Talk:Legal status of Taiwan

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[edit] Re-writing of all Legal Arguments

I have spent several days entirely re-writing the Legal Arguments section. I have included all links to other Wiki articles as appropriate. I have not eliminated anything from the original text, but have thoroughly reorganized it and supplemented it. This new re-organization should enable the differing schools of thought to build and expand upon their own arguments by adding further data as appropriate. Hmortar 03:47, 9 December 2006 (UTC)

Thank you for the reorganization. I believe it is excellent. My only concern is that there may be undue weight issues for certain sections, and by giving particular sections undue weight, the article can become non-neutral. In terms of the section on say, the United States, I propose shrinking it in the next few days depending on what other feedback is received. Thanks. Ngchen 15:10, 9 December 2006 (UTC)

[edit] Restoration of NPOV redux

I edited the article in an attempt to explain the various possible prescriptions to explain the PRC and ROC POVs. Also, I removed the word provisionally from the historical overview section describing the Japanese instrument of surrender, where Japan "~~provisionally~~ accepted" the terms of the Potsdam declaration. I believe that a significant part of the argument between the PRC/ROC position and the other position hinges on whether the Japanese surrender was or was not of a provisional nature; as such, to claim that it somehow is provisional violates NPOV. I did note in the subsequent paragraph on the 228 incident that some people claimed such.

Agreed. Thank you. I also did some minor restoration of NPOV redux. :) Mababa 06:42, 9 Jan 2005 (UTC)

As for the removal of the links to the PRC foreign ministry and the ROC government information office, I would like to hear the specific reasons why they were removed before restoring them. As they contain more or less definitive claims on the part of the two parties, I don't currently see why the information there being irrelevant. Ngchen 17:09, 8 Jan 2005 (UTC)

I commented out the links because they are too general to be helpful. For example, the PRC foreign ministry has a page devoted to Taiwan that has various white papers and press releases from past year - that page should be linked, not the home page of the FM. --Ji ang 04:32, 9 Jan 2005 (UTC)

I would suggest This one. A bit old though.Mababa 06:42, 9 Jan 2005 (UTC)

[edit] Handling Rebuttals

Reading through the article again, I noticed that several arguments on the pro-independence/self-determination side are in some sense rebuttals to claims in favor of Chinese sovereignty. Does anyone have suggestions on a NPOV way of incorporating rebuttals to each side's arguments?

I think it probably is my fault to present the arguments in a style that seemed to be rebuttals if rebuttal style is not right; however, these contents are the real arugments hold by vairous pro-Taiwan independence/self-determination groups. For those pro-Taiwan self-determination groups, they HAVE to make assertions(arguments) disproving pro-Chinese sovereignty claims in order to refuse whatever the pro-Chinese sovereignty groups(ROC/PRC/pro-unification groups) trying to impose onto the land they lives in. It is just their NATURE to refute the ROC's legitimacy and also to rebuttal the claims from the PRC in the international community. Thus, these areguments are the genuine position held by these groups. They are neither fabricated by me nor specific to the contents above in the "pro-chinese sovereignty" section but were generated by the pro-independent groups during a long-period of debate. And it is our responsibility to present their arguments to fullfill the NPOV policy. If this style is not appropriate, we can certainly reshuffle the contents and present their claims in a non-rebuttal style. Or perhaps we can present the arguments from pro-independence/self-determination first and present the pro-chinese sovereignty arguments later so that it wouldn't appear to be a rebuttal process.Mababa 00:25, 18 Jan 2005 (UTC)

Specifically, the argument against the lack of a valid prescription would be that only states can have legal sovereignty. People can be sovereign over states, but not directly over territory. As such, the 228 incident wouldn't be a valid protest, as no state was protesting the retrocession claim. And for the "Provisional Government of Formosa," IMO it is currently a fringe/radical group that very few people know or care about, although of course that could change in the future. As such a group with no significant recognition nor following, one can argue that their protest doesn't count. Does anyone have a way of working that fact in? Thanks. Ngchen 22:53, 17 Jan 2005 (UTC)

I am sure that you can make arguments that these are invalid arguments just like those pro-independence/self-determination groups can argue that the claims from PRC or ROC are invalid ab initio. Based on the NPOV policy, I thought we should gather different opinions and present altogether instead of suppressing either side. By presenting the arguments, it not necessarily turn them into facts. On the other hands, had I fabricate these arguments, I would happily withdraw them.

