INTRODUCTION TO TAIWAN'S LEGAL STATUS
HOW COULD THIS HAPPEN?
After reading many of the selections on this website, and understanding the problems which the Taiwanese people have been facing for the last sixty years, many people ask the question:
"How could this happen?"
The organizers of the Taiwan Civil Government (TCG) believe that in dealing with the Chiang Kai-shek (CKS) regime, the so-called Republic of China, the United States made three key mistakes in the 1940s.
Under the laws of war recognized by all civilized countries since the end of the Napoleonic era, the surrender of Japanese troops in Taiwan can only be interpreted as the beginning of the military occupation of the island, and "military occupation does not transfer sovereignty." Customary precedent dictates that any and all arrangements for the transfer of sovereignty of territory must be specified in a peace treaty. Moreover, in regard to the treatment of the native inhabitants of occupied territory, mass naturalization, the implementation of military conscription policies, forced emigration, etc. are all war crimes.
- MISTAKE #1: Allowing the CKS regime to announce "Taiwan Retrocession Day" upon the surrender of Japanese troops on Oct. 25, 1945, and to undertake the administration of Taiwan territory on this premise
- MISTAKE #2: Allowing the CKS regime to announce the mass naturalization of native Taiwanese persons as ROC citizens in January 1946
- MISTAKE #3: Allowing the CKS regime to begin implementing military conscription policies over native Taiwanese persons in the late 1940s
While it is true that none of the Allies recognized any transfer of the territorial sovereignty of Taiwan to the ROC upon the occasion of the the Oct. 25, 1945, Japanese surrender ceremonies on the island, the Allies were not adamant enough in their pronouncements at the time. In fact, the U.K., United States, France, Australia, etc. should have demanded that the proclamation of "Taiwan Retrocession Day" be rescinded, and if the ROC military officers failed to comply they should have been brought before a military tribunal and put on trial for violating the laws of war.
With the announcement of "Taiwan Retrocession Day" rescinded, it would then be much easier to forbid any mass naturalization procedures being announced in January 1946, since the legally speaking local Taiwanese people were still considered Japanese nationals at this point, (and indeed even as late as early 1952).
Military conscription of native Taiwanese people by the ROC occupation forces, (which forces later deteriorated into a government in exile by December 1949), is also disallowed.
In the pre-Napoleonic era, in many countries throughout the world, conquest by military forces was quite frequently viewed as legal grounds for annexation of the territory. However, these legal norms began to change in the post-Napoleonic era, approximately from 1830 onward. (In fact, the United States government recognized the difference between "military occupation" and "annexation" even in the late 1700's.) Under military occupation, the victorious state which occupies an enemy's territory is only an administrator. The rules of usufruct apply.
Usufruct -- (1) the right to the use and enjoyment of another's property and its profits, (2) the right to use and enjoy the profits and advantages of something belonging to another as long as the property is not damaged or altered in any way.
[Reference: the Hague Regulations stipulate that "the occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct." Hence, the occupying power does not have the right of sale, unqualified use, or expropriation of such property. Moreover, as administrator or usufructuary the occuping power should not exercise his rights in such a wasteful and negligent manner as seriously to impair the property's value.]
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