Chapter 14 – Recommendations to the US Executive Branch and US Congress

Recommendations to the US Executive Branch and US Congress

October 2009

 
(A.) Updating of the Dept. of State Background Note: Taiwan at 

http://www.state.gov/r/pa/ei/bgn/35855.htm

From a thorough reading of this Background Note: Taiwan, it is impossible to understand why DOS considers ROC/Taiwan to be a non-sovereign nation.  This then leads the majority of members of the public (in Taiwan and in the USA) to conclude that the historical and legal record does not support such a conclusion, and hence DOS officials are not being honest or sincere, rather they have a “hidden agenda,” (which not doubt involves some sort of sell-out to officials in Beijing.) 

This sort of criticism can be avoided entirely if the correct situation is presented in Background Note: Taiwan. Clearly, there is an urgent need to bring Executive Branch statements on the Taiwan status issue into full compliance with all the official published and/or promulgated reports of the Executive Branch which are printed in books, displayed on the internet, broadcast over the radio, released to the media, or whatever.

Importantly, the Background Note: Taiwan fails to make any mention of the San Francisco Peace Treaty of 1952. Territorial cession is accomplished by peace treaty, and the SFPT did not award the sovereignty of Taiwan to China.  

The sentence “At the end of World War II in 1945, Taiwan reverted to Chinese rule” is in fact quite ambiguous.   Under international law, Oct. 25, 1945 can only be regarded as the beginning of the military occupation of Taiwan, and President Truman’s statement of June 27, 1950 confirms this, since any area under military occupation has not reached a final political status. Hence it must be clarified that when Taiwan “reverted to Chinese rule” does not indicate any transfer of sovereignty.

(B.) Re-clarification of Complete Legal Basis for US Executive Stance on the Taiwan status issue

At the present time, the Executive Branch continually states that the basis for US policy on the Taiwan issue is contained in (1) the Taiwan Relations Act, (2) the One China Policy, and (3) the Three Joint USA-PRC Communiques.

The authors strongly suggest that this should be amended to include an additional three considerations: (4) the San Francisco Peace Treaty of April 28, 1952, (5) the laws of war (aka “customary laws of warfare”), and (6) the US Constitution. For simplicity, the authors will call these the “Six Pillars.”

Clearly, a pronouncement of the Six Pillars by the Executive Branch cannot be considered something new, it is only an amplification and re-interpretation of all previously existing US policy statements. 

In regard to including the US Constitution in this listing of six elements, indeed the Constitution is very important for understanding the application of the various clauses in the SFPT, especially in relation to the laws of war.  The following quote is notable in this regard: 

The US Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments.

Source: Military Government and Martial Law, by William E. Birkhimer, Kansas City, Missouri, Franklin Hudson Publishing Co., third edition, revised (1914), p. 21.

The Constitution also clarifies the facts that a Senate-ratified treaty has a higher legal weight than a law (such as the TRA) passed by the Congress, that the President has plenary powers over foreign affairs, that war powers are divided between the President and Congress, etc.

(C.) The Promulgation of an Historical Timeline for Taiwan

Many Taiwanese people, if not the majority, often express puzzlement on the US Executive Branch “treatment” of Taiwan.  Over fifty years of debate and discussion have failed to come up with a definitive statement of how the Dept. of State regards the Taiwan status issue.

Hence, the authors feel that the native Taiwanese people should be entitled to a full explanation of their “history,” and the significance of various historical events, from the US Executive Branch point of view.

The Chart and Explanation of “Notable Historical Events in the Recent History of Taiwan and the ROC” given previously in Chapter 2 could serve as an outline for composing such an explanation.

(D.) Updating of the CIA World Factbook’s Taiwan page at

https://www.cia.gov/library/publications/the-world-factbook/geos/tw.html

Possible suggestions for some minimal rewording on this Taiwan page could be offered as follows (suggested additions/re-writings as indicated):

Taiwan reverted to Chinese control after World War II, but the Allies did not recognize any transfer of the sovereignty of Taiwan to China upon the Oct. 25, 1945, surrender of Japanese troops.

Following the Communist victory on the mainland in 1949, 2 million Nationalists fled to Taiwan and established a government using the 1946 constitution drawn up for all of China. In the post-war San Francisco Peace Treaty of April 28, 1952, Japan ceded Taiwan without specifying a “receiving country,” subject however to final disposition by the United States Military Government. The Aug. 5, 1952 Treaty of Taipei confirmed these arrangements. 
 

(E.) Suggested Private Communication with TECRO, Washington, D.C.

The authors strongly urge that DOS communicate privately with TECRO in Washington, D.C. to the effect that coordination of any activities of a military character, including military conscription activities for the Republic of China, may not be done by TECRO or any TECO offices on US soil.

Explanation:  None of the Allies recognized any transfer of the sovereignty of Taiwan to the Republic of China upon the Oct. 25, 1945 surrender of Japanese troops in Taipei.  In the US Senate-ratified San Francisco Peace Treaty of 1952, Taiwan was not awarded to China, and the Treaty of Taipei confirmed these arrangements. 

From an examination of the military history of the Spanish American War cessions it is clear that the “military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted.” Indeed this rule is given in Birkhimer’s opus on page 26.

For an overview of research topics necessary in order to understand Taiwan’s current situation, see “Background Studies Needed for Comprehension of the Taiwan Status Issue” in Chapter 15. 

