Chapter 15 – Background Studies Needed for Comprehension of the Taiwan Status Issue

Background Studies Needed for Comprehension of the Taiwan Status Issue

In order to fully understand Taiwan’s current legal status, one must be familiar with the laws of war, or more specifically “the customary laws of warfare of the post-Napoleonic period,” (hereinafter “the customary laws of warfare”).

The laws of war are derived from two principal sources:
a. Lawmaking Treaties (or Conventions), such as the Hague and Geneva Conventions.
b. Custom. Although some of the law of war has not been incorporated in any treaty or convention to which the United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.
Lawmaking treaties may be compared with legislative enactments in the national law of the United States and the customary law of war with the unwritten Anglo-American common law.

In the broadest sense, a correct understanding of Taiwan’s legal status requires in-depth knowledge of the following areas:

  • military jurisdiction under the US Constitution, including military occupation, military government, the principle of conquest, etc. and the content of all relevant Supreme Court cases on these subjects,
  •  US Army regulations, including FM 27-5 “Military Government”, FM 27-10 “The Law of Land Warfare”, FM 41-10 “Civil Affairs Operations”, etc.
  • the functioning of governments in exile,
  • the customary law of treaties, especially in regard to the dispositions of territorial cessions in general, and the disposition of territorial cessions after war in particular,
  • the Insular Cases of the Supreme Court, and their relationship to military occupation issues, along with the development of insular law,
  • Hague Convention IV of 1907,
  • Geneva Conventions of 1949,
  • other established laws of war precedent.

The validity of the customary laws of warfare is fully recognized by competent jurists, experts, and other legal scholars, even if the average “civilian” has little expertise or knowledge in such subjects.

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