A Straightforward Explanation of Taiwan's political status under international law

台灣在國際法下之政治地位的直接解釋

by Richard W Hartzell

 

Q: In 1945, the Republic of China military forces under Chiang Kai-hek were directed to come to Taiwan and accept the surrender of Japanese troops. In the Peace Treaty ending the war, Japan renounced all right, title, and claim to Taiwan, but these areas (often called "Formosa and the Pescadores") were not ceded to any other country. In terms of the classification of territory, what is Taiwan's status under international law?

A: From the vantage point of today, the answer to this question may be derived by doing a four part historical overview of similar situations. It will be important to keep in mind the provisions of the Hague and Geneva Conventions, including the definition of military occupation provided by Article 42 of the Hague Regulations: "Territory is considered occupied when it is actually placed under the authority of the hostile army."

Part 1

A general type of methodology may be derived from the US Supreme Court case of Cross v. Harrison (1854) in regard to the situation of California after the Mexican American War.

abcd

Points of analysis

A This is the beginning of belligerent occupation by US military forces, and the beginning of US administrative authority over California. Yes
B This is the coming into effect of the Peace Treaty ending the war. Yes
C This is the end of US military government. Yes
D This is California's final political status as a territory of the USA, and with a civil government legislated for it by the US Congress. (Later upgraded to statehood.) Yes

(Note: the "yes" on the right side indicates that this step has been completed.)

Question: What is California's status from point B to point C?

Answer: ... ?

Part 2

The answer to the above question may be derived from the US Supreme Court case of Downes v. Bidwell (1901) in regard to the situation of Puerto Rico after the Spanish American War.

abcd

Points of analysis

A This is the beginning of belligerent occupation by US military forces, and the beginning of US administrative authority over Puerto Rico. Yes
B This is the coming into effect of the Peace Treaty ending the war. Yes
C This is the end of US military government; which was supplanted by the passage of the Foraker Act. Yes
D This is Puerto Rico's final political status as a territory of the USA, and with a civil government legislated for it by the US Congress. Yes

Q: What is Puerto Rico's status from point B to point C?

A: Upon the coming into effect of the peace treaty, the Supreme Court held that Puerto Rico became unincorporated territory of the USA. Hence, before the passage of the Foraker Act providing a civil government for Puerto Rico, it must be classified as "unincorporated territory under USMG." Since the concept of unincorporated territory did not exist before the Downes v. Bidwell ruling, the area from point B to point C on chart 1 must be "incorporated territory under USMG."

Part 3

California was ceded to the United States by treaty. Puerto Rico was ceded to the United States by treaty. What about the situation where the treaty does not specify any "receiving country" for the cession?

An overview of this situation is provided in the Supreme Court case of Neely v. Henkel (1901) regarding the situation of Cuba after the Spanish American War.

abcd
Points of analysis
A This is the beginning of belligerent occupation by US military forces, and the beginning of US administrative authority over Cuba. Yes
B This is the coming into effect of the Peace Treaty. Spain renounced all right, title, and claim to Cuba. Yes
C This is the end of US military government, which was ended by formal proclamation by the US President. Yes
D This is Cuba's final political status May 20, 1902 as an independent country: the "Republic of Cuba." Yes

Clearly, the classification of the area from point B to point C must be "unincorporated territory under USMG."

Part 4

How can the above analysis help us to understand the international position of Taiwan in the present day?

We can draw a chart to provide a quick overview of the situation after WWII.

abcd
Points of analysis
A This marks the beginning of belligerent occupation by Republic of China military forces who are merely exercising delegated administrative authority of USMG (the principal occupying power); hence, at the same time point A marks the beginning of US administrative authority over Taiwan. Yes
B This marks the coming into effect of the San Francisco Peace Treaty on April 28, 1952.
  • Article 2b:
    Japan renounces all right, title and claim to Formosa and the Pescadores.
  • Article 4b:
    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.
  • Article 23:
    " ... including the United States of America as the principal occupying Power ... "
 Yes
C This marks the end of US military government.
  • No official announcement by the US has been made in the period of 1952 to the present
  • No supplanting legislation has been promulgated by the US Congress from 1952 to the present.
  • The United States broke diplomatic relations with the "Republic of China on Taiwan" in late 1978, cancelled the Mutual Defense Treaty, and promulgated the Taiwan Relations Act to provide a continued basis for non-diplomatic US-Taiwan relations.
 No
D This marks Taiwan's final political status.
  • Neither the United States nor the United Nations consider Taiwan a sovereign state.
  • In the Shanghai Communique of 1972, the USA and the PRC agreed that Taiwan's final political status would be as part of the PRC, however no firm timetable for unification was established.
  • Most countries in the world are not in favor of Taiwan independence.
 No

Clearly, Taiwan is currently between points B and C, and qualifies as "unincorporated territory under USMG." This is a period of interim status, and United States administrative authority over Taiwan is still active.

 

To summarize this, in a situation regarding "cession by conquest" by US military forces, which is followed by "cession by treaty", with the United States as principal occupying power, the default status for the territory (beginning in 1898) is "unincorporated territory under USMG." Such a classification shows that no civil government for the territory has yet been provided by US Congressional legislation.

 

It is worthy of note that in WWII, all attacks against Japanese installations on Formosa and the Pescadores were carried out by US military forces. There is no historical record of any attacks by Republic of China military forces against Japanese installations in these areas. Nor did the Republic of China military forces launch any attacks against the four main Japanese islands.

Taiwan under United States administrative authority

Why could the United States make an agreement for the "final disposition" of "Formosa and the Pescadores" in 1972 without so much as consulting the Taiwanese government officials or local "island citizens"? Why does the United States continue to interfere in the "internal affairs" of Taiwan up to the present day? The answer is because, under international law, United States administrative authority over Taiwan is still active.

 

Unfortunately, looking at the historical record, it appears that the United States has not treated Taiwan very well. During this period of interim status, the people of Taiwan are entitled to the "fundamental rights" under the US Constitution that apply in all insular areas. These rights include the 5th Amendment guarantees of life, liberty, property, and due process of law.

 

Perhaps it is fitting that a US Congressional investigation be launched on this issue.

 

 

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