Going deep in Treaty of San Francisco

I have been pondering about the Treaty of San Francisco for a very long time, primarily because of its connection with the Taiwan Question. The Treaty of San Francisco is the peace treaty signed with Japan to end the Pacific War.

In order to understand a treaty, we must understand how law works. The workings of law flow from established principles. Importantly, to understand a peace treaty, one must first know about laws of war. Peace treaties must be read with a military mindset to arrive at accurate interpretations.

Article 2 of the treaty remain one of the most difficult to interpret, because it involved territorial detachment from Japan without naming new sovereigns. I have spent much time trying to figure this out, and finally I did. Those who know about interpreting treaties do not simply reveal this knowledge.

As I continue my journey in learning about the treaty, some interesting things do come up. These are loopholes indeed!

Article 23 - The United States of America as principal occupying power.

During Allied occupation of Japan, the United States acting as the principal occupying power is fact. Military occupation was divided among the Allied Powers, namely United States, China, Soviet Union and Britain. As the United States was the principal, the others were agents acting on behalf of the principal. The statement of United States as principal occupying power is merely a restatement of fact in the treaty, not an elevation of the status of United States to give it more power. Principal occupying power over what is not stated, but it should be interpreted as "over Japan and former sovereign Japanese territories". As territories renounced by Japan remain under Allied occupation, it gives the United States the legal basis to involve itself in Taiwanese affairs.

Article 25 - Allied Powers are not only the nations conducting military occupation in Japan, but also includes other countries at war with Japan and signed the Treaty of San Francisco. Allied Power signatories can be considered occupying power over Japan

Article 25 of the Treaty reads: "For the purposes of the present Treaty the Allied Powers shall be the States at war with Japan, or any State which previously formed a part of the territory of a State named in Article 23, provided that in each case the State concerned has signed and ratified the Treaty. ...."

Japan was under military occupation of the Allies and not United States, China, Soviet Union and Britain acting on behalf of themselves. Each occupying power act as part of a military alliance. But, for the purpose of the treaty, any country that signed and ratified the Treaty of San Francisco is considered an Allied Power. The treaty binds all signatories by law as Allied Powers. Therefore, all the other signatories can be considered occupying powers over Japanese territories. According to the laws of war, because military occupation continues in territorial cessions and detachments after peace treaty and will continue until legal supplantation, Article 25 grants all Allied Power signatories the privileges of being occupying power over former Japanese territories. This can be interpreted to give benefit for Taiwan, as the resolution of the Taiwan Question shall come under scrutiny of the signatories. It is principle that the resolution of the Taiwan Question shall have the assent of the people of Taiwan.

China did not sign the treaty. As a result, China received no benefit from the treaty, except those outlined in the treaty texts. The same goes for Soviet Union. It is obvious that China does not gain sovereign right over Taiwan from the treaty. What more, since China did not sign as an Allied Power signatory, China does not hold the right over Taiwan as occupying power. The Treaty puts China as having no right over Taiwan by law. The Treaty of Taipei, an extension of the Treaty of San Francisco, recognised Chinese right of jurisdiction over Taiwan but not sovereignty. But the basis for right of jurisdiction is lost when Japan denounced the Treaty of Taipei later.

The US resorted to shutting China out of the Treaty of San Francisco as a Cold War containment strategy. That puts China on the opposing side with the Allies over resolution of the Taiwan Question.

关于台湾国族认同问题 - 回应刘乐妍

Taiwanese entertainer Fanny Liew wrote a piece about identity politics in Taiwan. She contended that Taiwanese and Chinese identity should not be at odds with each other. Her family fled to Taiwan with the Chinese Nationalist (KMT) regime to Taiwan at the conclusion of Chinese Civil War. I showed that her viewpoint is limited by her family background, and the island of Taiwan speaks a different narrative than hers.

There are currently three types of identities held by the population in Taiwan: Purely Taiwanese, both Taiwanese and Chinese, and purely Chinese. Each of these types of identification are characteristically distinct from each other, as it turned out from academic research.

