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作者 何瑞元   
Based on an in-depth overview of the historical and legal record, it is hard to understand on what basis the "ROC on Taiwan" can apply to join the United Nations as a sovereign nation. This is explained as follows.

"Formosa and the Pescadores" had been ceded to Japan in the 1895 Treaty of Shimonoseki. Hence, at the time of the founding of the Republic of China (ROC) in 1912, "Formosa and the Pescadores" belonged to Japan.

As late as the end of the 1930's, there were numerous references in the speeches of Mao Tse-dong that Taiwan was part of the Japanese Empire.

After the events of August 1945, Gen. Douglas MacArthur directed Chiang Kai-shek to go to Taiwan and accept the surrender of Japanese troops. Under international law, the surrender ceremonies only mark the beginning of the "military occupation" of Taiwan. It is well known that in the in the post-war San Francisco Peace Treaty, which came into effect April 28, 1952, Japan renounced the sovereignty of "Formosa and the Pescadores." Unfortunately for the supporters of the ROC however, this sovereignty was not awarded to the Republic of China.

In other words, at the most basic level, certain criteria will have to be met in in order to gain admittance to the United Nations as a sovereign state. For the ROC to prove its qualifications for membership in the United Nations as the legal goverment of Taiwan and the representative of the 23 milion people living there, three criteria appear most relevant.

First, the ROC would have to be able to produce an international treaty reference which (unequivocally) shows that the sovereignty of "Formosa and the Pescadores" has been transferred to the ROC.

Secondly, it would be necessary to prove that Taiwan has been officially "incorporated" into the territory of the ROC according to the procedures outlined in ROC domestic laws. As many people know, Article 4 of the Constitution of the Republic of China states 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."

Third, after fulfilling the above two conditions, it would then be necessary to show that a law was passed by the legislative branch (Legislative Yuan) of the ROC government (sometime in the mid-1950's) specifying the mass naturalization of all native Taiwanese persons as "ROC citizens."

In fact, none of these three criteria have been fulfilled. In other words, there are no specifications in any international treaty which verify that the sovereignty of "Formosa and the Pescadores" has been transferred to the ROC, there is no relevant Resolution of the National Assembly on record to justify the alleged "incorporation" of Taiwan into ROC territory, and the Legislative Yuan in Taiwan has never passed a law to provide for the mass-naturlaization of native Taiwanese persons as ROC citizens.

Is the failure of United Nations to grant membership to the ROC on Taiwan a violation of the UN Charter or the Universal Declaration of Human Rights? Based on the above simple analysis, the only possible answer to this question is "No, there is no justification for saying that at all."

As former Secretary of State Powell stated on Oct. 25, 2004: "Taiwan is not independent. It does not enjoy sovereignty as a nation."

This is clear under international law as well. Under the four recognized criteria of the Montevideo Convention, the ROC fails in regard to the categories of "permanent population" and "defined territory."

In other words, the title to the territory of "Formosa and the Pescadores" has never been transferred to the ROC, and hence the ROC cannot claim "ownership." Moreover, the conjecture that native Taiwanese people are "Republic of China citizens" is without legal basis either under international law or Taiwan law.

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