Treaty of Taipei

The Sino-Japanese Peace Treaty (Chinese: 中日和平條約; Japanese: 日華平和条約), formally the Treaty of Peace between the Republic of China and Japan[1] (Chinese: 中華民國與日本國間和平條約; Japanese: 中華民國と日本國との間の平和條約) and commonly known as the Treaty of Taipei (Chinese: 台北和約), was a peace treaty between Japan and the Republic of China (ROC) signed in Taipei, Taiwan on 28 April 1952, and took effect on August 5 the same year, marking the formal end of the Second Sino-Japanese War (1937–45).

"Sino-Japanese Peace Treaty" redirects here. For the treaty that ended the First Sino-Japanese War, see Treaty of Shimonoseki.
Treaty between the ROC and Japan

Neither the Republic of China nor the People's Republic of China was invited to sign the Treaty of San Francisco due to disagreements by other countries as to which government was the legitimate government of China during and after the Chinese Civil War. Under pressure from the United States, Japan signed a separate peace treaty with the Republic of China to bring the war between the two states to a formal end with a victory for the ROC. Although the ROC itself was not a participant in the San Francisco Peace Conference due to the resumption of the Chinese Civil War after 1945, this treaty largely corresponds to that of San Francisco. In particular, the ROC waived it's rights to war reparations from Japan in this treaty with respect to Article 14(a).1 of the San Francisco Treaty.

The Treaty of Taipei was abrogated unilaterally by the Japanese government on Sept. 29, 1972 as a result of the Japan-China Joint Communiqué.[2]

Summary of Treaty

Treaty of Taipei largely correlates itself to the terms of the Treaty of San Francisco, recognizing that in the Treaty of San Francisco[nb 1] Japan renounced all right, title, and claim concerning the island of Taiwan, the Pescadores, the Spratly Islands, and the Paracel Islands.[3]

Key articles
Article 2

It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands.

Article 3

The disposition of property of Japan and of its nationals in Taiwan (Formosa) and Penghu (the Pescadores), and their claims, including debts, against the authorities of the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores) and the residents thereof, and the disposition in Japan of property of such authorities and residents and their claims, including debts, against Japan and its nationals, shall be the subject of special arrangements between the Government of the Republic of China and the Government of Japan. The terms nationals and residents whenever used in the present Treaty include juridical persons.

Article 4

It is recognized that all treaties, conventions and agreements concluded before December 9, 1941, between China and Japan have become null and void as a consequence of the war.

Article 9

The Republic of China and Japan will endeavor to conclude, as soon as possible, an agreement providing for the regulation or limitation of fishing and the conservation and development of fisheries on the high seas.

Article 10

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 descendents 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); and juridical persons of the Republic of China shall be deemed to include all those registered under the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores).

Relationship with the San Francisco Treaty

Direct references

In two articles, the Treaty of Taipei makes direct references to the San Francisco Peace Treaty, which was the treaty signed and ratified by most Allies with the government of Japan in 1951 and 1952.

Article 2 is a confirmation of the renunciation of Japan's claims to Taiwan and the Pescadores as well as to the South China Sea island chains of the Paracels and Spratlys.

Dates

The San Francisco Peace Treaty was signed on 8 September 1951 and ratified on 28 April 1952. The date of the ratification of the San Francisco treaty is the same date that the Treaty of Taipei was signed, that being 28 April 1952. However, the Treaty of Taipei did not enter into force until 5 August 1952 with the exchange of instruments of ratification between the two governments in Taipei.[4] While there is no explicit provision for the transfer of sovereignty over Taiwan from Japan to the Republic of China, Article 10 is taken by some scholars as an implicit transfer. However, Ng Chiautong, Chairman, World United Formosans for Independence (WUFI), writing in the 2nd edition (1972) of his book Historical and Legal Aspects of the International Status of Taiwan (Formosa) maintained that Article 10 is not an affirmative definition of the Chinese nationality of the Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as ROC nationals, because otherwise they would be considered stateless and be ineligible for documentation to enable them to travel to Japan. He further points out that the Treaty of Taipei does not call the Taiwanese "Chinese nationals" but instead employs the term "residents".[5]

Moreover, Japan formally surrendered its claim to sovereignty over Taiwan on 28 April 1952, thus calling into serious doubt the authority of Japan to formally make such an assignment regarding the status of Taiwan over three months later on 5 August 1952. Indeed, British and American officials did not recognize any transfer of Taiwan's sovereignty to "China" in either of the post-war treaties.[nb 2][nb 3][nb 4]

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;[9] 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.

