Taiwan Defense Alliance
A New Look at Taiwan's International Legal Position

-- new research based on the laws of war


Reflections on Taiwan History -- from the Vantage Point of Iwo Jima

Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution

FM 27-10 The Law of Land Warfare, Chapter 6: OCCUPATION
  366. Local Governments under Duress and Puppet Governments

Important Remarks on the Interpretation of Treaties

The United States holds Taiwan's Sovereignty

Research Papers [Adobe Acrobat (PDF) files]

Glossary and Useful Links

Powerpoint files

Contacts in Taiwan

Reflections on Taiwan History - From the Vantage Point of Iwo Jima

by Richard Hartzell

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On October 25, 2004, US Secretary of State Colin Powell stated: "Taiwan is not independent. It does not enjoy sovereignty as a nation." Formerly, Secretary Powell had a distinguished career in the military, and of course is quite familiar with all aspects of the laws of war, military law, etc. After pondering Secretary Powell's remarks for some time, some people may have thought to themselves: "If this is the position of the US government, might it be possible for the Taiwanese people to request that the US stop all arms sales to Taiwan, and then have the US Department of Defense handle all of Taiwan's defensive matters directly?"

Let's step back for a moment and consider these issues from the vantage point of the battle for Iwo Jima in February - March, 1945.

The Raising of the US Flag over Iwo Jima

At the Iwo Jima Memorial in Washington, D.C., there is a large statue of soldiers struggling to raise the US flag over Iwo Jima. This statute commemorates the brave actions of all the US Marines who fought in the battle to gain control of the island during the most intense days of the fighting on February 19th to 23rd, including the many who lost their lives.

Iwo Jima is a volcanic island which lies approximately 650 miles (1046 km) south of Tokyo. In order to proceed in military attacks against the main Japanese islands, the United States considered Iwo Jima to be an important strategic objective, and spent over a month in attacking and conquering the island. When we gaze upon the Iwo Jima Memorial, we may pause to think: What is its true significance? What lesson can it teach us in regard to clarifying Taiwan's international legal position?

As everyone knows, Iwo Jima is not United States territory. So, why was the US flag raised over Iwo Jima? Most people would say: "This is because the soldiers who landed on the island were US Marines, so of course they raised the US flag!" If we examine this matter a bit further and ask our Taiwanese friends: "When a foreign military force invades a geographic area, what is the rule regarding what country's flag should be raised?" then most people will reply "We should just consider the nationality of the soldiers in the invading force, and then that country's flag should be raised!" Most people consider this to be sound logic, but in fact it is not very precise. We may even say that this sort of reasoning contains a number of blind spots. According to the author's opinion, it is precisely this failure to clearly define the rule regarding "Raising the Flag" which is the primary cause of Taiwan's current problems up to now, i.e. 2005.

In world history, the regulations and practices concerning the conduct of war have been most carefully and systematically defined in the post-Napoleonic era. (Napoleon died in 1821.) In fact, the customary laws of warfare in this era clearly show us the necessary considerations for the determination of which flag to raise when territory is invaded.

Who is the Principal Occupying Power?

Territory is considered occupied when it is actually placed under the authority of the hostile army. Under such circumstances, we need to determine: Who is the principal occupying power? In the situation of Iwo Jima, it was invaded and liberated by US military forces. No other countries' military troops were delegated administrative authority for the military occupation, hence the military occupation was under the direct authority of the United States. The United States was the (principal) occupying power, so of course the US flag should be raised.

In the paragraphs below, the author will examine two related scenarios for the invasion, liberation, and military occupation of Iwo Jima. In both scenarios we assume that Iwo Jima has a native population. This will enable us to consider the broader issues regarding civilian personnel in occupied territory.

Scenario #1 -- Allied forces comprised of one country and one tribe: Let us suppose that in the Battle for Iwo Jima, the United States had been allied with a group of famous fighting warriors from northern India called the "Baluch tribe." Military forces from the United States and the Baluch tribe were fighting together in the Pacific, and after several days of heavy aerial and naval bombardments, the Japanese commanders on Iwo Jima agreed to surrender. At this point we can imagine that the United States military forces still had additional military operations to take care of in nearby geographic areas. Hence, the US Marine Corps (USMC) general would direct that senior Japanese commanders and all ground, sea, air and auxiliary forces within Iwo Jima surrender to the Baluch military forces, and that the Baluch should take charge of the administration of the island. Our question is: What flag should be raised at the surrender ceremonies?

