1

President Truman's statement of late June 1950 is generally interpreted to mean that the legal status of Taiwan is undetermined.

I have ordered the Seventh Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. The Seventh Fleet will see that this is done. 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.

President Harry Truman
June 27, 1950

    2

. . . . . we must be careful to realize that the One China policy cannot be interpreted to mean that Taiwan is already a part of China. This was confirmed in President Reagan’s "Six Assurances" of July 14, 1982, and more recently in a Congressional Research Service report China/Taiwan: Evolution of the "One China" Policy (July 9, 2007), but the legal rationale for such an interpretation goes back many decades. Indeed, this rationale was conveyed in a "top secret" State Department position paper to Secretary of State John Foster Dulles in October 1954, which noted that the "future" status of Taiwan and the Pescadores "was deliberately left undetermined, and the US as a principal victor over Japan has an interest in their ultimate future . . . . . "

[ US Dept. of State ] original documents:
Foreign Relations of the United States, 1952-1954,
Volume XIV, China and Japan (Part 1)   p. 760.
Washington: US Government Printing Office, 1985

    3

. . . . . technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan.

Article 2 of the Japanese Peace treaty, signed on Sept. 8, 1951 at San Francisco, provides that "Japan renounces all right, title and claim to Formosa and the Pescadores." The same language was used in Article 2 of the Treaty of Peace between China and Japan signed on April 28, 1952. In neither treaty did Japan cede this area to any particular entity.

Starr Memorandum: Legal Status of Taiwan
Dept. of State, July 13, 1971

    4

As a basic point of reference in the post-WWII period, the status of Taiwan was always stated as "undetermined" up through the Korean War period.

July 14, 1971
MEMORANDUM FOR: THE PRESIDENT
FROM: HENRY A. KISSINGER
SUBJECT: My Talks with Chou En-lai

This [Taiwan] was described by Chou as the basic issue between the U.S. and the PRC, going back to the Korean war, when we "surrounded" Taiwan and declared -- in contrast to our previous position (of Jan. 1950) -- that its status was "undetermined." Chou maintained that this was still our position, citing as a case in point a recent statement by the State Department press spokesman to the effect that Taiwan status was legally undetermined.

Foreign Relations of the United States, 1969–1976,
Volume E–13, Documents on China,
1969–1972 Document 9

    5

Mr. Kissinger later changed the State Department's method of expression to be "between Taiwan and PRC" . . . . .

During the process of Cold War rapprochement between Beijing and Washington in 1971-72, Premier Zhou Enlai pressed National Security Advisor Henry Kissinger to recognize that Taiwan is part of China. Rather than agreeing to this formula, Dr. Kissinger merely agreed not to discuss the U.S. position on Taiwan's unsettled status in public. This posture did not change during the normalization process under the Carter Administration. Even when Washington transferred diplomatic recognition from Taipei to Beijing in January 1979, the "undetermined" status of Taiwan remained.

New Challenges and Opportunities in the Taiwan Strait: Defining America’s Role
Report of the National Committee on United States - China Relations Conference
on U.S. Policy Toward Relations Across the Taiwan Strait,
Pocantico Conference Center, August 8-10, 2003

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Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years.

Dennis Wilder, Senior Director for Asian Affairs,
National Security Council, August 30, 2007

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The United States did not explicitly state the sovereign status of Taiwan in the U.S.-PRC Joint Communiques of 1972, 1979, and 1982. The United States "acknowledged" the "one China" position of both sides of the Taiwan Strait.   . . . . .

Not recognizing the PRC's claim over Taiwan or Taiwan as a sovereign state, U.S. policy has considered Taiwan's status as unsettled.   . . . . .

The concept of "one China" has been complicated by the coexistence of the PRC government ruling the mainland and the ROC government on Taiwan since 1949. Taiwan was never ruled by the Communist Party of China (CPC) or as part of the PRC.   . . . . .

China/Taiwan: Evolution of the "One China" Policy
CRS Report for Congress, June 24, 2011

    8

Even while recognizing the ROC government and its "jurisdiction" over Taiwan, on the eve of the Nixon Administration's contacts with PRC leaders in Beijing, the State Department testified to Congress in 1969 and 1970 that the juridical matter of the status of Taiwan remained undetermined. The State Department also wrote that:

In neither [the Japanese Peace Treaty of 1951 nor the Treaty of Peace between the Republic of China and Japan of 1952] did Japan cede this area [of Formosa and the Pescadores] to any particular entity. As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution. Both the Republic of China and the Chinese Communists disagree with this conclusion and consider that Taiwan and the Pescadores are part of the sovereign state of China.

China/Taiwan: Evolution of the "One China" Policy
CRS Report for Congress, June 24, 2011

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. . . . After the UN revoked the ROC's right of representation, and when the US was preparing to set up diplomatic relations with China, on Nov. 12, 1971, the State Department's legal advisor, John Stevenson, wrote a Memorandum to assistant secretary of state for East Asian affairs Marshall Green in which he stated: "Since the 1952 Japanese Peace Treaty, the United States has taken the position that [the] status of Taiwan is undetermined, subject to some future international resolution. That position has been stated publicly from time to time."