To be more specific on this groups, it might be difficult to prove that this claim is from a radical/fringe group since there is no polls to prove or indicate this, especially when there currently is a steady 20% RADICAL Taiwanese residents favor independence over status quo. I think it is a POV and could be a radical move to tag them the label of "radical" now. :) Moreover, this group quite often have letters appeared on one of the major News Papers in Taiwan; thus, I assume they have a certain level of popularity higher than the threshold to be called radical. Even if this is indeed a radical group, it still falls into the pool of "various pro-independence/self-determination" groups.Mababa 00:25, 18 Jan 2005 (UTC)

I have made some minor changes to make the claim to be attributed to one group. This should help readers not to mistake this argument to be held by all pro-independence/self-determination groups, with the caveat that we do not know the popularity of this specific group. I hope this would suffice.Mababa 00:42, 18 Jan 2005 (UTC)

I think the question is really how we handle arguements seemed to be rebuttals. An alternative way to address this issue, besides a reshuffling of contents, is to revamp the argument sections. The core argument from each side should be presented at the beginning. Then, a second rebuttal section from each side to address on each other's initial point. This would require a make over of the current version and I would really hesitate for another round of discussion. Moreover, Pro-Chinese sovereignty group hinged on multiple legal arguments and the rebuttal from this side should be supplemented if we make such a change. I think it is more important to include the pro-chinese sovereignty and also the pro-independence/self-determination external links.Mababa 02:57, 18 Jan 2005 (UTC)

[edit] Other nations' position during the conference

Some useful and factual historical segments that we can think about a NPOV way to put in the article along with the Churchill's position in the future.

During SF Peace Conference

The decision to keep Taiwan's status undetermined was deliberate. As indicated by the British delegate at the Japanese Peace Conference, at which the treaty was concluded:

"The future of Formosa was referred to in the Cairo Declaration but that Declaration also contained provisions in respect to Korea, together with the basic principles of non-aggression and no territorial ambition. Until China shows by her action that she accepts those provisions and principles, it will be difficult to reach a final settlement of the problem of Formosa."

"We therefore came to the conclusion that the proper treatment of Formosa in the context of the Japanese peace treaty was for the treaty to provide only for renunciation of Japanese sovereignty."[1]

The British delegate stated that "In due course a solution must be found in accord with the purposes and principles of the Charter of the United Nations." The Egyptian delegate stated that specifying the recipient is "to afford the opportunity to take into consideration the principle of self-determination and the expressed desire of the inhabitants of Taiwan." The French delegate stated that: "Taiwan's legal status must be determined one of these days, taking the wishes of the Formosan population into consideration."[2]

It was thus the specific intention of the attendants of the San Francisco Peace Conference that the people of Taiwan should determine the future status of the island based on the principle of self-determination. Such process was not possible at the time, because the island was occupied by the losing side of China's Civil War, Chiang Kai-shek's Nationalists. [3]

US position

In the US Congress, the 50th Anniversary of the conclusion of the San Francisco Peace Treaty was marked by the introduction of a resolution in support of Taiwan's self-determination. The resolution, HCR-221[4], states that it is the sense of Congress that "It is United States policy that the future of Taiwan should be resolved peacefully, through a democratic mechanism such as a plebiscite and with the express consent of the people of Taiwan". The resolution specifically refers to the fact that under the provisions of the 1951 San Francisco Peace Treaty, Japan renounced all right, title and claim to Taiwan, and the status of the island was left undetermined. [5]

More on US's position: John Czyzak, legal adviser at the Far East Affairs Bureau in 1961. The other was a rewriting in non-technical language, by Robert Starr in 1971, of Czyzak's analysis.[6]

Anthony Eden in 1955

Sir Anthony Eden in a written reply in 1955: "In September 1945, the administration of Formosa was taken over from the Japanese by 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 arrangements made with Chiang Kai-Shek (蔣介石) put him there on a basis of military occupation pending future arrangements, and did not of themselves constitute the territory Chinese."[7]

Propose:

1)The position of the UK, Egyptian and French delegates to be put into the historical section since that belongs to the conference.

