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Thursday, April 30, 2009

The Starr Memo and Ma’s uncomfortable situation about the non-sovereignty of ROC over Taiwan

Perhaps Ma also felt insecure about the non-legitimacy of his presidency, elected under the ROC Constitution, on representing Taiwan’s populace.

The recent post from The View from Taiwan has caught my attention.

Michael Turton noted that

“ The third thing that has happened recently, which I think is also interesting, is that the Treaty of Taipei is being revived (Wiki, text of treaty) by President Ma:

President Ma Ying-jeou (馬英九) said yesterday that the 1952 Treaty of Taipei affirmed the transfer of Taiwan’s sovereignty from Japan to the Republic of China (ROC). Ma’s statement deviated from his previous claim that it was the 1943 Cairo Declaration that gave the ROC its claim to Taiwan.

Now the KMT knew that the Cairo Declaration, once claimed by Chiang Kai-Shek to justify his legitimacy of rule over Formosa, was not legally-binding and could no longer be used to fool the Taiwanese, Ma Ying-jeou turned to the Treaty of Taipei for help.

But the memorandum prepared for US Congressional presentation in 1971 spoiled Ma’s arguments.

The memo prepared by R. Starr to C. Sylvester on July 13, 1971 for US Congressional presentation clearly stated that the legal status of Formosa and Pescadores did not alter (from that of the San Francisco Peace Treaty) as a result of the signing of the Treaty of Taipei, and of the Mutual Defense Treaty.

It remained that Formosa’s sovereignty was not assigned to any country.

The following are excerpts from that memo. The text of the memo is in blue, with emphasis in red, while my summary or comments of the text to follow are in black.


July 13, 1971

To: EA/ROC – Mr. Charles T. Sylvester

From: L/EA – Robert I. Starr

Subject: Legal Status of Taiwan

You have asked for a comprehensive memorandum analyzing the question of the legal status of Taiwan in terms suitable for Congressional presentation. Attached is a paper that should serve this purpose. It is drawn mainly from the February 3, 1961 Czyzak memorandum, and contains no sensitive information or reference to classified documents.

The ROC is an occupying authority on behalf of the Allied Forces after the war.

Pursuant to Japanese Imperial General Headquarters General Order No. 1, issued at the direction of the Supreme Commander for the Allied Powers (SCAP), Japanese commanders in Formosa surrendered to Generalissimo Chiang Kai-shek “acting on behalf of the United States, the Republic of China, the United Kingdom and the British Empire, and the Union of Soviet Socialist Republics.” Continuously since that time, the Government of the Republic of China has occupied and exercised authority over Formosa and the Pescadores. The view of the U.S. in the intermediate post-war period was typified by a statement on April 11, 1947 of then Acting Secretary of State Acheson, in a letter to Senator Ball, that the transfer of sovereignty over Formosa to China “has not yet been formalized.

It was necessary to conclude the war and to give Japan peace even though there were disagreements among the allies on the dispositions of some territories, the San Francisco Peace Treaty (SFPT) was signed under such circumstance.

“We had either to give Japan peace on the Potsdam Surrender Terms or deny peace to Japan while the allies quarrel about what shall be done with what Japan is prepared, and required, to give up. Clearly, the wise course was to proceed now, so far as Japan is concerned, leaving the future to resolve doubts by invoking international solvents other than this treaty.”11

The delegate of the United Kingdom remarked: “The treaty also provides for Japan to renounce its sovereignty over Formosa and the Pescadores Islands. The treaty itself does not determine the future of these islands.”12

Yeh Kung-chao’s Q&A in the Legislative Yuan admitted that Japan did not and could no longer transfer the sovereignty of Formosa to the ROC, however, he made a mistake on assuming that the past territory of the Manchu dynasty was equivalent to the present territory of the ROC when he stated “originally owned by us”, the Manchu dynasty and the new Republic ROC are two separate entities, the ROC had never owned Formosa after it was founded.

