A Derivation of the International Legal
Status of Taiwan
Based on the Delineation of “Categories of
Territory” found in U.S. Court Decisions
and Customary International Precedent regarding
the Disposition of Territory after War
Index
Title
Version 1.0
Slide
All Territory Under The Jurisdiction Of A Particular Country Is Not Necessarily “Domestic Territory”
6
Laws of War Studies
12
Confusion Arising From The Misconception That “ All Territory Under The Jurisdiction Of A Particular
Country Is Domestic Territory”
13
Rigorous Distinctions are Needed
15
Territorial Cession in the Modern World
16
United States Military Government (USMG)
17
TAIWAN and WWII in the Pacific
18
The Military Occupation of Taiwan
20
The Signing of the SFPT
21
Implementing the Specifications of the SFPT
22
A Civilian View of Taiwan in the Post-WWII Era
23
Index
Title
"Problems" of the Civilian View
Important Steps in the Development of the
Republic of China’s Legal Position in Taiwan
Slide
24
25-28
Summary Conclusions for Taiwan
29
The 1952 SFPT
30
Is Taiwan a part of Japan?
31
Is Taiwan a part of China?
32
Is Taiwan a part of the United States?
33
Taiwan: Conquered Territory of the United States
34
Peace Treaty Specifications for Cuba and Taiwan
35
WWII in the Pacific
36
Proxy Occupying Force
37
Index
Title
Slide
Chinese government in exile in Taipei
38
The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
39
The ROC in Taiwan
40
Introduction to fundamental Laws of War Concepts
41
Military Government
42-43
The End of Military Government
44-46
USMG jurisdiction over Taiwan is still active
47-48
The Principle of Conquest
49-50
Sources of International Law
52
Sources of the Laws of War
53
Native Taiwanese and ROC Exiles
54-55
Index
Title
Slide
United States Treatment of Taiwan as a “Trusteeship”
56-57
Taiwan as a U.S. Insular Area
58-59
Taiwan and the Montevideo Convention
60
Serious Violations of International Law
62
U.S. Constitution, supremacy clause
63
Collected Statements from the U.S. Executive Branch
and the Courts
64
Fundamentally, we need to recognize that:
ALL TERRITORY UNDER THE JURISDICTION OF A
PARTICULAR COUNTRY IS NOT NECESSARILY
“DOMESTIC TERRITORY”
To aid in the discussion of this concept, illustrations from United States
history will be given for reference.
EXAMPLE 1:
One common situation which arises is when U.S. military troops have
occupied some particular area. The United States military occupation of the
northern and central Mexican states during the Mexican American War is a
good example of the category of “foreign territory under the jurisdiction of
the United States.”
U.S. Supreme Court References
Fleming v. Page (1850)
Cross v. Harrison (1853)
DeLima v. Bidwell (1901)
EXAMPLE 2:
Even in situations after war where territory was ceded to the USA by treaty,
and was added within the boundaries of USA national territory, such
territory was still regarded as “foreign to the states of the Union.”
Additionally, it was held that the U.S. Constitution did not apply in its
entirety to these areas, whether during the period of United States Military
Government (USMG) jurisdiction or later when the local “civil government”
was organized. Examples are Puerto Rico, Guam, and the Philippines after
the close of the Spanish American War. In the early to mid-1900s, some
scholars wrote articles examining the legal treatment of these territories,
and concluded that they were “foreign in a domestic sense.”
U.S. Supreme Court References
Dooley v. U.S. (1901)
Downes v. Bidwell (1901
Gonzales v. Williams (1904)
Foreign in a Domestic Sense: American Expansion, and the Constitution
by Christina Duffy Burnett and Burke Marshall (Editors),
Duke University Press, Durham, N.C. (2001).
EXAMPLE 3(a):
A further peculiarity is where U.S. military troops liberated the territory, the
original sovereign renounced its sovereignty in the peace treaty, but no
“recipient country” was designated. In such situations, U.S. court decisions
have found that United States Military Government (USMG) jurisdiction
continues, and such an area is “foreign territory under the dominion of the
United States.” Cuba, as a result of the Spanish American War, and before its
independence, is a very prominent example.
EXAMPLE 3(b):
As stated above, after the coming into force of the Spanish – American
Peace Treaty, although not ceded to the USA, Cuba remained under USMG
jurisdiction. Interestingly, during this period of time, and before the
founding of the Republic of Cuba, the island was a non-sovereign entity.
More specifically, it was neither part of the United States, nor was it
independent in its own right. Such a description amounts to saying that
Cuba had not yet reached a final political status.
U.S. Supreme Court References
Neely v. Henkel (1901)
DeLima v. Bidwell (1901)
Pearcy v. Stranahan (1907)
EXAMPLE 4:
Another example of the non-domestic treatment of territory is “foreign
territory leased by the USA.” Guantanamo Bay, Cuba, is one well-known
example which is often in the news.
SUMMARY:
As an overview of the above four examples, it is quickly seen that all
of these situations have arisen as a result of the conduct of war.
Accordingly, the recognition and understanding of these situations is
typically beyond the capabilities of those civilian scholars who have
no background in “laws of war studies,” which we may refer to in a
somewhat broader fashion as “the customary laws of warfare.”
Laws of War Studies
This field of study includes the Hague and Geneva Conventions, the
laws of occupation, as well as much other customary precedent
which has been established over the last two hundred years. It also
includes the subject matter of “military jurisdiction under the U.S.
Constitution” and the legal ramifications of “the principle of
conquest,” academic areas in which most civilian scholars have
essentially no knowledge.