2)US congress resolotion to be put into the US postition.

3)Refraim from overinterpreting Anthony Eden and Churchill's interpretation until we can figure out a good use of it in the future. Others later.

I think all of the proposed modification are factual. Please generously advise. Mababa 05:28, 11 Jan 2005 (UTC)

Unfortunately, none of these statements were made "during the Conference" and instead made at least ten years after the fact.

I am not sure what do you mean. I thought these comments were cited from the delegates in the Peace Conference. Pehaps I did not express my points clear enough, I ment these statements were made during SF Peace Conference of 1951, not the Cairo Conference. I wonder if it is not too much trouble, can you specifically let me know what makes you think they are not made during the SF Peace conference fo 1951.Mababa 03:20, 12 Jan 2005 (UTC)

All of these statements were also made by western-bloc nations that, while recognizing the PRC as the sole "China", did not want to see capitalist Taiwan fall to the communists.

Still, these statements were pertinent to the situation where the participants of the peace treaty decide how to make Japan dispose Taiwan island.Mababa 03:20, 12 Jan 2005 (UTC)

After 1979, almost all US legislation and official statements stopped referring to the Republic of China because in establishing relations with the PRC, the US acknowledged the ROC to be a defunct entity. Instead, everything is made out to "the people of Taiwan" (see the Taiwan Relations Act) for example. The US position makes the false assumption that the Republic of China no longer exists and has nothing to do with the legitimacy of the ROC administration on Taiwan versus a self-determined Taiwanese government, but rather with the legitimacy of a PRC administration on Taiwan versus a self-determined Taiwanese government. The same could be said of the UK position post 1950.

It is fallacious to make assumption that US made a false assumption. You may say that US position was biased against other positions but I do not think we can assert that they are false. Then would you suggest these historical documents about the western countries to be included in the article of political status of Taiwan? Please comment on this proposal.--Mababa

I dont see an argument behind your assertion. Even US laws after 1979 claim so: "before January 1, 1979, known as the Republic of China", the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979. It is no conincidence that laws pre-1979 all state "Republic of China" and laws post-1979 state "Taiwan". It is therefore improper to try to infer much else from the use of the phrase "people of Taiwan". --Ji ang 04:40, 12 Jan 2005 (UTC)

All I want to say is that this is not necessarily correct and it is a POV to say U.S. position is fallacious. :) Mababa 03:10, 13 Jan 2005 (UTC)

To use the current situation and statements made due to the current situation as if they were made during the Cairo Conference is just plain misleading and a misinterpretation of these statements. If there are statements made before the 1949 division of China, then I would like to see them. --Ji ang 09:12, 11 Jan 2005 (UTC)

I would love to see those too. However, I do not think people are arguing the existance of the intention between the allies to transfer Taiwan to China. The arguement on this intention is whether a unsigned declaration is legal binding or not. Thus, the interpretation of the Cairo Declaration among the participants: US, UK and China after the meeting are important. Even it is signed, I do not think people can argue that a declaration is supreme over a treaty. Sure, situation are different and makes people change their mind; just like Churchill's comment, a lot of things changed. However, I still wonder if this encyclopedia can selectively neglect the factual change of attitude of the Allies. I still suggest we can find a proper place to include them, even if this means to create a separate page, I would really appreciate if you can make some suggestions as to where would be a best place to collect them. If this article needs to be fully concentrated on the legal arguement, then what would you say to include them in the political status of Taiwan? Moreoever, the position of the western world are still arguement actively used by the pro-independence/self-determination supporters, do you think we can include them among the arguemnts? Cairo declaration aside, please comment on my original proposal on the statements during the SFPT conference. Many thanks.Mababa 03:20, 12 Jan 2005 (UTC)

Again, these are arguments, unless you can phrase what you have to put in other ways. These are arguments against soveriegnty of the PRC over Taiwan, not to be inferred as arguments against the legitimacy of the ROC since in the eyes of the arguer, the ROC does not really exist.

