Is the ROC actually serving as an AGENT for the United States in the continuing governance of Taiwan after late April 1952?
(1) Introduction: The post-WWII San Francisco Peace Treaty (SFPT) does not authorize the continuing presence of the Republic of China (ROC) in Taiwan after late April 1952. No Articles in the treaty can be offered as proof that the 48 signatory Allies have consented to the ongoing governance of Taiwan by the ROC.
In the SFPT, Japan renounced the territorial sovereignty of Taiwan, however no "receiving country" was specified. This is proof that Taiwan does not belong to China.
(2) It may also be significant to mention that in the US court case of Sheng v. Rogers (D.C. Circuit, Oct. 6, 1959), the judges found that Taiwan "may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China . . . . "
See https://www.taiwanbasic.com/state/usg/shengvsro.htm
(3) In the USA-PRC Joint Communiques, the United States did not recognize that Taiwan is a part of China. The US officials merely acknowledged the Chinese position which was that the Chinese officials said that “Taiwan is part of China.” The US officials never agreed to this.
See https://www.twdefense.info/trust3/onechina-tai4.htm
Also see https://www.twdefense.info/crs-report.htm
(4) In a 1999 interview with Voice of Germany, ROC President Lee Teng-hui said that relations between Taiwan and China should be on a "special state-to-state" basis. However, such comments ignore the fact that Taiwan is not a part of China's national territory, and since late 1949 the ROC in Taiwan has been a government in exile.
(5) Indeed, for many decades the "Taiwan" entry in the US Dept. of State publication Treaties in Force has clearly noted that "The United States does not recognize the Republic of China as a state or a government."
(6) In fact, Taiwan/ROC does not meet the Montevideo Convention criteria for statehood.
See https://www.twdefense.info/trust3/generic.html
However, in regard to actively pointing out the truth of this situation to the Taiwan people and the world community, US government officials have been consistently negligent.
(7) Of significance, however, is to note that there appear to be coherent arguments to attest to the fact that -- the ROC’s presence in Taiwan after late April 1952 can be explained as an exercise of the law of agency between the US military authorities and ROC military authorities. Such an agency arrangement can be legally based on implied authority and/or apparent authority.
(8) Notes on the “The Law of Agency” have been assembled as follows.
(a) With the coming into force of the SFPT on April 28, 1952, the Allies (who fought in the Pacific War) have disbanded. Therefore, it is impossible to conclude that the Allies (as a group, a collective, or in the form of a so-called "condominium") maintain any further authority in regard to territorial disposition issues under the treaty.
(b) A close reading of the SFPT shows that under Article 4(b), Taiwan was left under the jurisdiction of a US federal agency -- the United States Military Government (USMG), in a similar situation to that of the Ryukyu Island group (Okinawa). Taiwan's situation is also comparable to the situation of Cuba after the Spanish American War.
(c) Military government is defined as "the form of administration by which an occupying power exercises governmental authority over occupied territory." Hence, the force of Article 4(b) is to specify that the Article 2 territory of Taiwan, the Article 3 territory of the Ryukyus, etc. are occupied territory of the United States of America. Additionally, Article 23(a) of the treaty confirms the continuing status of the United States as "the principal occupying power."
WHY IS THE REPUBLIC OF CHINA (ROC) IN TAIWAN AFTER OCTOBER 1945?
(9) According to the specifications of General Order no. 1, issued by General Douglas MacArthur on Sept. 2, 1945, the Allies directed the ROC regime under Chiang Kai-shek to go to Taiwan in order to accept the Japanese surrender, and then assume temporary governance there.
(a) In the Fall of 1945, the Allies anticipated a post-war treaty that would confirm and finalize these arrangements.
(b) However, the international situation changed significantly in the following years. In the final version of the SFPT, the signatories did not award or delegate any role for the ROC to play in the continuing governance of Taiwan after April 28, 1952.
