Pro-Unification

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121

Thus spake Zeugmite:

I’m sure you’re right about the Chinese as a whole, if we lump them all together. I’m also sure you’re wrong about the so-called “borderlands,” whose natives mostly HATE Chinese and would jump at the chance for independence.

You probably resist the idea of allowing them the choice. Well, fine. I similarly resist the idea of allowing China to remain one country. I don’t care what you want, you don’t care what the Tibetans want, and brute force shall decide the matter.

If the world were run on morality, an interesting question would be WHICH groups of people have the right to secede from a larger group. Ought I and three roommates have the right to form our own country? Could the Cree secede from Quebec secede from Canada secede from NAFTA? It’s an impossible question.

We don’t really know what the Tibetans (say) want. Would you support holding a referendum there to find out? Is “self-determination” one of the human rights you seem to be advocating, or is that off-limits because it conflicts with Chinese national pride?

You are right. And now China is behaving like just another imperialist country. Is this what you want? (P.S. In logic what you said is known as a “Tu quoque” or “So’s your momma” argument.)

122

Incorrect. Neither the SFPT nor the Sino-Japanese Peace Treaty ceded “Formosa and the Pescadores” to China.

That is a fact, and not open to debate. If you don’t believe me, re-read the treaties.

123

Incorrect. Neither the SFPT nor the Sino-Japanese Peace Treaty ceded “Formosa and the Pescadores” to China.
[/quote]

S-J PT:Article 4

It is recognised that all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of the war.

What does this mean to you? I hope you are not going to interpret it arbitrarily to include what you want and to not include what you don’t want.

In any case, you disputing this is inconsequential. Any dispute about the contents of the S-J PT (for instance, whether nullifying and voiding the Treaty of Shimoneseki included the retrocession of Taiwan and Penghu) would be a matter between Japan and China. Japan has never had a problem with the S-J PT.

124

Oh . . . . I see what you are speaking of now. I believe (with all honesty) that what you are referring to is that due to this Article 4 of the Sino-Japanese Peace Treaty, which states that all treaties, conventions, and agreements concluded before 9 December 1941 have become null and void . . . . . so therefore “Formosa and the Pescadores” have automatically reverted to China?

Is this your point of view?

Unfortunately, such a point of view is invalid. By rendering those treaties null and void, it only affects the articles or provisions of the treaties which are still of continuing validity. In other words, “fulfilled provisions” are outside the range of application of this Article IV “invalidity clause”.

Reference is made to the paper on Historical and Legal Aspects of the International Status of Taiwan (Formosa), which analyzes the views of some scholars about the Taiwan status.

Often-heard View #1: The Treaty of Shimonoseki was already invalid in December 1941, As a result, Japan had no rightful claim to Taiwan and the Pescadores in 1945 at the end of WWII, especially in regard to any actions

125

Well, that’s the crux of the problem.

What are “fulfilled” obligations and whether there is a distinction allowed for such when a treaty is delcared null and void. ROC/PRC not demanding a refund of indemnities in itself surely cannot be the proof of such distinction, while it may have become a contradictory precedent if they had tried and somehow failed.

On the matter of the cession of Taiwan, however, ROC did, by pronouncement or more vividly, by way of occupation, make such a claim according to the S-J PT, an interpretation to which Japan made no objection – and indeed to which she had no reason to object, as she had already committed “in good faith” to return Taiwan by the Potsdam Declaration via the instrument of surrender.

Likewise, the return of ceded territories and other concessions or property on the Chinese mainland, items which equally could be considered “fulfilled” obligations, do rest on this post-war revocation. It would most certainly run counter to all international laws precedence to deny these numerous territories, concessions, and properties that Japan had lost as a consequence of war simply belonged to no one.

In any case, Japanese scholars may have their own interpretations as do Chinese scholars. These are simply opinions from both sides. But unless Japan itself wished to clarify, dispute, or protest the meaning of the S-J PT, or she wished to bring it to the attention of the UN, we are left with no choice but to conclude that she assents to the interpretation as best represented by the actual unfolding of events.

P.S. May I also point out that the analysis and rebuttal you quoted was from the chairman of WUFI, who has no degree in law? So there is really no more reason to believe him than to believe me or the average joe who uses logic on interpretational issues. But the saving grace for him is, he can always try to mobilize Japan to dispute the S-J PT; he is, afterall, a citizen of that country (damned strange for a WUFI chairman, ain’t it?). I wish him luck … LOL … :smiley:

126

I will join in the discussion and give my 2 cents worth.

I am not exactly sure what this paragraph is supposed to mean. However, “occupation does not transfer sovereignty” . . . . so if you are using this rationale to say that “China” (however interpreted) has some legal ownership right to Formosa and the Pescadores, that is clearly invalid.

