Montevideo Convention

Montevideo Convention Criteria for Taiwan

Some persons allege that the Republic of China on Taiwan fully meets the four criteria of the Montevideo Convention for statehood in the international community. These criteria specify that:

The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.

However, a close examination of all these conditions shows that the ROC’s supposed fulfillment of the relevant qualifying criteria is/are bogus. This is explained as follows:

PERMANENT POPULATION: Although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the "legal basis" of native Taiwanese persons as having ROC nationality is a Jan. 12, 1946, order issued by the ROC military authorities. However, that order was never ratified by the Legislative Yuan, nor made into a law. Moreover, in occupied territory, mass naturalizations constitute war crimes.

The ROC Nationality Law was originally promulgated in February 1929, when Taiwan was a part of Japan. It was revised in February 2000, however there were no Articles addressing the mass naturalization of Taiwanese persons as ROC citizens. Hence, it can be stated unequivocally that there is no law in the ROC which authorizes the recognition of native Taiwan persons as ROC citizens.

For native Taiwanese persons to be bona fide ROC citizens, two conditions would need to be met. First, the San Francisco Peace Treaty would have to award sovereignty of Taiwan to the ROC; and second, there would have to be a law passed in the ROC's Legislative Yuan regarding these mass-naturalization procedures, after the peace treaty came into effect on April 28, 1952. In fact, neither of these two conditions has been met.
DEFINED TERRITORY: The ROC presumably includes the geographic areas of Formosa and the Pescadores, an area comprising nearly 13,900 sq. miles. However these areas were initially "obtained" and "held" under military occupation, beginning with the completion of the Japanese surrender ceremonies on Oct. 25, 1945, and to date there has been no transfer of title.

International law specifies that "military occupation does not transfer sovereignty." Notably, the proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, thus indicating a clear intention and objective to annex Taiwan territory is a war crime.

Exhaustive historical research fails to find any date after 1912 when Taiwan territory was officially incorporated into the national territory of the Republic of China, according to the laws of the ROC. Specifically, Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.
GOVERNMENT: The ROC is an entity which claims to be the legitimate government of China, but which after Dec. 1949 has been unable to establish itself as a government within the territorial boundaries of China. In other words, under international law, the ROC is a government in exile and therefore not a legitimate government for Taiwan. Nor is it any longer a legitimate government for China after 1949.

According to international law, there is no way for a government in exile to obtain legitimacy other than by returning to its "original location" and reasserting its governance there. Such a premise would oblige the government of the Republic of China to move to Nanjing, China, and resume governance of mainland China. In fact, the chance of this happening is zero.
FOREIGN RELATIONS: Some people maintain that the ROC on Taiwan is a sovereign entity, but its territory and legitimacy are "contested." This is very much an oversimplification.

The ROC has full diplomatic relations with 14 out of 193 United Nations member states, as well as the Holy See. However, these diplomatic relations are conducted under the auspices of the "Republic of China," which is a government in exile.

Four Comparative "Status Determinations"
for the Republic of China

Date & Historical Event	Status of ROC in the United Nations	Status of ROC in international affairs	Status of ROC in the view of US gov't	Status of ROC under the laws of war
1895 Treaty of Shimonoseki	X	X	X
1912 ROC is founded	X	Juridical Person (Legal Gov't) of China	X
1937.07.07 Marco Polo Bridge Incident	X	"	Recognized Legal Gov't of China (as of July 1928)
1941.08.14 Atlantic Charter	X	"	"
1941.12 World War II in the Pacific begins	X	"	"
1943.12.01 Cairo Declaration	X	"	"
1945.07.26 Potsdam Proclamation	X	"	"
1945.08.15 Japan's Emperor Agrees to Surrender	X	"	"
1945.09.02 Gen. MacArthur directs Chiang Kai-shek to Taiwan to accept Japanese surrender	X	"	"
1945.10.24 United Nations is founded	Sole legitimate gov't of China	"	"
1945.10.25 Japanese troops in Taiwan surrender	"	"	"	Proxy occupying forces
1947.02.28 ~ 1950.04.30 The 228 Incident	"	"	"	"
1949.10.01 PRC is founded	"	"	"	"
1949.12 ROC flees to Taiwan	"	Gov't in Exile of China	Recognized Gov't in Exile of China	"
1952.04.28 SFPT comes into force	"	"	"	"
1952.08.05 Treaty of Taipei comes into force	"	"	"	"
1955.03.03 ROC - USA MDT	"	"	"	"
1971.10.25 ROC expelled from UN	(expelled)	"	"	"
1972.02.28 PRC & USA Shanghai Communique	none	"	"	"
1978.12.31 USA breaks diplomatic relations with ROC	"	"	"	"
1979.01.01 PRC & USA Second Communique	"	"	Unrecognized Gov't in Exile of China	"
1979.01.01 Taiwan Relations Act takes force	"	"	"	"
1980.01.01 MDT cancelled	"	"	"	"
1982.08.17 PRC & USA Third Communique	"	"	"	"
Today	"	"	"	"

