Independence must be asserted

Lung-chu Chen and others

The Taiwan New Century Foundation (台灣新世紀文教基金會), the Taiwan National Security Institute (台灣安保協會), the Taiwan Care Foundation (台灣關懷文教基金會) and the International Cultural Foundation (國際文化基金會) held a joint seminar on Sept. 23 this year to mark the 50th anniversary of the San Francisco Peace Treaty. After vigorous and comprehensive discussion, the scholars and experts arrived at a number of conclusions.

We are of the unequivocal opinion that Taiwan is an independent sovereign state, and hereby publicly demand that the people and the government of Taiwan adopt the necessary measures to guarantee Taiwan's international status.

A. The claim

1. Taiwan is a sovereign state and a member of the international community. It does not belong to any country. Much less is it a part of the People's Republic of China (PRC).

2. The name, "Republic of China" (ROC), currently used by Taiwan's government, has caused many problems and much inconvenience in the international arena, and even impaired Taiwan's status and interests. It should therefore be changed.

B. The demand

1. The government and people of Taiwan should value the historical fact that Taiwan secured its sovereignty from the San Francisco Treaty.

2. We demand that the government incorporate the historical facts regarding the San Francisco Treaty in the teaching materials of the national curriculum. It should in particular strengthen the education of Ministry of Foreign Affairs staff members and other personnel involved in foreign affairs on the facts and significance of the treaty.

3. The president and government officials at all levels should take advantage of domestic and international occasions to assert that Taiwan is a sovereign state.

C. Explanation

1. According to the San Francisco Treaty, Taiwan's sovereignty has belonged to neither Japan nor China since the accord took effect in April 1952. It belongs to the people of Taiwan.

The San Francisco Treaty, signed in September 1951, is the most important legal document determining where Taiwan's sovereignty belongs. Its force and importance completely override those of the Cairo and Potsdam declarations.

Both of the latter merely served as political declarations expressing the Allies' future policy goals and intentions, and are not legally binding. That they are not legally binding is not only the common view of a vast majority of experts in international law, but also the official position of the US and UK governments.

In accordance with the practice and theory of international law, post-war territorial alterations are to be decided by formal treaties. The changes regarding Taiwan's sovereignty after World War II should therefore rest on the legal basis of the authoritative San Francisco Treaty, signed in Sepember 1951 and coming into effect in April 1952. According to the accord, Japan did not formally renounce its claim to Taiwan and the Pescadores until April 1952. Before that, no other country, not even China, could have legally acquired sovereignty over these areas.

Since Japan, in signing the San Francisco Treaty, renounced sovereignty over the two areas, it naturally had no right to handle the areas afterward. Even though Japan signed the Treaty of Peace with the Taiwan government in 1952, a joint communique with the PRC in 1972, and the Treaty of Peace and Friendship with the PRC in 1978, these international agreements could never cause any legal changes to the sovereignty and status of Taiwan and the Pescadores because they were signed after the San Francisco Treaty.

From the point of view of both the law and the facts, anyone who cites the Cairo and Potsdam declarations to explain Taiwan's sovereignty is actually echoing the PRC's hegemonic claim to Taiwan. In its white paper on the Taiwan question issued in February last year, the PRC only cited the two declarations as the basis for its claim to Taiwan. If Taiwan's foreign affairs departments cling to this erroneous stance by embracing the two declarations and rejecting the San Francisco Treaty, the outcome will be tantamount to legal suicide.

Given the current situation, Taiwan's government should, on the basis of the San Francisco Treaty, resist the PRC's hegemonic claim to Taiwan and establish the fundamental position that Taiwan is not a part of the PRC. In reality, it is only when Taiwan views the San Francisco Treaty as the legal basis of its sovereignty that it can effectively counteract the "one China" principle advocated by the PRC.

2. With democratization and Taiwanization over the past 10-plus years, Taiwan's status has become clearer. It has long been a sovereign state.

Although ROC troops were ordered to take over Taiwan in October 1945, this was merely a military occupation executed on behalf of the Allies at the orders of the commander of the Allied forces. Taiwan's sovereignty was not necessarily transferred to the ROC as a result of the military takeover. Nor did the ROC government necessarily acquire sovereignty over Taiwan by continuing to occupy Taiwan with the acquiescence of the Allies after the San Francisco Treaty took effect in 1952.

In light of the principles of contemporary international law, the people of Taiwan, who were freed from Japanese colonial rule after World War II, certainly enjoy the right to self-determination over their political status. This includes the right to actively choose any changes to Taiwan's sovereignty.

Prior to the 1980s, the people of Taiwan were oppressed by high-handed authoritarian rule and were denied any opportunity to exert the right to self-determination -- but they did not lose this right.

Since the late 1980s, Taiwan has undergone a whole string of reforms -- liberalization, democratization and Taiwanization. Notable reforms include: the establishment of the DPP in September 1986; the lifting of martial law in July 1987; the termination of the Period of National Mobilization for Suppression of the Communist Rebellion (動員戡亂時期) in April 1991; a full-scale National Assembly election at the end of 1991; a full-scale legislative election at the end of 1992; popular elections for the Taiwan provincial governor and city mayors; the first direct presidential election in March 1996; and the transfer of political power in May last year. Constitutional reforms were also carried out during that period, completely "Taiwanizing" the power base of the central government.

Furthermore, the government abandoned its claim to represent China, and instead, strove for and upheld its claim to represent Taiwan, thus gradually creating Taiwan's unique international status, which is different from that of China. This process has transformed Taiwan's government from an exiled, alien regime into a local democratic one. Furthermore, it is a legal government capable of representing Taiwan and its people in the international arena. Moreover, it substantively demonstrates that the people of Taiwan are collectively exercising their right to self-determination according to international law.

This article is an open letter from Chen Lung-chu, president and CEO of the Taiwan New Century Foundation, Huang Chao-tang (黃昭堂), a presidential advisor and chairman of World United Formosans for Independence, Yao Chia-wen (姚嘉文), former chairman of the DPP and currently a senior adviser to the president, Chen Li-tung (陳荔彤); Hung Mao-hsiung (洪茂雄), an international relations graduate research fellow at National Chengchi University, Yang Chi-chuan (楊基銓), Hsu Shih-kai (許世楷), an author, and Liao Fu-te (廖福特), an assistant research fellow of the Institute of European and American Studies at Academia Sinica.