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This is a rather crankish theory. By this I mean that the theory that the ROC government holds Taiwan in trust for the United States is an idiosyncratic one that no major group in Taiwan, the PRC, or the United States holds.
Roadrunner 08:52, 4 Nov 2004 (UTC)
You think that I don't know that? But if you read the links below, you might not be 100% convinced but you will at least give it some consideration. Don't ask me the detail though. I didn not invent this. I was not the one put this page on either. Also I would love to see your evidence of international laws before we call this is idiosyncratic. Mababa 08:54, 4 Nov 2004 (UTC)
A good lawyer can argue just about anything. I'm sure one could come up with a reasonable sounding argument that Taiwan belongs to Holland.
However, a legal argument is simply not relevant and worthy of inclusion in wikipedia if none of the parties in the dispute are arguing it. There is no major (or even minor party) in Taiwan, the PRC, or the United States that makes the case that this article is making. This takes up a huge amount of space, at the expense of the arguments which the parties of the dispute *are* making.
Roadrunner 09:14, 4 Nov 2004 (UTC)
1)I am afraid that there is no lawyer in the world can make a sounding argument that Taiwan belongs to Holland. There is a clear Treaty between Koxinga and the Dutch Government which states that Dutch people leave Formosa. [1] Taiwan is different. There is no clear subject to which Taiwan was cessioned. It takes some study on international laws to understand who holds the current sovereignty of Taiwan.2)There are people in Taiwan making this arguement though they are not in majority. 3)Granted, it is a convoluted arguement that requires a deeper undrestanding upon international laws and Law of land warfare to comprehend. And I do believe that the article should be kept as a separate entry and put a exerpt only into the political status of Taiwan. However, calling something crankish, idiosyncratic and not worthy just because one does not understand it is a clear POV. If you believes in the rule of law, then anything complies with the laws should be carried out. However, if one is a follower of rule of man, he would lean toward political measure to resolve any disputes. I do not think everything is right in the article, but I do not think it to be a waste. You do not have to agree with me. Mababa 05:11, 8 Nov 2004 (UTC)
Hello Jiang, would you make some account before you put a total dispute sign? Or could you at least drop some opinion to make a dispute case? Mababa 00:08, 26 Nov 2004 (UTC)
Let's conclude this dispute. I do agree that this model has been used by a minority group and we should let readers be awared of this. I think here is one of the discussion forum where this group try to promote their theory [2].
Please go ahead and do the modification you think would make the article NPOV. I totally have no position on how you would like to address the extent of the local support for this Taiwan cession. Please put the fact that this was used by a minor group into the article. However, to say this model is merely a primary researcher's account, was not used in any political activity and oes not worth of being mentioned is simply incorrect. I hope this helps your and roadrunner's question. Mababa 07:34, 9 Dec 2004 (UTC)
It's either relevant in History of Taiwan (relating to the past) or relevant in political status of Taiwan (relating to the present day). I don't see why we should have an article on "the situation in the past leading to now". It will either be relevant to one or both of the articles I have mentioned above. The whole point this article wants to make is related to Taiwan's current status--the assertion being it was never ceded to China. That is entirely relevant in political status of Taiwan.-- Jia ng 20:18, 11 Dec 2004 (UTC)
I attempted to add some perspective from the ROC/PRC perspective in an attempt to restore NPOV. Speaking of which, I would also like to question the notion that sovereignty is somehow "held in trust" by an occupying power. I always thought that international law gives an occupying power the administration of an area, but barring a specific cession, not the sovereignty of an area. The article still needs more work, and probably a new title as well. Ngchen 2:27, Dec 13 2004 (EST)
I thought about reverting your edit. But I do see that you were trying to add more perpectives from different angles. Several of my points to share with you:
1) This article is about the notion " Taiwan cession", not about other interpretation.
2) Please refer to the two external links below and they would tell you how a billigerant occupation following a treaty of renounce of sovereignty without transfer would result into a "limbo cession" or a "undertermined cession". The previous example would be Cuba cession in Treaty of Paris.
3) The treaty of Taipei is sheerly useless. Japan has already disposed and renounced the sovereignty of Taiwan in SFPT of 1951. Taiwan was no longer in the hand of Japan, and therefore Japan can never ever cession or void the sovereignty transfer of Taiwan in treaty of Taipei in 1952. Further, it was upon PRC's demand that Japan abrogated this treaty in 1970s. There is no way PRC can inherit Taiwan from ROC based on this treaty. Even ROC website claimed sovereignty transfer from surrender instrument, not treaty of Taipei.
Article 21 Notwithstanding the provisions of Article 25 of the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a)2
4) Lastly, I read this somewhere else but I thought this is the general rule: a dispositive treaty is generally not a target to nullify or void. Thus, a cession treaty can not be nullified. PRC's claim would be null in this sense. And you just can not find such unilateral claim from PRC in his english official websites.
Conclusion: PRC and ROC's claims are null. Again, my own POV.
I am afraid what you put into the article is not revalent to the "Taiwan cession" and has already been covered in the political status of Taiwan article. If there should be any POV in this article, it should be the interpertation of the articles of SFPT and the war of laws. I personally suggest to restore the change. I hope you would agree. Mababa 08:04, 13 Dec 2004 (UTC)
I have moved the discussion above to here so that people can participate the name-changing proposal. Mababa 04:50, 16 Dec 2004 (UTC)
The claims of the PRC and ROC based on Cairo conference and Potsdam declaration are all political assertations in my eye. Their claim does not comply with the legal reality where there is laws of treaties and there is a hierechy of the effectiveness of the treaties; and thus I consider their claims are political claims and should be and has already been addressed in the artical
political status of Taiwan. But, it is my POV. If other people agrees on the proposed change, perhaps we can also put on change of the US and UK's position along with the historical time line as well to make a distinction from the
political status of Taiwan. I would actually suggest that we can slightly touch on their claim by pointing out ROC and PRC claims sovereignty without international law basis and refer readers to the
political status of Taiwan.
