Hamletintaiwan wrote:raymondaliasapollyon wrote:
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; moreover, 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 1991 amendments of the constitution 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.
Why didn't they simply asked the people living on the island what they want to be?
I keep reading the UN, Japanese,the KMT and China, but, not at any point, they asked the inhabitants of that territory/whatever.
The Taiwanese people actually welcomed the KMT army and government when they first arrived on the island in 1945. They also actively cooperated with the KMT in adminstration and elections. The first legislative meeting in China had Taiwanese legislators, FYI. This can be considered an act of self-determination on the part of the Taiwanese people, and thus constitutes legal grounds for China's claim over Taiwan. After all, most Taiwanese people are ethnic Chinese, so they were eager to see Taiwan become part of China at that time, at least until they experienced the infamous 228 incident and the KMT's corruption.
Although few Taiwanese people call themselves Zhongguoren (Chinese in the political sense) nowadays, it wasn't the case a mere decade ago.
However, the embarrassing fact is, the Taiwanese people have never denied the ROC system; instead, they have embraced the ROC constitution, which treats Taiwan as part of China, through elections and other democratic measures. If the Taiwanese people themselves don't want to change, why should they expect others to treat Taiwan as a sovereign state?