Should native Taiwanese people who want to travel internationally be able to apply for travel documents issued by a sovereign state?


Discussion & Analysis


President Eisenhower's Statement:
Dwight D. Eisenhower stated in 1963 that: "The Japanese peace treaty of 1951 ended Japanese sovereignty over the islands but did not formally cede them to ‘China,’ either Communist or Nationalist."
    (source: Mandate for Change 1953-1956, by Dwight D. Eisenhower, published in 1963 by Doubleday & Co., New York, page 461.)
Secretary Powell's Statement:
quote: "Our policy is clear. There is only one China. Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."
    (source: Statement by Sec. of State Colin Powell, Oct. 25, 2004)
CRS Report:
1) The United States did not explicitly state the sovereign status of Taiwan in the three US-PRC Joint Communiques of 1972, 1979, and 1982.
(2) US policy has not recognized the PRC's sovereignty over Taiwan;
(3) US policy has not recognized Taiwan as a sovereign country; and
    (source: CRS Report for the US Congress: China/Taiwan: Evolution of the "One China" Policy, July 9, 2007)
Director Wilder's Statement:
quote: "Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years."
    (source: Statement by Dennis Wilder, US National Security Council Senior Director for Asian Affairs, Aug. 30, 2007)
Roger C. S. Lin et al. v. United States of America
quotes:
(March 18, 2008 District Court Decision)   [The Native Taiwanese] Plaintiffs have essentially been persons without a state for almost 60 years. The last completely clear statement of authority over Taiwan came from General MacArthur in 1945. One can understand and sympathize with Plaintiffs' desire to regularize their position in the world.

(April 7, 2009 Court of Appeals Decision )   America and China's tumultuous relationship over the past sixty years has trapped the inhabitants of Taiwan in political purgatory. During this time the people on Taiwan have lived without any uniformly recognized government. In practical terms, this means they have uncertain status in the world community which infects the population's day-to-day lives. This pervasive ambiguity has driven Appellants to try to concretely define their national identity and personal rights.

According to the above data, the United States Executive Branch does not recognize the Republic of China (ROC) on Taiwan as a sovereign state. So, what is the ROC? Based on the legal and historical record, Taiwan was Japanese national territory until Japan renounced all of its rights, claims, and title in the San Francisco Peace Treaty (SFPT) of 1952. Hence, it seems reasonable to say that when the ROC moved its central government to occupied Taiwan in early December 1949, it was moving outside of China's national territory and immediately became a government in exile.

Reference may be made to the case of Sheng v. Rogers, D.C. Circuit, Oct. 6, 1959, where the judges examined the legal status of Taiwan in detail, and held: " . . . that the Government of the Republic of China exercises authority over the island; that the sovereignty of Formosa has not been transferred to China; and that Formosa is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into. Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China."   (Emphasis added.)

Based on the above it is clear that there was no "Taiwan Retrocession Day" on Oct. 25, 1945, the ROC has never held the territorial sovereignty of Taiwan, and the issuance of ROC passports to native Taiwanese persons is without legal basis.

Most significantly, the human rights of the native Taiwanese people are being violated and have been violated since the end of World War II. They are native Taiwanese people, not Chinese citizens. As such, they should not be forced to carry ROC passports.

In consideration of the above facts, some human rights activists have raised questions about the correct procedure for native Taiwanese persons to apply for legally valid travel documentation.   Important questions are: (1) Are application forms available??   (2) Have the full procedures been publicly announced??

The answer to the above two questions appears to be "No." However, there has been more and more discussion of this topic in online Forums, and greater numbers of people are expressing interest in applying for some sort of travel documents issued by a sovereign state, so that they can travel internationally with minimal hassle. Native Taiwanese people don't want to carry ROC passports, because they don't want to be misidentified as Chinese citizens.
Article 15 (1) of the Universal Human Rights Declaration says everyone has the right to a nationality.

The ROC is not a sovereign state, and hence the holders of ROC passports do not have an internationally recognized nationality. At the minimum, the native Taiwanese people want to hold "travel documents" issued by a sovereign state.

The question then arises, "Which sovereign state should take the responsibility for issuing 'travel documents' to native Taiwanese people?"  

The following excerpts from the Foreign Relations of the United States series, edited by the Department of State, offer some important insights:

Foreign Relations of the United States


49-3)       June 9, 1949
Plebiscite Proposal
There has been no recognition (by the Allies) that Taiwan has been incorporated into Chinese territory.


