By Chih-Jung Huang (黃致榮) | FAPA Policy Follow 

 

On Nov. 15, US President Joe Biden reiterated the US’ commitment to maintaining cross-strait peace and the “status quo” during a meeting with Chinese dictator Xi Jinping (習近平) on the sidelines of the Asia-Pacific Economic Cooperation (APEC) Summit in San Francisco, California.

However, Biden refrained from making clear to Xi what Taiwan’s “status quo” exactly is (as the US defines it).

It is not the first time Taiwan’s legal status has become an issue of contention.

In September, Tesla CEO Elon Musk caused a media storm after he referred to Taiwan as “an integral part of China” during an interview. This ignorance about Taiwan’s history and status came after his suggestion in October last year to make Taiwan a “special administrative zone” of China, similar to that of Hong Kong.

Musk’s comments on Taiwan are in line with the propaganda of the People’s Republic of China (PRC), which continues to threaten to annex Taiwan by force, and to promote its “one China principle” internationally to suppress Taiwan’s international recognition and participation.

To correct some popular misunderstandings and to more effectively counter the PRC’s disinformation on Taiwan’s history and status, this article argues that: (1) Historically speaking, Taiwan has never been a part of “China”; and (2) legally speaking, both the Republic of China (ROC; 1912–1949) and the People’s Republic of China (PRC; 1949–present) have never acquired territorial sovereignty over Taiwan.

The PRC government has no right to represent Taiwan, and only Taiwan’s democratically elected government can represent the 23 million Taiwanese people in the international arena. It has been long overdue for the free world to stand up together and counter China’s increasing bullying and aggression against Taiwan.

Taiwan up to 1895: From Indigenous Island to Conquered Colony

Contrary to the PRC’s claim that “Taiwan has belonged to China since ancient times,” Taiwan’s indigenous peoples have inhabited the island for at least six thousand years, with various political entities exercising control over parts of it until colonial powers conquered increasingly large portions of Taiwan beginning in the 17th century.

The pre-modern Han Chinese empires knew very little about Taiwan, and had long regarded Taiwan as a “savage” island “beyond the seas.” That is why when the Dutch temporarily occupied the Penghu Islands (ie, the Pescadores) in 1622, an official of the Chinese Ming Empire (1368–1662) asked the Dutch forces to withdraw from Penghu and move to Taiwan, showing clearly that the Chinese then considered Taiwan to be a remote island outside the Chinese civilization and domain.

Dutch Formosa (1624–1662) in southwestern Taiwan and Spanish Formosa (1626–1642) in northern Taiwan were the first colonial endeavors that exercised control over some parts of the island. The Dutch promoted agriculture in Taiwan and encouraged Han Chinese peasants to move from coastal China to the island.

In 1662, former Ming loyalist general Koxinga, also known as Cheng Cheng-kung (鄭成功), ended Dutch rule of Taiwan. He established a new independent kingdom in Taiwan, known as the Tungning Kingdom (1662–1683) or the Kingdom of Formosa, which ruled parts of the island until it was conquered in 1683 by the Manchu Qing empire.

The Manchu Qing Empire (1616–1912) was in essence a “non-Chinese” empire that was originally founded in what would later be known as “Manchuria,” outside of China. When the Manchus captured the Ming’s principal capital at Beijing in 1644, the Qing Empire had already existed outside China for 28 years, starting in 1616. It was not until 1681 that the Manchu Qing conquered all of China (ie, China Proper).

The Manchu Qing Empire conquered the Tungning Kingdom in 1683, and officially annexed the former Tungning territory in 1684. The Qing later expanded its colonial rule over western Taiwan, but that did not make Taiwan a part of “China.” Just as the British Empire had colonized India and Sri Lanka at the same time, doing so did not make Sri Lanka a part of “India.”