您在2016年1月18日发表关于国族认同的文章我迟至2017年我方有机会阅读。过去一年里，我钻研了台湾国际地位与身份认同政治，开始时我一窍不通，到今天得以理性地回应您的文章，这可是个艰苦的过程。

您在文章提及家庭背景，您的祖辈参与第二次中日战争和国共内战，随着中国国民党逃到台湾的土地，并带着中国大陆的历史记忆在台湾此落地生根。我不难看出，您的家庭是典型的外省人。您在文中主张，台湾人和中国人的身份不需要对立。纯粹地以主观看待身份认同问题恰恰是您最大的盲点，因为许多事物乃大学问也。

我在此说明，台湾人的历史记忆各不同。本省人（包括原住民）的记忆有别于外省人。

本省人的历史记忆是什么？我就要从《马关条约》说起。台湾自从割让给日本后，退出了中国的历史舞台，而进入了日本的历史舞台。日治台湾的初期，本省人有武装的抗日运动，但全都被日本镇压了。从此，中国的历史不再追究台湾，可是台湾在日本的统治下继续发展。
每个人终究是历史的产物，造就他们今日对人物，乃至他国的态度。日治时期，实行总督制，台湾人成了二等公民。日本在台湾搞的建设，推行教育，大大提高台湾的文明水平，这些功劳是不容否认的。我了解，您的祖辈当初不敌共产党而到台湾，事实上本着日本留下的基础继续建设，也不会歌颂日本对台湾的所有贡献。

日治台湾的后期，搞了皇民化运动，教育台湾人取个日本名，学日文，效忠天皇，生活习惯与真正的日本人无异。日本当时搞皇民化的目的，无非就是从台湾征取兵力，以应付作战的需要。有者从日本得益，有者当了军夫为日本作战，而李登辉就是典型的例子。您可能不知道，1945年4月1日，天皇颁布了诏书，明治宪法全面在台湾实行。二战时期，有日本飞机从台湾起飞去攻击中国的目标，当日的中国也有参与空袭台湾的目标。您有听过台北大空袭这一事吗？历史课本怎么没写呢？

1945年10月25日，台湾重回中国的统治。中华民国宣称，台湾被 ”光复” 了，可是实际的性质，普通人都没搞清楚。须知，今日的国际法规定，拥有领土的实际统治不意味着拥有领土的法定主权。没有法定主权，又怎么有领土的实际统治呢？我知有两种方式，一是租借，二是军事占领。当时的中国接管台湾，是代表盟军进行军事占领，而台湾的主权并没有转移到中国那里。台湾的主权转移有待与日本签订和平条约，方才有效。

当时的本省人还有效的持有日本国籍。蒋介石派了国军统治台湾。受过日本教育的本省人当年对国军的印象如何？国军就是不守纪律的流氓！国民党随意印刷钞票，导致恶性通货膨胀，又加上台湾物资拿去资助国共内战，民不聊生。很不幸的，1947年爆发了228屠杀事件，有人死在 ”祖国“ 枪下，台湾对中国的幻想破灭了。

盟军还没解决台湾的归属，国民党就不敌共产党，逃到了台湾，成了个流亡政权。怎么说是流亡政权呢？就是政权的所在地不是它的主权领土。有人听了这话可能不高兴，但这可是国际法学说，外交人员的眼中，中华民国的真正国际地位。蒋介石曾沉痛地说道：“我们（中华民国人 / 外省人）今天都已成了亡国之民，……”

在1951年的对日和平条约《旧金山条约》，日本只被要求放弃对台湾的主权，而没有点名任何国家接收。如何解读这个合约条文也把专家弄得团团转，简单的说台湾的主权就是转到本省人手中，有待他们主张最终的归属。外省人是何人？他们就是真正的，法理的中国人。显然的，中国没有接到台湾的法定主权，时任中华民国外交部长叶公超已多次声明这一点。
接下来漫长的国民党威权时期，也就是两蒋时期，政府对台湾岛民实行了党国教育，教台湾人做中国人。我之前不是提了日本对台湾实行皇民化教育吗？党国教育和皇民化教育的性质根本无异！两者都是同化教育：一个教你做中国人，一个教你做日本人。

直到1980年代后期，台湾开始解禁，走向民主之路，实行与有别于中国大陆的社会制度，开创了台湾认同。

两幢事件，重创了台湾对中国的认同。一是1994年的千岛湖事件，再来是1996年随着总统直选的台湾海峡导弹危机。海峡导弹危机更使台湾认同大幅度上升，远远超过当时受教育的年轻人，去中国化和台湾本土化政策尚不足以解释此转变。试问，如果中国大陆是祖国，祖国会对人民做出这种事吗？

2000年成功实行政党轮替，台湾独立运动当道，起了巩固台湾认同的重要作用。2008年马英九主政时期开启的大三通，两岸人民接触频繁，越察觉彼此的差异，越加深台湾的单一认同。

今日，无论本省人或是外省人，两者纵然没有共同的记忆，却生活在台湾岛上，成了命运共同体。既然您在自由的台湾占有一席之地，您应该珍惜祖辈当年用生命捍卫三民主义，奠下台湾实行民主的基础。您的祖辈在中国大陆的战场上遇到的日本是敌人。可他们到达台湾时，台湾人印象中的日本是殖民者，他们没那么恨日本。还是多亏日本，国民党在台湾有立足之地，才赶得上台湾经济起飞。在国际关系里，敌友关系随着形势转变而易位。
如果说中国的历史是朝代更替的历史，台湾的历史就是一套殖民史。

