japan concluded a peace treaty with the ROC and there she recognized Taiwan as a territory of China, therefore Taiwan legally belongs to the ROC. The Central Daily News, Kuomintang (KMT, literally the Chinese Nationalist Party) official newspaper, said in its editorial on May 1, 1971, as follows:

   "Since Japan recognized in the Treaty of Peace with the ROC
   renouncing of her sovereignty over Taiwan, the problem of
   Taiwan's status is already resolved. Furthermore, the Japanese
   delegate stated in the Exchange of Notes between Japan and the
   ROC No. 1, April 28, 1952, that, in respect of the ROC, the
   provisions of the peace treaty should be applicable to all the
   territories which are now or which may hereafter be under the
   control of the ROC. In the light of the above-mentioned treaty
   of peace and the exchange of notes Taiwan clearly belongs to the
   ROC."
   

Is this claim by the ROC legitimate? We shall raise some points in the following in order to examine this claim:

(1)The Treaty of Peace between the ROC and Japan in its territorial provision (Article II) only stipulates that:

   "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 renounced all right,
   title and claim to Taiwan (Formosa) and Penghu (the
   Pescadores)...."
   

It means that Japan only renounced Taiwan and the provision made no mention of the country to which Taiwan was to be renounced. In other words, the status of Taiwan, as it stands now, is undefined. It is no logic to say that since the treaty was concluded with the ROC and the ROC is the beneficiary of the treaty, the ROC should receive Taiwan as renounced by Japan. Article II of the Treaty of Peace between the ROC and Japan is based on the San Francisco Peace Treaty, in which Japan similarly renounced Taiwan. If any of the signatories of the Treaty concluded with Japan could be logically regarded a beneficiary entitled to the interests in Taiwan as renounced by Japan, it would follow that the sovereignty over Taiwan must be shared equally among the signatories of the San Francisco Peace Treaty.

(2) It is true that exchanges of notes were passed between Japan and the ROC regarding the area to which the Treaty of Peace between the ROC and Japan should be applied. The Japanese text of the Exchange of Notes reads as follows:

   "...the present Treaty shall in respect of the Republic of China
   be applicable to all the ryoiki (領域) which are now, or which
   may hereafter be, under the control of its Government."
   

Here, the part where the term ryoiki is used reads ling-t'u (領土)in the Chinese text and in the one in English, to which a reference should be made if any doubt about interpretation arises, it reads "territories". The ROC insisted on the use of the more explicit term ling-t'u (literally, land), while Japan steadfastly refused it and instead stuck to the term ryoiki (literally, territory) to suggest a different meaning. In the course of negotiations for the treaty of peace with Japan, the ROC in fact was aware and agreed that the term "territories" used in the Treaty would be different in meaning from "state territories" in the possession of a sovereign state. This point was made clear in the course of deliberations in the Japanese National Diet prior to the ratification of the Treaty of Peace with the ROC. One of the Japanese policy maker on the peace treaty with the ROC, Mr. Eiji Wajima, testified at the House of Representatives Standing Committee for Foreign Affairs on May 23, 1952, as follows:

   "The present situation [of the ROC] is somewhat different from
   any normal circumstances. The position of the ROC controlling
   Taiwan is somewhat different from that of any other state exercising
   sovereignty over its land or state territories or territorial
   waters. (Note 8)"
   

At the committee meeting on the same day Mr. Wajima further testified:

   "In common international practice some cases are found where the
   term 'territory' is not so strictly interpreted as to mean 'state
   territory'. As it is used in the present treaty, the term is not
   to be taken so strict as to mean 'state territory'. It was from
   this point of view that we translated into the Japanese term
   'ryoiki'. 'Ryoiki' is broader in meaning than 'state erritories'.
   Both parties agreed that it should be rendered ling-t'u (land)
   in the Chinese text."
   

In any event the term "territories" in the original English text was rendered ryoiki in the Japanese text and ling-t'u in the Chinese, and thus two different expressions were employed for otherwise one single term. But even if we interpreted ryoiki as meaning ling-t'u, the Exchange of Notes could not establish Japan's cession of Taiwan to the ROC. For even if Taiwan were deemed to be a territory which is "now under the control of the [ROC] Government", it could not be the "state territories" of the Republic of China, just as the "Ryukyu Islands are the territories which are now under the control of the United States" but are not the "state territories of the United States". If we read the afore-mentioned Exchange of Notes carefully, we will see that it is only a provision for the extent of application of the treaty not for "state territories". We should also note in this connection that the extent of application of the Treaty does not coincide with the extent of "state territories".