(c) In regard to General Order no. 1 (Sept. 2, 1945):
* It authorized the surrender and disposition of Japanese forces, not Japanese territories.
* It was a military directive, establishing procedures for demobilizing Japanese forces.
* It was not meant to settle political questions, and indeed General MacArthur had no authority to "adjudicate" any territorial cession issues.
(d) To further analyze this point, the content of General Order no. 1 authorized the ROC regime under Chiang Kai-shek to establish a presence in Taiwan, including the administration of the island for some period of time. However, in recognition that the SFPT does not ((A)) mention or ((B)) confirm any relevant continuing authorization, and ((C)) this treaty did not transfer the territorial sovereignty of Taiwan to the ROC regime under Chiang Kai-shek, therefore the arrangements for this ROC regime to be in Taiwan (as specified in General Order no. 1) must be considered to have been cancelled by the SFPT.
(e) While it may be true that a large portion of the international community continued to regard the ROC as the sole legal government of China after April 28, 1952, clearly the ROC cannot be recognized as the legal government of Taiwan after this date.
WHY IS THE REPUBLIC OF CHINA (ROC) IN TAIWAN AFTER APRIL 1952?
(10) We can examine the legal basis for the ROC to remain in Taiwan after late April 1952 very straightforwardly. The following points appear to be relevant.
(a) First of all, it must be noted that there is nothing in the SFPT to indicate that the ROC is acting as an agent for the Allies. Indeed, as explained above, the Allies have already disbanded as of late April 1952.
(b) Contrastingly, there is strong evidence to suggest that the ROC on Taiwan is acting as an agent for the principal occupying power (the United States of America) in the continuing governance of Taiwan after April 28, 1952.
(b) Accordingly, the Republic of China under CKS is exercising delegated administrative authority for the military occupation of Taiwan, and may be called the "subordinate occupying power," or (to use more common phraseology) "proxy occupying forces." This is a principal - agent relationship.
(c) 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." Hugo Grotius spoke of agency in his treatise On the Law of War and Peace, written in 1625.
(d) A principal is bound by the acts of an agent if the agent has authority. There are three types of authority: (1) express (including written), (2) implied, and (3) apparent.
(e) Many researchers assert that the USA and the ROC have never signed any formal agency agreement in regard to the administration of Taiwan. But such a formal written pact is only necessary when granting "express authority." However, it certainly seems possible that an agent (such as the ROC) can legally operate under the other two types of authority, which do not require a written document.
(11) Additional internet links for reference
Introduction and Outline for Modern Taiwanese History
https://www.taiwanbasic.com/twmodhiae.htm
Foreign Relations of the United States
Documents on the Taiwan Status Issue
https://www.twdefense.info/trust3/frus-1946aq.htm
(12) Observations
(a) To discuss the role of ROC as an agent or agency for U.S. in governance of Taiwan, a closer look at the term “agency” is important. AGENCY is a fiduciary relationship between a principal and an agent. When a person “principal” gives an authority to another person “agent”. The agent shall act on behalf of the principal and can control, practice, or manage the principal’s control. If authority in the form of assent or consent to agent is given by principal in written or verbal form then it is expressed authority otherwise it is implied or apparent authority.
(b) The surrender ceremonies of October 25, 1945, and the military occupation beginning immediately thereafter are two different things. While it may be argued that the ROC accepted the surrender of Japanese troops on behalf of the Allies, nevertheless, the military occupation is conducted on behalf of the legal occupier. The ROC is not the legal occupier.
See https://www.twdefense.info/trust3/supcourt.html
(c) In October 1945, jurisdiction over Taiwan was assumed by the ROC government. Taiwan remained under Japanese sovereignty until the coming into force of the San Francisco Peace Treaty (SFPT). After April 28, 1952, the SFPT did not authorize the continuing presence of the ROC in Taiwan. The ongoing governance of Taiwan by the ROC does not have any proof that it is consented to by any signatory allies.
