台灣法律地位未定論(上)
一
在「舊金山和約」簽訂與生效後，「台灣法律地位未定論」就等於被法制化，一直到1972年2月，「美中上海公報」發表後，美國政府才不再把「台灣法律地位未定」掛在嘴上，而是偶爾會以一些比較特殊的形式或不同的語言來表達或呈現。
我在2/18/2014張貼的「According to Dr. Henry Kissinger: 『上海公報』中的”all Chinese on either side of the Taiwan Strait”以及尼克森穿內衣褲，暴跳如雷的故事」一文最後一節，引用了季辛吉寫的「白宮歲月」 (Henry Kissinger: White House Years, Little, Brown & Co. 出版社出版, 1979，p. 1057) 一書中的記述:
“Nixon had told me five days before [指2/21/1972尼克森抵達北京那一天的前五天]that he wanted [Secretary of State William] Rogers and Assistant Secretary of State Marshall Green TO BE OCCUPIED ELSEWHERE SO HE COULD DISCUSS SENSITIVE MATTERS WITH MAO AND CHOU. Nor was Rogers invited to the meeting by the Chinese, PERHAPS BECAUSE OF COMMENTS THAT STATE [DEPARTMENT] HAD MADE ABOUT TAIWAN’S ‘UNSETTLED’ JURIDICAL STATUS DURING THE PREVIOUS YEAR. [季辛吉說: 美國國務卿羅吉斯與國務院亞太事務助卿葛林在尼季兩人去會見老毛時，並沒有被中方一併邀請，為什麼呢?老季猜測，原因可能是國務院在1971年提出「台灣法律地位未定論」。]
既然老季提到「台灣法律地位未定論」這件事，我今天就再花一點時間，來提醒各位鄉親。
我準備在附錄中提供美國國務院的法律顧問Robert I. Starr在7/12/1971備妥的一份文件，該文件標題是”Legal Status of Taiwan” (台灣的法律地位)，這份文件十分權威與重要，但我沒有準備把它翻成漢文，我把英文原文放在附錄中，供大家參考。
該文件所使用的資料都發生在7/12/1971之前。
「台灣建州運動」的核心認知之一是，台灣至今仍然法律地位未定，為了讓鄉親們理解並認同我們的認知，我們發表了一篇題為「台澎、金馬的法律地位與台灣前途解決方案」的論文，這是繼美國國務院1971年的努力之後所進行的一項重要工作。
我們在該文中有如下這麼兩段:
// 1971年7月13日，美國國務院法律顧問辦公室的 Robert I. Starr 律師為國務院中華民國事務科科長 Charles T. Sylvester 準備了一份「台灣法律地位備忘錄」。該備忘錄的結論是: 台灣的國際法律地位未定。
該項結論至今仍然正確。//
我們希望鄉親們從頭到尾仔細讀我們發表的論文，但請特別注意從「(E) 美中政府公報」起的那一部分，因為那一部分處理了Robert I. Starr沒能處理的資料。
我把「台澎、金馬的法律地位與台灣前途解決方案」這篇論文也放在附錄中，請大家參考，它基本上是用漢文寫的。
台灣建州運動發起人周威霖
David C. Chou
Founder, Formosa Statehood Movement
(an organization devoted in current stage to making Taiwan a territorial commonwealth of the United States)
==============================================================
附錄
附錄一:
State Department Legal Advisor: The Legal Status of Taiwan
July 13, 1971
Foreign Relations of the United States
Memorandum
July 13, 1971
To: EA/ROC – Mr. Charles T. Sylvester
From: L/EA – Robert I. Starr
Subject: Legal Status of Taiwan
You have asked for a comprehensive memorandum analyzing the question of the legal status of Taiwan in terms suitable for Congressional presentation. Attached is a paper that should serve this purpose. It is drawn mainly from the February 3, 1961 Czyzak memorandum, and contains no sensitive information or reference to classified documents.
