As most people know, when traveling abroad native Taiwanese people carry passports which identify them as citizens of the “Republic of China.” These passports are issued by the Ministry of Foreign Affairs in Taipei, Taiwan.
The Ministry of Foreign Affairs in Taipei is an agency of the Republic of China (ROC) government. Up to the end of the 1940’s, the capital of the ROC government was in Nanjing, China, but in December of 1949 it moved to Taipei, Taiwan. As of Jan. 1, 1979, the United States de-recognized the ROC as the legal government of China, recognizing the People’s Republic of China (PRC), founded in Beijing on Oct. 1, 1949, in its place. In other words, at the present time, the US does not maintain diplomatic relations with the ROC regime on Taiwan.
Under US law, the legal significance of the word “passport” is defined in the Immigration and Naturalization Act (INA) of the United States.
Reference: INA 101(a)(30) The term "passport" means any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country.
Under established INA procedures, State Dept. determinations as to what agency is or is not a competent authority to issue a “passport” do not involve any considerations regarding whether the United States has given "official diplomatic recognition" to the regime in question. Additionally, there may be additional political considerations in evaluating the legality or legitimacy of some issuing agencies' passports in the world today. However, according to the Senate ratified San Francisco Peace Treaty (SFPT) of 1952, the situation of Taiwan is very clear -- there is no way that the Republic of China's Ministry of Foreign Affairs can be construed as the competent authority for issuing passports to native Taiwanese persons under the Immigration and Naturalization Act of the United States, as specified in INA 101(a)(30).
Although the State Dept. frequently says that the totality of United States policy on Taiwan is contained in the Taiwan Relations Act, the three joint PRC-USA communiques, the One China Policy, and Executive Order No. 13104 of Aug. 15, 1996, this is incorrect. The SFPT is of a higher legal weight than any of these documents. Before we discuss the contents of this important treaty, we need to overview some of the history of the last 125 years.
Qing Dynasty ceded Taiwan to Japan in 1895
Taiwan had been ceded to Japan in 1895 Treaty of Shimonoseki. Hence after 1895, Taiwan was Japanese territory. In early August of 1945, the United States dropped two atomic bombs on Japan, and the Emperor announced his acceptance of an unconditional surrender. In General Order No. 1 of Sept. 2, 1945, General MacArthur directed Chiang Kai-shek of the ROC to go to the Japanese territory of Taiwan and accept the surrender of Japanese troops.
However, under the customary laws of warfare, recognized by all civilized states since the end of the Napoleonic era and codified in the Hague Conventions of (1907), accepting the surrender of Japanese troops didn’t mean that Taiwan suddenly became ROC territory, because transfers of the sovereignty of territory must be specified in a treaty.
To put this another way, MacArthur’s order did not give the ROC the authority to annex Taiwan and to institute mass naturalizations of all native Taiwanese people as ROC citizens. According to international law, the significance of the Japanese surrender ceremonies was only to mark the beginning of the military occupation of Taiwan. Military occupation does not transfer sovereignty.
Taiwan was Japanese territory up until April 28, 1952, when Japan renounced the sovereignty in the post war treaty. But this treaty did not award the sovereignty of Taiwan to Chiang Kai-shek's ROC. Article 2b of the SFPT specified:
Japan renounces all right, title and claim to Formosa and the Pescadores.
No “receiving country” was specified for this territorial cession. Hence, upon the coming into force of the post-war peace treaty, the status of Taiwan was “undetermined,” it didn’t belong to the ROC. That was the recognition of the forty eight nations who signed the SFPT.
What about the United States’ position on this issue? Some scholars hold that the ROC - USA Mutual Defense Treaty (MDT) of 1955 effectively changed the US government's position on the Taiwan sovereignty issue. These scholars claim that the MDT recognized ROC sovereignty over Taiwan.
The US Senate never agreed to such an interpretation however. In conjunction with the ratification of the 1955 MDT, a report issued Feb. 8, 1955 by the US Senate's Committee on Foreign Relations specified: "It is the view of the committee that the coming into force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores."
To avoid any possibility of misunderstanding on this aspect of the treaty, the committee decided it would be useful to include in this report the following statement:
