Taiwan is an abandoned territory

By Frank Chiang 江永芳, Taipei Times, Thursday, Aug 10, 2006

This article is a belated response to John Hsieh's letter (Letters, June 25, page 8). His piece referred to my earlier article ("Taiwan is in no way a US territory," June 8, page 8) and also touched upon some issues concerning the sovereignty of Taiwan.

Due to space constraints, this article will be confined to discussing his claim that the US acquired title to the island of Taiwan by conquest within the framework of international law.

There are three principal sources of international law: treaties, including international conventions; international custom; and general principles of law recognized by civilized nations. The International Court of Justice (the World Court) applies rules of international law arising out of these sources to adjudicate cases brought before it.

Treaties are signed by nations, or parties, which agree to be bound by the provisions of the treaty. Multilateral treaties or international conventions are agreements between many nations, which create norms of conduct and may become rules of international law that bind the parties, as well as nonparty states. International customs arise out of the consensus of the nations on practices, or are based on the writings of ancient influential writers. Hugo Grotius explained in his work The Law of War and Peace that a body of international law was created by the practices of the Western states.

In my earlier article, I asserted that the US did not acquire title to the island of Taiwan after World War II when it requested and allowed the Republic of China to occupy and administer Taiwan. The island of Taiwan did not become US territory under these circumstances because the US Supreme Court has ruled that "the victorious state is considered merely an administrator, not the owner, of the enemy's territory which it occupies during a war; a rule of international law on territory is, if the defeated state is not entirely annexed by the victorious state, then a transfer of a territory from the defeated state to the victorious state must be achieved by a treaty."

This rule is from a 1828 case called American Insurance Co v Cantor (the "American Insurance") and is further supported by the 1907 Hague Convention Respecting the Laws and Customs of War on Land.

The rule of international law which I referred to above is a customary rule developed from state practices concerning the transfer of territory between nations. The most common way of transferring territory between nations is by treaty. Alsace and Lorraine changed hands between France and Germany many times. Each time, the transfer was by treaty: France acquired Alsace from Germany by the Peace of Westphalia in 1648 after the Thirty Years War; Germany re-acquired Alsace and Lorraine from France by the Treaty of Versailles in 1871 after the Franco-German War; France again acquired Alsace and Lorraine from Germany under the Peace Treaty of Versailles of 1919 at the end of the World War I.

Other examples of transfer of territories by a treaty after a war include the Congress of Vienna (1815), which settled the territories among the European states at the end of the Napoleonic Wars; the Treaty of Nanking (1842), in which China ceded Hong Kong to Great Britain at the end of the first Opium War; the Treaty of Shimonoseki (1895), in which China ceded Formosa (the island of Taiwan) and the Pescadores (Penghu) to Japan at the end of the Sino-Japanese War; and the Treaty of Paris (1898), in which Spain ceded Puerto Rico, the Philippines and Guam to the US at the end of the Spanish-American War.

While this is the most common way of transferring territories between states, there is an exception to the rule. The exception applies when the victorious state annexes the entire defeated state. In such instances, there is no need for the victorious state to sign a treaty acquiring the entire defeated state because the defeated state no longer exists and the victorious state has no other party with whom to sign a treaty.

Hsieh, in his letter, quoted a statement of Chief Justice John Marshall in the American Insurance case: "The [US] Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty," and thereby concluded that since "[a]ll allied military attacks against Taiwan during World War II were conducted by US military forces ... the US acquired Taiwan under the principle of conquest."

I assume that Hsieh derived "the principle of conquest" from Marshall's statement which he quoted. To properly analyze the argument from a legal perspective, we must first examine the case from which our arguments are derived. The American Insurance case involved a territory acquired by the US not by conquest, but by a treaty.

In 1825, American Insurance Co insured some goods on board a ship which was to sail from New Orleans to La Havre. The ship was stranded off the Florida coast, but the goods were salvaged. The salvaged goods were sold by a Florida court in an auction to Cantor to pay the salvors.

