Preface: In the aftermath of the First Sino-Japanese War, Qing China ceded Taiwan to Japan. Following the 1895 Treaty of Shimonoseki, Japan exercised sovereignty over Taiwan and held title to its territory. The Republic of China was founded in 1912, with Dr. Sun Yat-sen as the provisional president. Taiwan, however, having come under Japanese rule in 1895, was not part of the ROC in the early years of the 20th century.
Article XIX of the Limitation of Armament Treaty Between the United States of America, the British Empire, France, Italy, and Japan, (signed at Washington, Feb. 6, 1922) affirmatively identified Formosa and the Pescadores as part of Japanese territory.
(1) The US entered the Pacific War against Japan on Dec. 8, 1941. All military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by US military forces, as confirmed in numerous published sources. The United States is the "conqueror" and will be the principal occupying power.
(2) The Republic of China (ROC) was entrusted with authority over Formosa and the Pescadores based on the specifications of General Order No. 1, issued on of Sept. 2, 1945, the day of the Japanese surrender. General Douglas MacArthur issued General Order No. 1 directing the "senior Japanese commanders and all ground, sea, air and auxiliary forces within . . . Formosa" to "surrender to Generalissimo Chiang Kai-shek." Nothing in the post-war San Francisco Peace Treaty (SFPT) nor in any other treaty executed by or between the ROC and the other Allied Powers has altered this arrangement.
(3) The surrender ceremonies for Japanese troops in Taiwan were held on Oct. 25, 1945, in Taipei. This date marked the beginning of the military occupation of Taiwan.
(4) Although the surrender ceremonies in Taiwan on Oct. 25, 1945, were ostensibly conducted on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of the principal occupying power - the United States of America.
(5) Following the acceptance of the surrender of Japanese forces in Taiwan by the representatives of Chiang Kai-shek's government, Taiwan remained de jure Japanese territory. General Douglas MacArthur stated at a congressional hearing in May 1951, "legalistically Formosa is still a part of the Empire of Japan." The ROC government occupied Taiwan on behalf of the principal occupying power pending a peace treaty with Japan, which would change the legal status of Taiwan. In other words, the surrender ceremonies for Japanese troops did not signify any transfer of Taiwan sovereignty to the ROC.
(6) The Hague Regulations of 1907 specify: "Oath of Allegiance Forbidden: It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power." Hence, the Jan. 12, 1946 military order authorizing mass naturalization of native Taiwanese persons as ROC citizens is illegal under international law. Additionally, some important treaty provisions have remained in limbo for over fifty years because no ROC laws (including the Nationality Law) have ever been updated to reflect any mass naturalization of native Taiwanese persons as ROC citizens in the post-1945 era.
(7) The US government position regarding the legal status of Taiwan after the Oct. 25, 1945 surrender ceremonies was been continually stated as "undetermined." This was reflected in the Truman Statement of June 27, 1950, and repeated again in a July 13, 1971 State Dept. Memorandum.
(8) When the ROC fled to occupied Taiwan in December 1949, it became a government in exile.
(9) The cession of territory is accomplished by treaty. The cession of Taiwan in Japan in 1895 was accomplished by treaty. Any cession by Japan to any other country (including China) would have to be accomplished by treaty.
(10) More specifically, the specifications of the Cairo Declaration (Dec. 1, 1943), the Potsdam Proclamation (July 26, 1945), and the Japanese Surrender documents (Sept. 2, 1945) were all predicated on China successfully concluding a peace treaty with the Allies which would precisely clarify all relevant terms and conditions.
(11) The United States' position as the "principal occupying power" may be directly derived from an analysis of General Order No. 1 of Sept. 2, 1945.
(12) The view of the U.S. in the intermediate post-war period was typified by a statement on April 11, 1947 of then Acting Secretary of State Acheson, in a letter to Senator Ball, that the transfer of sovereignty over Formosa to China "has not yet been formalized." In other words, under international law, Taiwan was Japanese territory up until April 28, 1952.