The above topics will be overviewed more thoroughly in the
“Introduction to fundamental Laws of War Concepts” section.
There is much confusion in the world today which arises
from:
THE MISCONCEPTION THAT “ALL TERRITORY
UNDER THE JURISDICTION OF A PARTICULAR
COUNTRY IS DOMESTIC TERRITORY”
For discussion purposes, let us use the nomenclature of “Country C” to
designate one particular country.
The following problem arises. By regarding all territory under the
jurisdiction of “Country C” as domestic, it then becomes a simple
mental leap to say that “Country C” can obtain new territory merely
by issuing a proclamation or holding a press conference, and then
sending in its troops. When the military forces in the conquered
territory surrender, the officials of Country C can announce the
annexation of the territory, and the war is over.
Rigorous Distinctions are Needed
Those scholars and researchers who unwittingly assume that “All
territory under the jurisdiction of a particular country is domestic
territory” also fail to make a rigorous distinction between “having
sovereignty” over a piece of territory, versus merely “having
jurisdiction” over that territory.
Research into “the customary laws of warfare” and a close
examination of Examples 1, 2, & 3, above, quickly show that (a) not
all territory under the jurisdiction of a particular country is domestic
territory, (b) having jurisdiction over territory and having sovereignty
over territory are two distinct concepts.
Territorial Cession in the Modern World
In the post-Napoleonic world, territorial cession is accomplished by
treaty, and the world history of the last (nearly) two hundred years
provides many examples. In the 1800s, the difference between
“military occupation” and “annexation” became firmly established in
customary law, and was later formally codified in the Hague
Conventions of 1907:
Territory is considered occupied when it is actually placed
under the authority of the hostile army."
The form of administration by which an occupying power exercises
government authority over occupied territory is called "military
government."
In the Spanish American War examples given above, Spanish
sovereignty continued until renounced in the peace treaty.
United States Military Government (USMG)
Beginning
of USMG
Area
Treaty
Came into
force
End of
USMG
USMG Supplanted by
August 12,
1898
Puerto Rico
Treaty of
Paris, Art. 2
April 11,
1899
May 1, 1900
Civil Government for
Puerto Rico (USA)
August 14,
1898
Philippines
Treaty of
Paris, Art. 3
April 11,
1899
July 4, 1901
Civil Government for
Philippines (USA)
June 21,
1898
Guam
Treaty of
Paris, Art. 2
April 11,
1899
July 1, 1950
Civil Government for
Guam (USA)
July 17, 1898
Cuba
Treaty of
Paris, Art. 1
April 11,
1899
May 20,
1902
Civil Government for
Cuba (Republic of Cuba)
United States Military Government (USMG) jurisdiction over these four territories began
with the surrender of Spanish troops in each area, and continued (beyond the time when
the peace treaty came into force) for many years.
USMG jurisdiction was finally supplanted by the establishment of “civil government” for
each territory.
This is the established precedent for dealing with conquered territory.
TAIWAN and WWII in the Pacific
All military attacks against the four main Japanese islands (aka
“metropolitan Japan”) and Taiwan were conducted by U.S. military
forces. The legal significance of such actions can be determined by
examining the subject matter of “military jurisdiction under the U.S.
Constitution” and the legal ramifications of “the principle of
conquest.”
Additionally, according to U.S. Supreme Court precedent regarding
the application of the laws of occupation, the United States is the
“conqueror,” and therefore will be the legal occupier.
Many historians dispute the view that the United States was the legal
occupier of Japan, and point out that “The Allies occupied Japan.”
However, Gerhard L. Weinberg (Ph.D., University of Chicago) clarifies the
correct view in his essay “The End of the Pacific War in World War II.” He
describes the historical situation in metropolitan Japan as follows:
The Japanese surrender and occupation meant that America’s
key aim had been attained. The fact that an American was
supreme commander and through his staff could provide
direction to the country as a whole enormously simplified a
process that would not be hampered by any need for
unanimity – or more likely conflicting plans and intentions – of
several occupying powers. There was an Allied Council that
met regularly in Tokyo and included Soviet, British, and Chinese
representatives, but it operated in practice as an advisory, not
an executive or administrative body.
This essay is collected in Between War and Peace, How America Ends its
Wars, edited by Col. Matthew Moten, published by Free Press (Simon &
Schuster, Inc.), New York, N.Y. (2011).
The Military Occupation of Taiwan
Importantly, in relation to Taiwan, the United States has the right,
and indeed the obligation, to conduct the military occupation after
the close of hostilities in WWII in the Pacific. The U.S. military
authorities can (and did) delegate the administrative authority for
this military occupation to co-belligerents (i.e. “allies”), namely the
“ROC military forces,” via the law of agency.
NOTES:
The law of agency is the body of legal rules and norms
concerned with any principal - agent relationship, in which one
person (or group) has legal authority to act for another. The law
of agency is based on the Latin maxim "Qui facit per alium, facit
per se," which means "he who acts through another is deemed
in law to do it himself."
The Signing of the SFPT
With the holding of the signing ceremonies for the San Francisco
Peace Treaty (SFPT) in Sept. 1951, however, the Republic of China’s
status as a government in exile is beginning to become apparent.
Although recognized by most world nations as the legitimate
government of China (where at that time it exercised no jurisdiction),
no international agreements had yet recognized it as the legitimate
government of Taiwan.
As a result of these factors, the ROC was not invited to become a
signatory to the SFPT, and therefore is not able to claim any rights,
benefits, interest, etc. from the SFPT (other than those specifically
stated therein).