Mababa 09:17, 15 Dec 2004 (UTC)
That is a POV. As I've tried to note, there are numerous legal reasons for claiming ROC/PRC sovereignty over Taiwan. Let's summarize. First, there is the question of the validity or lack thereof of the Treaty of Shimonoseki. It can be void ab initio, as claimed by the PRC. It could of been valid for a few decades until WWII, and repudiated by the ROC declaration of war against Japan, as claimed by the ROC. It could of been valid until Japan's surrender, or it could of been valid until the SFPT, or the Treaty of Taipei. If it were invalid from or before WWII, then Chinese sovereignty would be a open-and-shut case, as the PRC/ROC are both the successor states to the Qing dynasty. If it were valid until later, only then is it trickier. There then arise questions of intent on all sides, good faith negotiations, prescription, renunciation of sovereignty w/o a clear recipient (speaking of which - if there was no clear recipient, then couldn't one argue that the US would've simply acquired temporary administration of the area, immediately delegated to the ROC?), Potsdam declaration and Japanese agreement to it, and the like. To say that these arguments "don't have legal basis" is a very long stretch, and highly non NPOV.
戰爭對於交戰國間的條約(適用於戰時的條約除外)所給予的影響,國際法學者 L. Oppenhein 所做的以下分類,是現在最為普遍的見解。 [14]
(1)沒有設立永久狀態之所有政治性條約成為無效,同盟條約即是。 (2)沒有設立永久狀態之非政冶性條約,雖末必然因戰爭的爆發而成為無效,但卻可經由締約國自由裁量, 而加以廢棄或停止,例如通商條約即是。 (3)設立永久狀態之條約,無論其是否為政治性條約,皆不能因戰爭的爆發而成為無效。 但是,戰勝國可以用和平條約將之加以修改或解除。Lauterpacht, op. cit, p. 303.
If the PRC and ROC's illegal political positions which both do not have legal basis are going to be put into this article, I want to make sure that all the readers will be informed that their claims are political gestures and are not supported by laws of treaties and laws of wars. Mababa 09:17, 15 Dec 2004 (UTC)
Speaking of which, I'd like to inject my own POV for a short blurb. There is a phenomenon termed legalism, and much of the contortions used by the proponents of this idea fall under that category. Briefly, legalism is the mentality of taking and twisting law to suit one's own ends, without regard for intent, history, fair play, equality, or the like. Basically, it's the idea of "letter of the law" while totally ignoring "sprit of the law." The fact that the SFPT did not directly address the transfer of sovereignty to China was merely an accident of history due to the civil war there, and to somehow use that to argue against Chinese sovereignty of Taiwan strikes me as extremely legalistic. Ngchen 15:54, 15 Dec 2004 (UTC)
I believe we are ready to develop a NPOV version of this page. First, how about renaming the title "Ownership of Taiwan de jure" and then explaining the views of the PRC and ROC with regard to the Cairo conference and Potsdam declaration, which Japan accepted in its instrument of surrender. Following that, we could add the questions about the validity or lack thereof of those documents as a transfer of sovereignty, and the SFPT and its possible effects. Along with that theory, one should note that the logical conclusion of that theory would be that the United States holds sovereignty over Taiwan on a temporary basis to this day. Stuff about the unilateral nonrecognition of the Treaty of Shimonoseki, stuff over the Treaty of Taipei, and so on perhaps could nicely stay here, as they are side arguments, rather than principal arguments. Ngchen 11:02, 14 Dec 2004 (UTC)
Thank you for your suggestion. I am not the person created this page, thus I wonder what he would think. I personally do not have much opinion on changin the title. I still prefer not to put into too much political positions from other places, since it would make the article lose the focus on the legacy of SFPT on Taiwan.
I think your proposal is probably what AllyUnion means by saying this article should represent the situation in the past leading to now. Minus all the political and opinions whether or not Taiwan is owned by PRC or anyone. I am all for your proposed change. Mababa 04:50, 16 Dec 2004 (UTC)
With this additional discussion that took place, perhaps we can agree on the following, and convert this article to NPOV. If there is anything anyone disagrees with, please indicate one's objections.
(1) The title should be changed to "Legal status of the status of Taiwan's sovereignty."
(2) Brief historical overview section. In this section, all of the legal arguments on all sides should be left out. I suggest starting with the Treaty of Shimonoseki (if someone wants to add stuff about the Dutch and events prior, fine), and proceed through the Chinese Civil War, WWII, the Cairo Conference and Potsdam Declaration, Japanese Surrender, and the Treaty of Taipei. Perhaps one could add something about present-day Taiwan, and briefly touch on claims of self-determination and independence. I would expect this page to include numerous links to all the topics which are described in greater detail.
(3) Legal arguments section - one subsection for each side
(3a) Pro-China arguments - specify that the term "pro-China" refers only to arguments in favor of some sort of Chinese sovereignty, not necessarily implying that such a position necessarily benefits China
(3a.1) Arguments common to PRC and ROC - Cairo Conference, Potsdam Declaration, and Japanese Surrender, ROC declaration of war vs Japan, lack of invitation to SFPT protested and of questionable legality (possibly due to cold war maneuverings), lack of protest for years with ROC claiming retrocession, SFPT lack of explcit directive due to accident of history, and to top it off, the cultural claim - namely, that Taiwanese culture and Chinese culture have "always been closely linked " (their POV); IMO legally the cultural claim itself is a weak claim.
(3a.2) PRC arguments and their weaknesses (I suggest putting that here, since the PRC has probably the most extreme claims); unequal treaties void from start claim
(3a.3) ROC arguments and their weaknesses - treaty of Taipei and lack of protest (possible prescription). After reading over that treaty, I noticed that again, there was no explicit (even void?) transfer of sovereignty to ROC, FWIW. One can argue whether this is due to some sort of oversight, ill will, or something else.
(3b) Various
Taiwan independence movement arguments - IMO others can arrange this better than I can
(3b.1) Qing never really administered or ran Taiwan seriously to begin with, throwing the initial Qing claim in some doubt
(3b.2) Treaty of Shimonoseki, being a dispositive treaty, is unvoidable. By the Japanese cession at the end of WWII, it was at best unclear who the cession went to.
