Mawvellous wrote:In fact, the constitution was adopted on December 25 1946 and went into effect on December 25 1947 in mainland China. The ROC didn't move its temporary capital to Taiwan until 1949. The constitution then wasn't amended until 1991.
Amended yes . . . . . but what happened to the Resolution of the National Assembly?? That would be necessary to make Taiwan a part of the ROC national territory.
To elaborate on this, I must point out that Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." However, in regard to Taiwan having somehow become part of ROC national territory, there is no resolution of the National Assembly on record. (The rough drafts
of earlier versions of the ROC Constitution are still available, and they specifically failed to include "Taiwan" in the scope of Chinese national territory, while the other provinces were listed, see -- http://zh.wikisource.org/wiki/%E4%BA%94 ... 2%E8%8D%89
Moreover, international law specifies that "military occupation does not transfer sovereignty." The proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, thus indicating a clear intention and objective to annex Taiwan territory, is a war crime.
President Truman's remarks on Taiwan's undetermined status in June 1950 certainly show that there was no recognition of any so-called "Taiwan Retrocession Day."
More specifically, the Allies certainly did not recognize the extension of Chinese sovereignty over Taiwan at any time during the 1940s, 1950s, 1960s, 1970s . . . . . or any other period.
The problem with your point about the territory listed in the drafts of the ROC consitution is, the list was NEVER meant to be exhaustive; if you can read Mandarin Chinese, you will notice that the territorial list was ended with 'etc.'. So, theoretically, it did not exclude Taiwan. Of course, at that time, Taiwan was Japanese territory. So let us assume, to the benefit of those anti-KMTers, that it was unconstitutional on the part of the ROC to include Taiwan in its territory at that time.
However, a meeting was convened in December 1946 to CREATE a new constitution, not simply amend any previous one. It was called 制憲國民大會 (literally, "constitution-creating national assembly"). During that time, Taiwan did send a number of representatives to Nanjing, China through local elections. So, it is hard to deny that Taiwan is in the ROC constitution of 1946. In other words, the inclusion of Taiwan in Chinese territory was unconstitutional, only as far as the pre-1946 constitution is concerned. However, since the new constitution was adopted, the cause of unconstitutionality was eliminated. What's more, the additional clauses of the constitution of 1991 clearly treat Taiwan as a province. That makes Taiwan a province of China in terms of the ROC constitution.
As far as international law is concerned, it is true that the peace treaty with Japan signed at San Francisco indeed did not specify the recipient of Taiwan, when Japan renounced its sovereignty over Taiwan and Penghu. However, the treaty of Taipei specified that all people on Taiwan would become ROC nationals. If the Taiwanese people are ROC nationals, it follows that they have to obey the ROC laws and administrative and executive orders. Since Taiwan has been officially regarded as part of the territory by the ROC, the Taiwanese people in the capacity of ROC nationals have to regard Taiwan as part of the ROC as well. Thus, the undetermined status of Taiwan has been solved. In other words, although Japan renounced sovereignty over Taiwan, it returned Taiwan to the ROC in a rather indirect manner, through the treaty of Taipei.
In this connection, it is interesting to consider a passage in International Law authored by Malcom N. Shaw (2003).
Consider p. 211 in particular.
... In 1979 the US recognised the People's Republic of China as the sole and legitimate government of China.178 Accordingly, Taiwan would appear to be a non-state territorial entity which is capable of acting independently on the international scene, but is most probably de jure part of China...
Also, it should be mentioned that the UN yearbooks have long listed Taiwan as "Taiwan province of China". Since it is unlikely that the UN itself violates international law, I am forced to conclude, following Prof. Shaw, that Taiwan is most probably de jure part of China.