The Taiwan Cession Scandal


The Taiwanese are pushing for the right to have a referendum on a host of issues affecting their future, including the use of nuclear power, their application to enter the World Health Organization, and of course their independence. Recent response from Washington, D.C. has not been favorable, since it is feared that any moves toward more self-autonomy for the island may anger Beijing.

Many people point to rights of "self-determination" of all peoples, and wonder why Washington would oppose such basic rights for the Taiwanese. This, and indeed all other Taiwanese political arguments, brings us back to the riddle of Taiwan's correct position under international law in the world today. This is a subject that has puzzled legal researchers for decades. Consider: (a) Taiwan is not recognized as a sovereign country, (b) at the present time it is not part of the People's Republic of China, (c) Japan renounced any right, title, or claim to Taiwan in the San Francisco Peace Treaty after WWII . . . . . . so What is Taiwan? Some writers have described this situation by noting the "surreal but long standing tradition that Taiwan is not a country . . . . . . " in their articles.

In fact I would maintain that Taiwan's position in the world is exceedingly clear. Taiwan qualifies as a military colony of the United States of America, or what we might put in another way by saying "Taiwan is a dependant Chinese nation on a US military reservation."

The Montevideo Convention of 1933 said 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. Unfortunately, Taiwan fulfills the unique position under international law which will allow it to appear to fulfill the four criteria of the Montevideo Convention, when in fact it does not fulfill them. This is easily explained by examining the historical record. 

On September 2, 1945, General Douglas McArthur directed Generalissimo Chiang Kai-shek to accept the surrender of Japanese troops on Formosa. Up to the present day, many people have misinterpreted the meaning of these words. Here is the truth of the situation: by these words, what General McArthur delegated the administrative authority for the occupation of Formosa to the Generalissimo. 

With the help of the United States military forces, representatives of the Republic of China arrived in Formosa in mid-October, 1945, and accepted the surrender of Japanese troops on October 25. Under the law of war, this marks the beginning of the belligerent occupation of Formosa, but there was no transfer of sovereignty. The Chinese troops didn't want to accept the reality of this on that fateful day of October 25, 1945, so they raised the ROC flag over Taiwan. This mistake arose from the failure to clearly see the two hats which the ROC government was wearing at that time : (1) it was the juridical person of China, (2) it was exercising delegated administrative authority of the United States Military Government (USMG) in the occupation of Formosa and nearby islands. According to international law principles, the US flag should have been raised.

Meanwhile, the People's Republic of China had been founded on October 1, 1949, and the remnants of the ROC government had fled to Taiwan in December, 1949. Unfortunately, they did not hold the sovereignty of this or adjoining islands.

In the Fall of 1951, international delegates met in San Francisco to come up with some treaty provisions. Article 2b of the San Francisco Peace Treaty (SFPT) stated: "Japan renounces all right, title and claim to Formosa and the Pescadores." In the last fifty years, the majority of researchers and commentators have said that this clause is extremely vague, because it doesn't clarify to whom the sovereignty of these islands were given. 

In fact, this clause is quite specific. After the conclusion of a peace treaty, if the territory is not awarded to any other country, then it remains under military occupation, however now it is friendly territory, and we speak of "friendly occupation". This is also called the civil affairs administration of a military government. 

Article 4b of the SFPT stated: "Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3." So, Taiwan (which we use as the collective name for "Formosa, the Pescadores, and other nearby islands) continued under military occupation, with the United States as the principal occupying power (see SFPT Article 23) and the Republic of China government as local military governors, exercising delegated administrative authority. After Senate ratification of the SFPT on April 28, 1952, it was clear that Taiwan had not been awarded to the Republic of China. According to international law principles, the US flag should have been raised and flown, but no one in Washington, D.C. wanted to bring this up, lest the Generalissimo lose face, so Taiwan continued under the ROC flag. 