The owner of the goods abandoned the salvaged goods to American Insurance Co after he received the insurance proceeds from the company. American Insurance Co then sued Cantor for restitution. The Florida court was established under a law of the territorial legislature of Florida after Florida was ceded by Spain to the US in 1819, but before it became a state of the US in 1845. American Insurance Co alleged that the Florida court was incompetent to sell the goods because, it argued, that selling salvaged goods was an exclusive jurisdiction of the US Federal courts and the Florida court had no authority to sell the goods.

The US Circuit Court distinguished a territory acquired by a treaty from another state (nation) and a territory acquired from Aborigines by conquest and ruled for Cantor. The US Supreme Court, in affirming the judgment of the Circuit Court, emphasized that Florida was a territory acquired from Spain by a treaty.

Hsieh did not mention that Chief Justice Marshall, after making the statement quoted by him, stated that: "The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace."

Thus Marshall's second statement indicates that the term acquiring territory by conquest in the first statement quoted by Hsieh refers to a situation where a nation is entirely subdued (annexed). The statement also indicates that unless a nation is entirely subdued (annexed), the occupation of territory is merely a military occupation.

Thus, a customary rule exists, as Marshall pointed out, that unless the victorious state annexes the entire defeated state, it can only take title to a territory of the defeated state by a treaty; the victorious state which occupies an enemy's territory is only an administrator, not the owner.

This international law is also recognized and codified by the 1907 Hague Convention Respecting the Laws and Customs of War on Land (also called the Laws of War). Article 55 of the Convention states, "The occupying state [of an enemy's territory] shall be regarded only as administrator."

If a "principle of conquest" may be derived from the opinion of Marshall, the principle is that a victorious state in a war may claim to acquire (annex) a defeated state in its entirety without a treaty. Under this principle, it is essential that the victorious state has the intention to annex the entire defeated state.

A conquest of an enemy state without intention to annex the defeated state will not result in acquiring title to the entire state. After Japan surrendered unconditionally to the US in 1945, by international law, the US could have annexed Japan, but it did not. (At the San Francisco Conference on the Proposed Japanese Peace Treaty, John Foster Dulles, who was representing the US, said that "[t]he United States, which for [six] years has been and is the occupying power [in Japan], could practically do much as it wanted.") The US did not annex Japan because it was politically impractical and inconceivable.

Had the US annexed Japan, the US would have acquired the island of Taiwan without a treaty because from 1895 till 1952, the island of Taiwan was Japan's territory. However, the US claimed neither Japan nor its territory of Taiwan.

One reason that the US did not do so is that it could not do so without violating the principles it announced in the Cairo Declaration.

The Cairo Declaration, issued by the governments of the US, UK, and China in 1943, states: "The Three Great Allies covet no gain for themselves and have no thought of territorial expansion. It is their purpose that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [the island of Taiwan] and the Pescadores [Penghu], shall be restored to the Republic of China. The aforesaid three great powers are determined that in due course Korea shall become free and independent."

As I discussed in another article ("No state has title to Taiwan," Oct. 3, 2005, page 8), the Cairo Declaration was only a statement of common intent of the three Allies during the Pacific War, and therefore, they had no legal obligation to deliver the island of Taiwan to China after the war.

Furthermore, in the Cairo Declaration the Allies announced two principles for dealing with the postwar settlement of territories: The principle of non-aggression and the principle of no territorial ambitions. Subsequently, China, represented by the government of the People's Republic of China, violated the two principles by invading South Korea in 1950.

Because of the violation by China, the US and the UK altered their positions on the fate of the island of Taiwan. The US and the UK, instead of delivering Taiwan to China, required Japan to renounce title to the island in the Peace Treaty of San Francisco without designating a transferee. Thus, title to the island of Taiwan was not transferred to China or the US in the treaty. One of the reasons why the US did not claim Taiwan after the war is that the US was bound by the principles announced in the Cairo Declaration.

Taiwan is currently an abandoned territory of Japan, over which no country has a legitimate claim. The US cannot claim title to the island of Taiwan unless the people of Taiwan, as the collective owners of the island, request the US to take the island. Citations to the quotations and treaties can be found in my article "One China Policy and Taiwan" in the Fordham International Law Journal (December 2004).

