The inquiry is often made -- Is the US really in much of a position to tell Taiwan that they can't declare independence?
This is an excellent debate topic. How are we to analyze it? First let's look at some background information and further analysis. In this way, we can uncover the hidden side of US - Taiwan relations.
Answers to five common questions which people continually ask about the Republic of China (ROC) on Taiwan are given as follows --
Q: Is it a state?
Q: Is it sovereign?
Q: Is its government the representative of the Chinese people (i.e. the people of what is now regaded as the Peoples Repubic of China)?
Q: Has its status changed since popular elections were held for President in 1996?
A: No, it is still a government in exile.
Q: If Taiwan is occupied territory, who is the occupying power?
A: The USA, as fully confirmed by Article 23a of the San Francisco Peace Treaty (SFPT).
The key to understanding the international legal position of Taiwan, and the position of the "Republic of China," is to examine all relevant issues from the perspective of the laws of war of the post-Napoleonic period.
The Significance of the Surrender Ceremonies
From this perspective, we can see that the surrender ceremonies for Japanese troops in Taiwan on Oct. 25, 1945, only mark the beginning of the military occupation of Taiwan. But who is the occupying power?
Considering the situations of California, New Mexico, Utah, etc. in 1847 (Mexican American War), and the situations of Puerto Rico, Guam, the Philippines, and Cuba in 1898 (Spanish American War), and other situations of war in the 1800s and 1900s, it is clear that the "conqueror" is "the occupying power." Since the military occupation of a particular area can be delegated to co-belligerents ("allies"), this is more correctly referred to as "the principal occupying power."
The areas of "Formosa and the Pescadores" (aka Taiwan) had been ceded to Japan in the 1985 Treaty of Shimonoseki. After the Dec. 8, 1941 US Declaration of War against Japan, all military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by US military forces. The United States is the "conqueror" and therefore will be the principal occupying power.
Although Chiang Kai-shek ostensibly accepted the surrender of Japanese troops in Taiwan on behalf of the Allies (based on the provisions of Gen. MacArthur's General Order No. 1 of Sept. 2, 1945), the ensuing military occupation of Taiwan is being conducted on behalf of the principal occupying power -- the United States of America. This is a principal-agent relationship.
Hence, in relation to Taiwan, as of October 25, 1945, the ROC (under Chiang Kai-shek) is a subordinate occupying power. The United States is the principal occupying power. United States Military Government jurisdiction over Taiwan has begun as of this date.
In December 1949, high officials of the ROC fled to occupied-Taiwan to become a government in exile.
There has been no change in this status to date. Hence, at the present time, the ROC in Taiwan is (1) a subordinate occupying power, beginning Oct. 25, 1945, and (2) a government in exile, beginning December 1949. Under the laws of war, the ROC has effective territorial control over Taiwan, but not sovereignty.
Confusion in the World Community
The world community was confused for so many years because the ROC was recognized by the United Nations as the sole legitimate government of China up through Oct. 25, 1971, and recognized by the United States as the sole legitimate government of China up through Dec. 31, 1978. (The Soviets recognized the PRC as the sole legitimate government of China in 1949, and the British followed very quickly in Jan. 1950. France followed in 1964.)
In the present day, the PRC cannot claim the sovereignty of Taiwan based on the "successor government theory" because the ROC never had it in the first place.
Importantly, for anyone interested in promoting liberty and democracy throughout the world, it is necessary to recognize an established point of international law which says that there are no actions which a "government in exile" can take in order to enable it to become the legally recognized government of its current locality of residence.
Hence, despite the strides taken toward democratic development by the ROC in Taiwan, the world community is still unable to recognize it as a sovereign state. Moreover, the post war peace treaty did not award the territory of "Formosa and the Pescadores" to the ROC.
In summary, the areas of "Formosa and the Pescadores" (aka Taiwan) are occupied territory of the United States of America. The United States of America is the principal occupying power, as confirmed in Article 23a of the San Francisco Peace Treaty of April 28, 1952. Moreover, the fact that United States Military Government jurisdiction over "Formosa and the Pescadores" is active is fully confirmed by Article 4b of the SFPT.
It is an established point of the laws of war 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, but continues until legally supplanted.
Unwilling to Admit the Truth
The US Department of State is still unwilling to admit the truth in regard to Taiwan's status. The SFPT contains the full specifications, and (according to Article VI of the US Constitution) is part of the supreme law of the land.
Accordingly, Taiwan's correct formulation for entering the World Health Organization (WHO) is as an associate member under the USA, similar to Puerto Rico.
One must not fail to mention that the Kinmen and Mazu island groups are sovereign ROC territory. (As explained above, Formosa and the Pescadores are not.) The PRC could well claim sovereignty over the Kinmen and Mazu island groups based on the successor government theory, but that would be something for the ROC and PRC representatives to discuss, probably under a framework of "One China." After all, the One China Policy is correct. What must be pointed out however is that the One China Policy does not say that the USA recognizes that Taiwan is a part of China.
In summary, any announcement of TAIWAN INDEPENDENCE under the framework of the ROC would not be recognized by the world community. The reason is simple -- the ROC is a government in exile of China; it is not the legitimate government of Taiwan. Or, to put this another way, we can say that Taiwan has "governing authorities" but it does not have an internationally recognized government.
Conclusion: At the present time, the Taiwanese people must first establish their own "civil government" (and obtain the recognition of the SFPT's principal occupying power -- the USA) before they can move along a path to true "self-government," self-actualization, and eventual independence.
A famous statesman once said: "Whatever must happen ultimately should happen immediately." The US Congress should hold hearings to clarify the current legal status of Taiwan under the US Constitution, and to help the native Taiwanese people undertake this important task of organizing their own civil government.
For further information, see -- http://www.taiwankey.net/dc/viewpoint.htm