As a matter of fact there are territories in the possession of a country to which a treaty concluded by the country cannot be applicable. The amended treaties concluded in 1894 by Japan with the United Kingdom and France, for instance, were not applied to a number of territories of the United Kingdom and France. On the contrary, there often are some territories that are not in the possession of a certain country but only happen to be under control of the country to which a treaty effected by the country is applied. An instance in point is the West Pacific islands, mandated territories of the United States. The collective defense treaties concluded between some Asian countries and the United States are applicable to these islands. In essence, the clause "areas to which a treaty is applicable" is no synonym of "state territories". It is improper to regard an area a possession of a certain country only because a treaty concluded by the country is applicable to that particular area. Therefore it is improper to say that Taiwan is a state territory of the ROC just because a treaty concluded by the ROC is applicable to Taiwan.

(3)Article X of the Treaty of Peace between the ROC and Japan stipulates as follows for the nationality of the Taiwanese:

   "For the purpose of the present Treaty, the nationals of the
   Republic of China shall be deemed to include all the inhabitants
   and former inhabitants of Taiwan (Formosa) and Penghu (the
   Pescadores) and their descendants who are of the Chinese
   nationality in accordance with the laws and regulations which
   have been or may hereafter be enforced by the Republic of China
   in Taiwan (Formosa) and Penghu (the Pescadores)...."
   

Simply stated, the "nationals of the ROC shall be deemed to include the Taiwanese." The use of the words "deemed" calls for attention. This is not an affirmative definition of the Chinese nationality of the Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as the ROC nationals. On this point, Mr. Eiji Wajima, Director of the Asian Affairs Bureau, the Japanese Ministry of Foreign Affairs, told the House of Representatives Standing Committee for Foreign Affairs (May 23, 1952), in his capacity as government member, that the status of Taiwan remained undefined and that since the inhabitants of Taiwan who were formerly Japanese nationals lost the Japanese citizenship, and unless some measure being taken, they were not able to travel to Japan. Therefore, they were "deemed" to be Chinese nationals (Note 9). At the same committee on May 30, Mr. Kanichiro Ishihara, Vice Minister of Foreign Affairs, was more explicit in his answer to a question raised by Mr. Hyakuro Hayashi, a member of the Standing Committee:

   Hyakuro Hayashi : "When it says 'deemed to conclude', how
   different is it from saying 'are nationals' ?"

   Ishihara: "The word 'deemed' is used here because the territorial
   issue has not yet been brought to a final resolution." (Note 10)
   

(4) In the Treaty of Peace between the ROC and Japan the term "residents" is clearly distinguished from "nationals".

To refer to the Japanese the treaty says "Japanese nationals", but it does not call the Taiwanese "Chinese nationals" but instead, it prefers the term "residents". This shows that the Taiwanese are not "Chinese nationals" but only "deemed" to be such. Article III of the Treaty is illustrative of this point:

   "The disposition of property of Japan and of its nationals in
   Taiwan...., and their claims, including debts, against the
   authorities of the Republic of China in Taiwan and the residents
   thereof, and the disposition in Japan of property of such
   authorities of residents and their claims, including debts
   against Japan and its nationals, shall be the subject of special
   agreements between the Government of Japan and the Government of
   the Republic of China."
   

Arguments of both Japan and the ROC in the stage of negotiations for the Treaty of Peace between the ROC and Japan have been made clear in the course of deliberations in the Japanese National Diet. The ROC persisted in its demand for clearly identifying Taiwan as its state territory, while Japan refused to comply with the demand. Examining the utterances of Katsuo Okazaki, Foreign Affairs Minister, Kanichiro Ishihara, Vice Foreign Affairs Minister, Eiji Wajima. Director of the Asian Affairs Bureau and those others who took part in the conclusion of the Treaty, we can summarize Japan's position on the question of the sovereignty over Taiwan as follows:

   (A) Though the ultimate status of Taiwan is expected to reside
       in the ROC, it still remains undefined in the light of
       international law. 
   (B) Japan renounces Taiwan but its status is subjected to
       future resolution by the Allied Powers.
   (C) Which countries constitute the "Allied Powers" depends on
       the concept of such "Allied Powers". It is not all that clear
       whether the "Allied Powers" are the four major Powers (the
       United States, the United Kingdom, the ROC and the Soviet Union)
       or the nine countries (besides the above four, Australia,
       Canada, France, Netherlands and New Zealand) that were aboard
       the USS Missouri to accept Japan's instrument of surrender,
       or all the thirteen countries (the above nine plus India, the
       Philippines, Pakistan and Burma) that took part in the Far
       Eastern Committee. The "Allied Powers" would be such as the
       Allied Powers consider appropriate.
   (D) It is true that the ROC is actually controlling Taiwan and
       that the sovereignty seems to be exercised partially over
       Taiwan.