Upon analysis it is found that despite their long history of warriorhood, the Baluch are only a tribe, and in fact they don't have their own flag. Under such circumstances, of course the US flag is raised. It is clear from this arrangement that the United States is the principal occupying power. The Baluch military forces are just serving as "agents" for the US military forces in the administration of the island and its people after the surrender of Japanese troops.

Scenario #2 - Allied forces comprised of two countries: Let us suppose that the in Battle for Iwo Jima, the United States had been allied with the Soviet Union. Military forces from the United States and the Soviet Union were fighting together in the Pacific, and after several days of heavy aerial and naval bombardments, the Japanese commanders on Iwo Jima agreed to surrender. At this point we can imagine that the United States military forces still had additional military operations to take care of in nearby geographic areas. Hence, the USMC general would direct that senior Japanese commanders and all ground, sea, air and auxiliary forces within Iwo Jima surrender to the Soviet Union's military forces, and that the Soviet Union should take charge of the administration of the island. Our question is: What flag should be raised at the surrender ceremonies?

Upon analysis, many people will no doubt say that the flag of the Soviet Union should be raised. However, this method of dealing with the administration of Iwo Jima after the surrender ceremonies may have a number of "unpleasant side effects."

The Distinction between "Occupation" and "Annexation"

According to international precedent in the post-Napoleonic era, the invasion, conquest, and control of a nation or territory by foreign armed forces is considered "military occupation" and not "annexation. " However, what if upon accepting the surrender of Japanese troops in Iwo Jima, the Soviet Union's military commanders immediately announce that the island has become an indivisible part of Soviet national territory? Would there be any remedy at that juncture?

Moreover, what if five or six years later there is a coup d'etat in the Soviet Union, and a number of high ranking government officials and military personnel all flee to Iwo Jima? At this point it might be expected that this Soviet Union government which has established itself in Iwo Jima still has full diplomatic relations with thirty or more countries. An important question is: Can we consider the "Soviet Union in Iwo Jima" to be an independent and sovereign nation?

With reference to Article 1 of the Montevideo Convention (which entered into force on December 26, 1934), the "Soviet Union in Iwo Jima" does indeed meet the four criteria of having (a) a permanent population, (b) a defined territory, (c) a government and (d) the capacity to enter into relations with the other states.

In fact however, the "Soviet Union in Iwo Jima" is only a subordinate occupying power and a government in exile! It has effective territorial control over Iwo Jima, but does not have sovereignty! Hence, it cannot be considered a sovereign state in the international community.

Having proceeded this far in our hypothetical scenarios regarding the military occupation of Iwo Jima we must pause to consider: Do the above scenarios give us any clues as to what really happened to Taiwan in 1945?

The author must stress that regardless of the situation of a territorial cession in peacetime or as the result of war, there is always the need for a clear "transfer of title." It is only with a clear "transfer of title" that the new owners can claim sovereignty over the territory.

What is the significance of the date of October 25, 1945? According to international law, this can only be viewed as the beginning of the military occupation of Taiwan. Moreover, according to the principle that "military occupation does not transfer sovereignty," it is impossible to hold that there was any transfer of sovereignty on that date. Hence, the sovereignty of Taiwan was still held by Japan until the coming into force of the post war San Francisco Peace Treaty (SFPT) on April 28, 1952. In that treaty, Japan renounced the sovereignty of Taiwan in Article 2b. Was this sovereignty transferred to the Republic of China? The answer is no.

Significantly, military occupation is a transitional period, or a period of "interim status." Since the SFPT did not specify a "receiving country" for the transfer of the sovereignty of Taiwan, we must consider: Who will make the decision regarding the final disposition of Taiwan in the post-war period? The answer is: the principal occupying power will make the decision.

