A STUDY ON THE EVOLUTION OF TAIWAN’S STATE SOVEREIGN STATUS

• Main Authors: Wu, Ruey-yuan, 吳瑞源
• Other Authors: Chen, Lih-torng
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/71300322904866754053

碩士 === 國立臺灣海洋大學 === 海洋法律研究所 === 101 === Abstract The purpose of this thesis is being tried to study mainly the reasons why Taiwan is unable to embrace (or walk towards) the world normally through a sovereign independent state status to this day. On the other hand, what’s her state sovereign status now is the end of this study. In essence, Taiwan, inclusive of Taiwanese, is/are “Asian Orphans (said in A.D. 1940s by local famous writer Wu, Tzou-liou),” where people on it have been unable to build up an independent nation and become a master of their own. Take the history of the past 400 years, for example. There have been many conquerors such as (in ascending order of years) Spain (in Northern Taiwan for 16 years and defeated by the Netherlands later), the Netherlands (in Southern Taiwan—almost simultaneous with Spain), the Koxinga regime of Ming Dynasty, Ching Dynasty, Japan, and ROC on Taiwan since 17th century A.D.. In fact, the proverb has it “A proper status, a justifiable act (said in the title ‘Tzu-lu’ of the Analects of Confucius and in the book ‘The strategy of Warring Nations’ of Lieh-tzu).” Fantastic--how decent is the saying! Without doubts, a man who wants to stand up like a man in a competitive world must have a proper status and a justification while in dealing with social affairs and in conducting himself/herself; let alone a nation! Can we talk about and get involved in politics? Why not!? With a master or a shareholder, every individual indeed is liable for the prosperity or the peril of his /her own country. To speak frankly, however, the dispute over Taiwan’s state sovereign status is deemed to a complicated political issue (there’re no doubts on both related international treaties and international laws). Although being a disputable political issue, it’s a correct way for us to seek for solution pursuant to related international laws (international treaties), national constitution, and international politics (policies of diplomacy). Of all three steps mentioned above--there’s a link between them, related international laws (international treaties) are most important for the reasons as follows: 1. Related international laws (international treaties), manifesting state sovereignty, are necessary to be observed by States while stricken; 2. National constitution represents popular sovereignty of a State, which is complimentary to related international laws (international treaties); 3. International politics (policies of diplomacy), involving the state existence, show international law personality of a State. In short, they’re indispensable one another. Plus, as you know, striking (peace) treaties and ratification by the Parties make the transfer of a territorial sovereignty effective. Take, French Vietnam, for example. During the time of World War II, French Vietnam was occupied by Japan and returned to France by virtue of residual sovereignty after World War II (the territorial sovereignty has finally transferred to Vietnamese through the other treaty), though taken over, in favor of the Allied, by ROC then. In other words, taking over does not mean the automatic or the simultaneous transfer of or the own of the territorial sovereignty. Relatively, although the Cairo Declaration and the Potsdam Proclamation, despite the fact that the effectiveness of them is skeptic, assert that Taiwan’s territorial sovereignty will return to ROC after World War II, there has been no any evidence/treaty on it to this day. This is question one. And what’s the status of ROC on Taiwan during the time of between 1945A.D. and 1952A.D. (before the peace treaty towards Japan was stricken by Parties)? This is question two. More, what’s the status of ROC on Taiwan after the establishment of PRC? This is question three. Obviously, the Article 38 of terms of International Court of Justice (ICJ) provides that some stipulations of an agreement are applicable to Court while judged: 1. Any general or any special international treaties where are recognized expressly by the Parties; 2. Customary international laws where are deemed as common practices that are accepted as laws accordingly; 3. General legal principles where are recognized by States; 4. The cases stipulated in the Article 59 of terms of ICJ and the theories developed by international publicists of distinction of each state where are deemed as ancillary data to legal principles. Undoubtedly, to solve disputes over Taiwan’s state sovereign status are: Shimonoseki Treaty of Japan-China (Ching Dynasty), Japanese surrender articles of World War II, San Francisco Peace Treaty, Sino-Japanese Peace Treaty, etc. Actually, there’re many kinds of names in international laws as to treaties--such as treaty, convention, agreement; …to name a few. Whatever the names, however, each has equal effect. This is to be justified in the Article 2 of Vienna Convention on the Law of Treaties of 1969 which provides that despite of being stipulated in single or two or more documents, and in whatever names too, all are parts of international agreements in writing. To sum up, unlike natural science which is easy to distinguish right from wrong, politics is Machiavellian, powerful, subjective, social, emotional, and compromising. Worse, small country has no diplomacy. Upon this, it seems quite difficult for us to solve the disputes over Taiwan’s state sovereign status at a stretch. Thus, taking advantage of wisdom, Fabianism is a better way for us to overcome this impossible mission facing us. In short, prudence, fortitude, temperance, justice, and cooperation are key ways.