   (E) Taiwan is a territory under the control of the ROC but not
       a state territory of the ROC. The right of exercising
       administrative authority over a certain territory does not
       mean in possession of the respective territory as a part of
       state territory. In comparison, the meaning of "territory" is
       broader than "state territory".
   (F) As regards the term "territory" in the original attested text
       of the Treaty in English, both Japanese and Chinese
       Plenipotentiaries agreed to translate the term "territory" as
       ryoiki in the Japanese text, and ling-t'u in the Chinese text.
       It should not be taken to mean that Japan recognized Taiwan
       as a state territory of the ROC.
       

As the afore-mentioned Diet statements clearly show, the ROC was fully aware, throughout the negotiation stage, of the position of Japan on the territorial problem of Taiwan. Sufficiently aware of it, the ROC went on with the signing and ratification of the Treaty.

While studying the Treaty of Peace between the ROC and Japan we must take special note of the fact that in so far as the ROC is concerned, Japan has fulfilled all the obligations in respect of the territorial problem of Taiwan. It is true that at the stage of signing the treaty of peace with Japan, the proper state territory of the ROC was limited to the islands of Quemoy and Matsu and the Chiang Kai-shek regime was the government to represent it. It is true, too, that the ROC did not and could not represent the people on the mainland China who were then nationals of the PRC, however the country the ROC, which declared war against Japan in 1941 and surrendered by Japan in 1945, still existed in 1952 and concluded a peace treaty with Japan. On the ground of Japan's Instrument of Surrender, the ROC reserves the right to take over Taiwan from Japan and Japan is under an obligation to hand it over to the ROC. However, that ROC was only able to have Japan agreed to renouncing Taiwan means that, as far as the ROC was concerned, she, even if not completely, gave up "legal possession of Taiwan". Japan, on the other hand, only renounced Taiwan to satisfy the ROC and fulfilled all the obligations regarding Taiwan as was stipulated in the Instrument of Surrender.

It is necessary at this point to consider the problem of "peace treaty" between Japan and the PRC.

Is Japan then obligated to conclude a treaty of peace with the PRC? Viewed in the light of international law, Japan is not obligated to do so.

   (1) It was the ROC that declared war against Japan, and the
       founding of the PRC was four years after the end of the war.
       There is no fact that Japan has ever been at war with the PRC.
       The Communist Party was in fact at war with Japan but only as
       a Communist Party within the ROC. Japan never treated it as
       a "belligerent community" independent of the ROC.

   (2) It is important that at the point of the coming into effect
       of the Treaty of Peace between the ROC and Japan on August 5,
       1952, as many as forty countries had, though motivated by a
       grand fiction, recognized and maintained continuous
       diplomatic relations with the ROC (whereas only twenty-six
       countries had recognized the PRC), and the ROC Government
       held a seat at the United Nations as the representative of the
       ROC. That is to say, the state of war was ended between Japan
       and the ROC, consequent upon the conclusion of a treaty of
       peace between the ROC and Japan against whom the ROC had
       declared war.

   (3) The tenure of office of President Chiang Kai-shek elected
       on the basis of the ROC Constitution was due to expire in May,
       1954, and therefore it was legally, if not politically
       appropriable, proper of Japan to have concluded a treaty of
       peace with the ROC Government of President Chiang Kai-shek in
       1952. (Note 11)
       

Viewed from these angles Japan is not, in our opinion, obligated to conclude a treaty of peace with the PRC. It is a fact that Japan afflicted sufferings on the people in the mainland of China, and if Japan is disposed, be it from moral or political motives, to compensate such damages done to the people there, it is a matter of paying reparations and not at problem of peace treaty.

Of course there is no reason why Japan should not conclude a peace treaty with the PRC. Two Chinas emerged after the founding of the PRC in October, 1949: one, the PRC, controlling as its state territories the China mainland which had hitherto been controlled by the ROC and the other, the ROC, ruling over Quemoy and Matsu as its own state territories. The treaty of peace with the ROC is, as we have earlier pointed out, in itself appropriate. It is also appropriate to look upon and to conclude a peace treaty with the PRC as a split state of the ROC or as a new state having gained independence from the ROC. There are in fact precedents for this, Indonesia, the Philippines, Vietnam and others which had been colonies during the war gained independence from the respective suzerain state and participated in the San Francisco Peace Treaty.

Generally speaking, whether or not to conclude treaty of peace with the PRC would be a choice Japan is to make and it would be subject to Japan's future relations with the PRC. However, under the provisions of Article 26 of the San Francisco Peace Treaty and in consideration of balance among the forty-eight signatories of the San Francisco Peace Treaty, it is not, as pointed out earlier, possible to cede Taiwan to the PRC.