(d) The ROC was not invited to sign the SFPT. Hence the ROC is not a member of the Allies as defined in the treaty. See Article 25.
https://www.taiwanbasic.com/treaties/SFPT.htm
(e) Although the Allies, lead by the USA, (ostensibly) did not approve of the continuing presence of the ROC in Taiwan, but the ROC was still allowed to govern Taiwan (after late April 1952).
(f) The United States Military Government (USMG) was given the jurisdiction over Taiwan according to SFPT Article 4(b). Instead of instituting “direct administration” as it had done in the Ryukyus, it assisted the ROC in maintaining peace & security and in upgrading defense infrastructure of Taiwan through the U.S. military. Arguably, this placement/arrangement could be either considered as apparent authority or implied authority.
(g) Taiwan (ROC) and the U.S. built a strong foundation upon trust and cooperation. In 1952, Article 4(b) of the SFPT stipulated that a U.S. federal agency “the United States Military Government” (USMG) was given the jurisdiction over Taiwan. Military government is the form of government in which an occupying power exercises governmental authority over occupied territory. Therefore, the U.S. plays a vital role in Taiwan’s governance through its military although it does not recognize the ROC as a state. Moreover, Article 23(a) of SFPT shows the status of the U.S. as a “principal occupying power”. Hence, it can be claimed that the U.S. is the principal and administers peace & security of Taiwan by empowering the ROC which acts as an agent.
(h) The Cold War era (1950s) is important in this regard as the U.S. and the ROC signed the Sino-American Mutual Defense Treaty in 1954. This was a military alliance where the ROC was a part of collective security in the Pacific and East Asian region. This strengthened the bond by flourishing Taiwan’s economy and with American aid, it started to grow. One could surmise that an agency relationship exists here as the ROC was given an authority & support by the U.S. to become a part of collective security.
(i) Despite the shift of diplomatic relation from the ROC to the PRC on January 1, 1979, U.S. continued to support the ROC on many fronts and maintained commercial and cultural substantive ties with Taiwan. In 1979, The Taiwan Relations Act (TRA) was signed into law by the U.S. President Jimmy Carter to maintain the relations with people of Taiwan & their government. The security elements of TRA allowed Taiwan to be treated as a state under the U.S. policy and law. Specifically, the Act declares that,
“Whenever the laws of the United States refer or relate to foreign countries, states, governments and nations or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.”
(j) On the one hand the U.S. does not give official diplomatic recognition to the ROC after January 1979, but on the other hand it is giving Taiwan all the privileges which a state or government enjoys. This means that the United States is treating Taiwan as a “sub-sovereign foreign-state equivalent.” The U.S. has given authority to Taiwan, although the U.S. being the principal has never admitted that it recognizes ROC as the legal government of Taiwan. Nevertheless, one could argue and indeed it can be inferred from actions of the U.S. government that there exists an implied relation.
(k) The Six Assurances of the Reagan administration in 1982 further strengthened the bilateral relations. These stipulations for Taiwan bolstered the foundations of ROC and hence it can be argued that the ROC is an implied agent of US as it gets much American support in the governance of Taiwan.
(l) In 2013, a new Exemption and Immunity Agreement was signed between the U.S. and Taiwan for sound legal protections. Later in 2017, Taiwan was made a part of the U.S. Global Entry Program for the convenience of travellers and exchanges among the U.S. and Taiwan. Despite the break in diplomatic relation after 1979, government of U.S. is still supporting the ROC for the past forty years on all the fronts. With no other legal basis for the ROC to remain in Taiwan after late April 1952, one could argue that this is essentially an agency relationship.