You are forgetting that when the ROC government fled to Taiwan in 1949, it became a government in exile. To say that Japan is committed in good faith to return Taiwan (to China (via the terms of the Potsdam Declaration via the instrument of surrender) must pre-suppose that the ROC retains its position as the legitimate government of China. When the ROC went into exile on Taiwan, it lost any rights it previously had to demand fulfilment of any supposed “promises” to return Taiwan to “China.”

Problem solved. Case closed.
Conclusion: Taiwan was never returned to “China” after WWII, no matter how “China” is defined.

127

No, that was in reference to the proper interpretation of the effects of Japan proclaiming the Treaty of Shimoneseki null and void. The legal ownership would come from the S-J PT in which Japan basically made such a proclamation. (Please read the previous posts for context. I know they are long.)

Well, consider this for a moment. ROC was the internationally recognized sole legitimate representative of China at that time (up to 1972). The standard I am using is the UN, but you can also choose to look at diplomatic recognition.

It also could not have become a government in exile in 1949 (I presume you mean on 10/1/1949 the date of founding of the PRC). First 10/1/1949 was an arbitrary date as the civil war was still very hot. Second, on 10/1/1949, ROC maintained control of Hainan, Zhoushan, and other offshore islands that were part of the Chinese mainland. To this day, the ROC maintains Jinmen, Mazu, and Taiping island in the Spratleys that are definitively “Chinese” and never “Taiwanese”. Third, the hostilities were never concluded and in fact, the war was still hot in 1950 and shelling continued for decades.

How then, do you demarcate when ROC became an “exiled” government? How do you explain why ROC was in exile in 1949? Is it simply the area of land it holds is the minority of what it claims, therefore it is “exiled”? Indeed, how can it be “exiled” if after 8/5/1952 it is rightly contained in territories belonging to “China”? Maybe you are arbitrarily predefining your own notion of “China,” but that would be a very empty argument bordering on tautology.

128

Basically I think TI’ers will find it very difficult to prove that the Taiwan problem is not a Chinese civil war problem but an ownership problem.

The date of signing of the S-J PT was not coincidental though it was last minute.

The ROC maintenance of Jinmen and Mazu are also not coincidental.

The legal bases are covered to the extent where it would take partial, inconsistent, unfathomable, or assumptive interpretations of laws to make any case. TI’er theories have more or less been around for 40 years or so and have been debunked many times and have never made any real inroads. There is a reason for that. But with the TI propaganda blitz, gullible people bite all the time because really, who the hell bothers to look up everything. But, TI’ers have sympathy and the cuddly poster-child effect to run on.

129

Incorrect. The Shanghai Communique establishes the PRC as the legitimate government of the area. That is its significance. Hence, at the present time, Taiwan is on a “flight path” for eventual “unification” (i.e. annexation) by the PRC. That is the status quo as seen from the US point of view.[/quote]

Nowhere in the Shanghai Communique is it established that the PRC is the government of Taiwan. Please cite the exact chapter and verse.

Vorkosigan

130

Since it is a question of values, it is unlikely that anyone will be able to convince you. But out here in the real rational world, the Taiwan issue is widely seen as an ownership issue.

Actually, the legal scholarship is soundly on the TI side.

I can see that for some reason it is especially painful for you that the other side is both ethically and legally correct.

See “Who Owns Taiwan: A Search for International Title” Reisman & Chen, Vol 81, 599, 1972.

The SFPT was explicitly intended NOT to return Taiwan to China, as the UK representative pointed out “We therefore came to the concusion that the proper treatment of Formosa in the context of the Japanese Peace Treaty was for the treaty to provide only for renunciation of Japanese sovereignty.”

This was the US position as well, declared in the Senate vote on ratification, where nothing in the treaty was construed as affecting the legal status or sovereignty of Taiwan. That was, at least until 1972, the official position of Japan on the treaty as well.

Potsdam was a declaration of intent, like Cairo, and has no international legal standing. It is nice that the Allies hoped to put it into effect, but unilaterial declarations have no force here.

Another problem with assuming that Cairo and Potsdam are law-creating instruments is that they are superseded by the various UN agreements, and ultimately, by the most important principle of all, the one that supersedes all others, the wishes of the local population.

Good luck! I am sure that if you kick up enough dust, you might be able to blind a newbie or two.

Vorkosigan

131

[quote=“Vorkosigan”]Since it is a question of values, it is unlikely that anyone will be able to convince you. But out here in the real rational world, the Taiwan issue is widely seen as an ownership issue.
[/quote]

I have no doubt that TI’ers & Co. see it this way. Whether it’s rational is debatable. And to be perfectly consistent, they must abandon Jinmen and Mazu.

[quote=“Vorkosigan”]Actually, the legal scholarship is soundly on the TI side.
[/quote]

Not really. Each side can parade its own list of “experts.” If “legal scholarship” were soundly on the TI side, we would not be here still arguing after 40 years.

