WORKING DRAFT VERSION
June 17, 2015
1) The Japanese surrender ceremonies of October 25, 1945 marked the conclusion of WWII in the Pacific, and Japanese sovereignty over Taiwan ended.
FALSE
The surrender does not mark the end of the war, but only the end of hostilities.
The date when Japanese sovereignty over Taiwan ended, and when the war was officially over, was April 28, 1952, when the San Francisco Peace Treaty came into effect.
In other words, the general rule is that -- the state of war continues until some sort of formal peace arrangement is made.
Without recognition of this fact, the issues of when military occupation begins, and when it ends, the effective dates for any cessions of territory and transfer of territorial sovereignty, when the nationality of the local populace becomes changed, etc. become subject to endless argument.
Reading through dozens of reports on Taiwan history and legal issues, even those written by supposed “experts” in Asian affairs, we continually find this mistake regarding the recognition of the “end of the war.” We must seriously recommend that all perso ns interested in talking about Taiwan’s legal status first spend some time researching military law and the laws of war of the post-Napoleonic period.
Taiwan’s legal status in the modern era is directly related to entire period of WWII in the Pacific, and those persons who only have expertise in civilian legal issues continually fail to see the whole picture.
2) The transfer of Taiwan’s territorial sovereignty to China was completed via the holding of formal Japanese surrender ceremonies in Taipei.
FALSE
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The Japanese surrender ceremonies in Taiwan on Oct. 25, 1945, only marked the beginning of the military occupation. International law specifies that “military occupation does not transfer sovereignty.” We may ask: What is the legal status of occupied territory? It is convenient to answer this question by saying that occupied territory has not reached a final political status. Therefore we may postulate that military occupation is a period of “interim status.”
Another question might be: Is there any period of time after which the occupying forces may claim the territory as their own, and assert a legal annexation? The answer is No. In the post-Napoleonic world, the transfer of territorial sovereignty can only be done by making the relevant specifications in a peace treaty.
Despite large amounts of Chinese propaganda to the contrary, the Allies did not recognize any transfer of Taiwan’s territorial sovereignty to China upon the Oct. 25,
1945, surrender ceremonies in Taiwan. For more authoritative information on this aspect see our videos
The Truth of Oct. 25, 1945
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3) The Republic of China moved its central government to Taiwan in
December 1949, and thus became the island’s legal government.
FALSE
WWII in the Pacific ended in late April 1952. Before this time, Taiwan was still sovereign Japanese territory. So, we will want to ask: What was the situation in
December 1949, when the Republic of China moved its central government to occupied Taiwan?
We can answer this straightforwardly. By moving its central government outside of Chinese national territory in December 1949, the Republic of China was, for all intensive purposes, fleeing into exile. Hence, at that point, the
Republic of China immediately became a government in exile.
What are the international norms regarding how a government in exile can gain full legitimacy in its current location of residence? In fact, international law does not recognize any procedures, course of action, or methodology whereby this
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can be accomplished.
Hence, for the Republic of China to regain international legitimacy, it would have to move back to its former capital of Nanjing, China, and resume governance there. The chances of that happening are essentially zero.
4) Taiwan was awarded to China in the post-war WWII peace treaties.
FALSE
This point is fully explained in the Starr Memorandum of July 13, 1971, issued by the United States Dept. of State. Among other things, It says:
. . . technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan.
When dealing with Taiwan, some people may ask why we always look to the statements and analysis of US government officials, or why we consider US officials’ remarks to be authoritative. We can answer that question by asking another question, which is -- Why is the Japanese flag not flying over Taiwan today? The
Japanese flag did not come down due to any actions of the Republic of China’s armed forces. During the period of WWII in the Pacific, the record shows that the Republic of China military forces made no attacks against Taiwan or the four main Japanese islands whatsoever. All attacks were made by the military forces of the United
States.
Of course, Chinese history books always fail to mention such details as these.
5) The military occupation of Taiwan ended in 1952.
FALSE
After war, the military occupation of territory separated from the mother country via the specifications of a peace treaty does not end with the coming into force of the peace treaty. The US Supreme Court has ruled on this issue on many occasions.
Military occupation is conducted under military government . Hence, if
Taiwan is occupied territory, we would expect to find some specifications about
“military government” in the San Francisco Peace Treaty.
