Subsequently it was clearly settled, China held sovereignty unchallenged for many years. Bringing up these issues now after 50 intervening years of history defies common sense.
The question now, of course, is who owns France? I mean, the U.S. “won” it back from the Germans during WWII, so shouldn’t France be considered a U.S. military protectorate too? Or did someone in San Francisco or some orher U.S. city sign a treaty in the 50’s with Germany specifically transferring France’s sovereignty from the U.S. military to French control? The same could be said for the rest of Europe as well. Borders and countried have always been changing over there, this country used to be that country, etc. So do they all really belong to the U.S. according to the Hartzell Theory?
When? Where? And most importantly, how?
First, we need to be more precise. “China” is a country. Countries do not hold sovereignty; governments do. So when you say “China” held sovereignty, you must mean either the PRC or the ROC. And therefore, we’re back to my original question: when and how did the PRC (or the ROC) obtain sovereignty? Second, as I stated earlier, the mechanisms and methods under international law for transfer of sovereignty are well-defined and clearly recognized. Sovereignty issues are generally settled by treaty. But there is no treaty transferring sovereignty to either the PRC or the ROC. Even Beijing and Taipei recognize this, as they attempt to fall back on the Cairo Declaration and the Potsdam Accord to bolster their claims. Yet neither is legally sufficient as a mechanism for transfer of sovereignty. And to date none of the principle powers involved – neither Japan nor the US nor Britain – recognizes China’s claim to Taiwan.
Claiming “China” holds sovereignty over Taiwan is easy enough. Proving it appears to be rather more difficult.
The proof is in the pudding. I used China for simplicity’s sake after you started nitpicking about current non-recognition of the ROC by most countries in the world. The ROC has plainly held sovereignty since after the war. That is a fact. The government has clearly been in control here and this has not been seriously questioned except to say that the PRC is the rightful ruler of “one China,” a concept which according to the policy of the US as well as every other country in the world I am aware of includes Taiwan. When I say “China”, I mean the ROC/PRC governments.
By “recognition” are you referring to diplomatic recognition, or recognition of the ROC as the sovereign of Taiwan? These are distinct issues. Diplomatic recognition of the ROC is, in legal (though perhaps not in pragmatic) terms, irrelevant to the issue of sovereignty.
What I’m questioning is what makes this “plain”. Perhaps we’re operating under different definitions of sovereignty here. What is plain is that the ROC has “ruled” or “administered” Taiwan since 1945, but that in itself is not sufficient to qualify it as sovereign. By “sovereign” is meant that Taiwan is state territory of the ROC. In fact, Taiwan has never been state territory of the ROC. In this sense, Taiwan’s situation is equivalent to that of, say, American Somoa, which despite having been self-governing for more than a century (it became an unorganized American territory in 1900), is not sovereign territory.
I’m unclear here: are you arguing that the PRC or the ROC is the sovereign of Taiwan? They cannot both be.
You’re confusing issues here. French sovereignty was never under question – either before the war or after Petain surrendered Paris in 1940. The compact signed by the Vichy government included nothing touching on French sovereignty. Neither German occupation (and remember, Germany only occupied the northern third of France; southern France remained under French control) nor Allied liberation at the end of the war had any bearing on the issue of sovereignty.
Taiwan is qualitatively different. Japan obtained sovereignty over Taiwan through the mechanism of a treaty (Shimonoseki, 1895) and surrendered sovereignty 57 years later via a treaty (San Francisco, 1952). (Ironically, the San Francisco Peace Treaty was drafted by John Foster Dulles, the grandson of John Foster, who drafted the Shimonoseki; what the grandfather giveth, the grandson taketh away.)
Depends on who’s asking the questions. The “question” of the sovereignty of Taiwan belonging to the U.S. was never an issue either before certain individuals began bringing up this most bizarre interpretation of an obscure treaty neither the PRC nor the ROC had anything to do with. Countries can obtain sovereignty via a treaty, I suppose, as long as the treaty means anything. War or threat of war is another mechanism for obtaining sovereignty, as is posession, particularly long-term possession. As far as treaties go, Germany could have signed a treaty with the U.S. which didn’t mention or specifically transfer sovereignty of France to the French government, but nobody would think of suggesting that this meant that the U.S. still holds France as a U.S. military protectorate. Unless, of course, there are also U.S. citizens in France who, having failed to obtain French citizenship, see the invention and promotion of such an issue as a way to do so without having to deal with French laws on the subject.