Implementing the Specifications of the SFPT
The SFPT did not award Taiwan to the ROC. Hence, by the early
summer of 1952, under the legal framework of the SFPT and
established laws of war precedent, the U.S. military authorities
should be nurturing a local group in Taiwan to form the “Taiwan Civil
Government,” and the ROC exiles should be allocated a parcel of
land to continue to conduct their own affairs until such time as they
can repatriate themselves back to the motherland of mainland
China.
Surprisingly however, the U.S. Executive Branch officials have chosen
to treat the SFPT as a lost treaty, and to ignore the fact that ROC
officials have no authority to speak for the majority of the island’s
population (the “native Taiwanese”), and international precedent
calls for the local people to form their own government and govern
themselves under the overarching USMG jurisdiction. Among
persons knowledgeable in laws of war studies, however, such United
States’ actions have left it open to the charge that it is conducting a
proxy occupation of Taiwan.
A Civilian View of Taiwan in the Post-WWII Era
In the view of most civilian scholars and researchers, what is typically
held to be most important is the following:
As early as the summer of 1952, the Republic of China
(ROC), even though having abandoned its governmental
status in mainland China, has fully established itself in
Formosa and the Pescadores (aka “Taiwan”). The ROC on
Taiwan has a permanent population, defined territory, and
a government, in addition to conducting a full range of
foreign relations with many other states. Under these
circumstances, the “conclusion” must be that the ROC in
Taiwan meets the international criteria for being a sovereign
state.
"Problems" of the Civilian View
However, the formation of such a “conclusion” regarding the ROC’s
legal position on Taiwan ignores a number of key legal parameters.
In particular, an examination of the steps leading to the ROC’s
exercise of full governance over Taiwan, beginning with events of the
early 1940s, shows that ROC officials have committed many
violations of the customary laws of warfare.
This is analyzed further in the Chart(s) below:
Important Steps in the Development of the
Republic of China’s Legal Position in Taiwan
With a dual analysis regarding the Legal Validity of each Step
Date
What Happened
1. Oct. 25, 1945
Surrender of
Japanese
troops in Taipei
2. Oct. 25, 1945
Legal Validity & Related Comments
Version #1
Version #2
ROC officials announce
“Taiwan Retrocession
Day,” proclaiming that the
annexation of Taiwan by
the ROC is now complete
Chinese officialdom holds that this
“annexation” is based on various
wartime declarations, statements,
and accords.
This October date only marks the
beginning of the military
occupation of Taiwan, and
“military occupation does not
transfer sovereignty.” Taiwan
remains as sovereign Japanese
territory until new arrangements
are made in a peace treaty.
With the Japanese
surrender, the ROC and
other Allied officials
announce that the war is
over
This was printed in many
newspapers, so common-sense
logic dictates that it must be true.
The surrender ceremonies only
mark the end of hostilities, not the
end of the war. The war only ends
when the peace treaty comes into
force.
Important Steps in the Development of the
Republic of China’s Legal Position in Taiwan
Date
What Happened
3. Jan. 12, 1946
Legal Validity & Related Comments
Version #1
Version #2
Mass Naturalization of
native Taiwanese people
as ROC citizens
Based on the Oct. 25, 1945,
announcement of Taiwan
Retrocession Day, this seems valid.
In occupied territory, such an
action is 100% illegal.
4. Dec. 25, 1947
Promulgation of ROC
Constitution as basis for
new legal code in Taiwan
Based on the Oct. 25, 1945,
announcement of Taiwan
Retrocession Day, this seems valid.
In occupied territory, such an
action is 100% illegal.
5. Mid-1949
Broad-based military
conscription policies are
implemented in Taiwan
Based on the Oct. 25, 1945,
announcement of Taiwan
Retrocession Day, this seems valid.
In occupied territory, such an
action is 100% illegal.
Important Steps in the Development of the
Republic of China’s Legal Position in Taiwan
Date
What Happened
6. Dec. 10, 1949
7. April 28, 1952
Legal Validity & Related Comments
Version #1
Version #2
ROC central government
relocates to Taiwan after
the ROC’s loss of the
Chinese civil war, and the
founding of PRC in Beijing
on Oct. 1
Based on the Oct. 25, 1945,
announcement of Taiwan
Retrocession Day, it appears that
Taiwan is part of ROC territory, so
the removal of the ROC central
government to Taiwan has created
a situation of two governments in
one country: Two Chinas.
The post-war peace treaty has not
yet been finalized, hence Taiwan
has remained as sovereign
Japanese territory. Accordingly, by
moving outside of the national
territory of China, the ROC has
become a government in exile.
Post-war San Francisco
Peace Treaty (SFPT) comes
into force
The ROC government is already
firmly established in Taiwan when
the peace treaty comes into force,
hence it strongly appears that
Taiwan belongs to the ROC.
In the treaty, Japan renounced all
right, title, and claim to Taiwan,
but no “recipient country” was
named. Clearly, Taiwan does not
belong to China.
Important Steps in the Development of the
Republic of China’s Legal Position in Taiwan
Date
What Happened
8. Aug. 5, 1952
9. March 3, 1955
Legal Validity & Related Comments
Version #1
Version #2
Post-war Sino-Japanese
Peace Treaty comes into
force
Many pro-China scholars say that
this subsidiary treaty must be
interpreted to have awarded
Taiwan to the ROC.
This treaty recognizes the
disposition of Taiwan which was
made in the SFPT. In other words,
Taiwan was not awarded to China.
USA – ROC Mutual
Defense Treaty comes into
force
Many pro-China scholars say that
this treaty recognizes the ROC’s
sovereignty over Taiwan.