(m) The United States’ Congress successfully promulgated varying resolutions to support Taiwan. These have helped Taiwan in exercising its freedom, strengthening its military might and defense capabilities, and making it a meaningful entity. In March 2018, the Taiwan Travel Act was made into law by the U.S. President Donald Trump to allow all U.S. officials to visit Taiwan & vice-versa. Furthermore, enactment of the TAIPEI Act in 2020 demonstrated the U.S. Congress’s support to the ROC for establishing diplomatic relations around the globe. In December 2020, the Taiwan Assurance Act was incorporated in the spending bill of 2021 by Mr. Trump, to empower defense capabilities of Taiwan by regular transfer of defense articles. All these actions of U.S. after 1979, reflect that the U.S. is helping the ROC continuously despite the threats of sanctions from the PRC.
(n) If the U.S. does not officially recognize the ROC then it would appear that there would be no point to support the ROC to such an extent on every front since 1979. However, the U.S. continues to support the ROC because both of them share mutual interests. The U.S. not only supports the ROC at the national level but it also assists the ROC in countering China which is an American competitor. So, it can be inferred that U.S. has given tacit authority to the ROC in the administration of Taiwan. Thus, one could argue that the ROC can be called an agent for the U.S. in the governance of Taiwan.
(o) The attitude/ role of the United States is a mystery as U.S. government officials have never discussed the scenario (or allegation”) that the ROC in Taiwan is serving as an agent for the U.S. in the governance of Taiwan after late April 1952. As there is no written / expressed authority in this matter. The U.S. has already supported Taiwan in every regard that the ROC in Taiwan is perceived as an agent for the U.S., while the U.S. is being the principal in Taiwan’s continuing governance.
(13) One Important Question
One problem which needs to be addressed is the attitude of the USA in regard to this matter.
The US government officials have never mentioned or discussed the allegation (made by some people in Taiwan) that the ROC in Taiwan is serving as an agent for the USA in the governance of Taiwan after late April 1952.
So, can the fact of "agency" arrangements arise when the principal has made no admission of this situation?
The Law of Agency
Re: The Law of Agency
(14) ADDENDUM: The Chinese Perspective on the "Taiwan Issue"
In support of this argument, the Cairo Declaration of December 1, 1943, and the Potsdam Proclamation of July 25, 1945, are frequently referred to. Sometimes the content of the Japanese surrender documents are mentioned as well.
However the fact remains that the significance of the surrender ceremonies under international law is defined under the 1907 Hague Conventions, and specifically under Article 42 of the accompanying Hague Regulations, as “military occupation.” Importantly, “military occupation" does not transfer sovereignty.
Does such an interpretation apply to China? I seem to recall reading on the United Nations website that the Chinese government ratified the Hague Conventions and Hague Regulations in the World War I era. Hence, it would strongly appear that the Chinese are bound by this interpretation of the significance of the surrender ceremonies based on the 1907 Hague Conventions.
See this reference -- China's Ratifications of "Laws of War" Treaties
https://ihl-databases.icrc.org/applic/i ... ed=CN&nv=4
The Cairo Declaration and Potsdam Proclamation are merely wartime “statements of intention” and have no effect on the application of the Hague Conventions or Hague Regulations.
For the United States, this HR Article 42 is included in the War Dept. Manual FM 27–10 “Rules of Land Warfare,” published October 1, 1940.
The entire situation is somewhat complicated by the fact that many scholars (in many countries, including USA, China, Japan, Korea, Australia, etc.) refer to the surrender ceremonies as “the end of the war,” when in fact the “surrender ceremonies" are merely “the end of hostilities.”
The end of the war occurs when the peace treaty comes into force. For Taiwan that would be the San Francisco Peace Treaty (SFPT) of April 28, 1952. (The Sino-Japanese Peace Treaty came into force Aug. 5, 1952.)
Based on the analysis briefly presented above, Taiwan remained as sovereign Japanese territory until Japan renounced its sovereignty in Article 2b of the SFPT, effective April 28, 1952.
When the Republic of China moved its central government to occupied Taiwan in December 1949, it was moving outside of China's national territory, and immediately became a government in exile.