Concurrence: L – Mr. Salans
L:L/EA:RIStarr:cdj:7/13/71 ex 28900
Legal Status of Taiwan
Prior to the Korean Hostilities
From the middle of the 17th century to 1895, Formosa (Taiwan) and the Pescadores (Penghu) were part of the Chinese Empire. China then ceded these islands to Japan in 1895 in the Sino-Japanese Treaty of Shimonoseki.[1]
In the Cairo Declaration of 1943, the United States, Great Britain, and China stated it to be their purpose that “all the territories that Japan has stolen from the Chinese, such as…Formosa and the Pescadores, shall be restored to the Republic of China”.[2] These same three governments on July 26, 1945 issued the Potsdam Proclamation declaring that “the terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine”.[3] On August 8, 1945 the Soviet Union adhered to the Potsdam Proclamation. By an Imperial Rescript of September 2, 1945, the Japanese Emperor accepted the terms of the Potsdam Declaration, and in the Instrument of Surrender signed on the same date, the Japanese Government “and their successors” undertook to carry out the provisions of the Declaration.[4]
Pursuant to Japanese Imperial General Headquarters General Order No. 1, issued at the direction of the Supreme Commander for the Allied Powers (SCAP), Japanese commanders in Formosa surrendered to Generalissimo Chiang Kai-shek “acting on behalf of the United States, the Republic of China, the United Kingdom and the British Empire, and the Union of Soviet Socialist Republics.” Continuously since that time, the Government of the Republic of China has occupied and exercised authority over Formosa and the Pescadores.
The view of the U.S. in the intermediate post-war period was typified by a statement on April 11, 1947 of then Acting Secretary of State Acheson, in a letter to Senator Ball, that the transfer of sovereignty over Formosa to China “has not yet been formalized.”
After a prolonged period of civil strife the Chinese Communists succeeded in driving the Government of the Republic of China off the Chinese mainland. On October 1, 1949 the Chinese Communists proclaimed the establishment of the People’s Republic of China. The seat of the Government of the Republic of China was transferred to Formosa, and in early December 1949, Taipei became its provisional capital.
Shortly thereafter, President Truman, in a statement of January 5, 1950, referred to a U.N. General Assembly Resolution of December 8, 1949, (Res. 291(IV)) which called on all states to refrain from “(a) seeking to acquire spheres of influence or to create foreign controlled regimes within the territory of China; (b) seeking to obtain special rights or privileges within the territory of China.” He said:
“A specific application of the foregoing principles is seen in the present situation with respect to Formosa…
“The United States has no predatory designs on Formosa or on any other Chinese territory, The United States has no desire to obtain special rights or privileges or to establish military bases on Formosa at this time… the United States Government will no pursue a course which will lead to involvement in the civil conflict in China.”[5]
The Korean Conflict---Read More---
The outbreak of hostilities in Korea on June 25, 1950 brought to the fore the question of the status of Formosa and the Pescadores. President Truman ordered the U.S. Seventh Fleet to prevent any attack on Formosa, and as a corollary called upon the Chinese Government on Formosa to cease all operations against the mainland. In addition, he stated that “the determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.”[6]
On August 24, 1950 the United States explained its position to the United Nations Security Council in the following terms:
“The action of the United States was expressly to be without prejudice to the future political settlement of the status of the island. The actual status of the island is that it is territory taken from Japan by the victory of the allied forces in the Pacific. Like other such territories, its legal status cannot be fixed until there is international action to determine its future. The Chinese Government was asked by the allies to take the surrender of the Japanese forces on the Island. That is the reason the Chinese are there now.”[7]
By a letter dated September 20, 1950,[8] the United States requested that the question of Formosa be placed on the agenda of the fifth session of the U.N. General Assembly. In an explanatory note of September 21, the United States, citing the Cairo and Potsdam declarations and the Japanese surrender, stated nevertheless:
“Formal transfer of Formosa to China was to await the conclusion of peace with Japan or some other appropriate formal act.”