(3b.3) The Potsdam Declaration and Japanese surrender are simply a modus vivendi, which this side views as having been superceded by the SFPT, which again raises the limbo cession question.
(3b.4) Self-determination - the claimed right of people from areas detached from the enemy states to determine their own fate.
(3b.5) (Bringing the US in) Based on the limbo cession, one can also claim the US is still sovereign there, though this argument is claimed by a small minority.
(4) Current status of Taiwan and de jure view by the UN. Also briefly note the Montevideo Convention there. (I'll need to research that to be able to say much there)
(5) See also section - I think this section should really be large. History of Taiwan, Treaty of Shimonoseki, Unequal Treaties, Chinese Civil War, SFPT, Treaty of Taipei, Japanese Surrender, Cairo Conference, Potsdam Declaration, Taiwan Independence, Self-Determination, Qing dynasty, cold war, Political Status of Taiwan, Chinese Reunification, Montevideo Convention, and perhaps some others. For external links, we can keep the ones already listed, plus add a few taiwan independence links, a link or two to the PRC foreign ministry or particular embassies, and a link to the ROC government information office.
I think that if we summarize the arguments used (and can be used) by all sides, and include links to all the other relevant articles, then the article would be NPOV. As the article is about the legal status of Taiwan, I don't think stuff about how poorly or well the ROC dictatorship ran the place is relevant. If others agree, then we could get to work on the article and solve the NPOV dispute for good. Ngchen 20:55, 18 Dec 2004 (UTC)
I guess we can wait until the material here is rewritten before trying to do anything, but if things can fit on one page, we should probably fit it on one page.-- Jia ng
I redid the page, incorporating as much of the stuff on the previous version as I could find, and removed the NPOV tag. In terms of moving the page and making further revisions, I'll let our other contributers chime in first before changing anything else. Ngchen 18:37, 22 Dec 2004 (UTC)
Here is a webpage in mandarin discussing the validity of voiding Treaty of Shimonoseki, a dispositive treaty, [16].
Note: only the article six in Treaty of Shimonoseki is voidable. Other than that, nothing can be voided. Thus, no money and no territory can be legally gained or recovered by declaring the unequal treaty doctrine. Mababa 03:29, 17 Dec 2004 (UTC)
Then perhaps you can get some clue in the SFPT and see if the Allied Powers did give a damn about the Cairo press communique. :) Mababa 19:32, 17 Dec 2004 (UTC)
That I do not know. May I ask your evidence? The way they are treating the so called unequal treaties are exactly the way Britian was treating Nanking Treaty. Ask if Britian gives a damn to that treaty and perhaps we will know if the Allied Powers gave a damn to Treaty of Shimonoseki. Mababa 19:32, 17 Dec 2004 (UTC)
The Treaty of Shimonoseki, Potsdam/Cairo declarations were not valid, because they didn't meet the conditions set by the international laws regarding the conclusion of treaty.
Japan renounced any rights and claims to Taiwan and Pescadores according to Article 2b of the Peace Treaty of San Francisco 1952.
Some people suggest that according to Article 10 of the subsequent Treaty of Taipei, concluded between ROC and Japan, that Taiwan and Pescadores were returned to ROC. This view is wrong. Since Japan already renounced Taiwan and Pescadores, logically Japan cannot transfer Taiwan and Pescadores again to any state, simply because Japan was not the owner of these territories anymore. The said treaty was abrogated by Japan at the request of PRC government, when the 2 states established diplomatic relations.
The Chinese nationalists overthrew the Qing imperial government in 1911 and established a new republican government called Republic of China. The international community then recognized the new government as the sole legitimate Chinese government.
Same thing happened in 1949. The Chinese communists overthrew the ROC government and established the PRC government. The newly established government requested the UN to expel the ROC representatives from the UN, on the ground that PRC succeeded ROC, and according to international law that the succeeding government inherits all rights and obligations from the preceding government.
The current status of Taiwan is an occupied area under the effective control of the illegimate Chinese government. According to international law regarding the succeeding of government, there can be only one legitimate government per state, and the only legitimate Chinese government currently is PRC government, therefore Taiwan belongs to China. In other words, ROC is the reason that Taiwan belongs to China.
Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional. [19]
The only way Taiwan can achieve independence is to declare independence and seek UN membership and state recognition by other states in stead of government recognition.
I have been providing evidences against PRC's claim and I feel that I should at least say something hopeful on PRC's side. IMO and according to the theory of Taiwan cession, the only lawful way PRC can acquire Taiwan sovereignty is through political dialogue as stated in Shainghai communique. PRC should have started political negotiation with Taiwan authorities long time ago even if that means talking to Chen Shui-bian, unless PRC prefers war over dialogue. Mababa 04:40, 21 Dec 2004 (UTC)
It suddenly occurred to me that so far, the opinions among this discussion unamously regard the treaty of shimonoseki as result of aggression toward Qing and thus qualifies PRC's unequal treaty list. However, if we take one step further and look into the cause the first sino-japanese war in 1894, we would realize this war would ineviablly occurred anyway as a competition of resources on the Korean peninsula between the existing super power(Qing) and the other rising power(Japan). The trigger point of this war was due to the fact that both countries wants to interfere the internal affairs of Korea. This interpretation would be clearer and more obvious if one stands in a Korean's point of view. And Korea was actully the victim at the junction between the two powers. The result of the war is the treay which consists cession by conquer. Japan initially doesn't even want this barren island, Taiwan.
I understand the Chinese pride and dignity does not allow a different interpretation of the treaty of shimonoseki. However, I am still interested to learn if anyone on this discussion would dismiss the interpretation that this sino-japanese war was not an act of unilateral aggression but a conflict of resource between two strong countries? Mababa 22:21, 22 Dec 2004 (UTC)
That is incorrect. Only state possesses sovereignty, not government. Taiwan doesn't have sovereignty because it was and is a territory occupied by other states throughout its history. The ROC government was only a government in exile during 1949-1952. From 1952 it exercised effective control of Taiwan until now.
