Questions of Sovereignty
-- the Montevideo Convention and Territorial Cession
by Richard W. HartzellOn September 15, 2004, after a four hour discussion in the first General Committee meeting of its 59th session, "The Question of the Representation of the 23 million people of Taiwan in the United Nations" was again denied inclusion on the agenda of the UN General Assembly. The year of 2004 marked the twelfth year in a row that Taiwan has tried to promote its own individual identity by joining the world body.
President Chen Shui-bian and other government officials in Taiwan have repeatedly proclaimed that they will continue to promote their island's membership in the United Nations. These proclamations have come even after October 25, 2004, when Secretary of State Colin Powell, in a TV interview in Beijing, China, stated that "Taiwan does not enjoy sovereignty as a nation."
Although the Taiwanese media characterized Mr. Powell's remarks as a slip of the tongue after consuming too much Chinese wine and Peking duck, President Bush repeated substantially the same comments when he met with world leaders on the sidelines of the 12th Asia Pacific Economic Cooperation (APEC) Meeting, during the third week of November 2004. At the APEC venue in Santiago, Chile, PRC President Hu Jintao told the press that U.S. President Bush had on several occasions reiterated the ongoing commitment of the United States government the One-China Policy, in conjunction with the three Sino-U.S. joint communiques, as well as Washington's continuing opposition to "Taiwan independence."
By some accounts the Taiwan Independence movement has existed for over a hundred years, but it has come to increasing world attention since the election of the pro-independence President Chen Shui-bian in March 2000. His rise to the presidency over this self-governed area effectively culminated a fifty-five year period of Chinese Nationalist (KMT) party rule, causing a major shift in local political leanings.
Taiwan's effective self-governing status has arisen due to a combination of curious historical factors. Taiwan is a territorial cession under Article 2b of the San Francisco Peace Treaty (SFPT), 3 U.S.T. 3169, of April 28, 1952.01 Recognition of this fact is crucial in understanding Taiwan's current position under international law. This paper analyzes the Taiwan sovereignty question in two parts. Part I, Taiwan as "Sovereign State," and its Presumed Qualifying Criteria; & Part II, Taiwan and the Montevideo Convention.
PART I: Taiwan as "Sovereign State," and its Presumed Qualifying Criteria
Does Taiwan qualify as a "state" in the international sense? Should it be accepted for membership in United Nations? This paper researches this subject in detail and concludes that the answer to both of these questions is "No." The Montevideo Convention 02 provides the classical definition of the "state as a person of international law." Article 1 of the Convention holds that "The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states."
Does Taiwan meet these criteria? On the surface it appears that Taiwan does. Taiwan has a permanent population of 23 million. It includes the geographic areas of Formosa, the Pescadores, and some subsidiary islands, an area comprising nearly 13,900 sq. miles. It has a fully functioning government called the "Republic of China" (ROC), and it has formal diplomatic relations with over twenty countries.
However, a closer look at Taiwan's history in the past century, and especially in the post WWII era, combined with careful reference to the Hague Conventions of 1907, shows that these "qualifying conditions" are in fact of highly questionable validity.
A brief historical overview is provided as follows. In 1895, the Qing Dynasty of China ceded "Formosa and the Pescadores" (i.e. Taiwan) to Japan in the Treaty of Shimonoseki. During the WWII period, two documents known as the Cairo Declaration and the Potsdam Proclamation expressed the intention to return Taiwan to the Republic of China after the war. The Japanese Surrender documents repeated this statement of intent. On September 2, 1945, in General Order No. 1, General Douglas MacArthur delegated the Japanese surrender ceremonies on Taiwan to Chiang Kai-shek. On October 25, 1945, the representatives of Chiang Kai-shek accepted the surrender of Japanese troops in Taiwan, raised the ROC flag, and proclaimed "Taiwan Retrocession Day." However, in the post-WWII SFPT, the sovereignty of Taiwan was not awarded to the ROC.
Other than Taiwan's presumed "qualifying conditions" in relation to the Montevideo Convention, Article 1, the above historical facts are the sum of evidence that most scholars consider when evaluating the true international legal status of the ROC on Taiwan today. Indeed, whether or not the ROC on Taiwan is a sovereign nation is a riddle which has puzzled sinologists and legal researchers for decades. Based on all the above factors, some scholars say "Yes," some say "No," and others remain undecided.
