Taiwanese should seek US Constitutional
By Richard W Hartzell
Speaking Freely is an Asia Times Online
feature that allows guest writers to have their say.
We can construct a simple model of modern Taiwan history
which will help us better understand the status quo as
viewed by the United States government.
begin at the close of World War II, after the dropping
of atomic bombs on Japan. There is the necessity of
handling the surrender of Japanese troops and the
military occupation of each locale. Over such a broad
geographic area, it will be necessary to determine the
"principal occupying power" to deal with these issues.
In General Order No 1 of September 2, 1945, General
Douglas Macarthur, whom in today's terminology we would
call "leader of the coalition forces", directed the
military troops under his command to handle all related
details. A law of war analysis shows that Macarthur is
acting in his position as head of the United States
Military Government (USMG), in issuing this general
The representatives of Chiang Kai-shek
(CKS) were directed to accept the surrender of Japanese
forces in "Formosa and the Pescadores" (hereinafter
referred to as "Taiwan"). When CKS' representatives
finally did get to Taipei, Taiwan, and accept the
Japanese surrender, they immediately claimed that day of
October 25, 1945, as "Taiwan Retrocession Day", and
stated that Taiwan was returned to the Republic of China
based on the Cairo Declaration, the Potsdam
Proclamation, and the terms of the Japanese surrender
documents signed on the USS Missouri.
though many scholars have argued about the legal
validity of such actions for decades, in fact no
argument is necessary. According to the Hague
Conventions, and accompanying Hague Regulations of 1907,
"territory is considered occupied when it is actually
placed under the authority of the hostile army". This,
along with the fact that "occupation does not transfer
sovereignty", are accepted principles of the law of war,
and its subset: the law of occupation.
the Chinese history books state that CKS'
representatives came to Taiwan on their own initiative,
in fact they were exercising delegated administrative
authority for the occupation under USMG. According to
the fiduciary relationship established under the law of
occupation, USMG holds the sovereignty of the area in
trust in its position as "principal occupying power."
October 25, 1945, clearly marks the beginning of the
period of belligerent occupation.
War II legal issues for Taiwan
In this type of
scenario, after the surrender of Japanese troops in
Taiwan, we have several legal issues to deal with:
The determination of the "lawful government" of
The end of US military government in Taiwan;
The transfer of sovereignty to the "lawful
government" of the area.
In the post-war peace
treaty, we would normally expect to see explicit
provisions for the handling of the occupied territory.
However, in the San Francisco Peace Treaty (SFPT), which
came into effect on April 28, 1952, Article 2b only
states: "Japan renounces all right, title and claim to
Formosa and the Pescadores." No specification was made
about to which government these areas were ceded.
Taiwan President Chen Shui-bian and his advisors
today interpret this clause to mean that the sovereignty
of Taiwan has been returned to the Taiwanese people,
however, under the law of war such an analysis is
incorrect. The cession of territory is from "government"
to "government". Hence, a more coherent analysis of SFPT
Article 2b would hold that the "lawful government" of
Taiwan had not yet been determined as of April, 1952. In
such a situation, military occupation continues, but we
call this "friendly occupation", or more properly "the
civil affairs administration of a military government".
Since Taiwan was not ceded to the Republic of
China in the SFPT, it remains under the administrative
authority of the principal occupying power, which is the
US, as per Article 23. This is further clarified by
Article 4b, which states: "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."
If the lawful
government of Taiwan was undetermined as of April, 1952,
when was it determined? In over-viewing all relevant
documentation, we find the Shanghai Communique of 1972,
which stated there is only one China, and the People's
Republic of China is the sole legitimate government of
China. In that communique, the US also reaffirmed its
interest in a peaceful settlement of the Taiwan question
by the Chinese themselves.
Communique leaves unification to be
The relevant clauses of this 1972
communique conveniently serve the purpose of a civil
affairs agreement under the law of occupation to arrange
the transfer of territory to the "lawful government" of
the area. No timetable was specified, hence the
determination of the exact date for this expected
"unification" has been left up to negotiations between
officials on both sides of the Strait. Here in 2004, it
is clear that the PRC officials would like to see
quicker action on this matter, while the Taiwanese
officials would prefer that any actions toward
unification be put off further into the future.
