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Yazhong Zhang: Reflections on the Sixtieth Anniversary of the San Francisco Peace Treaty
By Yazhong Zhang Translator Sheng-Wei Wang
November 1, 2011


 

Editor’s Note: The article first appeared on www.chinareviewnews.com   (2011-09-08 00:25:27)  

Sixty years ago today, on September 8, 1951, the San Francisco Peace Treaty was signed. In the covenant, Japan only renounced Taiwan (Formosa) and Penghu (the Pescadores) without explicitly returning them to China, thus giving the implicit legal basis of "undetermined status of Taiwan" as advocated by the United States. Later, the advocators of Taiwan independence use the San Francisco Peace Treaty, or the Republic of China (ROC) owning no sovereignty of Taiwan, or the ROC Government being in exile as the basis for their advocacy of undetermined sovereignty of Taiwan.

A couple of days ago in Taipei, the Taiwan Solidarity Union held a Sovereignty-caring, Peace-loving Parade for the Sixtieth Anniversary of the San Francisco Peace Treaty" to express their independence appeal. The campaign declared: "The San Francisco Peace Treaty proves that the people of Taiwan are free from the colonization of the Japanese empire; they have the same right as all the colonies after World War II to establish their own country." The Democratic Progressive Party (DPP) Secretary-General Su Jia-chyuan represented the DPP to participate in the parade. The General Supervisor of the Tsai Ing-wen campaign office and former Premier Yu Shyi-kun said at the event that "the ROC is fictional" and "the 1992 Consensus is fictional." Tsai Ing-wen also had said that “the ROC is a government in exile.” These advocacies are all based on the idea that the people of Taiwan have the right to build a sovereign and independent country and the rationale is in the San Francisco Peace Treaty.

Simply put, the advocacy of Taiwan independence relies the most on the San Francisco Peace Treaty as a document of international law. I would like to discuss this issue in depth on this sixtieth anniversary of the document.

This article presents three reflections: first, the legal side of the reflection, namely, the legal basis for Taiwan being returned to China; second, the messages obtained from the international politics; third, how each of the two sides rethinks the treaty of peace with Japan.

I.
 Legal Facts of Taiwan Being Returned to China

In the Cairo Declaration on December 1, 1943, President Franklin Roosevelt of the United States, Prime Minister Winston Churchill of the United Kingdom, and Generalissimo Chiang Kai-shek of the Republic of China jointly made the following Press Communiqué: “It is their purpose that Japan shall be stripped of all of the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed." This was the most important declaration at the end of World War II. It explicitly said that Taiwan should be returned to China.

On July 26, 1945, the Potsdam Proclamation accepted the Cairo Declaration and specified: "The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine."

On September 2, 1945, the Japanese Instrument of Surrender expressed the acceptance of the Potsdam Proclamation, in which it was stated: "We…hereby accept the provisions set forth in the declaration issued by the Heads of the Governments of the United States, China, and Great Britain on 26 July 1945 at Potsdam, and subsequently adhered to by the Union of Soviet Socialist Republics..."

The Japanese Instrument of Surrender accepted the Potsdam Proclamation, and the Potsdam Proclamation had accepted the Cairo Declaration in which Japan already accepted the regulation of returning Taiwan to China. Starting from 1945, the ROC Government took over Taiwan and began to exercise the right to rule as a sovereign act. Not a single nation in the whole world presented a challenge against it. The China then was the Republic of China and the return of Taiwan to the ROC was an indisputable legal fact.

In September 1950
, the US President Harry S. Truman sent the Secretary of State John Foster Dulles to push issues related to the peace treaty with Japan. The ROC Ambassador to the US Wellington Koo and Dulles put pressure on the Japanese government by demanding that the Japanese Prime Minister Shigeru Yoshida sign a Peace Treaty between the ROC and Japan and by making sure that this treaty be signed before the San Francisco Peace Treaty became formally effective.

On September 8, 1951, representatives of 48 countries including Japan signed the Peace Treaty at the San Francisco War Memorial Opera House in San Francisco, and on April 28, 1952 (10:30 p.m. Japan time) it took effect.

The San Francisco Peace Treaty indeed did not express explicitly the return of Taiwan and Penghu to China. The fact that Japan did not say that Taiwan should be returned to China might be two folds. On the one hand, it could be interpreted as Japan having abandoned Taiwan, therefore, having no right to say to whom it should be returned; according to the Cairo Declaration, the Potsdam Proclamation and the Japanese Instrument of Surrender, it had long been provided that Taiwan should be returned to China. On the other hand, since China was split at that time, both sides of the strait had their supporters; neither side attended the peace conference, therefore it was not decided to return Taiwan to either side.