Hmm, I have to say this is the first time I’ve heard anyone refer to the San Francisco Peace Treaty as “obscure”. Being signed by 48 countries plus Japan, and being the terminating document of the second world war strikes me as pretty significant. That neither the PRC nor the ROC were signators is irrelevant in terms of the validity of the SFPT.
I’m having a bit of difficulty following your train of thought here. I have said nothing about Taiwanese sovereignty belonging to the U.S. At most, it can be argued (this is not my argument, BTW) that Taiwanese sovereignty is held in trust by the US; but I have never heard anyone argue that it belongs to the US. But again, I have not attempted to argue that here.
What I have argued is that Taiwanese sovereignty remains unsettled. It belongs neither to the ROC nor to the PRC.
Aside from succession, a treaty is the only recognized mechanism for effecting a transfer of sovereignty.
Only insofar as they lead to treaties. Imagine the state of the world if the mere threat of war were sufficient to achieve transfer of sovereignty.
Ah, here’s the $64 question: define “possession”. And then provide an example of “long-term possession” effecting a transfer of sovereignty. I’ve already provided one counter-example (American Samoa).
Sorry, but where do you get your history? Neither the US nor Germany ever held France as a military protectorate, so neither was ever in a position to transfer French sovereignty to anyone. You can’t give away something you don’t own.
By “recognition” are you referring to diplomatic recognition, or recognition of the ROC as the sovereign of Taiwan? These are distinct issues. Diplomatic recognition of the ROC is, in legal (though perhaps not in pragmatic) terms, irrelevant to the issue of sovereignty.
[/quote]
you said this:
Thus I was referring to the fact that some countries recognize the ROC’s claim, and some recognize the PRC’s claim. There have obviously been changes in recognition since the war, but for my purposes it is irrelevant. No country I am aware of questions that one of these two is sovereign.
[quote=“daltongang”]The ROC has plainly held sovereignty since after the war.
Perhaps we are. Indeed it is plain that the ROC has ruled Taiwan. This in my mind carries far more weight as to its sovereignty than abstract legal theories about the handover 50 years after the fact.
[quote]The government has clearly been in control here and this has not been seriously questioned except to say that the PRC is the rightful ruler of “one China,” a concept which according to the policy of the US as well as every other country in the world I am aware of includes Taiwan. When I say “China”, I mean the ROC/PRC governments.
It doesn’t matter. A Chinese government was sovereign before the Japanese occupation, this sovereignty was naturally resumed after the defeat of the Japanese.
[quote=“KaiwenLee”]That neither the PRC nor the ROC were signators is irrelevant…I have argued is that Taiwanese sovereignty remains unsettled. It belongs neither to the ROC nor to the PRC.
Provide an example of “long-term possession” effecting a transfer of sovereignty. I’ve already provided one counter-example (American Samoa).[/quote]
What’s odd is that you consider it irrelevant that no Taiwanese or Chinese people had anything to do with their own sovereignty. As for the possession argument, how about the good ol’ U.S. of A? Ah, but treaties were signed with the natives, you say. Yeah, and how many of those were broken and/or rendered invalid? There are movements, such as the one in Hawaii, to renounce U.S. government sovereignty, but hardly anyone takes them seriously as the U.S. clearly possesses the land in question, and nobody to date has possessed the military power to back them up. Treaties are only the veneer of military might.
Ah, thanks. That clarifies it. Thanks.
This has been one of the foci of my recent research: how many countries actually recognize the PRC claim to Taiwan? What I’ve been able to discover on this question suggests most countries have remained neutral on the issue despite Beijing’s quixotic, concerted attempts to insert the Taiwan question into, for example, every communique establishing diplomatic relations with other governments. While a number of countries have recognized the PRC claim, from what I can tell, most countries remain either passively or actively neutral – in the former case by making no statement at all; in the latter case by choosing only to “take note of” or “acknowledge” Beijing’s position without recognizing it. Actively neutral countries include the US, Canada, Australia and New Zealand. Great Britain is probably the chief passively neutral government.
