SDHF Newsletter No.365 A New View on the “Legal Status of Taiwan is Undetermined” Argument

A New View on the “Legal Status of Taiwan is Undetermined” Argument

– China Does Not Have a Legal Right of Possession of Taiwan –

Kawahara Shoichi

Senior Researcher, International Research Institute of Controversial Histories

After World War II, Japan renounced its possession of Taiwan and Pescadores Islands but only renounced its right of possession and did not specify territorial jurisdiction. Even now, determination of who holds the right of possession of Taiwan and Pescadores Island is pending, which necessitates certain procedures, such as holding an international conference to determine who bears the right of possession.

The Cairo declaration, issued on December 1, 1943, states “all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to Republic of China” and the Potsdam Declaration, issued on July 26, 1945, in its Article 8 stated “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” However this does not immediately evoke legal transfer of right of possession of Taiwan and Pescadores Islands. Transfer of a right, based on international law, does not come into effect unless a treaty is signed by government representatives and ratified by its council. Acceptance of the Potsdam Declaration merely obligated Japan to carry out the obligations in it and does not evoke a legal transfer of the right of possession.

If acceptance of the Potsdam Declaration induced transfer of the right of possession, the relevant provision in the San Francisco Peace Treaty would have been pointless and the provision should not have been made.

The San Francisco Peace Treaty Article 2 Section b provided that Japan renounces the right of possession of Taiwan and Pescadores Island and the land of which the right of possession was renounced becomes terra nullius. The principle of law based on international law concerning terra nullius is occupatio, which means that a nation can acquire ownership of terra nullius as its territory by exercising control over it before other nations do. What “exercising control” means is arguable but let us say that it refers to the state in which sovereignty is peacefully and continuously exercised over terra nullius without objection from other nations.

These lands were occupied by the Republic of China (the Government of Taiwan) when they became terra nullius. However, the People’s Republic of China (the Government of China) claims to possesses the lands. The current situation can hardly be said to be peaceful “exercising of control” and there is doubt of whether the Government of Taiwan possesses Taiwan and the Pescadores Islands.

At the same time, the Government of China does not even occupy Taiwan and the Pescadores Islands; the Government of China is not “exercising control” over Taiwan and the Pescadores Islands. Based on occupatio, the Government of China has no legal right of possession of Taiwan.

URL: https://www.sdh-fact.com/essay-article/1973/
PDF: https://www.sdh-fact.com/CL/Legale.pdf

MOTEKI Hiromichi, Chairman
Society for the Dissemination of Historical Fact