5. The Mutual Defense Treaty between the United States of America and the Republic of China

The Mutual Defense Treaty between the U. S. and the ROC which was signed in December, 1954 and took effect as from March the following year is also used by the ROC, as a basis for her territorial claim, an improper claim, indeed, to Taiwan. Even if the United States ever recognized the ROC's possession of Taiwan, such recognition given by party with no right to single-handedly dispose of Taiwan, would have no effect whatsoever. In point of fact, the Treaty does not contain such provision. Provisions which might cause misunderstanding are as follows:

   Article II: In order more effectively to achieve the objective
   of this Treaty, the Parties separately and jointly by self-help
   and mutual aid will maintain and develop their individual and
   collective capacity to resist armed attack and communist
   subversive activities directed from without against their
   territorial integrity and political stability.

   Article V: 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.

   Article VI: For the purpose of Article II and V, the term
   "territorials" and "territories" shall mean in respect of the
   Republic of China, Taiwan and the Pescadores; and in respect of
   the United States of America, the island territories in the West
   Pacific under its jurisdiction."
   

A careful reader will notice that the Treaty tactfully avoids to recognize in clear terms Taiwan as a possession of the ROC. Article II does not deal with the problem of Taiwan legal status but only refers to preventing the communists' subversion of "territorial integrity and political stability". "Territorial integrity" is a term which implies that the defense of not only the state territories of each country but also other territories under its contro1 or trusteeship are included. Evidence for this is that, as clearly seen in Article VI, the territorial integrity of the United States includes the defense of the Micronesian islands, though of all the islands in the West Pacific Area, Guam is the only state territory of the United States. Furthermore, if we refer to both Articles V and VI we will see that the "territories" of the United States and the ROC as defined in Article V include those areas under their control and trusteeship, and are not, strictly speaking, supposed to be "state territories" as such.

Now let us examine the Exchange of Notes of December 10, 1954, between John Foster Dulles, Secretary of State of the U. S. and George K. C. Yeh, Minister of Foreign Affairs of the ROC, which contained the following:

   "The Republic of China effectively controls both the territories
   described in article VI of the treaty.... and other territory.
   It possesses with respect to all territory now and hereafter under
   its control the inherent right of self-defense."
   

In this Exchange of Notes, the United States recognized ROC's effective control of Taiwan. Here we should take care to note that it only considers the degree of the ROC's control to be effective and does not confirm Taiwan to be the ROC's state territory" in the similar sense that the United States now effectively controls her territories in the west Pacific Area such as Lamotrek Islands but Lamotrek Island is not a "state territory" of the United States.

What then is the implication of the part where it says that the ROC "possesses with respect to all territories now under its control the inherent right of self-defense"? This too does not confirm Taiwan to be a state territory of the ROC. In fact the "rights of self-defense" are not applicable only to the state territories of a sovereign state. The rights of self-defense are applicable to such areas as the administrating authority extends. The United States, for instance, holds the administrative authority over Okinawa and in the event of an armed attack on Okinawa the United States can exercise her rights of self-defense to effect a counterattack. But it does not mean that Okinawa is a state territory of the United States.

As we have discussed earlier, "territories" imply a broader area than "state territories".

A sovereign state may possess (1) state territories which include land, waters and air over all of which the sovereign state holds an exclusive sovereignty the state is able to cede any of such territories or dispose of them at will. The territory of a sovereign state may include (2) non-state territories and as long as any restrictions are not imposed on the land, water, and air the sovereign state reserves the right to exercise an exclusive control but not to cede them at will to other states. The ROC position to Taiwan is the case in point. The United States currently has a number of island in the West Pacific Area under trusteeship and maintains an exclusive control over them but cannot in the same sense cede them to any other states without due agreement of the United Nations.

It should be clear now that the Exchange of Notes between Dulles and Yeh, not to mention the Mutual Defense Treaty between the U. S. and the ROC, does not recognize Taiwan to be the ROC's state territory. In fact, throughout the negotiations for the Mutual Defense Treaty, the ROC made every effort to establish its possession of Taiwan but the United States rejected such a move.

On December 1, a few days before his delivery of the Exchange of Notes to George K.C. Yeh, John Foster Dulles made it abundantly clear at a press conference that "sovereignty over Formosa and the Pescadores has never been settled.... The future title is not determined..... Therefore, the judicial status of these islands [Formosa and the Pescadores] is different from the judicial status of the off-shore islands [ Quemoy and Matsu] which have always been Chinese territory." The Exchange of Notes of December 10th was composed with such an observation in view and only proves that the United States had never recognized Taiwan to be a state territory of the ROC. On the legal status of Taiwan, the United States has consistently maintained the view that it remained undefined ever since President Harry S. Truman declared on June 27, 1950, that the "determination of the future status of Formosa must await the restoration and security in the Pacific, a peace settlement with Japan, or consideration by the United Nations." While the Mutual Defense Treaty between the U. S. and the ROC was under deliberation at the U. S. Senate, some feared that the Treaty might come to have the effect of having the United States shift her policy of regarding the status of Taiwan undefined and recognize ROC's possession of Taiwan. So the Senate Foreign Relations Committee inserted in its report that "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"(Note 12).