In consideration that the SFPT did not award the territorial sovereignty of Taiwan to the ROC, it can be said that with certainty that the ROC has never held the territorial sovereignty of Taiwan. Hence, the ROC in Taiwan is not a sovereign entity.
(Note: the announcement of Taiwan Retrocession Day on October 25, 1945; the mass naturalization of native Taiwan persons as “ROC citizens” on January 12, 1946; the promulgation of a new legal code (i.e. “ROC Constitution”) in occupied Taiwan territory, etc. are war crimes.)
Although the qualifications for recognition as “the occupying power" are not clearly specified in the Hague Conventions or Geneva Conventions, one can gain a good understanding by reading relevant US Supreme Court decisions. See -- https://www.twdefense.info/trust3/supcourt.html
For Taiwan, the United States is “the occupying power,” aka “principal occupying power.” The status of the ROC in Taiwan is proxy occupying forces, beginning October 25, 1945; and government in exile beginning December 10, 1949.
The SFPT confirms this delineation of the USA's role in Taiwan. The USA is the principal occupying power, See Article 23a; United States Military Government (USMG) has jurisdiction over Taiwan and the Ryukyus, See Article 4b. (Note: “military government" is the government over occupied territory, See definitions in FM 27–10, all editions.)
USMG jurisdiction over occupied Taiwan did not end on April 28, 1952, with coming into force of SFPT. For comparison, note that USMG jurisdiction over occupied Ryukyu islands did not end on April 28, 1952, with coming into force of SFPT. Moreover, USMG jurisdiction over occupied Cuba did not end on April 11, 1899, with coming into force of Spanish American Peace Treaty.
Taiwan, the Ryukyus, and Cuba were all “limbo cessions" (i.e. “ceded" in the peace treaty with no “receiving country" specified), with the United States as the (principal) occupying power.
According to relevant US Supreme rulings, with the coming into force of the peace treaty, all three qualify as US overseas quasi-trusteeships.
(Note: End of USMG jurisdiction, as announced by US Commander in Chief, is/was —- Cuba, May 20, 1902; Ryukyus, May 15, 1972; Taiwan, no date yet announced.)
In summary, Taiwan is primarily a US problem. The Executive Branch, notably the Dept. of State, and secondly the White House, have mishandled Taiwan since the mid-1940s, and (unfortunately) in large part due to their near total lack of knowledge in regard to the LAWS OF WAR of the post-Napoleonic period.
(For reference, the above analysis regarding the ROC and Taiwan is/was far beyond the analytical ability of Eisenhower's cabinet members or advisors. Sadly, an examination of the historical record shows that later Presidents didn't have a much better grasp of these fundamental points than Mr. Eisenhower did.)
Both the Republic of China officials on Taiwan and the People's Republic of China officials on the Mainland continue to perpetuate the myth that “Taiwan was returned to Chinese sovereignty upon the completion of the Japanese surrender ceremonies of October 25, 1945.”In answer to -- The Chinese Communist party and its' many supporters say that disagreements between China and Taiwan are no other countries' business. Are there good arguments to the contrary?
In support of this argument, the Cairo Declaration of December 1, 1943, and the Potsdam Proclamation of July 25, 1945, are frequently referred to. Sometimes the content of the Japanese surrender documents are mentioned as well.
However the fact remains that the significance of the surrender ceremonies under international law is defined under the 1907 Hague Conventions, and specifically under Article 42 of the accompanying Hague Regulations, as “military occupation.” Importantly, “military occupation" does not transfer sovereignty.
Does such an interpretation apply to China? I seem to recall reading on the United Nations website that the Chinese government ratified the Hague Conventions and Hague Regulations in the World War I era. Hence, it would strongly appear that the Chinese are bound by this interpretation of the significance of the surrender ceremonies based on the 1907 Hague Conventions.
