In a TV interview in Beijing, China, on October 25, 2004, Secretary of State Colin Powell issued unusually straightforward remarks by saying “Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy.” This is the most robust language that he has used to deny Taiwan’s current claims of sovereignty.

Not unexpectedly, Secretary Powell’s remarks drew strong criticism in Taiwan. Numerous legislators of every camp quickly pointed out that Taiwan has a permanent population, defined territory, and a fully functioning government, plus diplomatic relations with 26 countries. Based on these “Montevideo Convention criteria,” they stress, Taiwan is a sovereign entity.

Of vital interest to the Taiwanese, Secretary Powell has not revealed why the US maintains that Taiwan does not enjoy sovereignty as a nation. Is this more of the “creative ambiguity” of the PRC – Taiwan – USA relationship which has developed since the early 1970’s? Commenting on this, in the same interview, the Secretary clarified: “It is often conveyed as ambiguous, but I think it is pretty clear. Everyone has understood what it meant for the last thirty years. And it has allowed Taiwan to be successful.”

With President Bush elected to a second term, and Dr. Condoleezza Rice most likely to take over as the new Secretary of State, Taiwanese are nervous to see if there will be any substantial changes in US – Taiwan -- PRC relations in the near future. The Taiwanese are secretly hoping that someone in the new administration will “see the light” and force the State Department to retract Secretary Powell’s overly blunt comments. However, realistically speaking, it is highly unlikely that the State Department will issue any full scale retraction, simply because examination of recent history shows the reasoning behind the Secretary Powell’s remarks to be entirely accurate.

In order to correctly interpret that recent history, however, we must examine it from a military, not a civilian, viewpoint. Essential details are as follows: In 1895, the Qing Dynasty ceded Taiwan to Japan. In late November, 1943, the US, UK, and Republic of China (ROC) held the Cairo Conference, in which (according to the Chinese reasoning) it was agreed that Taiwan would be “given back” to China after the War.

In September 1945, General MacArthur directed the representatives of Chiang Kai-shek (CKS) to go to Taiwan and accept the surrender of the Japanese. The surrender date of October 25, 1945, is what the Chinese history books have traditionally termed “Taiwan Retrocession Day.” According to civilian Chinese scholars, this date was the fulfillment of the “promise” as stated in the Cairo Conference to “give Taiwan back to China.”

However, from the military viewpoint, this analysis does not conform to the “customary laws of warfare” in the post-Napoleonic era. As codified in the Hague Conventions of 1907, “Territory is considered occupied when it is actually placed under the authority of the hostile army.” Under international law, recognized by all nations, “military occupation does not transfer sovereignty.” Thus, October 25, 1945, can only be viewed as the beginning of military occupation of Taiwan. Although there was no transfer of sovereignty, the ROC government forces did begin to exercise “effective territorial control” over Formosa and the Pescadores on that date.

The historical background provides the rational for this conclusion. All attacks on Japanese installations and fortifications in Taiwan during WWII were done by United States military forces. Based on the precedent in the Mexican - American War (in regard to California), and the Spanish - American War (in regard to Puerto Rico and Cuba), the United States is “the (principal) occupying power." When General MacArthur, head of the United States Military Government (USMG), directed the ROC troops to come to Taiwan and handle the surrender ceremonies and other details, the United States was fulfilling its role as the principal occupying power, and delegating the role of subordinate occupying power to the ROC. This is simply a "principal - agent" relationship.

Four years later, the ROC government fled to Taiwan in late 1949. In Article 2b of the April, 1952, San Francisco Peace Treaty (SFPT), Japan ceded the sovereignty of Taiwan, but no specification was made about the "receiving country." However, Article 23 re-clarifies that the US is the "principal occupying power," and in Article 4b, USMG is given "disposition rights" over Taiwan.

Chinese and Taiwanese legal scholars don’t differentiate between exercising “effective territorial control,” and exercising “sovereignty,” but the United States and most other world nations do. This presents a dilemma. In order for the Taiwan governing authorities’ claims of exercising sovereignty over Taiwan to be considered valid, it would be necessary for the US State Department to admit: “The sovereignty of these areas was not awarded to the ROC in the post-war peace treaty, but that is irrelevant! We are happy to announce that we are accepting the Taiwanese assertions that their ownership claims are legitimate!” Clearly, that is not going to happen. After all, the SFPT is a Senate ratified treaty. Moreover, international legal scholars who have considered Taiwan’s historical development in detail have to admit that the Montevideo Conventions four criteria for delineating a “sovereign nation” are much too unspecific to deal with complicated situations of territorial cession, military occupation, or governments in exile.

When the ROC left mainland China 1949, its government leaders (headed by CKS) considered their actions entirely legitimate, but in fact it was newly establishing “central government operations” in an area which its troops were holding under military occupation. Many researchers have pointed out that at this juncture the ROC became a government in exile, but most of them have missed the fact that the ROC’s true legal position in Taiwan is simply that of a “subordinate occupying power.” These researchers then fail to take the next step and arrive at a conclusion for the decades old quandary of what Taiwan’s true international legal status is.

That the United States still exercises administrative authority over Taiwan is both verified by the provisions of the SFPT, as mentioned above, and the fact that the Taiwan Relations Act is a domestic law of the USA. In essence, Taiwan is “foreign territory under the dominion of the United States.” Based on this realization it is easy to see that the US government’s insistence on the “One China Policy,” while at the same time refusing to offer support for Taiwan’s repeated applications to enter the United Nations, is entirely correct.

The Secretary of State, coming from a military background, sees all this analysis instinctively. However, more clarifications will be needed to let the Taiwanese fully understand their international legal situation, and to help them focus their efforts within this framework to maintain peace in the Taiwan Strait.

Richard W Hartzell is a researcher, columnist and writer who has lived in Taipei for nearly 30 years and is fluent in Mandarin. His areas of research include differing Chinese and Western cultural norms, the Chinese language, the US-Taiwan-PRC legal relationship, the customary laws of warfare, international treaty law, Chinese and international law, territorial cession law, US insular law, US Constitutional law and US Supreme Court cases. He can be reached at taiwanmidway@hotmail.com.