Editorial, July 2, 2007
Taipei Times

The 1951 San Francisco Peace Treaty (entered into force April 28, 1952) marked the "official end" of World War II, but it did not give Taiwan to the KMT and Chiang or [the CCP and] Mao; Taiwan’s status was left undetermined.

Editorial, Dec. 27, 2018
Taipei Times

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In order to survive, Taiwan must neither declare independence nor unify with China. Taiwan's US-imposed undetermined status and protection combined with the PRC's irredentist claim forms the systemic context that led Taiwan to engage in two overlapping conversations, one cross-Strait and one domestic, that constructed a Chinese identity after 1945 and a Taiwanese one after 1971.

The Social Construction of State Power: Applying Realist Constructivism
Barkin, J. Samuel, Editor
Policy Press, 2020

 

Many examples of Taiwan’s legal status being described as "undetermined" have been given above. Nevertheless, many concerned spokespersons, officials, editors, researchers, and other experts are still confused about this. They ask: "How can the legal status of Taiwan be undetermined when the Republic of China exercises complete jurisdiction over Taiwan?"

However, it must be understood that the exercise of jurisdiction and the holding of territorial sovereignty are not the same thing.

Taiwan was ceded to Japan in 1895 by treaty. Examining world history, going back to the early 1800s or even earlier, examples of the cession of territory between nations, with all relevant provisions being specified in a formal treaty, are easy to find . However, what we don't find are examples of territorial cession, recognized by the international community as fully valid, where all relevant provisions were NOT specified in a formal treaty.

 

For Taiwan, looking at the post-WWII era, we do not find any treaty which specifies that Taiwan was ceded to the Republic of China. Despite this, some China friendly scholars like to say that for completing the territorial cession of Taiwan to the ROC, "No treaty was necessary" and "The holding of the surrender ceremonies in Taipei, with both Japanese and Chinese generals present was enough".

However, we must strongly assert that in order for such criteria to be valid, there would have to be some "precedent" which exists, and numerous "examples" which could be cited. Yet, to date, no scholars have been able to point out any examples in world history over the past 250 years where a territorial cession was accomplished without the completion of a formal treaty.

In regard to the disposition of Taiwan in the post-WWII era, the highest ranking document of international law is the San Francisco Peace Treaty of April 28, 1952. The significance of this treaty is explained further below.

Originally, Japan acquired the territorial ownership of Formosa and the Pescadores according to the specifications of the 1895 Treaty of Shimonoseki. Japan’s territorial ownership of Taiwan ended on April 28, 1952, the date that the post-WWII San Francisco Peace Treaty (SFPT) came into force.

During this period of May 8, 1895, to April 28, 1952, Taiwan’s territorial ownership was held by Japan.

The San Francisco Peace Treaty was drafted over a period of many years, from the late 1940s to early 1950s. The signing ceremony was held on Sept. 8, 1951, at an international Peace Conference in San Francisco, California. In that era the United Nations had 60 members, and 48 of them signed this peace treaty.

Article 2(b) of the SFPT states that
"Japan renounces all right, title and claim to Formosa and the Pescadores."

Importantly, "title" in this context has the meaning of territorial ownership. It is also very notable that no "receiving country" was specified for this territorial cession.

Many legal scholars have pointed out that in this period of the early 1950s, it is inconceivable that the signatories of the SFPT would have allowed Japan to renounce its territorial ownership over Taiwan if in fact Japan did not hold that ownership. Hence, the allegation that the territorial ownership of Taiwan was already transferred to China with the completion of the Oct. 25, 1945, surrender ceremonies in Taipei can only be regarded as Chinese disinformation.

Here in the 21st century, opinion polls in Taiwan have shown that about 70% of people in Taiwan identify as Taiwanese and not Chinese, while 80% think the Constitution should be amended to define the nation’s territory as "Taiwan, Penghu, Kinmen and Matsu." However, it is unlikely that the international community would allow this to happen, since Taiwan and Penghu do not belong to the Republic of China.

 

Taiwan was not part of the ROC upon its founding in 1912. In the 1930s, many statements of Chinese communist party officials confirmed that they considered Taiwan to be a part of Japan and urged the Taiwan people to rise up and aid in the Sovietization of Japan.

A Central Intelligence Agency (CIA) report of March 14, 1949, Probable Developments in Taiwan confirms that there was no "Taiwan Retrocession Day," and that as of this 1949 date, there had not been any transfer of Taiwan's territorial sovereignty from Japan. The report clarifies:

From the legal standpoint, Taiwan is not part of the Republic of China. Pending a Japanese peace treaty, the island remains occupied territory in which the US has proprietary interests.

The report reviewed the situation of the Japanese surrender in 1945, as well as the preceding Cairo Declaration and Potsdam Proclamation, and fully recognized that the Republic of China exercised military control over the island. Was such control directly equivalent to ownership? The Allies certainly did not regard it as such.

However, neither the US, nor any other power, has formally recognized the annexation by China of Taiwan, the legal status of which, until the conclusion of a Japanese peace treaty, is that of an occupied territory . . . . .

