Taiwan’s International Legal Position: A Defining Moment?

(1) Taiwan’s International Legal Position:
A Defining Moment?

Many people claim that Taiwan is independent, others say that it is a part of China. However, in the last few years another explanation has emerged, and it is gaining more and more adherents. Under this explanation, since 1952 Taiwan has actually remained under the jurisdiction of the military arm of the US government.

During a mid-December 2007 visit to Taiwan, Stephen Yates, former deputy assistant for national security affairs to US Vice President Dick Cheney and now president of DC Asia Advisory consulting group, stated that Taiwan officials can ask for clarification on US policy in matters that affect Taiwan’s international status and participation in international organizations. Such remarks should come as good news to the Taiwanese people, who often consider the US Executive Branch’s many pronouncements on Taiwan to be contradictory and even outright baffling. Of course, different political groups in Taiwan are not without their contradictions as well, with little consensus on Taiwan’s present status and desired future path for development. Some local parties insist that Taiwan is “already an independent nation,” while others loudly proclaim the island to be “an integral part of China.” However, during the past several years, a third explanation has gained more and more proponents. This new explanation maintains that Taiwan is occupied territory of the USA. In more technical terminology, this means that Taiwan is a US overseas territory under the jurisdiction of the United States Military Government (USMG). Below, we will refer to this as the “occupation theory.”

Those who discount this reasoning are hard pressed to clarify why it so perfectly explains the many puzzling aspects of the US policy on Taiwan. While Mr. Yates is not known to be proficient in analyzing Taiwan’s international legal status from this angle, the following brief overview illustrates the depth of the analysis, and will no doubt come as a surprise to most commentators on the US — Taiwan — PRC triangular relationship.

CRS Report

In July 2007 the Congressional Research Service (CRS) published a report for the US Congress entitled “Evolution of the One China Policy.” In the Summary at the beginning of that report the following points were made –

  1. The United States did not explicitly state the sovereign status of Taiwan in the three US-PRC Joint Communiques of 1972, 1979, and 1982.
  2. The United States “acknowledged” the “One China” position of both sides of the Taiwan Strait.
  3. US policy has not recognized the PRC’s sovereignty over Taiwan;
  4. US policy has not recognized Taiwan as a sovereign country; and
  5. US policy has considered Taiwan’s status as undetermined.

Although many people are confused about the content of the “One China Policy,” it merely says that the PRC is the sole legitimate government of China. That is all that it says. To date, the US has not recognized the PRC’s sovereignty over Taiwan. Moreover, any overseas territory under the jurisdiction of USMG must be said to have not reached a “final political status,” remaining as “undetermined.” Hence, the “occupation theory” does not present any contradiction to the above mentioned findings in this CRS Report.

What about the Three Noes of President Clinton? He said: “We don’t support independence for Taiwan; … or ‘two Chinas’; or ‘one Taiwan, one China’; … and we don’t believe that Taiwan should be a member in any organization for which statehood is a requirement.” There is no contradiction there either. A brief historical overview shows how all the seemingly puzzling facts of Taiwan’s recent 125 years of history can be assembled together quite nicely under the “occupation theory.”

Historical and Legal Overview

The Qing Dynasty ceded Taiwan to Japan in 1895. After the US Congress declared war on the Japanese Empire on Dec. 8, 1941, all military attacks against (Japanese) Taiwan were conducted by US military forces. After the Japanese surrender, the USA had the obligation to occupy Taiwan and deal with reconstruction issues. However, in General Order No. 1 of Sept. 2, 1945, General Douglas MacArthur directed Chiang Kai-shek (of the Republic of China) to go to Taiwan and accept the surrender of Japanese troops.

Although the surrender ceremonies were ostensibly conducted on behalf of the Allies, the ensuing military occupation of Taiwan is being conducted on behalf of the principal occupying power — the United States of America. Then in late 1949, the Republic of China (ROC) moved its central government to occupied Taiwan and became a government in exile. Under this analysis, “Taiwan” today is merely a geographical term, not the name of a country.

The highest ranking document of international law in regard to Taiwan’s current legal status is the Senate-ratified San Francisco Peace Treaty (SFPT) of April 28, 1952. In this treaty, Japan renounced all claims to Taiwan, but no receiving country was specified. However, the treaty does recognize the USA as the principal occupying power in Article 23, and then in Article 4b states that the USMG has jurisdiction over Formosa and the Pescadores.

The Aug. 5, 1952 peace treaty between the Republic of China and Japan is also called the Treaty of Taipei. In that treaty, the arrangements of the SFPT are fully recognized. In fact, the Treaty of Taipei is just a subsidiary treaty under SFPT Article 26. So, the terms of these two treaties do not result in any contradiction with the “occupation theory.”

The 1955 Mutual Defense Treaty between the United States of America and the Republic of China gives further support. The US Senate’s Committee on Foreign Relations issued a report on Feb. 8, 1955 which specified: “It is the view of the Committee that the coming into force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores.” (source: Appendix 17 — Report on Mutual Defense Treaty with the Republic of China, U.S. Senate, Committee on Foreign Relations (1955))

Dwight D. Eisenhower made significant comments in 1963. He stated that: “The Japanese peace treaty of 1951 ended Japanese sovereignty over the islands but did not formally cede them to ‘China,’ either Communist or Nationalist.” (source: Mandate for Change 1953-1956, by Dwight D. Eisenhower, published in 1963 by Doubleday & Co., New York, page 461.)

On Oct. 25, 2004, (former) Secretary of State Colin Powell said: “Taiwan is not independent. It does not enjoy sovereignty as a nation.” On Aug. 30, 2007 Dennis Wilder, National Security Council Senior Director for Asian Affairs said: “Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC — Republic of China — is an issue undecided, and it has been left undecided, as you know, for many, many years.” The statements of these these high ranking officials don’t contradict the “occupation theory” in even the slightest way.

What about the Taiwan Relations Act, which is domestic legislation of the USA. Under the TRA the United States treats Taiwan as a “foreign state,” however in terms of foreign relations, we know that the US Executive Branch does not consider Taiwan to be an independent sovereign nation. Taiwan is thus “foreign in a domestic sense,” which is precisely the description attached to the United States’ newly acquired insular possessions of Puerto Rico, Guam, Cuba, and the Philippines after the Spanish American War of 1898.

Spanish American War Comparisons

Importantly, a review of the history of these four Spanish American War cessions all show that USMG jurisdiction did not end with the coming into force of the peace treaty, but continued until supplanted by a fully recognized civil government. The ROC is a government in exile of China, but a close overview of the historical and diplomatic record shows that it has never gained the legal status of “the recognized civil government of Taiwan.” That is one of the major reasons why the President Carter broke diplomatic relations with the ROC as of Dec. 31, 1978.

Theory vs. Fact

In conclusion, it is important to clarify that the Taiwan question is not an issue which has grown out of the Chinese civil war in the late 1940’s. As outlined above, a close examination of the legal and historical record shows that the Taiwan question is an issue left over from WWII in the Pacific. With no “civil government” having supplanted USMG jurisdiction over Taiwan from the WWII period to today, legally speaking Taiwan is still occupied territory of the USA!

Beginning in the Fall of 2007, organizers of the Taiwan Civil Government filed Freedom of Information Act requests with the Dept. of State and the National Archives and Records Administration (NARA). The weight of the assembled evidence persistently reveals that the “occupation theory” is no longer theory, but fact.

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