Taiwan's Identity Crisis
and the Customary Laws of Warfare

by Richard W. Hartzell      

Vigorous discussions regarding the proper direction for Taiwan's national development and the advancement of a Taiwanese centered identity have been ongoing since my arrival in Taiwan some 35 years ago. In recent years, former President Lee Teng-Hui has also spent much time and effort in promoting name rectification and the writing of a new Taiwan Constitution. Such efforts are certainly very praiseworthy.

Unfortunately however, while the efforts of all concerned parties have generated much favorable reaction in Taiwan, there has been little corresponding favorable reaction from the leading world nations. What some would characterize as our most significant international ally, the United States, has repeatedly insisted that the Taiwanese people take no action which would unilaterally change the status quo in the Taiwan Strait.

In order to deal with these difficulties in the current era, I suggest that the most important issue facing the Taiwanese people is to first agree on an interpretation of their own history which corresponds with all relevant international legal norms, so that Taiwan's current international legal position can be precisely defined. Such a "definition" will not in any way change the status quo, rather it will provide a precise clarification of what that status quo truly is. In order to research the last 100 or more years of this history in a correct fashion, there is a critical need to turn to the customary laws of warfare of the post-Napoleonic period.

The so-called customary laws of warfare have many sources, among which are the Geneva Conventions of 1864, 1928, 1929, and later 1949, and the Hague Conventions of 1899 and 1907. But in addition to these sources, there are numerous court decisions of many countries and of many international tribunals, the writings of scholars, judges, military experts, etc. in related fields, as well as the precedent which can be found from examining military history.

In reviewing Taiwan's military history from the early 1940's, we find that all military attacks against the areas of Formosa and the Pescadores were conducted by the United States military, primarily the naval and air forces. Under the customary laws of warfare, this constitutes a hostile invasion, and in fact does result in the United States having jurisdiction over Taiwan. Such jurisdiction will be conducted under an entity called the United States Military Government (USMG).

The specifications for acceptance of the surrender were specified in Gen. Douglas MacArthur's General Order No. 1 of Sept. 2, 1945, but neither Gen. MacArthur nor President Truman had any authority under international law to make a final determination regarding the transfer of Taiwan's territorial title. Customary international law specifies that such provisions are made in a treaty. While it is true that the military troops under Chiang Kai-shek accepted the Japanese surrender on behalf of the Allies, it is important not to confuse the surrender ceremonies with the military occupation, or to confuse the military occupation with the peace treaty settlement. Nor can we just choose to ignore the issues of military occupation and the peace treaty settlement as if they do not exist.

In this regard, some people maintain that regardless of the events of the 1940s and 1950s, ROC/Taiwan meets all the Montevideo Convention's required criteria for statehood in the international community. However, I must point out that the Montevideo Convention has some serious flaws. Among these are -- DEFINED TERRITORY: no distinction is made between territory acquired by prescription, or which was formally granted independence by its former rulers, and territory which is merely held under military occupation. Moreover, in terms of territorial cessions in a peace treaty, no distinction is made between territories where there has been a clear transfer of title and those where the transfer of title has been left unspecified. PERMANENT POPULATION: no distinction is made where the nationality of the local populace has been established by internationally recognized legal principles, and where the nationality has merely been "established" by military fiat. GOVERNMENT: no distinction is made between a government which has been created by the local populace, via the procedures specified in a locally established "organic law," and a government in exile which has arrived on the scene after fleeing from some other locality. Constitutionally speaking, under customary international norms, the imposition of a government in exile's constitution on the local territory does not make such a constitution the local "organic law."

The situation of Taiwan clearly involves all of these complications. Under the customary laws of warfare, which most researchers on the Taiwan question completely ignore, the completion of the surrender ceremonies on Oct. 25, 1945, can only be interpreted as the beginning of the belligerent occupation of Taiwan. Military occupation does not transfer sovereignty, and indeed none of the Allies recognized any transfer of the sovereignty of Taiwan to the ROC in late Oct. 1945, or on any other date for that matter. Consequently, the mass naturalization of local Taiwanese persons as ROC citizens in Jan. 1946 is without legal basis. Indeed, the military order authorizing that mass naturalization was never confirmed by the ROC Legislative Yuan or otherwise made into a law. Later, when the ROC moved its central government to occupied Taiwan in December 1949, it became a government in exile. In the post-war San Francisco Peace Treaty (SFPT) of April 28, 1952, while Japan renounced all right, title, and claim to Taiwan, the ROC was not specified as the "receiving country." The ROC - Japan Peace Treaty of Aug. 5, 1952 confirmed these arrangements. In terms of territorial considerations, Taiwan has never been incorporated into ROC national territory via the provisions of Article 4 of the ROC Constitution, and indeed the imposition of that constitution on the Taiwan area in the late 1940s is without legal basis.

