Taiwan is Japanese Territory






Preface

Below is the TAIWAN IS JAPANESE TERRITORY argument, which includes two primary aspects,
#1: "Taiwan's Territorial Sovereignty is held by the Emperor of Japan" and
#2: "Taiwan is an Indivisible Part of Japan's National Territory,"
as assembled from various Chinese blog pages, leaflets, videos, and online reportage.

Perhaps members of the internet community can offer comments on whether this holds up to rigorous legal scrutiny.








Terminology and Concepts

In the 1895 Treaty of Shimonoseki, the Emperor of Qing China ceded Formosa and the Pescadores (aka Taiwan) to the Emperor of Japan.
Article 2

China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon:

. . . . . . . .

(b) The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa.

(c) The Pescadores Group, that is to say, all islands lying between the 119th and 120th degrees of longitude east of Greenwich and the 23rd and 24th degrees of north latitude.

After this 1895 date, the territorial sovereignty of Taiwan was held by the Emperor of Japan. He, in turn, delegated the administration and management of Taiwan to the Government of Japan.

(Note: Arguments claiming that this 1895 territorial cession were "invalid" do not carry a lot of weight in international law circles, according to numerous comments made by knowledgeable persons, and posted on the internet. There is also an article about this from the Fordham Law School, Fordham International Law Journal, see -- One China Policy and Taiwan. Moreover, Taiwan was fully recognized as an insular area of Japan in the 1922 Washington Naval Treaty.)


Important terminology -- Here is a listing of some further essential items and a brief description.

San Francisco Peace Treaty (aka "SFPT" or "Treaty of Peace with Japan"): Signed Sept. 8, 1951; entered into force April 28, 1952.

Treaty of Taipei (aka "Sino-Japanese Peace Treaty"): Signed April 28, 1952; entered into force Aug. 5, 1952. Abrogated by the Government of Japan on September 29, 1972, upon the establishment of diplomatic relations with the People's Republic of China.

Ninety-nine day period: the period between April 28, 1952 and August 5, 1952, which represents the enforcement dates of the SFPT and the Treaty of Taipei.

Native Taiwan inhabitants: Taiwanese who acquired legal status as Japanese nationals as a result of the Shimonoseki Treaty (as recorded in the family registers in Japanese Taiwan), and their descendants up to the present day.
(Note: the issue of whether these "descendants" had the legal right to retain their Japanese nationality after the close of fighting in WWII in the Pacific, or after the coming into force of the post-war treaties, or even after later events, and then up into the current era, or if they had a legal right to regain their Japanese nationality after the abrogation of the Treaty of Taipei in 1972, is developing into a matter of serious debate in different legal camps in Taiwan.)

ROC: Republic of China

PRC: People's Republic of China







Territorial Sovereignty Analysis:

On the first of April 1945, Emperor Hirohito promulgated the Edict (Imperial Rescript), therefore, under the Law of Nations, Taiwan was incorporated as an integral part of the Japanese nation, due to the complete enforcement of the Constitution of the Empire of Japan over Taiwan.

After this date, as incorporated territory of Japan, Taiwan is "Japanese national territory." Therefore, under the Law of Nations, Taiwan has become a sacred and indivisible part of Japan. It cannot become divided from the mother country.

On the same day, "House of Representatives Electoral Amendment Law (Law No. 34)" was promulgated to grant Taiwanese inhabitants the rights of participation in national politics. Hence, the native Taiwan inhabitants (a) have Japanese nationality, (b) have voting rights in Japan, and (c) should be flying the Japanese flag over their territory, (d) have the right to send representatives to the Japanese Diet, and of course (e) have the right to hold elections to choose those representatives.

Below, these five elements will be termed the "Five Rights."













TAIWAN IS JAPANESE TERRITORY argument




= = = = = PART ONE = = = = =

It is well known that Article 2(b) of the April 28, 1952 SFPT provides that "Japan renounces all right, title and claim to Formosa and the Pescadores." The Treaty of Taipei is a subsidiary treaty under SFPT Article 26, and fully recognizes the existence of this SFPT renunciation provision in its own Article 2.

However, according to the "TAIWAN IS JAPANESE TERRITORY argument, SFPT Article 2(b) has no effect on the "Five Rights" of the native Taiwan inhabitants. This is explained as follows:

Since Taiwan has become a sacred and indivisible part of Japanese national territory since April 1, 1945, the renunciation provision in SFPT Article 2(b) can only be interpreted as affecting the Government of Japan, in its administration and management of Taiwan. The Emperor's holding of the territorial sovereignty of Taiwan is unaffected. Support for this line of reasoning is offered below:
  1. The wording of SFPT Article 2(b) "Japan renounces all right, title and claim to Formosa and the Pescadores" uses the "singular form" of these three nouns. This is different from using the "plural form" of these three nouns.



