One China Policy legal review claims the Allies have title to Taiwan

Currently there are disputes about the "One China" policy and what it means. One, admittedly older, penumbral style legal analysis of the One China policy and what it purportedly means runs through a historical examination of the events leading to the current ambiguity or dissimulation, if you prefer, giving rise to the dispute over what the One China policy means. Frank Chiang's law review article merits review.* Some no doubt will find the legal discussion supportive of their view that the One China policy means something other than one China. In other words those who agree that Taiwan is not in fact Chinese territory may like the article. The opinion expressed here, is that the logic applied in the legal thesis is specious and fanciful, satisfying foreign policy objectives of the US, UK, Japan, and Taiwan separatists.

*One-China Policy and Taiwan, Y. Frank Chiang (2004)
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1950&context=ilj

(Source- USNI Oct. 4) US aircraft carriers Vinson and Reagan with HMS Queen Elizabeth, and the Japanese small carrier Ise. Taiwan News reported these ships operating north of Taiwan, October 3 and 4, with 13 other allied warships. .:
https://www.taiwannews.com.tw/en/news/4306367


After reading the detailed history, in Chiang's lengthy law review article, it appears that the west engaged in the kind of prevarication and equivocation with China that characterized prior agreements with Cuban and Philippine independence fighters and indigenous American peoples and Hawaiian natives before that. One Asian statesmen not too long ago, referred to a US diplomat as a long haired general on horseback, a sharp characterization of how current US Asian policy does resemble earlier treatment of indigenous Americans in the not too distant past. Present US equivocation (or doubletalk) on the One China policy by the Biden administration, clearly takes the form of 19th Century gunboat diplomacy. The administration attempts to treat China as some third rate power that it can it fool and intimidate, while making transparently false representations that it isn't seeking confrontation.

Japan's war against China began in 1894 in the Sino-Japanese War. It was this Japanese war that resulted in the Treaty of Shimonoseki and Japan's annexation of Taiwan. This US/UK/Japanese/Taiwan legal theory postulates that this treaty conveyed legitimate "title of Taiwan" to Japan. Further, when the KMT occupied Taiwan after Japan's defeat in WW II they did not get "title" to Taiwan but were only authorized by MacArthur to administer Taiwan as the "agent of the Allied Powers." (Not suprisingly the western diplomats, according to the account, deprived the KMT of their own agency with a treaty device). While Japan was divested of its "title" to Taiwan, after its defeat in WW II, title did not then vest in the KMT because the provisions of the Treaty of San Francisco did not give "title" to Taiwan to them. Nor did any subsequent treaty. According to the author, the Allied Powers were the vested successors in interest to the Taiwan "title" and this really hasn't changed since. At one point in this discusion, Chiang admits his view that as a practical matter, "title" to Taiwan, actually rests in the United States. This imperial theory posits that the promises made to China concerning the return of Taiwan to China at Cairo and Potsdam were not implemented because leaders of the US and UK didn't want to give it to them and expressions of the Allies intent at those wartime conferences were allegedly without legal significance or import. Note that no equitable theory is raised. This contrived legal argument is then used to undermine the One China policy statements in the three communiques issued by more recent US presidents. The claim purports to distinguish the "acknowledgement" by the US of the PRC's position on Taiwan, contending that an "acknowledgement" is not an "acceptance of" or "acquiescence to" the PRC position that Taiwan is part of one China.

The attempted repudiation of promises made at Cairo and Potsdam to China, which the US and UK left out of the San Francisco Treaty while upholding nonsense legalisms about Shimonoseki, demonstrate the 19th Century imperial mindset that potentially could result in a major war. Americans in general can't live with indefiniteness. Consequently, the current public sentiment, exploited by the administration and the Pentagon for that matter can simply be expressed as, "US right and China wrong." This western attitude of superiority is historically racially based and ethnocentric in nature. Nevertheless, the days of the great white fleet are long over, Americans just don't realize it yet. The typical American response in support of Taiwan independence now, and rejection of the One China policy is that too much time has passed, that was then, this is now. No one can really make a persuasive adverse possession argument, because the mainland government never gave up its national claim to Taiwan.

Frank Chiang's law review article isn't very persuasive. Not surprisingly, parts of it previously appeared in some Japanese journal. If you follow the logic of the Shimonoseki argument, the Chinese should take Taiwan by force because according to the author of this law review article that's a legitimate way to get "title," by force. Take possession at gunpoint, then force the former political leadership, under duress, to sign a "treaty." In conclusion, the author goes on to talk about the principle of self determination and how the US and others should call for a UN sponsored referendum on independence. Similar shenanigans preceded the US-Vietnam War and the Korean War which were manipulated by the US as exigencies arose. The US divided those countries and laid the groundwork for devastating wars in which millions died. Such a plan would be vetoed by the Security Council today, and wouldn't even pass in the General Assembly.