Treaty of Taipei
Encyclopedia
The Sino-Japanese Peace Treaty , commonly known as the Treaty of Taipei , was a peace treaty
between Japan
and the Republic of China
(ROC) signed in Taipei
, Taiwan
on April 28, 1952. This treaty was necessary, because neither the Republic of China nor the People's Republic of China
was invited to sign the Treaty of Peace with Japan (Treaty of San Francisco)
due to disagreements by other countries as to which government was the legitimate government of China during and after the Chinese Civil War
. Under pressure from the United States, Japan signed a separate peace treaty with the Republic of China to bring the war between the two states to a formal end with the victory by the ROC. Although the ROC itself was not a participant of San Francisco Peace Treaty due to the resumption of Chinese Civil War after 1945, this treaty largely correlates itself to the San Francisco Peace Treaty. In particular, ROC waived service compensation to Japan in this treaty with respect to Article 14 (a) 1 of the San Francisco Treaty.
The Treaty of Taipei was abrogated
by the Japanese government on Sept. 29, 1972.
, the Pescadores
, the Spratlys, and the Paracels
.
Article 4
Article 10
Article 2 is a confirmation of the renunciation of Japan's claims to Taiwan and the Pescadores as well as to the South China Sea island chains of the Paracels and Spratlys.
(WUFI), writing in the 2nd edition (1972) of his book Historical and Legal Aspects of the International Status of Taiwan (Formosa) maintained that Article 10 is not an affirmative definition of the Chinese nationality of the Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as ROC nationals, because otherwise they would be considered stateless and be ineligible for documentation to enable them to travel to Japan. He further points out that the Treaty of Taipei does not call the Taiwanese "Chinese nationals" but instead employs the term "residents".
Moreover, Japan formally surrendered its claim to sovereignty over Taiwan on April 28, 1952, thus calling into serious doubt the authority of Japan to formally make such an assignment regarding the status of Taiwan over three months later on August 5, 1952. Indeed, British and American officials did not recognize any transfer of Taiwan's sovereignty to "China" in either of the post-war treaties.
Pro-independence supporters point out that the Nationality Law of the Republic of China
was originally promulgated in February 1929, when Taiwan was argued to be a de jure part of Japan. The Nationality Law was revised in February 2000; however, there were no articles addressing the mass naturalization of Taiwanese persons as ROC citizens. Hence, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan…" was argued to have yet to be fulfilled.
Furthermore, it must also be noted that independence supporters point out that neither the San Francisco Treaty nor the Treaty of Taipei specifically provide for a transfer of sovereignty over Taiwan from Japan to China. Both have provisions for the renunciation of Japan's claims of sovereignty, yet neither provides for a mechanism of transfer to China.
Significantly, as the ROC officially announced the total abrogation of the Treaty of Shimonoseki on more than one occasion, supporters of the ROC would argue that China's sovereignty over Taiwan was never in dispute. Moreover, Japan and the ROC by the Treaty of Taipei further "recognised that all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war". It was therefore argued that the ROC Nationality Law which was promulgated in February 1929 would have applied to the residents on Taiwan, and it was unnecessary to address any nationality issues in the February 2000 revision.
However, Professors Lung-chu Chen and W.M Reisman, writing in the Yale Law Journal in 1972, maintained that the title to Taiwan territory vested in Japan at the time of, and/or because of, the Treaty of Shimonoseki, as the language of the Treaty clearly indicated. Such title, insofar as it is title, ceases to be a bilateral contractual relationship and becomes a real relationship in international law. Though contract may be a modality for transferring title, title is not a contractual relationship. Hence once it vests, it can no longer be susceptible to denunciation by a party to the treaty. Professor Y. Frank Chiang, writing in the Fordham International Law Journal in 2004, expanded upon this analysis to state that there are no international law principles which can serve to validate a unilateral proclamation to abrogate (or revoke) a territorial treaty, whether based on a charge of being "unequal," or due to a subsequent "aggression" of the other party to the treaty, or any other reason.
Peace treaty
A peace treaty is an agreement between two or more hostile parties, usually countries or governments, that formally ends a state of war between the parties...
between Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
and the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
(ROC) signed in Taipei
Taipei
Taipei City is the capital of the Republic of China and the central city of the largest metropolitan area of Taiwan. Situated at the northern tip of the island, Taipei is located on the Tamsui River, and is about 25 km southwest of Keelung, its port on the Pacific Ocean...
, Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
on April 28, 1952. This treaty was necessary, because neither the Republic of China nor the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
was invited to sign the Treaty of Peace with Japan (Treaty of San Francisco)
Treaty of San Francisco
The Treaty of Peace with Japan , between Japan and part of the Allied Powers, was officially signed by 48 nations on September 8, 1951, at the War Memorial Opera House in San Francisco, California...
due to disagreements by other countries as to which government was the legitimate government of China during and after the Chinese Civil War
Chinese Civil War
The Chinese Civil War was a civil war fought between the Kuomintang , the governing party of the Republic of China, and the Communist Party of China , for the control of China which eventually led to China's division into two Chinas, Republic of China and People's Republic of...
. Under pressure from the United States, Japan signed a separate peace treaty with the Republic of China to bring the war between the two states to a formal end with the victory by the ROC. Although the ROC itself was not a participant of San Francisco Peace Treaty due to the resumption of Chinese Civil War after 1945, this treaty largely correlates itself to the San Francisco Peace Treaty. In particular, ROC waived service compensation to Japan in this treaty with respect to Article 14 (a) 1 of the San Francisco Treaty.
The Treaty of Taipei was abrogated
Denunciation
Denunciation or abrogation refers to the announcement of a treaty's termination. Some treaties contain a termination clause that specifies that the treaty will terminate if a certain number of nations denounce the treaty...
by the Japanese government on Sept. 29, 1972.
Summary of Treaty
Treaty of Taipei largely correlates itself to the terms of the Treaty of San Francisco, recognizing that in the Treaty of San Francisco (which entered into force April 28, 1952) Japan renounced all right, title, and claim concerning TaiwanTaiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
, the Pescadores
Pescadores
The Penghu Islands, also known as Pescadores are an archipelago off the western coast of Taiwan in the Taiwan Strait consisting of 90 small islands and islets covering an area of 141 square kilometers....
, the Spratlys, and the Paracels
Paracel Islands
The Paracel Islands, also called Xisha Islands in Chinese and Hoàng Sa Islands in Vietnamese, is a group of islands under the administration of Hainan Province, The People's Republic of China. Vietnam and the Republic of China also claim sovereignty of these islands...
.
Key Articles
Article 2- Reiterates the provision of the San Francisco Peace Treaty whereby Japan renounced all right, title, and claim to Taiwan and other associated islands.
Article 4
- All treaties, conventions and agreements concluded prior to August 9, 1941 were nullified.
Article 10
- Ethnic ChineseChinese peopleThe term Chinese people may refer to any of the following:*People with Han Chinese ethnicity ....
residents of the islands of Taiwan and Penghu and their descendants were regarded as having Chinese nationality.
Direct references
In two articles, the Treaty of Taipei makes direct references to the San Francisco Peace Treaty, which was the treaty signed and ratified by most Allies with the government of Japan in 1951 and 1952.Article 2 is a confirmation of the renunciation of Japan's claims to Taiwan and the Pescadores as well as to the South China Sea island chains of the Paracels and Spratlys.
Dates
The San Francisco Peace Treaty was signed on September 8, 1951 and ratified on April 28, 1952. The date of the ratification of the San Francisco treaty is the same date that the Treaty of Taipei was signed, that being April 28, 1952. However, the Treaty of Taipei did not enter into force until August 5, 1952 with the exchange of instruments of ratification between the two governments in Taipei. While there is no explicit provision for the transfer of sovereignty over Taiwan from Japan to the Republic of China, Article 10 is taken by many scholars as an implicit transfer. However, Ng Yuzin Chiautong, Chairman, World United Formosans for IndependenceWorld United Formosans for Independence
The World United Formosans for Independence , also known as WUFI, is an organization promoting Taiwan independence. It was established in 1970 by like-minded organizations in Canada, the U.S., Japan, Europe, and Taiwan...
(WUFI), writing in the 2nd edition (1972) of his book Historical and Legal Aspects of the International Status of Taiwan (Formosa) maintained that Article 10 is not an affirmative definition of the Chinese nationality of the Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as ROC nationals, because otherwise they would be considered stateless and be ineligible for documentation to enable them to travel to Japan. He further points out that the Treaty of Taipei does not call the Taiwanese "Chinese nationals" but instead employs the term "residents".
Moreover, Japan formally surrendered its claim to sovereignty over Taiwan on April 28, 1952, thus calling into serious doubt the authority of Japan to formally make such an assignment regarding the status of Taiwan over three months later on August 5, 1952. Indeed, British and American officials did not recognize any transfer of Taiwan's sovereignty to "China" in either of the post-war treaties.