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Indeed, the relevant specifications are quite clear. The treaty directly stipulates
United States Military Government (USMG) jurisdiction over Taiwan. Has the US
Executive Branch enforced this provision? No, the Executive Branch officials have treated the San Francisco Peace Treaty as a “lost treaty” ….. and have instead concentrated on selling military arms to a government in exile on Taiwanese soil – the
Republic of China.
Under relevant US Supreme Court precedent, Taiwan may be aptly described as “foreign territory under the dominion of the United States.”
Accordingly, it falls under the “common defense” clause of the US Constitution.
Viewed in this way, it should be no secret that US defense companies would find a much larger market for their equipment, construction projects, defense services, etc. if they would urge the US Executive Branch to follow the specifications of the SFPT straightforwardly, and have the US Dept. of Defense take full responsibility for Taiwan’s
“national defense” needs directly. This, of course, would include personnel, equipment and everything else.
6) The Republic of China is the occupying power of Taiwan, hence its government officers can decide how to make all laws and regulations.
The Republic of China is only exercising delegated administrative authority for the military occupation of Taiwan. The “occupying power” or more properly the
“(principal) occupying power” is the conqueror.
What does this mean?
During the period of WWII in the Pacific, beginning December 1941, all military attacks against Taiwan were conducted by US military forces. The military forces of other countries, including England, France, the USSR, Australia, New Zealand, the
Republic of China, etc. did not participate.
Hence, the United States of America is the principal occupying power of Taiwan.
Under the specifications of General Order No. 1, issued by General Douglas MacArthur, the Republic of China in Taiwan is merely a proxy occupying force.
Importantly, there are many actions which are forbidden in occupied territory.
Relevant specifications can be found in the Hague and Geneva Conventions. One important action which is forbidden is the promulgation of a new legal structure.
Hence, the promulgation of the ROC Constitution in occupied Taiwan in 1947 is entirely illegal.
Unfortunately, such an analysis is totally beyond the comprehension of most civilians, because they have essentially no knowledge of military law or the laws of war.
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7) Taiwan was incorporated into ROC national territory via procedures in the
ROC Constitution regarding “new territory.”
FALSE
In fact, Taiwan has never been incorporated into ROC national territory.
Article 4 of the ROC Constitution (entered into force Dec. 25, 1947) specifies 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." In regard to the alleged inclusion of Taiwan into Chinese territory, up to the present day there is no resolution of the National Assembly on record.
Moreover, the post-war treaties did not award Taiwan to China.
Of course many people point out that Taiwan was already under the jurisdiction of the ROC when the ROC Constitution was promulgated and came into force in 1947.
But this is questionable reasoning on two counts. In 1947, Taiwan was still under belligerent occupation. So, number #1, there had not been any transfer of Taiwan’s territorial sovereignty to China, and Taiwan was not part of China’s national territory.
Then, number #2, the promulgation of an entirely new legal structure in occupied territory is a serious violation of the Hague and Geneva Conventions. Such violations are commonly known as war crimes.
8) With no final disposition of Taiwan in the peace treaty, sovereignty is held by the local Taiwanese people.
FALSE
An examination of the subject of “territorial cession” under international law shows that it is an action between governments. Examples of this in United States history are very representative. There was Louisiana in 1803, Florida in 1821,
California in 1848, Alaska in 1867, Guam in 1899, Puerto Rico in 1899, Virgin Islands in 1917, etc.
After examining these historical events, we are forced to reach the conclusion that territorial sovereignty is held by a government. It is not held by any amalgamous group of people.
In direct contrast to this, there is a concept of “popular sovereignty” which is found in constitutional law studies. This is a very different concept from “territorial sovereignty.” It is often heard that the Taiwanese people enjoy "popular sovereignty." In practice this just means that under the authority of the illegitimate ROC Constitution they are being given the right to vote and to elect
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their quote unquote representatives to various levels of local councils, to the legislature, presidency, etc.
Looking at the treaty specifications for Cuba after the Spanish American War and
Taiwan after WWII in the Pacific, both are territory conquered by the USA which have not reached a final political status. In other words, they have been left in political limbo under the jurisdiction of the United States Military Government. However, as in the situation of Cuba, the United States Executive Branch officials should be nurturing local groups in Taiwan to come together to form their own civil government.
This is the established precedent for dealing with conquered territory. This precedent was followed in Iraq as well.
9) The ROC on Taiwan, under any definition, meets the criteria to be a sovereign state.
