Contradictions in the US Taiwan policy

(2) Contradictions in the US Taiwan policy

Taipei, Taiwan — The US executive branch continues to oppose moves by the Republic of China on Taiwan to obtain a seat in the United Nations, saying that such membership is only open to sovereign nations. The recognition of Taiwan as a sovereign entity would upset a basic premise of former US President Bill Clinton’s “three noes policy” — specifying no support for “one Taiwan, one China” — which continues to be respected in the Bush White House.

In the view of the Taiwanese people, Taiwan already has a distinct international personality, distinct from the People’s Republic of China, and therefore should be allowed to participate in world affairs on an equal basis with other nations. According to the logic of Taiwan officialdom, Taiwan has never been under the jurisdiction of the PRC, and therefore it is clearly an independent nation. After all, didn’t Taiwan join the World Trade Organization as an independent entity?

However, a close review of the historical record shows that Taiwan joined the WTO as an independent customs territory, not as a sovereign state. Although many Taiwanese would argue that such semantic differences are simply due to international political squabbles and pressure from the PRC, in fact there is a much deeper significance in Taiwan’s WTO membership nomenclature.

Specifically, the terminology of “independent customs territory” arises from the law of military occupation. Has Taiwan ever been under military occupation? The answer is clearly yes, since none of the Allies recognized any transfer of the sovereignty of Taiwan to the Republic of China government upon the Oct. 25, 1945, surrender ceremonies for Japanese troops on the island. That date only marked the beginning of the military occupation of Taiwan.

The Chinese on both sides of the Taiwan Strait have always been vociferous in their propaganda regarding the events of that October date, stating that the Cairo Declaration, the Potsdam Proclamation, and the Japanese surrender documents clearly authorized the return of Taiwan to China. However, such “statements of intent” don’t have the force of treaties, and hence don’t carry the legal weight necessary to authorize any transfer of sovereignty under international law. Transfers of the sovereignty of territory have to be stated in a treaty. In other words, the aforementioned three documents do not affect the application of the law of military occupation, which obtained full validity after the close of the Napoleonic wars, and was later codified in the Hague Conventions of 1907.

What about the premise that Taiwan is still under military occupation in the present era? Is that arguable? Military occupation is conducted under “military government,” so in order to prove such a premise, it would be necessary to show that some country’s military government’s jurisdiction over Taiwan is active in the present era.

An examination of the San Francisco Peace Treaty of 1952 provides the answer. Although Taiwan was ceded by Japan in Article 2b without the specification of a “receiving country,” Article 23 specifies the United States of America as the “principal occupying power,” and Article 4b states that the dispositions of Article 2 and 3 “property” are subject to the determination of the United States Military Government.

“Property” includes the concept of “title.” Looking at the Article 3 territories (containing the Ryukyu Islands, Daito Islands, Bonin Islands, Rosario Island, the Volcano Islands, etc.), the US military authority clearly included disposition of their territorial title. More specifically, these islands were returned to Japan, which means that Japanese civil government supplanted US jurisdiction.

The Republic of China was entrusted with authority over Formosa and the Pescadores as based on the specifications of General Order No. 1 of Sept. 2, 1945, issued by General Douglas MacArthur. Importantly, in the period from 1952 to the present, there is no record of any “civil government” structure functioning in Taiwan which has supplanted the US military jurisdiction over “Formosa and the Pescadores.” Nor has there been any US government announcement of the end of US jurisdiction over these territories.

By contrast, the end of US military jurisdiction over each of the San Francisco Peace Treaty Article 3 territories was formally announced. Moreover, looking back at the historical record, the end of US military jurisdiction over each of the territories ceded in the Spanish American War and the Mexican American War was formally announced as well.

With reference to the functioning of the US Military Government in overseas territories, it is clear that the “one China policy” as espoused by the United States is correct. The Republic of China became a government-in-exile when it moved its central government to occupied Taiwan in mid-December 1949. The People’s Republic of China is the sole legitimate government of China, but “China” does not include Taiwan. Taiwan cannot gain a seat in the United Nations because it is not a country, it is occupied territory of the United States.

However, with the above recognition, a number of contradictions in the US executive branch’s handling of the Taiwan issue now emerge, and will require immediate remedial action. First, since The Hague and Geneva Conventions forbid military conscription in occupied territory, and the US Constitution specifies a “common defense” for all areas under US jurisdiction, arms sales to Taiwan by the US government must be suspended.

Second, the United States should not be accepting Republic of China passports held by native Taiwanese persons as valid travel documents. After all, Taiwan does not belong to the Republic of China. Third, US officials should be explaining to all interested parties that at present, “self-determination” in the Taiwan context means forming a new “Taiwan civil government” under the US Military Government, and making preparations to call a Taiwanese constitutional convention under US administrative authority.

Meanwhile, the US Congress should rectify the name of Taiwan through appropriate legislation, and the nomenclature of “Republic of China” should be restricted to use in the areas of the Kinmen and Mazu island groups.

Chapter 10, Essay #1   |   Chapter 10, Essay #3