Although the Taipei representatives did not personally participate in the conference, the government did not overlook the territorial issue. After the Taipei Government raised this issue, the then US Secretary of State John Foster Dulles pointed out clearly to Ambassador Wellington Koo that the San Francisco Peace Treaty had accepted the views of Taipei, therefore, the Kurile Islands, and that portion of Sakhalin and the islands adjacent to it were all treated in a similar way as Taiwan and the Pescadores; it was only demanded that Japan renounce all right, title and claim over these territories. So far there has not been any issue on the legal status of Sakhalin and other islands, so why is only Taiwan's status in question? The reason is naturally very simple. It is the political reality that dictates.

Both the ROC and Japan signed the Peace Treaty between the ROC and Japan on April 28, 1952 (3 pm Taipei time, seven hours before the San Francisco Peace Treaty became effective). The ROC-Japan treaty reiterated stipulations contained in the San Francisco Peace Treaty including that “Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands.” Also, “it is recognized that all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of the war”. These treaties naturally included the Treaty of Shimonoseki in1895.


According to Article 10 of the Peace Treaty between the ROC and Japan, the Taiwanese people are regarded as ROC nationals. It stipulates 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); and juridical persons of the Republic of China shall be deemed to include all those registered under the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores)." This is a very clear statement that Taiwan is part of the ROC.

From the above historical process we can see that, based on the Cairo Declaration (returning Taiwan and Penghu to China), the Potsdam Proclamation (ratifying the Cairo Declaration) and the Japanese Instrument of Surrender (ratifying the Potsdam Proclamation), Taiwan was returned to China. The San Francisco Peace Treaty that came into effect in 1952 no longer reiterated explicitly the return of Taiwan and Penghu to China. In the legal sense, there is also no special possibility that can reject this existing fact. When viewing together the 1952 Peace Treaty between the ROC and Japan (Article 10) and the San Francisco Peace Treaty, there is no question that Taiwan belongs to China, which was the Republic of China at that time.

 

II. Messages Obtained from the International Politics

 

The San Francisco Peace Treaty signed between the victorious countries and the vanquished Japan was the peace treaty in the East Asian theater of World War II. Europe, because of the division of Germany and the post-war territorial dispute, did not have a real post-war peace treaty at that time.

As East and West Germany were split, and because they did not agree with the territorial arrangement, there was no European peace treaty after World War II. The San Francisco Peace Treaty related to the Asian peace, nevertheless, was signed by the major powers of the world without the participation of Chinese representatives. What was the problem?

Both East and West Germany were defeated, but they had the support of strong powers behind them. Since there was no agreement between the two Germanys, a peace treaty was impossible. The San Francisco Peace Treaty was of great concern to the Chinese territory. China, as the most important party in the war against Japan, had suffered tens of millions of deaths and injuries. But neither the Beijing Government nor the Taipei Government participated in this peace treaty with Japan. If China did not have the civil war in 1945 that resulted in the subsequent split, the two sides did not compete for sending their own representatives to resist each other, and the country was not too weak to have no say in influencing decision, how could the Chinese representatives not attend the Japan Peace Treaty Conference held in San Francisco?

Let us return to the era before the two sides ruled separately. Starting from 1945, the ROC Government took over Taiwan and began to exercise the administrative power as an act of sovereignty. No country in the world opposed it. The China at that time was the ROC. Taiwan being returned to the ROC and being made a part of it was an indisputable legal and political fact.

Until the early 1950s, no one had mentioned the story of the uncertain status of Taiwan. The US also had no objection to Taiwan belonging to the ROC. On January 5, 1950, the then US President Harry S. Truman publicly stated in a press conference that "In keeping with these declarations (Cairo and Potsdam), Formosa was surrendered to Generalissimo Chiang Kai-shek, and for the past 4 years the United States and other Allied Powers have accepted the exercise of Chinese authority over the island." On the same day, Secretary of State Dean Gooderham Acheson also remarked: "The Chinese [referring to the Republic of China] have administered Formosa for 4 years. Neither the United States nor any other ally ever questioned that authority and that occupation. When Formosa was made a province of China nobody raised nay lawyers’ doubts about that. That was regarded as in accordance with the commitments."

On June 25, 1950, the Korean War broke out. The US renewed its emphasis on the status of Taiwan. The US needed Taiwan as its anti-communist base in the Western Pacific and sent the Seventh Fleet to defend Taiwan. The US began to seek the legal basis for intervening in the cross-strait affairs. Truman declared: "The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations." This opened the door for the advocacy of “Taiwan's status being undetermined" by the US

In this strategic thinking, the status of Taiwan started from having been returned to China and developed into an undetermined position. The reason was simple: the requirements of the Asia-Pacific strategy of the US

From then on, we see a very ridiculous and very humiliating situation for Taiwan. But based on survival needs, Taiwan was forced to accept it. On the one hand, Washington maintains diplomatic relations with Taipei; on the other hand, it advocates that Taiwan and Penghu owned by the ROC are legally uncertain areas.