FALSE
As stated previously, the Japanese surrender ceremonies in Taiwan only marked the beginning of the military occupation. Under international law, and specifically according to the Hague and Geneva Conventions, there are many types of actions which are illegal in occupied territory. Among these are
Announced annexation of the territory
Mass naturalization of the local populace
Enforcement of military conscription policies over the local populace
Promulgation of a new legal structure
A quick examination of the Republic of China’s supposed qualifying criteria for recognition as a “sovereign state” quickly shows that they are based on major violations of international law, such as the announcement of Taiwan Retrocession Day on Oct. 25, 1945, the mass naturalization of the local populace on Jan. 12, 1946, etc.
Many foreign government officials often make statements to the effect that neither
Taiwan nor the Republic of China on Taiwan are sovereign. At the most basic level, such statements are 100% true. What is unfortunate is that, for the most part, these foreign government officials do not explain the reasons for their conclusions, thus leaving the native Taiwanese people both angry and confused.
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10) After more than seventy years governing Taiwan, the Republic of China has a long record of “effective territorial control,” and therefore can claim sovereignty over Taiwan.
FALSE
The issue being discussed here is directly related to the confusion generated by two different usages of the word “occupation” in English. 軍事佔領 先佔
In this regard it is necessary to distinguish between populated and unpopulated territory. Unpopulated territory is often referred to by the Latin terminology of
“terra nullius.” An example is a volcanic island formed in the ocean. Although competing claims must be considered, a lengthy period of “effective territorial control” over such unpopulated territory by the citizens of one country can result in a justifiable claim of sovereignty.
However, Taiwan in 1945 was quite different. The population of Taiwan at that time was over six million, and it was certainly not terra nullius.
The completion of the surrender ceremonies in Taiwan on October 25, 1945, marks the beginning of the military occupation. International law specifies that military occupation does not transfer sovereignty, and there is no time limit after which this condition expires. With the completion of the surrender ceremonies, the Republic of China in Taiwan was merely fulfilling the role of a proxy occupying force.
Hence, the ROC cannot point to an accumulation of years of “effective territorial control” as a justification for claiming sovereignty over Taiwan.
11) With the institution of popular elections for President in 1996, the ROC in
Taiwan has already become a “domestic regime.”
FALSE
As discussed previously in this series, there was no “Taiwan Retrocession Day” on
October 25, 1945, and Taiwan remained sovereign Japanese territory. Actions such as the mass naturalization of the local populace, the promulgation of a new constitution as the basis for an entirely new legal code, the implementation of military conscription, etc. are all forbidden in occupied territory.
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The historical record clearly shows that the ROC Constitution was written for the mainland China area, and later forced on the Taiwanese populace at the point of a gun. In Chinese scholarly circles, this document is commonly referred to as the
“Nanjing Constitution.” It is not the true organic law of Taiwan. Elections held under the auspices of this Constitution are only relevant to the maintenance of the legal framework of the ROC government in exile in Taiwan.
Going back to examine the historical record, two actions could have caused the
Republic of China to attain the status of “domestic regime” in Taiwan. First, would have been for the 1952 San Francisco Peace Treaty to award the territorial sovereignty of Taiwan to China. Second, would have been for Taiwan to be formally incorporated into China’s national territory via the procedures specified in the ROC Constitution after late April 1952.
However, neither of these actions did occur. Hence, for these and many other reasons, in Taiwan today the ROC today remains as a “foreign regime.”
12) In order to become a true state in the international community, Taiwan should declare its independence.
FALSE
Although unknown to a majority of the Taiwan populace, over the period of the last thirty, forty, or more years, there have been many Taiwanese people, both groups of private individuals and various fully registered associations, foundations, etc. which have taken out large advertisements in newspapers in North America,
Europe, Japan, etc. proclaiming Taiwan’s independence. They have also held rallies to make similar announcements.
However, none of these advertisements or announcements has ever had the slightest effect. We are forced to conclude that in relation to Taiwan, declarations of this type have no practical significance.
An additional problem is the sovereignty issue. As we know, Japanese sovereignty over Taiwan ended with the coming into force of the post-war SFPT in
1952.
However, as discussed in detail in this series, and in other videos on our channel, there are no international legal documents which can prove that Taiwan has ever been incorporated into the national territory of China. Such facts were confirmed by the decision in a 1959 court case in Washington D.C., where the judges found that
Taiwan was not a part of the national territory of China.
