Taiwanese should seek US Constitutional rights
Taipei - We can construct a simple model of modern Taiwan history which will help us better understand the status quo as viewed by the United States government.

We must begin at the close of hostilities in World War II, after the dropping of atomic bombs on Japan. There is the necessity of handling the surrender of Japanese troops and the military occupation of each locale. Over such a broad geographic area, it will be necessary to determine the "principal occupying power" to deal with these issues. In General Order No 1 of September 2, 1945, General Douglas Macarthur, whom in today's terminology we would call "leader of the coalition forces," directed the military troops under his command to handle all related details. A laws of war analysis shows that Macarthur is acting in his position as head of the United States Military Government (USMG), in issuing this General Order.

The representatives of Chiang Kai-shek (CKS) were directed to accept the surrender of Japanese forces in "Formosa and the Pescadores" (hereinafter referred to as "Taiwan"). When CKS' representatives finally did get to Taipei, Taiwan, and accept the Japanese surrender, they immediately claimed that day of October 25, 1945, as "Taiwan Retrocession Day", and stated that Taiwan was returned to the Republic of China based on the Cairo Declaration, the Potsdam Proclamation, and the terms of the Japanese surrender documents signed on the USS Missouri.

Even though many scholars have argued about the legal validity of such actions for decades, in fact no argument is necessary. According to the Hague Conventions, and accompanying Hague Regulations of 1907, "territory is considered occupied when it is actually placed under the authority of the hostile army". This, along with the fact that "occupation does not transfer sovereignty", are accepted principles of the laws of war, and its subset: the laws of occupation.

Although the Chinese history books state that CKS' representatives came to Taiwan on their own initiative, in fact they were exercising delegated administrative authority for the occupation under USMG. According to the fiduciary relationship established under the laws of occupation, USMG holds the sovereignty of the area in trust in its position as "principal occupying power." October 25, 1945, clearly marks the beginning of the period of belligerent occupation.

Post-World War II legal issues for Taiwan

In this type of scenario, after the surrender of Japanese troops in Taiwan, we have several legal issues to deal with:

      The determination of the "lawful government" of Taiwan;
      The end of US military government in Taiwan;
      The transfer of sovereignty to the "lawful government" of the area.

In the post-war peace treaty, we would normally expect to see explicit provisions for the handling of the occupied territory. However, in the San Francisco Peace Treaty (SFPT), which came into effect on April 28, 1952, Article 2(b) only states: "Japan renounces all right, title and claim to Formosa and the Pescadores." No specification was made about to which government these areas were ceded.

In the 2000 to 2008 period, Taiwan President Chen Shui-bian and his advisors interpreted this clause to mean that the sovereignty of Taiwan has been returned to the Taiwanese people, however, under the laws of war such an analysis is incorrect. The cession of territory is from "government" to "government." Hence, a more coherent analysis of SFPT Article 2(b) would hold that the "lawful government" of Taiwan had not yet been determined as of April, 1952. In such a situation, military occupation continues, but we call this "friendly occupation", or more properly "the civil affairs administration of a military government."

Since Taiwan was not ceded to the Republic of China in the SFPT, it remains under the administrative authority of the principal occupying power, which is the USA, as per Article 23. This is further clarified by Article 4(b), which states: "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."

If the lawful government of Taiwan was undetermined as of April, 1952, when was it determined? In overviewing all relevant documentation, we find the Shanghai Communique of 1972, which stated there is only one China, and the People's Republic of China is the sole legitimate government of China. In that communique, the US also reaffirmed its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.

Shanghai Communique leaves unification to be negotiated

The relevant clauses of this 1972 communique conveniently serve the purpose of a civil affairs agreement under the laws of occupation to arrange the transfer of territory to the presumed "lawful government" of the area. No timetable was specified, hence the determination of the exact date for this expected "unification" has been left up to negotiations between officials on both sides of the Strait. Here in the 21st century, it is clear that the PRC officials would like to see quicker action on this matter, while the Taiwanese officials would prefer that any actions toward unification be put off further into the future, or delayed indefinitely.

During the initial fifteen years of the 21st century, if Taiwan and PRC officials had actually come to the negotiating table, it would have been expected that Taiwan would have had to agree to a "one country, two systems" model. But since that time, this model has lost much of its appeal.

In any event, if the two sides do finally unify one day, United States' administrative authority over Taiwan will be supplanted, and the transfer of Taiwan's sovereignty to the PRC (i.e. Nixon and Kissinger's envisioned "lawful government of the area") will be completed with the agreement of the Taiwanese themselves. At that point the US officials would offer their blessings.

By using laws of war principles to construct this simple model of modern Taiwan history, we can review various US actions over the past 50 years and we find them in perfect agreement with this model's parameters. In addition to the Shanghai Communique's specifications mentioned above, the diplomatic break with the Republic of China (ROC) on Taiwan in late 1978, the promulgation of the Taiwan Relations Act, President Reagan's Six Assurances, President Clinton's Three Nos, and the current pronouncements of the Bush administration on the Taiwan question all dovetail nicely.

The ROC on Taiwan currently has (a) permanent population, (b) defined territory, (c) government, and (d) the capacity to enter into relations with other states [international legal standards by which nationhood is adjudged], yet it is not considered a "sovereign nation" by the United Nations. In other words, the world community does not consider that the "sovereignty" of Taiwan is held by the governing authorities on Taiwan. Considering that the PRC does not currently exercise any administrative authority over Taiwan, this model also gives us an answer to the perplexing question of where Taiwan's sovereignty currently is.

Are there are "two equal governments" on each side of the strait, as the Taiwanese officials claim? Or is the ROC on Taiwan merely a "government-in-exile"? What is the proper format for Taiwan to apply for membership in the World Health Organization? Will Taiwan's bids to join the UN be successful? We can evaluate all of these topics with this model (based on laws of war principles).

1952 treaty giving US authority over Taiwan still valid

In summary, under the terms of the San Francisco Peace Treaty of 1952, the United States' administrative authority over Taiwan is still active, even here in 21st century. However, as of 1972, the US has attempted to place Taiwan on a "flight path" for eventual unification with the PRC. This defines the status quo from the US perspective. Based on this realization, an evaluation of what the White House or the State Department mean when they dissuade either Taiwan or the PRC to undertake any "unilateral moves to change the status quo" is relatively easy.
The PRC must hold to the preconditions of not using force or coercion, and Taiwan should not deviate from the "flight path" which was previously determined for it.

In the Insular Cases of the early 1900s, the US Supreme Court developed the idea that, without any action by the Congress, "fundamental rights" under the US Constitution are available in all areas under the jurisdiction of the US, but that other rights apply only when extended to such areas by law. As recently as 1990, in United States v. Verdugo-Urquidez, it was reaffirmed that, "It is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power."

Question: What would be the reaction of Washington if the Taiwanese, being under US administrative authority during this period of interim status under the laws of occupation, demand their "fundamental rights" under the US Constitution?

The US Constitution grants Fifth Amendment rights to life, liberty, property, and due process that are certainly considered "fundamental". In addition, there is the US Constitution's basic Article 1 stipulation that the US Congress will provide for the "common defense". The Congress established the War Department in 1789, and this was reorganized as the Department of Defense in 1949.

Afghanis and Iraqis who are held by US authorities know enough to ask for their US Constitutional rights. When will the Taiwanese start asking for theirs?

(Copyright 2004 Taiwan Autonomy Alliance)