(1) In the aftermath of the First Sino-Japanese War, Qing China ceded Taiwan to Japan in the 1895 Treaty of Shimonoseki. With the coming into force of this treaty, Japan exercised sovereignty over Taiwan and held title to its territory.
(2) The Republic of China (ROC) was founded in 1912. After some years of turbulence, the ROC established its capital in Nanjing, with Dr. Sun Yat-sen as the provisional president.
(3) Taiwan, however, having come under Japanese rule in 1895, was not part of the ROC in the early years of the 20th century.
(4) Hence, at the most basic level, up through the early 1940's, the Republic of China was recognized by the world community as the sole legitimate government of China. This we will designate as the ROC's "Status in China #1."
(5) Many Chinese people like to point out that "The Republic of China has been a sovereign independent nation since 1912." This is arguably true, however we must not forget that Taiwan was not a part of the ROC in early years of the 20th century. It was Japanese territory. [See graphic #1]
(1) The US entered the Pacific War against Japan on Dec. 8, 1941. All military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by US military forces, as confirmed in numerous published sources. The United States is the "conqueror" and will be the principal occupying power.
(2) The Republic of China (ROC) was entrusted with authority over Formosa and the Pescadores based on the specifications of General Order No. 1, issued on of Sept. 2, 1945, the day of the Japanese surrender. General Douglas MacArthur issued General Order No. 1 directing the "senior Japanese commanders and all ground, sea, air and auxiliary forces within . . . Formosa" to "surrender to Generalissimo Chiang Kai-shek."
(3) The surrender ceremonies for Japanese troops in Taiwan were held Oct. 25, 1945, in Taipei. This date marked the beginning of the military occupation of Taiwan.
(4) The United States' position as the "principal occupying power" in the administration of Taiwan may be directly derived from an analysis of General Order No. 1 of Sept. 2, 1945.
(5) Although the surrender ceremonies in Taiwan on Oct. 25, 1945, were ostensibly conducted on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of the principal occupying power - the United States of America.
(6) Following the acceptance of the surrender of Japanese forces in Taiwan by the representatives of Chiang Kai-shek's government, Taiwan remained de jure Japanese territory. The ROC government occupied Taiwan on behalf of the principal occupying power pending a peace treaty with Japan, which would change the legal status of Taiwan. In other words, the surrender ceremonies for Japanese troops did not signify any transfer of Taiwan sovereignty to the ROC.
(7) Hence, as of Oct. 25, 1945, the Republic of China, in addition to being recognized as the sole legitimate government of China, has taken on an additional role as a subordinate occupying power in the military occupation of Taiwan. This we will designate as the ROC's "Status in Taiwan #1." [See graphic #2]
(1) A significant development in the Chinese Civil War occurred in the Fall of 1949, when the People's Republic of China (PRC) announced its founding in Beijing on October 1.
(2) With the downfall of the Chinese Nationalist government, the Republic of China in truth could only claim the de facto status of being the former sole legitimate government of China. This we will designate as the ROC's "Status in China #2."
(3) At the same time however, the ROC retained its role as a subordinate occupying power in the military occupation of Taiwan. [See graphic #3]
(1) When high ranking military officers, government officials, and other loyal Chinese nationalists fled to occupied Taiwan in December 1949, establishing the ROC's temporary capital in Taipei, it became a government in exile. This we will designate as the ROC's "Status in Taiwan #2."
(2) Definitions of government in exile are provided as follows:
A government whose chief executive and other principal officials have fled their state in the face of hostile armed forces but which is recognized as the de jure government of its native country by at least one other state.
A temporary government moved to or formed in a foreign land by exiles who hope to rule when their country is liberated.
A government established outside of its territorial base.
A political group that claims to be a country's legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country. Governments in exile usually operate under the assumption that they will one day return to their native country and regain power.
A government which has either been forced out by revolution or usurpation, or invaded and taken over by another nation, and is now taking refuge elsewhere.
A body which claims to be the legitimate government of a state, but which is unable to establish itself in the state in question. [See graphic #4]
(1) Under international law, Taiwan was Japanese territory up until April 28, 1952.
(2) Pursuant to the San Francisco Peace Treaty (SFPT), Japan renounced its sovereignty over Taiwan and title to its territory as of April 28, 1952. SFPT Article 2(b) read: "Japan renounces all right, title and claim to Formosa and the Pescadores." However, no receiving country was specified for this territorial cession.