Japan renounced the sovereignty of Taiwan in the SFPT, but no receiving country was specified. In such a situation, who is in charge? According to Article 23, the United States is the principal occupying power, and Article 4b confirms that the United States has disposition rights over Taiwan. In 1972, when the US President announced the "One China Policy," he was actually making arrangements for the future disposition of Taiwan. Importantly, this was done in accordance with the specifications of the SFPT.

In summary of the above, a correct statement of Taiwan's current international legal position is that it is "foreign territory under the dominion of the United States". Indeed, as we know, the Taiwan Relations Act is a domestic law of the USA. Up to the present day, Taiwan has not been unified with the PRC. Hence, during this period of "interim status," can the Taiwanese demand recognition of their "fundamental rights" under the US Constitution? The answer is yes.

The earlier that the Taiwanese demand their US constitutional rights, the better.

Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution

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by Christina Duffy Burnett and Burke Marshall (Editors). Durham, N C: Duke University Press, 2001. 464 pp. Cloth $69.95. ISBN: 0-8223-2689-2. Paper $23.95. ISBN: 0-8223-2698-1. (Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University)

Although most Americans are vaguely aware of the fact that the United States has territorial possessions, it usually comes as a surprise when they learn that these territorial possessions include more than Guam and Puerto Rico. The community of United States territories also includes American Samoa, the Northern Mariana Islands, and the U. S. Virgin Islands. Each of these territories has a unique relationship with the United States, borne of their individual histories and the pathways by which they became associated with the United States. However, they share several important features, not the least of which is their status as unincorporated territories, a term that derives from Supreme Court Justice Edward Douglass White's concurring opinion in Downes v. Bidwell (1901). To be an unincorporated territory is to belong to but remain separate from the United States. Those living in the territories are American citizens (American nationals in the case of American Samoa), but they do not have the right to vote in federal elections. This status means that the territories are neither sovereign nations nor American states and has induced varying degrees of dissatisfaction both in the territories themselves and in the United States.

It is with this dissatisfaction in mind that Christina Duffy Burnett and Burke Marshall brought the essays comprising FOREIGN IN A DOMESTIC SENSE together, with an eye toward enticing "American legal scholars back to the unresolved problem of territorial status in the United States, reminding them (and asking them to remind others) that the 'question of the hour' is now the question of a century, and none the less urgent for it" (p. xiii). The project had its genesis in a Yale Law School-sponsored conference marking the hundred-year anniversary of the Spanish American War and participants from that conference author the majority of the volume's essays. The assembled authors are a prestigious group that includes law professors (both from the states and the territories), political scientists, and judges (former and current, both federal and territorial). The authors have brought to bear a rich set of experiences and perspectives and, collectively, make an important contribution to understanding both the contemporary and historical context of the debate over territorial status.

As the most populous of the American territories, Puerto Rico serves as the focal point for many of the essays in this volume, but the observations made about and the lessons drawn from the Puerto Rican case have relevance beyond that particular territory. Burnett and Marshall group the 16 essays (plus Burnett's short note on the Insular Cases) around four central themes: history and expansion, expansion and Constitution, Constitution and membership, membership and recognition. The essays included under History and Expansion focus on the historical backdrop against which territorial expansion occurred. Those included under Expansion and Constitution address questions of constitutional jurisprudence while those essays collected under Constitution and Membership address themselves to principles of citizenship. Finally, the essays comprising Membership and Recognition center on the meaning of citizenship (or, more generally, membership in the body politic) in the Puerto Rican case.

Burnett and Marshall introduce the collection with an informative essay that surveys the relevant historical events, providing the background necessary to an informed understanding of the debates over territorial status. As Burnett and Marshall note, the Spanish-American War, starting with the February 1898 explosion of the USS Maine and ending with the December 1898 Treaty of Paris, was a short-lived event with dramatic repercussions. By the terms of the treaty ending the war, Spain ceded Cuba, Guam, Puerto Rico and the Philippines. The United States then found itself in the novel (for Americans) position of becoming a colonial power in the tradition of Britain, France, and Spain. This was by no means a development without controversy. In fact, as Burnett and Marshall characterize it, the presidential election of 1900 was, in part, a reflection of divisions in the United States over the appropriate relationship between America and its territories. William Jennings Bryant represented the position that the Constitution follows the flag; i.e., territorial possessions should be governed under the same constitutional principles as the American states. William McKinley, on the other hand, disavowed that notion, instead arguing that the Constitution need not NECESSARILY follow the flag. It is this latter position that ultimately prevailed.