6. Legal Aspects of ROC's Rule of Taiwan.

To identify Taiwan as a Chinese territory on the ground of the ROC'S effective rule of Taiwan since October 1945, raises a host of problems. General Douglas MacArthur, Supreme Commander of the Allied Powers, issued on September 2, 1945, "General Order No. 1". Article I (a) of the Order reads:

   "The senior Japanese Commanders and all ground, sea, air and
   auxiliary forces within China, (excluding Manchuria), Formosa and
   French Indo-China North of 16 degrees North latitude, shall
   surrender to Generalissimo Chiang Kai-shek."
   

Acting on the Order, the ROC Army moved into Taiwan. The Japanese armed forces in Taiwan and the administration authorities surrendered to a delegation sent by Chiang.

On September 20, of the same year, the ROC issued the "Regulations by the Office of Administrator General in Taiwan Province", made the Office of Administrator General the topmost administrative organ in Taiwan and placed it under the Administrative Yuan (the cabinet of the ROC).On October 25 Chen Yi, Administrator General and concurrently Supreme Commander in Taiwan, performed the Ceremony of Surrender and declared annexation of Taiwan to the Republic of China. For twenty-six years since the ROC has ruled Taiwan.

The ROC makes a pretext of such circumstances to contend that its possession of Taiwan is a fait accompli, and, arguing that no protest has been voiced by any nation, insists that its possession of Taiwan is completed in the light of law as well as of facts.

But in so far as the matter of territorial annexation and effective rule is concerned an identical situation is found in the treatment of the Kuriles by the Soviet Union. Unless the Soviet Union's legal possession of the Kuriles is to be recognized by Japan, one cannot be expected to accept the case of Taiwan which was once subjected to Japanese occupation under similar circumstances.

Many nations have also voiced their reservations regarding the legal status of Taiwan. Sir Anthony Eden, the British Foreign Minister, stated on February 4th, 1955 as follows:

   "In September 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. Under the Peace Treaty of April, 1952, Japan
   formally renounced all right, title and claim to Formosa and the
   Pescadores; but again this did not operate as a transfer to Chinese
   sovereignty, whether to the People's Republic of China or to the
   Chinese Nationalist authorities. Formosa and the Pescadores are
   therefore, in the view of Her Majesty's Government, territory the
   de jure sovereignty over which is uncertain or undetermined. (Note
   13)"
   

France held a similar view concerning the issue. As reported in The New York Times (April 24, 1964), the then Premier Georges Pompidou maintained that as a result of the Treaty of Peace in which Taiwan was detached from Japan, but it was not attached to anyone, its legal status became undetermined. A U. N. representative of Ireland went further in the 21st Session of the U. N. General Assembly to state as follows:

   "We believe that the Chinese have as little right to pretend that
   the nation of Formosa is an integral part of the state variously
   referred to as 'China', the 'Republic of China', and the 'People's
   Republic of China'. (Note 14)"
   

As for Japan, the Yoshida Administration maintained since 1951 the official position of the Japanese Government to regard the status of Taiwan as undefined. Later the Ikeda Administration also continued to maintain the same stand and Prime Minister Ikeda himself made this point clear at the House of Representatives Budget Committee on February 29, 1964 (Note 15). The Sato Administration which succeeded from Prime Minister Ikeda was closely attached to the ROC but at the question of Taiwan's legal status viewed strictly from the viewpoint of international law and often declared that the status of Taiwan was not yet determined. In fact some opposition parties, notably the Japan Democratic Socialist Party, also share the same view. It is note-worthy that members of the opposition parties, other than the DSP, have spoken in a similar tone at the Japanese National Diet. Though the views of the opposition parties have been changed in recent years, we introduce below for reference their viewpoints in 1952 or thereabouts:

   Hisao Kuroda, M. P. (Labor and Farmers' Party) At the 
   Committee for Foreign Affairs, House of Representatives, 
   May 23, 1952:
   "Taiwan and the Pescadores are at present terra nullius 
   (unclaimed territories). The sovereignty or territorial 
   rights of the Republic of China does not exist in Taiwan 
   and the Pescadores. Article II (b) of the San Francisco 
   Peace Treaty or Article II of the Treaty of Peace between 
   the ROC and Japan only provides that these areas have left 
   the sovereignty of Japan, and its eventual status has not 
   yet been  defined. That is how we look at the matter. 
   It is true that the Cairo Declaration touches upon the 
   status issue, but it only sets out how it is expected to be. 
   Some concrete treaty must be introduced to finalize it. (Note 16)"
  

