Re: Gilley's 'Finlandization' model - valid or off the mark?

[cfimages]

From ludahai's link

(b) Japan renounces all right, title and claim to Formosa and the
Pescadores

If this is the basis for Taiwan being undetermined it doesn't really hold, does it? Upon Japan renouncing rights and not specifying who it goes to, Taiwan either has to be considered to a) belong to the then-current administrators (the ROC), b) be abandoned in which case it goes to the ROC under the same principle as squatters rights or c) be returned to the former owners (Qing which was succeeded by the ROC). I don't get how anyone can say the status was and still is undetermined, especially almost 60 years after the treaty when a functioning government has been in place for the entire time. It makes about as much sense as the claim that it belongs to the PRC.

[Mucha Man]

From ludahai's link

(b) Japan renounces all right, title and claim to Formosa and the
Pescadores

If this is the basis for Taiwan being undetermined it doesn't really hold, does it? Upon Japan renouncing rights and not specifying who it goes to, Taiwan either has to be considered to a) belong to the then-current administrators (the ROC), b) be abandoned in which case it goes to the ROC under the same principle as squatters rights or c) be returned to the former owners (Qing which was succeeded by the ROC). I don't get how anyone can say the status was and still is undetermined, especially almost 60 years after the treaty when a functioning government has been in place for the entire time. It makes about as much sense as the claim that it belongs to the PRC.

Ever heard of property being held in trust until final ownership is decided? Ever hear of someone managing a property but not having ownership? Not much difference here.

The problem would be so much simpler if the KMT would allow the constitution to be changed so that the ROC only referred to Taiwan. Or if they simply acted as it it did as was policy from Lee Teng Hui through CSB.

[cfimages]

From ludahai's link

(b) Japan renounces all right, title and claim to Formosa and the
Pescadores

If this is the basis for Taiwan being undetermined it doesn't really hold, does it? Upon Japan renouncing rights and not specifying who it goes to, Taiwan either has to be considered to a) belong to the then-current administrators (the ROC), b) be abandoned in which case it goes to the ROC under the same principle as squatters rights or c) be returned to the former owners (Qing which was succeeded by the ROC). I don't get how anyone can say the status was and still is undetermined, especially almost 60 years after the treaty when a functioning government has been in place for the entire time. It makes about as much sense as the claim that it belongs to the PRC.

Ever heard of property being held in trust until final ownership is decided? Ever hear of someone managing a property but not having ownership? Not much difference here.

The problem would be so much simpler if the KMT would allow the constitution to be changed so that the ROC only referred to Taiwan. Or if they simply acted as it it did as was policy from Lee Teng Hui through CSB.

I'd have thought legally trust or management would need an official legal agreement stating that and declaring who the management party was, which doesn't exist. But then I'm not an international lawyer so I don't really know.

It'd be great if they would change the constitution but I think that would provoke a very bad response from china, which is in nobodys interest. Keeping the status quo is the best option now IMHO.

[ludahai]

I never claimed that it would. If you had read my explanation of the topic, it should confirm the right of Taiwan's people to self-determination and then the people of Taiwan should make the determination for themselves.

Once again, you obviously did not read my explanation of the situation. The ICJ can issue a ruling interpretating the peace treaty that a legal transfer never was made to the ROC and that China does not have a legal claim to the island.

On what basis?

The ICJ is not going to confirm Taiwan's self-determination. Politics aside, there's no legal basis for it. Taiwan not having been transferred does not equate self-determination. And even if I assume for the sake of argument that ICJ accepts the case and rule in your favor, it changes nothing, because (and perhaps you're overlooking this) Taiwan ALREADY HAS self-determination. 8 years of DPP presidency is proof enough of this. Even if the ICJ is to essentially rule that Taiwan has the right to hold elections, all this does is bring us back to the status quo, as Taiwan is already holding elections.

So you'd be asking for something you already have and something that has no legal basis. It's hard to imagine the ICJ taking this case seriously.

This is where you are wrong and obviously you are not familiar with similiar instances where prior sovereigns left territories without designating a successor state.

And yes, the ICJ would almost certainly take the case so long as it is filed properly.

[ludahai]

From ludahai's link

(b) Japan renounces all right, title and claim to Formosa and the
Pescadores

If this is the basis for Taiwan being undetermined it doesn't really hold, does it? Upon Japan renouncing rights and not specifying who it goes to, Taiwan either has to be considered to a) belong to the then-current administrators (the ROC), b) be abandoned in which case it goes to the ROC under the same principle as squatters rights or c) be returned to the former owners (Qing which was succeeded by the ROC). I don't get how anyone can say the status was and still is undetermined, especially almost 60 years after the treaty when a functioning government has been in place for the entire time. It makes about as much sense as the claim that it belongs to the PRC.

Not true. Western Sahara did NOT to back to its previous owners nor did East Timor when both were abandoned by the Spanish and Portuguese respectively. If you knew anything about international law, you would know your statement makes no sense and has no basis in law. You need to find a previous example in which there was a similar situation. However, history supports my claims far more than yours. 1. Treaties are required to transfer territory from one state to another. 2. squatters rights only refer to territory that was not previously a part of a recognized state and 3. Taiwan's status is clearly undetermined with Japan's abandonment of the territory and as such, the Taiwanese have the right to self-determination under modern international law. China (ROC or PRC) may not derive any rights from the abandonment of the territory.

[Mawvellous]

Not true. Western Sahara did NOT to back to its previous owners nor did East Timor when both were abandoned by the Spanish and Portuguese respectively. If you knew anything about international law, you would know your statement makes no sense and has no basis in law. You need to find a previous example in which there was a similar situation. However, history supports my claims far more than yours. 1. Treaties are required to transfer territory from one state to another. 2. squatters rights only refer to territory that was not previously a part of a recognized state and 3. Taiwan's status is clearly undetermined with Japan's abandonment of the territory and as such, the Taiwanese have the right to self-determination under modern international law. China (ROC or PRC) may not derive any rights from the abandonment of the territory.

You have ignored the fact that the ICJ has no compulsory jurisdiction unless both parties have agreed to submit to its decision. It could of course issue an advisory decision, as it did with the Western Sahara in 1975, but this would not be binding. However, for political reasons, it is very unlikely to get involved even this far.

[Mucha Man]

I'm in complete agreement with Marvelous on this. Taiwan's status is a political issue and not a legal one. China would never agree that the ICJ has jurisdiction over what it considers an internal matter.

It's a non-starter.

[Taffy]

I'm in complete agreement with Marvelous on this.

Is this a portent of the End of Days?

[Mucha Man]

I'm in complete agreement with Marvelous on this.

Is this a portent of the End of Days?

He he. Apparently not as even when M agrees with me he will argue for 4 pages otherwise.

[Mawvellous]

I'm in complete agreement with Marvelous on this.

Is this a portent of the End of Days?

He he. Apparently not as even when M agrees with me he will argue for 4 pages otherwise.

I agree with Muzha Man on more things than you think.
We actually agreed 4 pages ago that the Taiwan issue is a political issue, which is why we don't attach any importance to the legal arguments of Hartzell and Ludahai.


But just for fun. From an international law perspective, which one of them is right? Is Taiwan occupied territory under the United States Military Government as Hartzell claims, or its status undetermined as Ludahai claims?