Frank Chiang is president of the Taiwan Public Policy Council in the US and professor of law at Fordham University School of Law in New York City.

Taiwan is in no way a US territory

By Frank Chiang 江永芳, Taipei Times, Jun 15, 2006, Page 8

In the past, I have expressed my view that China has no title to Taiwan ("No other state has title to Taiwan," Oct. 3, 2005, page 8). Recently, a few commentators have argued that Taiwan is an American territory. According to them, the US, as the state which defeated Japan at the end of the World War II, has sovereignty over Taiwan.

The argument has no support in international law. It is true, when two states have engaged in a war, the victorious state may take a piece of territory of the defeated state that has unconditionally surrendered. John Foster Dulles, the US representative to the San Francisco conference on the peace treaty with Japan, supported this point.

At the conference on Aug. 15, 1951, he stated that "the United States, which for [six] years has been and is the occupying power [in Japan], could practically do [as] much as it wanted."

However, the island of Taiwan is not, and has never been, a territory of the US.

First, the US has not acquired title to Taiwan by occupation.

It is true that the US, as the major allied power during World War II, delegated its power to occupy and administer Taiwan to Chiang Kai-shek's (蔣介石) government, the Republic of China (ROC). But, in international customary law, a victorious state which occupies the territory of the defeated state does not acquire title to the occupied land by occupation.

Both the US Supreme Court in a 1822 case (American Insurance Co versus Cantor) and the 1907 Hague Convention Respecting the Laws and Customs of War on Land recognized this international customary rule. The victorious state is considered merely an administrator, not the owner, of the enemy's territory which it occupies during a war.

The rule of international law is, if the defeated state is not entirely annexed, then any transfer of conquered territory from the defeated state to the victorious state must be achieved by a peace treaty.

Second, the US did not acquired title to Taiwan by the San Francisco peace treaty. The peace treaty between Japan and the Allied powers required Japan to renounce title to the islands of Taiwan and Penghu without designating a transferee.

Rather than transferring Taiwan and Penghu to one of the Allied powers, the San Francisco peace treaty left both islands free of any nation's sovereignty.

Since the US did not receive title to Taiwan under this or any other treaty, it does not own Taiwan. Conversely, the US acquired all its present territories by treaties or agreements: Guam in 1898, Puerto Rico in 1899, American Samoa in 1904, the Virgin Islands in 1916, and the Northern Mariana Islands in 1976.

Third, no US government has ever claimed that Taiwan is its territory. In all legal documents, including congressional statutes, dealing with the territories of the US, the US government never lists Taiwan as its territory.

Documents issued by the US government specifically provide that "the US territory includes the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, American Samoa and the territorial waters adjoining the land areas of the US." Despite this detailed listing of US territories, Taiwan is not included as a US territory.

In addition, the Taiwan Relations Act (TRA) offers definite proof that the US government does not regard Taiwan its territory. The TRA was enacted by the US Congress in 1979 when the US government switched recognition of the representative government of the state of China from the ROC to the People's Republic of China (PRC).

Section 3 of the act provides that, "in furtherance of the policy of this Act, the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability."

In every country, the national government is responsible for protecting its people and territory against foreign invasions. Such responsibility is so fundamental and clear that it does not need any executive announcement or legislation to spell it out.

No country in the world would leave the national defense of a part of its territory to that territory itself. As a matter of law, if the US government had considered Taiwan an American territory, it would not have needed to enact the TRA.

There are some in Taiwan who have put forth the idea that Taiwan petitions Washington that the island becomes a US territory.

At present, the people of Taiwan, who collectively own the island, have many options to choose their own future. Even if they desire Taiwan to be a part of the US, approval by the US Congress is required for the US to acquire a new territory.

Until then, Taiwan is not a US territory.

[Citations of the quotations in this paper can be found in the article "The Territorial State and Taiwan" (The Comparative Law Journal of Japan, The Japanese Comparative Law Institute, Tokyo, Japan, 2003).]