Political status of Taiwan with respect to the ROC
Article 10 of the Treaty states that "for the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendants who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores)."Pro-independence supporters point out that the Nationality Law of the Republic of China
Nationality Law of the Republic of China
The Nationality Law of the Republic of China defines and regulates nationality of the Republic of China . It was first promulgated by the Nationalist Government on February 5, 1929 and revised by the Taipei-based Legislative Yuan in 2000, 2001, and 2006.The Act, like the Constitution of the...
was originally promulgated in February 1929, when Taiwan was argued to be a de jure part of Japan. The Nationality Law was revised in February 2000; however, there were no articles addressing the mass naturalization of Taiwanese persons as ROC citizens. Hence, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan…" was argued to have yet to be fulfilled.
Furthermore, it must also be noted that independence supporters point out that neither the San Francisco Treaty nor the Treaty of Taipei specifically provide for a transfer of sovereignty over Taiwan from Japan to China. Both have provisions for the renunciation of Japan's claims of sovereignty, yet neither provides for a mechanism of transfer to China.
Significantly, as the ROC officially announced the total abrogation of the Treaty of Shimonoseki on more than one occasion, supporters of the ROC would argue that China's sovereignty over Taiwan was never in dispute. Moreover, Japan and the ROC by the Treaty of Taipei further "recognised that all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war". It was therefore argued that the ROC Nationality Law which was promulgated in February 1929 would have applied to the residents on Taiwan, and it was unnecessary to address any nationality issues in the February 2000 revision.
However, Professors Lung-chu Chen and W.M Reisman, writing in the Yale Law Journal in 1972, maintained that the title to Taiwan territory vested in Japan at the time of, and/or because of, the Treaty of Shimonoseki, as the language of the Treaty clearly indicated. Such title, insofar as it is title, ceases to be a bilateral contractual relationship and becomes a real relationship in international law. Though contract may be a modality for transferring title, title is not a contractual relationship. Hence once it vests, it can no longer be susceptible to denunciation by a party to the treaty. Professor Y. Frank Chiang, writing in the Fordham International Law Journal in 2004, expanded upon this analysis to state that there are no international law principles which can serve to validate a unilateral proclamation to abrogate (or revoke) a territorial treaty, whether based on a charge of being "unequal," or due to a subsequent "aggression" of the other party to the treaty, or any other reason.
Application of the Treaty
Japanese lawyers have made the argument that the provisions of the Treaty of Taipei and the subsequent Sino-Japan joint communique waived the right of Chinese nationals to seek compensation from the Japanese government or corporations based in Japan.End of the Treaty
The Treaty of Taipei was abrogated by the Japanese government on Sept. 29, 1972, upon the establishment of formal diplomatic relations with the People's Republic of China.See also
- Treaty of Peace and Friendship between Japan and the People's Republic of ChinaTreaty of Peace and Friendship between Japan and the People's Republic of ChinaThe Treaty of Peace and Friendship between Japan and the People's Republic of China was concluded on August 12, 1978.- See also :* Joint Communiqué of the Government of Japan and the Government of the People's Republic of China* Sino-Japanese relations...
- Second Sino-Japanese WarSecond Sino-Japanese WarThe Second Sino-Japanese War was a military conflict fought primarily between the Republic of China and the Empire of Japan. From 1937 to 1941, China fought Japan with some economic help from Germany , the Soviet Union and the United States...
(1937–45) - Sino-Japanese relationsSino-Japanese relationsChina and Japan are geographically separated only by a relatively narrow stretch of ocean. China has strongly influenced Japan with its writing system, architecture, culture, religion, philosophy, and law...
- Legal status of TaiwanLegal status of TaiwanThe legal status of Republic of China is a controversial issue which stems from the complex post-Second World War history of Taiwan. Various claims have been made by the People's Republic of China , the Republic of China , and supporters of Taiwan independence over this question, with a variety of...
- Political status of TaiwanPolitical status of TaiwanThe controversy regarding the political status of Taiwan hinges on whether Taiwan, Penghu, Kinmen, and Matsu should remain effectively independent as territory of the Republic of China , become unified with the territories now governed by the People's Republic of China , or formally declare...
- San Francisco Peace Treaty
- Japan-Taiwan Relations
External links
- http://www.mofa.go.jp/region/asia-paci/china/joint72.html
- Text of the Treaty of Taipei