When people are discussing the international legal status of Taiwan, the following Six Mistakes are often noted. As a result, much unnecessary confusion is caused. The officers of the TCG encourage all persons to make all necessary efforts to avoid these mistakes at all times.
Mistake # 1: Stating that "World War II in the Pacific" ended in 1945.
Analysis: There is a difference between the "end of hostilities" and the "end of the war."
War between Japan and the USA: US courts have held that the war between the Japan and the USA ended when the San Francisco Peace Treaty came into effect on April 28, 1952. Indeed, this fact is clearly stated in Article 1 of the SFPT.
(a) The state of war between Japan and each of the Allied Powers is terminated as from the date on which the present Treaty comes into force between Japan and the Allied Power concerned as provided for in Article 23.
It is also important to note that as a non-signatory to the SFPT, the Republic of China (ROC) is not a member of the Allies as spoken of in the treaty.
War between Japan and the ROC: The war between Japan and the ROC ended on Aug. 5, 1952, with the coming into force of the Treaty of Taipei:
The state of war between the Republic of China and Japan is terminated as from the date on which the present Treaty enters into force.
- Note # 1: The Second Sino-Japanese War
- It is important to remember that Taiwan was not within the geographical scope of the Second Sino-Japanese War. Many Chinese historians state that this war began in 1937, but in fact the ROC did not declare war on Japan until Dec. 9, 1941, a day after the US declared war on Japan.
In other words, there was no "Chinese-Japanese" fighting done on the soil of Formosa and the Pescadores (aka "Taiwan"), nor did any Chinese aircraft launch attacks against targets in Taiwan during the 1941 to 1945 period.
- Note # 2: War between Japan and the PRC
- There was no war between Japan and the PRC, because hostilities ended in 1945, and the People's Republic of China (PRC) was not founded until Oct. 1, 1949.
Mistake # 2: Maintaining that Taiwan was "occupied by the Allies."
Analysis: At the Oct. 25 1945 surrender ceremonies, it is certainly true that the flags of the Allies were prominently displayed. However, the surrender ceremonies and the military occupation are two different things. There is nothing in the internationally recognized laws of war (and in particular, see the Hague Conventions and Geneva Conventions) to suggest that the military forces accepting the surrender of enemy troops gains any special rights or privileges due to this fact.
The right (and obligation) to conduct the military occupation falls to the "conqueror" ...... this has been recognized since Emerich de Vattel published his opus The Law of Nations in 1758, and has been discussed repeatedly in numerous U.S. Supreme Court cases.
In the situation of Taiwan, all military attacks during the 1941 to 1945 period were conducted by US military forces. Hence, the USA is the conqueror and will be the (principal) occupying power, as spoken of in the customary laws of warfare. However, the administrative authority for this military occupation was
delegated to the Chinese Nationalists. The resulting arrangement is that the United States of America is the principal, and the ROC is the agent.
Such an analysis is confirmed by the provisions of the SFPT, where Article 23(a) specifies the United States of America as "the principal occupying power." The ROC is not a signatory to the treaty.
Mistake # 3: Advancing the argument that a government in exile can slowly (over time) become recognized as the
"legitimate government of its current locality of residence."
Analysis: Two important tenets of the laws of war are (a) Territory is considered occupied when it is actually placed under the authority of the hostile army, (b) Military occupation does not transfer sovereignty. Accordingly, the Oct. 25, 1945, surrender of Japanese troops in Taiwan marked the beginning of the military occupation of Taiwan, and there was no transfer of sovereignty on that date. The United States of America is the principal occupying power, and the ROC is a subordinate occupying power.
Taiwan was sovereign Japanese territory until ceded in the SFPT, effective April 28, 1952. Accordingly, when the ROC moved its central government to occupied Taiwan in December 1949, it became a government in exile.
With full cognizance of the above historical and legal details however, it must be recognized that under international law there are no procedures, methods, or actions which can enable a government in exile to become recognized as the "legitimate government of its current locality of residence."
In the post-Napoleonic period, there is simply no precedent under international law where such "legitimacy" has ever been established.
Mistake # 4: Equating the concepts of "having territorial control" with "possessing sovereignty."
Analysis: For over 65 years, Chinese propaganda has stressed that the geographic areas of "Formosa and the Pescadores" (aka Taiwan) was legally returned to China with the completion of the Oct. 25, 1945, Japanese surrender ceremonies in Taipei. However, under international law, such an interpretation is impossible. Indeed none of the Allies recognized any transfer of Taiwan's territorial sovereignty to China on that surrender date, or on any other date in the 1940s or 1950s.
With reference to the legal status of Taiwan, the following excerpts from Foreign Relations of the United States series, produced by the US Dept. of State (DOS), are informative:
- in a Jan. 19, 1949, report by the National Security Council, it was stated that: "The present legal status of Formosa and the Pescadores is that they are a portion of the Japanese Empire awaiting final disposition by a treaty of peace . . . . the policy which the U.S. has followed since V-J Day [has been] of facilitating and recognizing Chinese de facto control over the islands."