   Yobun Kaneko, M. P. (Japan Socialist Party Lobby No. 4 
   'Left'.) At  the Committee for Foreign Affairs, House of 
   Councilors, June 13, 1952:
   "It is very doubtful if Taiwan can be called 'China'. 
   It might in due course be annexed to China by the Cairo 
   and Potsdam Declarations, but it is not a Chinese territory 
   at the present moment. The same applies to the Taiwanese 
   contention that it belongs to them. As you know Taiwan was 
   invaded by China in 1683 and before that it had been an 
   independent state at one time and under Japanese rule at 
   another. In the present circumstances Taiwan is neither a 
   Chinese territory nor a Japanese territory. So the Taiwanese 
   are neither Japanese nor Chinese. From this point of view the 
   Taiwanese people observe February 28th as their Independence 
   Day and keep up their independence movement (Note 17)".

   Satoko Toganou, M. P. (Japan Socialist Party) The 
   Standing Committee for Foreign Affairs, House of 
   Representatives, June 6, 1952:
   "....the status of Taiwan and the Pescadores has not yet 
   been clearly defined..... The status of Taiwan and the 
   Pescadores which Japan had renounced is a matter which 
   should best be left for the Taiwanese people to resolve. 
   The status of Taiwan may be decided through a free and 
   fair plebiscite of the people of Taiwan at their free will 
   to gain independence. Alien governments should not be 
   allowed to come and establish an artificial rule over 
   Taiwan or to distort the situation there. (Note 18)"
   

IV. Determination of the Legal Status of Taiwan

As we have seen, the claim by the ROC and the PRC that Taiwan is a state territory of "China" has no legal basis. What we see is a naked ambition for territorial gains. We may justly say in conclusion that historically Taiwan is not an inherent possession of China but a land which belongs to the Taiwanese who have lived there for centuries. Postliminium should be rightly limited to restoring the state territories immediately prior to the outbreak of the war. Any attempt to go farther back beyond this point would only creates fresh disputes and, therefore, is not recognized by international law. In the case of the War between the ROC and Japan, it should be properly limited to restoring the state territories existing at the outbreak of the Sino-Japanese Incident in 1937 or, at most, the Manchurian Incident in 1931. It would be improper to go as far back as the War between the Ch'ing and Japan in 1895. If it were possible to go back indefinitely, we could even turn back to l683 the downfall of the Koxinga dynasty, the ruined country of the Taiwanese. Japan's possession of Taiwan was established after due legal procedures and the transfer of Taiwan between Japan and the Ch'ing in 1895. Therefore, even if the Declaration of War against Japan of 1941 and the provisions of the Treaty of Peace between the ROC and Japan of 1952 invalidated the Sino-Japanese Peace Treaty of 1895, Japan's possession of Taiwan, which had already been effected, could not be annulled. It should then follow that the invalidation of the Sino-Japanese Peace Treaty does not automatically make Taiwan a territory of "China". The Cairo Declaration only indicates a direction of action and does not bind its signatories. In the Instrument of Surrender Japan accepted the declaration, but later in the two treaties of peace, Japan reached an agreement first with forty-eight countries including the United States and later with the ROC without making any reference to the status issue. The Mutual Defense Treaty between the U. S. and the ROC of 1954 by nature does not bind other nations, and, what is more, even this treaty does not clearly define Taiwan as a state territory of the ROC. It is a fact that the ROC has maintained an effective control of Taiwan since October 1945, but a number of countries have expressed doubt over the ROC's possession of Taiwan. What is most important is that the Taiwanese have consistently rejected control by any Chinese government.

The Taiwanese believe that Taiwan should be restored to the Taiwanese themselves. The population of Taiwan today totals 15 million of which 13 million are natives of Taiwan who have inhabited there for the past four hundred years and 2 million are mainlanders who fled from China after the Second World War. The 13 million Taiwanese fervently aspire for a republic of Taiwan independent of China. The 2 million mainlanders who chose to flee to Taiwan refusing to be subjected to the Communist rule have been the body of the ROC and many of them are no less abhorrent of submitting to the rule of the PRC. Meanwhile, it is an obvious fact that the ROC has not a chance to overthrow the PRC, and, more so, any form of an independent state in Taiwan, independent of the PRC, should be in the interest of the mainlanders in Taiwan as well.

The ROC Government headed by Chiang Kai-shek has till this day been strongly against the idea of independent Taiwan and consistently suppressed the movement. Then why is Chiang Kai-shek against the independence of Taiwan? The reasons are very clear.

President of the ROC is elected by the members of the National Assembly in accordance with the Constitution of the ROC by all of the people. These members of the National Assembly were elected in 1947 when the ROC was still in control of the Chinese mainland and their terms of office expired in 1953.

