Questions and Answers on the Taiwan status
THE SEVEN CONCLUSIONS
Abbreviations and Terminology
Q1: The riddle of Taiwan's position in the international community has puzzled researchers for over fifty years. Is there a simple statement of the seven conclusions given above?
A1: The simplest statement would be to say that "Taiwan is unincorporated territory of the USMG."
Q2: Doesn't the recognition of such a status amount to saying that the USA is annexing Taiwan?
A2: Absolutely not. The US Supreme Court has continually held that insular areas are part of, but separate from, the USA. Initially, the essence of "interim status" may be difficult to grasp, but suffice it to say that all options for the future finalization of status are open. The Chinese nationalists are free to claim that Taiwan remains on the path of an future unification with the PRC, in accordance with the will of the Chinese people. The Taiwan independence advocates are free to claim otherwise .....
Q3: Isn't Taiwan recognized as a separate customs territory by the WTO? Isn't this separate customs territory status at odds with any other formulation?
A3: The concept of a separate customs territory comes from military occupation. The above seven conclusions do not alter Taiwan's status in WTO in any way, but only serve to further clarify the exact nature of it.
Q4: But isn't the PRC currently the legal government of Taiwan?
A4: Since the founding of the PRC in 1949, their laws have never had any effect over the Taiwanese, who have maintained their own Legislative Yuan and their own legal system. Additonally, the Taiwanese have no income tax or corporate tax liability to the PRC, and Taiwan maintains its own Directorate General of Customs, police force, coast guard, etc.
Given that currently the PRC is not exercising any defacto control over Taiwan whatsoever, it can only be said that the assertion that the PRC is the "legal government of Taiwan" is at odds with reality.
Q5: If the true nature of insular status is to say that Taiwan is separate from the USA, why is it that the the Taiwanese people now owe the USA allegiance?
A5: The doctrine of "temporary allegiance" is well documented in international law, especially in military law, and is in full conformity with the Geneva and Hague Conventions. It is part of the nature of "interim status", and arises from the law of occupation.
Q6: But the One China Policy states that "There is but one China and Taiwan is a part of China." Isn't this a contradiction?
A6: Inherent in the above seven conclusions is that there is no "Taiwan Republic", no "two Chinas", and no "one Taiwan - one China." This is precisely the US government's position. For example, in the Three Noes (1998.06.30) President Clinton said: "We don't support independence for Taiwan, or two Chinas, or one Taiwan-one China." He further clarified " . . . and we don't believe that Taiwan should be a member of any organization for which statehood is a requirement. "
Q7: But clearly President Clinton would have seen that the next logical step in Taiwan's development would be a direct unification with the PRC, and not continuance as a separate entity outside of the motherland. Isn't that true?
A7: There have been fifty years of confusion in the world community due to the claims of all Chinese that 1945.10.25 was "Taiwan Retrocession Day." This has been further confounded by the "successor government" rationale advanced by many legal scholars. Such a rationale states that Taiwan belongs to the PRC because the PRC is the fully recognized and legally legitimate "successor government" to the ROC.
However, in regard to the subject of territorial cession, from the early 1800's onward the law of nations has distinguished that "military occupation does not transfer sovereignty," and a formal treaty specification is necessary. After WWII the Japanese renounced all right, claim, and title to Formosa and the Pescadores, but the sovereignty of these areas was not transferred to any other country. In such a situation, the sovereignty is held in trust by the principal occupying power, and under the terms of the San Francisco Peace Treaty, this was specified as the United States Military Government. Hence, the ROC has never held the sovereignty of Taiwan.
Successive US government administrations from the June 1950 (under President Truman) to the present day (under President Bush) have upheld this interpretation. President Clinton carefully reiterated this position with his pronouncement of the Three Noes.
As revealed by Clinton aides, the "Three No's" policy rested on two key policy grounds: First, after the missile face-off of 1995-96, the Clinton Administration came to share the Chinese argument and concern that if Taiwan continued to move down the road of independence, China would have to take military action. Hence, there was a need to warn Taipei that it should not push its cause of Taiwan independence too far, lest it would run the risk of losing US support when China attacks. The US would not want to get involved in a war provoked by Taiwan.