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.[10]

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, 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.[11] 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.[12]

According to United Nations Treaty Series Volume 138. The Japanese plenipotentiary, Isao Kawada, acknowledged "The present Treaty (Treaty of Peace) shall, in respect of the Republic of China, be applicable to all the territories which are now, or which may hereafter be, under the control of its Government." which included Taiwan (Formosa), Penghu (the Pescadores) through the Exchange of Notes No. 1.[13] Regarding the effect of the Exchange of Notes No. 1, in 1964, Japanese Minister for Foreign Affairs Masayoshi Ōhira explained in the House of Councillors: "This note of exchange has nothing to do with the Republic of China's territorial sovereignty… The effect of this provision is under the prerequisite of the Republic of China's actual administration over these territories and clearly does not mean its Government has the territorial sovereignty over these territories. We used the word "control" to make such a connotation obvious."[14]

Application of the Treaty

Japanese lawyers have made the argument that the provisions of the Treaty of Taipei and the subsequent Sino-Japan joint communique waived the right of Chinese nationals to seek compensation from the Japanese government or corporations based in Japan.[15]

End of the Treaty

The Treaty of Taipei was abrogated by the Japanese government on Sept. 29, 1972, upon the establishment of formal diplomatic relations with the People's Republic of China via the Joint Communiqué of the Government of Japan and the Government of the People's Republic of China.[16]

See also

Footnotes and references

Footnotes

  1. It entered into force on April 28, 1952.
  2. Under the Japanese Peace Treaty Japan has renounced all sovereignty and title to Formosa, but the question of sovereignty remains in abeyance.[6]
  3. Japan did not cede sovereignty over Formosa and the Pescadores to China. Japan renounced its own sovereignty but left the future title undefined.[7]
  4. Article 2 of the Japanese Peace treaty, signed on September 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. 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…[8]

References

  1. "Treaty of Peace between the Republic of China and Japan". United Nations Treaty Series. 1952. Retrieved 21 April 2020.
  2. "Tokyo High Court, June 12, 1980". The Japanese Annual of International Law [No. 25]. 1982. Retrieved 2012-04-11. (5) . . . . it must be construed that the Treaty of Peace between Japan and the Republic of China should lose its significance of existence and come to an end through the normalization of diplomatic relation between Japan and the People's Republic of China based on the Joint Communique.
  3. "Treaty of Peace between the Republic of China and Japan". Taipei: Academia Historica Digital Archives Program. 1952. Archived from the original on 26 February 2014. Retrieved 19 August 2012.
  4. Taipei, Taiwan documents.
  5. "Historical and Legal Aspects of the International Status of Taiwan (Formosa)". World United Formosans for Independence. 1972. Retrieved 20 February 2010.
  6. Parliament (January 30, 1956), Commons Sitting, 548, UK: Hansard, pp. cc601–3, retrieved 2010-02-10
  7. Foreign Relations of the United States, 1955–1957. China, II (1955–1957), USA: Dept. of State, July 1, 1955, pp. 619–20, retrieved 2010-02-10
  8. "Starr Memorandum". Dept. of State. July 13, 1971. Retrieved 2010-02-10.
  9. Text of the ROC Nationality Act
  10. Taiwan's status left unresolved by treaties, Taipei Times, 2003-09-13.
  11. Lung-chu Chen; W. M. Reisman (1972). "Who Owns Taiwan: A Search for International Title". Yale Law Journal. Retrieved 21 February 2010.
  12. Y. Frank Chiang (2004). "One-China Policy and Taiwan". Fordham International Law Journal. Retrieved 21 February 2010.
  13. Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations Volume 138. (PDF), UNITED NATIONS, 28 April 1952.
  14. 参議院会議録情報 第046回国会 予算委員会 第3号. February 12, 1964. pp. 3–4. (in Japanese).
  15. "Archived copy". Archived from the original on 2007-09-30. Retrieved 2007-07-12.CS1 maint: archived copy as title (link) Japan's Top Court Poised to Kill Lawsuits by Chinese War Victims
  16. DESIGNATION OF THE CASE, TOKYO HIGH COURT, JUNE 12, 1980, Taiwan documents.
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