Yet they have not been re-elected since and their terms of office maintained for the past twenty-four years. The Legislative Yuan (equivalent to a congress or a parliament) was elected in 1948 and their terms of office expired in 1951. However, they have served illegally their terms of office for the past twenty-three years without any re-election too. Chiang Kai-shek has said by way of explanation that elections would not be held until they have succeeded in counter-attacking the mainland. If and when an Independent Taiwan becomes a reality, the National Assembly would have to be re-elected in Taiwan. Should it happen, the Taiwanese of the Assembly supported by 85 percent of the total population would command an overwhelming majority, meaning that Chiang Kai-shek or his son or whoever representing him would stand little chance of being elected President.

All these factors account for the Chiang Kai-shek regime's hostility towards any idea promoting an independent Taiwan. The PRC too has been and still is against an Independent Taiwan. The PRC is aware of the Taiwanese' aspiration for an Independent Taiwan but Mao Tse-tung's PRC does not wish to see Taiwan fall in the hands of the Taiwanese. This is an evidence that the PRC is still indulging in chauvinism.

While the Taiwanese aspire for independence and the ROC wishes to maintain its current control over Taiwan, the PRC wants to get possession of Taiwan. What would then be the solution for Taiwan?

A plebiscite would be the most peaceful means of resolving the problem of Taiwan quite in keeping with the philosophy of the United Nations. A plebiscite leaves all of the inhabitants on Taiwan with the following options:

   (1) To maintain the current independence:
       (a) Under the control of the ROC;
       (b) Under a new republic of Taiwan based on the will 
           of the present 15 million inhabitants on Taiwan;
   (2) To become part of the PRC.
   

It is also most desirable that the United Nations on the basis of these options sends an observation team to Taiwan to supervise a plebiscite. Such a method of resolving the Taiwan issue should win favor of other Member States of the United Nations:

(1) A plebiscite should not be interpreted to mean to grant an independent status to the Taiwanese, nor to create a new state on Taiwan. It is merely a device to give the people concerned a chance of expressing their own preferences regarding their political system. During the past twenty-two years since the establishment of the PRC, both the ROC and the PRC have ceaselessly advanced a fiction that all of the people on Taiwan are supporting them respectively. If their claims were true, they should welcome a plebiscite as a chance for both regimes to possess Taiwan legally through a peaceful means.

(2) For the Taiwanese, a plebiscite is a chance for them to have an independent state without any bloodshed.

(3) The United States, Britain and France do not have any reason to be against the idea of holding a plebiscite on Taiwan either. The Joint Statement of President Truman and Premier Attlee of December 8, 1950 declared that on the question of Taiwan, they "agreed that the issues should be settled by peaceful means in such a way as to safeguard the interest of the people of Formosa and the maintenance of peace and security in the Pacific, and that consideration of this question by the United Nations will contribute to these ends." This can surely be viewed as an indication that the U. S. and Britain are not against holding a plebiscite in Taiwan. Looking from another angle, Premier Pompidou of France, too, emphasized the necessity of respecting the will of the Taiwanese on April 23, 1964, saying, "France would favor the settlement of Taiwan's political future by self-determination" and "the long-term status of Taiwan must be decided, taking the wishes of the Taiwan population into consideration (Note 19)".

(4) The Soviet view that Taiwan is an "integral part" of China is not firm. In some occasions, the Soviet Union has said that Taiwan is a part of the PRC, but it seems to be merely a tactics of political realism to expel the ROC from the United Nations. There is little reason for the Soviet Union to be against a plebiscite on Taiwan, because Leninism itself respects self-determination of nations. Furthermore, the Soviet international law upholds the principle of self-determination saying: "It is widely accepted as international practice that alterations of state territories on the basis of self-determination of nations are legitimate".

(5) Many Member States of the United Nations are aware of the real situation in Taiwan and emphasize the necessity of respecting the wishes of the people of Taiwan for settling the Taiwan problem. There are numerous opinions expressed. The followings are some of them:

  Mr. Ramphul, the Representative of Mauritius to the U. N.
     "As with the people of Taiwan any Member State, it is for the 
   people of Taiwan to decide who shall govern them and how they 
   shall be governed. (Note 20)"

  Mr. Zakaria, the Representative of Malaysia to the U. N.
     "I should only wish to state here the view of my government
   that, taking into account the right of the people of Taiwan 
   to self-determination, a right which surely State Members of 
   [the U. N.] can not deny to any people (Note 21)."

