It is clear from the evidence that while Taiwan was a colony of the Manchu Empire for around 200 years, it was only an integral part of China for TEN years, and that with a foreign dynasty in control of the Middle Kingdom. In 1895, China ceded Taiwan forever. It would spend the next 50+ years in Japanese hands.
Note: A huge debt is owed by myself, and others who address this question, to Professor Chiu Hungdah(1), who complied the vast majority of the documents discussed in this section. Unless otherwise noted, his work is the source for these documents.
The Sino-Japanese War began in Korea in 1894. The dispute concerned the rights of both China and Japan to "aid" Korea in its domestic turmoil. The Korean government asked Beijing to come to its assistance, which it did. However, China did not inform Japan that it would be sending assistance, as stipulated in earlier agreements. Japan, in response, claimed an equal right in Korea as China, again based upon prior agreements. The dispute came to a head and war broke out.
It it interesting to note that though there was fighting in Korea, China, and the high seas, fighting never reached the shores of Taiwan. Unfortunately for Taiwan, the Treaty of Shimonoseki (April 17, 1895) had two provisions that would directly affect its inhabitants for the next fifty years.
Article two provided that China cede sovereignty of Taiwan, Penghu, and other areas to Japan. Article five provided that residents of ceded areas would have two years to sell property and retire to China is they so chose.This is the instrument following the Sino-Japanese War that ceded Taiwan to Japan in perperuity(meaning forever). The validity of this document later comes into question.(2)
The Taiwanese were less than happy with this arrangement. One month later, after it was clear that China abandoned the island, Taiwan declared itself the "Republic of Taiwan" (�O�W���D�� - Taiwan Minzhuguo). Tang Qingsong, the new President of Taiwan referred to Japan's repeated insults of China and appealed to China to alter the terms of the treaty. Such appeals fell on deaf ears in Beijing, leaving the Taiwanese people to face the Japanese on their own.
The time from 1895 to 1941 was a difficult one for China. Continued Western encroachment ate at large parts of the Qing Empire, including Tibet and Outer Mongolia (both became independent). Furthermore, revolution, warlordism, and civil war further wrecked the proud Chinese civilization. In 1932, the Japanese inserted the Puppet State of Manzhouguo (Manchukuo) with former emperor Pu Yi as the figurehead leader. The Japanese launched a full-scale offensive in 1937.
Until 1941, the Chinese were largely on their own. On December 8, 1941(3), the Japanese launched an attack on the United States territories of Hawaii and the Philippines. With the United States now joining the war effort, the emboldened Chinese issued their Declaration of War on Japan the following day. In that declaration, "(t)he Chinese government(5) hereby formally declares that all treaties, conventions, agreements, and contracts regarding relations between China and Japan are and remain null and void (emphasis mine)."
This is the clause cited by both the Beijing and Taipei governments regarding unilateral abrogation of the Shimonseki Treaty. The legal validity of this will be addressed later.
On the first day of 1942, the United States, United Kingdom, Soviet Union, Republic of China, and twenty-two other allies, all joined pledged to commit all of its resources to defeat the Tripartite Pact (the Axis Powers) and a pledge was taken not to conclude a "separate armistice or peace with the enemies."
Nearly two years later, on November 26, 1943, the heads of government of the United States, the Republic of China, and the United Kingdom issued a joint declaration from Cairo, Egypt. The full text of this joint declaration between between President Franklin Roosevelt, President Chiang Kai-shek (Jiang Jieshi), and Prime Minister Winston Churchill is reproduced in appendix three (forthcoming). The most important clause here for our purposes refers to the restoration of Taiwan "to the Republic of China."
The British proposed in the meetings that these territories "shall be renounced by Japan," and not "restored to China."(5) One can only speculate as to the ultimate designs of the British here, but the United States and Chinese views prevailed in the conference report.
Less than one month later, on Christmas Eve, President Roosevelt declared in an address that (t)hose principles (of peace declared at Cairo) are as simple as they are fundamental. They involved the restoration of stolen property to its rightful owners and the regognition of the rights of millions of people in the Far East to build up their own forms of self-government without molestation... (emphasis mine.)"
This brief passage from President Roosevelt raises a couple of points as fundamental. First, that "the restoration of stolen property" is fundamental to a just peace. That, of course, leave us to define what is meant by "stolen property". It could be equally argued that Taiwan was stolen from the Taiwanese people by the Manchus in 1683. Second, that the peoples of the region ought to be permitted to develop their own governments, and implicitly, to handle their own internal affairs. Taiwan deserves exactly this right as elucidated by President Roosevelt as much as any other people in the East Asia region.
Following the close of the European Theater of the war, the great Pacific Allies met again, this time in Potsdam, Germany. On July 26, 1945, the United States, Republic of China and the United Kingdom issued the Potsdam Proclamation.
Like the Cairo Declaration, the Potsdam Proclamation will be reproduced in total when this whole work is complete. Two articles in particular are of note. Article five states that there will be no deviation from the terms issued, and the eighth article states that "(t)he terms of the Cairo Declaration shall be carried out..."