- on Nov. 11, 1950, Sec. of State Acheson informed Sec. of Defense Marshall that: ". . . no formal act restoring sovereignty over these territories to China has yet occurred; . . . "
- on July 1, 1955, State Dept. officials held that: "In the peace treaty, Japan has merely renounced sovereignty over Taiwan, but there has been no other disposition. The United States also has an interest in Taiwan and could assert a legal claim to the island(s). Hence, the disposition of Taiwan is not merely an internal Chinese problem."
When military troops occupy a geographic area they will normally have a very high degree of control over the local territory. However, such a de facto situation is not equivalent to possessing sovereignty over the territory. Indeed, international law states that "Military occupation does not transfer sovereignty." (Importantly, under such a premise, the doctrine of "prescription" cannot be invoked.) Any transfer of territorial sovereignty must be done in a treaty.
DOS informed the Senate in 1970 that: "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." This statement was repeated in a "Legal Status of Taiwan" Memorandum from the DOS Legal Advisor (Robert Starr) on July 13, 1971, and has been often repeated since.
From the close of hostilities in WWII to the present, the ROC has exercised a very high degree of de facto control over Taiwan.
However the de jure situation is something else entirely. Since there are no international legal documents which can prove that the territorial sovereignty of Taiwan has ever been transferred to the ROC, it is impossible to claim that the ROC possesses sovereignty over these islands.
Mistake # 5: Equating "popular sovereignty" with "territorial sovereignty."
Analysis: In the SFPT, Japan renounced all right, title, and claim to Formosa and the Pescadores without specifying a "receiving country." After considering these treaty provisions at length, many scholars like to invoke a doctrine of "popular sovereignty," and claim that under such circumstances the territorial sovereignty of these areas now belongs to the local people.
Unfortunately however, international law does not recognize that any group of people can own (or hold) "territorial sovereignty."
All legal and historical precedent clearly shows that territorial sovereignty of a geographic area is always owned (or held) by a government. This is easily verified by overviewing the subject of "territorial cession."
Customary international law in the post-1830 period has clearly established that territorial cession is accomplished by treaty. Relevant examples are too numerous to mention. Importantly, in the history of the United States, all territorial cessions were done via the specifications of a treaty, including the following well-known examples: Louisiana in 1803, Florida in 1821, California in 1848, Alaska in 1867, Guam in 1899, Puerto Rico in 1899, Virgin Islands in 1917, etc.
Not surprisingly, the local populace had little or no say in the final disposition of these territories. Typically however, when each territory was ceded, there was a specification in the treaty to the effect that the members of the local populace could retain their "original nationality" by undertaking a certain registration procedure within a one year period. Failing to complete this procedure, they would be considered to have gained the nationality of their new (i.e. "receiving country") national government, according to its laws and regulations.
The many examples of territorial cession in the post-1830 period clearly show the true facts of how "territorial sovereignty" is conducted. In 100% of all cases, territorial cession amounts to a transfer of title, which serves to complete a transfer of territorial sovereignty (over the geographic area in question) between governments.
In light of these facts, it is clear that the territorial sovereignty of a country or geographic area is owned/held by a government, it is not owned/held by the local populace.
A definition of the word "government" is provided here for reference --
- a body that has the authority to make and the power to enforce laws within a civil, corporate, religious, academic, or other organization or group.
Note: In its broadest sense, "to govern" means to administer or supervise, whether over a state, a set group of people, or a collection of assets.
Mistake # 6: Failing to understand the concept of "military government" and its significance in the content of the SFPT.
Analysis: Many people read the SFPT over and over but still fail to note that the United States of America is identified as "the principal occupying power" in Article 23(a). Even when this is pointed out to them, they are still confused because they maintain that the treaty does not make any specifications about "occupied territories."
Such confusion no doubt arises because most people are completely unfamiliar with the concept of "military government." We can explain this concept by presenting the following corollaries:
Governmental authority over occupied territory is called military government. THEREFORE An area under military government is occupied territory.
Article 4(b) gives a U.S. federal agency, the United States Military Government, disposition rights over the Japanese territory of Taiwan.
As to whether this military occupation has come to an end at any time in the period of 1952 to the present, this is another source of confusion. Some people advance the arguments that free elections, a referendum, the absence of military personnel on the streets, the issuance of passports by the local governing authorities, widespread democratization, etc., etc. are evidence of the end of "military occupation," but in reality such criteria are irrelevant.
Looking at the situation of territorial cessions in peace treaties, it is clear that a recognized "civil government" must be formed locally . . . . and it must
legally supplant the military government which has jurisdiction over the territory. This legal supplantation is only method which can end the (principal) occupying power's military government, thus resulting in the end of the military occupation.
With reference to Articles 4(b) and 23(a) of the SFPT, it is clear that Taiwan is occupied territory of the United States of America. However, in the eyes of the international community, the ROC government in exile has never been recognized as a valid "civil government" for Taiwan. Consequently, Taiwan has remained as occupied territory up to the present day.
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