At the end of 1969, a Sino-Soviet border conflict occurred on the Treasure Island (Zhenbao Island). This provided the US a strategic opportunity for cooperation with the Chinese. The US and the People’s Republic of China (PRC) signed the Shanghai Communiqué in 1972, and recognized that "Taiwan is part of China." Since then, the US formally renounced the advocacy of "Taiwan's status being undetermined." But another new "undetermined status" was generated. That is, does Taiwan belong to the ROC in Taipei or the PRC in Beijing?

From the Shanghai Communiqué until the establishment of diplomatic relations with the PRC in 1979, there were still diplomatic relations between Taipei and Washington. There was no doubt that the US thought that Taiwan belonged to the ROC. After Beijing established diplomatic relations with Washington, based on the consideration of the US strategic interests in East Asia, the US Congress passed the Taiwan Relations Act in 1979. This means that it did not agree that Taiwan belonged to the PRC, but belonged to the Taipei Government. The US, while not recognizing the Taipei Government, nevertheless treated it as a country. A partition of the two sides was in America's strategic interests in East Asia.

From the above historical facts we can see that the "undetermined status of Taiwan" implied in the San Francisco Peace Treaty is an already sour and very humiliating dish for Taiwan. However, the advocators of Taiwan independence regard it as treasures and delicacies. I would like to remind them that, if they do not accept the ROC, then, according to the US Shanghai Communiqué and the Joint Communiqué of the People's Republic of China and the United States Concerning the Establishment of Their Diplomatic Relations, Taiwan naturally belongs to the PRC in Beijing. I would also like to remind the Kuomingtong (KMT) that how the US identifies the status of Taiwan depending entirely on its strategic needs. If you do not think about how to reach consensus with Beijing regarding the status of Taiwan through a peace agreement, ultimately you will remain a US strategic pawn.

III. How to Rethink the Peace Treaty between the ROC and Japan? Is the War Reparation Issue Solved?

The ROC Government in Taipei gave up its war reparation demands against Japan in the peace treaty signed with Japan in 1952.

In 1952, in order to reach a peace treaty with Japan before the commencement of the San Francisco Peace Treaty, the Taipei side was forced to make a full concession on the issue of reparation and on March 25 decided to give up all compensations. Only in the Protocol to the Peace Treaty between the ROC and Japan was it stated that: “It is recognized that Japan should pay reparations… it is also recognized that the resources of Japan are not presently sufficient…to make complete reparation for all such damage and suffering and at the same time meet its other obligations…As a sign of…the Republic of China voluntarily waives the benefit of the services to be made available by Japan... "

However, after knowing Taipei’s consideration in eagerly signing the peace treaty, Japan held more objections to the protocol and demanded to cancel the terms on compensation, or else made delays and refused to negotiate. Taipei at last agreed to Japan's request on April 12. At 15:00 on April 28 the final signatures were completed. There were only seven hours left before the San Francisco Peace Treaty took effect.

The word “reparation” cannot be found throughout the body of the Peace Treaty between the ROC and Japan signed by Taipei and Tokyo. The related content was only confirmed in the Protocol outside the Peace Treaty. The original text of Article 1 (b) of the Protocol reads: "As a sign of magnanimity and good will towards the Japanese people, the Republic of China voluntarily waives the benefit of the services to be made available by Japan pursuant to Article 14 (a) 1 of the San Francisco Treaty." At this point, the ROC Government in Taipei gave up reparations from Japan.


The San Francisco Peace Treaty was signed at a time when the PRC was building the system of the country and actively participated in the Korean War. Although the Soviet Union and the United Kingdom supported the participation of Beijing in the Conference of the San Francisco Peace Treaty with Japan, the opposition of the US prevented Beijing from participating. As a result, Beijing issued two statements on August 15, 1951, and September 18, 1951, pointing out that the Peace Treaty was illegal and void, and must not be recognized.

After the PRC in 1971 gained a legitimate seat in the United Nations, the PRC and Japan established diplomatic relations on September 29, 1972, and issued a joint communiqué. The fifth item stated: “The Government of the People's Republic of China declares that in the interest of the friendship between the Chinese and the Japanese peoples, it renounces its demand for war reparation from Japan.” The Treaty of Peace and Friendship between the PRC and Japan said nothing about the sovereignty ownership of Taiwan and Penghu.

Tens of millions of Chinese suffered casualties and countless damage to properties in the Sino-Japanese war. But because the governments of the two sides had their own considerations, they gave up the demands of reparations from Japan.