That raises the question: were the terms of Cairo carried out? Absolutely NOT! The agreements referenced above were only among four countries (The USA. the UK, the USSR, and the ROC.) However, some two dozen countries had participated in the war in the Pacific! Do a small number of countries have the right to make decisions regarding the post-war peace without the input of the other powers involved? Of course not! All of the countries involved (except for China itself) were represented at the peace talks that were concluded in 1951 and resulted in the San Francisco Peace Treaty. So, what did this peace treaty say?
Article 2, section b states: "Japan renounces all right, title and claim to Formosa and the Pescadores." Clearly, Japan renounced their claim to Taiwan. However, note that there is no mention of a transfer of sovereignty to China. Does China have the automatic right of reclamation because it was part of their territory prior to Japanese occupation, or do other principles apply?
Following World War I, France occupied areas of Alsace and Lorraine that had been taken by the Prussians following the Franco-Prussian War. Using the argument that the Chinese use, that is sovereignty naturally reverts to China because they were the previous sovereign, no mention should need to be made regarding the sovereignty of Alsace and Lorraine. However, it does. According to Article 27, Section 3 of the Versaille Treaty, "The boundaries of Germany will be determined as follows:
3. With France:
The frontier of July 18, 1870, from Luxemburg to Switzerland with the reservations made in Article 48 of Section IV (Saar Basin) of Part III.
This is a clear statement of transfer of territory from Germany to its previous owner.
There is further evidence of clear statements of the transfer of sovereignty that is required in the same treaty.
In the closing stages of the war, Belgium occupied long disputed territory. This territory was occupied by Belgium while the Peace Treaty was being hammered out. Here is what the treaty says regarding this territory:
ARTICLE 32.
Germany recognises the full sovereignty of Belgium over the whole of the
contested territory of Moresnet (called Moresnet neutre).
ARTICLE 33.
Germany renounces in favour of Belgium all rights and title over the territory of
Prussian Moresnet situated on the west of the road from Liege to Aix-la-Chapelle;
the road will belong to Belgium where it bounds this territory.
ARTICLE 34.
Germany renounces in favour of Belgium all rights and title over the territory
comprising the whole of the Kreise of Eupen and of Malmedy. During the six
months after the coming into force of this Treaty, registers will be opened by
the Belgian authority at Eupen and Malmedy in which the inhabitants of the above
territory will be entitled to record in writing a desire to see the whole or part
of it remain under German sovereignty. The results of this public expression of
opinion will be communicated by the Belgian Government to the League of Nations,
and Belgium undertakes to accept the decision of the League.
Note the use of the phrase "in favor of Belgium." In all cases, the status of the territory is clearly determined in text of the treaty, unlike the case with Taiwan (Formosa) in the San Francisco Peace Treaty.
Similiarly, the very treaty by which Taiwan was handed over to Japan in 1895, the Treaty of Shimonoseki, specifically indicates that Japan is to be the beneficiary of ALL of the territory surrendered by China in the war. One may posit that such specificity may not be necessary as there were only two parties to the treaty, but this, along with the other examples, makes it clear that such specificity is a requirement of international law. The treaty states:
Article 2
China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon:�X
(b) The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa.
Japan defeated Russia in the Russo-Japanese War in 1905. THe resulting Treaty of Portsmouth (N.H.) was very clear and very specific as to the assignment of vvarious rights consequent from the treaty, even though in all cases, it could be easily assumed.
ARTICLE III.
Japan and Russia mutually engage:
Second.--To restore entirely and completely
to the exclusive administration of China all portions of Manchuria now in occupation, or under the control of the Japanese or Russian troops, with the exception of the territory above mentioned.
ARTICLE V.
The Imperial Russian Government transfers and assigns to the Imperial Government of Japan, with the consent of the Government of China, the lease of Port Arthur, Talien and the adjacent territorial waters, and all rights, privileges and concessions connected with or forming part of such lease, and it also transfers and assigns to the Imperial government of Japan all public works and properties in the territory affected by the above-mentioned lease.
ARTICLE VI.
The Imperial Russian Government engages to transfer and assign to the Imperial Government of Japan, without compensation and with the consent of the Chinese Government, the railway between Chang-chunfu and Kuanchangtsu and Port Arthur, and all the branches, together with all the rights, privileges and properties appertaining thereto in that region, as well as all the coal mines in said region belonging to or worked for the benefit of the railway. The two high contracting parties mutually engage to obtain the consent of the Government of China mentioned in the foregoing stipulation.
ARTICLE IX.
The Imperial Russian Government cedes to the Imperial Government of Japan in perpetuity and full sovereignty the southern portion of the Island of Saghalin and all the islands adjacent thereto and the public works and properties thereon. The fiftieth degree of north latitude is adopted as the northern boundary of the ceded territory. The exact alignment of such territory shall be determined in accordance with the provisions of the additional article II annexed to this treaty.
There are countless other examples, but the point has been made. Japan surrendered their claim to Formosa, but it was not assigned to another state. That specific assignment of territory is CLEARLY required according to state practice, which is one of the underpinings of international law.
Therefore, it is clear that the Taiwanese people are entitiled under Self-Determination provisions in the United Nations Charter to determine their own future. Unfortunately, as fate would have it, Cold War politics would deny the people of Taiwan to this fundamental right.