The TAIPEI TIMES, on page 1 of the edition of June 9, 2013, printed a large article about this CIA report.

 

According to the data presented above, the legal status of Taiwan is indeed undetermined. How should we interpret such a conclusion in regard to defining the "status quo" in the Taiwan Strait? Understanding the answers to the following five questions can provide some important insights.

Item	Yes	No
Under the laws of the Republic of China, has Taiwan been legally incorporated into the national territory of the ROC?
Is the ROC is the legitimate government of Taiwan?
Is the ROC Constitution is the true organic law ("basic law") of Taiwan?
Are people native to the Taiwan area correctly classified as "ROC citizens"?
Is the ROC flag the correct flag to fly over Taiwan?

 

Next, what we cannot overlook is the fact that the description of Taiwan's legal status as "undetermined" corresponds with the fact that Taiwan is (still) under military jurisdiction. In other words, the military occupation of Taiwan has not ended.

In order to explain this in more detail, let's go back over 120 years to examine a similar historical situation -- the disposition of Cuba territory after the surrender of Spanish troops on the island on July 17, 1898.

Importantly, the military occupation of Cuba by the United States is fully specified in Article 1 of the Treaty of Paris.

Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.

Historical and legal researchers recognize that the military occupation of Cuba began with the surrender of Spanish troops on July 17, 1898. However, the wording in Article 1 is interesting, because it gives an important insight into when such a military occupation ends.

Specifically, (where territory is separated from the original mother country by treaty), the period of time (1) after the coming into force of the peace treaty and (2) before the end of the military government of the "the (principal) occupying power," is also called "occupation."

Note: "The (principal) occupying power" is alternate nomenclature for "the legal occupier."

In present day terminology, for a territorial cession, the period of time beginning from the surrender of local troops and ending with the coming into effect of the peace treaty would be called "belligerent occupation," and the period of time from the coming into effect of the peace treaty to the end of the military government of the (principal) occupying power would be called "friendly occupation" or "the civil affairs administration of a military government."

In fact, similar specifications to those for Cuba have been made for Taiwan in the San Francisco Peace Treaty. The following chart provides a convenient summary.

Regarding Taiwan's undetermined legal status, additional supporting commentary, observations, and interpretations are available in the "Foreign Relations of the United States" series published by Dept. of State.   A link is available from the REFERENCES page on this website.

 

The U.S. Supreme Court has held on many occasions that the conqueror/liberator has jurisdiction over conquered territory. Moreover, the default status of conquered territory in the post-Napoleonic world is "occupied territory."

For a detailed discussion of the relationship between the United States of America and the Republic of China in the military occupation of Taiwan, please see the Taiwan Flowchart "WWII in the Pacific and its Aftermath" and accompanying explanations.

In summary, the statement that Taiwan's legal status is "undetermined" must be interpreted to mean that Taiwan remains in "interim status" under the law of occupation and has not yet reached a final legal status. Accordingly, there is no conflict in stating that Taiwan meets the criteria to be recognized as a US overseas "quasi-trusteeship."

 

Regarding Taiwan's undetermined legal status, some people have argued that a period of military occupation is merely the means for securing the actual military necessity of protecting people and property once their legitimate sovereign is held dormant, in suspense, in abeyance, in consequence of conquest or victory or surrender or capitulation . . . . and "that military occupation does not convey any special sense to the territorial status quo."

But such an analysis is not entirely correct. Primarily speaking, it must be remembered that the original academic foundation for the concept of "military occupation" arose from On the Law of War and Peace (1625) by Hugo Grotius and The Law of Nations (1758) by Emerich de Vattel . Examination of these texts shows that "military occupation" was not formulated as a type of permanent legal status.

Therefore, it must be recognized that the interlude under the jurisdiction of the military government of the legal occupier is merely a transitional period. However, since the term "transitional" has many other uses in English, we can avoid confusion by referring to this as a period of "interim status."

Hence here in the 21st century, we must recognize that Taiwan is currently (still) in a period of "interim status," being held by the military government of the principal occupying power under SFPT. It is important to clarify that while this interim status condition under SFPT persists there is no "Taiwan Republic", nor any "One China, One Taiwan", nor "Two Chinas," nor "a divided Chinese nation." This is because Taiwan has not yet reached a "final (legal) status."

 

So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory . . . . . ; but those laws concerning "foreign countries" remain applicable to the conquered territory until changed by Congress.

-- US Supreme Court, Fleming v. Page (1850), Downes v. Bidwell (1901)    

After conquest by the United States, Taiwan became occupied territory. Taiwan remained as a part of Japan, hence it was a foreign area -- part of a foreign country. The above mentioned US Supreme Court ruling confirms that occupied territory is foreign territory.

But what was the situation in relation to the post-WWII peace treaty? What was the meaning of "foreign" in this historical context? This may be clarified as follows:

• Before April 28, 1952: From the US perspective, Taiwan was part of Japan, and therefore foreign territory. The ownership of Taiwan was held by Japan.
• After April 28, 1952: From the US perspective, Taiwan has ceased to be a part of Japan, and it was not ceded to any other country. Hence, Taiwan remains as foreign territory whose ownership is undetermined.