Taiwan’s Legal Status

If you are discussing Taiwan’s legal status, don’t miss this article by Jerome A. Cohen, first published by the South China Morning Post, and with  a pdf of a China Times translation into Chinese (fantizi).

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Related

» Fully Understood, July 27, 2010
» Reality Check, May 24, 2010

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5 Comments to “Taiwan’s Legal Status”

  1. Why is this a valuable piece for discussing Taiwan’s legal status? Except for mentioning the ambiguity of the “all Chinese” on either side of the Strait, which I would posit was unintentional ambiguity since Kissinger himself vigorously asserted during his 1971 meetings with Chou En Lai that the US did not support the Taiwan independence movement and since Nixon had little love for Taiwan, and for the fact that Chiang was allowed to occupy the island before a peace treaty settled the matter, the piece seems to support China’s position.

    Nowhere is the fact that Japan never ceded sovereignty to either Chinese regime. I don’t fault Cohen for this since his purpose seems to be to commemorate the Shanghai Communique as a historic artifact. Moreover, his conclusion is apt. But I don’t see this piece as particularly enlightening when it comes to the question of what Taiwan’s legal status is.

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  2. But I don’t see this piece as particularly enlightening when it comes to the question of what Taiwan’s legal status is.

    Both actual power (economic and military) matter when Taiwan’s future is the issue, Tommy. But the artefacts matter, too, and I believe that both Kissinger and Nixon understood that. Nixon was a lawyer, and at the time, turning away from Taiwan and to China was no piece of cake, and I don’t think they hastily drafted the communique on a beer coaster..

    I don’t like the article for the realities it describes, but I like it for describing the realities.It’s not nice to think that the Nixon administration continued a U.S. policy which had existed long before – thinking of Taiwan as a part of China -, but it deserves to be pointed out, just as the fact that there hasn’t been any peace treaty “to formalize the island’s return” deserves to be pointed out.

    As for the fact that Japan never ceded sovereignty to either Chinese regime, I added two related links underneath my recommendation.

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  3. But that is just the thing. Nixon and Kissinger were not continuing an old US policy. In response to the Cohen piece, Michael Turton provides many interpretations of US policy during the 1945-1949 period that derive from US diplomats. And he restates the view that the Cairo Declaration cannot really be perceived as “US Policy” since it is a statement of war aims alone. I had not seen this when I responded last night. But this aside, no records suggest that Nixon and Kissinger viewed this as an old US policy either. Mann’s About Face suggests as much regarding their intentions. On the contrary, they wished to change a US policy and saw no way to go about it aside from keeping everyone else in the dark regarding what they were doing. Nixon and Kissinger’s solution was highly controversial and probably would have gone nowhere had the two not gone to great lengths to keep the US diplomatic bureaucracy out of all negotiations. Which leads me to the beer coaster comment. A policy can be preconceived without being well grounded in precedent. That Nixon and Kissinger had thought things through based on their own worldview does not mean that they were adopting views that had been significantly vetted.

    Moreover, you give Nixon’s navigation of what is “legal” much too much credit. 1) Nixon was a politician who was concerned with reelection and his own reputation. 2) This is a man who would certainly have known that authorizing the spying on the opposing campaign, for example, would be illegal.

    Hence the problem with Cohen’s piece. It doesn’t describe realities so much as glosses over the inconvenient aspects of reality.

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  4. I think there may be a time span of something between four years and a decade, during the 1940s/1950s, when the U.S. basically viewed Taiwan as part of China – they had little reason to do otherwise, as long as the KMT regime was in charge, and seemed to be in control. If the importance of the unsettled legal status – I’m sure the state department was aware of the status anyway, as keeping track of these things is part of their job – but I doubt that this was a major issue at the top of the Truman administration. It is, obviously, the job of the bureaucracy to take note of anything that may become useful later in the process, or at a moment when sudden choices need to be made – but the president, not the bureaucracy, makes the actual choices. At different points in time, Truman/Acheson and Nixon/Kissinger chose not to play up certain comments, or viewpoints, based on what they viewed as the American interest.

    I agree that a policy can be preconceived without being well grounded in precedent. But the mere fact that the president who ordered burglary is the same who agreed to the Shanghai Communiqué doesn’t suggest that he was a (technically) bad lawyer. He simply didn’t expect to get caught and to have to resign for Watergate. However, he couldn’t expect that his China policy would go unnoticed, too. Don’t get me wrong: I wish there had been a U.S. trusteeship, for example, and Taiwanese independence soon after. I do also believe that Taiwan’s legal status is in a limbo: it won’t remain Japanese, and at the same time, Taiwan doesn’t need to become Chinese, either. But it is here where the legal status begins to obscure another major factor in the whole process: Taiwan’s – and America’s – preparedness to defend Taiwan, if necessary. Don’t expect China to even take note of legal issues. Political decisions will decide the matter.

    I’ve read Michael Turton‘s post, but maybe not carefully enough. If there are things in particular which should change my mind, please let me know – ideally by cutting and pasting a few lines from there.

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  5. 1) What is being debated here is not Taiwan’s legal status per se, but it’s legal status under US law. The position of the governments of countries closer to the issue is far more important. The most important of these is the government which the Taiwanese people themselves have elected.

    No US court decision can change the ownership of the island, because the island is not US territory. No US court can or would compel the executive to carry out acts to change the status of foreign territory.

    2) Against the absurdity of Japan’s relinquishing sovereignty over the island without transferring it to another party at a time when the island was under the control of the KMT, can be set the equal absurdity that this would leave Taiwan Terra Nullius, which would anyway result in ownership automatically vesting in the occupier at the time.

    3) Once we set down the road of unilaterally dismissing various agreements, declarations, etc. as ‘unequal’ or ‘colonial’, every act disposing of Taiwan can be dismissed. Where does this leave Taiwan? It leaves Taiwan in the situation it was before 1895.

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