Did things just end like this? As a result of China’s split, the two sides were unable to participate in the post-war peace treaty with Japan. Did the Taipei Government and the Beijing Government complete the legal procedures of the peace treaty by separately signing a peace treaty with Japan? It does not seem to be so. There is still room for discussion.

Let us look at the example of another divided country. How did Germany deal with the post-war territorial issues?

After the end of the Second World War, the Soviet Union gained ​​the eastern region of Poland, and Poland acquired the eastern part of the original Germany. The new frontiers were confirmed in the Potsdam Proclamation by the victorious powers. Since Germany was split into East and West Germany, the border of the German Empire before the war with Poland became East Germany's border with Poland. The Oder-Neisse (Oder-Neiße) line became East Germany's border with Poland. This meant that post-war Germany lost the large tracts of land to the east of the Oder and Lusatian Neisse rivers. All the local Germans could choose to be sent back to East Germany or West Germany according to their wishes.

In the absence of an European peace treaty after World War II, the border issue in the eastern part of Germany could not be resolved. They were only temporarily dealt with by East and West Germany separately.

After World War II, East Germany was a member of the Warsaw Pact. Therefore, on the territorial issue it naturally must be consistent with the interests of the Soviet Union. On July 6, 1950, East Germany and Poland signed the Agreement on the Demarcation and Maintenance of the German-Polish Border and determined the boundaries between East Germany and Poland. Because this treaty was signed on behalf of the East German Government, it could only represent a treaty agreed by East Germany rather than a treaty agreed by all the Germans. Therefore, the West German Government did not accept it.

In 1969, after Willy Brandt became the Chancellor of
West Germany, he actively improved relations with Eastern European countries. On December 7, 1970, Article I of the Treaty of Warsaw signed between West Germany and Poland also agreed to a new German-Polish border. Logically speaking, both East and West Germany agreed to this new border. The border issue seemed resolved.

However, the West German Government then expressed very clearly that this was only a border treaty signed between the West German Government and Poland. Legally, it was only of a temporary nature. The signing of a real German-Polish border shall be determined only by a unified Germany.

Poland and the Four Powers (four victorious countries in World War II) were well aware that politically this border was established, but legally it was not completed.

On September 12, 1990, East and West Germany signed the Two-Plus-Four Treaty with the Four Powers and concluded under international law the border issue of the eastern part of Germany. The Treaty said: "The united Germany shall comprise the territory of the Federal Republic of Germany, the German Democratic Republic and the whole of Berlin. Its external borders shall be the borders of the Federal Republic of Germany and the German Democratic Republic and shall be definitive from the date on which the present Treaty comes into force." Since then the ownership of the eastern part of Germany was resolved by an international treaty.

Territory and reparation are the issues that a peace treaty is bound to deal with. As can be seen from the above example, both East and West Germany could only represent themselves. They had no power to deal with the territorial issue on behalf of the entire Germany.

Let us come back to the cross-strait situation. In 1952 and 1972, it was the ROC Government in Taipei and the PRC Government in Beijing separately giving up the reparation requirements from Japan. According to the German experience, only the future reunified China or an institution formed through cross-strait integration, which shares sovereignty over the whole of China, has the power to give up war reparations from Japan. In short, the two partitioned governments, although each claims to represent China, are like East Germany before 1955 and West Germany in 1972 that claimed to represent the whole of Germany. But legally, neither can represent the whole of China. The sovereignty of the whole of China must be represented by the two sides together.

If we follow the German experience, the reparation treaty signed separately with Japan without the participation of both sides cannot be considered as a treaty that determines the result. Even if the future result may not change the current result, it is still necessary to have a peace treaty with the participation of both sides to be accepted as a real peace treaty.

In addition, the Diaoyutai Islands were originally part of Taiwan. Is it also necessary in the future peace treaty to press Japan to re-accept the fact of this territorial ownership? This is another issue that can be considered.

The above are some of my thoughts in commemoration of the sixtieth anniversary of the San Francisco Peace Treaty. I welcome readers’ comments.

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Dr. Yazhong Zhang (Ya-chung Chang) is the Chairman of the Chinese Integration Association and Professor in Political Science at the National Taiwan University. He has published more than ten books including Theory of the Cross-Strait Sovereignty, Theory of the Cross-Strait Integration, European Integration: Interactions of Intergovernmental Doctrine and Ultra-Nationalism, US-China Policy: Containment, Engagement, and Strategic Partners. They are all important writings in the relevant academic fields. Open the Political Market (Linking Publishing Company, Taipei, Taiwan) is the book on his new political thinking. Recent interview on Phoenix TV: http://v.ifeng.com/opinion/taiwan/201009/ad395393-b10f-4aff-a64f-f2d44271eed2.shtml
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