The number of Han Chinese settlers in Taiwan was still very small at the beginning of the 17th century, but steadily increased during the Dutch, Tungning and Qing periods for over 200 years, creating a primarily Han society in western Taiwan.

Nevertheless, at least until the 1870s, the Qing Empire still regarded most of central and eastern Taiwan as the “savage territory” of the Taiwanese “raw barbarians” outside the Qing domains.

Moreover, despite the Manchu Qing designating western Taiwan as administratively a prefecture of Fujian Province in 1684, and created Taiwan Province in 1885, Taiwan continued to be perceived as a remote and often “rebellious” island, instead of an integral part of the Chinese “inner lands” or China Proper.

Having been defeated by the Japanese, the Manchu Qing Empire signed the Peace Treaty of Shimonoseki with the Japanese Empire on April 17, 1895, and agreed to cede the island of Formosa (Taiwan) and the Pescadores (Penghu) “in perpetuity and full sovereignty” to Japan.

On May 25, 1895, the political elites and local gentry in Taiwan established the Democratic Republic of Taiwan (also known as the Republic of Formosa). However, lacking competent leaders and international support, the short-lived republic was destroyed by Japanese troops in October 1895. Thereafter, Taiwan remained under Japanese colonial rule for 50 years until 1945.

Modern China’s Early Support of Taiwan Independence

Seeking to overthrow the Manchus’ alien rule over China, the Han Chinese revolutionaries officially established the Republic of China (ROC; 1912–1949) on Jan. 1, 1912, in the 14 seceding provinces in China Proper that had proclaimed independence in late 1911. That was followed by the end of the Manchu Qing Empire on Feb. 12, 1912, and the annexation of the former Qing Empire’s remaining territories by the ROC in March 1912.

Since Taiwan had already been legally ceded by the Qing to Japan in 1895, it was impossible for the newly-established ROC to claim and inherit territorial sovereignty over Taiwan as a successor to the Qing Empire.

Until 1942, the ROC government and the Chinese people had generally considered and recognized that Taiwan was a Japanese colony and outside of modern China’s national territory. Both the Chinese Nationalist Party (KMT) and the Chinese Communist Party (CCP) even initially supported Taiwan independence.

In 1926, a declaration from the KMT’s Second National Party Congress commented on Taiwan’s “national revolution,” along with those in Korea, Vietnam and the Philippines, expressing the KMT’s support for independence for the Taiwanese nationality.

In 1938, during a speech to the KMT’s Provisional Party Congress, Chiang Kai-shek (蔣介石) said: “We must enable the brethren in Korea and Taiwan to restore their independence and freedom so as to solidify the national defense of the Republic of China, and to establish peace in East Asia.”

In a 1936 interview with American journalist Edgar Snow, Mao Zedong (毛澤東) stated: “If the Koreans wish to break away from the chains of Japanese imperialism, we will extend them our enthusiastic help in their struggle for independence. The same thing applies to Formosa [Taiwan].”

In an essay published in 1941, then-Chinese premier Zhou Enlai (周恩來) restated a well-established CCP position and wrote that: “We should sympathize with independence-liberation movements of other nation-states. We will … assist the anti-Japanese movements of Korea or Taiwan.”

Until the early 1940s, the ROC government and modern Chinese had never regarded and claimed Taiwan as “an integral part of China.” Instead, before 1942, the KMT and the CCP elites were generally indifferent to Taiwan and categorized Taiwanese and Chinese as distinct nationalities. Whenever they did mention Taiwan, it was always coupled with Korea, and they encouraged the Taiwanese and the Koreans to seek their own independence from Japanese imperialism.

The 1945 “Retrocession of Taiwan” to China Was Illegal and Invalid

Sometime in 1942, the ROC government and Chinese elites suddenly reimagined and expanded their “mental map of China” and began to claim that Taiwan should be “returned to China.” This was only because the defeat of Japan suddenly became possible after the US had declared war on Japan in December 1941.