(13) Pursuant to the SFPT, Japan renounced its sovereignty over Taiwan and title to its territory as of April 28, 1952. SFPT Article 2(b) read: "Japan renounces all right, title and claim to Formosa and the Pescadores." However, no receiving country was specified for this territorial cession.
(14) China never became a party to the SFPT. Neither the (exiled) ROC government, which occupied the island of Taiwan as agent for the principal occupying power, nor the government of the People's Republic of China (PRC), established on Oct. 1, 1949, signed or ratified the SFPT.
(15) SFPT Article 25 specifically provided that the Treaty did "not confer any rights, titles or benefits on any State which [was] not an Allied Power [as defined in Article 23(a),]" subject to certain narrow exceptions set forth in Article 21. Accordingly, China, a non-party, did not receive "any right, titles or benefits" under the SFPT except as specifically provided in Article 21.
(16) Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan. The parties to the SFPT chose not to give any "right, title [or] claim to Formosa and the Pescadores" to China.
(17) While SFPT Article 2(b) did not designate a recipient of "all right, title and claim to Formosa and the Pescadores," Article 23 confirmed the US as "the principal occupying power" with respect to the territories covered by the geographical scope of the SFPT, including "Formosa and the Pescadores."
(18) SFPT Article 4(b) further confirmed the jurisdiction of the United States Military Government over Taiwan. Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.
(19) The Treaty of Peace between the ROC and Japan (aka the "Treaty of Taipei"), entered into force on August 5, 1952, did not transfer sovereignty over Taiwan from Japan to China either.
(20) In the aftermath of the SFPT's coming into force, forty-eight governments maintained that no individual state acquired sovereignty over Taiwan and title to its territory. For example, United States Secretary of State John Foster Dulles told the Senate in December 1954, "[the] technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese peace treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese peace treaty, nor is it determined by the peace treaty which was concluded between the [ROC] and Japan." Likewise, British Foreign Secretary Anthony Eden told the British House of Commons, "under the Peace Treaty of April, 1952, Japan formally renounced all right, title and claim to Formosa and the Pescadores; but again this did not operate as a transfer to Chinese sovereignty, whether to the [PRC] or to the [ROC]. Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the de jure sovereignty over which is uncertain or undermined."
(21)Similarly, in 1964, French President Georges Pompidou (then premier) stated that "Formosa (Taiwan) was detached from Japan, but it was not attached to anyone" under the SFPT. Thus the leading allies were in consensus that China did not acquire sovereignty over Taiwan or title to its territory pursuant to the SFPT.
(22) However, the SFPT did not terminate the agency relationship between the US, the principal, and the ROC, the agent, with regard to the occupation and administration of Taiwan. SFPT Article 23 confirmed the US as "the principal occupying power" with respect to the territories covered by the geographical scope of the SFPT.
(23) In conjunction with the US Senate ratification proceedings on the US-ROC Mutual Defense Treaty, the Committee on Foreign Relations issued a statement on Feb. 8, 1955, which read: "It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies."
(24) Moreover, as confirmed by the Truman Statement of June 27, 1950, and the SFPT, the United States government has never recognized the forcible incorporation of Taiwan into China. Following the entry into force of the SFPT on April 28, 1952, it was clear that the ROC did not exercise sovereignty over Taiwan and did not have title to its territory.
(25) Under Article 6 of the US Constitution, the content of the Senate-ratified SFPT is part of the "supreme law of the land."
Taiwan's International Recognition Problem
(26) The Republic of China on Taiwan does not qualify as a "state" under the Montevideo Convention because it is not exercising sovereignty over Taiwan and does not have title to Taiwan territory. Moreover, the Jan. 12, 1946 military order authorizing mass naturalization of native Taiwanese persons as ROC citizens is illegal under international law.
(27) The United Nations recognized the Republic of China (under Chiang Kai-shek) as the legal government of China up until late Oct. 1971. The United Nations never recognized the Republic of China as the legal government of Taiwan. (In other words, "Taiwan" has never been a member of the United Nations.)
(28) Then on Oct. 25, 1971, United Nations Resolution 2758 expelled the representatives of Chiang Kai-shek from the United Nations and all related organizations, and recognized the representatives of the Government of the People's Republic of China as the only lawful representatives of China to the United Nations.
