Taiwan's International Legal Position

by Richard W. Hartzell

GENERAL BACKGROUND INFORMATION

Uncovering the Truth about the Taiwan status

Five Observations and Annotations on Recent Chinese History

Recent Chinese History (from the Chinese viewpoint)
Two Chinese versions of history from 1895 to the present, and considerations of why both may be in error

As most people know, at the present time Taiwan is not recognized as a sovereign independent nation by the world community. Over the last six years I have been researching this curious fact in detail. According to the historical record, the "major participants" in Taiwanese history after WWII up through the signing of the peace treaty in 1951 were Japan, the United States, and the Republic of China. The People's Republic of China, founded in 1949, was still not a major player in world politics at that time. In the peace treaty, Japan gave Taiwan up, but it wasn't given to the Republic of China. Interestingly, the United States was the principal occupying power of all areas spoken of in the treaty. How do all these facts fit together? Please read on.

Included in this research I have overviewed the US occupation of Cuba (after the Spanish American War), certain areas of Mexico (during the Mexican American War), and West Berlin (after WWII), and analyzed how this all corresponds and dovetails with the situation of Taiwan. I also looked at the legal details of the British occupation of certain areas of Maine during the War of 1812. I have pieced this together with recent Chinese history, the Shanghai Communiques, and all other pronouncements of the US government including the Three Nos, Six Assurances, Taiwan Relations Act, the policies of the current Bush administration toward Taiwan, and a large number of US Supreme Court cases . . . . . . and it all fits together quite nicely. The 1992 "Cross Straits Consensus" also fits in. In particular, (a) Taiwan's entry to the WTO as a "separate customs territory", (b) the Taiwan Relations Act as a domestic US law, and (c) the fact no other country in the world has a Taiwan Relations Act, (d) the consideration that the USA is a democratic country but it opposes a referendum on Taiwan independence, (e) the fact that the UN Charter speaks of the right of all peoples for "self determination" but the UN doesn't accept Taiwan as a member, etc. myriad factors . . . . . . . exactly fit with my conclusion.

My conclusion is that Taiwan actually qualifies as US "unincorporated territory" as of the ratification date (April 28, 1952) of the San Francisco Peace Treaty (SFPT). More specifically, according to the terms of the treaty, Taiwan is held by the military establishment, the United States Military Government.

Let's step back for a moment to the Truman presidency.

On June 27, 1950, President Truman stated that the future status of Formosa would have to be determined . . . . . . . .(at some future date) . . . . . .and many would say that his remarks were frozen in the SFPT -- this is because Japan renounced any rights she had to "Formosa and the Pescadores" but they were not awarded to any other nation.

However, doing an overview of "territorial cession law" of the United States, and with reference to the situation of "cession by conquest (by US military forces)" followed by "cession by treaty", we clearly see that the US Supreme Court has ruled that without any additional action by Congress, the default status for new territories acquired in this fashion with the United States Military Government (USMG) as principal occupying power is: (pre 1898) "incorporated territory under USMG", and (1898 and beyond) "unincorporated territory under USMG." (See the 1901 cases of Neely v. Henkel, Downes v. Bidwell, DeLima v. Bidwell, etc. US Supreme Court "insular cases".)

Hence, in the case of Cuba, after the Spanish American War, it was not awarded to any other country in the Treaty of Paris (Senate ratification: Feb. 6, 1899) and therefore qualifies as "unincorporated territory under USMG" until its independence on May 20, 1902. This analysis exactly corresponds to the historical record.

Puerto Rico was "unincorporated territory under USMG" until the promulgation of the Foraker Act, providing its civil government.

We can compare Articles 2b, 4b, and 23 of the SFPT with Article 1 of the 1899 Treaty of Paris, and we have basically the same formulation. For Taiwan, the USMG was the principal occupying power, and therefore since it was not awarded to any other country, Taiwan should legally qualify as "unincorporated territory under USMG" upon Senate ratification of the SFPT on April 28, 1952. (Gen. MacArthur delegated the administrative authority for the occupation of Formosa and the Pescadores to the Rep. of China military forces, but this does not alter the fact that the USMG is the "principal occupying power" and neither Mr. Truman or Gen. MacArthur have any power to formally transfer the sovereignty of these areas to any other nation.)

Hence, on the date of April 28, 1952, the Republic of China is clearly not the legitimate government of Taiwan, and the "island citizens of Taiwan" should be enjoying fundamental rights under the US Constitution", including the 5th Amendment right to liberty, which includes travel rights on a "US national non-citizen" passport. Additionally, Article 1 of the US Constitution provides that Congress will provide for the "common defense." In fact, Congress established the War Department in 1789, and this was reorganized as the Department of Defense in 1949.

Gen. MacArthur directed the Japanese troops in Formosa to surrender to the representatives of Chiang Kai-shek (General Order No. 1, Sept. 2, 1945). What happened was that the Republic of China (KMT) troops finally got over to Taiwan and held the surrender ceremonies on Oct. 25, 1945, then immediately announced that Taiwan was being annexed to Republic of China as Chinese territory! Hence, in Asia, calendars list October 25 as "Taiwan Retrocession Day."

Despite the fact that there had previously been various "press releases" (Potsdam Proclamation, Cairo Declaration, etc.) about the "intended" future disposition of these areas, under the international law precedent that "occupation does not transfer sovereignty", the outright annexation of Formosa and the Pescadores on Oct. 25, 1945, by the Chinese is legally impossible. The Republic of China military forces were merely acting as "agents" of USMG, and they cannot claim any special benefits for themselves in this regard. October 25, 1945, merely marks the beginning date of the belligerent occupation of Taiwan.

Hence, from the vantage point of today, this appears to be a very big problem which occurred during President Truman's administration, and which has been allowed to continue up to the present day, with no rectification from the Oval Office, the State Department, the Secretary of Defense, etc. Yet at the most basic level, these "island citizens of Taiwan", residing in a US insular area (outlying area), are being denied their fundamental rights under the US Constitution . . . . . . and yet the President, Secretary of State, Secretary of Defense, etc. have taken an oath "to preserve, protect, and defend the Constitution of the United States" !

In his 2004 "New Year's Resolutions" essay, printed in the New York Times, Secretary Powell stressed the importance of peace, freedom, and prosperity. The Taiwanese want to protect their freedom by having a referendum on Taiwanese independence, but the State Department and the Oval Office constantly voice their vigorous objections. Doesn't this strike you as strange?

But it is not strange if you realize that the President Nixon and Henry Kissinger already made an agreement with the People's Republic of China in 1972 to transfer the sovereignty of Taiwan to the PRC, based on the result of successful negotiations between representatives on boths sides of the Strait. That agreement was called the Shanghai Communique.

My conclusion remains that Taiwan actually qualifies as US "unincorporated territory" as of the ratification date of the SFPT on April 28, 1952. The sovereignty of Taiwan is currently held by the United States.

Uncovering the Truth about the Taiwan status

Recent Chinese History (from the Chinese viewpoint)
Two Chinese versions of history from 1895 to the present, and considerations of why both may be in error

Five Observations and Annotations on Recent Chinese History

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