台灣法律地位未定論(下)
附錄
附錄一
附錄一
Japanese Peace Treaty
From September 4 to 8, 1951 a conference for the conclusion and signature of a Treaty of Peace was held at San Francisco. China was not represented at the Conference because of the disagreement among the participants as to who actually represented the government of that country. Reflecting this disagreement is article 2 of the Peace Treaty, which reads in its pertinent part:
“(b) Japan renounces all right, title, and claim to Formosa and the Pescadores.”[10]
John Foster Dulles, U.S. delegate at the Conference, commented on this provision in article 2:
“Some Allied Powers suggested that article 2 should not merely delimit Japanese sovereignty according to Potsdam, but specify precisely the ultimate disposition of each of the ex-Japanese territories. This, admittedly, would have been neater. But it would have raised questions as to which there are now no agreed answers. We had either to give Japan peace on the Potsdam Surrender Terms or deny peace to Japan while the allies quarrel about what shall be done with what Japan is prepared, and required, to give up. Clearly, the wise course was to proceed now, so far as Japan is concerned, leaving the future to resolve doubts by invoking international solvents other than this treaty.”[11]
The delegate of the United Kingdom remarked:
“The treaty also provides for Japan to renounce its sovereignty over Formosa and the Pescadores Islands. The treaty itself does not determine the future of these islands.”[12]
The USSR refused to sign the Treaty. It objected, among other things, to the provision regarding Formosa and the Pescadores:
“…this draft grossly violates the indisputable rights of China to the return of integral parts of Chinese territory: Taiwan, the Pescadores, the Paracel and other islands…. The draft contains only a reference to the renunciation by Japan of its rights to these territories but intentionally omits any mention of the further fate of these territories.”[13]
It is clear from these and other statements made at San Francisco, that although the Treaty provision constituted an appropriate act of renunciation by Japan, the future status of Formosa and the Pescadores was not considered to have finally been determined by the Peace Treaty.
The Senate Committee on Foreign Relations also took this view. In its Report on the Treaty dated February 14, 1952, the Committee stated:
“It is important to remember that article 2 is a renunciatory article and makes no provision for the power or powers which are to succeed Japan in the possession of and sovereignty over the ceded territory.
“During the negotiation of the Treaty some of the Allied Powers expressed the view that article 2 of the treaty should not only relieve Japan of its sovereignty over the territories in question but should indicate specifically what disposition was to be made of each of them. The committee believes, however, that this would have complicated and prolonged the conclusion of the peace. Under the circumstances it seems far better to have the treaty enter into force now, leaving to the future the final disposition of such areas as South Sakhalin and the Kuriles.”[14]
Although China was not a party to the San Francisco Treaty, a separate Treaty of Peace between the Republic of China and Japan was signed in Taipei on April 28, 1952.[15] Article II of that treaty provided:
“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…, Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)….”
Explaining this provision to the Legislative Yuan, Foreign Minister Yeh of the Republic of China stated that under the San Francisco Peace Treaty “no provision was made for the return [of these islands] to China.” He continued:
“Inasmuch as these territories were originally owned by us and as they are now under our control and, furthermore, Japan has renounced in the Sino-Japanese peace treaty these territories under the San Francisco Treaty of Peace, they are, therefore, in fact restored to us.”[16]
At another point, Foreign Minister Yeh stated that “no provision has been made either in the San Francisco Treaty of Peace as to the future of Taiwan and Penghu.”[17] During the interpellations of the Sino-Japanese Peace Treaty in the Legislative Yuan, the Foreign Minister was asked, “What is the status of Formosa and the Pescadores?” He replied:
“Formosa and the Pescadores were formerly Chinese territories. As Japan has renounced her claim to Formosa and the Pescadores, only China has the right to take them over. In fact, we are controlling them now, and undoubtedly they constitute a part of our territories. However, the delicate international situation makes it that they do not belong to us. Under present circumstances, Japan has no right to transfer Formosa an the Pescadores to us; nor can we accept such a transfer from Japan even if she so wishes…In the Sino-Japanese peace treaty, we have made provisions to signify that residents including juristic persons of Formosa and the Pescadores bear Chinese nationality, and this provision may serve to mend any future gaps when Formosa and the Pescadores are restored to us.”[18]
Chinese Mutual Defense Treaty---Read More---
Against the background of a Chinese Communist propaganda campaign in July, 1954 for the “liberation” of Taiwan, supplemented in September, 1954 by military action against Quemoy and other offshore islands, the United States and the Republic of China signed a Mutual Defense Treaty on December 2, 1954.[19] The first paragraph of Article V of the Treaty reads:
“Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.”