The author believes that the key to solving this riddle will only be found by researching "fundamentals." Certain important questions need to be asked, and among these are: (1) During WWII, who liberated "Formosa and the Pescadores"? (2) Who is the principal occupying power? (3) What flag was raised at the surrender ceremonies? (4) When did the military occupation begin? Has it ended? (5) What flag was raised upon the coming into effect of the peace treaty?
The answers to these questions can be presented in rundown form as follows. According to the historical record, from December 1941 through August 1945, all military attacks against Japanese installations and fortifications in Taiwan, and indeed in the four main Japanese islands, were conducted by United States military forces. The Republic of China military forces did not participate in these battles. Hence, according to the precedent established in the 1846 - 1848 Mexican - American War (in regard to California) and in the 1898 Spanish - American War (in regard to Cuba, Puerto Rico, and the Philippines), the United States will be the principal occupying power.03, 04
Since U.S. military forces were already in Taiwan in September 1945, regardless of the specifications of the Cairo Declaration, Potsdam Proclamation, or the Japanese Surrender documents, it still would have been entirely proper for General MacArthur to direct that United States military officers accept the Japanese surrender and raise the U.S. flag.05 After all, the cession of treaty is to be handled in the post-war peace treaty.06 As for the status of territory after the surrender of enemy troops, international law already supplies a clear definition.
The Hague Conventions of 1907 specify that: "Territory is considered occupied when it is actually placed under the authority of the hostile army."07 This definition of "military occupation" is jus cogens, and binding on all nations. Hence, the situation upon the surrender of Japanese forces can only be viewed as the beginning of military occupation of Taiwan. Numerous declassified US documents from the 1944 to 1945 period also discuss preparations for the military occupation of Taiwan. International law, or more specifically the "law of occupation" under the customary laws of warfare, specifies that (a) The occupying power does not, through occupation, gain sovereignty over the occupied territory. (b) Occupation is considered a transitory phase in which the rights of the population must be respected by the occupying power until formal authority is restored. (c.) When exercising authority, the occupying power must take into account the interests of the inhabitants as well as military necessity. (d) The occupying power must not use its authority to exploit the population or local resources for the benefit of its own population and territory.08
In the author's opinion, the raising of the ROC flag alone over "Formosa and the Pescadores" in late 1945 is without legal basis. The flag of the principal occupying power should be raised as well, indeed it should fly highest on the flagpole.09
Assuming that the United States did accept the surrender of Japanese troops on September 26th, 1945, and raised the U.S. flag, then the following steps would have been appropriate:
In the first outcome, this sovereignty would be retained by Japan. The U.S. flag would come down, and the Japanese flag would go back up, similar to the pre-WWII situation, and the allegiance of the local populace would revert to Japan.
In the second outcome, this sovereignty would be ceded by Japan, and awarded to the Republic of China. The U.S. flag would come down. The Republic of China flag would fly alone on the flagpole, and the allegiance of the local populace would be to the ROC.
In the third outcome, this sovereignty would be ceded by Japan, and awarded to the People's Republic of China. The U.S. flag would come down. The People's Republic of China flag would fly alone on the flagpole, and the allegiance of the local populace would be to the PRC.
In the fourth outcome, this sovereignty "Formosa and the Pescadores" would be ceded by Japan, but no "receiving country" would be specified. The U.S. flag would remain flying. This is because the United States is the principal occupying power, and has "disposition rights" over the territory.11 Under this outcome, according to the doctrine of "temporary allegiance" under the law of occupation, the allegiance of the local populace is to the United States.
In Taiwan, it is most important to note that the ROC is merely a "subordinate occupying power." A multitude of problems have arisen because the flag of the principal occupying power was not raised at the surrender ceremony of the defeated Japanese troops. President Truman and General Douglas MacArthur, by allocating the surrender of Japanese troops to the ROC, and failing to assure that the Chinese military officers understood the difference between "military occupation" and "annexation," by permitting the ROC flag to be raised alone on the flagpole, by allowing the proclamation of "Taiwan Retrocession Day" to be made, etc., etc. have committed a major legal and diplomatic blunder, the price for which was paid for, and continues to be paid for, by the local Taiwanese populace. The 228 massacre of February 28, 1947, and the White Terror era which followed can be traced directly back to the incorrect activities which occurred in the Fall of 1945.12
The intentions expressed in the Cairo Declaration, Potsdam Proclamation, and Japanese Surrender documents to give "Formosa and the Pescadores" to the Republic of China were clearly predicated on the ROC maintaining its legal position as the de-facto and de-jure government of China. However, as civil war raged on the Chinese mainland, the remnants of the ROC government fled to Taiwan in late 1949, thus becoming a government in exile. Under such circumstances, and with most world nations still not granting the PRC diplomatic recognition, it could hardly be surprising that in the post war SFPT, the sovereignty of "Formosa and the Pescadores" was not awarded to the ROC.
