國安(評)093-187號

中華民國九十三年十一月二十二日
November 22,2004

Is sovereignty over Taiwan undecided?

By Joe Hung

The question of whether sovereignty over Taiwan is or is not decided has been heatedly debated over the past couple of weeks. On the one hand, revisionist historians argue that the question has not been solved yet, citing among other things the Treaty of San Francisco and the Sino-Japanese Peace Treaty of Taipei in both of which Japan did relinquish sovereignty over Taiwan it ruled as a colony for half a century but did not specify to whom that sovereignty would go. Their orthodox counterparts, on the other, insist that the question was settled when Japan signed the peace treaty in Taipei with the Republic of China in 1953 to formally end its war of aggression from 1937 to 1945. 

President Chen Shui-bian sides with the orthodoxians to the disappointment of the revisionists who have been trying to put forward what they believe is his dogma of undeclared independence for Taiwan. He dismayed them last week by denying that the problem of sovereignty over Taiwan is unsolved. He said it belongs to the Republic of China, of which he is the chief of state and he does not allow anybody to claim that the Republic of China does not exist. The latter remark was intended for his political mentor, former President Lee Teng-hui who has proclaimed and is proclaiming that the Republic of China is dead. A politically savvy fatalist Christian, President Lee compares himself to Moses, determined to lead the people of Taiwan to independence just as the Jewish Prophet led the Exodus from Egypt.

Though he might have contradicted his mentor tongue in cheek, President Chen must have studied the question of sovereignty over Taiwan historically to profess sincerely that the problem has already been settled. The leaders of the Allies required Japan to return Taiwan to the Republic of China in their Cairo Declaration of 1943. That requirement was reiterated in the Potsdam Declaration of 1945, whose conditions Japan accepted in announcing its decision to surrender. The Republic of China was not represented at the San Francisco peace conference of 1952 because Allied powers had to make a compromise to reject Beijing’s demand to participate. At the repeated urgings of the United States, Japan finally signed the peace treaty of Taipei with the Republic of China. Albeit Tokyo did not mention in that treaty to whom Taiwan should belong, the question of sovereignty was settled in line with uti possidetis. In international law, uti possidetis is a principle that a conclusion of peace between belligerents vests in them respectively as absolute property the territory under their actual control and the things attached to it and the movables then in their possession except as otherwise stipulated (as by treaty). 

Taiwan was a territory under actual control of the Republic of China when the treaty of peace was signed in 1953. No other agreement was signed to “otherwise stipulate” to whom that absolute property should belong. Even though Tokyo abolished the treaty of Taipei when it switched diplomatic recognition to Beijing in 1972, the Republic of China has sovereignty over Taiwan, thanks to uti possidetis, which, incidentally, means “as you (now) possess” in Latin.

 

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