Again, I disagree. The ROC has clearly administered the territory, but this is not at all the same as holding sovereignty.
I understand your position. However, there is little recognition in international law for what, for want of a better term, might be called “squatters’ rights”. I.e., administration alone isn’t recognized as sufficient for establishing sovereignty, no matter how long the time frame. At least, I can find no example of such. Can you?
Retrocession of sovereignty has been employed by both the ROC and the PRC in their attempts to bolster their claims, but the problem once again is that there is neither support nor precedent for the idea in international law.
In any case, Japan retained sovereignty over Taiwan until April, 1952, when it surrendered its claim in the San Francisco Peace Treaty, as recognized not only by Japan, but also by the 50-odd signatory nations. This fact alone mitigates against the claim that Taiwanese sovereignty was recovered in 1945.
What’s really odd is that to date neither you nor daltongang has been able to provide a single example or precedent for your claims, despite my repeated requests.
Yes, as unfortunate as it may be, it is a fact that the desires of the Taiwanese have been and will continue to be irrelevant to the issue of Taiwanese sovereignty.
The central problem of our discussion – the reason our dialogue is going nowhere – is that we are making two different arguments. You and daltongang are attempting to make a moral argument for Taiwanese sovereignty: Taiwanese sovereignty does, and of right ought to, belong to the Taiwanese themselves.
Conversely, I’m interested in the legal argument. It is an unfortunate axiom that legal, political and economic realities will trump a moral argument every time. Nowhere is this clearer than in the U.N.'s continued refusal to allow the Taiwanese the very right of self-determination promised and guaranteed in its own Charter.
It is certainly true that historically military conquest has been one of the mechanisms by which sovereignty can be won or lost. Thus, European immigrants overran the native American population and obtained sovereignty over large portions of North America. In similar fashion, America obtained sovereignty over the southwest through military victory over Mexico. History, as any casual observer of it is aware, is replete with examples of such conquests. There was a time, in fact, when military conquest was the preferred method for transfer of sovereignty. See some real estate you want? Get yourself an army and take it. If the current occupant can’t defend it, too bad for him.
In the modern era, however, military conquest has been deprecated as a mechanism for transfer of sovereignty to the point where generally speaking it is no longer considered adequate alone to effect possession. Witness the first Gulf War, in which the world community refused to continence Iraqi occupation of Kuwait, despite Iraq’s clear military conquest.
The cession of California territory to the United States provides a textbook example of how this transfer of sovereignty is accomplished under international law. Cession by conquest must be completed by “cession by treaty” in order to be valid.
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Military conflict between Mexico and USA begins: 1846.04.24
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US declares war: 1846.05.13
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US military forces overrun California. (Cession by conquest)
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Mexico surrenders: 1847.09.14
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Peace treaty signed: 1848.02.02 (California territory ceded to USA. Cession by treaty.)
Please note that before the Spanish American War of 1898, and without any action by the US Congress, “cession by conquest” followed by “cession by treaty” was “incorporated territory under the United States Military Government” by default. Later, the administrative authority was transferred to a successor civilian government, and so forth, on to statehood . . . . .
The Insular Cases of the US Supreme Court changed this. Regarding “cession by conquest” followed by “cession by treaty”, and with no action by the US Congress, the territorial cessions of the Spanish American War (and thereafter) became “unincorporated territory under the United States Military Government” by default.
Considering Taiwan’s position under the San Francisco Peace Treaty (after WWII), it is a very close match with the position of Cuba under the Treaty of Paris (after the Spanish American War). Both were “limbo cessions” with the USMG as principal occupying power.
In general we see two main scenarios for future resolution of the Taiwan question.
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Unification with the People’s Republic of China.
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Independence.
I have completed a 262 page report (in Chinese) which fully outlines all the international law principles, and US Constitutional law principles, etc. involved in a third scenario, i.e.
