Q1: When did Japanese troops in Taiwan surrender or come under the complete authority of the hostile army?

A1: Chiang Kai-shek's representatives accepted the surrender of Japanese troops on October 25, 1945, raised the Republic of China flag, and immediately announced this event as "Taiwan Retrocession Day." (See Note #1) However, according to the dictates of international law, this so-called Retrocession on October 25th is impossible. "Territory is considered occupied when it is actually placed under the authority of the hostile army," explains the concept of military occupation, as codified in the Annex to the (1907) Hague Conventions IV, Article 42. This is a basic principle of the Law of War. Military occupation is not equivalent to annexation.

Q2: Who is the principal occupying power?

A2: In General Order No. 1 of September 2, 1945, General Douglas MacArthur specified the handling of the surrender formalities of Japanese troops and the military occupation of over twenty areas under Japanese control. The commanders and troops receiving directions and following his orders are acting on behalf of the United States Military Government (USMG), and cannot claim any special benefits resulting from their actions in this regard. The SFPT confirms the United States as principal occupying power in Article 23. Hence, USMG administrative authority in Taiwan began on October 25, 1945, with the surrender of Japanese troops.

Under the law of the United States, "military government" is a kind of military jurisdiction which is exercised in time of foreign war outside the boundaries of the United States, and superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress. This is outlined in the US Supreme Court case of Ex Parte Milligan (1866).

Q3: When did the Peace Treaty come into effect?

A3: The SFPT was signed on September 8, 1951. It was ratified by the US Senate and came into effect on April 28, 1952.

Q4: What is the name of the lawful government of the area known as "Formosa and the Pescadores"?

A4: Before World War II, the lawful government of these areas was Japan. As outlined above, military occupation of Formosa and the Pescadores began on October 25, 1945. According to the law of occupation, the goal for the final disposition of occupied territory will be to turn it over to "the lawful government of the area." In Article 2b of SFPT, it is stated: "Japan renounces all right, title and claim to Formosa and the Pescadores." However no "receiving country" was specified for this territorial cession, hence it is clear that at the time the SFPT was written, there was no consensus in the international community regarding the determination of the "lawful government" of Formosa and the Pescadores.

Looking back at the historical record, the reason why no "receiving country" was specified was because during the Chinese civil war in the late 1940's, the Nationalists and the Communists were both maintaining that they represented "the legal government of China." The Communists declared the founding of the PRC on October 1, 1949, and the Nationalists fled to Taiwan which was at the time under USMG military occupation, with administrative authority for the occupation delegated to Chiang Kai-shek's representatives -- the Nationalists. The Soviet Union and the U.K. had already given diplomatic recognition to the PRC in 1949 and 1950 respectively, while France and the USA still maintained that Chiang Kai-shek's Nationalists (in exile on Taiwan as of December, 1949) were "the legal government of China." With no consensus on "the legal government of China" among the leading world powers, the SFPT made no assumptions about the legal government of Formosa and the Pescadores, leaving the "receiving country" unspecified. This left the final political status of Taiwan undetermined.

Under such a situation, although the final political status of Taiwan was undetermined, the "interim status" was fully defined as of April 28, 1952, as an "unincorporated cession under a USMG civil affairs administration," with administrative authority delegated to the Chinese Nationalists, who were formerly co-belligerents with the United States in the WWII China Theatre of operations.

On February 28, 1972, nearly twenty years after the coming into effect of the SFPT, the USA and the PRC signed the "Shanghai Communique," firmly establishing the PRC as the "legal government of China." The wording of this communiqué is important.

The US side declared: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.

This can be viewed as a civil affairs agreement under the law of occupation and establishes the PRC as the legal government of Formosa and the Pescadores.? (See Note #2)

As of February 1972, the viewpoint of the US government regarding Taiwan's final political status changed from "undetermined" to "a part of China." In other words, Taiwan was placed on a flight-path for eventual unification with the PRC. However the timetable for this was not specified, and was left up to negotiations between the Taiwanese and the PRC authorities. Hence, some persons would say that with the Shanghai Communique and the recognition of the One China Policy, the final political status of Taiwan appears to have changed. In fact, whether "determined but unimplemented" is strictly equal to "undetermined" is something for political analysts to discuss.

Q5: What proof or disproof can be offered to show that the military government of the principal occupying power has been legally supplanted?

A5: From 1952 to the end of 2003, in relation to all agreements, laws, declarations, etc., in respect to Taiwan, we do not find any record of the end of USMG in Taiwan, or its supplanting by another legal arrangement.

By contrast the following points may be noted:

1. In Cuba, USMG ended on May 20, 1902, by formal proclamation.
2. In Puerto Rico, USMG was supplanted by the Foraker Act, on May 1, 1900.
3. In West Berlin, USMG was supplanted by the "Treaty on the Final Settlement with Respect to Germany" on September 12, 1990.