(29) Amendments to the ROC Constitition beginning in the 1990's, direct Presidential elections in 1996, as well as the end of over 50 years of KMT rule in 2000 did not signify any change in the legal status of Taiwan. Under international law, there are no actions which can be taken which will legitimatize a government in exile to become the internationally recognized legal government of its current locality.
(30) The "One China Policy" is correct. The PRC is the sole legitimate government of China. Taiwan is an occupied territory of the United States. The ROC is (1) a subordinate occupying power, beginning Oct. 25, 1945, and (2) a government in exile, beginning December 1949.
(31) As of the Fall of 2006, the United Nations has refused Taiwan's application for membership for fourteen years in a row.
(32) From the mid 1930's to December 31, 1978, the United States recognized the ROC as the legal government of China. At no time during this time period did the United States recognize the ROC as the legal government of Taiwan.
(33) In the 1972 Shanghai Communique, the United States (as the principal occupying power of the SFPT) only "acknowledged" the PRC position on the Taiwan status question, but did not formally agree to it or "recognize" it.
(34) After the break in diplomatic relations with the ROC on Dec. 31, 1978, the United States formally recognized the PRC as the sole legitimate government of China.
(35) The United States does not recognize Taiwan as a state. Pursuant to the Taiwan Relations Act of 1979, which embodies the United States congressional policy towards Taiwan, the United States does not maintain inter-state relations with Taiwan. Instead, "the people of the United States" maintain "commercial, cultural, and other relations" with "the people of Taiwan." Section 3301 of the Taiwan Relations Act reflects the United States' position that "the future of Taiwan" is still not "determined."
(36) Under the Taiwan Relations Act, the United States does not recognize the nomenclature of "Republic of China" after Jan. 1, 1979.
(37) In July 1982, the United States gave "Six Assurances" to the Taiwan governing authorities, including that the "United States would not alter the terms of the Taiwan Relations Act", "would not alter its position about the sovereignty of Taiwan", and "would not formally recognize Chinese sovereignty over Taiwan."
(38) On Oct. 25, 2004, (former) United States Secretary of State Colin Powell confirmed the United States' continuing policy towards Taiwan. He stated, "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."
Taiwan as an Area Under United States Military Government
(39) A comparison of the situation of Cuba after the Mexican American War, and Taiwan after WWII is instructive. Article 1 of the April 11, 1899 Treaty of Paris states:
Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.
(40) Moreover, the criteria for determining the end of the military goverment of the (principal) occupying power is that a fully legal local "civil government" has already begun operations.
(41) A close analysis of the SFPT shows that a similar formulation (as was made for Cuba in the Treaty of Paris) has been made for Taiwan.
(42) While temporarily ignoring the complexities of the period of belligerent occupation from Oct. 25, 1945, to April 28, 1952, when Taiwan was still under de jure Japanese sovereignty, nevertheless from the point of view of military jurisdiction under the Constitution, it is clear that from April 28, 1952 to the present, according to the provisions of the SFPT, Taiwan has been an occupied territory of the United States, "the principal occupying power."
(43) At the present time, Taiwan is an occupied territory of the United States. Neither the SFPT, the Treaty of Taipei nor any other subsequent legal instruments after 1952 changed the status of Taiwan. Being still under military occupation, Taiwan has not yet reached a "final political status."
(44) Military government continues till legally supplanted. The US as the principal occupying power has never transferred the sovereignty over Taiwan or title to its territory to any other government.
(45) When reviewing the military histories of Puerto Rico, Guam, the Philippines, and Cuba, it is clear that for a territorial cession, "the military government of the (principal) occupying power does not end with the coming into force of the peace treaty." In the post-World War II period up to today, no treaty or law ever terminated the United States' jurisdiction over Taiwan. By contrast, United States' jurisdiction over Puerto Rico, Guam, the Philippines and Cuba were all ended by treaties or other affirmative actions of the United States Government.
Conclusion: today, the Taiwanese people are entitled to enjoy "fundamental rights" under the US Constitution, similar to the residents of other US overseas territories.