Simple reflection on the legal significance of these developments of the late 1940's and early 1950's produces the following realization -- upon the coming into effect of the peace treaty on April 28, 1952, the ROC is a government in exile exercising "effective territorial control" over a geographic area where it does not have sovereignty. (See Addendum 1)
Taiwan's international position in the present day, obscured by the incorrect actions of the Fall of 1945 and their aftermath, is correctly stated as "foreign territory under the dominion of the United States." As of April 28, 1952, Taiwanese persons should be enjoying fundamental rights under the U.S. Constitution, in a similar fashion to the inhabitants of other overseas U.S. territories. Unfortunately, in that anti-communist era, the foreign policy of the United States was to support the ROC in the international diplomatic battle against the spread of world communism, and so a policy of "strategic ambiguity" on the Taiwan sovereignty question began to be formulated.
The American people desire, and are determined to work for, a world in which all nations and all peoples are free to govern themselves as they see fit, and to achieve a decent and satisfying life. Above all else, our people desire, and are determined to work for, peace on earth-a just and lasting peace-based on genuine agreement freely arrived at by equals.
Democracy is based on the conviction that man has the moral and intellectual capacity, as well as the inalienable right, to govern himself with reason and justice.
Democracy maintains that government is established for the benefit of the individual, and is charged with the responsibility of protecting the rights of the individual and his freedom in the exercise of his abilities.
Democracy has proved that social justice can be achieved through peaceful change.
Democracy holds that free nations can settle differences justly and maintain lasting peace.
Since the end of hostilities, the United States has invested its substance and its energy in a great constructive effort to restore peace, stability, and freedom to the world.
-- excerpt from Inaugural Address of Harry S. Truman
Summary of Part I:
The most often mentioned documents of "importance" regarding Taiwan's status up to the close of WWII are the Cairo Declaration, Potsdam Proclamation, and Japanese surrender documents. However, we must ask: Do these have the force of internationally binding treaty arrangements to formally transfer the sovereignty of "Formosa and the Pescadores" to the Republic of China (ROC)? The answer is: No, they are only statements of "intent." Hence, we can analyze the Taiwan sovereignty question in three steps.
PART II: Taiwan and the Montevideo Convention
After the analysis in Part I of this paper, let us return to the Montevideo Convention criteria, and consider them again.
The author proposes that a solution to this problem needs to be addressed in two steps. First, the increasing complexity of the international scene requires that the first four elements of the Montevideo Convention criteria be expanded into eight elements (or variables), to clearly denote the de-facto and de-jure situations. Secondly, in the case of a territorial cession, there must be the transfer of the "juridical person." This is presented in a diagram as follows --
It would be expected that a "yes" or a "no" would be placed in each box. In the situation of Taiwan, regardless of what conclusions one reaches in regard to the first four criteria in their de-facto and de-jure senses (for a total of eight variables), the author believes that the ninth variable must be given a "no." In the SFPT, the territorial sovereignty of "Formosa and the Pescadores" was not awarded to the Republic of China.
Taiwanese legal scholars often claim that despite whatever may have been the legal ramifications of October 25, 1945, the Republic of China government in Taiwan can still maintain a valid claim over the sovereignty of "Formosa and the Pescadores" from the international legal doctrines of (1) terra nullius and/or (2) prescription.
To some extent, the reasoning of the Taiwanese legal scholars is based on a failure to fully understand the scope and applicability of these two doctrines. In Chinese, the legal term "terra nullius" is generally rendered as "land without a master."13 However, the true sense of the term in the post-Napoleonic period is "uninhabited land." In 1945, Taiwan was certainly inhabited, indeed it boasted a population of approximately six million people.
