What is the legal status of the Republic of China on Taiwan?

The Republic of China on Taiwan is often in the news these days, especially since it is vigorously trying to obtain increased international recognition. When the ROC was founded in 1912, Taiwan was part of Japan. Although on Sept. 2, 1945, Gen. MacArthur directed Chiang Kai-Shek to go to Taiwan to accept the surrender of Japanese troops, those surrender ceremonies did not mark the transfer of sovereignty of Taiwan to China. In fact, the Oct. 25, 1945, surrender ceremonies only marked the beginning of the military occupation of Taiwan. When did the military occupation end? No one seems able to provide a concrete answer. (Perhaps Taiwan is still under military occupation even today.) Today, many people in Taiwan claim that they are entitled to the right of self-determination under the UN Charter. Unfortunately the UN doesn't agree, and has consistently refused ROC-Taiwan's application for membership. So, what is the legal status of the ROC on Taiwan?

Public Comments

1. In terms of the UN, China's seat in the General Assembly and Security Council was transferred to the People's Republic. The ROC isn't really recognized by any major power, as recognition would result in the People's Republic likely cutting trade and economic ties with that nation. The US doesn't officially recognize the ROC but the Navy frequently goes their ostensibly to maintain peace but really to indicate to China that a democratic nation will not be conquered by a communist one by force. The Charter does ensure self-determination but in this case the People's Republic holds a lot of sway, especially on the Security Council. Basically what it amounts to is the blatant disregard of international law because of politics and money.
2. Answers to five common questions which people ask about the ROC on Taiwan are given as follows -- Q: Is it a state? A: No. Q: Is it sovereign? A: No. Q: Is its government the representative of the Chinese people (i.e. the people of what is now regaded as the Peoples Repubic of China)? A: No. Q: Has its status changed since popular elections were held for President in 1996? A: No, it is still a government in exile. Q: If Taiwan is occupied territory, who is the occupying power? A: The USA, as fully confirmed by Article 23a of the SFPT. The key to understanding the international legal position of Taiwan, and the position of the "Republic of China," is to examine all relevant issues from the perspective of the laws of war of the post-Napoleonic period. Accordingly, we can see that the surrender ceremonies for Japanese troops in Taiwan on Oct. 25, 1945, mark the beginning of the military occupation of Taiwan. Considering the situations of California, New Mexico, Utah, etc. in 1847 (Mexican American War), and the situations of Puerto Rico, Guam, the Philippines, and Cuba in 1898 (Spanish American War), and other situations of war in the 1800s and 1900s, it is clear that the "conqueror" is "the occupying power." Since the military occupation of a particular area can be delegated to co-belligerents ("allies"), this is more correctly referred to as "the principal occupying power." The areas of "Formosa and the Pescadores" (aka Taiwan) had been ceded to Japan in the 1985 Treaty of Shimonoseki. After the Dec. 8, 1941 US Declaration of War against Japan, all military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by US military forces. The United States is the "conqueror" and will be the principal occupying power. Although Chiang Kai-shek ostensibly accepted the surrender of Japanese troops in Taiwan on behalf of the Allies (based on the provisions of Gen. MacArthur's General Order No. 1 of Sept. 2, 1945), the ensuing military occupation of Taiwan is being conducted on behalf of the principal occupying power -- the United States of America. This is a principal-agent relationship. Hence, in relation to Taiwan, as of October 25, 1945, the ROC (under Chiang Kai-shek) is a subordinate occupying power. The United States is the principal occupying power. United States Military Government jurisdiction over Taiwan has begun as of this date. In December 1949, high officials of the ROC fled to occupied-Taiwan to become a government in exile. There has been no change in this status to date. Hence, at the present time, the ROC in Taiwan is (1) a subordinate occupying power, beginning Oct. 25, 1945, and (2) a government in exile, beginning December 1949. Under the laws of war, the ROC has effective territorial control over Taiwan, but not sovereignty. The world community was confused for so many years because the ROC was recognized by the United Nations as the sole legitimate government of China up through Oct. 25, 1971, and recognized by the United States as the sole legitimate government of China up through Dec. 31, 1978. (The Soviets recognized the PRC as the sole legitimate government of China in 1949, and the British followed very quickly in Jan. 1950. France followed in 1964.) The PRC cannot claim the sovereignty of Taiwan based on the "successor government theory" because the ROC never had it in the first place. Importantly, for anyone interested in promoting liberty and democracy throughout the world, it is necessary to recognize an established point of international law which says that there are no actions which a "government in exile" can take in order to enable it to become the legally recognized government of its current locality of residence. Hence, despite the strides taken toward democratic development by the ROC in Taiwan, the world community is still unable to recognize it as a sovereign state. Moreover, the post war peace treaty did not award the territory of "Formosa and the Pescadores" to the ROC. In summary, the areas of "Formosa and the Pescadores" (aka Taiwan) are occupied territory of the United States of America. The United States of America is the principal occupying power, as confirmed in Article 23a of the San Francisco Peace Treaty of April 28, 1952. Moreover, the fact that United States Military Government jurisdiction over "Formosa and the Pescadores" is active is fully confirmed by Article 4b of the SFPT. It is an established point of the laws of war that for a territorial cession after war, the military government of the principal occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted. The US Department of State is still not willing to admit the truth in regard to Taiwan's status. The SFPT contains the full specifications, and (according to Article VI of the US Constitution) is part of the supreme law of the land. Taiwan's correct formulation for entering the WHO is as an associate member under the USA, similar to Puerto Rico. I must not fail to mention that the Kinmen and Mazu island groups are sovereign ROC territory. (Formosa and the Pescadores are not.) The PRC could well claim sovereignty over the Kinmen and Mazu island groups based on the successor government theory, but that would be something for the ROC and PRC representatives to discuss. The One China Policy is correct. However, the One China Policy does not say that the USA recognizes that Taiwan is a part of China.