The Treaty of San Francisco did not mention upon what country the sovereignty of Taiwan would rest. Many people thus claim, as per international law, the legal status of Taiwan is undetermined. However, some people argue that the Japanese Instrument of Surrender explicitly agreed to fulfill the terms of the Potsam Declaration, which in turn incorporated the Cairo Declaration, which stipulated Taiwan's return to the State of China. The problem is, the said declarations were not binding by themselves. What country holds the sovereignty of Taiwan now? Is Taiwan's legal status still undetermined?

  • This is a meaningless question. Obviously Taiwan is a sovereign country, de facto, regardless of China's nonsensical claims to the contrary. – jamesqf May 24 '20 at 16:37
  • The question is about Taiwan's legal status. Of course everyone knows it's de facto independent. What matters here is its de jure status. – Apollyon May 24 '20 at 23:56
  • When "sovereignty" and "treaty" are mentioned in the same context, what matters is the legal status. Every educated person should have known that. – Apollyon May 25 '20 at 0:05
  • At the level of nations, "legal status" is meaningless, since there is no means of enforcement. – jamesqf May 26 '20 at 4:09
  • Just because there is no means of enforcement does not mean it is not a question for international law. The PRC will have solid legal grounds to annex Taiwan if the latter is a de jure part of China. – Apollyon May 26 '20 at 5:14

Short answer is "China"

It's therefore an internal matter for China to sort out. It just happens that there are two governments that have opposing claims to be the "Government of China", and neither one looks likely to cede the Chinese territory that it holds to the other any time soon.

A matter in international law is "determined" if all relevant parties agree on the determination. As both the ROC and PRC are relevant to Taiwan, and they don't agree, the status is undetermined. The US and other powers have made it clear over the past 70 years that they have no interest in getting involved, but are quite happy to work with both governments.

It's pretty clear that the Japanese only agreed to return Taiwan to "China" and not to the PRC or the ROC government. Nothing in the various treaties binds any country's right to recognise or not any government on the Chinese mainland or on Taiwan.

No Chinese government was a signatory to the Treaty of San Fransico, so cannot be bound by any of its terms.

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    In what treaty did Japan return Taiwan to China? – Apollyon May 24 '20 at 9:36
  • The treaty of San Fransico, Japan renounced all claims to territories that it had occupied before and during the war. The treaty didn't say "We give Taiwan to "China"", but the whole treaty was full of UN inspired "self determination" and so it is implied that the Chinese people would have the right to their own country. The only other power in the region was the USA and the USA clearly has never made any claim over Taiwan. Nor Britain, Nor Russia. So the San Fransico treaty returned Taiwan to "China=The Chinese people" under the principle of self determination of the Chinese people to choose – James K May 24 '20 at 12:13

I believe this question shows some misunderstanding about what international law is and what it is not.

By and large, international law is the customary law about how sovereign nations deal with each other. Historically it did not care much how nations deal with individuals or how nations arrange their internal affairs. This concept is known as Westphalian Sovereignty, after the treaties which ended the Thirty Years' War.

International agreements which restricts how nations can deal with their citizens are more recent, like the Helsinki agreement, the Responsibility to Protect, or the International Criminal Court. Their ability to override national sovereignty is far from certain.

So the question becomes: Is there one China or two?

De facto, there are clearly two sovereign Chinas. But at this time both of them consider that there is only one China, that the Chinese Civil War is not really resolved, and that the other government which controls part of China is not quite legitimate. As long as both Chinas agree that legally, there is only one China, there is only one China. Nobody else has the "standing" to complain.

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    But the question is about Taiwan's legal status, not its citizens' status, and about the State of China (not about which regime is legitimate). – Apollyon May 24 '20 at 9:51
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    Is there any legal reason to believe Taiwan is part of the State of China, be it represented by the ROC or PRC? – Apollyon May 24 '20 at 9:52
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    @Apollyon, both the ROC and the PRC claim that there is one China, even if they argue about the details. If the two agree on this much, there is no reason to doubt them. Even if practically both are acting like separate nations in most regards. – o.m. May 24 '20 at 9:54
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    Someone claiming to own something does not mean they have legal grounds for their claim. What legal grounds does the ROC (or PRC) have for their claim? – Apollyon May 24 '20 at 9:56
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    @Apollyon, here you are mixing individuals within a state (or within a hypothetical just society) with sovereign nations. What makes nations sovereign is murky, to say the least, but I can think of no third China which might have claims on Taiwan and individuals cannot apply. That leaves the PRC and ROC to agree among themselves. – o.m. May 24 '20 at 9:59

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