In terms of nation building, "prescription" is the process of acquiring title to territory by reason of uninterrupted possession of a lengthy duration. In Chinese, the legal term "prescription" is generally rendered as "time effectiveness principle." 14 Clearly, this refers to the process of making claim to something by long use or lengthy "occupation."
Unfortunately, the term "occupation" has many meanings, and this can be confusing to those researchers without a solid background in law of war studies. Two of these meanings are most relevant here, and must be distinguished carefully. In the first sense, "occupation" is the possession, use, or settlement of land; the act or process of holding or possessing a place; actual possession and control; a holding or keeping, tenure, use, etc. For "terra nullius" which is occupied for a period of time, there can be the acquirement of title. Contrastingly, for territory held under "military occupation," there is no period of time, regardless of length, which can result in the acquirement of title. This is because international law states that "military occupation does not transfer sovereignty."
Summary of Part II:
Taiwan is not a sovereign nation, and it is not qualified to join the United Nations. A more technical statement of Taiwan's international position as after the coming into effect of the SFPT in late April 1952 is that it is undetermined and unorganized territory under the United States Military Government (USMG), and in interim status under the law of occupation.15, 16, 17, 18
Effective territorial control does not equal "sovereignty"
An example is easily given as follows. Let us suppose that there was a war in Southeast Asia, and the military forces of Holland were fighting Indonesia. Further let us suppose that in the battle for Sumatra, Holland had been allied with Malaysia. Military forces from Holland and Malaysia were fighting together in the archipelago, and after several months of heavy aerial and naval bombardments by Holland, the Indonesian commanders on Sumatra agreed to surrender. At this point we can imagine that Holland's military forces still had additional operations to take care of in nearby geographic areas. Hence, the Dutch general would direct that senior Indonesian commanders and all ground, sea, air and auxiliary forces within Sumatra surrender to Malaysia's military forces, and that Malaysia should take charge of the administration of the island.
Moreover, let us imagine that five years later (before the post-war peace treaty is written) there is a coup d'etat in Malaysia, and a number of high-ranking government officials and military personnel all flee to Sumatra. At this point it might be expected that the old Malaysian government which has established itself in Sumatra still has full diplomatic relations with thirty or more countries. An important question is: Can we consider "Malaysia in Sumatra" to be an independent and sovereign nation?
Let's pause to look at the entire situation from the point of view of the local Sumatrans. What would they say about the legitimacy of the Malaysian government which has established itself in Sumatra?
But with reference to Article 1 of the Montevideo Convention (which entered into force on December 26, 1934), "Malaysia in Sumatra" 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 other states.
A closer examination of the facts, however, shows that "Malaysia in Sumatra" is only a subordinate occupying power and a government in exile. It has effective territorial control over Sumatra, but does not have sovereignty. Indeed, the local Sumatrans would probably be glad for the Malaysians to move to Paris, Rome, London, or some other city and establish their government in exile there. However, it is unlikely the Malaysians would leave.
Hence, the author would maintain that the four criteria of the Montevideo Convention are clearly incomplete. For complex situations which involve (1) military occupation, (2) governments in exile, or (3) territorial cessions with no clear transfer of legal title, the Montevideo Convention gives a "false reading."
This is exactly the problem with Taiwan. Under the customary laws of warfare of the post-Napoleonic period, it is clear that Oct. 25, 1945, can only be regarded as the beginning of the military occupation of Taiwan. In late 1949, the remnants of the ROC government fled from China and came to Taiwan, thus becoming a government in exile. In the postwar San Francisco Peace Treaty, Japan renounced the sovereignty of "Formosa and the Pescadores," but no receiving country was specified.
Some researchers still maintain that that the ROC has been an independent sovereign state since its establishment in 1912, but conveniently fail to consider that the ROC did not include Taiwan in that era. China had already ceded Taiwan to Japan in the 1895 Treaty of Shimonoseki.
Summary of US Policy Statements
The author must point out that the analysis in this paper, derived directly from the historical record and the provisions of the San Francisco Peace Treaty, with reference to the laws of war, and in particular the laws of occupation, does indeed confirm that the US State Department's insistence on a "One China Policy" is entirely correct. The analysis presented herein is also in complete agreement with other important United States' policy statements over the last fifty years. (What is missing in current US policy statements of course is any clear recognition that Taiwan is actually an overseas territory of the United States.)
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