under the specifications of the 1952 SFPT
The Territorial Cession of Taiwan
Based on the previous examples of California, Puerto Rico, and Cuba, as well as the additional exhaustive clarifications presented previously, the following authoritative commentary on the legal status of (1) Taiwan and (2) the ROC, can be offered.
Overviewing the situation of Taiwan during WWII in the Pacific, the United States was the conqueror and therefore will be the (principal) occupying power.
The military occupation of Taiwan began with the surrender of Japanese troops on Oct. 25, 1945. The administration of Taiwan was conducted separately from that of metropolitan Japan. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Taiwan territory has begun as of this date. However, the military occupation of Taiwan has been delegated to the representatives of Chiang Kai-shek, who call themselves the “Republic of China.”
Taiwan was sovereign Japanese territory until the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952. According to the terms of Article 2(b) of the Treaty, Japan ceded Formosa and the Pescadores (aka “Taiwan”) but no “receiving country” was specified.
Article 2(b): Japan renounces all right, title and claim to Formosa and the Pescadores.
China, a non-party to the treaty, did not receive “any right, titles or benefits” under the SFPT except as specifically provided in Article 21. Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan. The 48 parties to the SFPT chose not to give any “right, title [or] claim to Formosa and the Pescadores” to China.
While SFPT Article 2(b) did not designate a recipient of “all right, title and claim to Formosa and the Pescadores,” Article 23(a) 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.”
SFPT Article 4(b) further confirmed the jurisdiction of the United States Military Government (USMG) over Taiwan. Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.
Article 4(b): Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.
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.
We can construct a timeline for the military occupation of Taiwan as follows.
Oct. 25, 1945: This is the beginning of the belligerent occupation and the beginning of USMG jurisdiction over the territory. The military occupation of Taiwan has been delegated to the Chinese Nationalists (ROC). The United States is the principal occupying power. The Chinese Nationalists under Chiang Kai-shek are a subordinate occupying power. This is a principal-agent relationship.
April 28, 1952 This date marks the coming into force of the peace treaty, and the beginning of the “friendly occupation.” (“Friendly occupation is also called “the civil affairs administration of a military government”)
— —- —–
There has been no announcement of the end of USMG jurisdiction over Taiwan by the US Commander in Chief. Hence, USMG jurisdiction over Taiwan continues to be active, and has not yet been supplanted by a (locally formed) civil government for the territory. However, Taiwan continues to be governed by the ROC government in exile.
In other words, in the period of April 28, 1952, to the present, no civil government operations recognized by the principal occupying power (i.e. the United States) in Taiwan, which would serve to supplant United States Military Government in the island, have begun.
To put this another way, if USMG jurisdiction over Taiwan had already ceased, then the political branches of the United States government would either (a) recognize the geographic area of Taiwan as an independent sovereign nation (under some particular nomenclature), or (b) would recognize Taiwan as part of another independent sovereign nation.
However, the US Executive Branch continues to proclaim that the status of Taiwan is undetermined.
Thus, we can clearly see that — the territorial cession of Taiwan is being held under the jurisdiction of USMG until final determination of its political status.
By carefully examining the specifications of the Senate-ratified San Francisco Peace Treaty and the historical record, we can obtain the same Concise Statement of Taiwan’s International Legal Position which was offered initially in this ebook.
Since the SFPT cession from Japan effective April 28, 1952, Taiwan has remained as “occupied territory.” There has been no change in this legal status to date.
The United States of America is the principal occupying power. A US federal agency called the “United States Military Government” (USMG) has jurisdiction rights over Taiwan territory. In other words, Taiwan is occupied territory of the United States of America. (This is, however, certainly not equivalent to saying that “Taiwan is part of the United States.”)
The legal status of Chiang Kai-shek’s military troops and government officers (commonly referred to as: “Republic of China”) in Taiwan is
1. subordinate occupying power, beginning Oct. 25, 1945,
2. government in exile, beginning mid-December 1949.
In other words, the ROC is exercising delegated administrative authority for the military occupation of Taiwan. However, there has been no transfer of the territorial sovereignty of Taiwan to the ROC. As occupied territory, the final political status of Taiwan remains to be determined.
However, during this period of time the native Taiwanese people should be allowed to come together to form their own civil government under USMG.
Comparative data for Okinawa (aka “the Ryukyu Islands”) under the SFPT
Article 3: Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto south of 29deg. north latitude (including the Ryukyu Islands and the Daito Islands), Nanpo Shoto south of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.
Explanatory Notes: Although elevated to the status of a UN trusteeship, the Ryukyu Island group continued under the jurisdiction of USMG. In regard to the final disposition of the Ryukyus, the Office of US High Commissioner on Okinawa (Ryukyus) ceased on May 15, 1972 when the sovereignty of the island chain was transferred to Japan. In other words, USMG jurisdiction over this Article 3 territory was supplanted by a Japanese civil government. This date of May 15, 1972 was fully announced and widely publicized, and indeed has become part of the historical and legal record.
Contrastingly, as analyzed above, no announcement of the end of USMG jurisdiction over the Article 2(b) cession of “Formosa and the Pescadores” has been forthcoming.