In the WWII period, after the end of military battles in the Pacific, United States Military Government (USMG) in "Formosa and the Pescadores" (aka "Taiwan") began on October 25, 1945, with the surrender of Japanese troops. USMG delegated the administration of this area to the Chinese Nationalists by means of the "law of agency." It is important to recognize that the administration of this area was handled separately from the administration of the four main Japanese islands.
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 Treaty of Peace with Japan (San Francisco Peace Treaty) was signed on September 8, 1951, and came into force April 28, 1952. The following Articles are important.
||Japan renounces all right, title and claim to Formosa and the Pescadores.
||Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.
|| . . . . . including the United States of America as the principal occupying Power, . . . . .
In the peace treaty, Japan ceded "Formosa and the Pescadores," but no receiving country was designated. This is a "limbo cession." An analysis of the transfer of the sovereignty of Taiwan from Japan through USMG is provided as follows.
||Japan has ceded Taiwan in the peace treaty.
||In effect, upon the date of cession, Japan has ceded Taiwan to the "United States Military Government," and this is an interim status condition.
||After consideration by all relevant parties, no agreement was reached to specify any other country as the "receiving country" for the cession. Hence, none is stipulated.
||Importantly, upon the date of cession, under international law, an authorized civil government for Taiwan, to whom the principal occupying power can relinquish the territory, does not yet exist. Moreover, no country has been authorized to pass relevant legislation to establish a civil government for Taiwan. Taiwan remains under "United States Military Government" until USMG is legally supplanted.
Under USMG, the United States flag should be flying over Taiwan as of April 28, 1952, (if not earlier). The allegiance of the local populace is to the United States.
It is important to recognize that under the military government of the (principal) occupying power, Taiwan has not yet reached a final political status. During this period, Taiwan is in "interim status" under the law of occupation. This "interim status" condition continues until the military government of the principal occupying power is legally supplanted.
In other words, according to the examples provided above in regard to Puerto Rico, the Philippines, Guam, and Cuba, it is clear that the military government of the principal occupying power does not end upon the coming into force of the peace treaty, but continues until legally supplanted. To date, USMG administrative authority over Taiwan is still active.
The following wording in the February 28, 1972, communique is important:
The U.S. side declared: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves. With this prospect in mind, it affirms the ultimate objective of the withdrawal of all U.S. forces and military installations from Taiwan. In the meantime, it will progressively reduce its forces and military installations on Taiwan as the tension in the area diminishes.
In the Shanghai Communique, the United States has established the One China Policy, and has made arrangements for the final disposition of Taiwan, in accordance with SFPT Article 4(b).
However, during the period of "interim status," Taiwan is entitled to fundamental rights under the US Constitution. For the territory, these fundamental rights include the Article 1, Section 8 stipulation that Congress will provide for the "common defense." For the people, these fundamental rights include life, liberty, property, and due process of law under the Fifth Amendment. Unfortunately, these rights have been denied for over fifty years. Additionally, with no US High Commission established in Taiwan, the Taiwanese people have even been denied the right to petition the Government for a redress of grievances.