- Taiwan becoming recognized as unincorporated territory of the United States Military Government.
I hope you don’t think that I am being overly secretive, however for the present time I would ask that anyone interested in reading this Chinese language report give me an email, and tell me something about your interest, etc. so that I can give you the internet address where you can download it. (It is in Microsoft WORD format.)
– Richard
empathy@ms2.hinet.net
…and now, after the second Gulf War, the U.S. is considering what to do with Iraq’s sovereignty after acquiring it through clear military conquest. But you argue about the modern era being different while you and Hartzell propose examples from generations past. Which is it? Or are things the same now as they always were, i.e., use force to obtain the land and then sign a treaty to make yourselves feel good about it?
Still, that’s all still a bit off-topic. The basic situation is this: Japan and the U.S. signed a treaty in 1952, seven years after the end of the second world war, (my definition of obscure is something that isn’t common knowledge, but it’s a broad term I admit), a treaty which didn’t directly state that those portions of China Japan took during its expansion in the 30’s still belonged to China. Now, over half a century later still, some people are dredging this up and saying this lack of definition makes Taiwan a U.S. military protectorate. Hartzell proposes not only that the R.O.C. is an invalid government, a view nobody but Beijing would agree with, but also that the PRC has no claim to Taiwan, which would probably not make him any friends in China. The U.S. assuming control of Taiwan would tantamount to sending an official invitation to China saying “Please bomb this island to hell and back at your earliest convenience, and we’ll still let you hold all the Olympics you want.” The U.S. state department, hopefully, would never be that stupid. So whose interest would the U.S. declaring Taiwan as a military protectorate serve? Not Chinese interests, not American interests, not Japanese interests, and certainly not Taiwanese interests. The only interests it would serve would be those of a few bitter U.S. expatriates who have failed to obtain Taiwanese citizenship and after spending months looking through various old documents and writing lengthy reports, think they have found a way to do so, regional security and the Taiwanese people be damned.
Right!!! Let’s all just renounce our US citizenship to obtain citizenship in a country that does not exist!!! Let’s follow Paogao’s example!!!
You are still trying to insist that military conquest = transfer of sovereignty. It does not – neither in post-WWII France nor in post-Gulf War II Iraq. So I’ll say it again: military conquest alone is insufficient to effect transfer of sovereignty. The U.S. is not trying to figure out what to do with Iraqi sovereignty because it does not possess Iraqi sovereignty.
The Taiwanese question is qualitatively different precisely because of the SFPT. As Richard has pointed out (and as I have been trying to get across), sovereignty transfers are concluded by treaty, not military conquest. If it is true (this is not necessarily my position, but one that is frequently argued) that Taiwanese sovereignty is held in trust by the USMG, it is precisely based on the U.S.'s role as principle occupying power as specified in the San Francisco Peace Treaty. It was the treaty, not Japan’s military defeat, which gave legal force to the transfer of Taiwanese sovereignty away from Japan. And that didn’t happen until 1952. Prior to that, Taiwan’s sovereignty remained with the Japanese government.
If you’re interested in modern examples, you might start by providing a modern example of a transfer of sovereignty by any means other than either a) a treaty, or b) succession of governments.
Which makes your attempted application of the term to the SFPT all the more surreal; almost like calling the U.S. Constitution an obscure government document.
It hardly needed to. That certain Chinese territories were occupied by Japan is not at all to say that they were under Japanese sovereignty (see above: conquest <> sovereignty). Sovereignty rested at all times with China (that is, with the ROC).
But this is not relevant to Taiwan, as Taiwan was not one of the territories taken by Japan in the '30s. It was ceded to Japan by the Qing government in the 1895 Treaty of Shimonoseki. No one, not even the PRC or the ROC, disputes the legality of that transfer.
As to whether it’s a US military protectorate, or the rest of your paragraph, you’ll have to take that up with Richard; it’s his argument. My only argument is that the issue of Taiwanese sovereignty remains unsettled, and that neither ROC nor PRC claims are supportable in international law.