That note also stated:
The Government of the United States has made it abundantly clear that the measures it has taken with respect to Formosa were without prejudice to the long-term political status of Formosa, and the United States has no territorial ambitions and seeks no special position of privilege with respect to Formosa. The United States believes further that the future of Formosa and of the nearly eight million people inhabited there should be settled by peaceful means in accordance with the Charter of the United Nations.”[9]
在「舊金山和約」簽訂與生效後，「台灣法律地位未定論」就等於被法制化，一直到1972年2月，「美中上海公報」發表後，美國政府才不再把「台灣法律地位未定」掛在嘴上，而是偶爾會以一些比較特殊的形式或不同的語言來表達或呈現。
我在2/18/2014張貼的「According to Dr. Henry Kissinger: 『上海公報』中的”all Chinese on either side of the Taiwan Strait”以及尼克森穿內衣褲，暴跳如雷的故事」一文最後一節，引用了季辛吉寫的「白宮歲月」 (Henry Kissinger: White House Years, Little, Brown & Co. 出版社出版, 1979，p. 1057) 一書中的記述:
“Nixon had told me five days before [指2/21/1972尼克森抵達北京那一天的前五天]that he wanted [Secretary of State William] Rogers and Assistant Secretary of State Marshall Green TO BE OCCUPIED ELSEWHERE SO HE COULD DISCUSS SENSITIVE MATTERS WITH MAO AND CHOU. Nor was Rogers invited to the meeting by the Chinese, PERHAPS BECAUSE OF COMMENTS THAT STATE [DEPARTMENT] HAD MADE ABOUT TAIWAN’S ‘UNSETTLED’ JURIDICAL STATUS DURING THE PREVIOUS YEAR. [季辛吉說: 美國國務卿羅吉斯與國務院亞太事務助卿葛林在尼季兩人去會見老毛時，並沒有被中方一併邀請，為什麼呢?老季猜測，原因可能是國務院在1971年提出「台灣法律地位未定論」。]
既然老季提到「台灣法律地位未定論」這件事，我今天就再花一點時間，來提醒各位鄉親。
我準備在附錄中提供美國國務院的法律顧問Robert I. Starr在7/12/1971備妥的一份文件，該文件標題是”Legal Status of Taiwan” (台灣的法律地位)，這份文件十分權威與重要，但我沒有準備把它翻成漢文，我把英文原文放在附錄中，供大家參考。
該文件所使用的資料都發生在7/12/1971之前。
「台灣建州運動」的核心認知之一是，台灣至今仍然法律地位未定，為了讓鄉親們理解並認同我們的認知，我們發表了一篇題為「台澎、金馬的法律地位與台灣前途解決方案」的論文，這是繼美國國務院1971年的努力之後所進行的一項重要工作。
我們在該文中有如下這麼兩段:
// 1971年7月13日，美國國務院法律顧問辦公室的 Robert I. Starr 律師為國務院中華民國事務科科長 Charles T. Sylvester 準備了一份「台灣法律地位備忘錄」。該備忘錄的結論是: 台灣的國際法律地位未定。
該項結論至今仍然正確。//
我們希望鄉親們從頭到尾仔細讀我們發表的論文，但請特別注意從「(E) 美中政府公報」起的那一部分，因為那一部分處理了Robert I. Starr沒能處理的資料。
我把「台澎、金馬的法律地位與台灣前途解決方案」這篇論文也放在附錄中，請大家參考，它基本上是用漢文寫的。
台灣建州運動發起人周威霖
David C. Chou
Founder, Formosa Statehood Movement
(an organization devoted in current stage to making Taiwan a territorial commonwealth of the United States)
==============================================================
附錄
附錄一:
State Department Legal Advisor: The Legal Status of Taiwan
July 13, 1971
Foreign Relations of the United States
Memorandum
July 13, 1971
To: EA/ROC – Mr. Charles T. Sylvester
From: L/EA – Robert I. Starr
Subject: Legal Status of Taiwan
You have asked for a comprehensive memorandum analyzing the question of the legal status of Taiwan in terms suitable for Congressional presentation. Attached is a paper that should serve this purpose. It is drawn mainly from the February 3, 1961 Czyzak memorandum, and contains no sensitive information or reference to classified documents.
