REPORT ON LEGAL SOVEREIGNTY OF TAIWAN

INTRODUCTION:

On the basis of reported history, Austronesian people were the first to establish inhabitation in the island of Taiwan. Later in 1623, Taiwan was colonized by the Dutch. The first Han Chinese rule of Taiwan can be traced back to 1661, when the Kingdom of Tungning established the government and ruled the island till 1683, when Qing Dynasty took over the reins of Taiwan. In 1885, with the intent to accelerate growth and development in the region, Taiwan was created a separate Chinese province. Subsequently in 1895, after the first Sino-Japanese war, Taiwan and Penghu were ceded to Japan by the Qing dynasty and the island remained in the active rule of Japan till 1945, when after the First World War the Japanese army in Taiwan surrendered to the Chinese army, symbolic of the surrender of Japan before the Allied forces as the Chinese army was representing the Allied Forces.[1] And Taiwan after 50 years of Japanese Rule was integrated to China. But this is not in furtherance of correct legal proposition in accordance with the various international treaties and conventions.

In this process of cession and retrocession of Taiwan to China, a lot has changed in the governance and administration of China. The Republic of China (ROC) government was formed in the mainland in 1912 as the successor of Qing dynasty and therefore at the time of retrocession of Taiwan to China, the Republic of China laid claims on it as the successor of Qing dynasty. However, with the loss of ROC in the civil war and taking over of the government of mainland by the People’s Republic of China, the ROC government retreated to Taiwan October 1, 1949, and since then ruling over the territories of Taiwan and adjoining islands.[2]

Currently both ROC and PRC claim to be the sole representative government of Mainland China including Taiwan, but the close analysis of the legal status of the sovereignty of Taiwan reveal that the sovereignty of Taiwan belongs to the United States of America, which has been discussed in detail in this report.

 

UNITED STATES: THE PRINCIPLE OCCUPYING POWER

According to the established principles of customary laws of warfare, the conqueror or the forceful acquirer and occupier of a territory has the sole power to govern the occupied territory. Under the situation, the Japanese army surrendered before the Chinese army, which was acting as the representative of United States and therefore a relationship of principal and agent was created between the United States and China and that relationship has not been terminated till date.[3]

Article 23 of San Francisco peace treaty, which came in to force on April 28, 1951, reiterates the United States as the principal occupying power of Taiwan.

Japan ceded the territory of Taiwan under San Francisco Peace Treaty, but the cession was without any recipient and therefore the most valid presumption of the transfer would be that the territories of Taiwan were ceded to the United States as the principle occupying power. One may argue that according to the treaty of Taipei, the territory of Taiwan was annexed to China, but it has to be noted here that the Treaty of Taipei came into force on august 5, 1952 (3 months after the Sana Francisco Peace Treaty), which only reiterated the territories under control of People’s Republic of China and has nothing to do with the cession of Taiwan into Chinese territory by Japan as Japan cannot cede what is not in their control.[4]

Under Article 2 of the San Francisco Peace Treaty, Japan renounces all the rights over the territory of Taiwan, but the cession of Taiwan by Japan was without any recipients. Under the situation, one assumption might be inferred is that the territory of Taiwan have become terra derelicta or terra nullius, which can be annexed by any other state, but relying on that assumption would be ignoring the customary laws of warfare in the post Napoleonic era.

It is also stated by many officials in the US administration that the Article 2 of SFPT is only renunciatory and doesn’t make any provision for the succession of Japan over the Territory of Taiwan.[5] It can be said that the SFPT doesn’t make any final disposition of Taiwan, but it had made the temporary disposition which had not been legally terminated till date and such disposition is towards United States Military Government as the US has been affirmed as the Principal Occupying Power[6] under various articles of the SFPT including Articles 4(b) and 23.[7]

Article 3 of SFPT provides that the islands of Formosa and Pescadores constituting Taiwan shall be under the United States Military Government, and will function as a quasi trusteeship of United States Military Government. It has to be noted here that the disposition awarded under the SFPT has not been supplanted till date and therefore the status quo continues.[8]

Military government can be defined as the form of administration by which the occupying power exercises control and governance over the forcefully occupied territory. According to Article 2(b) Taiwan is an occupied territory by the United States. According to established notions of international laws, the military occupation of a territory doesn’t transfer sovereignty and therefore October 25, 1945, is not Retrocession Day of Taiwan rather it is the beginning of military rule by the United States Military Government.