由此可见，国家认同取决于各种客观的因素，包括历史和社会环境，并不是一张证件就足以定论的。各不同的历史记忆，不同世代的环境，也不断地重塑着身份的认同。国家认同，不只停留在一面旗帜，或是名词，它更体现着一套价值观，一套生活哲学。国家认同，对我作为外国人而言，是给予您定位的名字。我不反对您说 ”我是中国人“ 以反映您对中国的情结，可当别人说出单一的 “我是台湾人” 时，他不只说出对土地的认同，更要表达台湾有别于中国的历史经历。

What's up with Taiwan? Resolution 2758 and Taiwan Retrocession Explained

I came across this interesting video of Taiwanese parliamentary debate. Over the issue of history syllabus to be implemented in Taiwan, legislator from Democratic Progressive Party Kuan Bi-ling posed questions to Taiwanese education minister Wu Si-hua. The debate took place on 3 March 2015.

I really like this video because it taught us an important lesson on State succession for China in the United Nations by explaining Resolution 2758 and the true nature of handover of Taiwan after World War 2.

Kuan began with Chinese foreign minister Wang Yi's remark of People's Republic of China as the founding member of the United Nations. It caused a stir among ethnic Chinese in Taiwan, because the founding member of the UN was Republic of China. In 1971, Republic of China was replaced with People's Republic of China via Resolution 2758 of the United Nations General Assembly. Kuan mentioned one important keyword in the Resolution, that is "restore". With the Resolution, all rights and privileges of the Chinese seat was restored to the People's Republic of China and unlawful representatives of Chiang Kai Shek expelled from UN.

How can Wang Yi claim that his country founded the United Nations? Kuan said that Wang Yi is right, and ordinary people got it wrong. According to the Resolution, the personality of the ROC is being restored to the PRC. It not only restores the seat, but also restores the PRC to the status of being a founding the UN. In essence, the PRC is being "grafted" to the ROC, thus confirming the sovereignty of the ROC is being succeeded by the PRC. In terms of the United Nations, the Republic of China is the People's Republic of China and vice versa.

The next point of contention raised by Kuan is "Retrocession of Taiwan to Republic of China", intended to be taught in [Taiwanese] schools. This raised serious problems about factual accuracy.

On 25 October 1945, Chiang Kai Shek took over the administration of Taiwan from Japan. In reality, Chiang was conducting military occupation of Taiwan on behalf of the Supreme Commander of the Allied Powers, and the Republic of China has yet to legally obtain sovereignty over Taiwan. Chiang told the truth to one of his subordinate, Chen Cheng about the true nature of his governance in Taiwan, that it was a trusteeship. An important principle in international law is that military occupation does not transfer sovereignty.

Kuan gave us very interesting discussion questions. Who was the founding member of the UN? Which country took over Taiwan from Japan through "retrocession"? The answers are the same, that is Republic of China, pointing to the same sovereign body. And since the ROC has been succeeded by the PRC, sovereignty over Taiwan is carried over to the PRC. Also given that ROC and the PRC refers to the same country, Wang Yi is right in the sense to refer ROC as his country.

Kuan pointed out about the factual inaccuracy of takeover of Taiwan. She objected that takeover of Taiwan was not depicted as "military occupation on behalf of the Allies" but rather "retrocession of Taiwan to the Republic of China" in history syllabus. That is to say, there was no transfer of sovereignty of Taiwan on 25 October 1945, but schoolchildren are being misled into believing that sovereignty of Taiwan went back to China.

Why has Kuan taken sovereignty of Taiwan very seriously? Any question of sovereignty is no joke because it concerns national security. If one accepts the notion that Taiwanese sovereignty was reverted to Republic of China, and given that ROC has been succeeded by the PRC, Taiwan will inevitably be part of the PRC. This gives a foothold for authoritarian China to lay claim on Taiwan.

Clearly, she understands that Taiwanese people do not want their hard earned democratic system to be compromised by China due to false description about sovereignty for Taiwan. It becomes important to deny that China has de jure sovereignty over Taiwan, and accurately describe that Chiang was conducting military occupation as an Allied Commander, or that Republic of China was merely an occupying power over Taiwan.

The Minister of Education responded that the country is founded upon the foundation of The Constitution of the Republic of China and Additional Articles to the Constitution. The DPP legislator immediately rebuked the minister for "not facing the truth".