It was a position that ultimately received the imprimatur of the United States Supreme Court in a set of cases known as the Insular Cases. This set of cases consists of 23 opinions of the Supreme Court rendered between 1901 and 1922. Two cases, DeLima v. Bidwell (1901) and Downes v. Bidwell (1901), set the initial parameters. Both cases involved the imposition of duties on goods imported into the continental United States from Puerto Rico. In DeLima, at issue were duties on sugar imports under the Dingley Act, which imposed duties on good from foreign countries. At root the Court was asked to determine whether or not Puerto Rico constituted a foreign nation, a question it answered in the negative. However, the Court also declined to identify Puerto Rico as part and parcel of the United States in the same sense as any American state was in the Downes case. At issue was the application of the Uniformity Clause of the Constitution to Puerto Rico and, by extension, other American territories. Although a majority of the Court viewed Puerto Rico as different from the American states, and, hence, not subject to the Uniformity Clause, the Court split as to the rationale. Justice Henry Billings Brown articulated a theory of extension by which Congress is the sole proprietor of the discretion to extent the Constitution to any American territories, something it has not done. Brown further distinguished between natural rights (which would apply everywhere merely by virtue of their essential nature) and artificial rights (which would only apply in the United States proper). Justice Edward D. White concurred with the proposition that the Uniformity Clause did not apply to Puerto Rico. But, whereas Brown suggested that no territories were part of the United States, White asserted that some are but others are not. Puerto Rico was, according to White, among the latter category.

Burnett and Marshall go on to discuss the basics of the Puerto Rican case, focusing on the 1952 transition to the current commonwealth status and the subsequent plebiscites (1967, 1993, 1998). A comparison of the results between the 1967 and the 1993 plebiscites reveals little change in the lack of support for the independence option. However, the levels of support for continued commonwealth status (of some variety) and statehood shifted from a majority support for commonwealth status to a situation in which support for commonwealth status and statehood are virtually indistinguishable. As several of the contributors note later in this edited volume, the most problematic aspect of interpreting these results is in ascertaining what exactly these options mean and how they have been interpreted by those participating in the process. Most broadly, Puerto Rico's commonwealth status has meant that the local Puerto Rican government has been sovereign in situations in which constitutional issues are not raised. The more specific nature of the relationship between Puerto Rico and the United States remains unclear. According to one perspective, known as the compact theory, commonwealth status is a compact between Puerto Rio and the United States, a compact that is mutually binding and limits previously absolute American authority over the island. The alternative perspective asserts that Congress could not have surrendered such sovereignty even if it wanted to in the absence of statehood or independence. The tension between these two perspectives is obvious and it is only with the resolution of this tension that Puerto Rico's status can definitively be settled.

Court of Appeals Judge Jose A. Cabranes opens the section on History and Expansion with an exposition of the historical context of the relationship between Puerto Rico and the United States. Cabranes is particularly interested in the language we use in discourse concerning territorial status. As he notes, the term "colonialism" undoubtedly carries considerable baggage with it. But, as Cabranes further notes, "Speaking plainly and honestly about our history requires us to acknowledge, without rancor and without embarrassment, that colonialism is a simple and perfectly useful word to describe a relationship between a powerful metropolitan state and a poor overseas dependency that does not participate meaningfully in the formal lawmaking processes that shape the daily lives of its people". Mark S. Weiner is also interested in the importance of definition and meaning. Weiner makes the forceful argument that our concepts of race and law are endogenously defined. In other words, the rhetoric associated with legal justification for territorial expansion is inextricably linked with prevalent concepts of race and vice versa. The contribution of Brook Thomas focuses on the Spanish-American War as a manifestation of what he sees as the transition in the way Americans saw the nation held together, from a compact model to a corporate model.