Concurrence: L – Mr. Salans
L:L/EA:RIStarr:cdj:7/13/71 ex 28900
Legal Status of Taiwan
Prior to the Korean Hostilities
From the middle of the 17th century to 1895, Formosa (Taiwan) and the Pescadores (Penghu) were part of the Chinese Empire. China then ceded these islands to Japan in 1895 in the Sino-Japanese Treaty of Shimonoseki.[1]
In the Cairo Declaration of 1943, the United States, Great Britain, and China stated it to be their purpose that “all the territories that Japan has stolen from the Chinese, such as…Formosa and the Pescadores, shall be restored to the Republic of China”.[2] These same three governments on July 26, 1945 issued the Potsdam Proclamation declaring that “the terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine”.[3] On August 8, 1945 the Soviet Union adhered to the Potsdam Proclamation. By an Imperial Rescript of September 2, 1945, the Japanese Emperor accepted the terms of the Potsdam Declaration, and in the Instrument of Surrender signed on the same date, the Japanese Government “and their successors” undertook to carry out the provisions of the Declaration.[4]
Pursuant to Japanese Imperial General Headquarters General Order No. 1, issued at the direction of the Supreme Commander for the Allied Powers (SCAP), Japanese commanders in Formosa surrendered to Generalissimo Chiang Kai-shek “acting on behalf of the United States, the Republic of China, the United Kingdom and the British Empire, and the Union of Soviet Socialist Republics.” Continuously since that time, the Government of the Republic of China has occupied and exercised authority over Formosa and the Pescadores.
The view of the U.S. in the intermediate post-war period was typified by a statement on April 11, 1947 of then Acting Secretary of State Acheson, in a letter to Senator Ball, that the transfer of sovereignty over Formosa to China “has not yet been formalized.”
After a prolonged period of civil strife the Chinese Communists succeeded in driving the Government of the Republic of China off the Chinese mainland. On October 1, 1949 the Chinese Communists proclaimed the establishment of the People’s Republic of China. The seat of the Government of the Republic of China was transferred to Formosa, and in early December 1949, Taipei became its provisional capital.
Shortly thereafter, President Truman, in a statement of January 5, 1950, referred to a U.N. General Assembly Resolution of December 8, 1949, (Res. 291(IV)) which called on all states to refrain from “(a) seeking to acquire spheres of influence or to create foreign controlled regimes within the territory of China; (b) seeking to obtain special rights or privileges within the territory of China.” He said:
“A specific application of the foregoing principles is seen in the present situation with respect to Formosa…
“The United States has no predatory designs on Formosa or on any other Chinese territory, The United States has no desire to obtain special rights or privileges or to establish military bases on Formosa at this time… the United States Government will no pursue a course which will lead to involvement in the civil conflict in China.”[5]
The Korean Conflict
The outbreak of hostilities in Korea on June 25, 1950 brought to the fore the question of the status of Formosa and the Pescadores. President Truman ordered the U.S. Seventh Fleet to prevent any attack on Formosa, and as a corollary called upon the Chinese Government on Formosa to cease all operations against the mainland. In addition, he stated that “the determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.”[6]
On August 24, 1950 the United States explained its position to the United Nations Security Council in the following terms:
“The action of the United States was expressly to be without prejudice to the future political settlement of the status of the island. The actual status of the island is that it is territory taken from Japan by the victory of the allied forces in the Pacific. Like other such territories, its legal status cannot be fixed until there is international action to determine its future. The Chinese Government was asked by the allies to take the surrender of the Japanese forces on the Island. That is the reason the Chinese are there now.”[7]
By a letter dated September 20, 1950,[8] the United States requested that the question of Formosa be placed on the agenda of the fifth session of the U.N. General Assembly. In an explanatory note of September 21, the United States, citing the Cairo and Potsdam declarations and the Japanese surrender, stated nevertheless:
“Formal transfer of Formosa to China was to await the conclusion of peace with Japan or some other appropriate formal act.”
That note also stated:
The Government of the United States has made it abundantly clear that the measures it has taken with respect to Formosa were without prejudice to the long-term political status of Formosa, and the United States has no territorial ambitions and seeks no special position of privilege with respect to Formosa. The United States believes further that the future of Formosa and of the nearly eight million people inhabited there should be settled by peaceful means in accordance with the Charter of the United Nations.”[9]
(待續)
台灣建州運動發起人周威霖
David C. Chou
Founder, Formosa Statehood Movement
(an organization devoted in current stage to making Taiwan a territorial commonwealth of the United States)
David C. Chou
Founder, Formosa Statehood Movement
(an organization devoted in current stage to making Taiwan a territorial commonwealth of the United States)
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