UNDERSTANDING THE SAN FRANCISCO PEACE TREATY'S DISPOSITION
of Formosa and the Pescadores

Introduction:

For over fifty years, legal scholars have debated the international legal status of Taiwan and the "Republic of China" on Taiwan. This article, originally published in the Fall 2004 edition of the Harvard Asia Quarterly, was the first to clearly demonstrate that these questions represent unresolved issues from World War II in the Pacific rather than — as most scholars have maintained — consequences of the Chinese Civil War in the late 1940s.

Given the decisive role of United States military forces in defeating Japan and liberating her overseas territories, this article approaches the subject through the lens of internationally recognized laws of war in conjunction with military jurisdiction under the U.S. Constitution. The analysis examines historical cases of territorial cessions following armed conflict, developing a comparative framework based on peace treaty specifications and the historical record.

This framework is then applied to Taiwan's situation, using the San Francisco Peace Treaty (SFPT) as the primary reference point. The analysis reveals that all aspects of Taiwan's legal position can be systematically determined through proper application of the treaty's provisions.

Beginning with a precise determination of nationality for Taiwan's native population, the article addresses numerous derivative questions: the correct designation for Taiwan's participation in international organizations such as the Olympics, WTO, and WHO; whether any U.S. income tax liability exists; voting rights; passport issuance; Taiwan's rights under the UN Charter; and the proper direction for Taiwan's constitutional, legal, and social development. Each topic is examined through rigorous legal analysis rather than political speculation.

This article's analytical approach departs from traditional political or diplomatic perspectives and adheres strictly to the principles of international law and the rules of treaty interpretation. By examining the specific provisions of the San Francisco Peace Treaty, particularly Japan's renunciation of sovereignty over Taiwan and the treaty's provisions on subsequent jurisdiction, this article reveals a clear legal framework. This framework not only explains Taiwan's current legal status but also provides a solid legal foundation for understanding Taiwan's unique situation in the international order.

Notably, this article's conclusions are not based on political positions or ideological considerations, but rather on an objective analysis of historical documents and principles of international law. The advantage of this legal approach is that it provides a verifiable structure based on established legal principles, rather than relying on ever-changing political advocacy or diplomatic rhetoric. This approach allows us to more clearly understand the nature of the Taiwan issue and why certain seemingly contradictory policy positions are actually consistent within the legal system.

The conclusions, derived through this legal framework, demonstrate full conformance with:

1. the One China Policy,
2. the Taiwan Relations Act, and
3. the Three Joint USA-PRC communiques.

as well as all other elements of the U.S.-Taiwan-PRC trilateral relationship.