Therefore, since neither Japan nor China exercise sovereignty over Taiwan, the
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question arises: From which country should Taiwan declare its independence?
The vast majority of Taiwan independence advocates are unable to answer this question.
In fact, Taiwan’s current international legal status remains as territory conquered by the USA which has not reached a final political status. In the 1952 SFPT, Taiwan was not awarded to China. However, the treaty clearly specifies the jurisdiction of a
US federal agency, the United States Military Government, over Taiwan. For Taiwan, this is what may be called the “1 st tier” or “topmost” jurisdiction.
Hence, at present, the most urgent problem for Taiwan is to clearly define its international status as an overseas territory of the USA under military government.
Negotiations regarding the proper direction for further democratic development in
Taiwan should be conducted with United States officials, and protests against the illegitimate ROC legal structure should be made with US officials in Washington D.C.
13) The Taiwan Relations Act mandates the sale of military equipment and hardware to Taiwan.
FALSE
The Taiwan Relations Act uses the terminology of “provide” or “make available to.” The word “sell,” or anything similar, cannot be found in the Taiwan Relations
Act.
So, what are the implications of this? Clearly, the United States Dept. of
Defense would not be violating the terms of the TRA if it assumed full responsibility for the “national defense” needs of Taiwan. Ideally, this would be done by directly stationing US military personnel in Taiwan and building military airports, naval ports and shipyards, and all other necessary facilities.
14) Under the One China Policy, the maintenance of an ROC Ministry of
National Defense on Taiwan is fully authorized.
FALSE
The US Congressional Research Service has confirmed that the US Executive
Branch has never recognized PRC sovereignty over Taiwan. Moreover, under the One
China Policy of the United States, there is no country called “Republic of China.”
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The San Francisco Peace Treaty of 1952 did not award Taiwan to the Republic of
China. Additionally, the Taiwan Relations Act does not recognize the existence of an entity called “Republic of China” after January 1, 1979.
Based on the above, we are hard pressed to find any legal rationale to justify the existence of a military establishment on Taiwan organized under the authority of a “Republic of China” Constitution, and which requires all personnel to swear allegiance to the Republic of China. We are forced to conclude that such arrangements are clearly a gross violation of the One China Policy of the United States and the Senate ratified San Francisco Peace Treaty.
15) The legal basis for the establishment of ROC Ministry of National Defense in Taiwan can be found in international law.
FALSE
The highest ranking document of international law dealing with the disposition of
Taiwan in the post-WWII era is the 1952 San Francisco Peace Treaty.
A thorough examination of the post-war peace treaty fails to find any clauses which can be interpreted to authorize the existence of a Republic of
China government structure on Taiwanese soil, or the functioning of a Ministry of National Defense under the authority of a socalled “Republic of China
Constitution.
”
In consideration that Taiwan was sovereign Japanese territory until the coming into force of this treaty, when the Republic of China moved its central government to occupied Taiwan in December 1949, it was moving outside of China’s national territory, and immediately became a government in exile. Under international law, a government in exile is not permitted to have an actively functioning Ministry of
National Defense, or any similar agency.
16) As a non sovereign nation, the ROC on Taiwan is qualified to have military conscription policies.
FALSE
As a fundamental point of reference, the US Supreme Court has ruled that
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military conscription policies must be based on “national sovereignty.” The
Republic of China on Taiwan is a non-sovereign entity, and hence, by definition cannot have any form of military conscription policies. Without such policies of course, there is no manpower available for the staffing of a Ministry of National
Defense.
The often heard statement that the international legal status of Taiwan is
“undetermined” or “unsettled” corresponds to the reality that Taiwan remains under a condition of military occupation in the current era. To put this in historical perspective, it cannot be repeated often enough that at the most basic level,
Taiwan is territory conquered by the United States which has not yet reached a
“final political status.”
Notably, both the Hague and Geneva Conventions forbid military conscription in occupied territory.
The SFPT has placed Taiwan under the jurisdiction of USMG. In relation to
Taiwan’s defensive needs, our conclusion must be that under the “common defense” clause of the US Constitution, the United States Dept. of Defense should take full responsibility for Taiwan’s “national defense.” This would include personnel, equipment and all other matters.
[ See Chart http://www.twclarify.com/taiwan/pages/milchart/index.html ]
[ See SFPT Powerpoint ]
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