Frank Chiang is president of the Taiwan Public Policy Council in the US and a professor of law at Fordham University School of Law, New York City

No other state has title to Taiwan

By Frank Chiang 江永芳, reprint from Taipei Times, Oct 03, 2005

At a meeting celebrating the "60th anniversary of the liberation of Taiwan," Chinese Nationalist Party (KMT) Chairman Ma Ying-Jeou (馬英九) said in a speech that Taiwan was returned to the Republic of China after the war. As Ma noted, the Potsdam Proclamation of 1945 states that "the terms of the Cairo Declaration shall be carried out." The terms in the Cairo Declaration state that " ... Formosa and the Pescadores shall be returned to the Republic of China."

Ma therefore claims that the Potsdam Proclamation constitutes the legal basis for the return of Taiwan to the Republic of China (ROC). He then claimed that "Taiwan has never been Japanese" at the same meeting (China Times, Sept. 9, 2005).

No serious expert in international law could ever make Ma's statement that "Taiwan island has never been Japanese," because China ceded it to Japan in the Treaty of Shimonoseki in 1895.

Further, if Ma's statement was true, it would contradict his claim that Taiwan was returned to China pursuant to the Potsdam Proclamation. If Taiwan island was never Japanese, then why would it need to be returned to China? The statement is not worthy of further rebuttal.

This article will comment on his claim that Taiwan was returned to China pursuant to the Potsdam Proclamation. Before examining his claim, a brief review of the historical background of these declarations is in order.

In 1941, Japan declared war against the US, which then led the Allied Powers engaging Japan in the Pacific War. In 1943, while the Pacific War was in progress, US president Franklin Roosevelt, British Prime Minister Winston Churchill and Generalissimo Chiang Kai-shek (蔣介石) met in Cairo to discuss the strategy for defeating Japan.

On Dec. 1, 1943, the three governments issued a joint statement known as the Cairo Declaration. The Cairo Declaration states, "The Three allies covet no gain for themselves and have no thought of territorial expansion. It is their purpose that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. The aforesaid three great powers are determined that in due course Korea shall become free and independent."

In 1945, after Germany surrendered, US president Harry Truman, Churchill and the Soviet leader Josef Stalin conferred in Potsdam on the postwar disposition of Europe. During the conference, the heads of governments of the US, UK and China (despite Chiang's absence from the conference) issued the "Proclamation Defining Terms for Japanese Surrender," which as part of the Potsdam Declaration confirmed the Cairo Declaration with respect to the future of Formosa and Pescadores (collectively, "Taiwan island").

The Potsdam Proclamation states that "the terms of the Cairo Declaration shall be carried out."

The intention of the three government leaders expressed at the time of issuing these two declarations was that Taiwan island should be returned to China after the war. That point is not disputed here. However, the nature and the legal effect of these declarations in international law are not as clear, and will be analyzed below.

First, the two declarations, by their nature, are not binding on the declaring governments or their succeeding governments. A joint declaration of two or more governments, like a communique, is often used to express the common foreign policy or the common intent of those governments. Declarations are not treaties. They certainly do not have the characteristics of a contract in private law. They do not create a binding obligation on the governments involved, let alone on the states which the governments represent.

The Cairo Declaration was only a statement of the three governments' common intent. Although there was an intent to return Taiwan island to China after the war ended, Churchill, who took part in the Cairo Declaration, said the declaration "contained merely a statement of common purpose."

British foreign secretary Anthony Eden also said that the declaration was "merely a statement of intention that Formosa should be retroceded to China after the war," an event "that never materialized."

Similarly, in May 1955 the British joint under-foreign secretary Robin Turton said that "the Cairo Declaration was couched in the form of a statement of intention, and as it was merely a statement of intention, it is merely binding in so far as it states the intent at that time."

With the major parties involved in the Cairo Declaration clearly indicating that it was not meant to be binding, it is untenable to hold it so. The Potsdam Proclamation, like the Cairo Declaration, is also a statement of intention.

Besides, if the Cairo Declaration was not binding on the governments involved, the Potsdam Proclamation, which refers to it, cannot be binding upon the governments either.