I assume the arguments you were refering to are the arguemtn from Churchill and the arguments after SFPT. For the pro-self determination groups, they not necessarily regards ROC as legitimate government and quite often, they would regard ROC as government in exile occupying the island. These arguements do not contradict to their position excluding PRC and ROC. These arguments are the arguments actively being used and should be represented in the encyclopedia in relevant articles. If it is not appropriate to be listed here, I suggest we can find other places to include them.Mababa 03:10, 13 Jan 2005 (UTC)

The political status article needs to be re-written. Maybe we should draft an outline on its talk page and we can deal with whatever there. Yes, some of this 'might be relevant. --Ji ang 04:40, 12 Jan 2005 (UTC)

This sounds great. I would really appreciate it if we can find an appropriate place to gather these international opinion on this matter if this article is not the right place for them. I am still wondering what you think about the opinions expressed during the SFPT conference and whether you think it would be okay to include them here. Thank you.Mababa 03:10, 13 Jan 2005 (UTC)

[edit] Peace in the Treaty of Shimonoseki was violated by Qing

I also have noticed that this arguement in the Arguments in favor of Chinese sovereignty is disputable and is not factually correct. It states:

The waging of aggressive war by Japan against China in 1931 and beyond violates the peace 
that was brokered in the Treaty of Shimonoseki

However, there are more sino-japanese treaties in between 1895 and 1931. For example, the Boxer Rebellion leads to the Boxer Protocol, Peace Agreement between the Great Powers and China[8], and China again reached a second peace agreement with Japan in this treaty.

Thus the peace that was brokered in the Treaty of Shimonoseki clearly was not breached by the second Sino-Japanese war but WAS violated by the Boxer Rebellion which Qing court was behind and supported; if we assume that there were no other peace treaty between China and Japan between the two Sino-Japanese war. Still there could be other peace treaties exists.

And it was the peace brokered in the Boxer protocol being breached when the second sino-japanese war break out. The arguement calling this war violated the peace brokered in the Treaty of Shimonoseki was fallacious and inaccurate. I am wondering if we can fix this statement. Perhaps ommiting this statement or we should correct the statement by finding out the closest peace treaty between Japan and China before the second sino-japanese war.

It was a Chinese POV to call it an aggression from Japan toward China at the second Sino-Japanese war. I am also not sure if Japan's official position has acknowledged that it was their fault to wage a war against China already. This could be a next POV argument if there is a Japanese contributer participating this article.Mababa 03:20, 12 Jan 2005 (UTC)

I have checked on lists of the unequal treaties and concluded that there are more treaties signed in between China and Japan in between 1895 and 1931. While the contents are various, the Boxer protocol was the only one PEACE TREATY between the two countries. And this is also confirmed by the SFPT where it specifically stipulate Japan renounce the treaty right derived from this Boxer Protocol.

Article 10

Japan renounces all special rights and interests in China, including all benefits and privileges resulting from the provisions of the final Protocol signed at Peking on 7 September 1901, and all annexes, notes and documents supplementary thereto, and agrees to the abrogation in respect to Japan of the said protocol, annexes, notes and documents. [9]

The current version claiming that the second Sino-Japanese War breached the peace brokered in Treaty of Shimonoseki was inaccurate. I hope to hear if Ngchen or Jiang has any suggestion to help the text be more accurate.Mababa 02:59, 13 Jan 2005 (UTC)

Don't worry about it. I have just made some change to balance the POV. :)Mababa 03:27, 13 Jan 2005 (UTC)

