Thu, Dec 30, 2004 page8

• History mocks territorial claims

  • By Chen Hurng-yu陳鴻瑜
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  Historically, China has used various events and occasions on the international stage to push the idea that Taiwan is part of its territory, and made good use of the nationalism inherent in its vast population to scare Taiwan.

  When making the official announcement of the establishment of diplomatic relations with China, countries are persuaded to state clearly their belief that "Taiwan is a part of China."

  Recently, we have heard tell that the Chinese are in the process of passing an "anti-secession law," with the intention of creating a legal basis for hostilities against Taiwan.

  China's desire to possess Taiwan is well known.

  Taiwan is a former colony, so at what point was it a part of China? Taiwan has not legally been considered as belonging to the territory of China since the end of World War II, so how could it attempt to break away from China?

  Before we can fully understand this issue, there are a number of questions that need to be clarified.

  This takes us back to 1895, when the Qing government of China ceded the territory of Taiwan and the Penghu islands, along with its people, to Japan. Japan first allowed the peoples of these islands a two-year grace period in which they could decide whether to become Japanese subjects, or keep their nationality as Qing subjects.

  This shows an awareness of international law on the part of the Japanese, as well as a considerable amount of humanism.

  The Japanese did not force the people of either Taiwan or Penghu to take on Japanese nationality. This was certainly not an easy decision to make, and the situation was far from ideal, but at the very least they were afforded the opportunity to express what they wanted. As for Japan, it showed that it had respect for the wishes of the people.

  After the war the Chinese Nationalist Party (KMT) of the Republic of China (ROC), authorized by the Cairo Declaration and General Order No. 1 of the Allied Forces, dispatched men to Taiwan and Penghu to accept the Japanese surrender. However, "accepting surrender" is not the same thing as "maintaining a permanent occupation." According to the directive of the Allied Forces, the Nationalist army was charged with undertaking the repatriation of Japanese forces and civilians.

  The departure of the Japanese from Taiwan and Penghu does not, however, mean that Japan had given up its claim to these territories. Japan had been given control of these islands as part of an international treaty, and so for them to give up this claim they would have to do so by way of another treaty, or other such official documentation.

  There has yet to be any such diplomatic document officially transferring the territories of Taiwan and Penghu to the government of the ROC. Still, the ROC did take control of Taiwan and Penghu, as of Oct. 25, 1945, and required the residents of these territories to take on Chinese nationality.

  This went unchallenged, and the US position from the beginning was that the people of Taiwan would become Chinese nationals again following the signing of a treaty between the Allies and the Japanese, officially returning Taiwan to China. It was only on Feb. 25, 1947, that the US agreed to recognize Taiwanese living in Japan as "overseas Chinese."

  In addition, the British government was insisting that China could not simply transfer the sovereignty of Taiwan to China from Japan on its own without first signing an official agreement with Japan, in addition to conducting other official procedures. In 1949, (as we are told by J.P. Jain in the article "The Legal Status of Formosa" in The American Journal of International Law) the British junior foreign minister Christopher Mayhew, speaking to the House of Commons, said that a change in the legal status of Taiwan could only be decided by signing an agreement with Japan. A professor of international law at London University, George Schwarzenberger, doubts that the return of the rights to govern Taiwan and Penghu could have been done on the basis of the Cairo Declaration alone, and British MP Denis Healy has also said that such behavior betrays a complete indifference to the rights of the Taiwanese people.

  The Dutch government considered Taiwanese in Indonesia as enemies because they were still Japanese subjects, and therefore ignored a request from the KMT government to restate their nationality as Chinese. From this it is clear that other countries did not consider the residents of Taiwan and Penghu to be Chinese nationals in the absence of an official treaty between the KMT and the Japanese in the postwar period.

  Given that Taiwan and Penghu were colonies, their residents should be accorded the right to hold a public referendum to decide their own fate, according to the principle of self-determination of colonies in the UN Charter. Nevertheless, the expression of this very right was met with suppression by the KMT government and led to the tragic 228 Incident, in which tens of thousands of the elite in Taiwan and Penghu were killed or imprisoned. After this, no group or individual dared express their political opinions in either of these places, and naturally enough, the ruling KMT government would hear nothing of a referendum to decide the future of the country.

  In the San Francisco Peace Treaty of 1951, signed by 48 countries, Japan officially renounced all right, title and claim to Taiwan and the Penghu islands. Were the residents of these newly cast aside territories consulted during this process?

  During the San Francisco talks, the representatives of Salvador, Egypt and Saudi Arabia, to name a few, said that the peoples of these colonies should be consulted. At the time, however, they were still subject to martial law, and the KMT government neglected to do so. The KMT was, after all, controlling Taiwan as an occupying power, and paid little heed to the principle of self-determination of peoples as laid down in the UN charter.

  Watching these events, the Beijing government, who believed themselves to be the rightful successors to the KMT, thought this gave them the right to control Taiwan and Penghu, claiming that they had been part of China since ancient times.

  There is absolutely no connection between the status of Taiwan and the Penghu islands as defined by the 1951 San Francisco Treaty and the government of the Chinese Communists set up in 1949, as they had never actually governed these territories. China should not confuse defeating the KMT army in China with occupying Taiwan and the Penghu islands.

  At the time, the KMT's control over these islands constituted an occupancy yet to be fully ratified by the necessary legal procedures, and to this day there has never actually been a document returning Taiwan and Penghu to the KMT government then in power.

  Neither has there been any public consensus on the issue of being placed back under the control of this government. Despite the fact that the KMT government can lay claim to these islands as they were the first to occupy them, this occupation lacks legal basis, which is why the issue has been put up for discussion in the international community for so long, and why every country that has established diplomatic relations with China since 1951 has declared Taiwan to be a part of China.

  What has this issue got to do with other countries?

  Could it really be that they take no stock in the wishes of the people living here?

  This is where the key to the problem truly resides. As the residents of Taiwan and Penghu have never actually been consulted as to whom they want to be ruled by, no country in the world has the right to claim that these islands belong to others.

  The UN Charter gives the people of a colony the right to the self-determination of their own fate, and yet after 53 years China is still using the threat of military force and international intervention. This not only reveals their ambitions to be a major power, it also suggests that they do not have a sufficient legal claim on these islands.

  The solution to the issue lies in a public survey, with witnesses sent by the UN and representatives of the 48 nations who originally signed the San Francisco Treaty, to see the process that started in 1951 finally brought to a conclusion, and to allow the people of Taiwan and the Penghu islands to be their own masters.

  Chen Hurng-yu is a professor in the department of history at National Chengchi University.

  TRANSLATED BY PAUL COOPER
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