Second, the two declarations did not effectuate a transfer of title to Taiwan island. At the time when the two declarations were issued, Japan had not yet surrendered. The Allied Powers were winning the war, but had not yet defeated Japan. A general rule of law is that one cannot give something that one does not have.

Even assuming, for the sake of argument, that the declarations were considered contractual promises to offer Taiwan island to China, they could not effectuate a transfer of Taiwan island to China. None of the three governments had title to Taiwan island at the time of the declarations. Nor could they force Japan to transfer the title to Taiwan island before Japan surrendered. Such a transfer could have been made at a postwar settlement in a treaty only after Japan surrendered.

At a congressional hearing held in May 1951, General Douglas MacArthur said "there were certain agreements that were entered into at Yalta, and other places, but legally Formosa is still a part of the Empire of Japan." Eight years after the Cairo Declaration, MacArthur, who assigned the task of post-surrender administration of Taiwan to Chiang, still said that Taiwan island was Japan's territory, clearly implying that neither the Cairo Declaration nor the Potsdam Proclamation nor anything else effectuated a transfer of Taiwan island to China. Turton agreed, saying the "Cairo Declaration cannot by itself transfer sovereignty."

The Allied Powers initially intended to return Taiwan island to China after the war. But the ROC government had become embroiled in a civil war with the Chinese Communists, who forced Chiang's government to Taiwan island and established a new government, the People's Republic of China (PRC), in 1949.

After the Korean War erupted, the UK and the US governments changed their positions on Taiwan's fate.

They changed their positions because, by aiding North Korea's invasion of South Korea, the PRC violated the basic principles of non-aggression and no territorial ambitions proclaimed in the Cairo Declaration.

In May 1951, British foreign secretary Herbert Morrison made the following policy statement in the House of Commons: "The Cairo Declaration also proclaimed the intention that Korea should in due course become free and independent. It also expressed acceptance of two principles: non-aggression and no territorial ambitions.

British Prime Minister Benjamin [Atlee] went on to remark [on Dec. 14, 1950] that until China shows by her action that she is not obstructing fulfillment of the Cairo Declaration in respect of Korea and accepts the basic principle of that Declaration, it will be difficult to reach a satisfactory solution of this problem [of Formosa]."

In February 1955, Churchill, who had been one of the signatories to the Cairo Declaration more than a decade earlier, said, "since [the Cairo Declaration] was made a lot of things have happened. The problem of Formosa has become an international problem in which a number of other nations are closely concerned."

The following day, the New York Times printed the headline, "Cairo Formosa Declaration Out of Date, Says Churchill."

The US government also changed its position with respect to the sovereignty over Taiwan because of Chinese aggression. One day after North Korea invaded South Korea, Truman changed his position. On June 27, 1950, he issued the Statement on Korea, in which he stated: "The Communists' attack upon Korea makes it plain that communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war. The occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to US forces performing their lawful and necessary functions in that area."

Although the Chinese Communists had not yet formally entered the Korean War at the time, Truman regarded North Korea's invasion of South Korea as part of a broad Communist attack scheme, and considered the Chinese Communist's invasion of Taiwan imminent. He ordered the US Seventh Fleet to prevent any attack on Taiwan by the Chinese Communists.

In a television interview in September 1950, US secretary of state Dean Acheson said: "The Cairo Declaration declares that Formosa should be returned to China. It also declares that Korea should be free and independent. In most of the discussions that we have about Formosa, we are reminded about the Formosan part of the Declaration, and both the Chinese and the Russians forget about the Korean part of the Declaration. Surely, the Declaration of Cairo is an important factor to be taken into consideration in the future settlement. But the future settlement is for the future."

The following year, the Allied Powers forced Japan to renounce its title to Taiwan in the Treaty of San Francisco, without designating a beneficiary. China was not given Taiwan island in the Treaty of San Francisco nor in any other treaty.

From the above analysis, it is clear that neither the ROC government nor the PRC government can claim title to Taiwan island on behalf of China based on the Cairo Declaration or the Potsdam Proclamation.

After the Treaty of San Francisco entered into force, Taiwan became a territorial entity and has belonged to no other country in the world.