[edit] Truman's position

I wouldn't make a fuss on this matter and I do not expect a debate on this issue; however, I am only a bit confused by the statement:

President Truman, ....... was prepared to see Taiwan fall into the hands of the Chinese Communists

I always thought that Truman only withdrawed U.S. from gettin involved in the Chinese civil war but this not necessarily can be equated to throwing Taiwan to PRC. I am certainly awared of the fact that the Nationalist was the side losing the civil war and did not seem to be capable of geting lost territories back. However, it does not mean that they were incapable of securing the island from any PRC invasion, especially this required PRC to deploy troops across the strait. Thus, I wonder if Truman really was indeed ready for giving Taiwan to PRC or this is an extrapolation from Truman's passive role in the issue of chinese civil war.

I do not think that we have to raise a new debate and request both side to show evidence on Truman's position before the Korea war; since, in my judgement, it is kind of trivial and would not change the historical moves afterwards or the arguments from all sides anyway. However, I am still curious to read on this issue and would really appreciate it if someone can make a reference link below from any of the contributers, just for quick reference, if it is not too much trouble.

Here is one more post-Korean-war evidence showing Truman and Britain proposed Formosa issue to be solved in UN:

Joint Statement Following Discussions With the Prime Minister of Great Britain December 8, 1950

On the question of Formosa, we have noted that both Chinese claimants have insisted upon the validity of the Cairo Declaration and have expressed reluctance to have the matter considered by the United Nations. We agreed that the issues should be settled by peaceful means and in such a way as to safeguard the interests 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.[10]

Some more:[11][12] Mababa 06:17, 16 Jan 2005 (UTC)

[edit] US position over years

I would like to question the accuracy of the statements about how the US has treated the sovereignty of Taiwan over the years. More specifically, (1) did the US State Department officially report that the sovereignty of Taiwan was "undetermined" in 1970, or did it claim that it belonged to the ROC which the US recognized at the time as the Chinese government, or was it simply silent, or did it actually claim it for the US via the SFPT? (2) Did the US make any statements on territorial sovereignty in the Shanghai Communique at all, other than acknowledging the PRC position? (3) In the six assurances, the US stated that it would not recognize Chinese sovereignty over Taiwan - considering how the US recognized the PRC then as the Chinese government, would that really imply a lack of recognition of the unrecognized ROC holding sovereignty over Taiwan as the article implies as opposed to simply not recognizing PRC sovereignty over Taiwan? And in the same spirit, can former US Secretary of State Colin Powell's statement really be construed to question the ROC's hold of sovereignty, or is it a jab against those favoring Taiwan independence or "two Chinas" which is the way I remember it was construed? I would appreciate definitive source info here to ensure accuracy. FWIW, it's well known that diplomats have basically had to do a dance when dealing with such questions, since the US does not recognize the ROC at present and reading what is really meant by their carefully parsed statements can be quite difficult. Thanks.Ngchen 23:06, 11 Apr 2005 (UTC)

Let me give it a try:
1) That line was initially cited with the source [13]. In that article, the source was cited as Starr, "Legal Status of Taiwan." Perhaps we should add the link back in the article to prevent future confusion. It specifically states that "sovereignty over the area is an unsettled question subject to future international resolution," thus undetermined even at the time when the U.S. recognizes ROC as the sole legitimate government representing the whole China. Taiwan does not belong to ROC, nor PRC, in the eyes of the U.S. during that time. However, it was silent on the role of SFPT in the sovereignty question of Taiwan. After this statement, I do not remember if there is any other clear statement on the question of Taiwan's sovereignty.

2)Probably not. But, you must understand the fact that the U.S. merely acknowledges PRC's claim but not recognizes it.

3)It seems to be clear that the sentence in the article targeted on PRC's claim over Taiwan, not ROC's. I do not believe the sentence in the article in tend to make any implication more than that. I agree with you that ROC's sovereignty claim has nothing to do with the six assurance which was intended to assure the U.S.'s support with Taiwan but not necessarily to recognize ROC's claim.