A Feb. 8, 1955 report by the
Senate's Committee on Foreign
Relations stated that the coming
into force of the USA – ROC MDT
was not to be interpreted as
modifying or affecting the existing
legal status of Taiwan. In other
words, the 1955 MDT only
recognizes the ROC’s jurisdiction
(i.e. “effective territorial control”)
over Taiwan.
Which Version of the “Legal Validity” Comments is authoritative?
Version #2 is the legally accurate one.
Summary Conclusions for Taiwan
It is a matter of historical record that the ROC military commanders and
troops were transported to Taiwan by United States ships and aircraft in
October 1945. Thus, the era of the ROC in Taiwan began in Oct. 1945 with
the full assistance and tutelage of the United States.
However, none of the Allies recognized any transfer of Taiwan’s sovereignty
to China or to any other country in the 1940s or early 1950s. Hence, there
was no “Taiwan Retrocession Day.” Beginning with the surrender ceremonies
on Oct. 25, 1945, the legal status of Formosa and the Pescadores (aka
“Taiwan”) can be described as:
an independent customs territory under USMG on Japanese
soil, with administrative authority for the military occupation
delegated to the Chinese Nationalists (ROC).
In discussing Taiwan history, an understanding of the legal significance of the
events of Oct. 25, 1945, is very important. Please see detailed analysis at
http://www.twinfopost.com/oct25data.htm
The 1952 SFPT
The 1952 SFPT has confirmed that Japan has renounced all right,
claim, and title over Taiwan. However, at the same time, Taiwan was
not awarded to the Republic of China (ROC) in the treaty, and
therefore is not a part of Chinese national territory (either ROC or
PRC). In the treaty, Taiwan was a “limbo cession” in Article 2(b), with
the United States designated as the principal occupying power in
Article 23(a).
Therefore, Taiwan is not a part of Japan, not a part of China, and not
a part of the United States. At the same time, Taiwan (or “the ROC
on Taiwan”) is not an independent nation in the international
community.
Is Taiwan a part of Japan?
No. Japan renounced all right, claim, and title over Taiwan in the 1952 SFPT.
The validity of this renunciation has been confirmed by many Japanese court
rulings.
Two additional points regarding Japanese nationality are also noteworthy. First,
Japanese courts have ruled that native Taiwanese people did not regain their
Japanese nationality due to the Japanese government’s abrogation of the
Treaty of Taipei on Sept. 29, 1972.
Second, the Constitution of Japan provides that the conditions necessary for
being a Japanese national shall be determined by law. However, there is no
provision in the current Japanese Nationality Law outlining any legal procedure
whereby former Japanese subjects in Taiwan (or their descendants) could
regain Japanese nationality. In other words, at present there is no established
application procedure under Japanese law which would enable any native
Taiwanese persons, domiciled in Taiwan, to obtain (or re-obtain) Japanese
nationality. Honestly speaking, petitions to the Japanese Diet in regard to such
nationality issues are essentially just exercises in futility.
Is Taiwan a part of China?
No. The designation of "Taiwan, Province of China" by UN agencies,
and by organizations that follow UN standards, such as the
International Organization for Standardization (in its listing of ISO
3166-1 country codes), is based on an incomplete understanding of
the principles of international law.
It is highly recommended the United Nations’ Office of Legal Affairs
establish a task force to do thorough research into the customary
laws of warfare of the post-Napoleonic period and their application
to a correct determination of Taiwan’s international legal status.
Is Taiwan a part of the United States?
No. To the knowledge of the Taiwan – U.S. Democracy Association,
no U.S. court decisions have ever held that territory not specifically
ceded to the United States by treaty, although held under USMG
jurisdiction, is “part of the United States” in a technical legal sense.
In further confirmation of this, U.S. courts have held that any area
under USMG jurisdiction forms an independent customs territory and
is not subject to the U.S. Constitution’s Article 1, Section 8
requirement that “all Duties, Imposts and Excises shall be uniform
throughout the United States.”
This is despite the fact that, for insular areas, such territory may be
fully regarded as “an overseas territory of the United States.”
The term insular simply means “relating to, or characteristic of, or
situated on an island.”
Taiwan: Conquered Territory of the United States
In the 21st century, Taiwan remains, at the most fundamental level,
as conquered territory of the United States of America which has not
yet attained a final political status. This is very similar to the situation
of occupied Cuba after the coming into force of the SpanishAmerican Peace Treaty on April 11, 1899.
o Importantly, the SFPT has confirmed USMG jurisdiction over
Taiwan in Article 4(b).
After the coming into force of the SFPT, the Allies have, for all
effective purposes, disbanded. However, as specified in Article 4(b),
the jurisdiction of USMG over the Ryukyu island group, Taiwan, etc.
remains active.
Peace Treaty Specifications for Cuba and Taiwan
Item
Treaty of Paris
specifications for Cuba
SFPT specifications for
Taiwan
United States is the (principal) occupying power
Article 1
Article 23(a)
Original "owner" did indeed cede the territory
Article 1
Article 2(b)
No "receiving country" was specified (i.e. "limbo
cession")
Article 1
Article 2(b)
USMG has disposition rights over the territory
Article 1
Article 4(b)
Military government is present, and military
occupation is a reality
Article 1
Article 4(b), and the Hague
Conventions (1907)
USMG jurisdiction continues past the date when
the peace treaty comes into effect
Article 1, and the U.S. Supreme
Court decision in Cross v. Harrison
(1853)
Article 4(b), Article 23(a), and the
U.S. Supreme Court decision in
Cross v. Harrison (1853)
NOTE: During the Spanish American War and WWII in the Pacific, the United States military
forces liberated Cuba and Taiwan respectively. The United States is the “conqueror,” and
has both the right and the duty to conduct the military occupation of these areas.