Article VI provides that for the purpose of Article V the term “territories” shall mean in respect to the Republic of China, “Taiwan and the Pescadores.” In an exchange of notes accompanying the Treaty, there appears the statement, “The Republic of China effectively controls both the territory described in Article VI of the Treaty… and other territory.”
In its report on the Treaty, the Senate Committee of Foreign Relations discussed the question of the true status of Formosa and the Pescadores:
“By the peace treaty of September 8, 1951, signed with the United States and other powers, Japan renounced ‘all right, title and claim to Formosa and the Pescadores.’ The treaty did not specify the nation to which such right, title and claim passed. Although the Republic of China was not a signatory to the Treaty, it recognized that it did not dispose finally of Formosa and the Pescadores….
“…he (Secretary Dulles) informed the committee that the reference in article V to ‘the territories of either of the Parties’ was language carefully chosen to avoid denoting anything one way or the other as to their sovereignty.
“It is the view of the committee that the coming in to force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores. The treaty appears to be wholly consistent with all actions taken by the United States in this matter since the end of World War II, and does not introduce any basically new element in our relations with the territories in question. Both by act and by implication we have accepted the Nationalist Government as the lawful authority on Formosa.
To avoid any possibility of misunderstanding on this aspect of the treaty, the committee decided it would be useful to include in this report to following statement:
It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies.[20]
In presenting the Committee’s report to the Senate on February 9, 1955, Senator Walter George referred to the question of the legal status of Taiwan:
“The view was advance during committee’s consideration of the treaty that it may have the effect of recognizing that the government of Chiang Kai-shek has sovereignty over Formosa and the Pescadores. On the one hand, reference was made to the Cairo Declaration which stated that Japan was to be stripped of her island territories in the Pacific and that territories stolen from the Chinese such as Formosa and the Pescadores shall be restored to the Republic of China. On the other hand, reference was made to the fact that while Japan renounced all right, title and claim to Formosa and the Pescadores, such title was not conveyed to any nation. After full exploration of this matter with Secretary Dulles, the committee decided that this treaty was not a competent instrument to resolve doubts about sovereignty over Formosa. It agreed to include in its report the following statement
It is the understanding of the Senate that nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty of the territories referred to in article VI. (sic)
In other words, so far as the United States in concerned, it is our understanding that the legal status of the territories referred to in article VI, namely, Formosa and the Pescadores – whatever their status may be – is not altered in any way by the conclusion of this treaty.”[21]
Quemoy and Matsu
It may be well to note the special status of the offshore islands, the Quemoy and Matsu groups, in contrast to that of Formosa and the Pescadores as described here. The offshore islands have always been considered as part of “China.” As Secretary Dulles explained in 1954:
“The legal position is different…, by virtue of the fact that technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan. Therefore the juridical status of these islands, Formosa and the Pescadores, is different from the juridical status of the offshore islands which have always been Chinese territory” (underscore added)[22]
Recent Restatement of the United States Position
The position of the United States was set forth by the States Department in connection with the 1970 Hearings before the Subcommittee on the United States Security Agreements and Commitments Abroad of the Senate Committee on Foreign Relations (91st Cong., 2d Sess.):
“Legal Status of Taiwan as Defined in Japanese Peace Treaty and Sino-Japanese Peace Treaty
“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. Both the Republic of China and the Chinese Communists disagree with this conclusion and consider that Taiwan and the Pescadores are part of the sovereign state of China. The United States recognized the Government of the Republic of Taiwan as legitimately occupying and exercising jurisdiction over Taiwan and the Pescadores.”[23]
The future relationship of Taiwan to mainland China and the resolution of disputes dividing the governments in Taipei and Peking involve issues that the United States cannot resolve. We have made clear that our primary concern is that these issues should be resolved by peaceful means, without resort to the use of force. Until such a resolution is achieved we may continue to deal respectively with the government of the Peoples Republic of China and the Government of the Republic of China on matters affecting mutual interests, accepting the practical situation as we find it.