United States in a catena of cases have upheld the position of international laws that the occupied territory shall be under military jurisdiction of the occupying power,  immaculate examples can be seen in the cases of Mexican – American war and Spanish – American war.[9]

The critical question would be: What does USMG’s jurisdiction include? To answer this, we can refer to the United States’ administration of the Ryukyu island group beginning in 1945, and thereby gain a full understanding. Of course, one important aspect of this jurisdiction was that the U.S. military authorities issued “Certificates of Identity” as travel documents for the native people of the Ryukyu islands.[10]

Therefore it is fully reasonable under the terms of the SFPT to demand that the United States military authorities issue travel documents (aka “passports”) for the native people of Taiwan.

Contrastingly, there is no authorization in the Taiwan Relations Act, the Three Joint USA-PRC Communiques’, any Executive Orders issued by the U.S. Commander in Chief, or the SFPT itself for an entity calling itself the “Republic of China” to issue passports to native Taiwanese people.

Article 6 provides for removal of any foreign forces from the territory of Japan, however, as Taiwan is not a part of Japan as the territory is already ceded without any recipient. Therefore, the provision of Article 6 of SFPT doesn’t apply to Taiwan and United States Military Forces are not obligated for removal.[11]

It is also important to be noted here that neither PRC nor ROC is within the definition of “Allied Powers” as neither of them is a signatory to the San Francisco Peace Treaty. And as Taiwan was a sovereign territory of Japan before the coming into force of San Francisco Peace Treaty on April 28, 1952, hence, when the ROC moved its central government to the occupied territory of Taiwan, it immediately became a government in exile.

Further it is important to note that Prior drafts of Article 2(b) show that the Allied Powers originally intended to give China sovereignty over Taiwan (Formosa), but later affirmatively changed their intention. The drafts dated August 5, 1947, and January 8, 1948, provided: “Japan hereby cedes to China in full sovereignty the island of Taiwan (Formosa) and adjacent minor islands [.]” By contrast, the final draft of the SFPT did not transfer “full sovereignty” in Taiwan and the Pescadores Islands from Japan to China.

Therefore, on the basis of proper analysis of the San Francisco Peace Treaty, it is evidently clear that the United States Military Government is solely entitled to exercise governance rights over the territory of Taiwan as the “Principal Occupying Power”. [12]

 

CONCLUSION:

On the basis of above discussion, we can conclude that the territory of Taiwan is annexed to the territory of United States and United States is the sole power to exercise control and governance over the territory of Taiwan.

Further, we can conclude that Taiwan is an integral part of United States under 22 USC Section 611(m) and 619, and under ICAO Chicago Convention.

[1] Joint Chiefs of Staff (August 17, 1945).  General Order No. 1. The above indicated commanders are the only representatives of the Allied Powers empowered to accept surrenders and all surrenders of Japanese Forces shall be made only to them or to their representatives.”

[2] “The One-China Principle and the Taiwan Issue”. Taiwan Affairs Office and the Information Office of the State Council of the People’s Republic of China. 21 February 2000. Retrieved 2 August 2008.

 

[3] “State Department Legal Advisor: The Legal Status of Taiwan”. tkacik.com. Foreign relations of the United States. 13 July 1971. Retrieved 25 March 2015.

[4] Eisenhower, Dwight D. (1963). Mandate for Change 1953–1956. Doubleday & Co., New York. p. 461. OCLC 2551357. Retrieved 7 July 2011. The Japanese peace treaty of 1951 ended Japanese sovereignty over the islands but did not formally cede them to “China,” either Communist or Nationalist.

[5] “The One-China Principle and the Taiwan Issue”. PRC Taiwan Affairs Office and the Information Office of the State Council. 2005. Retrieved 6 March 2006.

 

[6]曾韋禎 (May 3, 2009). 台灣主權未定論 許世楷:日本外交界常識”. Liberty Times (in Chinese). Taipei. Retrieved January 24, 2015.

 

[7] Shirley A. Kan; Wayne M. Morrison (December 11, 2014). “U.S.-Taiwan Relationship: Overview of Policy Issues” (PDF). Washington, D.C.: Congressional Research Service. p. 4. The United States has its own “one China” policy (vs. the PRC’s “one China” principle) and position on Taiwan’s status. Not recognizing the PRC’s claim over Taiwan nor Taiwan as a sovereign state, U.S. policy has considered Taiwan’s status as unsettled.

 

[8] “衆議院会議録情報 第046回国会 予算委員会 第17号”. kokkai.ndl.go.jp. Retrieved 2016-05-17.

[9] The Spanish-American War By Roger E. Hernández

[10] United States Civil Administration of the Ryukyu Islands: Special bulletin United States. Adjutant-General’s Office 1952

 

[11] International Law in Historical Perspective, Volume 3 By J. H. W. Verzijl

 

[12] The U.S.-Taiwan-China Relationship in International Law and Policy By Lung-chu Chen

 

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