Hence, in terms of resolving Taiwan's identity crisis, I would boldly suggest that it is not helpful to advance as a starting point the notion that the "ROC/Taiwan already meets the Montevideo Convention's criteria for statehood." I think that the majority of officials in leading world nations fully realize that the Montevideo Convention's four criteria contain a certain degree of impreciseness or inaccuracy, even if these officials have made no public announcements to this effect.

Taiwan's status today is an issue left over from WWII in the Pacific. Legal relationships for Taiwan territory do not arise from a consideration of which military troops accepted the surrender, but rather from a consideration of who is fulfilling the role of (principal) occupying power under the customary laws of warfare. It must be recognized that the military occupation of Taiwan was/is being conducted on behalf of the conqueror and principal occupying power -- the United States of America. The ROC military in Taiwan is merely a proxy force of the United States.

As we know, the US Dept. of State has never recognized Taiwan as an independent sovereign nation. However, the Taiwan Relations Act specifies that under US law Taiwan is to be treated as a "foreign country." To most researchers such a stance is contradictory, but an explanation is easily derived. The correct viewpoint is to say that under US law, Taiwan is "foreign in a domestic sense." Significantly, this is exactly the description applied to the newly acquired territories of Puerto Rico, the Philippines, Guam, and Cuba after the Spanish American War of 1898. All of these territories were under United States Military Government jurisdiction for lengthy periods.

While the beginning of military government jurisdiction requires no formal declaration, the end of such jurisdiction does require a formal announcement by the US Commander in Chief. Such an announcement necessarily follows from the fact that military government must be supplanted by a recognized "civil government" for the territory. US Presidential proclamations regarding the end of USMG jurisdiction over the above four mentioned areas were given on the following dates -- Puerto Rico: May 1, 1900; Philippines: July 4, 1901; Guam: July 1, 1950; Cuba: May 20, 1902. In addition, the SFPT Article 3 territories (Ryukyu Islands) were also under USMG jurisdiction, which was terminated on May 15, 1972, by formal announcement of the US President. Importantly, numerous court cases have recognized the fiduciary duty of USMG over territories under its jurisdiction.

Under SFPT Article 23(a), the United States of America is confirmed as the principal occupying power of all areas under the geographic scope of the treaty. The implementation of this is clarified in Article 4(b), where the jurisdiction of USMG over all Article 2 and 3 territories is stipulated. However, up to the present day, the US Commander in Chief has never announced the end of USMG jurisdiction over the Article 2(b) territory of Taiwan.

In summary, the solution to Taiwan's identity crisis must begin with a comprehensive reading of the SFPT, within the framework of the customary laws of warfare. From this vantage point, and based on relevant US Supreme Court decisions, we can see that the Taiwanese people are entitled an authoritative determination of "Taiwanese nationality" and the rights which are associated with that status. Of particular importance are certain fundamental rights under the US Constitution, including the rights to travel, to hold some form of US passport, and to hold other US-issued identification documents, all of which are contained in the "liberty" of the Fifth Amendment.

Concurrently, in order to comprehensively formulate a solution to Taiwan's identity crisis, I believe that there is an urgent need for the members of the US Congress to hold hearings on the status of Taiwan and the rights of the native Taiwanese people under the US Constitution. Under the framework of the One China Policy, the Three Joint Communiques, the Taiwan Relations Act, the US Constitution, the SFPT, and the customary laws of warfare, the issues of participation in international bodies in the name of "Taiwan," the drafting of a new Taiwan Constitution, the organization of national defense forces, legal protections for Taiwanese persons investing overseas, lowered tariffs on US - Taiwan bilateral exports, upgrading of the Taiwan legal system, etc. as well as the organization of Taiwan's new civil government can all be achieved in a step by step fashion.

For additional information, see -- http://www.civil-taiwan.org/customary.htm

Promulgated at the
Friends of Lee Teng-Hui Association World Congress 2008 on

October 5, 2008