Second, the Clinton Administration desired to make clear that the issue of Taiwan should not always be an impediment blocking the progress of the big vision of building "strategic partnership" with China.
Q8: In fact, Taiwan has belonged to China since ancient times, and this has been consistently recognized by historians. Even though Formosa and the Pescadores were ceded to Japan by the 1895 Treaty of Shimonoseki , Chiang Kai-shek unilaterally cancelled that treaty in the 1930's. Clearly, the entire territorial sovereignty of Taiwan reverted to China at that time. Doesn't this explanation clearly show that the above seven conclusions are in error?
A8: An explanation more in conformance to the law of nations would say that upon the coming into force of the 1895 Treaty, all previous claims of China regarding the ownership of Formosa and the Pescadores, whether due to history, culture, language, race, geography, geology, etc., became null and void. Moreover, close examination of the 1895 Treaty fails to find any article or provision which would allow for unilateral cancellation by the "original" Ching Dynasty government, or by the ROC as the "successor government" to the Ching.
In WWII, after the end of hostilities in Asia, it is known that the USMG forces entered Taiwan in early September 1945. When the ROC (KMT) troops arrived in Taiwan in mid-October, the Japanese flag was still flying, and the Japanese colonial administration was still functioning. Hence, it is hard to understand how (in the 1930's) the ROC's so-called unilateral cancellation of the 1895 Treaty had any influence on the ownership or sovereignty of Taiwan.
Q9: But doesn't an analysis of President Reagan's Six Assurances (1982.07.14) clearly show that the US recognizes the Chinese position on the sovereignty over Taiwan?
A9: The Six Assurances remain as binding elements of US policy to this day. President Reagan stated that (1) US has not agreed to set a date for ending arms sales to Taiwan, (2) US has not agreed to hold prior consultations with China on such arms sales, (3) US will not play any mediation role between Taipei and Beijing, (4) US has not agreed to revise the Taiwan Relations Act, (5) US has not altered its position regarding sovereignty over Taiwan, (6) US will not exert pressure on Taiwan to enter into negotiations with China.
It is to be expected that the United States will continue to respect the Six Assurances and their implications under international law. Whether the goal of the eventual unification of Taiwan with the PRC is included therein, would be a decision which would have to take into account the opinions of the Taiwanese people.
Q10: In the 1992 Cross-Straits' Consensus between ARATS and SEF (1992.10.30), both sides agreed to a number of important points. In the years since then, it has always been held that Taiwan is part of China. Doesn't this consensus clearly invalidate the above seven conclusions?
A10: Under the terms of the 1992 Cross-Straits' Consensus, the "one-China" principle was upheld. However it is important to remember that the Taiwan governing authorities and the PRC officials each claimed a different interpretation of the meaning of this principle. Most significantly, the following Six Conclusions were reached:
(1) Firmly oppose the split of China's sovereignty and territorial integrity.
Q11: Doesn't President Bush's cross-strait policy contain other elements which would contradict these seven conclusions?
A11: President Bush's cross-strait policy is composed of the Three Pillars: (1) "one China," (2) peaceful settlement of cross-strait problems through negotiations, and (3) no provocation by either side of the Strait. In accordance with the third pillar, Bush has the Two Principles: (1) objection to China's use of military force on Taiwan and (2) no support for Taiwan's declaration of independence.
This reflects a consistent US policy position over the last several decades.
Q12: Even assuming that Taiwan is in "interim status" under the San Francisco Peace Treaty of 1952, why not just leave it alone? Why should the United States step in and put Taiwan under the US flag at this point?
