From: tai@vax5.cit.cornell.edu
Newsgroups: soc.culture.taiwan
Subject: Re: Military Reunification
Date: 9 Nov 92 12:44:34 EST
Distribution: soc
Organization: Cornell University

In article <1992Nov6.094217.20986@athena.mit.edu>,
joe@athena.mit.edu (Joseph C Wang) writes: 
> In article <1daeliINNf42@MINERVA.CIS.YALE.EDU> tseng-neill@yale.edu (Neill Tseng) writes:
>>	No, YOUR history is wrong.  First of all, Cairo and Potsdam 
>>	declarations express the wartime expectations of only THREE of the
>>	allied powers.  
> 
> According to the Instrument of Surrender of Japan
> 
>          We, acting by command of and in behalf of the Emperor of
>     Japan, the Japanese Government and the Japanese Imperial General
>     Headquarters, hereby accept the provisions set forth in the
>     declaration issued by the heads of the Governments of the United
>     States, China, and Great Britain on 26 July 1945 at Potsdam, and
>     subsequently adhered to by the Union of Soviet Socialist Repub-
>     lics, which four powers are hereafter referred to as the Allied
>     Powers.
> 
> That paragraph makes the Potsdam and Cairo Declarations legally
> binding.

	This conclusion cannot be meaningfully drawn in reference to even
a cursory familiarity with international law.  Under international law, the
mere adoption of a treaty does not, by itself, create any obligations (see
Akehurst, A Modern Intro. to Int'l. Law, p.125).   The ONLY action that would
have made the Cairo and Potsdam Declarations, and hence, any other documents 
referencing them, legally binding is ratification.  This is a well-established 
procedure in international law.  These statements were not in the formal sense
legal documents.  They were NEVER ratified, and, moreover, the missions of the
declarants were simply not empowered to authorize a policy revision of the
expressed scope.  Furthermore, one must further note that the Cairo and Potsdam
Declarations also are devoid of international validity to the extent that they
contravened the environing international norms which prevailed at the time.
It is sufficient to note that the doctrines of self-determination and the
prohibition of use of force for territorial changes, as embodied in many 
resolutions of organs of the League of Nations, had transformed the component 
of acquiescence of the indigenous people into a preemptory aspect, and a 
virtual requirement of lawful transfers of territorial title.  This is 
witnessed in practice by the establishment and rise of many new states in the
post-World War II era.  The intially expressed desire of the four major Allied 
Powers to "restore Formosa...to China" expressed in the Cairo and Potsdam 
Declarations and the Japanese Term of Surrender of 1945, was made at a time 
when a full-scale war was in progress and Formosa was ruled by Japan.  
In general, international lawyers are reluctant to attach enduring legal
significance to wartime declarations precisely because they are framed as
propaganda instruments for short-range mobilizations of support and are
rarely attended by intentions of permanent policy change.  This only further
weakens the arguments for adherence to these Declarations.  However, despite
their unbinding character, their contravening of paramount international norms,
and the dubious legality of instruments arising out of wartime expediency, the
critical question is always the expectations of the framers which the documents
are to signify.  To be authoritative in effect, a preliminary commitment of the
kind expressed in these Declarations would have to be crystallized and
incorporated into the peace treaty that terminates hostilities.  Here the
pertinent agreement is the peace treaty with Japan of 1951, which
authoritatively formulates the common policies of Japan and ALL of the Allied 
powers.  Rememeber that Japan surrendered to the Allies, not to China; Chiang
and the KMT occupied Taiwan only as their agent.  Thus, the treaty is all the
more relevant and authoritative to the extent that it was concluded with the
expressed intent of the Allies collectively, not just one, two, or three
powers alone.  International law has long recognized that only commitments 
made in an atmosphere free of active violence can consider other than military 
necessities and hence provide a reasonable basis for peace and stability and 
provide an accurate assessment and reflection of the intentions of all 
signatories.  Here, the provisions speak for themselves.  It is very revealing
in this context that the treaty stipulates ONLY a reununcation of Japanese 
sovereignty over Taiwan WITHOUT specifying a beneficiary.  This action is 
precisely the MOST clear in revealing the intention of the Allieds that 
sovereignty over Taiwan was NOT to be passed over to ANYONE, and that Taiwan's
status was to be decided by no outsiders, indeed by no one EXCEPT the Taiwanese
themselves.  As noted above, this intention was consistent with the prevailing
international norms regarding self-determination at the time. That this was 
the intended consequence of the Allied actions throughout the course of the 
war is asserted quite clearly by the Allied Powers themselves:

"The treaty also provides for Japan to renounce its sovereignty over
Formosa...in due course a solution must be found [to settle the international
status of Taiwan] in accord witht he purposes and principles of the Charter of
the United Nations..."--British government 1951

"...the reason behind this omission [of a beneficiary for sovereignty over
Taiwan] is to afford the opportunity to deal with this question in accordance
with the United Nations Charter, taking into consideration the principle of
self-determination and the expressed desire of the inhabitants of these
territories."--Egyptian government 1951

"Formosa was detached from Japan, but it was not attached to anyone...[Its
legal status] must be determined one of these days, taking the wishes of
the Formosa population into consideration."--French government 1964

"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.."--British government, 1955

"The Cairo Declaration...like other wartime declarations such as those of yalta
and Potsdam, ..was subject to any final peace settlelment where all relevant
factors should be considered.  The United States cannot accept the view...that
the views of other Allies not represented at Cairo must be wholly ignored. 
Also the United States believes tha tdeclarations such as that issued at Cairo
must necessarily be considered in the light of the United Nations Charter,
the obligations of which prevail OVER ANY OTHER INTERNATIONAL AGREEMENT."
     --U.S. Government 1949

"Technical sovereignty over Formosa and the Pescadores has never been settled. 
...the juridical status of these islands, Formosa and the Pescadores, is
different from the juridical status of the offshore islands [Queymoy and Matsu]
which have always been Chinese territory."--U.S. Government, 1958

I refer you to numerous other statements in the literature (See Let Taiwan
Be Taiwan).> 

>>	Secondly, the San Francisco Peace Treaty postdates the Cairo and
>>	Potsdam declarations anyway, since it was signed in 1951.  The
>>	delegates to the San Francisco conference explicitly stated that the
>>	status of Taiwan should be decided ACCORDING TO THE WISHES OF THE
>>	PEOPLE LIVING ON THE ISLAND. 
> 
> Could you quote me the part of the San Francisco Peace Treaty that
> says so? 

I refer you to all the comments and analysis above.
  
 >>       This is the way it is under international
>>	law, in the Charter of the U.N., and in many U.N. resolutions. 
> 
> Could you please post the relevant sections of those documents?

"All Peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development."--UN Gen. Assembly Declaration on the 
Granting of Independence to Colonial Countries and People (Note: Taiwan was
a Japanese colony through World War II.)

"All peoples have the right of self-determination."--UN Gen Ass. Int'l
Covenant on Civil and Political Rights

"By virtue of the principle of equal rights and self-determination fo peoples
enshrined in the Charter, all peoples have the right freely to determine,
without external interference, their political status and to pursue their
economic, social, and cultural development, and every State has teh duty to
respect this right in accordance with teh provisions of the Charter."
 --U.N. Gen. Ass. Declaration on Principles of International Law

I am out of time here, but there is much more in the literature for reference.
I would argue that the legal status of Taiwan is the important issue here. What
you must realize is that the present-day debate on whether the ROC government 
has "democratized" or on how much more "open" it has become or
on how much more "freedom" or "Taiwanization" it has allowed is not the core is
sue.>  The fact is that these decisions were NOT the R.O.C. government's to
make in the first place.  This is the argument here.  Essentially, this
government did not have the authority to make the decisions it has and
continues to make on the island to this day.  What is just and right and
intended from the legal standpoint cannot be ignored. Tragically, it was
subordinated far too long in the political war games of the Cold War era. 
However, now that that era is over and self-determination as a right has been
reaffirmmed time and time again and the independence of new nations has
subsequently been proclaimed, there is new hope for a correction of this
historical injustice.  

In all the arguments against such a referendum or against independence realized
through means of self-determination, there emerges really only one major
objection, and that is the fear of the CCP military threat.  Would we not agree
otherwise that without this threat Taiwan could reap gains from independence?
Essentially it already is de facto independent and has blossomed.  Why not
declare that independence formally?  Realize that with the continuing political
warfare resulting from the battle of the "two Chinas", resources on Taiwan
continue to be squandered.  Military spending in anticipation of warfare over
this political squabble takes resources away from the people.  The warfare has 
led to a Brain Drain from Taiwan over the course of the years.  AS long as the
warfare continues and it thus remains 'dangerous" to the government to make
political statements regarding Taiwan's status, the domestic repression
apparatus is a further strain on the economy.  Full civil liberties and
freedoms remain unrealized as this political bickering continues.  Taiwanese
culture remains subordinated under the myth of the One China ideology.  The
difficulty in recognition of passports for Taiwan citizens continues.  Taiwan
remains subservient to Chinese whims and decisions regarding ability to 
participate in international organizations like the GATT.  Taiwan continues to
suffer unneccesary loss of face in instances like the recent withdrawal of
recognition by South Korea.  It loses the benefits of full diplomatic
recognition with most countries and the benefits those afford (eg. protection
through the courts for business disputes involving its nationals, etc.).
Furthermore, precisely because there is little reason to trust Chinese
Communist leaders there is all the more reason to hasten to explicit separation
of the two entities.  As Deng Hsiao-Ping has explicity stated that recovery of
Taiwan is his personal quest, it is all the more imperative to push for
international recognition of the legal basis for an independent Taiwan and to
secure the realization of this independence by means of a referendum conducted
in a context of international support against the threat of military
intervention and a peaceful transition of formal sovereignty.  This is the goal 
to be sought.  Independence cannot be ignored for fear of such a threat.  There
are ways to counter that threat through securing the support of the
international community and the mandate of international law.  The laws 
for self-determination and against territorial agression and the use of force
are in support of a referendum for Taiwan.  It should be our goal to promote
the propriety of our position so that historical injustices may be duely
rectified.  History has been perverted by politics.  There can be no
justification for such an obstruction, only due rectification.
 
