From: zing@ccwf.cc.utexas.edu (Leon Zing-Ding Lee)
Newsgroups: soc.culture.china
Subject: [Law] Rep. of China - legitimate gov't of Taiwan
Date: 14 Apr 92 10:36:04 GMT
Organization: The University of Texas at Austin, Austin TX

From: horne-scott@CS.YALE.EDU (Scott Horne)
>You're living in the past.  The only legal government of Taiwan is the
>People's Republic of China.  The only legal government of Sichuan is the
>People's Republic of China.  The only legal government of Heilongjiang is the
>People's Republic of China.
-- 
Scott Horne                               ...!{harvard,cmcl2,decvax}!yale!horne
=========================================================================


The legal basis for the Republic of China's jurisdiction of the Taiwan is
definitely an interesting topic.  However, to boldly state that the PRC 
possesses undisputed claims to the sovereignty of Taiwan defies all 
realms of international law.

The following information was extracted from 1) China and the Taiwan Issue -
Chiu Hung-Dah, 2) America and Island China - Stephen Gilbert, 3) Foreign
Policy of the Republic of China on Taiwan: An Unorthodox Approach - Wang
Yu-San.
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[Defacto Recognition]

As stated by numerous other users on this newsgroup....the 1943 Cairo
Declaration among the US, ROC, and Britain stated that :

"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 1st World
War in 1914, and that all territories Japan has stolen from the Chinese, such
as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic
of China."

This declaration officially recognized ROC jurisdiction on Taiwan.  In
addition, Article II of the ROC-Japan Peace Treaty of 1952 officially states
that "Japan has renounced all right, title and claim to Taiwan and the
Paracel Islands".

The Japanese Plenipotentiary Isao Kawada also sent a message to the ROC
representative Yeh Kung Chao stating "I have the honor to refer, on behalf of
my Government, to the understanding reached between us that the terms of the
present Treaty shall, in respect of the Republic of China, be applicable to
all territories which are now, or which may hereafter be, under the control
of its Government".  This letter by the Japanese officially recognizes
defacto ROC jurisdiction of Taiwan.

In addition, several Japanese court decisions (namely Japan vs Jung Lai-Chin
in 1956) officially recognizes that "Formosa and the Pescadores came to
belong to the Republic of China, at any rate on Aug. 15th, 1952 when the
peace treaty between Japan and the Republic of China came into force".

[Taiwan as legally unassigned]

It must be stated that during the turmoil following the Nationalist defeat on
the mainland, both the US and Great Britain altered their positions in
respect to the 1943 Cairo Declaration in order to place Taiwan outside of
ROC jurisdiction.  Their purpose was to render the status of Taiwan as
legally unassigned.  

Although the ROC gained defacto control of the island, the US feared a PRC
victory over ROC forces on Taiwan.  By rendering Taiwan's status as
"unassigned", they hoped to utilized this legal precedent to dispatch forces
to aid the ROC if the PRC launched an invasion of the island.  

As for the British...they have already extended diplomatic relations to the
PRC in order to retain their colony of Hong Kong.  Therefore, the British
altered their position solely based on their own economics interests.

In the perspective of the US, if Taiwan was legally unassigned, then the PRC
cannot use the international forum to denounce that the US has violated its
territorial integrity.  This is main reason why the San Francisco Treaty
specifically did not state that Taiwan shall be returned to the ROC even
though the Cairo Declaration stated that it must be restored to the ROC.

[International Law]

The present arguments against ROC's jurisdiction of Taiwan is that no formal
treaty exists which specifically states that Taiwan has been legally assigned
to Taiwan.  Although this is an interesting political opinion...it is however
only rhetoric.

According the precedents of international law (Lauterpacht's edition of
Oppenheim):
"The effect of a treaty of peace is that conditions remain as at the
conclusion of peace.  Thus, if nothing is stipulated regarding conquered
territory, it remains in the hands of the possessor, who may annex it.  But
it is nowadays usual, although not at all legally necessary, for a conqueror
desirous of retaining conquered territory to secure its cession in the treaty
of peace".

Translated to everyday-English....Uti Possidetis (As you possess, you shall
continue to possess).  The ROC exercises direct political control over Taiwan
for the past 47 years.  Therefore, it shall continue to exercise control over
Taiwan.

Another case can be seen in the precedent sent down by the Permanent Court of
International Justice in the 1933 Legal Status of Eastern Greenland case in
which the court stated that acquisition of a territory by occupation can be
legally constituted if the occupier exercises the intention and will to act
as sovereign and actually exerts authority.  Again...the ROC fulfills this
criterion of on its jurisdiction of Taiwan.

The argument that Taiwan was actually placed under the jurisdiction of the
United Nations is also a fallacy.  For to this date...the United Nation has
never contested the possession of Taiwan by the ROC.  

[PRC possesses no transfer authority]

As for the PRC's claim to Taiwan....within the realm of international law.
It possesses none.  The PRC claims to be the only legitimate government of
all Chinese territories....therefore, it has stated repeatily that the ROC
possesses no capacity to conclude agreements with other nations.

In this aspect...the 1952 Peace Treaty officially returning Taiwan to
China from Japan refers specifically to the ROC.  In addition, the 1943 Cairo
Declaration stated that it the ROC which is the direct receiptent of
Taiwan.

As you well know....the PRC did not officially exist until 1949.  Therefore,
within international law....the PRC cannot claim that it is the direct
benefactor of all subsequent ROC treaties since the PRC does not recognize
the ROC. Therefore all treaties concluded by the ROC cannot be claimed by the
PRC.

By another definition of international law...the PRC does not exercise any 
degree of political, social, or military control of Taiwan.  Therefore,
it possesses no sovereignty to the island. By the same token....the ROC
cannot claim to the legitimate government of all China mainland by the
same reason.  The blade cuts both ways.

In the end..knowing the great tradition of Chinese in general...a military
solution is probably the only means of solving this situtation.  Either
the PRC must be obliterated or the ROC must be destroyed.  For what
ever my opinions are worth... Dr. Sun was correct in stating that we Chinese
are as a mass of sand on a beach...forever united by culture...perpetually
separated by politics.



______________________________________________________________________________
  Leon Z. Lee                              (512) 471-3136 ext. 73
  Network Administrator                    Internet: zing@ccwf.cc.utexas.edu
  Residence Hall Computer Labs         
  University of Texas at Austin
___ Note: Let the consequences of my words be solely bestowed upon me ________

Newsgroups: soc.culture.china