From today’s edition of cnn.com:
"Although Bush was expected to push for a new Security Council resolution that would create a broader multinational force in Iraq, he is said to have no plans to accept a French proposal that seeks to hasten Iraqi sovereignty.
“The French plan, which would somehow try to transfer sovereignty to an unelected group of people, just isn’t workable,” Condoleezza Rice, Bush’s national security adviser, told reporters at the White House on Monday."
See said reference to transfer of Iraqi sovereignty above.
Ok, let’s take a poll to see what percentage of people have heard of the U.S. constitution compared to how many have heard of the San Francisco Peace Treaty of 1952. Adding to this obscurity is the fact that the Chinese weren’t even at the conference, much less signatories to it, which makes it even more irrelevant. Add five decades of inaction on the part of the U.S. goverment to the mix as well as no possibility of such action, and that’s some serious irrelevance. Perhaps ‘irrelevant’ would be better than ‘obsure’, but I still believe both words fit in this case.
Well said, though I wasn’t trying to make that moral argument. I’m approaching it from what I feel is a simple common sense basis. I admit that I really don’t know anything about the legal aspects of the handover, and I don’t disbelieve what you say about it, I just don’t see the relevance of it.
In my heart I would like to make the moral argument you made for me though 
It certainly is emotionally more satisfying than asserting that Taiwan is part of China which really kind of sucked I’ll leave it at that.
If I did make it would be on the principle of self-determination, the Taiwanese people should decide. They hardly seem of one mind about it though, not surprisingly with China breathing down their necks. Speaking of US policy recently I think Richard Holbrooke said that “people on both sides of the strait should decide” on Taiwan’s future, yikes? I don’t know what that meant but it can’t be good.
From today’s edition of CNN.com:
"… Bush … is said to have no plans to accept a French proposal that seeks to hasten Iraqi sovereignty.
"The French plan, which would somehow try to transfer sovereignty to an unelected group of people …[/quote]
Apparently a point of clarification is in order here. By “possession” I mean “ownership”, which is clearly the meaning you intended in your original example and subsequent discussion. In this sense, the US does not possess Iraqi sovereignty.
If one chooses instead to understand “possession” in the sense of “keeping”, or even “holding in trust” – as in “I have your book in my possession” – then the U.S., as the chief occupying power of Iraq, does currently possess Iraqi sovereignty. The US, in this sense, is holding onto sovereignty until it can determine who it belongs to. This is a qualitatively different sense of the word which is irrelevant to the concept of transfer of sovereignty.
See said reference to transfer of Iraqi sovereignty above.[/quote]
As the Condoleeza Rice quote makes clear, this falls squarely under b) succession of governments.
Ok, let’s take a poll to see what percentage of people have heard of the U.S. constitution compared to how many have heard of the San Francisco Peace Treaty[/quote]
Heck, why stop there? Let’s see what percentage of people have heard of, say, Coca-Cola compared to how many have heard of the U.S. Constitution. Or let’s test the obscurity of such historical pittances as the Magna Carta, Luther’s 95 Theses or the Rosetta Stone in the court of “common knowledge”. Let’s see if irrelevancies such as Darwin’s jaunt to the Galapagos, Gutenberg’s press, or the Opium Wars pass muster with the “common knowledge” of the general populace. Historical pygmies like William the Conqueror and Prince Siddhartha fade quickly into obscurity next to such historical giants as Tom Cruise and Kobe Bryant if we insist on dipping our litmus paper into the vat of “common knowledge”. Care to take bets on a head-to-head between David Beckham and the Battle of Hastings, with “common knowledge” as judge and jury? Most Americans can’t even find their own country on a world map. How are they qualified to render judgment on the significance of the San Francisco Peace Treaty?
All the above paragraph does is demonstrate the uselessness of common knowledge as an arbiter or historical relevancy. As an alternative, I suggest running the SFPT up the flagpole of the “reasonably informed” to see who salutes it.
With respect to the issue of Taiwanese sovereignty, I daresay Chinese participation was about as relevant as your presence at the sale of a house you ceased to own half a century ago. Since China had long ago given away the island, it no longer had either stake or say in its disposition. This is particularly true of the PRC which had never been at war with Japan.