See this reference -- China's Ratifications of "Laws of War" Treaties
https://ihl-databases.icrc.org/applic/i ... ed=CN&nv=4
The Cairo Declaration and Potsdam Proclamation are merely wartime “statements of intention” and have no effect on the application of the Hague Conventions or Hague Regulations.
For the United States, this HR Article 42 is included in the War Dept. Manual FM 27–10 “Rules of Land Warfare,” published October 1, 1940.
The entire situation is somewhat complicated by the fact that many scholars (in many countries, including USA, China, Japan, Korea, Australia, etc.) refer to the surrender ceremonies as “the end of the war,” when in fact the “surrender ceremonies" are merely “the end of hostilities.”
The end of the war occurs when the peace treaty comes into force. For Taiwan that would be the San Francisco Peace Treaty (SFPT) of April 28, 1952. (The Sino-Japanese Peace Treaty came into force Aug. 5, 1952.)
Based on the analysis briefly presented above, Taiwan remained as sovereign Japanese territory until Japan renounced its sovereignty in Article 2b of the SFPT, effective April 28, 1952.
When the Republic of China moved its central government to occupied Taiwan in December 1949, it was moving outside of China's national territory, and immediately became a government in exile.
In consideration that the SFPT did not award the territorial sovereignty of Taiwan to the ROC, it can be said that with certainty that the ROC has never held the territorial sovereignty of Taiwan. Hence, the ROC in Taiwan is not a sovereign entity.
(Note: the announcement of Taiwan Retrocession Day on October 25, 1945; the mass naturalization of native Taiwan persons as “ROC citizens” on January 12, 1946; the promulgation of a new legal code (i.e. “ROC Constitution”) in occupied Taiwan territory, etc. are war crimes.)
Although the qualifications for recognition as “the occupying power" are not clearly specified in the Hague Conventions or Geneva Conventions, one can gain a good understanding by reading relevant US Supreme Court decisions. See -- https://www.twdefense.info/trust3/supcourt.html
For Taiwan, the United States is “the occupying power,” aka “principal occupying power.” The status of the ROC in Taiwan is proxy occupying forces, beginning October 25, 1945; and government in exile beginning December 10, 1949.
The SFPT confirms this delineation of the USA's role in Taiwan. The USA is the principal occupying power, See Article 23a; United States Military Government (USMG) has jurisdiction over Taiwan and the Ryukyus, See Article 4b. (Note: “military government" is the government over occupied territory, See definitions in FM 27–10, all editions.)
USMG jurisdiction over occupied Taiwan did not end on April 28, 1952, with coming into force of SFPT. For comparison, note that USMG jurisdiction over occupied Ryukyu islands did not end on April 28, 1952, with coming into force of SFPT. Moreover, USMG jurisdiction over occupied Cuba did not end on April 11, 1899, with coming into force of Spanish American Peace Treaty.
Taiwan, the Ryukyus, and Cuba were all “limbo cessions" (i.e. “ceded" in the peace treaty with no “receiving country" specified), with the United States as the (principal) occupying power.
According to relevant US Supreme rulings, with the coming into force of the peace treaty, all three qualify as US overseas quasi-trusteeships.
(Note: End of USMG jurisdiction, as announced by US Commander in Chief, is/was —- Cuba, May 20, 1902; Ryukyus, May 15, 1972; Taiwan, no date yet announced.)
In summary, Taiwan is primarily a US problem. The Executive Branch, notably the Dept. of State, and secondly the White House, have mishandled Taiwan since the mid-1940s, and (unfortunately) in large part due to their near total lack of knowledge in regard to the LAWS OF WAR of the post-Napoleonic period.
(For reference, the above analysis regarding the ROC and Taiwan is/was far beyond the analytical ability of Eisenhower's cabinet members or advisors. Sadly, an examination of the historical record shows that later Presidents didn't have a much better grasp of these fundamental points than Mr. Eisenhower did.)