WWII in the Pacific
Areas Conquered by US military forces and therefore under USMG
jurisdiction, with later "new disposition“ by peace treaty.
Area
Treaty
Came Into
Force
End Of USMG
USMG Supplanted By
Ryukyus
SFPT, Art. 3
April 28, 1952
May 15, 1972
civil government for Ryukyus
(Japan)
Taiwan
SFPT, Art. 2(b)
April 28, 1952
-- ? --
[no arrangements made yet ]
Military government continues till legally supplanted
With reference to the situation of Cuba after April 11, 1899, and other established laws of war
precedent, this Article 4(b) of the SFPT has further elevated the independent customs territory of
Formosa and the Pescadores (aka “Taiwan”) to the status of a quasi USA trusteeship under military
government within the U.S. insular law framework.
Proxy Occupying Force
The ROC was not a signatory to the 1952 SFPT. With the coming into force
of this treaty, the ROC has merely continued to serve as (1) a proxy
occupying force for the United States in conducting the military occupation
of Taiwan, (2) a Chinese government in exile in Taipei (aka “Chinese Taipei”).
Under the laws of war of the post-Napoleonic period, a proxy occupation is a
military occupation where the occupying power directs a "co-belligerent"
(i.e. ally) to undertake the occupation of a particular area, as a substitute for
the occupying power handling the occupation of that area directly.
The Hague Conventions and the Geneva Conventions do not specifically
define the terminology of "the occupying power," and many legal
researchers are confused about this aspect.
In fact, the conqueror is the legal occupier , aka "the occupying power."
Chinese government in exile in Taipei
The appellation of “Chinese Taipei” has been used frequently by the
ROC government in exile when participating in various international
organizations and events, including the Olympics, Miss Universe,
Paralympics, Asian Games, Asian Para Games, Universiade, World
Baseball Classic, Little League World Series, Federation
Internationale de Football Association (FIFA) World Cup, etc.
Additionally, since Jan. 1, 2002, membership in the World Trade
Organization (WTO) has been under the formal nomenclature of
“Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu,”
but "Chinese Taipei" is frequently used in WTO official documents
and elsewhere.
The Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu
In relation to this formal nomenclature used by WTO, the following
points are notable:
Under the successor government principle, the People’s
Republic of China (PRC) can claim sovereignty over the
island groups of Kinmen and Matsu. However, the PRC
cannot claim sovereignty over Taiwan and Pengu, because
the ROC has never held sovereignty over these territories in
the first place.
The ROC in Taiwan
After late April 1952, there is no legal basis for the ROC flag to be
flying over Taiwan, for the native Taiwanese people to be classified
as “ROC citizens,” or for the ROC Constitution to be regarded as the
fundamental law (or “organic law”) of Taiwan. For Taiwan territory, it
would make more sense for the U.S. flag to be flying, since the SFPT
has confirmed that Formosa and the Pescadores (aka “Taiwan”)
is/are under the jurisdiction of a U.S. federal agency – the United
States Military Government (USMG).
At the same time, based on the decisions in the Insular cases of the
U.S. Supreme Court, native Taiwanese people should be enjoying
fundamental rights under the U.S. Constitution.
Introduction to fundamental
Laws of War Concepts
as related to a discussion of the international legal status of Taiwan
Military Government
The Hague Conventions of 1907 specify that "territory is considered
occupied when it is actually placed under the authority of the hostile
army."
On page 21 of his book Military Government and Martial Law, United
States Army Brigadier General William E. Birkhimer specifies that:
The U.S. Constitution has placed no limit upon the war
powers of the government, but they are regulated and
limited by the laws of war. One of these powers is the right
to institute military governments.
Military Government
The U.S. Supreme Court case of Ex Parte Milligan (1866) is an
authoritative reference. The Justices held that:
MILITARY GOVERNMENT is exercised in time of foreign war
without the boundaries of the United States, or in time of
rebellion and civil war within states or districts occupied by
rebels treated as belligerents; superseding, as far as may be
deemed expedient, the local law, and exercised by the
military commander under the direction of the President,
with the express or implied sanction of Congress . . .
More simply, "military government" is the form of administration by
which an occupying power exercises governmental authority over
occupied territory. Any area under military government jurisdiction is
considered to be occupied territory.
The End of Military Government
RULE: Military Government continues until legally supplanted.
This must be explained in two parts.
PART 1: No Territorial Cession
For the situation where no territorial cession is involved, the
military government of the (principal) occupying power will end
with the coming into force of the peace settlement.
EXAMPLE 1: Metropolitan Japan after WWII. Japan regained its
sovereignty with the coming into force of the San Francisco Peace
Treaty on April 28, 1952. In other words, a civil government for Japan
was in place and functioning as of this date.
The End of Military Government
PART 2: A Territorial Cession
In the situation of a territorial cession, there must be a formal
peace treaty. However, the military government of the
(principal) occupying power does not end with the coming into
force of the peace treaty.
EXAMPLE 1: Puerto Rico after the Spanish-American War. Military
government continued in Puerto Rico past the coming into force of the
Treaty of Paris of 1898 on April 11, 1899, and only ended on May 1,
1900 with the beginning of Puerto Rico's civil government.
EXAMPLE 2: Cuba after the Spanish-American War. Military
government continued in Cuba past the coming into force of the Treaty
of Paris of 1898 on April 11, 1899, and only ended on May 20, 1902
with the beginning of the Republic of Cuba's civil government.