Therefore it isn’t a government in exile. General Douglas MacArthur's general order No. 1 was valid until the conclusion of the SFPT. The US senate ratified the SFPT, therefore US recognized Taiwan was renounced by Japan and occupied by the then legitimate Chinese government(ROC). The US military government in Japan(including Taiwan) ceased to exist on the day the SFPT went into effect.
Of course French Indo-China north of 16 north wasn’t part of China due to the occupation by the ROC force. Because it was a temporary occupation pursuant to the General Douglas MacArthur's general order No. 1. The French force later returned to replace the Chinese simply because it was a French colony, a part of France.
Thanks to the many good improvements, I think I can live with this being a separate article, but it should be moved to "sovereignty over Taiwan" and be made the "main article" of the section Political_status_of_Taiwan#Question_of_sovereignty (which should be steamlined to about three paragraphs, making sure it contains no info that's not already mentioned here). The entire Political_status_of_Taiwan article will need to be reorganized/rewritten to have all the legal arguments sit in one section. The rest of the article should focus on historical background (including the major policies enacted through various times) of the conflict. (I believe the Taiwan independence and Chinese reunification articles currently contain more comprehensive material on the subject than the supposedly more general Political_status_of_Taiwan article.
I would like clarification on the historical validity of this statement: "The Qing dynasty never effectively exercised administrative control over Taiwan, making its initial claim of questionable validity." My understanding is that the Qing were the first to establish control, unlike previous dynasties. Having a high incidence of crime in the area does not mean they did not "effectively exercise control" because there are bound to be bandits and pirates everywhere. -- Jiang 09:35, 25 Dec 2004 (UTC)
Another title can be "Legal status of Taiwan" if "sovereignty over Taiwan" seems too ambiguous or broad. I think "Legal status of the status of Taiwan's sovereignty" is too wordy. First, it's unecessary to mention "status" twice since we automatically assume legal status includes "status". Second, legality implies sovereignty and vice versa.
I removed the following since it sounds like political consequence due to a particular stance of Taiwan's sovereignty and belongs in the "political status" article:
-- Jiang 10:30, 25 Dec 2004 (UTC)
With the NPOV strikethroughs made, the text should somehow be incorporated, along with other theories about what constitutes a state and its legitimacy. I felt it wasn't apporpriate in the lead since this article doesn't discuss Taiwan's status as a state, province, or neither but who legally owns it. It's an area where this article should probably expand on.
This never happened. Hoover's suggestion was not implemented. I don't see the relevance of any of this.
Changed "China" (very misleading) to "Republic of China" in the previous paragraph to reflect the 1st sentence. The 2nd sentence slightly contradicts the following paragraph and needs to be incoporated if valid. The 3rd/4th sentences are unattributed. To the best of my knowledge, the treaty makes no such provision for a trust or settlement in the UNGA.
CHAPTER VI SETTLEMENT OF DISPUTES Article 22 If in the opinion of any Party to the present Treaty there has arisen a dispute concerning the interpretation or execution of the Treaty, which is not settled by reference to a special claims tribunal or by other agreed means, the dispute shall, at the request of any party thereto, be referred for decision to the International Court of Justice. Japan and those Allied Powers which are not already parties to the Statute of the International Court of Justice will deposit with the Registrar of the Court, at the time of their respective ratifications of the present Treaty, and in conformity with the resolution of the United Nations Security Council, dated 15 October 1946, a general declaration accepting the jurisdiction, without special agreement, of the Court generally in respect to all disputes of the character referred to in this Article. [26]
The most similiar thing I can find in the treaty is:
Article 4 (b) Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3. [27]
Article 2
(a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.
(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
(c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5 September 1905.
(d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and accepts the action of the United Nations Security Council of 2 April 1947, extending the trusteeship system to the Pacific Islands formerly under mandate to Japan.
What's the point being made here regarding the legal status of Taiwan? "A lot of things have happened" sounds awfully ambiguous. Wasn't Churchill just trying to stop the spread of communism?
Additionally, content needs to added in the historical section regarding the legal effect of the treaty establishing relations between the PRC and Japan and the three communique's between the PRC and US.
And please use spell check. -- Jiang 05:57, 28 Dec 2004 (UTC)
2)a peace settlement with Japan, or 3)consideration by the United Nations. And, this policy is what has been omitted. Mababa 20:35, 28 Dec 2004 (UTC)
NPOV was reached. Jiang, you're right. After read the article over agian, I think the article is still in a good NPOV shape even without the components removed aboved. Now I only hope you can find a good place to put the churchill's statement and also agree that we can have the President Truman's statement back. It would be wonderful if the juridical person part comes back since it does not contradict with the title even if this would make the article focusing on the sovereignty not the "province"... etc. Good night. Mababa 08:22, 28 Dec 2004 (UTC)
In light of the curent situation where no concensus are reached so far, I would like to friendly remind Jiang the policy of NPOV, which is to present all side of what people believe instead of supress what people do not believe.
Mababa 21:47, 28 Dec 2004 (UTC)
Thank you for the reminder, Mababa. However, the main issue I have against the texts I removed is accuracy and relevancy, not neutrality. It would be hard for me to make a case if the issue resided on neutrality. -- Ji ang 23:23, 28 Dec 2004 (UTC)
Not really, Jiang. Relevancy is subject to one's point of view and it is your point of view againsting mine. Furthermore, I do not see a problem of the accuracy. Most of the opinions presented here which you against are cited with a source and they were not converted into FACT. If this article is all about the facts, then the article can only be devoted to one of the PRC, ROC, Taiwan or US. The fact can only be one and all the arguements in the article are mutually exclusive.
We realize that this does not IN FACT convert that opinion TO a fact, it just says it is a FACT that: "this person holds that opinion."---From NPOV
This is a NPOV dispute and this dispute is totally focused on your opinion which you are trying to impose onto others and exclude others' opinion. Nope, you failed to convince me that this is not a case of POV and the issue does not reside on neutrality of opinions. I hope you can see this. :) Mababa 02:57, 29 Dec 2004 (UTC)
This page is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page. |
This is a rather crankish theory. By this I mean that the theory that the ROC government holds Taiwan in trust for the United States is an idiosyncratic one that no major group in Taiwan, the PRC, or the United States holds.