Montevideo Convention Criteria for Taiwan

Other people often make the assertion that the Republic of China on Taiwan satisfies the criteria for statehood in the international community because the ROC government officials are not required to answer to any higher authority.

However, the editors of this website disagree with this observation. According to the analysis presented on this website, Taiwan fulfills the criteria for qualifying as a US overseas quasi-Trusteeship.

Accordingly, Taiwan is treated by the United States government as a US overseas quasi-Trusteeship, and Taiwan has the relevant characteristics under US law. For detailed information, please see our Quasi-trusteeships in US History introduction page.

Important Points of Reference

1. The Republic of China on Taiwan does not qualify as a "state" under the Montevideo Convention because it is not exercising sovereignty over Taiwan and does not have title to Taiwan territory. Moreover, the Jan. 12, 1946 military order authorizing mass naturalization of native Taiwanese persons as ROC citizens is illegal under international law.

2. The United Nations recognized the Republic of China (under Chiang Kai-shek) as the legal government of China up until late Oct. 1971. The United Nations never recognized the Republic of China as the legal government of Taiwan. (In other words, "Taiwan" has never been a member of the United Nations.)

3. Then on Oct. 25, 1971, United Nations Resolution 2758 expelled the representatives of Chiang Kai-shek from the United Nations and all related organizations, and recognized the representatives of the Government of the People's Republic of China as the only lawful representatives of China to the United Nations.

4. Amendments to the ROC Constitution beginning in the 1990's, direct Presidential elections in 1996, as well as the end of over 50 years of KMT rule in 2000 did not signify any change in the legal status of Taiwan. Under international law, there are no actions which can be taken which will legitimatize a government in exile to become the internationally recognized legal government of its current locality.

5. The "One China Policy" is correct. The PRC is the sole legitimate government of China. Taiwan is not part of China, it is occupied territory of the United States.

6. As of the Fall of 2006, the United Nations had refused Taiwan's application for membership for fourteen years in a row. In later years, applications by the Taiwan governing authorities to join the United Nations have all been rejected directly, without being passed on to the Security Council or the General Assembly.

7. From July 1928 to Dec. 31, 1978, the United States recognized the ROC as the legal government of China. At no time during this time period did the United States recognize the ROC as the legal government of Taiwan.

8. In the 1972 Shanghai Communique, the United States (as the principal occupying power of the SFPT) only "acknowledged" the PRC position on the Taiwan status question, but did not formally agree to it or "recognize" it.

9. After the break in diplomatic relations with the ROC on Dec. 31, 1978, the United States formally recognized the PRC as the sole legitimate government of China.

10. The United States does not recognize Taiwan as a state. Pursuant to the Taiwan Relations Act of 1979, which embodies the United States congressional policy towards Taiwan, the United States does not maintain inter-state relations with Taiwan. Instead, "the people of the United States" maintain "commercial, cultural, and other relations" with "the people of Taiwan." Section 3301 of the Taiwan Relations Act reflects the United States' position that "the future of Taiwan" is still "undetermined."

11. Under the Taiwan Relations Act, the United States does not recognize the nomenclature of "Republic of China" after Jan. 1, 1979.

12. In July 1982, the United States gave "Six Assurances" to the Taiwan governing authorities, including that the "United States would not alter the terms of the Taiwan Relations Act", "would not alter its position about the sovereignty of Taiwan", and "would not formally recognize Chinese sovereignty over Taiwan."

13. On Oct. 25, 2004, then US Secretary of State Colin Powell confirmed the United States' continuing policy towards Taiwan. He stated: "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."

14. On Aug. 30, 2007, then Senior Director for Asian Affairs of the National Security Council Dennis Wilder reiterated: "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."

15. The Republic of China on Taiwan is most accurately described as (1) proxy occupying forces, beginning Oct. 25, 1945, and (2) a government in exile, beginning Dec. 10, 1949.

Four Comparative "Status Determinations" for the Republic of China

Montevideo Convention Criteria for Taiwan

Four Comparative "Status Determinations"
for the Republic of China