The End of Military Government
RULE: Military Government continues until legally supplanted.
Hence, at the most basic level, the terminology of "legally
supplanted" is interpreted to mean "legally supplanted by a
civil government fully recognized by the national (or "federal")
government of the principal occupying power."
USMG jurisdiction over Taiwan is still active
1.
An announcement regarding the end of USMG jurisdiction in
California, Puerto Rico, Philippines, Guam, Cuba, and the
Ryukyus was formally promulgated by the U.S. Commander in
Chief. That USMG jurisdiction is terminated with such a formal
announcement is clearly the established precedent.
2.
With the end of USMG jurisdiction in California, Puerto Rico,
Philippines, Guam, Cuba, and the Ryukyus, each has become
either (a) a sovereign nation, or (b) "part" of another sovereign
nation. Significantly, each area has a fully functioning and fully
recognized "civil government," which of course has supplanted
USMG jurisdiction. Taiwan is plainly the exception.
Since the end of the Second World War, it has been the official
policy of the United States government that the status of Taiwan is
"an unsettled question . . . . "
USMG jurisdiction over Taiwan is still active
3.
Today, Taiwan remains in a condition of “undetermined status”
as an occupied (former) Japanese territory after peace treaty
under the Law of Nations.
4.
Beginning with the Truman Statement of June 27, 1950, (or
arguably earlier) the U.S. position on the Taiwan status question
has been "undetermined." As clarified by the Truman Statement
and the SFPT, the United States has never recognized the
forcible incorporation of Taiwan into China.
5.
In light of the above facts, and in consideration that the U.S.
Commander in Chief has never made any announcement
regarding the end of USMG jurisdiction over Taiwan, we are
forced to conclude that in the present day such jurisdiction is
still active.
The Principle of Conquest
From the second half of the eighteenth century onwards,
international law came to distinguish between the military
occupation of a country and territorial acquisition by invasion and
annexation, the difference between the two being originally
expounded upon by Emerich de Vattel in his opus The Law of Nations
(1758). The distinction then became clear and has been recognized
among the principles of international law since the end of the
Napoleonic wars (circa 1820).
Indeed, as early as 1828, US Supreme Court Chief Justice Marshall
offered this penetrating analysis in the famous American Insurance
Company case:
"The Constitution confers absolutely on the government of
the Union the powers of making war and of making treaties;
consequently, that government possesses the power of
acquiring territory, either by conquest or by treaty."
The Principle of Conquest
And more explicitly, in the 1872 case of United States v. Huckabee,
the Court speaking through Mr. Justice Clifford, said:
"Power to acquire territory either by conquest or treaty is
vested by the Constitution in the United States. Conquered
territory, however, is usually held as a mere military
occupation until the fate of the nation from which it is
conquered is determined . . . . "
Invasion and annexation later ceased to be recognized by
international law and were no longer accepted as a means of
territorial acquisition. The Convention respecting the Laws and
Customs of War on Land (Hague IV, 1907) contains explicit provisions
concerning the protection of civilians and their property in occupied
territories.
Based On:
Law of War Handbook 2005
International & Operational Law Department
The Judge Advocate General ‘s School, U.S. Army
Charlottesville, Virginia
International Law
Private Law-Commercial
Law
Public LawIntergovernmental
Laws Of War
Conflict Management
(Jus ad Bellum)
Laws Of Peace
Rules Of Hostilities
(Jus in Bello)
U.N. Charter
Hague Conventions
(Means & Methods)
Arms Control
Geneva Convections
(Humanitarian)
Customary Law
Customary Law
Sources of International Law
The generally recognized authoritative statement on the sources of
international law is the Statute of the International Court of Justice
(ICJ), Article 38, which specifies:
o International conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
o International custom, as evidence of a general practice accepted
as law;
o The general principles of law recognized by civilized nations;
o Judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
Sources of the Laws of War
In order to fully understand Taiwan’s current legal status, one must
be familiar with the laws of war, or more specifically “the customary
laws of warfare of the post-Napoleonic period.”
The laws of war are derived from two principal sources:
a.
Lawmaking Treaties (or Conventions), such as the Hague and Geneva
Conventions.
b.
Custom. Although some of the law of war has not been incorporated in
any treaty or convention to which the majority of nations are parties,
this body of unwritten or customary law is firmly established by the
custom of nations and well defined by recognized authorities on
international law.
The validity of the customary laws of warfare is fully recognized by
competent jurists, experts, and other legal scholars, even if the
average civilian has little expertise or knowledge in such subjects.
Native Taiwanese and ROC Exiles
From the period of the early 1950’s, and up to the current era, the
population of Taiwan can be separated into two major groups, which
of course will include their descendants up to the present day.
GROUP 1:
The first group is the native Taiwanese who trace their ancestry in Taiwan back
to the early 1600s, or even earlier. Notably, at the end of WWII, these native
Taiwanese had been in Taiwan eighteen generations or more.
GROUP 2:
The second group is the Republic of China (ROC) Chinese who came in midOctober 1945, brought by US ships and aircraft, and then and continued in a
slow but steady immigrant stream through early 1949. At that point their
numbers increased significantly as the communists gained successive victories
over KMT forces in China, and ROC loyalists fled the mainland. In late 1949 and
into 1950, this exodus resulted in a virtual flood of immigration into occupied
Taiwan. As of the early 1950s, these people are properly labeled as the ROC
exiles.