Frank Chiang is president of the Taiwan Public Policy Council in the US and professor of law at Fordham University School of Law. The quotations and the theories discussed in this article are adapted from his articles "State, Sovereignty, and Taiwan" (Fordham International Law Journal, 2000), "The Territorial State and Taiwan" (The Comparative Law Journal of Japan, 2003), and "One-China Policy and Taiwan" (Fordham International Law Journal, 2004).

Sadly, Taiwan is still not a state

By Frank Chiang, reprint from Taipei Times, Mar 12, 2005

On Feb. 24, President Chen Shui-bian (陳水扁) and People First Party Chairman James Soong (宋楚瑜) issued a joint statement, which states "According to the Constitution of the Republic of China (ROC), our country's status and position is defined as the de facto and de jure status quo existing between the two sides of the Strait."

In the statement, Chen also pledged that "during my term as president, I will not declare independence, ... [and] will not promote a referendum to change the status quo on the issue of independence or unification."

Last year, former US secretary of state Colin Powell gave an interview during which he made two remarks that have drawn protests from many quarters -- "Taiwan is not independent. It does not enjoy sovereignty as a nation," and "We want to see both sides not take unilateral action that would prejudice an eventual outcome, a reunification that all parties are seeking."

Angered Taiwanese Americans rebutted Powell's remarks in open letters. They claimed that Taiwan is a sovereign state and that the people of Taiwan oppose unification with China.

Last month, Premier Frank Hsieh (謝長廷) alluded to the status of Taiwan as, "one China under the ROC Constitution."

These remarks and the claim came down to two questions: Is Taiwan a sovereign state? And do the Taiwanese Americans and Hsieh view the status of Taiwan differently?

Both questions were answered by Chen in the joint statement. The statement made no claim that either the ROC or Taiwan is an independent state. On the contrary, Chen emphatically stated that he "will not declare independence."

According to international law, Taiwan is not a state. Although many people have claimed that Taiwan is a "de facto state," such a status does not exist in the theories of states or international law.

A political entity is either a state or it is not. There is nothing in between.

The situation of Taiwan is similar to that of Palestine. Palestine has people, territory and a governing authority formed under a written Constitution, which provides for a president elected by the people and a prime minister elected by a parliament.

The Palestinian Authority said several times in the past that it would declare the establishment of a state at a future date.

It has not done so because Israel has threatened to annex the Palestinian land under its occupation if Palestine declares statehood without a peace accord with Israel.

Since Palestine has not declared statehood, no one, including the Palestinian Authority, calls Palestine a state or a "de facto state."

Taiwan cannot be a state because it has not declared establishment of a new state. "State" and "sovereignty" are inseparable concepts. Each state is a sovereign, and only states have sovereignty.

Some people hold that "Taiwan's sovereignty resides with the 23 million people." This could only be true if Taiwan had sovereignty. The position has no support in international law because Taiwan is not yet a state.

Powell's claims that "Taiwan is not independent" and "It does not enjoy sovereignty as a nation" are unfortunately true.

The ROC was a government, not a state. It was established to succeed the Qing Dynasty as the government of the state of China.

When a national revolution succeeded in overthrowing the Qing government, the revolutionaries established a new government called the "Republic of China" in 1912 to succeed the Qing.

The state of China remained unchanged, even though the name "Republic of China" was sometimes used as the name of the state.

In 1945, after Japan was defeated, the US assigned Chiang Kai-shek's (蔣介石) ROC government to accept the formal surrender of the Japanese army in Taiwan.

In 1947, the ROC government was reorganized when the ROC Constitution was promulgated in Nanking.

Later, Chiang and his government lost the civil war to the Chinese Communists and took refuge in Taiwan in 1949. The ROC government today is still organized under the Nanking Constitution.

People who say that Taiwan is a state form two camps.

One camp claims that the ROC is a state representing Taiwan. The other camp claims that Taiwan itself is a state.

But the ROC is not a state because it has never transformed itself from being a government of China into an independent state.