-- excerpted from the Law & Politics Book Review, http://www.bsos.umd.edu/gvpt/lpbr/     Dept. of Government & Politics, University of Maryland, College Park, Maryland 20742

FM 27-10 The Law of Land Warfare, Chapter 6: OCCUPATION

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366. Local Governments under Duress and Puppet Governments
The restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupant are nonetheless its acts.

Comments on paragraph 366 in relation to the Taiwan status issue:
    by Richard Hartzell and Jeffrey Geer

For over thirty years, US Commander in Chief has been the ringmaster of a three-ring circus called the "One China Policy." While it is a clever riddle of foreign policy to keep the participants in a quandary as they attempt to peacefully resolve the final status of Taiwan, the legal circumstances of the US being the paramount authority and having the ROC continuing as the designated local administrative authority is the creation of an illegal situation of possible proxy occupation.

Major errors in the post-WWII handing of the Taiwan question in late 1945 and early 1946 are (1) the announcement of October 25, 1945, as "Taiwan Retrocession Day," (2) the mass naturalization of Taiwanese persons as Republic of China (ROC) citizens, and (3) (in August 1951) the imposition of mandatory military conscription laws over native Taiwanese persons. Such actions in areas under belligerent occupation constitute war crimes.

During the 1940's, the US was still officially sponsoring the Republic of China (ROC) as the "legal government of China." The origin of the Taiwan question began with General Douglas MacArthur's early September 1945 directions to Chiang Kai-shek to go to Taiwan and accept the surrender of Japanese troops. The Chinese Civil War period of the late 1940's culminated in the late 1949 Chinese Nationalist (KMT) retreat to Taiwan and its degeneration into the status of a "government-in-exile". Meanwhile, the People's Republic of China was founded on October 1, 1949.

During the 1945-47 period, the USA officially maintained about 50,000 U.S. Marines in the China mainland to defend the ROC against the Chinese Communist Party (CCP) and its Russian backers. As conditions in Manchuria further deteriorated and the CCP was coming to power, the KMT secured their base on Formosa by initially massacring over 30,000 local residents (and more in the following years) whom were still internationally regarded as being "Japanese Nationals" by the legal fact that during that era Taiwan was still part of "Japan," and the ROC military troops in Taiwan were merely fulfilling the role of a "subordinate occupying power." This was still many years prior to the signing or coming into force of the post-war peace treaty, which was the San Francisco Peace Treaty (SFPT).

The February 28, 1947 events in "Japan" (i.e. Japanese territory) occurred during a period of belligerent occupation under the paramount authority of the United States as "principal occupying power." Moreover, a period of "White Terror" by the KMT authorities continued for long after the April 28, 1952 legally-binding terms of the SFPT, in which Japan ceded "Formosa and the Pescadores."

This proxy massacre beginning February 27, 1947, was not an authorized Act of State and ultimately the USA bears the responsibility for the KMT actions on Formosa in 1947. It weighs upon the burden of the US conscience that any remaining war crimes of the KMT acting in their capacity as military governors fulfilling the local functions of the Formosan government (from October 25, 1945 to May 20, 2000) be prosecuted by a US Military Commission, often called an "Article 2 Court" for areas under United States Military Government. Otherwise, political supporters of the International Criminal Court may find "jurisdiction" to bring cases against the ROC and even possibly the US policy supporters of the ROC government in the post WWII period.

Thus it is imperative that the jurisdiction of SFPT "war crimes" be closed by the USA for the protection of US interests in Taiwan as well as protection of the US foreign policy makers effectively connected with these KMT human rights abuses and war crime atrocities committed within this territorial jurisdiction of this SFPT cession.

Under the US Constitution, cases concerning the rights of US citizens in the Taiwan cession will require the creation of the US Court of Taiwan. Taiwan "island citizens" will continue to use the local court system. Whether the US Court of Taiwan will have jurisdiction over war crimes, or a separate tribunal will be established for that purpose, is clearly open to further discussion.

Reference is made to William E. Birkhimer, Military Government and Martial Law, 3rd edition (1914), Chapter IX "Laws Obligatory Within Occupied Territory", Section 141 "Plenary power, appoint war courts, judicially settled":   Thus it has been solemnly determined that the authority of the President, and of commanders under him, for the establishment of courts in conquered territory is complete, limited only by the exigencies of service and the laws of war; that such courts, if given jurisdiction by the power bringing them into existence, properly may take cognizance of questions, military, criminal, and civil . . . .