49-5)       Oct. 23, 1949
Right of conquest
Chinese President Li Zongren is in favor of joint Sino-American Commission to govern Taiwan, but admits US could take control based on right of conquest.


49-6)       Dec. 3, 1949
Special Responsibility of US
The United States has a special responsibility for Taiwan due to its military liberation of the island.


50-1)       Oct. 23, 1950
International Problem
By sending the Seventh Fleet into the Taiwan Strait, the U.S. Executive Branch has forcefully emphasized its position that Formosa is an international problem.


50-2)       Nov. 11, 1950
No Formal Act
To date, no Formal Act restoring Formosa & Pescadores to China has occurred.


50-3)       Nov. 16, 1950
Principal Victor over Japan
As principal victor over Japan, US has great a responsibility in regard to the disposition of Formosa.


51-2)       May 3, 1951
Occupation of Formosa
There are many types of military occupation, and the US could occupy Formosa without any Americans being present . . . .


52-1)       June 2, 1952
Sovereignty over Formosa is still undetermined
Sovereignty over Formosa is still undetermined with the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952.


54-1)       Sept. 27, 1954
Inchoate Juridical Status
Formosa and the Pescadores (aka "Taiwan") have an inchoate juridical status under SFPT, however Kinmen and Mazu have continuously been Chinese territory.


54-2)       Oct. 14, 1954
US juridical position
Neither the San Francisco Peace Treaty of April 28, 1952, nor the Sino-Japanese Peace Treaty (Treaty of Taipei) of Aug. 5, 1952 can be interpreted to say that Formosa and the Pescadores have been ceded to China. Importantly, the United States retains a juridical position in these islands.


54-3)       Oct. 18, 1954
Distinctive Juridical Status
(Eisenhower:) Technically, Formosa and the Pescadores are not under Chinese sovereignty. The Chinese Nationalists are living in a privileged sanctuary.


54-4)       Oct. 28, 1954
Unsatisfied US Interest
Japan did not cede sovereignty over Formosa and the Pescadores to China. Japan renounced its own sovereignty but left the future title undefined. As principal victor over Japan, the United States has an unsatisfied interest in these former Japanese islands.


55-1)       July 1, 1955
United States Could Assert Legal Claim
In the peace treaty, Japan has merely renounced sovereignty over Taiwan, but there has been no other disposition. The United States also has an interest in Taiwan and could assert a legal claim to the island(s). Hence, the disposition of Taiwan is not merely an internal Chinese problem.


56-1)       June 10, 1956
Former Japanese Territories
The United States has residual responsibility over all former Japanese territories.


UK Parliament documents


UK55-2)       Feb. 9, 1955
RE: Legal Status of Formosa and the Pescadores
Unilateral declarations have no effect
Unilateral declarations could not affect the legal status of Formosa . . . .


UK55-3)       May 4, 1955
RE: Far East (Formosa and the Pescadores)
Military occupation
The case of Formosa is different. The sovereignty was Japanese until 1952. The Japanese Treaty came into force, and at that time Formosa was being administered by the Chinese Nationalists, to whom it was entrusted in 1945, as a military occupation . . . .


UK55-4)       Dec. 21, 1955
RE: The International Situation
Exile in Formosa
. . . . exile has not changed the essential character of the Kuomintang regime -- That regime . . . was set up to carry out the ideas of the late Dr. Sun Yat-sen, who was the principal initiator and carrier-through of the Revolution of 1911. The regime was taken over in 1924 by Chiang Kai-shek . . . .


UK56-1)       Jan. 30, 1956
RE: Formosa and the Pescadores (Sovereignty)
Sovereignty in Abeyance
The question of future sovereignty over Formosa was left undetermined by the Japanese Peace Treaty . . . .


Other References


08-1)       Dec. 10, 2008
Military occupation
. . . . after Japan's defeat in 1945, Taiwan and the Pescadores were assigned to the Republic of China for purposes of post-war occupation. Taiwan was still under this occupation four years later, when the ROC government fled to Taiwan . . . .


11-1)       Jan. 20, 2011
ROC forced citizenship on unwary Taiwanese
In the book On Taiwan's Status and Relations, edited by National Chengchi University history professor Hsueh Hua-yuan, it says that the Republic of China (ROC) government announced in January 1946 that the people living in Taiwan had "regained" their status as ROC nationals, which gave rise to diplomatic protests from the UK and the US.


13-1)       June 9, 2013
CIA report shows Taiwan concerns
"From the legal standpoint, Taiwan is not part of the Republic of China," a declassified CIA report on Taiwan written in March 1949 says.