July 12, 1971
From September 4 to 8, 1951 a conference for the conclusion and signature of a Treaty of Peace was held at San Francisco. China was not represented at the Conference because of the disagreement among the participants as to who actually represented the government of that country. Reflecting this disagreement is article 2 of the Peace Treaty, which reads in its pertinent part:
“(b) Japan renounces all right, title, and claim to Formosa and the Pescadores.”[10]
John Foster Dulles, U.S. delegate at the Conference, commented on this provision in article 2:
“Some Allied Powers suggested that article 2 should not merely delimit Japanese sovereignty according to Potsdam, but specify precisely the ultimate disposition of each of the ex-Japanese territories. This, admittedly, would have been neater. But it would have raised questions as to which there are now no agreed answers. We had either to give Japan peace on the Potsdam Surrender Terms or deny peace to Japan while the allies quarrel about what shall be done with what Japan is prepared, and required, to give up. Clearly, the wise course was to proceed now, so far as Japan is concerned, leaving the future to resolve doubts by invoking international solvents other than this treaty.”[11]
The delegate of the United Kingdom remarked:
“The treaty also provides for Japan to renounce its sovereignty over Formosa and the Pescadores Islands. The treaty itself does not determine the future of these islands.”[12]
The USSR refused to sign the Treaty. It objected, among other things, to the provision regarding Formosa and the Pescadores:
“…this draft grossly violates the indisputable rights of China to the return of integral parts of Chinese territory: Taiwan, the Pescadores, the Paracel and other islands…. The draft contains only a reference to the renunciation by Japan of its rights to these territories but intentionally omits any mention of the further fate of these territories.”[13]
It is clear from these and other statements made at San Francisco, that although the Treaty provision constituted an appropriate act of renunciation by Japan, the future status of Formosa and the Pescadores was not considered to have finally been determined by the Peace Treaty.
The Senate Committee on Foreign Relations also took this view. In its Report on the Treaty dated February 14, 1952, the Committee stated:
“It is important to remember that article 2 is a renunciatory article and makes no provision for the power or powers which are to succeed Japan in the possession of and sovereignty over the ceded territory.
“During the negotiation of the Treaty some of the Allied Powers expressed the view that article 2 of the treaty should not only relieve Japan of its sovereignty over the territories in question but should indicate specifically what disposition was to be made of each of them. The committee believes, however, that this would have complicated and prolonged the conclusion of the peace. Under the circumstances it seems far better to have the treaty enter into force now, leaving to the future the final disposition of such areas as South Sakhalin and the Kuriles.”[14]
Although China was not a party to the San Francisco Treaty, a separate Treaty of Peace between the Republic of China and Japan was signed in Taipei on April 28, 1952.[15] Article II of that treaty provided:
“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…, Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)….”
Explaining this provision to the Legislative Yuan, Foreign Minister Yeh of the Republic of China stated that under the San Francisco Peace Treaty “no provision was made for the return [of these islands] to China.” He continued:
“Inasmuch as these territories were originally owned by us and as they are now under our control and, furthermore, Japan has renounced in the Sino-Japanese peace treaty these territories under the San Francisco Treaty of Peace, they are, therefore, in fact restored to us.”[16]
At another point, Foreign Minister Yeh stated that “no provision has been made either in the San Francisco Treaty of Peace as to the future of Taiwan and Penghu.”[17] During the interpellations of the Sino-Japanese Peace Treaty in the Legislative Yuan, the Foreign Minister was asked, “What is the status of Formosa and the Pescadores?” He replied:
“Formosa and the Pescadores were formerly Chinese territories. As Japan has renounced her claim to Formosa and the Pescadores, only China has the right to take them over. In fact, we are controlling them now, and undoubtedly they constitute a part of our territories. However, the delicate international situation makes it that they do not belong to us. Under present circumstances, Japan has no right to transfer Formosa an the Pescadores to us; nor can we accept such a transfer from Japan even if she so wishes…In the Sino-Japanese peace treaty, we have made provisions to signify that residents including juristic persons of Formosa and the Pescadores bear Chinese nationality, and this provision may serve to mend any future gaps when Formosa and the Pescadores are restored to us.”[18]
Chinese Mutual Defense Treaty
Against the background of a Chinese Communist propaganda campaign in July, 1954 for the “liberation” of Taiwan, supplemented in September, 1954 by military action against Quemoy and other offshore islands, the United States and the Republic of China signed a Mutual Defense Treaty on December 2, 1954.[19] The first paragraph of Article V of the Treaty reads:
“Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.”
Article VI provides that for the purpose of Article V the term “territories” shall mean in respect to the Republic of China, “Taiwan and the Pescadores.” In an exchange of notes accompanying the Treaty, there appears the statement, “The Republic of China effectively controls both the territory described in Article VI of the Treaty… and other territory.”
In its report on the Treaty, the Senate Committee of Foreign Relations discussed the question of the true status of Formosa and the Pescadores:
“By the peace treaty of September 8, 1951, signed with the United States and other powers, Japan renounced ‘all right, title and claim to Formosa and the Pescadores.’ The treaty did not specify the nation to which such right, title and claim passed. Although the Republic of China was not a signatory to the Treaty, it recognized that it did not dispose finally of Formosa and the Pescadores….
“…he (Secretary Dulles) informed the committee that the reference in article V to ‘the territories of either of the Parties’ was language carefully chosen to avoid denoting anything one way or the other as to their sovereignty.
“It is the view of the committee that the coming in to force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores. The treaty appears to be wholly consistent with all actions taken by the United States in this matter since the end of World War II, and does not introduce any basically new element in our relations with the territories in question. Both by act and by implication we have accepted the Nationalist Government as the lawful authority on Formosa.
To avoid any possibility of misunderstanding on this aspect of the treaty, the committee decided it would be useful to include in this report to following statement:
It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies.[20]
In presenting the Committee’s report to the Senate on February 9, 1955, Senator Walter George referred to the question of the legal status of Taiwan:
“The view was advance during committee’s consideration of the treaty that it may have the effect of recognizing that the government of Chiang Kai-shek has sovereignty over Formosa and the Pescadores. On the one hand, reference was made to the Cairo Declaration which stated that Japan was to be stripped of her island territories in the Pacific and that territories stolen from the Chinese such as Formosa and the Pescadores shall be restored to the Republic of China. On the other hand, reference was made to the fact that while Japan renounced all right, title and claim to Formosa and the Pescadores, such title was not conveyed to any nation. After full exploration of this matter with Secretary Dulles, the committee decided that this treaty was not a competent instrument to resolve doubts about sovereignty over Formosa. It agreed to include in its report the following statement
It is the understanding of the Senate that nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty of the territories referred to in article VI. (sic)
In other words, so far as the United States in concerned, it is our understanding that the legal status of the territories referred to in article VI, namely, Formosa and the Pescadores – whatever their status may be – is not altered in any way by the conclusion of this treaty.”[21]
Quemoy and Matsu
It may be well to note the special status of the offshore islands, the Quemoy and Matsu groups, in contrast to that of Formosa and the Pescadores as described here. The offshore islands have always been considered as part of “China.” As Secretary Dulles explained in 1954:
“The legal position is different…, by virtue of the fact that technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan. Therefore the juridical status of these islands, Formosa and the Pescadores, is different from the juridical status of the offshore islands which have always been Chinese territory” (underscore added)[22]
Recent Restatement of the United States Position
The position of the United States was set forth by the States Department in connection with the 1970 Hearings before the Subcommittee on the United States Security Agreements and Commitments Abroad of the Senate Committee on Foreign Relations (91st Cong., 2d Sess.):
“Legal Status of Taiwan as Defined in Japanese Peace Treaty and Sino-Japanese Peace Treaty
“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. Both the Republic of China and the Chinese Communists disagree with this conclusion and consider that Taiwan and the Pescadores are part of the sovereign state of China. The United States recognized the Government of the Republic of Taiwan as legitimately occupying and exercising jurisdiction over Taiwan and the Pescadores.”[23]
The future relationship of Taiwan to mainland China and the resolution of disputes dividing the governments in Taipei and Peking involve issues that the United States cannot resolve. We have made clear that our primary concern is that these issues should be resolved by peaceful means, without resort to the use of force. Until such a resolution is achieved we may continue to deal respectively with the government of the Peoples Republic of China and the Government of the Republic of China on matters affecting mutual interests, accepting the practical situation as we find it.
July 12, 1971
附錄二:
「台澎、金馬的法律地位與台灣前途解決方案」
撰述人：周威霖（「台灣建州運動」發起人)
發表日期: 2007年7月10日
http://pehlengsi.blogspot.tw/2015/05/blog-post_92.html (下)
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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