For territorial cessions, the legal principle that "the military government of the principal occupying power continues past the time when the peace treaty comes into force" is discussed and illustrated in many US Supreme Court cases. The earliest of these is perhaps Cross v. Harrison (1853), which explains the situation of the California territory after the Mexican American War.

The laws of war are applicable in areas under military government.

Important Remarks on the Interpretation of Treaties

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(1.) The Treaty of Peace between the ROC and Japan of 1952 stipulates in Article 4 that "all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war". Japan acknowledged that the treaties, agreements and so on between Japan and China as indicated in the Article above mentioned were including all of those concluded between Japan and the Qing Dynasty. Note: Although scholars of Chinese history claim that China was first united under the Qin Dynasty, it is important to note that the maps of early dynasties such as the Qin (221 - 207 BC), the Han (206 BC - 220 AD), the Three Kingdoms (220 -280), etc. do not include Taiwan. Taiwan does not appear on Chinese maps until the latter years of the Qing Dynasty (1644 -1911), and then it was ceded to Japan in 1895.

However, clauses regarding territorial cession, reparation provisions, etc. are not affected by a war or by subsequent cancellation of a treaty. This is because once the obligations of territorial cession, reparation provision, etc. have been fulfilled, the relevant clauses in the treaty itself are no longer active. In other words, the cancellation of a treaty only affects those provisions which have not yet been fulfilled in their entirety. Thus the specifications of the 1895 Treaty of Shimonoseki which ceded Taiwan to Japan are in no way subject to "retroactive cancellation." Note: The 1895 Treaty was ratified by the Qing Emperor. Under international law, territorial cession in a peace treaty is considered a valid method for transferring the title of an area.

(2.) Furthermore, upon the coming into force of the 1895 Treaty, all previous claims of China regarding the ownership of Taiwan and the Pescadores, whether due to history, culture, language, race, geography, geology, etc. became null and void.

(3.) The SFPT recognizes the independence of Korea. The benefits which China received from the SFPT are specifically outlined in Article 21. The Sino-Japanese Peace Treaty is a subsidiary treaty under the SFPT, as authorized by Article 26. Hence, China is very much affected by the SFPT. The often heard reasoning of some Chinese scholars toward the SFPT of "We didn't sign it, so we are not affected by it" is illogical when viewed in this light.

(4.) In the SFPT, Japan ceded Taiwan, however no "receiving country" for the cession was specified. Article 2 of the Sino-Japanese peace treaty, effective August 5, 1952, merely quoted this SFPT provision. However, some scholars still maintain that the Sino-Japanese peace treaty, between Japan and the ROC, must be interpreted as transferring the sovereignty of Taiwan to the ROC, since one party "ceded," so of course the other party "received." However, this analysis is erroneous because Japan was not holding the sovereignty of Taiwan after April 28, 1952.

(5.) Curiously, it is often heard from Chinese or Taiwanese researchers that "The Chinese were in Taiwan when the treaty came into effect, so of course Taiwan belongs to us," or "Since no receiving country was specified in the SFPT, of course the sovereignty of Taiwan is distributed among the local Taiwanese populace" or "Since no receiving country was specified in the SFPT, of course the sovereignty of Taiwan reverts to China." Note: Richard W. Hartzell has lived in Taiwan for nearly thirty years, and has seen these types of mutually contradictory rationale reported in the local Taiwanese media for decades.

After lengthy research, no precedents in the post-Napoleonic world have been found which would give credence to any contentions that sovereignty can be transferred according to such rationale.

      -- excerpted from the Harvard Asia Quarterly, Fall 2004 edition

United States holds Taiwan's Sovereignty

    by Richard Hartzell

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Regarding the dispute over Taiwan's sovereignty which has recently made headlines, I offer the following analysis. Let's first consider the Cairo Declaration, Potsdam Proclamation and Japanese surrender documents. Do these have the force of an internationally binding treaty arrangement to formally transfer the sovereignty of "Formosa and the Pescadores" to the Republic of China (ROC)? No, they are only statements of "intent." Hence, we can analyze the Taiwan sovereignty question in three steps.