The Cairo Declaration of 1943, and the Potsdam Proclamation of 1945 were merely “non-legally binding” wartime “statements of intention,” which expressed or reaffirmed, in part, the major Allied Powers’ “intention” that “Formosa [Taiwan], and the Pescadores [Penghu], be restored to the Republic of China” that, however, could not (and did not) make a cession of Taiwan from Japan to the ROC.

On Oct. 25, 1945, the ROC forces began to militarily occupy Taiwan at the direction of the “General Order No. 1,” issued by the Supreme Commander of the Allied Powers, General Douglas MacArthur. However, right after Japanese forces in Taiwan surrendered, the ROC immediately and unilaterally proclaimed that Taiwan was “restored” and became a province of “China.”

Nonetheless, the ROC should not and could not convert its military occupation of Taiwan into what it called the “Retrocession of Taiwan,” which was a blatant violation of international law, because: (1) The law of belligerent occupation had long held that territorial sovereignty would not be transferred by military occupation; and (2) the ROC’s unilateral and forcible annexation of Taiwan would violate the Declaration by the United Nations of 1942 (hereinafter, the UN Declaration) and the Charter of the United Nations of 1945 (hereinafter, the UN Charter), both of which incorporated the principles of “self-determination” and “no territorial aggrandizement by force” (or prohibition of aggression and conquest).

The ROC’s military occupation of Taiwan did not constitute a transfer of sovereignty over Taiwan from Japan to China, and the so-called “Retrocession of Taiwan” to the ROC was illegal and should not be recognized by any other States and international organizations.

Under the ROC’s military occupation, Taiwan remained de jure a Japanese territory, normally pending a peace treaty to finalize Taiwan’s post-WWII status, which, according to the UN Declaration and the UN Charter, should accord with the freely expressed wish of Taiwanese.

Neither the San Francisco Peace Treaty, nor UNGA Resolution 2758 made or recognized Taiwan as a part of China

Following the founding of the People’s Republic of China (PRC) on Oct. 1, 1949, the end of the ROC government in China on Dec. 8, 1949, and the establishment of the so-called “ROC” government in Taipei, Taiwan on Dec. 9, 1949, the status of Taiwan became a more complicated international political and legal issue.

The Treaty of Peace with Japan (also known as the San Francisco Peace Treaty, or the Treaty of San Francisco) was signed between 48 Allied Powers and Japan on Sept. 8, 1951, and entered into force on April 28, 1952. Neither the “ROC” on Taiwan nor the PRC was a party to this treaty.

Article 2(b) of the treaty simply stated that “Japan renounces all right, title and claim to Formosa and the Pescadores.” The treaty intentionally did not transfer sovereignty over Taiwan to China, nor did it provide any other settlement for the status of Taiwan. The PRC, therefore, refused to recognize the Treaty of San Francisco, asserting that the treaty was illegal and invalid.

Subsequently, the position that Taiwan’s legal status remained “undetermined” was commonly shared by many countries such as the US and the UK, and the international community, at least in the immediate years after 1952.

On Oct. 25, 1971, United Nations General Assembly (UNGA) Resolution 2758 was passed to resolve the issue of “China’s representation” in the UN. The resolution recognized the representatives of the PRC government as “the only lawful representatives of China” to the UN.

UNGA Resolution 2758, however, said nothing about Taiwan being “an integral part of China,” nor did it give the PRC government the right to represent the people of Taiwan. It did not address the issue of “Taiwan’s representation” in the UN system, and did not touch upon the question of Taiwan’s sovereignty. In fact, it did not even include the word “Taiwan.”

At that time, the PRC knew clearly that UNGA Resolution 2758 did not contain the wordings it wanted to claim Taiwan, and was worried that Taiwan’s status would be left undetermined in the UN. For example, just a few days before the passing of the resolution, on Oct. 21, 1971 in Beijing, then-PRC premier Zhou Enlai told then-assistant to the US President for National Security Affairs Dr. Henry Kissinger that: “In that [Albanian draft] resolution it is not possible to put in a clause concerning the status of Taiwan, and if it is passed, the status of Taiwan is not yet decided.”