4)Colin Powell states:1)"There is only one China. Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy." He also stated: 2)"We want to see both sides not take unilateral action that would prejudice an eventual outcome, a reunification that all parties are seeking"

Powell was quick to withdraw the position described in the second statement once he went back to US. However, I do not recall that he ever modified his first statement, which denied Taiwan to be an independence country. I agree with you that reading between the lines is not always easy when interpreting diplomats' statements. Since we have no idea whether his statement is an dance targeting to the Taiwan independence supporters (as you suggested) or just another random mistake slip through his lips, all we can be certain is that he does not recognize the sovereignty of ROC.

If my question somehow help to ease your doubts on some or part of the statements, would you mind to remove the dubious sign for us? Many thanks. :) --Mababa 03:25, 12 Apr 2005 (UTC)

I believe that a full analysis of the US position on the question of Taiwan's sovereignty, plus an analysis of Powell's remarks will be found here What Are You Doing? http://www.taiwankey.net/dc/what2do6.htm :Hmortar 06:38, 16 November 2005 (UTC)

Thank you for providing the links. I have removed a few of the dubious statements, and added the National Review link. FWIW, upon googling the statement, all the links that come up are either those of pro-Taiwan independence sites or right-wing US sites, so I am still a bit skeptical. If someone can find the actual State Department transcript, it would settle all doubt. Nevertheless, a cited source trumps any hunches on my part <smile>. I modified the statement regarding the Six Assurances, based on the argument that the statement was (1) given to the ROC dictatorship, (2) the US IIRC recognized that the PRC was the sole legal government of all China. So, the statement probably was a reassurance that the US wouldn't recognize PRC sovereignty. As to the question of ROC sovereignty, it would be silent. As to the part about Colin Powell's statement, I still believe it was a jab at those promoting independence and/or those supporting "two Chinas" and that was why he was criticized for it. In fact, the NR article you noted specifically faulted him for so-called offering up too much. FWIW, his statement as a whole was definitely a pro (peaceful) unification statement, though he tried to backpedal on the second sentence as you said. If there are clarifications and such to the contrary, I would like to see them. Thanks. Ngchen 01:44, 18 Apr 2005 (UTC)

Thank you for your prompt response and edit. I personally think his comment is not very informative but provoking debates on its true meaning. Perhaps it would be more neutral if we remove that line?--Mababa 05:20, 18 Apr 2005 (UTC)

[edit] Dispositive treaty as doctrine or international law?

Now my turn. I have marked the description coining dispositive treaty as a doctrine dubious. I am not familiar with international laws in detail. However, since this section was about Taiwanese arguement not in favor Chinese sovereignty, their arguement should be preserved. I think it would be better and less confussing if rebuttals be placed in the pro-Chinese sovereignty section. Here, by coining the dispositive treaty as a doctrine, we would place the arguement at a place comparable to the Chinese unequal treaty doctrine, contrary to the pro-Taiwanese scholar's claim.

On the other hand, when we trace back to the original article making the arguement of dispositive treaty[14], one should find out that the dispositive treaty was probably introduced as part of international law, as either international norm or costumary law. Thus, we may be twisting their arguement at the beginning and also probably incorrect as a matter of fact. Fortunately that article gives the citation.

(1) Lord McNair, The Law of Treaties (Oxford Univ Press, 1961), pp．704～705。
橫田喜三郎《國際法II》，法律學全集56，有斐閣，一九五八年，頁三○○～三○一）。
(26)McNair, op. cit, pp. 705～706.

It would be great if someone can help us do some fact check on these sources and confirm either direction on the question wether dispositive treaty is a doctrine or an established international law.--Mababa 05:17, 18 Apr 2005 (UTC)

Actually, FWIW, calling something a doctrine doesn't mean its invalid, or that its validity is even questioned. There are numerous well-established ideas (such as the succession of states doctrine, sovereignty of states doctrine, etc.) that are called doctrines. Nevertheless, I agree it would be good for someone to fact check that notion of international law. Ngchen 17:36, 25 May 2005 (UTC)

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