  2. Japan renounces all right, title and claim to Formosa and the Pescadores.  


    In other words, Japan's complete renunciation of the sovereignty of these areas would be more properly phrased as "Japan renounces all rights, titles and claims to Formosa and the Pescadores." Upon realization that these three nouns are used in the singular form in the treaty, and careful examination of the significance thereof, it seems apparent that this grammatical structure is indicating that the Emperor of Japan is retaining residual sovereignty over "Formosa and the Pescadores," in a fashion very similar to the situation of the Ryukyus (as of the coming into force of the treaty in 1952).

    To put this another way, "full sovereignty" over Formosa and the Pescadores was ceded to Japan in 1895. However, a close examination and analysis of the SFPT shows that "right" + "claim" + "title" does not equal "full sovereignty." Thus, under the terms of the 1952 SFPT, the Emperor of Japan has retained residual sovereignty over the areas of Formosa and the Pescadores.

  3. From the point of view of the Government of Japan, it can be argued that what Article 2(b) amounts to is, in essence, to say that the Government of Japan has renounced the Right of Sovereignty over Taiwan territory. It has thus lost the governance jurisdiction over the Taiwanese inhabitants and Taiwan territory. However, there are still certain requirements arising from an Obligation of Sovereignty over the Taiwanese inhabitants and Taiwan territory which the government of Japan retains. Assistance in the defense of Taiwan territory is one example.


  4. The SFPT does not discuss the situation of the Emperor of Japan, who gained the territorial sovereignty of Taiwan via the 1895 treaty. Therefore, from the point of view of the Emperor, it is clear that the arrangements in the treaty are only binding on the Government of Japan, and do not affect the territorial rights held by the Emperor.


  5. In this fashion, the territorial sovereignty of Taiwan has been retained by the Emperor of Japan. This is the direct consequence of the fact that as of April 1, 1945, Taiwan has become a sacred and indivisible part of Japan. Under the Law of Nations, it cannot be ceded to another party.


  6. Indeed, neither the SFPT nor the Treaty of Taipei makes clear to what state Taiwan shall belong after the Government of Japan renounces its right, title, and claim. Such an arrangement would be expected if in fact (i) Taiwan is a sacred and indivisible part of Japan as of April 1, 1945, and cannot be ceded to another state, and (ii) the Emperor of Japan is in fact retaining Taiwan's territorial sovereignty.


  7. In consideration of all of the above, the conclusion that the Emperor of Japan is retaining Taiwan's territorial sovereignty is inescapable.


  8. Therefore, within the framework of the Law of Nations, and according to Article 2(b) of the San Francisco Peace Treaty, as of April 28, 1952, Taiwan territory should have been treated by Japan (and the world community) as a "self-governing" part of Japan's national territory. Taiwan does not belong to China, as "China" was not a signatory to the SFPT.


  9. Treatment of Taiwan as a self-governing overseas territory of Japan would be correct in consideration of Taiwan's true legal status. Accordingly, the natives of Taiwan still retain all of the "Five Rights."








= = = = = PART TWO = = = = =

Unfortunately, Taiwan has been colonized up to the present day by the combined Chinese (ROC) occupying authority and government in-exile. It is hard to understand upon what legal facts this recognition was/is based. The following facts are significant:

  1. There was no recognition by the Allies that there had been any transfer of Taiwan's territorial sovereignty to China at any time in the 1940s, and President Truman's statement upon the outbreak of the Korean War make this very clear. The only possible explanation is that Taiwan was militarily occupied territory beginning with the surrender ceremonies on Oct. 25, 1945, and has remained under military occupation pending finalization of its political status.


  2. International law states that military occupation does not transfer sovereignty. Consequently, before the drafting of the SFPT in the early 1950s, there could be no valid claim that Taiwan had already been incorporated into the national territory of China. Nor could there be any valid claim that native Taiwan inhabitants had already been naturalized as nationals of "China." During this era, under international law, Taiwan remained Japanese. When the ROC moved its central government to occupied Taiwan in December 1949, it was moving outside of the national territory of China.


  3. Under the framework of the Law of Nations, in addition to the Right of Sovereignty over Taiwan, the Government of Japan bore the Obligation of Sovereignty to Taiwan as well, while the native Taiwan inhabitants accepted their national duty to pledge loyalty and allegiance to Japan.


  4. Therefore, even though the Government of Japan renounced the Right of Sovereignty to the territory of Taiwan and thus lost the governance jurisdiction over the native Taiwan inhabitants and Taiwan territory in accordance to SFPT Article 2(b), such a treaty provision cannot release the Government of Japan's Obligation of Sovereignty to protect the native Taiwan inhabitants and Taiwan territory, along with the duty of the native Taiwan inhabitants to pledge allegiance to Japan.