In full consideration of the above, Taiwan has been occupied territory since the completion of the surrender ceremonies on Oct. 25, 1945, and remains as occupied territory in the current era.  Naturalization of native inhabitants along with the implementation of “military conscription” activities in occupied territory are in violation of the laws of war as recognized by the United States, in particular, see FM 27-10 The Law of Land Warfare:

FM 27-10

359. Oath of Allegiance Forbidden
It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.
(HR, art. 45.)

 

418. Labor of Protected Persons
The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.

The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour.

The work shall be carried out only in the occupied territory where the persons whose services have been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force in the occupied country concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article.

In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character. (GC, art. 51.)
 

(F.) US Congressional Hearings on the Legal Relationship Between Taiwan and the USA

Ideally, the members of Congress should hold a series of hearings on the legal relationship between Taiwan and the USA, including a discussion of Taiwan’s status under the US Constitution.

If individuals from Taiwan were to be invited to participate in these hearings, it might be necessary that they be transported to the US and back to Taiwan on US military flights, lest they be blacklisted by the ROC immigration authorities and unable to return to their homes in Taiwan.

(G.) A Complete Re-evaluation of the Legality of Arms Sales to Taiwan

At the most basic level, the sale of defense articles and services to Taiwan must be based on the fact that “military conscription policies” over the local Taiwanese populace rest on a firm legal basis.  Obviously, the defense articles and services sold to Taiwan are used by the ROC Ministry of National Defense, including its Army, Navy, Air Force, Combined Services Forces, Armed Forces Reserve Command, Coast Guard Command, Military Police Command, etc. military forces.

Recent research on the international legal status of Taiwan by many study groups has confirmed that after the peace treaty cession from Japan in 1952 and up to the current era, Taiwan has remained as “occupied territory.” 

However, according to the Commentaries on International Humanitarian Law by the International Committee of the Red Cross (ICRC), military conscription in occupied territory is illegal.  Following a similar line of reasoning, the maintenance of an ROC Ministry of National Defense on occupied territory (i.e. “Formosa and the Pescadores”) which has never been formally incorporated into the national territory of the ROC is also totally without legal basis.

Obviously, under US law, the TRA strongly appears to authorize the providing (or “making available”) of defensive arms to the Taiwan governing authorities.  However, based on the above ICRC rationale, the legality of arms sales to Taiwan under the provisions of the Hague and Geneva Conventions is open to serious question.   Certainly, this entire issue should be re-evaluated.

Under the “common defense” clause of the US Constitution, it could be argued that the national defense needs of occupied Taiwan are the responsibility of the DOD in the Pentagon.

(H.) Suggested Seminars for US Executive Branch Personnel and Members of Congress

The authors strongly suggest that US government personnel be “updated” on the true facts of Taiwan’s current legal status.   It might be possible to conduct seminars on this topic in Taipei, Taiwan.

(I.) Approval of Funding for a Series of Advertisements on the subject of Taiwan’s status under the US Constitution

The authors believe that the promulgation of the truth of Taiwan’s status is important, but at the present time the local Taiwanese media, think-tanks, university conferences, etc. are completely dominated by the competing agendas of “pro-independence” vs. “pro-unification.”  The truth of Taiwan’s status under the Constitution needs to be explained, and an effective advertising campaign could help achieve this result.

By way of comparison, in the last quarter of 2007, former United Microelectronics Corp. chairman Robert Tsao purchased a series of half-page newspaper advertisements in the Chinese-language media in Taiwan.  In these advertisements, he urged the ROC/Taiwan government authorities to draft “peaceful coexistence legislation” in order to smooth the relationships between both sides of the Taiwan Strait.  These advertisements generated much discussion and much media interest in Taiwan. 

The authors would suggest that a similar series of advertisements be funded to promote the truth of Taiwan’s status under the US Constitution.   Of course, such newspaper advertising in Taiwan is quite expensive, but a “budget proposal” could be submitted if this type of promotional activity was felt to be beneficial for educating the Taiwanese public. 

(J.) Stressing of the Conclusions in the July 2007 CRS Report

Reference is made to the CRS Report for Congress, July 9, 2007 — China/Taiwan: 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.

The authors believe that these “conclusions” should be further stressed in regular Dept. of State press briefings, conferences, announcements, etc.

(K.) Stressing the Need to work within the Framework of the Six Pillars

Through appropriate guidance by the Executive Branch, the Taiwanese people need to be informed that their correct course of action for “future democratic development” is to work within the framework of the Six Pillars, so as to maintain the “status quo” as defined by the United States.

Many people are confused by what the “status quo” is.  A full clarification that “this status quo issue should be viewed from the perspective of the Six Pillars” would be most helpful.

(L.) The Recognition of a “Taiwan Civil Government” by the Dept. of State  

The Republic of China on Taiwan has never been recognized as the legitimate government of the Taiwan cession. As per the precedent in other territorial cessions after war, the Taiwanese people should be allowed to come together to form their own civil government.

Dr. Roger Lin has been active in promoting the formation of a Taiwan Civil Government, and held a large Press Conference on Feb. 2, 2008, to explain the legal rationale and deal with other related organizational issues.

At the present time, it is fully recognized that the US Commander in Chief does not approve of “Taiwan Independence.”   Taiwan is occupied territory of the USA, and the correct procedure under such circumstances would be to form a “Taiwan Civil Government” which would operate directly under USMG.

Such an organizational methodology would allow the 23 million people of Taiwan to gain a great degree of autonomy over their own affairs.  In this way, to a great degree, they would be satisfying their goals for self-determination under the UN Charter, while at the same time they would be giving full respect to the established procedures for the management of territorial cessions under the US Constitution.

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