Roadrunner 08:52, 4 Nov 2004 (UTC)
You think that I don't know that? But if you read the links below, you might not be 100% convinced but you will at least give it some consideration. Don't ask me the detail though. I didn not invent this. I was not the one put this page on either. Also I would love to see your evidence of international laws before we call this is idiosyncratic. Mababa 08:54, 4 Nov 2004 (UTC)
A good lawyer can argue just about anything. I'm sure one could come up with a reasonable sounding argument that Taiwan belongs to Holland.
However, a legal argument is simply not relevant and worthy of inclusion in wikipedia if none of the parties in the dispute are arguing it. There is no major (or even minor party) in Taiwan, the PRC, or the United States that makes the case that this article is making. This takes up a huge amount of space, at the expense of the arguments which the parties of the dispute *are* making.
Roadrunner 09:14, 4 Nov 2004 (UTC)
1)I am afraid that there is no lawyer in the world can make a sounding argument that Taiwan belongs to Holland. There is a clear Treaty between Koxinga and the Dutch Government which states that Dutch people leave Formosa. [1] Taiwan is different. There is no clear subject to which Taiwan was cessioned. It takes some study on international laws to understand who holds the current sovereignty of Taiwan.2)There are people in Taiwan making this arguement though they are not in majority. 3)Granted, it is a convoluted arguement that requires a deeper undrestanding upon international laws and Law of land warfare to comprehend. And I do believe that the article should be kept as a separate entry and put a exerpt only into the political status of Taiwan. However, calling something crankish, idiosyncratic and not worthy just because one does not understand it is a clear POV. If you believes in the rule of law, then anything complies with the laws should be carried out. However, if one is a follower of rule of man, he would lean toward political measure to resolve any disputes. I do not think everything is right in the article, but I do not think it to be a waste. You do not have to agree with me. Mababa 05:11, 8 Nov 2004 (UTC)
Hello Jiang, would you make some account before you put a total dispute sign? Or could you at least drop some opinion to make a dispute case? Mababa 00:08, 26 Nov 2004 (UTC)
Let's conclude this dispute. I do agree that this model has been used by a minority group and we should let readers be awared of this. I think here is one of the discussion forum where this group try to promote their theory [2].
Please go ahead and do the modification you think would make the article NPOV. I totally have no position on how you would like to address the extent of the local support for this Taiwan cession. Please put the fact that this was used by a minor group into the article. However, to say this model is merely a primary researcher's account, was not used in any political activity and oes not worth of being mentioned is simply incorrect. I hope this helps your and roadrunner's question. Mababa 07:34, 9 Dec 2004 (UTC)
It's either relevant in History of Taiwan (relating to the past) or relevant in political status of Taiwan (relating to the present day). I don't see why we should have an article on "the situation in the past leading to now". It will either be relevant to one or both of the articles I have mentioned above. The whole point this article wants to make is related to Taiwan's current status--the assertion being it was never ceded to China. That is entirely relevant in political status of Taiwan.-- Jia ng 20:18, 11 Dec 2004 (UTC)
I attempted to add some perspective from the ROC/PRC perspective in an attempt to restore NPOV. Speaking of which, I would also like to question the notion that sovereignty is somehow "held in trust" by an occupying power. I always thought that international law gives an occupying power the administration of an area, but barring a specific cession, not the sovereignty of an area. The article still needs more work, and probably a new title as well. Ngchen 2:27, Dec 13 2004 (EST)
I thought about reverting your edit. But I do see that you were trying to add more perpectives from different angles. Several of my points to share with you:
1) This article is about the notion " Taiwan cession", not about other interpretation.
2) Please refer to the two external links below and they would tell you how a billigerant occupation following a treaty of renounce of sovereignty without transfer would result into a "limbo cession" or a "undertermined cession". The previous example would be Cuba cession in Treaty of Paris.
3) The treaty of Taipei is sheerly useless. Japan has already disposed and renounced the sovereignty of Taiwan in SFPT of 1951. Taiwan was no longer in the hand of Japan, and therefore Japan can never ever cession or void the sovereignty transfer of Taiwan in treaty of Taipei in 1952. Further, it was upon PRC's demand that Japan abrogated this treaty in 1970s. There is no way PRC can inherit Taiwan from ROC based on this treaty. Even ROC website claimed sovereignty transfer from surrender instrument, not treaty of Taipei.
Article 21 Notwithstanding the provisions of Article 25 of the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a)2
4) Lastly, I read this somewhere else but I thought this is the general rule: a dispositive treaty is generally not a target to nullify or void. Thus, a cession treaty can not be nullified. PRC's claim would be null in this sense. And you just can not find such unilateral claim from PRC in his english official websites.
Conclusion: PRC and ROC's claims are null. Again, my own POV.
I am afraid what you put into the article is not revalent to the "Taiwan cession" and has already been covered in the political status of Taiwan article. If there should be any POV in this article, it should be the interpertation of the articles of SFPT and the war of laws. I personally suggest to restore the change. I hope you would agree. Mababa 08:04, 13 Dec 2004 (UTC)
I have moved the discussion above to here so that people can participate the name-changing proposal. Mababa 04:50, 16 Dec 2004 (UTC)
The claims of the PRC and ROC based on Cairo conference and Potsdam declaration are all political assertations in my eye. Their claim does not comply with the legal reality where there is laws of treaties and there is a hierechy of the effectiveness of the treaties; and thus I consider their claims are political claims and should be and has already been addressed in the artical
political status of Taiwan. But, it is my POV. If other people agrees on the proposed change, perhaps we can also put on change of the US and UK's position along with the historical time line as well to make a distinction from the
political status of Taiwan. I would actually suggest that we can slightly touch on their claim by pointing out ROC and PRC claims sovereignty without international law basis and refer readers to the
political status of Taiwan.
