From the end of hostilities in WWII in the Pacific up to the present day, the U.S. State Dept. has issued two Memoranda regarding the international legal status of Taiwan. The first is the Czyzak Memorandum of Feb. 3, 1961, and the second is the Starr Memorandum of July 13, 1971. In neither of these Memoranda did State Dept. researchers try to use any sort of structured analytical approach to dissect Taiwan's international legal position, such as making a detailed comparison of Taiwan's post-surrender status with the situation of Puerto Rico, the Philippines, Guam, and Cuba after the Spanish American War. Hence it is not surprising that no definitive conclusion to Taiwan's international legal status could be offered.
According to John J. Czyzak's study, four legal theories had been advanced concerning the status of Taiwan (Formosa) and Penghu (Pescadores).
- The first was that sovereignty over the islands of Formosa and the Pescadores had not been finally determined.
- The second was that they belonged to the ROC.
- The third was that the islands belonged to "China."
- The fourth was that the islands now formed a condominium belonging either to the victorious parties of World War II or to the parties to the Japanese Peace Treaty.
After offering these four legal theories, Czyzak immediately goes into a summary of the history of Formosa and the Pescadores, beginning from the middle of the 17th century. Included in this summary are the 1895 Treaty of Shimonoseki, in which China ceded these territories to Japan. Also cited are China's Declaration of War against Japan of Dec. 9, 1941; the Cairo Declaration of 1943; the Potsdam Proclamation of 1945; the Japanese Instrument of Surrender of Sept. 2, 1945, and MacArthur's General Order No. 1, issued the same day.
The fact that subsequent to the Japanese surrender the Republic of China declared Formosa to be a part of China is briefly reviewed. Although the United States was aware of this declaration, State Dept. Acting Secretary Acheson clearly stated on April 11, 1947, that the transfer of sovereignty over Formosa to China "has not yet been formalized."
After the founding of the People's Republic of China on Oct. 1, 1949, the seat of the Government of the Republic of China was transferred to Formosa, and in early December 1949, Taipei became its provisional capital.
On Jan. 5, 1950, President Truman said that "the United States Government will not pursue a course which will lead to involvement in the civil conflict in China." However, after the outbreak of hostilities in Korea on June 25, 1950, the status of Formosa and the Pescadores was again brought to the fore. In ordering the U.S. Seventh Fleet into the Taiwan Strait, President Truman stated on June 27 that: "The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations."
Czyzak then gives details regarding the United States' statements to the United Nations Security Council in August and September 1950, and arguments between the United States and the Soviet Union regarding the exact wording regarding the disposition of Formosa and the Pescadores in the early drafts of the Japanese Peace Treaty. The treaty came into force on April 28, 1952, but sovereignty over Formosa and the Pescadores was not considered to have finally been determined therein.
Further international talks were held on the Formosa question throughout the 1950s, and the United States was an active participant therein.
At the end of his lengthy analysis, Czyzak concludes that "The most tenable theory regarding the status of Formosa and the Pescadores is that sovereignty over the islands has not been finally determined."
Ten years later, Robert I. Starr of the State Dept. issued a new Memorandum. For the most part, the Starr Memorandum is merely a summary of the Czyzak Memorandum, although some new material is added from Senate Hearings in 1970. No new insights are offered however.
Dissection of the Truth of the Taiwan Status
Except for a cursory remark in the Czyzak Memorandum about the situation of occupied Cuba after the Spanish American War, nowhere in these two State Dept. documents do we find any comprehensive analysis of Taiwan's legal status based on the customary laws of warfare of the post-Napoleonic period.
Such an analysis would include the following objective facts:
- The Treaty of Shimonoseki gave Formosa and the Pescadores (today commonly known as "Taiwan") to Japan to hold as a territorial cession, not merely as militarily occupied territory. As a result, beginning in May 1895, Japan exercised sovereignty over Taiwan and held title to its territory.
- The announced "cancellation" or "nullification" of the 1895 Treaty of Shimonoseki by the Chiang Kai-shek regime at various times during the 1930s and early to mid-1940s is without any legal significance whatsoever.
- The intentions expressed in the Cairo Declaration (Dec. 1, 1943), the Potsdam Proclamation (July 26, 1945), and the Japanese surrender documents (Sept. 2, 1945) did not serve to finalize any transfer of the territorial sovereignty of Taiwan to the Republic of China (ROC).