>>	First of all, estimates and informal polls show that 95% of the
>>	electorate supports Independence in itself. 
> 
> Provided you define "independence" as "not unification now." 
> 
>>	That is not necessarily true.  There are many gains to be made for
>>	Taiwan itself through independence.  Then, it could be formally
>>	recognized by many foreign nations and negotiate more treaties and
>>	business agreements, as well as join in international instruments
>>	such as GATT.  
> 
> GATT is now considering an application for "the Customs territory of
> Taiwan, Quemoy, and Matsu."  The PRC has stated that it has no strong
> objection to Taiwan's membership in GATT provided that the PRC is
> admitted first. 
> 
> As for the UN, the PRC has a Security Council veto and is not about to
> let Taiwan in under any circumstances.
> 
> In neither case does "independence" get you any benefits.
> 
>>	While there may be some economic benefits to a "Greater China", you 
>>	must prove that they are a *comparative advantage* to economic
>>	benefits from independence.  
> 
> What are the economic benefits from independence?  Without
> independence, Taiwan has managed to negotiate trade agreements with
> the rest of the world.  So what will independence bring?  All I see is
> that "Coordination Councils" become "Embassies."
> 
> Incidentally, the ROC does not seem to have any objection to dual
> recognition.  It's established relations with several governments
> which had relations with the PRC.  The PRC broke relations with those
> governments on the next day, but it's important to note that PRC was
> the one breaking the relations not ROC.
> 
>>	Economically, trade opens up with many new nations as official
>>	diplomatic recognition is attained.  As China realizes that its claim
>>	to Taiwan has been voided, it comes to reality and concedes that
>>	maintenance of economic relations with the new independent Taiwan is
>>	in its best interests.  The three noes and other old hostilities KMT-
>>	CCP hostilities are abolished, and trade is allowed to flourish even
>>	more (i.e. all direct links allowed, etc.).  Taiwan is able to reduce
>>	the exorbitant % of GDP spent on the military and can rechannel those
>>	funds into investment in the island and the people.
> 
> 1) What does any of what you mention have anything to do with
> independence?  There's no reason why the three noes can't be abolished
> and direct air/ship links established without any sort of independence
> declaration.  The main reason that the "three noes" seem to still
> exist is so that the KMT can use it as a bargaining chip to get the
> PRC to recognize the existence of ROC.
> 
> 2) What makes you think that the Mainland government won't just close
> down all the Taiwanese factories on the Mainland and try to invade?
> It's in the interest of the PRC not to lose face.  And in assuming
> that the PRC government will react calmly and rationally to having
> Taiwan declaring independence, you are trusting the people in Beijing
> far more that I think they deserve.  Need I remind you that the
> Beijing government acted irrationally in the summer of 1989.
> 
> If I thought that the Beijing government was as rational as you take
> them to be, then I'd be arguing for full unification now.  The problem
> is that I don't trust Beijing, and I think you are being somewhat
> foolish for assuming Beijing will do the "rational" thing.  It
> probably won't.
> 
> 3) Let's suppose you are right and Beijing won't attack ROT.  O.K.
> Beijing won't attack ROT.  It won't attack ROC either.  In that case,
> what's the point of independence?
> 
>>>3. Culturally, one is heir to five thousand years of history.
>>
>>	Five thousand years of Chinese history.  The problem is, many of the
>>	people are native Taiwanese.
> 
> Native Taiwanese many of whom think of themselves as Chinese.  China
> has survived for five thousand years because at its core there is
> something magical.  Something that makes many people want to be
> Chinese.  As for Taiwan being different.  Shanghai is "different" too.
> It's still Chinese.
> 
>>       If the people have the right to be independent, then
>>	no one has the right to deprive them of this right! 
> [....]
>>       My point is, independence is paramount! 
> 
> My point is that many (perhaps most) Taiwanese don't seem to feel that
> way.  If you believe that independence is more important that any
> other consideration, then there is no point in arguing.  You are not
> going to convince me, and more importantly you are not going to
> convince the people living in Taiwan for whom other things are more
> important.
> 
> 
>