Mababa 09:17, 15 Dec 2004 (UTC)
That is a POV. As I've tried to note, there are numerous legal reasons for claiming ROC/PRC sovereignty over Taiwan. Let's summarize. First, there is the question of the validity or lack thereof of the Treaty of Shimonoseki. It can be void ab initio, as claimed by the PRC. It could of been valid for a few decades until WWII, and repudiated by the ROC declaration of war against Japan, as claimed by the ROC. It could of been valid until Japan's surrender, or it could of been valid until the SFPT, or the Treaty of Taipei. If it were invalid from or before WWII, then Chinese sovereignty would be a open-and-shut case, as the PRC/ROC are both the successor states to the Qing dynasty. If it were valid until later, only then is it trickier. There then arise questions of intent on all sides, good faith negotiations, prescription, renunciation of sovereignty w/o a clear recipient (speaking of which - if there was no clear recipient, then couldn't one argue that the US would've simply acquired temporary administration of the area, immediately delegated to the ROC?), Potsdam declaration and Japanese agreement to it, and the like. To say that these arguments "don't have legal basis" is a very long stretch, and highly non NPOV.
戰爭對於交戰國間的條約(適用於戰時的條約除外)所給予的影響,國際法學者 L. Oppenhein 所做的以下分類,是現在最為普遍的見解。 [14]
(1)沒有設立永久狀態之所有政治性條約成為無效,同盟條約即是。 (2)沒有設立永久狀態之非政冶性條約,雖末必然因戰爭的爆發而成為無效,但卻可經由締約國自由裁量, 而加以廢棄或停止,例如通商條約即是。 (3)設立永久狀態之條約,無論其是否為政治性條約,皆不能因戰爭的爆發而成為無效。 但是,戰勝國可以用和平條約將之加以修改或解除。Lauterpacht, op. cit, p. 303.
If the PRC and ROC's illegal political positions which both do not have legal basis are going to be put into this article, I want to make sure that all the readers will be informed that their claims are political gestures and are not supported by laws of treaties and laws of wars. Mababa 09:17, 15 Dec 2004 (UTC)
Speaking of which, I'd like to inject my own POV for a short blurb. There is a phenomenon termed legalism, and much of the contortions used by the proponents of this idea fall under that category. Briefly, legalism is the mentality of taking and twisting law to suit one's own ends, without regard for intent, history, fair play, equality, or the like. Basically, it's the idea of "letter of the law" while totally ignoring "sprit of the law." The fact that the SFPT did not directly address the transfer of sovereignty to China was merely an accident of history due to the civil war there, and to somehow use that to argue against Chinese sovereignty of Taiwan strikes me as extremely legalistic. Ngchen 15:54, 15 Dec 2004 (UTC)
I believe we are ready to develop a NPOV version of this page. First, how about renaming the title "Ownership of Taiwan de jure" and then explaining the views of the PRC and ROC with regard to the Cairo conference and Potsdam declaration, which Japan accepted in its instrument of surrender. Following that, we could add the questions about the validity or lack thereof of those documents as a transfer of sovereignty, and the SFPT and its possible effects. Along with that theory, one should note that the logical conclusion of that theory would be that the United States holds sovereignty over Taiwan on a temporary basis to this day. Stuff about the unilateral nonrecognition of the Treaty of Shimonoseki, stuff over the Treaty of Taipei, and so on perhaps could nicely stay here, as they are side arguments, rather than principal arguments. Ngchen 11:02, 14 Dec 2004 (UTC)
Thank you for your suggestion. I am not the person created this page, thus I wonder what he would think. I personally do not have much opinion on changin the title. I still prefer not to put into too much political positions from other places, since it would make the article lose the focus on the legacy of SFPT on Taiwan.
I think your proposal is probably what AllyUnion means by saying this article should represent the situation in the past leading to now. Minus all the political and opinions whether or not Taiwan is owned by PRC or anyone. I am all for your proposed change. Mababa 04:50, 16 Dec 2004 (UTC)
With this additional discussion that took place, perhaps we can agree on the following, and convert this article to NPOV. If there is anything anyone disagrees with, please indicate one's objections.
(1) The title should be changed to "Legal status of the status of Taiwan's sovereignty."
(2) Brief historical overview section. In this section, all of the legal arguments on all sides should be left out. I suggest starting with the Treaty of Shimonoseki (if someone wants to add stuff about the Dutch and events prior, fine), and proceed through the Chinese Civil War, WWII, the Cairo Conference and Potsdam Declaration, Japanese Surrender, and the Treaty of Taipei. Perhaps one could add something about present-day Taiwan, and briefly touch on claims of self-determination and independence. I would expect this page to include numerous links to all the topics which are described in greater detail.
(3) Legal arguments section - one subsection for each side
(3a) Pro-China arguments - specify that the term "pro-China" refers only to arguments in favor of some sort of Chinese sovereignty, not necessarily implying that such a position necessarily benefits China
(3a.1) Arguments common to PRC and ROC - Cairo Conference, Potsdam Declaration, and Japanese Surrender, ROC declaration of war vs Japan, lack of invitation to SFPT protested and of questionable legality (possibly due to cold war maneuverings), lack of protest for years with ROC claiming retrocession, SFPT lack of explcit directive due to accident of history, and to top it off, the cultural claim - namely, that Taiwanese culture and Chinese culture have "always been closely linked " (their POV); IMO legally the cultural claim itself is a weak claim.
(3a.2) PRC arguments and their weaknesses (I suggest putting that here, since the PRC has probably the most extreme claims); unequal treaties void from start claim
(3a.3) ROC arguments and their weaknesses - treaty of Taipei and lack of protest (possible prescription). After reading over that treaty, I noticed that again, there was no explicit (even void?) transfer of sovereignty to ROC, FWIW. One can argue whether this is due to some sort of oversight, ill will, or something else.
(3b) Various
Taiwan independence movement arguments - IMO others can arrange this better than I can
(3b.1) Qing never really administered or ran Taiwan seriously to begin with, throwing the initial Qing claim in some doubt
(3b.2) Treaty of Shimonoseki, being a dispositive treaty, is unvoidable. By the Japanese cession at the end of WWII, it was at best unclear who the cession went to.