Actually I would be quite happy if there was such a magic bullet for the TI’er side because then at least there will be no more argument. Unfortunately no such thing exists.

I can look for this, but I suppose you are listing the salient points below.

Correction: “NOT to return Taiwan to a specific recipient.” I don’t dispute this (with the correction) and everybody knows the reason for that was not to renege on the Cairo Decl but because nobody was sure what was to become of the PRC/ROC situation; they couldn’t even agree on which was to be present for the treaty signing so neither was invited.

Yes, of the SFPT. It wasn’t the only treaty of importance, however. There was this thing called the Sino-Japanese Peace Treaty (actually called Treaty of Taipei.)

Potsdam and Cairo had no legal standing, to be sure. Yet the instrument of surrender did. That was not a unilateral declaration. That gave the promises in Potsdam and Cairo legal force.

These UN resolutions and agreements you refer to were passed much later and for the purpose of the ownership of Taiwan, all ex post facto.

It’s intriguing how you did not address any point raised but chose instead to repeat once more the TI’er story, which sounds very good but has the problem that it is an incomplete and misleading picture (intentionally so). Do you have any comments on the Sino-Japanese Peace Treaty at all or will you continue to pretend it doesn’t exist?

132

Does anyone deny that it exists? I don’t think so. However, it does not transfer the ownership of “Formosa and the Pescadores” to the ROC.

133

Incorrect. The specifications of territorial cession have to be stated in the peace treaty.

According to your analysis (if I am understanding you correctly), if the situation of territorial cession is not clearly stated in the peace treaty, we can go back to the surrender document and find the “clear intention of the signers of the peace treaty there”. Such a point of view would only appeal to those persons who have not studied international law in depth.

In fact, the content of the surrender documents were taken into account when the peace treaty was drafted. If they were not put in, they were not put in . . . . . . pure and simple.

The SFPT is the international legal document of highest weight concerning the disposition of “Formosa and the Pescadores” from the late 1930’s to the present. If there are other statements, declarations, position papers, etc. which contradict it, then the stipulations of the SFPT take precedence.

Case closed.

For reference, you might view www1.law.ucla.edu/~jilfa/chang.htm

134

[quote=“Falcon”]
According to your analysis (if I am understanding you correctly), if the situation of territorial cession is not clearly stated in the peace treaty, we can go back to the surrender document and find the “clear intention of the signers of the peace treaty there”. Such a point of view would only appeal to those persons who have not studied international law in depth. [/quote]

I thought we’ve been through this once already!? No, it’s not that we are satisfied solely with the intent expressed in the surrender document, but that the surrender document indicates what Japan has promised to carry out (and if it took yet another treaty to do so, then so be it.) That treaty would have been the SFPT, but since China was not invited, a bilateral treaty was concluded: the Sino-Japanese Peace Treaty. And it was there that the conclusion was made.

Do you see that I am saying something a bit different from you?

In other words, IF there were no such thing as the Sino-Japanese Peace Treaty, then Japan still was obligated to enter into any necessary treaties to make final disposition of its obligations agreed to at surrender. This is in fact the situation with Japan and Russia. They had not signed a bilateral treaty on territorial issues and they still talk about it. So you can argue the same way about how the Kuriles and Sakhalins do not “belong” to Russia yet (yes, this is the reason they are still negotiating for a formal treaty.) In fact, SFPT had this to say

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.

but you better be damned sure that when there is a treaty coming, Japan will have to live up to the terms of the surrender with regard to Russia, too.

In the meantime, nobody is disputing the Russian ownership of north Sakhalin because it is well understood that pending an official treaty making it so, that was going to go to Russia.

135

Does anyone deny that it exists? I don’t think so. However, it does not transfer the ownership of “Formosa and the Pescadores” to the ROC.[/quote]

I didn’t say anybody denied that it existed but that they pretended it didn’t exist. If you are going to be precise, then please also read precisely.

As for what it does or does not do, there is no point to rehash; it’s all a few posts back. So here you go, a little link to <a href="Pro-Unification - #123 by zeugmite

That is a good point to cut in, I suppose. Here’s a brief summary.

  1. The post with a treaty quote
  2. The author of the very next post states my interpretation then goes on to quote some opinions by the chairman of WUFI.
  3. I dispute those points in the post following that one.

There has so far not been rebuttals of [3]. After [3], it becomes a matter of what you are going to believe is the accepted practice in treaty nullifications. I say it includes cessions because the “fulfilled obligation” distinction drawn by the chairman of WUFI is not realistic and appears to be made ad hoc for his own purpose. Unless there is some authoratitve consensus on this, you have to (1) go by the the literal meaning of the treaty; (2) see if any relevant party (here being Japan) objected – they didn’t. So what’s up now?

