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After decades of dictatorial and authoritarian rule, Taiwan (under the nomenclature of the "Republic of China") had emerged by the late 1990s as an increasingly democratic society, with its first popular elections for President held in 1996. The KMT candidate Lee Teng-hui was the winner.
Meanwhile, during the 1990s, increasing numbers of Legislative seats in the Republic of China's Legislative Yuan were being made available to popularly elected candidates, thus ending some fifty years of KMT stranglehold on the composition of that government body.
We, the members of the FNLA, accept the fact that from the close of hostilities in WWII in the Pacific to the present, Taiwan's status has remained as "undetermined." However, we believe that the key parameters of this undetermined status can be completely and precisely delineated. Using this methodology, the so-called "strategic ambiguity" regarding the Taiwan question can be totally eliminated, and the civil rights of the native Taiwanese people can be more fully safeguarded.
The following legal and historical clarifications are noteworthy:
In the following pages, much additional information will be given to demonstrate the validity of the above given "Concise Statement of Taiwan's International Legal Position."
The goal in presenting this assembled data is to develop an analytical framework whereby any serious student of Taiwan studies can obtain this recognition of Taiwan's International Legal Position by merely examining (a) the historical record and (b) the Senate-ratified SFPT.
Under Article 6 of the US Constitution, the content of the Senate-ratified SFPT is part of the "supreme law of the land."
California and Taiwan are on opposite sides of the Pacific Ocean. The distance from San Francisco, Calif. to Taipei, Taiwan, is 6452 miles (10382 km.) In trying to explain the legal status of Taiwan, few if any researchers examine the history of California. This is a serious oversight, because there are many useful points of reference.
Most importantly, an overview of the history of California allows us to examine the basic nature of military occupation, and in particular how military occupation relates to peace treaty cessions.
In the realm of international law, the concept of "military occupation" is primarily an outgrowth of the Napoleonic Wars. In other words, in most areas of the world, in the period before the early 1800's, armies of a country which conquered other territory simply annexed that territory. The conqueror was the annexor.
In the post-Napoleonic world, these norms began to change.
The book Military Government and Martial Law, by William E. Birkhimer, Kansas City, Missouri, Franklin Hudson Publishing Co., third edition, revised (1914), (hereinafter "Birkhimer"); the US Army Field Manual FM 27-10 The Law of Land Warfare (first edition: Oct. 1940, latest update: July 1976); and numerous US Supreme Court cases are often used as references for discussing military occupation issues.
The following excerpts can serve to clarify various questions which may have arisen in our overviews of the military occupation of California, Puerto Rico, and Guam.
It is very important to have a full understanding of the following terminology and concepts before entering into a discussion of the San Francisco Peace Treaty's disposition of Taiwan.
(A.) civil government: [in the practice of the United States] (1) administrative authority conducted by civilian officials in a government of territory (or a state) under constitutional powers of the US Congress, (2) a government as distinguished from "military government."
(B.) military government: the form of administration by which an occupying power exercises governmental authority over occupied territory.
Note: Military government continues until legally supplanted.
Many people claim that the Republic of China is the legal government of Taiwan based on the provisions of the following legal (or quasi-legal) announcements, documents, and/or doctrines.
(1) Abrogation of all treaties, conventions, agreements, and contracts regarding relations between China and Japan (including the Treaty of Shimonoseki) by the ROC government in 1937,
(2) Cairo Declaration of Dec. 1, 1943,
(3) Potsdam Proclamation of July 26, 1945,
(4) Japanese Surrender Documents of Sept. 2, 1945,
(5) Treaty of Taipei (Sino-Japanese Peace Treaty) of Aug. 5, 1952.
In 1941, China proclaimed that all treaties with Japan were abrogated. Though this act was devoid of legality and effect in international law, China pressed its case at meetings of the Allies and succeeded, at last, in having some of its territorial demands incorporated in the Cairo Declaration of December 1, 1943, which read in part:
The Three Great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.
In view of the Chinese claim that the surrender of Japan amounted to a transfer of sovereignty over Formosa and the Pescadores (aka "Taiwan"), it seems surprising that little attention is given by China to the Japan surrender documents and the events surrounding the surrender. Instead, the legal basis for China's claim to sovereignty over Taiwan rests almost entirely on the Cairo Declaration, a non-binding press release, issued unilaterally by a group of belligerents years before victory over the enemy was certain. An examination of the Act of Surrender in the China Theatre and other surrender documents may illuminate the situation:
(1) The Act of Surrender, and SCAP General Order no. 1, authorised the surrender of Japanese forces, not Japanese territories. The Act and the General Order were military directives, establishing procedures for demobilising Japanese forces. They were not meant to settle political issues. The assignment of members of the Allied coalition to disarm Japanese forces in certain areas in no way implied the members' permanent possession of those areas, no more so than General Ho Ying-chin's memorandum partitioned China amongst fifteen generals.
Based on the previous examples of California, Puerto Rico, and Cuba, as well as the additional exhaustive clarifications presented previously, the following authoritative commentary on the legal status of (1) Taiwan and (2) the ROC, can be offered.
Overviewing the situation of Taiwan during WWII in the Pacific, the United States was the conqueror and therefore will be the (principal) occupying power.
