Taiwan's Status According to International Law

China attempts to claim its jurisdiction over Taiwan using four principles of international law: first, every sovereign country has the right to protect its unity and territorial integrity; second, Taiwan historically belongs to China; third, the proclamation issued at the Cairo conferences in 1943 states that Taiwan be returned to China; lastly, Taiwan is considered a part of China in the international world. The above may sound reasonable at first glance; however, we will demonstrate that these so-called "principles" cannot hold under an intensive scrutiny of international law. Taiwan, logistically or juristically, is a sovereign state that should attain an international status equivalent to that of its equals. It should also be stressed that Taiwan's future can only be decided by the Taiwanese, not any superpowers or alien regimes.

First of all, China's claim regarding the territorial integrity of a sovereign country is based on a principle of traditional international law. Modern international law pronounces the idea that, people have a right, which is above the territorial right of a state, to found a government that can truly represent all the people in the said region and not to be subject to oppression as a result of racial, religious, ethnic and other differences. The principle of self-determination has been asserted time and again in the Declaration on the Granting of Independence to Colonial countries and peoples (1960), in the Declaration on Principles of International Law concerning Friendly Relations and co-operation among States in accordance with the chart of the United Nations (1970), and in various opinions of the International Court of Justice. Therefore, when a certain number of people, or the minority groups within an existing state are oppressed, they have the right to demand independence and self-determination. Tha t is, a state's territorial right cannot override the principle of self-determination. Tibet under the Chinese regime best illustrates this point. It is widely recognized and supported that Tibetans are entitled to the right of self-determination which overweighs China's right of territorial integrity. In the case of Taiwan, it is more so since Taiwan has never been ruled by the People's Republic of China. In other words, Taiwan's effort to become an independent country conforms fully to the principle of self-determination widely adopted in international law.

Secondly, China's assertion that Taiwan historically has been part of China cannot definitively determine whom the jurisdiction of Taiwan should belong to. While such a rule may have been applied to the resolution of territorial disputed in the past, it was mainly used to settle disputes among two or more states such as those between China and India, and China and southeast Asian countries, etc. Therefore, it is inappropriate to apply this principle to our case. Moreover, this rule was adopted during the feudal era when a lord treated his people on his land as his own possession at his disposal. In modern societies, the will of the people on the land in dispute has become decisive in the judicature of the International Court of Justice. Therefore, Taiwan should not be all the disposal of any alien power; the will of the people should decide the future of the land, not vice versa. The claim of territorial supremacy laid by China, while neglecting the will of the Taiwanese, not only violates international law but also reveals its territorial ambition.

Thirdly, China invokes the Cairo Declaration of 1943 and Portsdam Declaration of 1945 as proof that Japan returned Taiwan to China after the war. However, it is questionable whether the proclamation made at the Cairo conferences is legally equivalent to an international treaty. Above all, since Japan was not among the attendants of these conferences, it was not legally bound by the proclamation made during these conferences. That is, the Cairo Declaration had no virtual constraining power with regard to Japan and its occupied territories. Since international law recognized only mutual peace treaties signed by the warring states, the San Francisco Peace Treaty (1951) is much more appropriate in determining the status of Taiwan.

The SF Peace Treaty stated that Japan gave up its claims on Taiwan and the Pescadores. However, there were no remarks saying that Taiwan would be given to China (According to Article 21, what China would gain was stipulated in Articles 10 and 14). After signing this treaty, Japan no longer has any right to give Taiwan away because according to international law it did not own Taiwan anymore.

Fourthly, to justify its intent to annex Taiwan, China suggests that one hundred and fifty-seven countries recognize that Taiwan is part of China. In fact, these countries use words such as "understand" or "notice" instead of "endorse" of "confer" referring to the "One China" policy. Above all, countries not directly involved in a territorial dispute have no right to decide on the ownership according to international law. For example, it means little if Japan recognizes Hawaii as a part of Canada.

All in all, international law is constructed on facts and actuality. If in fact, countries recognize Taiwan as part of China, they would and should have to acquire China's permission when they trade with Taiwan and when their people, aircraft, ships travel in and out of Taiwan; otherwise, these actions would clearly violate China's sovereignty. The fact that they do not have to deal with Taiwan vis-a-vis China again demonstrates their recognition that Taiwan is not part of China.

Lastly, by asking the international world to recognize Taiwan as a part of China, the Chinese government indeed exposes its insecurity toward this false claim. Why would a country request that others recognize its sovereignty over a piece of land if it really governs and owns this land? Obviously, China knows that its claim of Taiwan is factually and logistically weak.