  Mr. Baroody, the Representative of Saudi Arabia to the U. N.
     "I had a plan but it seems it was refused by both sides (the
   ROC and the PRC).... The plan was as follows: that a
   plebiscite should be taken in Taiwan as to whether the people 
   of Taiwan would like to remain independent or be part and 
   parcel of the People's Republic of China.... How could I give 
   such advices? Well, from having worked for seven years 
   elaborating in this same United Nations the principle of 
   self-determination into a precise fact.... All of this 
   plebiscite is conditional on the People's Republic of China 
   and the Republic of China in other words, Taiwan. Someone might 
   say, 'This is not possible because both sides are adamant.' 
   I reply that there is a solution to this. The first plebiscite 
   will be conditional on a second plebiscite which will be held 
   from five to ten years after the first plebiscite or a 
   referendum may be held, call it by whatever name you will. It 
   would be to ascertain after five to ten years whether Taiwan 
   or the Republic of China would like to merge with the People's 
   Republic of China or not." (Note 22)
   

(6) Compare to the 800 million Chinese nationals, the population of Taiwan is only 15 million. However the number of population should not be a condition to decide whether or not they should be respected. Be it merely one tenth of a million, the will of the people should be accounted. The countries, comparatively minor in population, if they bow to the request of big powers and sacrify the people of Taiwan, may face similar tragedies in the future.

What is most important is that annexation is contrary to the principle set forth in the preamble of the United Nations Charter, which reads:

   ".... to reaffirm faith in fundamental human rights, in the
   dignity and worth of the human person, in equal rights of men
   and women and of nations large and small,...."

   The provision of Article 1 (2) of the Charter also goes as follows:
  
   ".... to develop friendly relations among nations based on
   respect for the principle of equal rights and self-
   determination of peoples".
   

After the downfall of the ROC, will follow the upsurge of the PRC. The shadow the PRC casts on international politics will grow darker still. We wish whole-heartedly that the world, apprehensive of the ominous shadow, would not make sacrifice of the Taiwanese and arbitrarily trade Taiwan to the PRC.

Notes:

1. Ng Yuzin Chiautong, "Japan's Occupation of Taiwan: Her Internal and International Measures (1)", The Journal of International Law and Diplomacy, LXIX/2 (July 1970), pp. 89-90. 0.16 percent is computed by using 2.8 million as the total population of Taiwan in 1897.

2. In regards with this point, refer to Ng Yuzin Chiautong, A Study on the Republic of Formosa 1895, (Univ. of Tokyo Press, 1970).

3. By 1955 the People's Republic of China had built up her capacity to invade Quemoy and Matsu, but until today, she showed no intention of doing so. It is because Chiang Kai-shek's loss of Quemoy and Matsu would only create a "Taiwanese regime" and thus help consolidate the "One Taiwan One China" argument.

4. The writer often finds that various statements and documents of foreign governments use the term "Formosa and the Pescadores" to mean "Taiwan (Formosa)". In such documents the writer will retain their usage, instead.

5. Manchuria State Dept., Ta Ch'ing Shih-chung Hien Huang-ti Shih-lu (Record of Emperor Shih-chung of the Great Ch'ing), (Hsin-ching, 1937), Vol. 20, p.20.

6. Lien Ho pao (United Daily, Taipei), May 12, 1971.

7. The 13th Japanese National Diet, House of Councilors, Standing Committee Record, Vol. 5, no. 33, p. 2.

8. The 13th Japanese National Diet, House of Representatives, Standing Committee Record, Vol. 4, no. 26, p. 34

9. Ibid., Vol. 4, no. 25, p. 25.

10. Ibid., Vol. 4, no. 28, p. 7.

11. After June, 1954 onward, the Government of Chiang Kai-shek ceased, in the light of national law, to represent its own present state territories, Quemoy and Matsu, and the nationals there, not to mention the Chinese mainland and its nationals. For the terms of office of the members of the National Assembly, the body which elects President, had expired and never been re-elected, Chiang Kai-shek extended indefinitely the terms of office of such assembly members and had them elect him President. This is, of course, illegal.

12. U.S. Congressional Record-Senate, Vol. 101, Part 1, p. 1381.

13. British Parliamentary Debates (Hansard), House of Commons, Official Report, Vol. 536, no. 26, written answers, p. 159.

14. United Nations General Assembly Provisional, A/PV. 1479 (November 28, 1966), p. 5.

15. The 46th Japnaese National Diet, House of Representatives, Standing Committee Record, Vol. 11, no. 17, p. 16.

16. The 13th Japnaese National Diet, House of Representatives, Standing Committee Record, Vol. 4, no. 26, p. 33.

17. The 13th Japanese National Diet, House of Councilors, Standing Committee Record, Vol. 5, no. 40, p. 3.

18. The 13th Japnaese National Diet, House of Representatives, Standing Committee Record, Vol. 4, no. 30, p. 14.

19. The New York Times, April 24, 1964.

20. United Nations General Assembly Provisional, A/PV. 1910 (November 18, 1970), p. 27.

21. Ibid., A/PV. 1909 (November 18, 1970), p. 21.

22. Ibid., A/PV. 1906 (November 16, 1970), pp. 57-62.