At some point in the future, when the Taiwan and
PRC officials do come to the negotiating table, it can
be expected that Taiwan will have to agree to the "one
country, two systems" model. When the two sides finally
unify, the US administrative authority over Taiwan will
be supplanted, and the transfer of Taiwan's sovereignty
to the PRC (ie "the lawful government of the area") will
be completed with the agreement of the Taiwanese
themselves. At that point the US will offer its
By using law of war principles to
construct this simple model of modern Taiwan history, we
can review various US actions over the past 50 years and
we find them in perfect agreement with this model's
parameters. In addition to the Shanghai Communique's
specifications mentioned above, the diplomatic break
with the Republic of China (ROC) on Taiwan in late 1978,
the promulgation of the Taiwan Relations Act, President
Reagan's Six Assurances, President Clinton's Three Nos,
and the current pronouncements of the Bush
administration on the Taiwan question all dovetail
The ROC on Taiwan currently has (a)
permanent population, (b) defined territory, (c)
government, and (d) the capacity to enter into relations
with other states [international legal standards by
which nationhood is adjudged], yet it is not considered
a "sovereign nation" by the United Nations. In other
words, the world community does not consider that the
"sovereignty" of Taiwan is held by the Taiwan governing
authorities. Considering that the PRC does not currently
exercise any administrative authority over Taiwan, this
model also gives us an answer to the perplexing question
of where Taiwan's sovereignty currently is.
there are "two equal governments" on each side of the
strait, as the Taiwanese officials claim? Or is the ROC
on Taiwan merely a "government-in-exile"? What is the
proper format for Taiwan to apply for membership in the
World Health Organization? Will Taiwan's bids to join
the UN be successful? We can evaluate all of these
topics with this model (based on law of war principles).
1952 treaty giving US authority over Taiwan
In summary, under the terms of the
San Francisco Peace Treaty of 1952, the US's
administrative authority over Taiwan is still active,
even here in 21st century. However, as of 1972, the US
has placed Taiwan on a "flight path" for eventual
unification with the PRC. This defines the status quo
from the US perspective. Based on this realization, an
evaluation of what the White House or the State
Department mean when they dissuade either Taiwan or the
PRC to undertake any "unilateral moves to change the
status quo" is easy.
The PRC must hold to the
preconditions of not using force or coercion, and Taiwan
should not deviate from the "flight path" which was
previously determined for it.
In the Insular
Cases of the early 1900s, the US Supreme Court developed
the idea that, without any action by the Congress,
"fundamental rights" under the US Constitution are
available in all areas under the jurisdiction of the US,
but that other rights apply only when extended to such
areas by law. As recently as 1990, in United States vs
Verdugo-Urquidez, it was reaffirmed that, "It is not
open to us in light of the Insular Cases to endorse the
view that every constitutional provision applies
wherever the United States Government exercises its
Question: What would be the reaction of
Washington if the Taiwanese, being under US
administrative authority during this period of interim
status under the law of occupation, demand their
"fundamental rights" under the US Constitution?
The US Constitution grants Fifth Amendment
rights to life, liberty, property, and due process that
are certainly considered "fundamental". In addition,
there is the US Constitution's basic Article 1
stipulation that the US Congress will provide for the
"common defense". The Congress established the War
Department in 1789, and this was reorganized as the
Department of Defense in 1949.
Iraqis who are held by US authorities know enough to ask
for their US Constitutional rights. When will the
Taiwanese start asking for theirs?
W Hartzell is a researcher into the laws of war, a
columnist and writer who has lived in Taipei for nearly
30 years and is fluent in Mandarin. His interests
include differing Chinese and Western cultural norms,
the Chinese language, the US-Taiwan-PRC legal
relationship, military law, laws of occupation,
international treaty law, Chinese and international law,
territorial cession law, US insular law, US
Constitutional law and US Supreme Court cases.
(Copyright 2004 Richard W Hartzell)