The military occupation of Taiwan began with the surrender of Japanese troops on Oct. 25, 1945. The administration of Taiwan was conducted separately from that of metropolitan Japan. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Taiwan territory has begun as of this date. However, the military occupation of Taiwan has been delegated to the representatives of Chiang Kai-shek, who call themselves the "Republic of China."
Taiwan was sovereign Japanese territory until the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952. According to the terms of Article 2(b) of the Treaty, Japan ceded Formosa and the Pescadores (aka "Taiwan") but no "receiving country" was specified.
China, a non-party to the treaty, did not receive "any right, titles or benefits" under the SFPT except as specifically provided in Article 21. Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan.
Many people claim that Taiwan is independent, others say that it is a part of China. However, in the last few years another explanation has emerged, and it is gaining more and more adherents. Under this explanation, since 1952 Taiwan has actually remained under the jurisdiction of the military arm of the US government.
During a mid-December 2007 visit to Taiwan, Stephen Yates, former deputy assistant for national security affairs to US Vice President Dick Cheney and now president of DC Asia Advisory consulting group, stated that Taiwan officials can ask for clarification on US policy in matters that affect Taiwan's international status and participation in international organizations. Such remarks should come as good news to the Taiwanese people, who often consider the US Executive Branch's many pronouncements on Taiwan to be contradictory and even outright baffling.
Of course, different political groups in Taiwan are not without their contradictions as well, with little consensus on Taiwan's present status and desired future path for development. Some local parties insist that Taiwan is "already an independent nation," while others loudly proclaim the island to be "an integral part of China." However, during the past several years, a third explanation has gained more and more proponents. This new explanation maintains that Taiwan is occupied territory of the USA. In more technical terminology, this means that Taiwan is a US overseas territory under the jurisdiction of the United States Military Government (USMG). Below, we will refer to this as the "occupation theory."
Those who discount this reasoning are hard pressed to clarify why it so perfectly explains the many puzzling aspects of the US policy on Taiwan. While Mr. Yates is not known to be proficient in analyzing Taiwan's international legal status from this angle, the following brief overview illustrates the depth of the analysis, and will no doubt come as a surprise to most commentators on the US - Taiwan - PRC triangular relationship.
Nationality may be defined as "the status of belonging to a particular nation, whether by birth, origin, or naturalization." A related concept is allegiance, which may be defined as "the obligation of support and loyalty to one's nation or sovereign."
Nationality: Although native Taiwanese people are currently classified as citizens of the Republic of China (ROC), and hold passports and identification documents of the ROC, it can be argued that there is no legal basis for such a classification.
Obviously, the first point of reference in making such an argument is to say that the 1952 San Francisco Peace Treaty (SFPT), the 1979 Taiwan Relations Act (TRA), and the 1996 US Executive Order 13014 have not recognized the ROC's Ministry of Foreign Affairs as having the legal authority to issue passports to native Taiwanese persons in the area of Formosa and the Pescadores (aka "Taiwan").
The United States recognized the ROC as the de-jure sovereign of "China" up through Dec. 31, 1978, however there are no US or international legal documents, or US policy statements, which have ever recognized either (1) the forcible incorporation of Taiwan into ROC national territory, or (2) the ROC as being the de-jure sovereign of Taiwan. In fact, a 1959 D.C. Circuit court case specifically quoted US Dept. of State officials as denying that the ROC exercised sovereignty over Taiwan.
Many civilians are confused by the nature of fiduciary relationships. The following quotations can be of help in explaining and illustrating this more clearly.
1. In the Treaty of Paris after the Spanish American War, Spain ceded the sovereignty of Cuba, but it was not given to any other country. The United States was the (principal) occupying power. Hence, as summarized previously, the situation of Cuba after the Spanish American War provides good comparative analysis for Taiwan.
Chart: Examination of Taiwan's Territorial Sovereignty and the ROC's International Legal Position
Content . . . .
From a thorough reading of this Background Note: Taiwan, it is impossible to understand why DOS considers ROC/Taiwan to be a non-sovereign nation. This then leads the majority of members of the public (in Taiwan and in the USA) to conclude that the historical and legal record does not support such a conclusion, and hence DOS officials are not being honest or sincere, rather they have a "hidden agenda," (which not doubt involves some sort of sell-out to officials in Beijing.)
This sort of criticism can be avoided entirely if the correct situation is presented in Background Note: Taiwan. Clearly, there is an urgent need to bring Executive Branch statements on the Taiwan status issue into full compliance with all the official published and/or promulgated reports of the Executive Branch which are printed in books, displayed on the internet, broadcast over the radio, released to the media, or whatever.
Importantly, the Background Note: Taiwan fails to make any mention of the San Francisco Peace Treaty of 1952. Territorial cession is accomplished by peace treaty, and the SFPT did not award the sovereignty of Taiwan to China.
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," (hereinafter "the customary laws of warfare").
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 United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.
Lawmaking treaties may be compared with legislative enactments in the national law of the United States and the customary law of war with the unwritten Anglo-American common law.
In democratic politics, major national policies are established based on public opinion. Only autocratic, dictatorial and non-democratic political parties see the will of their deceased leaders as national guidelines in order to secure power.
President Ma Ying-jeou was skyrocketed into his official career under the party-state system and his anti-democratic record is clear for all to see. Although he was elected through a democratic mechanism, he only took public opinion into consideration before the election. Since his election, Ma has showed no signs of considering public opinion.
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Taiwan Civil Government