Earlier, on Aug. 21, 1971, the PRC even issued a statement expressing its unwillingness to join the UN if “a situation of ‘two Chinas,’ ‘one China, one Taiwan,’ or ‘the status of Taiwan remaining to be determined,’ or any other similar situation occur in the UN.” However, given that the PRC was not as internationally influential as it is today, it did not reject the UN resolution when it passed. Instead, the PRC took over the UN seat from the ROC on Taiwan.

It was only some time later that the PRC began to distort the meaning of UNGA Resolution 2758, misrepresenting the resolution to promote its “one China principle” and its claim of sovereignty over Taiwan, and to suppress Taiwan’s international recognition and participation.

The Free World Should Counter China’s Fabricated Claim to Taiwan’s Sovereignty

History and international law clearly show that Taiwan has never been an integral part of China, and also that since its founding in 1949, the PRC has never acquired sovereignty over Taiwan by any treaty or UN resolution, nor has it ever ruled Taiwan for a single day.

Despite the CCP not regarding Taiwan as a part of China’s national territory until 1942, and even supporting Taiwan independence, and despite the PRC in 1971 worrying that UNGA Resolution 2758 would leave Taiwan’s status undetermined in the UN, the PRC went on to fabricate its historical and sovereignty claims over Taiwan regardless. Those claims are simply lies.

Unfortunately, along with its growing economic power and global influence, the PRC has highly succeeded in altering and manipulating the language used by other countries, international organizations (such as the UN), and private companies and individuals (such as Elon Musk) when referring to Taiwan’s status. Now, many of them, including internal UN references, no longer refer to Taiwan as just “Taiwan,” but rather “Taiwan, Province of China” or “Taiwan, China.”

To counter the PRC’s efforts to “internationalize” and “institutionalize” its “one China principle” and its fabricated claims over Taiwan, the free world should make it very clear that Taiwan is not a part of China, and support Taiwan’s right to self-determination and participation in international organizations.

This past July, the US House of Representatives unanimously passed the Taiwan International Solidarity Act, which aims to counter China’s claims over Taiwan and its efforts to exclude Taiwan from participating in international organizations. The bill, in part, clarifies that UNGA Resolution 2758 did not address the issues of Taiwan’s international representation and territorial sovereignty. Hopefully, this bill might soon pass the US Senate and become law.

One month later, the UK House of Commons Foreign Affairs Committee issued a new report in which it expressed its firm support for Taiwanese’s right to self-determination, and stated that “Taiwan is already an independent country.”

“Taiwan possesses all the qualifications of statehood, including a permanent population, a defined territory, government, and the capacity to enter into relations with other states — it is only lacking greater international recognition,” the report said.

Since China has accelerated its military buildup and disinformation campaigns in preparation for a conquest of Taiwan, it is now more important and urgent than ever for the US and its allies to stand up to the PRC’s coercive diplomacy and reject Beijing’s complete lies about Taiwan’s history and status.

Without a doubt, the most direct and effective way to challenge the PRC’s “one China principle” and counter its fabricated claim over Taiwan’s sovereignty is to officially recognize and establish diplomatic relations with democratic Taiwan, and support Taiwan’s full membership in the UN and all other international organizations.

The US, as the leading democratic country, should have the courage and determination to lead the free world to diplomatically recognize Taiwan as an independent, sovereign country. It is not only the right thing to do. It is long overdue.

 

Chih-Jung Huang is a non-resident Policy Fellow at the Formosan Association for Public Affairs (FAPA). He earned his doctorate degree from the University of Virginia School of Law. His doctoral thesis partly focused on the history and legal status of Taiwan.

 

This article is first published in Taipei Times (2023/11/28)