Treaty of Taipei - Political Status of Taiwan With Respect To The ROC

Political Status of Taiwan With Respect To The ROC

Article 10 of the Treaty states 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)."

Pro-independence supporters point out that the Nationality Law of the Republic of China was originally promulgated in February 1929, when Taiwan was argued to be a de jure part of Japan. The Nationality Law was revised in February 2000; however, there were no articles addressing the mass naturalization of Taiwanese persons as ROC citizens. Hence, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan…" was argued to have yet to be fulfilled.

Furthermore, it must also be noted that independence supporters point out that neither the San Francisco Treaty nor the Treaty of Taipei specifically provide for a transfer of sovereignty over Taiwan from Japan to China. Both have provisions for the renunciation of Japan's claims of sovereignty, yet neither provides for a mechanism of transfer to China.

Significantly, as the ROC officially announced the total abrogation of the Treaty of Shimonoseki on more than one occasion, supporters of the ROC would argue that China's sovereignty over Taiwan was never in dispute. Moreover, Japan and the ROC by the Treaty of Taipei further "recognised that all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war". It was therefore argued that the ROC Nationality Law which was promulgated in February 1929 would have applied to the residents on Taiwan, and it was unnecessary to address any nationality issues in the February 2000 revision.

However, Professors Lung-chu Chen and W.M Reisman, writing in the Yale Law Journal in 1972, maintained that the title to Taiwan territory vested in Japan at the time of, and/or because of, the Treaty of Shimonoseki, as the language of the Treaty clearly indicated. Such title, insofar as it is title, ceases to be a bilateral contractual relationship and becomes a real relationship in international law. Though contract may be a modality for transferring title, title is not a contractual relationship. Hence once it vests, it can no longer be susceptible to denunciation by a party to the treaty. Professor Y. Frank Chiang, writing in the Fordham International Law Journal in 2004, expanded upon this analysis to state that there are no international law principles which can serve to validate a unilateral proclamation to abrogate (or revoke) a territorial treaty, whether based on a charge of being "unequal," or due to a subsequent "aggression" of the other party to the treaty, or any other reason.