Explaining this provision to the Legislative Yuan, Foreign Minister Yeh of the Republic of China stated that under the San Francisco Peace Treaty “no provision was made for the return [of these islands] to China.” He continued: “Inasmuch as these territories were originally owned by us and as they are now under our control and, furthermore, Japan has renounced in the Sino–Japanese peace treaty these territories under the San Francisco Treaty of Peace, they are, therefore, in fact restored to us.”16

At another point, Foreign Minister Yeh stated that “no provision has been made either in the San Francisco Treaty of Peace as to the future of Taiwan and Penghu.”17

During the interpellations of the Sino–Japanese Peace Treaty in the Legislative Yuan, the Foreign Minister was asked, “What is the status of Formosa and the Pescadores?” He replied: “Formosa and the Pescadores were formerly Chinese territories. As Japan has renounced her claim to Formosa and the Pescadores, only China has the right to take them over. In fact, we are controlling them now, and undoubtedly they constitute a part of our territories. However, the delicate international situation makes it that they do not belong to us. Under present circumstances, Japan has no right to transfer Formosa and the Pescadores to us; nor can we accept such a transfer from Japan even if she so wishes…In the Sino–Japanese peace treaty, we have made provisions to signify that residents including juristic persons of Formosa and the Pescadores bear Chinese nationality, and this provision may serve to mend any future gaps when Formosa and the Pescadores are restored to us.”18

Also, the Chinese Mutual Defense Treaty did not alter Formosa’s status from what it was on the SFPT.

On the other hand, reference was made to the fact that while Japan renounced all right, title and claim to Formosa and the Pescadores, such title was not conveyed to any nation. After full exploration of this matter with Secretary Dulles, the committee decided that this treaty was not a competent instrument to resolve doubts about sovereignty over Formosa. It agreed to include in its report the following statement:

It is the understanding of the Senate that nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty of the territories referred to in article VI. (SIC) “In other words, so far as the United States in concerned, it is our understanding that the legal status of the territories referred to in article VI, namely, Formosa and the Pescadores—whatever their status may be—is not altered in any way by the conclusion of this treaty.”21

Quemoy and Matsu have different status from that of Formosa and Pescadores.

It may be well to note the special status of the offshore islands, the Quemoy and Matsu groups, in contrast to that of Formosa and the Pescadores as described here. The offshore islands have always been considered as part of “China.” As Secretary Dulles explained in 1954:

“The legal position is different…, by virtue of the fact that technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan.

Therefore the juridical status of these islands, Formosa and the Pescadores, is different from the juridical status of the offshore islands which have always been Chinese territory.” “Legal Status of Taiwan as Defined in Japanese Peace Treaty and Sino–Japanese Peace Treaty “Article 2 of the Japanese Peace treaty, signed on September 8, 1951 at San Francisco, provides that ‘Japan renounces all right, title and claim to Formosa and the Pescadores.’ The same language was used in Article 2 of the Treaty of Peace between China and Japan signed on April 28, 1952. In neither treaty did Japan cede this area to any particular entity. As Taiwan and Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution.

In conclusion, was it right for the ROC to mass-naturalize the former citizens of Formosa without giving them a choice, and shouldn’t they be given a chance now to correct this mistake? I think so.

Some group even charged this act of mass-naturalization as war crime when the ROC unilaterally announced the switch of citizenship of the Formosan inhabitants from the Japanese-Formosa to the occupying authority of the ROC.

Ma might have felt uncomfortable about the legitimacy of his presidency under the ROC’s constitution, but his latest round of arguments simply triggered more revelation of the KMT’s lie.

11 Record of the Proceedings of the Conference for the Conclusion and Signature of the Treaty of Peace with Japan, at p. 78, Dept. State Publication 4392 (1951).

12 Id., at p. 93.

16 Despatch No. 31 from the American Embassy in Taipei to the Department of State, July 23, 1952, Enclosure 2, at p. 1.

17 Id., at p. 2.

18 Id., Enclosure 3 at p. 4.

21 101 Cong. Rec. 1381 (1955).

1 comment:

Taiwan Defense said...

As late as May 1949, British and American officials were discussing the fact that Taiwan was NOT Chinese territory, and discussing eventualities if a Chinese Nationalist "government in exile" were to be established on the island. See -- "Formosa and the Pescadores" do not belong to China, and the ROC Constitution is not the true "organic law" of the Taiwan cession. President Ma has no authority to speak for the native Taiwanese people. It would be wonderful if the supporters of the DPP would wake up to the reality of Taiwan's international legal situation.

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