(3b.3) The Potsdam Declaration and Japanese surrender are simply a modus vivendi, which this side views as having been superceded by the SFPT, which again raises the limbo cession question.
(3b.4) Self-determination - the claimed right of people from areas detached from the enemy states to determine their own fate.
(3b.5) (Bringing the US in) Based on the limbo cession, one can also claim the US is still sovereign there, though this argument is claimed by a small minority.
(4) Current status of Taiwan and de jure view by the UN. Also briefly note the Montevideo Convention there. (I'll need to research that to be able to say much there)
(5) See also section - I think this section should really be large. History of Taiwan, Treaty of Shimonoseki, Unequal Treaties, Chinese Civil War, SFPT, Treaty of Taipei, Japanese Surrender, Cairo Conference, Potsdam Declaration, Taiwan Independence, Self-Determination, Qing dynasty, cold war, Political Status of Taiwan, Chinese Reunification, Montevideo Convention, and perhaps some others. For external links, we can keep the ones already listed, plus add a few taiwan independence links, a link or two to the PRC foreign ministry or particular embassies, and a link to the ROC government information office.
I think that if we summarize the arguments used (and can be used) by all sides, and include links to all the other relevant articles, then the article would be NPOV. As the article is about the legal status of Taiwan, I don't think stuff about how poorly or well the ROC dictatorship ran the place is relevant. If others agree, then we could get to work on the article and solve the NPOV dispute for good. Ngchen 20:55, 18 Dec 2004 (UTC)
I guess we can wait until the material here is rewritten before trying to do anything, but if things can fit on one page, we should probably fit it on one page.-- Jia ng
I redid the page, incorporating as much of the stuff on the previous version as I could find, and removed the NPOV tag. In terms of moving the page and making further revisions, I'll let our other contributers chime in first before changing anything else. Ngchen 18:37, 22 Dec 2004 (UTC)
Here is a webpage in mandarin discussing the validity of voiding Treaty of Shimonoseki, a dispositive treaty, [16].
Note: only the article six in Treaty of Shimonoseki is voidable. Other than that, nothing can be voided. Thus, no money and no territory can be legally gained or recovered by declaring the unequal treaty doctrine. Mababa 03:29, 17 Dec 2004 (UTC)
Then perhaps you can get some clue in the SFPT and see if the Allied Powers did give a damn about the Cairo press communique. :) Mababa 19:32, 17 Dec 2004 (UTC)
That I do not know. May I ask your evidence? The way they are treating the so called unequal treaties are exactly the way Britian was treating Nanking Treaty. Ask if Britian gives a damn to that treaty and perhaps we will know if the Allied Powers gave a damn to Treaty of Shimonoseki. Mababa 19:32, 17 Dec 2004 (UTC)
The Treaty of Shimonoseki, Potsdam/Cairo declarations were not valid, because they didn't meet the conditions set by the international laws regarding the conclusion of treaty.
Japan renounced any rights and claims to Taiwan and Pescadores according to Article 2b of the Peace Treaty of San Francisco 1952.
Some people suggest that according to Article 10 of the subsequent Treaty of Taipei, concluded between ROC and Japan, that Taiwan and Pescadores were returned to ROC. This view is wrong. Since Japan already renounced Taiwan and Pescadores, logically Japan cannot transfer Taiwan and Pescadores again to any state, simply because Japan was not the owner of these territories anymore. The said treaty was abrogated by Japan at the request of PRC government, when the 2 states established diplomatic relations.
The Chinese nationalists overthrew the Qing imperial government in 1911 and established a new republican government called Republic of China. The international community then recognized the new government as the sole legitimate Chinese government.
Same thing happened in 1949. The Chinese communists overthrew the ROC government and established the PRC government. The newly established government requested the UN to expel the ROC representatives from the UN, on the ground that PRC succeeded ROC, and according to international law that the succeeding government inherits all rights and obligations from the preceding government.
The current status of Taiwan is an occupied area under the effective control of the illegimate Chinese government. According to international law regarding the succeeding of government, there can be only one legitimate government per state, and the only legitimate Chinese government currently is PRC government, therefore Taiwan belongs to China. In other words, ROC is the reason that Taiwan belongs to China.
Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional. [19]
The only way Taiwan can achieve independence is to declare independence and seek UN membership and state recognition by other states in stead of government recognition.
I have been providing evidences against PRC's claim and I feel that I should at least say something hopeful on PRC's side. IMO and according to the theory of Taiwan cession, the only lawful way PRC can acquire Taiwan sovereignty is through political dialogue as stated in Shainghai communique. PRC should have started political negotiation with Taiwan authorities long time ago even if that means talking to Chen Shui-bian, unless PRC prefers war over dialogue. Mababa 04:40, 21 Dec 2004 (UTC)
It suddenly occurred to me that so far, the opinions among this discussion unamously regard the treaty of shimonoseki as result of aggression toward Qing and thus qualifies PRC's unequal treaty list. However, if we take one step further and look into the cause the first sino-japanese war in 1894, we would realize this war would ineviablly occurred anyway as a competition of resources on the Korean peninsula between the existing super power(Qing) and the other rising power(Japan). The trigger point of this war was due to the fact that both countries wants to interfere the internal affairs of Korea. This interpretation would be clearer and more obvious if one stands in a Korean's point of view. And Korea was actully the victim at the junction between the two powers. The result of the war is the treay which consists cession by conquer. Japan initially doesn't even want this barren island, Taiwan.
I understand the Chinese pride and dignity does not allow a different interpretation of the treaty of shimonoseki. However, I am still interested to learn if anyone on this discussion would dismiss the interpretation that this sino-japanese war was not an act of unilateral aggression but a conflict of resource between two strong countries? Mababa 22:21, 22 Dec 2004 (UTC)
That is incorrect. Only state possesses sovereignty, not government. Taiwan doesn't have sovereignty because it was and is a territory occupied by other states throughout its history. The ROC government was only a government in exile during 1949-1952. From 1952 it exercised effective control of Taiwan until now.