- All military attacks against Taiwan during the 1941 to 1945 period were conducted by U.S. military forces. No military forces of the Republic of China or any other country participated.
- It is a matter of historical record that the ROC military commanders and troops were transported to Taiwan by United States ships and aircraft in October 1945. Thus, the era of the ROC in Taiwan began in Oct. 1945 with the full assistance and tutelage of the United States.
- The Japanese surrender ceremonies of Oct. 25, 1945, did not signify a transfer of Taiwan's territorial sovereignty to the ROC. There was no "Taiwan Retrocession Day."
- The completion of the Oct. 25, 1945, surrender ceremonies only marked the beginning of the military occupation of Taiwan, and international law dictates that "military occupation does not transfer sovereignty." The legal occupier is the "conqueror," which (in consideration of the historical record of military attacks against Taiwan) is the United States of America.
- The administrative authority for the military occupation of Taiwan has been delegated to the Chinese Nationalists (ROC). In other words, the United States is "the principal occupying power." The ROC has taken on the position of "proxy occupying forces."
- Military occupation is conducted under "military government." In its position as the principal occupying power, the USA has "United States Military Government" (USMG) jurisdiction over Taiwan.
- The announced "mass naturalization" of native Taiwanese persons as ROC citizens according to the specifications of a Jan. 1946 ROC military order, and/or according to other military proclamations in the period of late 1945 to 1946, is totally illegal.
- To affect the transfer of territorial sovereignty, a treaty is needed. Taiwan was sovereign Japanese territory until ceded in the San Francisco Peace Treaty (SFPT) of April 28, 1952. Under the terms of the SFPT, the territorial sovereignty of Taiwan was not awarded to the ROC.
- According to the SFPT, Taiwan was a "limbo cession" with the United States as the principal occupying power and USMG administrative authority over Taiwan fully active.
- Legally speaking, after April 28, 1952, Japan could have no further say in the "disposition" of Taiwan territory. Hence, it is impossible to interpret the Aug. 5, 1952, Treaty of Taipei as authorizing a transfer of the territorial sovereignty of Taiwan to the ROC. Indeed, the Treaty of Taipei includes no such provisions. The Treaty of Taipei fully recognizes the disposition of Taiwan territory as specified in the SFPT.
- The specifications of Article 10 of the Treaty of Taipei were only made for the convenience of Taiwanese persons traveling to Japan, and should not be interpreted to have any effect on the recognition of the "nationality" of native Taiwanese people by the governments of other world nations. In any event, the Treaty of Taipei was abrogated on Sept. 29, 1972.
- For a territorial cession in a peace treaty after war, 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. To date, from April 28, 1952, to the present, there has been no announcement by the US Commander in Chief of any recognized "civil government" for Taiwan which has supplanted USMG jurisdiction over "Formosa and the Pescadores." This explains why the ROC on Taiwan is not recognized as a sovereign nation.
- The US-ROC Mutual Defense Treaty of March 3, 1955, only recognized the ROC's effective territorial control over Taiwan territory, not sovereignty.
- After the close of hostilities in WWII in the Pacific, the often heard statement that "the status of Taiwan is undetermined" arises from the fact that Taiwan has not yet reached a "final status" as either (a) an independent sovereign nation, or (b) part of any other sovereign nation.
- There are many ways of describing Taiwan's legal status after its cession from Japan. Here in 2014-15, Taiwan is still occupied territory of the United States of America. Hence, Taiwan may be considered as "foreign territory under the dominion of the United States."
- In consideration of the above, Taiwan is an "independent customs territory" under USMG, and an insular area of the USA under military government. Significantly, here in 2014-15, Taiwan is still in the process of forming its own civil government.
- "Taiwan" is a term of geography. The "ROC on Taiwan" is a non-sovereign nation. In the present era, the administrative authority for the military occupation of Taiwan is still being delegated to the Republic of China, which is merely fulfilling the role of a "proxy occupier" (beginning Oct. 25, 1945) and a "government in exile" (beginning mid-December 1949).
- For a detailed comparison of Taiwan's post-surrender status with the situation of the occupied territories after the Spanish American War, see Puerto Rico, the Philippines, Guam, Cuba, and Taiwan
In consideration of the many inadequacies in the compilation of the 1961 and 1971 documents, it is urged that the State Dept. issue an updated Memorandum on the Legal Status of Taiwan at an early date.