In fact, none of the ROC presidents, including Lee Teng-hui (李登輝) and Chen Shui-bian, have denied that their presidency was sanctioned by China's Nanking Constitution.

Taiwan is not a state either. Fundamentally, Taiwan is not a state because there is no government constituting the government of the state of Taiwan. Although there is a governing authority in Taiwan -- the ROC government -- it is a government of China in exile.

The ROC government is not the government of the state of Taiwan because that government was organized under China's Nanking Constitution. A government of the state of Taiwan cannot be organized under the authority of another country's Constitution.

If the ROC government were the government of the state of Taiwan, it should have, pursuant to the UN Charter, applied to the UN Security Council for the state of Taiwan to join as a new UN member.

Instead, the ROC government requested that the UN General Assembly "recognize the right of the 23 million people of Taiwan to representation in the United Nations system."

What the ROC government is asking the UN General Assembly for is dual representation in China's seat.

Further evidence that Taiwan is not a state is that its own government does not claim that Taiwan is a state. Why did it not apply for membership at the World Health Organization? Instead, it applied to be an observer. And why did it apply to join the WTO not as the state of Taiwan? Instead, it applied as "The Customs Territory of Taiwan, Penghu, Kinmen and Matsu, [also] called Chinese Taipei."

Although some would argue that this was done to avoid opposition from China, the ROC government should not have been so cautious because at the time, China was not yet a member of the WTO.

Recently, in trying to transform the ROC government into the state of Taiwan, some have come up with a few vague slogans. Some, including Chen, claim, "Our country is the Republic of China; its short name is Taiwan."

Adopting a short name "Taiwan" for "ROC" does not make the ROC a state. Its purpose is to justify the ROC as a legitimate state.

But such legitimacy is illusory because eventually, like an adopted algebraic symbol, "Taiwan" will be replaced by the true name, the "ROC," which is a government in official documents.

Some people say that Taiwan is a state and that the name of the state is the "Republic of China (Taiwan)." They claim that "ROC" equals Taiwan.

Such a claim is intriguing because "Taiwan" in its narrow sense means the island of Taiwan, or Formosa, and in its broadest sense means a territorial entity or a political entity. Joining the two, the "ROC" and "Taiwan," will not amount to a state.

If Taiwan is a state, it is the only state where its people cannot agree on its existence. And those who have claimed its existence cannot agree on the name of their country.

Hsieh's remarks "one China under the [ROC] Constitution" will silence any claim that the ROC is a state or that Taiwan is a state. Chen's joint statement confirmed the new premier's remarks.

Powell may have said something which many people don't like to hear.

But if his remarks reflect the view of other nations in the international community, then maybe they will provide the people of Taiwan with an opportunity to re-examine the difficult situation in which they find themselves.

The Chinese government claims that Taiwan is a part of China. Last Dec. 17, Beijing announced that the National People's Congress would enact an "anti-secession" law. It intends to use this law to intimidate the "Taiwan independence" movement.

Any attempt by Beijing to apply a domestic law to Taiwan is based on the claim that Taiwan is part of China. Does Hsieh's statement of "one China under the [ROC] Constitution" not echo Beijing's claim?

The island of Taiwan is not Chinese territory.

Because China ceded the islands of Taiwan and Penghu to Japan under the Treaty of Shimonoseki in 1895, China has never regained title to the islands under means recognized by international law.

After Japan renounced title to the islands of Taiwan and Penghu without designating a transferee in the Treaty of San Francisco, Taiwan did not revert to China. The island has become a territorial entity not subject to any sovereignty.

Under international law, Taiwan can become a state only by a declaration of the establishment of a state, with its own government that represents the new state in the international community.

Powell's second remark is presumably based on his perception that Taiwan's governing authority seeks eventual unification with China.

Hsieh's recent remarks and Chen's joint statement may have vindicated Powell's position.

If Powell misunderstood the collective mood of the people of Taiwan, the solution is easy.

All the government in Taiwan has to do is to announce that the people of Taiwan have no desire to unify with China.

Frank Chiang is president of Taiwan Public Policy Council, a US think tank, and professor of law at Fordham University in New York.