What is the problem with the Minister's statement? Because we are not lawyers, we only have superficial understanding of Constitutions. Most of us only understand that our Constitution(s) represents our countries, but are ignorant about one important principles of law.

Constitutions are not merely written documents that has power in their own right. For a Constitution to have a life of its own, it must be supported by the power of the people. This principle is what we called constituent power. After all, the people constitute the law, hence the supreme law is called constitution. With the constituent power, comes the power to amend the Constitution.

The Constitution of the Republic of China is drafted to be implemented in Mainland China. With the defeat and relocation of Republic of China to Taiwan, what happened to the Constitution?

Words of the Constitution can be preserved, but the ROC Constitution is now dead. Because, the people have used their constituent power to overthrow the ROC Constitution and created the PRC Constitution as the new law for China. People of Taiwan were subjected to Japanese sovereignty, did not take part in drafting the ROC Constitution and hence have no constituent power for the law. Scholars who went into exile with Chiang Kai Shek told their government: Not a single word of the Constitution can be changed. In principle, since the constituent power has been lost, the Constitution cannot be cited to give legitimacy.

The ROC promulgated an executive order on 12 January 1946 to revert citizenship of Taiwanese inhabitants to Chinese. Since China was only an occupying power without sovereignty over Taiwan, such a conversion of citizenship constitute a war crime, and also in violation of nationality laws of the ROC at that time. One can figure that sovereignty of Taiwan remained with Japan from 1945 through to 1952, when the Treaty of San Francisco came into force.

The minister was ignorant about the fact that Taiwan is not included in the territory defined in the ROC Constitution. Implementing the ROC Constitution outside the sovereignty of China does not give the document a new life. The Additional Articles, although serving the purpose to govern Taiwan as a government-in-exile, are in fact unauthorized insertions done by people holding no constituent power. Without power that comes from the rightful people, the ROC Constitution is only a zombie.

Vivian Hsu 徐若瑄 tearfully responded to China-Taiwan spat at Tokyo Film Festival 2010

It seems that China is not sparing entertainment from its enforcement of One China Principle and “both sides of the Taiwan Strait belongs to One China”, leading to a spat between Chinese and Taiwanese delegations at Tokyo Film Festival.

At the Tokyo Film Festival, the Chinese delegation demanded that the Taiwanese delegation to register at the film festival under the name “Taiwan, China” and that Taiwan enter the red carpet as part of the Chinese delegation. The demand was presented at the last minute of the event. Of course, this was refused by the Taiwanese delegation.

In response, the head of Chinese delegation taunted rudely.

As the matter could not be resolved, the organiser decided to bar both delegations from attending the red carpet. In the press conference that followed, Vivian Hsu tearfully declared that “I am Taiwanese and not a Chinese.”

China regained governance of Taiwan from Japan after World War II, followed by a civil war that led the retreat of Chinese Nationalists to Taiwan in 1949. The peace treaty with Japan concluded in 1951 did not hand Taiwan to any country. Democratisation instituted by Taiwanese President Lee Teng Hui led to distinct social and political environment on the self-governed island, leading to the evolution of separate national identities on China and Taiwan. Separate identities is further consolidated as China rises as a global power.

People’s Republic of China has insisted on the One China Principle for diplomatic relations and opposes policies that lead to separate Chinese and Taiwanese identities, such as “One China, One Taiwan” and “Taiwan Independence”.

In Taiwan, people with singular identification of being Taiwanese are on the rise, becoming more prevalent among the younger generation. Dual identification is declining, and singular identification of being Chinese is only a small minority.

Identity politics is going to affect cultural exchanges across the Taiwan Strait. Judging from the incident, it seemed that Beijing is intolerant of identity politics in all dealings with Taiwan.



Do you hear that?
Head of delegation: The Chinese delegation is the sole representative of China in the film festival. The Taiwan delegation is part of the Chinese delegation.

We can see shitty attitude of the female interpreter from Mainland China:



Female interpreter: You are Taiwan, China!
Head of Taiwan delegation: I am not.
Female interpreter: Are you Chinese?
Head of Taiwan delegation: I am Taiwanese.
Female interpreter: You are a Chinese!
Head of Taiwan delegation: There is no need for this. Don't force me to give in with your mob!

This is how Taiwan Affairs Office of Mainland China responded to the Tokyo Film Festival spat:



Spokesman: The spat may have been caused by lack of communication between two sides. Both sides should refrain from unnecessary conflicts in international settings.

The Taiwan Affairs Office dared not criticise Chinese citizens. Really? It was Mainland China who provoked the Taiwan delegation. The blame should be on the Chinese delegation.