Native Taiwanese and ROC Exiles
OVERVIEW:
As an indigenous group, the native Taiwanese people (who
comprise over 80% of the local population) meet the criteria of
having a historical continuity with pre-invasion and pre-colonial
societies that developed in their territory. As a result, they must
be considered distinct from the ROC exiles who only began to
arrive in the mid to late 1940s. They have a strong desire to
preserve, develop and transmit to future generations their
Taiwanese ethnic identity, as the basis of their continued
existence as a people, in accordance with their own cultural
patterns, social institutions, and evolving legal system.
Legally speaking, the classification of native Taiwanese people as
being “ROC citizens” is incorrect.
United States Treatment of Taiwan as a
“Trusteeship”
PART 1:
The signatories to the SFPT did not abandon Taiwan and render it terra
nullius or terra derelicta, available to any State for annexation. Rather,
considering the facts of the United States conquest of Taiwan, the SFPT
confirmed the US role as "principal occupying power.“
We can briefly overview the history of the island as follows:
(i) from 1895 to 1952, Taiwan was de jure Japanese territory, and the ROC's
presence beginning in Oct. 1945 was thus in the nature of belligerent
occupation, which does not confer title; (ii) neither the SFPT nor the ROCJapan Peace Treaty in 1952 gave the ROC any rights over Taiwan, (iii) the
ROC on Taiwan has always been dependent on United States support, so
that its occupation and "effective control" can be viewed as an extension of
the United States' own power; (iv) the United States derecognized the ROC as
of Jan. 1, 1979, and has consistently asserted that Taiwan is not independent,
(v) moreover the United States considers Taiwan territory "strategic" and
subject to unilateral military involvement, including the development of local
forces, which it has accomplished over the last half a century by massive
financial support for Taiwan's military.
United States Treatment of Taiwan as a
“Trusteeship”
PART 2:
More specifically, in regard to the United States role in Taiwan since
1952, it has (1) demonstrated broad military use and domination of the
island; (2) gone to the brink of war several times to protect its "rights"
on Taiwan; (3) provided enormous, full-spectrum support to an
economically dependent Taiwan and militarily and politically dependent
ROC, including taking on the role of direct counterpart to the PRC with
respect to Taiwan, and invoking the right to individual self-defense in
such regard; (4) has dictated the terms of, and veto power over, any
future disposition, of the territory, (5) has deemed its role's duration to
be limited in theory but indefinite in practice; and (6) sought to deny, or
exclude formal provisions for, Taiwan territory's independence.
This type of supervision and control is fully in line with international
trusteeship practice and precedent.
Taiwan as a U.S. Insular Area
The major U.S. insular areas may be separated into four types. Type
1 is the most important for reference in this report.
TYPE 1:
Insular Areas Acquired by Conquest -- In a treaty signed at the end of
the Spanish-American War in 1898, Spain ceded Puerto Rico, Guam,
and the Philippines to the United States. In the same treaty, Spain's
sovereignty over Cuba was relinquished, but no recipient was
designated. Cuba remained under USMG jurisdiction for several years.
According to the historical and legal record, Taiwan and Cuba share
many similarities, and both qualify as a Type 1 U.S. insular area
during the period of USMG jurisdiction, after the coming into force
of the peace treaty.
Taiwan as a U.S. Insular Area
INCOME TAX IMPLICATIONS:
U.S. federal individual and corporate income taxes as such are not
currently imposed in U.S. insular areas. (FT: 1) In recognition of the fact
that Taiwan meets the criteria to qualify as a U.S. insular area, U.S.
citizen residents and corporations in Taiwan, as well as local Taiwanese
persons and corporations, should be exempt from U.S. federal
individual and corporate income taxes.(FN: 2)
FOOTNOTES:
1.
2.
Nov. 1997 GAO Report to the Chairman, Committee on Resources, House of
Representatives, "US INSULAR AREAS: Application of the U.S. Constitution," p. 37
During the past few years, the American Chamber of Commerce in Taipei has
joined with the Asia Pacific Council of American Chambers of Commerce (APCAC)
in urging the U.S. government to cease taxing the income of Americans working
abroad. This would greatly enhance the global competitiveness of U.S.
companies. Currently, the United States is the only leading industrialized country
that subjects its expatriate citizens to income tax on their overseas earnings.
Taiwan and the Montevideo Convention
Article 1 of the Montevideo Convention (entered into force Dec. 26,
1934) specifies thatThe state as a person of international law should possess the
following qualifications:
a)
b)
c)
d)
a permanent population;
a defined territory;
government; and
capacity to enter into relations with the other states.
Some people would argue that the “Republic of China” on Taiwan
meets all of the Montevideo Convention’s criteria for statehood.
However, after doing some research in laws of war studies, a number
of problems immediately become apparent. Upon closer
examination, we find that all of the ROC’s “qualifying criteria” are
phony.
PERMANENT POPULATION:
The native Taiwanese population was mass-naturalized as ROC
citizens in 1946, based on the false premise of “Taiwan
Retrocession Day,” and in direct violation of the Hague
Convention’s stipulations regarding the treatment of the
populace of occupied territory
DEFINED TERRITORY:
The ROC exercises effective territorial control over Formosa and
the Pescadores, but there has been no official transfer of title
GOVERNMENT:
The ROC appears to have a government, but it is a government
in exile, and when conducting its FOREIGN RELATIONS it still
asserts that it is the legitimate government of China, although
from a legal and historical standpoint such an assertion is untrue
Serious Violations of International Law
Members of the U.S. Congress and officials of the Executive Branch
often praise Taiwan’s “democratic development,” while failing to
note that the Republic of China Constitution, upon which such
supposed “democratic development” is based, was promulgated
during a period of belligerent occupation as the basis for an entirely
new legal code in Taiwan territory. Such a promulgation is therefore
a major violation of the laws of war.