136

Let me weigh in with a comment here at this juncture. I am afraid that I cannot quite see the point zeugmite is making. The Sino-Japanese Peace Treaty is a subsidiary treaty to the SFPT, [note 1]. The SFPT did not award the sovereignty of “Formosa and the Pescadores” to China, [note 2]. The ROC is not a member of the “Allies” as spoken of in the SFPT,[note 3]. The benefits which China receives from the SFPT do not include “Formosa and the Pescadores”, [note 4]. Any other peace treaties which Japan concludes with any other countries cannot exceed the specifications of the SFPT, [note 5].

note 1: SFPT, Article 26.
note 2: SFPT, Article 2(b).
note 3: SFPT, Article 25.
note 4: SFPT, Article 21.
note 5: SFPT, Article 26.

Is there something in the Sino-Japanese Peace Treaty which has escaped us? Many of the previous posters have also stated that that Treaty did not award the sovereignty of “Formosa and the Pescadores” to China. Praytell, what hidden message is zeugmite attempting to convey to the assembled multitude of forumosa.com members here??

137

Click on the <a href="Pro-Unification link and answer those questions.

I see your objection is [note 5]: “Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty.”

Japan canceled the Treaty of Shimoneseki in S-J PT. What “same” advantages ought to be extended to the other parties in this case? Those “other parties” never signed the Treaty of Shimoneseki. If they wish to sign some similar treaty with Japan, cede their own territory, then have Japan revoke such a treaty, they are, as you may agree, welcome to do so. More seriously, the only advantages for other parties would be for Japan to allow for the cancellation of its pre-war treaties with other countries as well.

138

I have checked the “rewind” link which you so thoughtfully provided, however what I see there are a number of posters saying that the Sino-Japanese Peace Treaty did not cede the areas of “Forumosa and the Pescadores” to China.

Also, I note the very well analyzed position stating that “already fulfilled provisions” are not subject to cancellation by an later renunciation or cancellation of the treaty at a later date. Indeed, this is the only possible explanation which would maintain the “stability” of the international legal structure.

I would also add that my wife lived in Japan over ten years, and speaks, reads, and writes fluent Japanese. She has many Japanese friends. I have also met many of these people and spoken to them. It is our impression that the average Japanese person is very much aware of the fact that the provisions of post WWII peace treaties did in no way, shape, or form give “Formosa and the Pescadores” to Chiang Kai-shek and his ROC government.

Please provide further elucidation for us as appropriate.

139

[quote=“Hartzell”]Also, I note the very well analyzed position stating that “already fulfilled provisions” are not subject to cancellation by an later renunciation or cancellation of the treaty at a later date. Indeed, this is the only possible explanation which would maintain the “stability” of the international legal structure.
[/quote]

  1. Is there a basis for this? Is the basis the word of the chairman of WUFI?
  2. Would you mind explicating why this is the “only possible explanation which would maintain stability” etc?

What Japanese citizens feel may be a PR gauge; but we are not interested in a popularity contest here, are we? ROC has stated its interpretation based on the implicit retrocession in this treaty, I am sure, as often as it could; the physical occupation being the loudest statement of all. Does Japan, the cosigner, dispute any of this? If two parties of a treaty do not dispute each other, all other theories are totally extraneous.

If Japan does object, let her bring the case; then we can also find out whether she fulfilled one of the conditions of surrender, which was to bring about the retrocession of Taiwan.

If she won’t object, then, all that excellent prose by the chairman of WUFI still means nothing.

140

As has been pointed out before, “military occupation does not transfer sovereignty.”

There is no “implicit retrocession” in the Sino-Japanese Peace Treaty . . . . . or please point out the Article you are referring to. As previously stated, already fulfilled provisions of a Treaty are not subject to “reinstatement to their previous position” just because the Treaty was later cancelled. Territorial cessions and monetary reparations are included as these types of fulfilled provisions . . . . which do not have a continuing validity . . . . . . and are therefore not subject to later revocation. If you can find an example of a revocation of a treaty where a previous “territorial cession” was automatically reverted to its previous owners, I would certainly be glad to learn about it.

Continuing Validity Example: If the 1895 Treaty stated that China had to provide 100 tons of corn to Japan every year for the token sum payment of 500 yen, then this provision is of continuing validity, and would be subject to being terminated when the Treaty was later cancelled or revoked.

Summary: If all treaties become invalid due to war between the countries involved, and “territorial cession” reverts to its previous (non-ceded) situation, then we could maintain that when the US and Great Britain fought the War of 1812, the “ownership” of the original 13 colonies reverted to Great Britain. But that was certainly not the case. This in fact provides an an excellent example of the principle involved, and was recognized as early as the beginning of the 1800’s.