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    Letter: Taiwan is US territory

    By Roger Lin

    Thursday, Nov 10, 2005,Page 8

    There have been numerous articles in the Taipei Times saying that Taiwan is already an independent sovereign nation, or asserting that the independence and sovereignty of Taiwan should be recognized. The point is to stress that Taiwan should be acknowledged by the world community as a normal country and that its diplomatic isolation should be ended.

    I regret to say that I see no chance of Taiwan being recognized as a normal country in the near future. Taiwan is not, at the most basic level, a country at all.

    Many writers have listed the four criteria for statehood as specified in the Montevideo Convention of 1934. Taiwan seems to meet all of them, but in fact it doesn't.

    As an example, let's look at "a defined territory." There was no transfer of the "sovereignty" of Formosa and the Pescadores (Penghu) to the Republic of China (ROC) on Oct. 25, 1945. That date merely marks the beginning of the military occupation of Taiwan by the Chinese Nationalist Party (KMT). Moreover, there was no transfer of sovereignty of these areas in the postwar peace treaty. What is the role of the ROC in Formosa and the Pescadores today? The answer is "squatter."

    I regret that most of the contributors to your editorial page fail to recognize this fact. The few who do, however, go on to say that whatever the postwar legal reality might have been, the situation today is different. I categorize their misconceptions below.

    First, that the ROC now has title to Taiwan based on "prescription," ie, long and continuous ownership: This mistakes prescription for territorial cession. Taiwan was a territorial cession in Article 2b of the San Francisco treaty, and there must be a clear transfer of territorial title in order for this to be recognized as valid. The doctrine of "prescription" cannot be invoked under such circumstances.

    Second, that the ROC now has title to Taiwan based on "popular sovereignty." This mistakes popular sovereignty for territorial sovereignty. "Popular sovereignty" is the right for the people to hold elections, to institute impeachment proceedings and the like.

    Third, that the ROC has title to Taiwan based on "full control over the Taiwan area, secondary to no one." This mistakes "effective territorial control" for "territorial sovereignty." "Territorial sovereignty" is held by a government. There would have to be a clear transfer of title to the territory of Formosa and the Pescadores to the ROC under the San Francisco treaty in order for this to be accepted as valid.

    Will saying that, "We are already independent," or "Our independence should be recognized" help the Taiwanese people to accomplish these goals? The answer is no.

    After the dropping of two atomic bombs on Japan, the Japanese emperor agreed to an unconditional surrender on Aug. 15, 1945. On Sept. 2, General Douglas MacArthur issued General Order No. 1, which described procedures for surrender ceremonies and military occupation in more than 20 areas. After examining this order, we need to answer an important question: "Who is the occupying power?"

    The only possible answer is the US. This is confirmed by Article 23 of the San Francisco treaty -- the US is described as "the principal occupying power."

    With this in mind, the Taiwanese people can demand that the US commander-in-chief issue the order for the ROC to disband, because the ROC is now blocking the Taiwanese people from enjoying fundamental rights under the US Constitution. With the ROC out of the way, Taiwan can change its name and make preparations for a constitutional convention to draft a new constitution.

    This would not be a unilateral change to the status quo, just a full clarification of it. Could the US president object to such a procedure? If so, he could be impeached. For the benefit of Taiwan's future, pro-Taiwan groups in the US should promote this strategy among members of the US Congress.

    Roger Lin

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