by Richard W Hartzell

In his article "What We Will Do in 2004" published in the New York Times on January 1, 2004, US Secretary of State Colin L. Powell outlined the Bush administration's agenda to promote freedom, democracy, peace, and prosperity throughout Latin America, Europe, Asia, and Africa. However, Taiwan's desire to deepen its democratic system, to exercise the right of self-determination, to draft a new Constitution, to join the United Nations, to establish full diplomatic relations with the USA, etc. have all met with the US State Department's disapproval. On the surface, this appears to completely violate America's basic principles and values, such as democracy, freedom, and human rights. Even from the point of view of international law, America's actions toward Taiwan seemingly violate its founding principles and the image it attempts to present to the world community of a democratic nation ruled by laws.

However, at the present time in Taiwan there is some discussion that in dealing with matters of international law, we must separate it into two categories: one is the international law of peace-time, and the other is the international law of war-time. Let us first consider the actions of the US troops in Iraq, in order to more firmly grasp the spirit of the international law of war-time, and then return to the USA's handling of Taiwan.

1. Two types of military occupation: (A) administrative authority directly administered by US troops, (B) administrative authority delegated to other troops.

According to the Hague Conventions of 1907 and their accompanying regulations, "Territory is considered occupied when it is actually placed under the authority of the hostile army." Regardless of whether the invasion is resisted or unresisted, or the local troops surrender straightforwardly, the result is that "military occupation" begins. Moreover, international law specifies that "military occupation does not transfer sovereignty." The common appellation for the organization of United States military forces conducting military operations abroad is the "United States Military Government" (USMG). In Iraq, the United States is a hostile power, and its actions are "military occupation" and not "annexation." According to an identical line of reasoning, "General Order No. 1" of Sept. 2, 1945, issued by the head of the USMG General Douglas MacArthur, was outlining the delegation of administrative authority for the acceptance of surrender of Japanese forces and the subsequent "military occupation" of over twenty areas, including the directive by USMG (as the principal occupying power) for the representatives of Chiang Kai-shek to come to Taiwan to accept the surrender of Japanese military troops. Hence, October 25, 1945, is clearly the beginning of the military occupation of "Formosa and the Pescadores" (now commonly called "Taiwan").

2. Viewing the USA's handing of Taiwan from the post-war Peace Treaty specifications

The San Francisco Peace Treaty (SFPT) came into effect on April 28, 1952, and although Japan renounced all right, title and claim to Formosa and the Pescadores, the treaty did not cede these areas to the Republic of China, nor to any other country. When we consider that the cession of territory is from "government" to "government", the only possible explanation of the SFPT which conforms to the specifications of the Hague and Geneva Conventions is to say that the principal occupying power (which is the United States, as per Article 23) continues its administrative authority over Taiwan, holding this area as interim status under a fiduciary relationship arising from the law of occupation, and that the United States accepts responsibility for the final disposition of Taiwan by arranging for the transfer of sovereignty to "the lawful government of the area." In fact, this is clearly outlined in Article 4(b).

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.

According to the necessities of this arrangement, the Shanghai Communique was signed on Feb. 28, 1972, and recognized the People's Republic of China as the "sole legitimate government of China." The relevant clauses of this communique clearly serve the purpose of a civil affairs agreement under the law of occupation for transfer of the occupied territory to "the lawful government of the area." Hence, the United States has put Taiwan on a flight path for eventual annexation by China, but no firm timetable has been established. Up to the present day, Taiwan remains under the administrative authority of the United States during this transitional (interim status) period. This analysis defines the "status quo" in the Taiwan Strait as viewed by the high-ranking Washington, D.C. government officials.

3. The United States has obligations to Taiwanese people under the US Constitution

Under the legal system of the USA, a Senate-ratified treaty (such as the SFPT) carries the same weight as the US Constitution, and its provisions are binding on all US government departments. If we maintain that the Taiwanese people are well advised not to challenge the specifications of the three USA-PRC joint communiques, the One China Policy, and the Taiwan Relations Act, nevertheless we must pose the following question: During this transitional (interim status) period, when the United States is demanding that the Taiwanese maintain the "status quo," has Washington treated the Taiwanese at all inappropriately? Upon reflection, we realize that all areas under the administrative authority of the United States should enjoy fundamental rights under the US Constitution. So-called "fundamental rights", in regard to people, include the 5th amendment protections of life, liberty, property, and due process of law; in regard to territory, there is the Article 1 provision that Congress will provide for the "common defense."

4. "Formosa and the Pescadores" are overseas territories under the administrative authority of the United States

President Bush of the USA and Premier Wen of the PRC met in Washington, D.C., in December 2003, and Secretary of State Powell told the press that the problem of Taiwan must be settled peacefully ... if China attacks Taiwan, the United States will certainly get involved in the conflict ... . The logic in this statement precisely corresponds to the analysis given in this paper up to this point. Most importantly, Secretary Powell's statement underscores an essential fact, which is that the United States has responsibilities and obligations to Taiwan under the US Constitution.

With the above clarification of the Taiwan status, it is clear that Taiwan's membership in the WHO should be as an associate member under the USA, the comments Taiwan desires to express in the United Nations should be passed to the United States' representative for appropriate action, Taiwan should continue in WTO as a separate customs territory, Taiwan's mandatory military conscription policy should be terminated, Taiwan's fishermen who are held illegally by the authorities of other nations should ask the US Dept. of State for help, and even though the Taiwanese people cannot participate in US federal elections, nevertheless as an insular area they are not liable for US federal income taxes.

For many decades, the core problem of the Taiwanese has been the lack of a clear national identity. Certainly the United States has a responsibility to help the Taiwanese discard their great historical burdens, and to walk into the sunlight. After the current situation is adequately stabilized, it should be relatively straightforward to improve Taiwan's investment climate, update Taiwan's immigration policies, improve public safety standards, root out corruption in local politics, re-invigorate cultural standards, improve the people's livelihood, undertake educational reforms, open the Three Links and launch many important cross-strait initiatives.

After this unmasking of Taiwan's true international position, and subject to the approval of the US Congress, plans for Taiwan's much needed new Constitution can begin in earnest. At some point in the distant future, the issue of Taiwan's "final status", whether it be to separate from the USA and become fully independent, to be annexed to another country, or to upgrade its status under United States administrative authority ... this can be something for the people of future generations to decide.

In the international community, there are many who point out that "the USA is the problem", but we hope that in the case of Taiwan, the USA is the solution.

This document was downloaded from

http://www.taiwanadvice.com/six/entext.doc

Note: This collection of six essays is also available in Chinese translation at the following URL: (requires Big-5 system)

http://www.taiwanadvice.com/six/chtext.doc

This research report was written by Richard W. Hartzell, in Taipei, Taiwan

Email: taiwanmidway@hotmail.com

taistat@ms76.hinet.net