A12: Formosa and the Pescadores had become a separate customs territory on October 25, 1945, with the beginning of belligerent occupation. With the coming into force of the San Francisco Peace Treaty on April 28, 1952, these areas were separated from Japan. The civil affairs administration of USMG continued, although delegated to the ROC (KMT) as local military governors. The USA was faced with the Taiwan question. The USMG held the sovereignty of Taiwan, so should it be kept? Or given away? Made independent? Made into a US Trust Territory? Under the Truman statement of June 1950 it was clear that no decision on the "final status" of Taiwan had been formulated. Then in the first USA - PRC Joint Communique, President Nixon and Henry Kissinger officially altered this condition of the final status being "undetermined" to being "between" the ROC and the PRC.
Under the US system of government, constitutionally "permanent" means joining the Union. However, outside of the Union and without any civil government legislation by Congress any territory is still subject to civil affairs administration of USMG until a resolution of the interim status. Moreover, after 1898, all ceded territories are constitutionally subject to the doctrine of unincorporated territory. The law of occupation can continue indefinitely under such circumstances but this is only meant to be a more temporary condition like a trust territory.
The question then arises: Where are the US Constitutional rights of Taiwan's "island citizens" during the interim status under SFPT? Under insular law, they are "outside" the US Constitution except for certain fundamental rights. The US General Accounting Office has produced a detailed set of reports on the "Applicability of Constitutional Provisions to US Insular Areas," and these fully outline the constitutional articles which are applicable. In short, Taiwan can't be left alone any more after the US President and Congress realize that Taiwan's "island citizens" have rights under the Constitution.
Q13: If the ROC has never held the sovereignty of Taiwan, then where is the justification of compulsory military conscription over the Taiwanese populace?
A13: Compulsory military conscription in Taiwan violates Articles 40, 45, and 51 of the "Geneva Convention relative to the Protection of Civilian Persons in Time of War" (1949), as well as violating Article 45 of the "Annex to the Hague Convention No. IV embodying the Regulations Respecting the Laws and Customs of War on Land" (1907).
Historically and legally, the ROC is a "non-recognized government in exile". The TRA is very clear in stating that the "Republic of China" is not a recognized government after January 1, 1979. Additionally, the USA - ROC Mutual Defense Treaty was terminated on January 1, 1980.
The question of military service is covered in the UN Charter for trust territories which authorizes the defense of the territory by the administering authorities. It does not authorize (i.e. cannot be interpreted to authorize) the conduct of offensive operations against China, per se, nor the conscription of local inhabitants by the administrative authorities because of the laws of occupation remaining in force.
In the SFPT, while it is true that the Article 2 cession of Taiwan is not a trust territory of the Article 3 cessions, the Detaining Powers are obligated to closely observe the spirit of the UN Charter in the preamble of the SFPT. The imposition of conscription is just one more economic sanction or continuing reparation of war being imposed upon the local populace by the ROC. The original conscription of the Taiwanese might have been sanctioned by the UN Security Council in the early days of the Korean War against China, but the continuation of this practice at the present time is questionable. Self-defense forces like a conscripted militia might be allowable, if based on the Swiss military model.
Q14: It does not seem possible that these seven conclusions could be advanced without a formal revision of relevant US laws. Certainly there must be some elements here which contradict the TRA?
A14: The TRA has a "foreign state equivalency" clause --
Unfortunately this has been misinterpreted by many people over the last twenty years. President Clinton's Three Noes actually provided a clearer indication of the true meaning of this clause, i.e. "Taiwan is a sub-sovereign foreign state equivalent." This also forms an inherent part of the seven conclusions.
Other important considerations of the TRA are upheld in their entirety. Important examples are:
Q15: What about the provisions of the three Shanghai Communiques between the United States of America and the People's Republic of China? Will a fourth communique be necessary to clarify the exact relationship between Taiwan and the PRC?
A15: After reflecting on the seven conclusions, the true significance under international law of the three Joint Communiques comes into much clearer focus.
The following provisions are noteworthy:
With the seven conclusions, Taiwan's decision to unify with the PRC is something which will have to take into consideration the will of the Taiwanese people. Now that Taiwan's international legal status is clear, it is unlikely that a fourth Communique will be necessary.
As the Chinese themselves have said, the world community should support the goals of the Three Unifications: