The San Francisco Peace Treaty, the document recognized by the Allies, Japan, and the United Nations as the document legally ending World War II, provides no transfer of sovereignty from Japan to China. Its reference to Taiwan is rather brief, limited to Chapter II, Article 2, Clause b of the treaty, which reads:
(b) Japan renounces all right, title and claim to Formosa and the
In this clause, Japan clearly relinquishes its sovereign rights to Taiwan, acquired in 1895 via the Treaty of Shimonoseki from the Qing Dynasty. However, there is also no mechanism for transfer.
The situation in which this left Taiwan is akin to two other territories in the last half of the twentieth century: Western Sahara and East Timor.
Western Sahara was a Spanish colony along the west coast of Africa, south of Morocco and west of Mauritania. Spain relinquished its authority over the territory in November of 1975, but did not declare another state to be the recipient of the territory. The Madrid Accords were signed by the governments of Spain, Morocco and Mauritania following an advisory opinion by the International Court of Justice that neither of the African neighbors of the territory had a right to claim it following Spanish de-colonialization of the territory. Clauses two and three of the Madrid Accords read as follows:
· 2. In conformity with the aforementioned determination and in accordance
with the negotiations advocated by the United Nations with the affected parties, Spain will proceed forthwith to institute a temporary administration in the Territory, in which Morocco and Mauritania will participate in collaboration with the Djemaa and to which will be transferred all the responsibilities and powers referred to in the preceding paragraph. It is accordingly agreed that two Deputy Governors nominated by Morocco and Mauritania shall be appointed to assist the Governor-General of the Territory in the performance of his functions. The termination of the Spanish presence in the Territory will be completed by February 28, 1976 at the latest.
· 3. The views of the Saharan population, expressed through the Djemaa, will be respected.
There is no transfer of sovereignty. In fact, in clause three of the Accords, all three parties agree to respect the views of the Saharan population. Regardless, both Morocco and Mauritania illegally invaded the territory and fought a war over it. Local forces known as Polisario drove out the Mauritanians, but the Moroccans have been entrenched in most of the territory ever since. The Moroccan claims are recognized by the Arab League, but not by the African Union (a decision which resulted in Morocco leaving its predecessor, the Organization of African Unity).
The Sahrawi Arab Democratic Republic was declared in 1976, but is in effective control of only the extreme interior parts of the country, with the rest under Moroccan occupation. It is currently recognized by 58 states, most of them from Africa. The United Nations formed the United Nations Mission for the Referendum in Western Sahara (UNMURSO), which was authorized by Security Council Resolution 690. To this day, the United Nations does not recognize Moroccan claims to the territory and recently extended to ongoing mandate of UNMURSCO in Security Council Resolution 1979.
East Timor was formerly a colony of Portugal. Portugal divested itself of most of its colonial holdings following the Rose Revolution in 1974. East Timor was one of those holdings. There was no transfer of sovereignty to any other state when Portugal decided to leave its East Timor territory. Indonesia invaded the country in 1975, an action widely condemned as illegal and violating the rights of the East Timorese people. This action was condemned by the United Nations Security Council in resolution 384 in 1975 and again in resolution 389 in 1976.
The United Nations regarded East Timor as a non-self-governing territory whose people had a right to self-determination. While the ICJ did not rule directly on Indonesia’s invasion of the territory, there is one ICJ ruling that is of interest. In 1995, the ICJ did rule on a case between Australia and Portugal arising out of a treaty signed between Indonesia and Australia concerning natural resource extraction in the Timor Gap. The ICJ refused to rule on the case because of the contentious nature of the Indonesian participation in the treaty and the fact that East Timor was regarded as a non-self governing territory.
East Timor was granted a referendum and independence in a United Nations monitored process that culminated in 2002.
How do these relate to Taiwan? Like Taiwan, both were surrendered by their prior sovereign without designating another state to assume sovereignty over them. In the cases of Western Sahara and East Timor, the United Nations ruled that both were entitled to self-determination. Why is this not the case with Taiwan? Well, in both cases, the United Nations Security Council was involved. Neither Morocco nor Indonesia have veto power in the Security Council as China does, so as China claims Taiwan as its territory much in the same way Morocco claims Western Sahara and Indonesia once claimed East Timor, the Security Council is unable to take any action. So, that is a non-starter.
The other option is the International Court of Justice. The ICJ directly ruled on the Western Sahara matter and indirectly so on East Timor, and in both cases, confirmed the right of the two territories to self-determination. So, obviously, this is where Taiwan must look.
However, in accordance with Article 35, the International Court of Justice is only available to UN members who have ratified the Statute for the ICJ.
1. The Court shall be open to the states parties to the present Statute.
Taiwan is not a party to the statute as it is not a member of the United Nations. However, Article 36 provides some assistance, specifically clause 2:
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to
any other state accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an
Both sub-clauses a and b to clause 2 are relevant here. The fact is that the result of the San Francisco Peace Treaty as regards Taiwan has never been judicially adjudicated. Any signatory to that treaty would have clear standing with the ICJ for an interpretation of Article 2 clause B of that treaty. Of the signatories of that treaty, eight (Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay,) currently have diplomatic relations with Taipei. Now, it is a sad liklihood that two of them will switch over the Beijing (Nicaragua and Panama) in the event of a Tsai victory, showing the disingenuousness of the so-called “diplomatic truce”. However, that still leaves six states with clear standing to request a legally binding interpretation of the San Francisco Peace Treaty as it regards Taiwan and its legal right to self-determination. As China is not a signatory to the treaty, it has no standing to object to such a consideration of the case as it should not be named as a party to the case.
Given that in the long history of territorial transfers between states, it occurs through the mechanism of treaties (and not through wartime communiqués and hostilities-ending armistices), it seems clear that the ICJ must rule in favor of Taiwan’s right to self-determination. The result of the recent advisory opinion confirming the legality of Kosovo’s declaration of independence from Serbia (which frankly surprised me) gives even stronger credence that the ICJ would rule on Taiwan’s favor. While such a ruling is not likely to calm Beijing’s claims over Taiwan, it will give a significant boost to Taiwan’s efforts to win over the international community to support the legitimate rights of the island. This is the best way to ensure Taiwan’s long-term sovereignty in the face of an increasingly bellicose China.