Therefore it isn’t a government in exile. General Douglas MacArthur's general order No. 1 was valid until the conclusion of the SFPT. The US senate ratified the SFPT, therefore US recognized Taiwan was renounced by Japan and occupied by the then legitimate Chinese government(ROC). The US military government in Japan(including Taiwan) ceased to exist on the day the SFPT went into effect.
Of course French Indo-China north of 16 north wasn’t part of China due to the occupation by the ROC force. Because it was a temporary occupation pursuant to the General Douglas MacArthur's general order No. 1. The French force later returned to replace the Chinese simply because it was a French colony, a part of France.
Thanks to the many good improvements, I think I can live with this being a separate article, but it should be moved to "sovereignty over Taiwan" and be made the "main article" of the section Political_status_of_Taiwan#Question_of_sovereignty (which should be steamlined to about three paragraphs, making sure it contains no info that's not already mentioned here). The entire Political_status_of_Taiwan article will need to be reorganized/rewritten to have all the legal arguments sit in one section. The rest of the article should focus on historical background (including the major policies enacted through various times) of the conflict. (I believe the Taiwan independence and Chinese reunification articles currently contain more comprehensive material on the subject than the supposedly more general Political_status_of_Taiwan article.
I would like clarification on the historical validity of this statement: "The Qing dynasty never effectively exercised administrative control over Taiwan, making its initial claim of questionable validity." My understanding is that the Qing were the first to establish control, unlike previous dynasties. Having a high incidence of crime in the area does not mean they did not "effectively exercise control" because there are bound to be bandits and pirates everywhere. -- Jiang 09:35, 25 Dec 2004 (UTC)
Another title can be "Legal status of Taiwan" if "sovereignty over Taiwan" seems too ambiguous or broad. I think "Legal status of the status of Taiwan's sovereignty" is too wordy. First, it's unecessary to mention "status" twice since we automatically assume legal status includes "status". Second, legality implies sovereignty and vice versa.
I removed the following since it sounds like political consequence due to a particular stance of Taiwan's sovereignty and belongs in the "political status" article:
-- Jiang 10:30, 25 Dec 2004 (UTC)
With the NPOV strikethroughs made, the text should somehow be incorporated, along with other theories about what constitutes a state and its legitimacy. I felt it wasn't apporpriate in the lead since this article doesn't discuss Taiwan's status as a state, province, or neither but who legally owns it. It's an area where this article should probably expand on.
This never happened. Hoover's suggestion was not implemented. I don't see the relevance of any of this.
Changed "China" (very misleading) to "Republic of China" in the previous paragraph to reflect the 1st sentence. The 2nd sentence slightly contradicts the following paragraph and needs to be incoporated if valid. The 3rd/4th sentences are unattributed. To the best of my knowledge, the treaty makes no such provision for a trust or settlement in the UNGA.
CHAPTER VI SETTLEMENT OF DISPUTES Article 22 If in the opinion of any Party to the present Treaty there has arisen a dispute concerning the interpretation or execution of the Treaty, which is not settled by reference to a special claims tribunal or by other agreed means, the dispute shall, at the request of any party thereto, be referred for decision to the International Court of Justice. Japan and those Allied Powers which are not already parties to the Statute of the International Court of Justice will deposit with the Registrar of the Court, at the time of their respective ratifications of the present Treaty, and in conformity with the resolution of the United Nations Security Council, dated 15 October 1946, a general declaration accepting the jurisdiction, without special agreement, of the Court generally in respect to all disputes of the character referred to in this Article. [26]
The most similiar thing I can find in the treaty is:
Article 4 (b) Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3. [27]
Article 2
(a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.
(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
(c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5 September 1905.
(d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and accepts the action of the United Nations Security Council of 2 April 1947, extending the trusteeship system to the Pacific Islands formerly under mandate to Japan.
What's the point being made here regarding the legal status of Taiwan? "A lot of things have happened" sounds awfully ambiguous. Wasn't Churchill just trying to stop the spread of communism?
Additionally, content needs to added in the historical section regarding the legal effect of the treaty establishing relations between the PRC and Japan and the three communique's between the PRC and US.
And please use spell check. -- Jiang 05:57, 28 Dec 2004 (UTC)
2)a peace settlement with Japan, or 3)consideration by the United Nations. And, this policy is what has been omitted. Mababa 20:35, 28 Dec 2004 (UTC)
NPOV was reached. Jiang, you're right. After read the article over agian, I think the article is still in a good NPOV shape even without the components removed aboved. Now I only hope you can find a good place to put the churchill's statement and also agree that we can have the President Truman's statement back. It would be wonderful if the juridical person part comes back since it does not contradict with the title even if this would make the article focusing on the sovereignty not the "province"... etc. Good night. Mababa 08:22, 28 Dec 2004 (UTC)
In light of the curent situation where no concensus are reached so far, I would like to friendly remind Jiang the policy of NPOV, which is to present all side of what people believe instead of supress what people do not believe.
Mababa 21:47, 28 Dec 2004 (UTC)
Thank you for the reminder, Mababa. However, the main issue I have against the texts I removed is accuracy and relevancy, not neutrality. It would be hard for me to make a case if the issue resided on neutrality. -- Ji ang 23:23, 28 Dec 2004 (UTC)
Not really, Jiang. Relevancy is subject to one's point of view and it is your point of view againsting mine. Furthermore, I do not see a problem of the accuracy. Most of the opinions presented here which you against are cited with a source and they were not converted into FACT. If this article is all about the facts, then the article can only be devoted to one of the PRC, ROC, Taiwan or US. The fact can only be one and all the arguements in the article are mutually exclusive.
We realize that this does not IN FACT convert that opinion TO a fact, it just says it is a FACT that: "this person holds that opinion."---From NPOV
This is a NPOV dispute and this dispute is totally focused on your opinion which you are trying to impose onto others and exclude others' opinion. Nope, you failed to convince me that this is not a case of POV and the issue does not reside on neutrality of opinions. I hope you can see this. :) Mababa 02:57, 29 Dec 2004 (UTC)