Step 1: From international law it is easily seen that Oct. 25, 1945 marks the beginning of the military occupation of "Formosa and the Pescadores" by the ROC. International law specifies that military occupation does not transfer sovereignty.

Step 2: When the government of the ROC fled to Taiwan in late 1949, it became a "government-in-exile." The ROC continued to exercise "effective territorial control" over this area which it was holding under military occupation.

Step 3: In the post-war San Francisco Peace Treaty and Sino-Japanese Peace Treaty, the sovereignty of Taiwan was not awarded to the ROC. Hence, Secretary of State Powell is correct, Taiwan does not enjoy sovereignty as a nation. So where is the sovereignty of Taiwan? Again, we may obtain the answer in three steps.

Step 1: All attacks on Japanese fortifications and installations in Taiwan during WWII were carried out by US military forces. According to the "customary laws of warfare in the post Napoleonic period," the US will be the principal occupying power.

Step 2: General MacArthur, head of the US Military Government, delegated matters regarding the Japanese surrender ceremonies and occupation of Taiwan to Chiang Kai-shek. This is simply a "principal" to "agent" relationship.

Step 3: In the post-war peace treaties, the sovereignty of Taiwan was not awarded to the ROC, hence Taiwan remains under the administrative authority of the US Military Government, and this is an interim status condition. In the San Francisco Peace Treaty, Article 4b clearly states that the US military government has final disposition rights over "Formosa and the Pescadores." In addition, Article 23 reconfirms the US as the principal occupying power. In effect, the US is holding the sovereignty of Taiwan "in trust," and in the Shanghai Communique the US President is making arrangements for the future handover of this sovereignty to the People's Republic of China, which is recognized as the sole legitimate government of China! However, at the present time, Taiwan is still under US administrative authority, and the Taiwanese people should be enjoying "fundamental rights" under the US Constitution, as in all other US overseas territories. Based on the insular cases of the Supreme Court, (and especially Gonzales v. Williams, 1904) in regard to Puerto Rico, after the treaty cession, when Puerto Rico was under a US military government (before the promulgation of the Foraker Act, May 1, 1900) the local people were "island citizens of the Puerto Rico cession." Hence, in Cuba, after the coming into effect of the treaty, when Cuba was under US military government (before independence on May 20, 1902) the local people were "island citizens of the Cuba cession." In Taiwan, after the coming into effect of the San Francisco Peace Treaty, with Taiwan under the administrative authority of the US military government, the local people are "island citizens of the Taiwan cession." Of course, the US flag should be flying. Taiwan is foreign territory under the dominion of the US, or more technically a "quasi-trusteeship of insular status under the US military government." The passport issued to Taiwanese citizens would be similar to a "trusteeship" one, and would fall under the category of "US national, non-citizen." This is a jus soli nationality based on the US Supreme Court's insular cases, and not based on the 14th Amendment to the US Constitution. Taiwan's citizens do not (will not) have voting rights in US federal elections.

      -- excerpted from TAIPEI TIMES, November 13, 2004

Research Papers

Adobe Acrobat (PDF) files

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The Territorial Cessions of Puerto Rico, Cuba, and Taiwan

Unincorporated Territory under the United States Military Government (USMG)

Understanding the San Francisco Peace Treaty's Disposition of Formosa and the Pescadores


Useful Links

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International Law of Treaties

Recognition of Governments in International Law With Particular Reference to Governments in Exile

Montevideo Convention

Sino-Japanese Peace Treaty

San Francisco Peace Treaty

FM 27-10

US Constitution

Fourth Geneva Convention, Military Occupation, and Taiwan

How to Fold the United States Flag

What are you doing?

Sovereignty Blog

Taiwan's International Legal Position essays in Chinese
(requires Big5 traditional Chinese font)

Powerpoint files

ABCD Chart of Territorial Cession

Contacts in Taiwan

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Richard W. Hartzell

Dr. Roger C.S. Lin

Taiwan Defense Alliance

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