The Fourth Geneva Convention, Military Occupation, and Taiwan
Sovereign Nation, Province of the PRC, or Something Else?
Much talk in Taiwan centers on the terms of the Montevideo Convention on the Rights and Duties of States (1934). According to this Convention, there will be a State in the international sense when four conditions are fulfilled: a defined territory; a permanent population; a government (the political agent of the State); and ability to have relations with other states (independence for action). Many claim that Taiwan meets all four conditions. However, what is ignored when reviewing the events of October 1945, and subsequent developments, is the international law precedent that "foreign occupation does not transfer sovereignty to the occupying power."
The Fourth Geneva Convention is one of the most important of the four Conventions signed by the representatives of the States of the world at the Conference that met in Geneva in 1949. The purpose of that Convention was to afford greater protection to civilian persons in time of war since it had become abundantly clear that many civilians who suffered the harshest conditions during the Second World War, in particular those who were under military occupation.
Part III, section III, of the Convention concerns occupied territories and contains provisions concerning the civilian population of those territories which codify established customary principles with respect to military occupation and spell out, in the light of the experience of warfare, the necessary protection for such persons. The rules of international law, both customary and treaty law, have established that military occupation does not affect sovereignty over an occupied country (or territory) and that such occupation does not transfer sovereignty to the occupying Power. From the second half of the eighteenth century onwards, international law came to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in his opus The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars in the nineteenth century.
Invasion and annexation later ceased to be recognized by international law and were rejected and no longer accepted as a means of territorial acquisition. The Convention respecting the Laws and Customs of War on Land (Hague IV, 1907) contained explicit provisions concerning the protection of civilians and their property in occupied territories. (See Hague Conventions for more detailed information.)
Turning to the historical record from the mid-1940's, we see
- 1945 August -- US drops atomic bombs on Hiroshima and Nagasaki, Japan
- 1945 August 15 -- Japanese Emperor announces surrender (August 14 in the USA)
- 1945 September 01 -- First United States troops arrive in Taiwan (Note that when these Americans landed, the Japanese were still armed and the Japanese flag still flying.)
- 1945 September 02 -- Japan signs official Instrument of Surrender on USS Missouri in Tokyo Bay (US representative: General Douglas MacArthur, Commander in the Southwest Pacific and Supreme Commander for the Allied Powers)
- 1945 October 15 -- KMT troops enter Taiwan from China
- 1945 October 25 -- Official surrender of Japanese troops on Taiwan (Lt. George Kerr whom was duly authorized to take the surrender for the US Commander-in-Chief. Chen Yi represented the Chinese troops.)
Comments from Formosa Betrayed, by George Kerr
Japanese forces in Taiwan and some other places continued to police those territories until the allies were able to take over the administration, so their surrender took place at a different time to that of the Japanese high command, and some time after the cessation of hostilities. General Ando Rikichi signed and sealed the surrender documents. In this unpleasant atmosphere the joint Sino-American occupation of Formosa began .......
Japanese forces in Taiwan and some other places continued to police those territories until the allies were able to take over the administration, so their surrender took place at a different time to that of the Japanese high command, and some time after the cessation of hostilities. General Ando Rikichi signed and sealed the surrender documents. In this unpleasant atmosphere the joint Sino-American occupation of Formosa began .......
The surrender documents were superceded by the San Francisco Peace Treaty (SFPT) April 28, 1952, with the United States designated as "principal occupying power."
According to Article 2(b) of the SFPT, "Japan renounces all right, title and claim to Formosa and the Pescadores." The sovereignty of Formosa and the Pescadores was not assigned to any country however. In international law, this is known as a limbo cession.
The sovereignty of a territorial cession is typically finalized by treaty. Without this condition being met, where can we find international precedent as to how the cession is to be dealt with?
An exact parallel to Taiwan's situation may be found by considering the situation of Cuba in 1898 after the end of the Spanish-American War. A important quotation may be taken from the US Supreme Court case of Neely v. Henkel 180 U.S. 109 (1901).
US Supreme Court, Neely v. Henkel (1901)
" ..... It cannot be doubted that when the United States enforced the relinquishment by Spain of her sovereignty in Cuba, and determined to occupy and control that island until there was complete tranquility in all its borders and until the people of Cuba had created for themselves a stable government, it succeeded to the authority of the displaced government so far at least that it became its duty, under international law and pending the pacification of the island, to protect in all appropriate legal modes the lives, the liberty, and the property of all those who submitted to the authority of the representatives of this country. That duty was recognized in the Treaty of Paris ...... "
" ..... It cannot be doubted that when the United States enforced the relinquishment by Spain of her sovereignty in Cuba, and determined to occupy and control that island until there was complete tranquility in all its borders and until the people of Cuba had created for themselves a stable government, it succeeded to the authority of the displaced government so far at least that it became its duty, under international law and pending the pacification of the island, to protect in all appropriate legal modes the lives, the liberty, and the property of all those who submitted to the authority of the representatives of this country. That duty was recognized in the Treaty of Paris ...... "
A study of the territorial cessions after the Mexican American and the Spanish American War confirms that the military government of the principal occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted.
After the end of belligerent occupation but before the end of the military government of the principal occupying power, Cuba was a self-governing dominion held under United States Military Government which was given "trust territory" characteristics by the USA. In regard to Taiwan, there is the creation self-governing dominion by the San Francisco Peace Treaty cession. Indeed, under the Taiwan Relations Act, the United States government treats Taiwan as a "sub-sovereign foreign-state equivalent."
Taiwan was never under any UN Trusteeship arrangement, and must currently be viewed as under an interim status of post USA "belligerent occupation." The USA legally holds the sovereignty of Taiwan cession while the ROC exercises the effective territorial control as the subordinate military governors of SFPT.
However, when considering that the Taiwanese people have US Constitutional rights under such an arrangement, it is clearly necessary for the ROC government to close down operations in Taiwan and move to their rightful place in the Jinmen and Matsu island groups.
The Taiwanese would quickly gain many advantages by demanding their US Constitutional rights. For example, the nomenclature of "Republic of China" in all laws and regulations can be changed to "Taiwan," thereby meeting the goal of name rectification, and the Taiwanese people can make preparations for the calling of a Constitutional Convention under US administrative authority, thus meeting the goal of giving the Taiwanese people their own Taiwan Constitution. Additional advantages would be:
- Designing of a new Taiwan Flag, to be flown together with the US flag
- Designing of a new Taiwan Seal
- Selection of a new Taiwanese national anthem
- End of military conscription in Taiwan, with all defensive needs directly handled by the US Department of Defense
- Joining the World Health Organization (WHO) as an associate member under the USA
- Establishment of a permanent office of the US Centers for Desease Control (USCDC) in Taiwan
- Continued participation in the World Trade Organization (WTO) as a "separate customs territory"
- Enhanced economic policies, further economic integration with the global community, more inbound investment
- Opening of the Three Links with the PRC, without fear that Taiwan's national identity will be "swallowed"
- Maintenance of all future options for Taiwan's finalization of status, whether Taiwan independence, union with the PRC, upgrading of US territorial status, etc.