Thursday, March 9, 2017

The truth about Taiwan Retrocession Day

Was Taiwan returned to Chinese sovereignty on 25 October 1945?

In order for us to know the significance of the so-called "Taiwan Retrocession Day" it is paramount for us to understand the basis of Republic of China's authority on Taiwan.

First, we must establish that Taiwan was ceded in full and perpetuity to Japan under the terms of Treaty of Shimonoseki in 1895.

On 2 September 1945, Japanese forces surrendered to the Allied Powers. The Japanese Government issued a document called Instrument of Surrender, while the Supreme Commander for the Allied Powers issued the terms of surrender called General Order No. 1. Under the terms of General Order No. 1, Japanese forces in Taiwan and Penghu surrender themselves to Generalissimo Chiang Kai Shek.

On 25 October 1945, Japanese forces in Taiwan surrendered to the Allied Powers in a ceremony. Surrender of the Japanese paved the way for military occupation by Chiang Kai Shek's forces. Authority of Chiang came from General Order No. 1. The basis for Chiang's governance is military occupation. As a rule, military occupation does not transfer territorial sovereignty to the occupying State.

Did any of the Allied Powers recognize transfer of sovereignty for Taiwan, from Japan to China on 25 October 1945? The answer is NO.

On 12 January 1946, the Executive Yuan of the Republic of China issued an order to restore Chinese nationality to the Taiwanese population on and effective from 25 October 1945. This led to diplomatic protests by the United States and United Kingdom. In diplomatic memorandums sent to the Republic of China, both US and UK insisted that transfer of Taiwan's sovereignty be formalized in a treaty of cession with Japan.

Pro-unification camps argued that the Cairo, Postdam and Yalta Declarations could restore Taiwan back to China. Common sense tells us that declarations are statements of intentions which do not carry the force of law. The diplomatic protests are solid evidence that US and UK did not recognize those declarations as having the force of law. Those documents cannot be cited as the basis for return of Taiwan to China. Instead, only a treaty can settle territorial questions.

What's wrong with changing the nationality of Taiwanese population? Firstly, China altered the nationality of Taiwanese people without first obtaining documentary evidence of sovereignty. Secondly, it is a violation of Article 45 of Hague Conventions governing wars on land, since China could only be recognized as occupying power over Taiwan.

25 October 1945 was the day when Taiwan came under Chinese [military] occupation. It can only be called Taiwan Occupation Day.

Monday, March 6, 2017

Taiwanese are Chinese? A US memorandum dated 1946 raised concern

An issue pertaining to the Taiwan question is the nationality and citizenship of the Taiwanese population. The question of nationality and citizenship is a matter of law, not racial identity per se. At some point in time, citizenship can be altered without the consent of the population involved, without due consideration to law. Since when Taiwanese people have become Chinese citizens?

It is to my knowledge that the Executive Yuan of the Republic of China issued an executive order on 12 January 1946 to restore Chinese nationality to the Taiwanese population effective 25 October 1945, the day when China "regained" Taiwan. The executive order was issued without prior consultation with other Allied Powers.

The sovereignty of Taiwan was transferred to Japan on the conclusion of Treaty of Shimonoseki in 1895.

25 October 1945 is termed "Taiwan Retrocession Day" by the Nationalist Government of the Republic of China. This term is disputed today because de jure sovereignty of Taiwan was not restored to China, since a peace treaty between China and Japan has yet to be concluded. According to British Parliamentarians, the Nationalist Government was merely administering Taiwan on the basis of military occupation based on Japanese Instrument of Surrender and General Order No. 1 issued by Supreme Commander of the Allied Powers. 25 October 1945 can only be accurately named "Taiwan Occupation Day".

On the act of converting the nationality of Taiwanese population to China, a memorandum was sent by the Military Intelligence Section of the Supreme Commander for the Allied Powers to Ministry of Foreign Affairs of the Republic of China, dated 2 April 1946. It raised a few questions:
  • That the Chinese government to express its views in regard to these individuals:
    1. Individuals of mixed parentage such as Chinese-Taiwanese, Japanese-Taiwanese and Chinese-Japanese.
    2. Taiwanese people who have established residence in Japan and collaborating with Japanese war effort.
    3. People born in Taiwan but elected to remain in Japan rather than being repatriated to Taiwan.
  • On whether there are laws of the Republic of China governing the citizenship of native and former residents of Taiwan.
  • The unnecessary restriction on the use of the term "Taiwanese" to refer to the Taiwanese population.

Excerpt from Foreign Relations of the United States, 1946, Volume VIII, The Far East, p. 187-188

Why is nationality of Taiwnese people a matter of concern?

Since the British Parliamentarians contended that the regime of Chiang Kai Shek was exercising authority on the basis of military occupation, the law of military occupation applies. The law of military occupation is governed by Hague Conventions of 1899 and 1907, in which China is a signatory.

The situation in Taiwan after 1945 was that the Republic of China as the occupying power and Taiwan as an occupied territory. Japan remained the de jure sovereign, but with her governmental powers suspended. It has to be noted that the Republic of China was not acting by herself, but as part of the Allies, as an agent of the United States as principal occupying power. The return of Taiwan to China requires a treaty of cession be concluded between the two countries.

The Hague Conventions prohibits that the allegiance of the population in an occupied territory be altered to that of a hostile power. Republic of China was considered a hostile power for Taiwan during the period of World War II, due to the fact that Taiwan was Japanese sovereign territory. Legally, people of Taiwan remain Japanese subjects from 1895 up to 1952. The conversion of nationality of the Taiwanese population to China is a violation of Hague Convention and constitute a war crime.

Moreover, the Executive Order contravened nationality laws of the Republic of China at that time, which was promulgated in 1929.

The Nationalist Government of China continued to impose Chinese nationality on Taiwanese people unlawfully throughout the martial law era. With the rise of Mainland China and the Chinese claim on Taiwan, it is tough to address the question of legitimate nationality for the Taiwanese population. The imposed nationality also poses much problems for Taiwanese people over Republic of China passports, at immigration checkpoints overseas.

Notwithstanding that the Republic of China has lost the Chinese mainland, the nature of its governance in Taiwan has not changed since 1945. By law, Taiwan remains an occupied territory of the Republic of China.

I am a Chinese by ethnicity, no doubt. The Chinese people is considered a nation. As a nation, we are not entitled to commit acts to suit the national narrative, but contravene existing laws. As much as we desire an outcome, the process to achieve it must be done according to law. Only then the Chinese nation will be respected.