There is no statute of limitations on violations of the laws of war.
U.S. Constitution, supremacy clause
The U.S Constitution specifies that a Senate ratified treaty, such as
the SFPT, is part of “the supreme law of the land.” However, since
late April 1952, U.S. Executive Branch agencies, and in particular the
Dept. of State and Dept. of Defense, have been guilty of a grave
dereliction of duty in regard to putting the provisions of the SFPT
into force .
Indeed, up to the present day, these Executive Branch agencies treat
the SFPT as a “lost treaty,” when in fact its provisions have a higher
legal weight than the Taiwan Relations Act, the Three Joint USA –
PRC Communiques, the One China Policy, or Presidential statements
such as the Six Assurances and the Three Noes.
Collected Statements from the U.S. Executive Branch
and the Courts
SECRETARY POWELL'S STATEMENT
“Our policy is clear. There is only one China. Taiwan is not
independent. It does not enjoy sovereignty as a nation,
and that remains our policy, our firm policy.”
(Source: Statement by Sec. of State Colin Powell, Oct. 25, 2004)
DIRECTOR WILDER'S STATEMENT
“Taiwan,
or the Republic of China, is not at this point a
state in the international community. The position of the
United States government is that the ROC -- Republic of
China -- is an issue undecided, and it has been left
undecided, as you know, for many, many years.”
(Source: Statement by Dennis Wilder, US National Security Council Senior Director for Asian
Affairs, Aug. 30, 2007)
ROGER C. S. LIN ET AL. v. UNITED STATES OF AMERICA
(March 18, 2008 District Court Decision)
[The Native Taiwanese] Plaintiffs have essentially been
persons without a state for almost 60 years. The last
completely clear statement of authority over Taiwan came
from General MacArthur in 1945. One can understand and
sympathize with Plaintiffs' desire to regularize their position in
the world.
(April 7, 2009 Court of Appeals Decision)
America and China's tumultuous relationship over the past
sixty years has trapped the inhabitants of Taiwan in political
purgatory. During this time the people on Taiwan have lived
without any uniformly recognized government. In practical
terms, this means they have uncertain status in the world
community which infects the population's day-to-day lives.
This pervasive ambiguity has driven Appellants to try to
concretely define their national identity and personal rights.
PRESIDENT HARRY S. TRUMAN
Letter to Warren Austin, Aug. 27, 1950
[excerpt]
The Chinese Government was asked by the Allies to
take the surrender of the Japanese forces on the
island. That is the reason the Chinese are there now.
PRESIDENT DWIGHT D. EISENHOWER
Mandate for Change 1953-1956, Doubleday & Co., New York, N.Y.
(1963)
[excerpt]
The Japanese peace treaty of 1951 ended Japanese
sovereignty over the islands but did not formally cede
them to "China," either Communist or Nationalist.
CONGRESSIONAL RESEARCH SERVICE
China/Taiwan: Evolution of the "One China" Policy
Date: June 24, 2011
[excerpt]
Even while recognizing the ROC government and its "jurisdiction" over
Taiwan, on the eve of the Nixon Administration's contacts with PRC leaders
in Beijing, the State Department testified to Congress in 1969 and 1970 that
the juridical matter of the status of Taiwan remained undetermined. The
State Department also wrote that:
In neither [the Japanese Peace Treaty of 1951 nor the Treaty of
Peace between the Republic of China and Japan of 1952] did
Japan cede this area [of Formosa and the Pescadores] to any
particular entity. As Taiwan and the Pescadores are not covered by
any existing international disposition, sovereignty over the area is an
unsettled question subject to future international resolution. Both
the Republic of China and the Chinese Communists disagree with
this conclusion and consider that Taiwan and the Pescadores are
part of the sovereign state of China. The United States recognizes
the Government of the Republic of China as legitimately
occupying and exercising jurisdiction over Taiwan and the
Pescadores.
CONGRESSIONAL RESEARCH SERVICE
China/Taiwan: Evolution of the "One China" Policy
Date Issued: July 9, 2007
[ excerpt]
1.
The United States did not explicitly state the sovereign
status of Taiwan in the three US-PRC Joint
Communiques of 1972, 1979, and 1982.
2.
The United States "acknowledged" the "One China"
position of both sides of the Taiwan Strait.
3.
US policy has not recognized the PRC's sovereignty over
Taiwan;
4.
US policy has not recognized Taiwan as a sovereign
country; and
5.
US policy has
undetermined.
considered
Taiwan's
status
as
SHENG v. ROGERS, D.C. CIRCUIT, OCT. 6, 1959
In this case the judges examined the legal status of Taiwan in detail,
and held:
" . . . that the Government of the Republic of China
exercises authority over the island; that the sovereignty of
Formosa has not been transferred to China; and that
Formosa is not a part of China as a country, at least not as
yet, and not until and unless appropriate treaties are
hereafter entered into. Formosa may be said to be a
territory or an area occupied and administered by the
Government of the Republic of China, but is not officially
recognized as being a part of the Republic of China."
TREATIES IN FORCE
For many years, and indeed up to the present day, the "Taiwan"
entry in the U.S. Dept. of State publication Treaties in Force has
clearly noted that:
"The United States does not recognize the Republic of China
as a state or a government."
Written & Compiled by the
Taiwan – U.S. Democracy
Association
Version 1.01
September 2014
Updated April 2015