  5. Consequently the Government of Japan cannot claim that it gained any authorization or legitimacy from the SFPT to deprive the native Taiwan inhabitants of their Japanese nationality.


  6. Surprisingly, however it was specified in Article 10 of the Treaty of Taipei, effective on August 5, 1952, that the native Taiwan inhabitants were "deemed" nationals of the Republic of China and thus deprived of their Japanese nationality. See comments on Article 10.


  7. Where is the legal basis for this specification? There were no such provisions included in Article 2(b) of the SFPT. Moreover, the Sino-Japanese Peace Treaty did not involve a further change in status of occupied Taiwan territory, therefore the specifications regarding "ROC nationality" for native Taiwan inhabitants are in violation of the principle that "nationality alteration should be voluntary and with the full intent of the individual involved," under relevant international laws and precedent. Additionally, these specifications also infringe on the essence of the "the Obligation of a Nation," what may be another name for the Obligation of Sovereignty, which is inherent and cannot be modified or taken exemption from as outlined by the Law of Nations.


  8. Therefore, depriving the native Taiwan inhabitants of their Japanese nationality is in violation of the international laws and precedent, and should be considered null and void.


  9. Moreover, after the abrogation of the Treaty of Taipei by the Government of Japan on September 29, 1972, the Government of Japan has already lost her Rechtsquelle (source of law) to regard the native Taiwanese as the nationals of the Republic of China. Hence, the legal identity of native Taiwan inhabitants should be restored to the original status (of the 99-day period between April 28, 1952 and August 5, 1952), which is "self-governing territory" under Japanese sovereignty within the framework under the Article 2(b) and 23(a) of the San Francisco Peace Treaty.


  10. Yet what we have seen since late Sept. 1972 is that the Government of Japan has not restored its Japanese nationality to the native Taiwan inhabitants, thus resulting in keeping them under the status of a "nationality suspension" caused by the de facto occupation of the Chinese (ROC) colonial regime under the tacit acceptance and approval of the United States of America. Consequently, in the eyes of the world, the Taiwan natives have become people without a country . . . . neither to be Japanese nationals nor ROC nationals. This situation was confirmed in a decision of the United States District Court on March 18, 2008, Judge Collyer affirmed that the "(native Taiwanese) Plaintiffs have essentially been persons without a state for almost 60 years."


  11. Then on April 7, 2009, the US Court of Appeals, Washington D.C., (Circuit Judge Brown) held that the Taiwanese "have no uniformly recognized government."


  12. Both the "Regarding Korea and Taiwan inhabitants Participation in National Politics Edict" (Imperial Rescript) and the "House of Representatives Electoral Amendment Law (Law No. 34)," promulgated by Emperor Hirohito on the first of April 1945 have never been abolished or cancelled, and hence are appropriate for the native Taiwan inhabitants up to this day.


  13. The right to participate in national political affairs for the native Taiwan inhabitants which was suspended until the ultimate legal status of Taiwan was confirmed has yet to be realized. This is due to Taiwan's status of being under military occupation from Oct. 25, 1945 to the present. Military occupation is a transitional period, or a period of "interim (political) status."


  14. Even though Japan was deprived her rights of administration over Taiwan by the Allies, but this does not mean that the Government of Japan can unilaterally cancel the political participation rights of native Taiwanese persons, because these rights were granted by the Emperor.

Conclusion: According to law #34, promulgated on April 1, 1945, the Taiwanese are still entitled to send three representatives to the House of Councillors and five representatives to the House of Representatives in Japan.






Article 98

This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity.

The treaties concluded by Japan and established laws of nations shall be faithfully observed.


Constitution of Japan



(May 3, 1947)






Comments on the Constitution of Japan,

Article 98-2
The treaties concluded by Japan and established laws of nations shall be faithfully observed.

1. With the coming into force of the Treaty of Shimonoseki on May 8, 1895, Taiwan became part of the national territory under the possession of the Japanese Emperor. When the Japanese Constitution was fully implemented over Taiwan on April 1, 1945, it can be said that Taiwan became owned by the Emperor. Under these circumstances, and according to the law of nations, Taiwan formally became a integral part of Japan.

2. The Imperial Rescript issued by Emperor Hirohito on April 1, 1945, gave the native Korea inhabitants and native Taiwan inhabitants political participation rights in Japan. According to law #34, promulgated the same day, and still in effect today, the Taiwanese are entitled to send representatives to Japanese Diet.

3. The "Spirits of the Taiwanese heroes" (estimated to number nearly 39,100) still reside in the Yasukuni Shrine up to today. We believe that this fact is a reminder to all native Taiwanese people in the current era that there is a need to negotiate with the Government of Japan for the restoration of their political participation rights in Japan. It is only with the restoration of these political rights that we can truly claim that these native Taiwanese did not perish in vain in WWII.





                                                 


(Compiled: early March 2012)

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