(3) China never became a party to the SFPT. Neither the (exiled) ROC government, which occupied the island of Taiwan as agent for the principal occupying power, nor the government of the People's Republic of China (PRC), established on Oct. 1, 1949, signed or ratified the SFPT.
(4) SFPT Article 25 specifically provided that the Treaty did "not confer any rights, titles or benefits on any State which [was] not an Allied Power [as defined in Article 23(a),]" subject to certain narrow exceptions set forth in Article 21. Accordingly, China, a non-party, did not receive "any right, titles or benefits" under the SFPT except as specifically provided in Article 21.
(5) Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan. The parties to the SFPT chose not to give any "right, title [or] claim to Formosa and the Pescadores" to China.
(6) While SFPT Article 2(b) did not designate a recipient of "all right, title and claim to Formosa and the Pescadores," Article 23 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."
(7) SFPT Article 4(b) further confirmed the jurisdiction of the United States Military Government over Taiwan. Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.
(8) 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.
(9) Nevertheless, the United Nations recognized the Chiang Kai-shek's ROC government in exile as the sole legitimate government of China up through late 1971. The United Nations never recognized the Republic of China as the legal government of Taiwan. (In other words, "Taiwan" is only a geographic term, and "Taiwan" has never been a member of the United Nations.)
(10) Then on Oct. 25, 1971, United Nations Resolution 2758 expelled the representatives of Chiang Kai-shek from the United Nations and all related organizations, and recognized the representatives of the Government of the People's Republic of China as the only lawful representatives of China to the United Nations.
(11) From the mid 1930's to December 31, 1978, the United States recognized the ROC as the legal government of China. At no time during this time period did the United States recognize the ROC as the legal government of Taiwan.
(12) Hence, as of January 1979, the ROC was no longer recognized by the leading countries of the world community as the legal government of China. In Taiwan the ROC is fulfilling the dual roles of (a) a subordinate occupying power, beginning Oct. 25, 1945, and (b) a government in exile, beginning December 1949. [See graphic #5]
(1) International law recognizes that governments in exile may undertake many types of actions in the conduct of their daily affairs. These actions include:
becoming a party to a bilateral or international treaty
(2) However, none of these actions can serve to legitimatize a government in exile to become the internationally recognized legal government of its current locality. By definition, a government in exile is spoken of in terms of its native country, hence it must return to its native country and regain power there in order to obtain legitimacy as the legal government of that geographic area.
(3) Hence, there are no actions which the Republic of China government can take in Taiwan in order to become recognized by the world community as an independent sovereign nation.
and the Rights of the Taiwanese People
(1) While temporarily ignoring the complexities of the period of belligerent occupation from Oct. 25, 1945, to April 28, 1952, when Taiwan was still under de jure Japanese sovereignty, nevertheless from the point of view of military jurisdiction under the Constitution, it is clear that from April 28, 1952 to the present, according to the provisions of the SFPT, Taiwan has been an occupied territory of the United States, "the principal occupying power."
(2) At the present time, Taiwan is an an occupied territory of the United States. Neither the SFPT, the Treaty of Taipei nor any other subsequent legal instruments after 1952 changed the status of Taiwan. Being still under military occupation, Taiwan has not yet reached a "final political status."
(3) Military government continues till legally supplanted. The US as the principal occupying power has never transferred the sovereignty over Taiwan or title to its territory to any other government.
(4) When reviewing the military histories of Puerto Rico, Guam, the Philippines, and Cuba, it is clear that for a territorial cession after war, "the military government of the (principal) occupying power does not end with the coming into force of the peace treaty." In the post-World War II period up to today, no treaty or law ever terminated the United States' jurisdiction over Taiwan. By contrast, United States' jurisdiction over Puerto Rico, Guam, the Philippines and Cuba were all ended by treaties, laws, or other affirmative actions of the United States Government.
(5) Living on an overseas territory under the jurisdiction of the United States, and even without any action by the US Congress, the Taiwanese people are entitled to enjoy "fundamental rights" under the US Constitution, similar to the residents of other US overseas territories.
The members of Congress should be encouraged to thoroughly investigate the legal status of Taiwan under the US Constitution.