The key to understanding the international legal position of Taiwan, and the legal position of the "Republic of China," is to examine all relevant issues from the perspective of the laws of war of the post-Napoleonic period.
Accordingly, we can see that the surrender ceremonies for Japanese troops in Taiwan on Oct. 25, 1945, mark the beginning of the military occupation of Taiwan.
Considering the situations of California, New Mexico, Utah, etc. in 1847 (Mexican American War), and the situations of Puerto Rico, Guam, the Philippines, and Cuba in 1898 (Spanish American War), and other situations of war in the 1800s and 1900s, it is clear that the "conqueror" is "the occupying power." Since the military occupation of a particular area can be delegated to co-belligerents ("allies"), this is more correctly referred to as "the principal occupying power."
Historical Details and their Legal Ramifications
The areas of "Formosa and the Pescadores" (aka Taiwan) had been ceded to Japan in the 1895 Treaty of Shimonoseki. After the Dec. 8, 1941 U.S. Declaration of War against Japan, all military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by U.S. military forces. The United States is the "conqueror" and will be the principal occupying power.
Although Chiang Kai-shek ostensibly accepted the surrender of Japanese troops in Taiwan on behalf of the Allies (based on the provisions of Gen. MacArthur's General Order No. 1 of Sept. 2, 1945), the ensuing military occupation of Taiwan is being conducted on behalf of the principal occupying power -- the United States of America. This is a principal - agent relationship.
Hence, in relation to Taiwan, as of October 25, 1945, the ROC (under Chiang Kai-shek) is a subordinate occupying power. The United States is the principal occupying power. United States Military Government jurisdiction over Taiwan has begun as of this date.
In December 1949, high officials of the ROC fled to occupied Taiwan to become a government in exile.
There has been no change in these statuses to date. Hence, at the present time, the ROC in Taiwan is (1) a subordinate occupying power, beginning Oct. 25, 1945, and (2) a government in exile, beginning December 1949. Under the laws of war, the ROC exercises effective territorial control over Taiwan, but not sovereignty.
Confusion in the World Community
The world community was confused for so many years because the ROC was recognized by the United Nations as the sole legitimate government of China up through Oct. 25, 1971, and recognized by the United States as the sole legitimate government of China up through Dec. 31, 1978. (The Soviets recognized the PRC as the sole legitimate government of China in 1949, and the British followed very quickly in Jan. 1950. France followed in 1964.)
The PRC cannot claim the sovereignty of Taiwan based on the "successor government theory" because the ROC never had it in the first place.
Importantly, for all persons interested in promoting liberty and democracy throughout the world, it is necessary to recognize an established point of international law which says that there are no actions which a "government in exile" can take in order to enable it to become the legally recognized government of its current locality of residence.
Hence, despite the strides taken toward democratic development by the ROC in Taiwan, the world community is still unable to recognize it as a sovereign state. Moreover, the post war peace treaty did not award the territory of "Formosa and the Pescadores" to the ROC.
Summary and Conclusions
In summary, the areas of "Formosa and the Pescadores" (aka Taiwan) are occupied territory of the USA. The United States of America is the principal occupying power, as confirmed in Article 23(a) of the San Francisco Peace Treaty of April 28, 1952. Moreover, the fact that United States Military Government (USMG) has jurisdiction over "Formosa and the Pescadores" is fully confirmed by Article 4(b) of the SFPT.
It is an established tenet of the laws of war that for a territorial cession in a peace treaty after war, the military government of the principal occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted. At the present time, USMG jurisdiction over Taiwan is still active.
The One China Policy is correct. However, the One China Policy does not say that the USA recognizes that Taiwan is a part of China. This has been clarified by U.S. Executive Branch officials on many occasions.
Taiwan's correct formulation for entering the WHO is as an associate member under the USA, similar to Puerto Rico.
Special mention should be made of the Jinmen and Mazu island groups. These are sovereign ROC territory. (Formosa and the Pescadores are not.)
The Taiwan Civil Government is working with the U.S. Department of State to reveal the truth of Taiwan's legal status. The SFPT contains the full specifications, and (according to Article VI of the U.S. Constitution) is part of the supreme law of the land.
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