The United States continued to treat the ROC as the government of China up through the early 1970's, but this policy was quite far removed from "reality", and was becoming exceedingly awkward and inconvenient. The PRC was becoming a big player in the world community, and business people wanted to get busy in the huge PRC market. Unfortunately, the official US government position was that it recognized the ROC government, which was now "in-exile" on Taiwan. Moreover, when considering Taiwan's true status as a military colony of the USA, which should have been under the US flag, it was easily seen that as of the early 1970's, the Taiwanese had been denied their US Constitutional rights for over 25 years. If such a fact were to be brought out into the open, there might be charges that certain officials had violated their oath to "preserve, protect, and defend the Constitution of the United States," and that could be anything but pleasant. How could anyone explain to the Taiwanese people, or to the American people, that a diplomatic blunder which effectively made all other US historical diplomatic blunders pale in comparison had been committed here in the modern era? 

Well, looking back to SFPT Article 4b, and the Insular Cases of the US Supreme Court, an idea for a solution must have come to the mind of the Secretary of State and the President at that juncture in the early 1970's. Under the precedent established during the occupation of Cuba in the 1898 to 1902 period, it was held that during US military occupation, the sovereignty of the area is "held in trust" by the United States Military Government, (see Neely v. Henkel, 1901.) In exchange for the PRC's international support, a promise to establish formal diplomatic relations, and the opening up of their markets, the President and Secretary of State only needed to make a civil affairs agreement to authorize the future transfer the sovereignty of Taiwan to the PRC, and everything would be conveniently swept under the rug so to speak. Viola! the Shanghai Communique of Feb. 28, 1972, wherein we find the most important clauses to be: " . . . . the United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves." 

As expected, in late 1978 the United States broke relations with the ROC, and established formal diplomatic relations with the PRC some three months later. So, considering that at the present time here in 2003, Taiwan is not yet a part of the PRC, we return to the specifications of the Montevideo Convention, and we note that for a geographical area in which the local government is actually exercising delegated administrative for military occupation, or to put it another way "is a junior partner in the occupation," it will indeed appear that the four criteria of the Montevideo Convention have been met, when in fact they have not.

It will be much clearer if we expand this to eight criteria, designating "defacto" and "dejure" aspects. Under this analysis, the "Taiwan governing authorities" (to use the terminology of the Taiwan Relations Act) do not truly have the dejure "capacity to enter into relations with the other states". This is made more clear if we add a ninth criteria, which would be "the transfer or formation of the juridical person." Unfortunately, Taiwan does not fulfill this criteria either, since the sovereignty of Taiwan and nearby islands has never been transferred to the "Taiwan governing authorities."

The various attempts of the pro-independence Taiwanese lobbying groups to construe the "foreign state equivalency" clause of the Taiwan Relations Act to mean that the US recognizes Taiwan as a true "foreign state" clearly show that their promoters have fallen into the same trap. They have failed to examine the historical record and to clarify that the "Taiwan governing authorities" do not have sovereignty over the Taiwan area. In fact that sovereignty is still held by the USMG. No matter how far the democratic development of Taiwan proceeds, the fact remains that "occupation does not transfer sovereignty," so Taiwan cannot claim any sovereign rights to its geographical territory based on "democratic development," although this continues to be a popular claim of the pro-independence advocates.

While the status of Taiwan is a political issue, the denial of fundamental constitutional rights to residents of US insular areas is something that the members of the House's Committee on International Relations should take note of. For the time being the Taiwanese are qualified to enjoy fundamental constitutional rights under the US flag, but this by no means represents their "final status" - it is merely an exercise of the doctrine of "temporary allegiance" under law of occupation. (See United States v. Rice, 1819, and Fleming v. Page, 1850.) They can continue on toward an envisioned future unification with the PRC, based on the outcome of successful cross-Strait negotiations. There is no need to stress the right of "self-determination," or to push for a referendum on independence, when it is clear that Washington, D.C. holds all the cards. In fact, Taiwan could become an independent nation tomorrow if the US government announced the end of military government in Formosa and the Pescadores, however such a move is unlikely. Meanwhile, Taiwan's "interim status" under the US flag would clearly have many advantages, not the least of which would be the completion of its application for "associate membership" in the World Health Organization, based on Article 8 of the WHO Constitution, and its retention of the status of "independent customs territory" in the World Trade Organization. In short, the only thing missing for a full rectification of current Taiwanese political problems is political will in Washington, D.C.