Also notable is that in the US Supreme Court case of Cross v. Harrison (1854), it was stated that: " ... holding that from the necessities of the case the military government established in California did not cease to exist with the treaty of peace, but continued as a government de facto until Congress should provide a territorial government."

"Military government continues until legally supplanted" is the rule as stated in Military Government and Martial Law, by William E. Birkhimer, 3rd edition, 1914.

In fact, the consideration that the US Department of State does not regard Taiwan as sovereign nation is adequate proof to show that the sovereignty of "Formosa and the Pescadores" has never been transferred to the Taiwan governing authorities, and that the United States administrative authority over Taiwan is still currently active.

Q6: What is the principle covering the final disposition of Japanese property in "Formosa and the Pescadores"?

A6: In Article 4b of SFPT, it is stated: "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." In other words, the United States Military Government has authority over the final disposition of "Formosa and the Pescadores."

Under the law of occupation, the goal for the final disposition of occupied territory will be to hand it over to "the lawful government of the area." Acting in the position of principal occupying power, the United States has determined the legal government of Formosa and the Pescadores to be the PRC, and has concluded a civil affairs agreement to specify this. No firm timetable for implementation has been agreed upon however.

Conclusion:

United States administrative authority over Taiwan is still currently active. Taiwan is now in interim status under the law of occupation as unincorporated territory under USMG, and during this period of interim status the Taiwanese are entitled to the US Constitution's fundamental rights, which apply in all insular areas. These include 5th amendment rights to life, liberty, and due process, as well as the basic Article 1 guarantee that the Congress will provide "for the common defense."

Note #1: It is a matter of historical record that US military representatives were already in Taiwan in early September 1945, well before the arrival of CKS' representatives.

After studying the law of occupation and overviewing dozens of possible scenarios for the military occupation of Formosa and the Pescadores, it is clear that when the principal occupying power has delegated administrative authority to a co-belligerent for the occupation of a particular area, the flag of the principal occupying power should be raised. There is no recovery mechanism under international law when the co-belligerent moves to annex the territory to its own, or in the case of local insurgents recognized as co-belligerents, to declare independence after some period of time, in the attempt to found a new nation. In the case of Formosa and the Pescadores, if CKS' representatives actions on October 25, 1945, are to be considered legally correct, this immediately leads us to the conclusion that "military occupation does transfer sovereignty" --- a clear violation of the law of war as recognized by civilized nations since the end of the Napoleonic era.

Note # 2: The origins of the law of occupation can be traced back to Roman times, and dovetails exactly with the functioning of modern governments, which are typically separated into three branches. A civil affairs agreement such as the Shanghai Communique is effective because a decision of the United States President in this regard is not reviewable by the Congressional or the Judicial Branch.

The United States decided to break relations with the Republic of China on Taiwan in 1978 and gave notice of its intent to cancel the existing defense arrangements, the Mutual Defense Treaty (entered into force March 3, 1955), in connection with its planned diplomatic recognition of the PRC. Senator Goldwater from Arizona sued President Carter over this decision to cancel the MDT. However the US Supreme Court denied any authority to judge such matters, which essentially fall in the realm of foreign policy. In the US Supreme Court case of Goldwater v. Carter, (1979): Justice Powell gave an opinion which summarized the situation as follows:

This Court has recognized that an issue should not be decided if it is not ripe for judicial review. Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.

Justice Brennan gave an opinion which summarized the situation in another way:

The constitutional question raised here is prudently answered in narrow terms. Abrogation of the defense treaty with Taiwan was a necessary incident to Executive recognition of the Peking Government, because the defense treaty was predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in China. Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and withdraw recognition from, foreign regimes. That mandate being clear, our judicial inquiry into the treaty rupture can go no further.

Note #3: For a glossary of Chinese-English terminology which contains Chinese equivalent translations of important concepts mentioned in this essay, please see http://www.taiwanadvice.com/six/gloss.htm (This requires Chinese system.) A Chinese language summary of this essay is available in the form of a chart analysis.

Background notes on military occupation:

Military occupation results in the occupier having the authority to exercise the rights of sovereignty, and is considered an "intermediate period" or a time of "interim status." Military occupation does not transfer sovereignty, but the sovereignty of the occupied territory is held by the occupier in the form of a fiduciary relationship.

After the Spanish-American War of 1898, Cuba was ceded by Spain, but was not "given" to any other country. This is a very similar situation to the handling of Taiwan in the SFPT, with "cession by conquest" followed by "cession by treaty," with no receiving country specified, but the United States as the (principal) occupying power. In the 1901 Supreme Court cases of Neely v. Henkel and Downes v. Bidwell, the following analysis was given which explains the nature of the fiduciary relationship.

It is true that as between Spain and the United States -- indeed, as between the United States and all foreign nations -- Cuba, upon the cessation of hostilities with Spain and after the treaty of Paris, was to be treated as if it were conquered territory. But as between the United States and Cuba that island is territory held in trust for the inhabitants of Cuba, to whom it rightfully belongs, and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action.

A similar analysis was offered in Military Government and Martial Law, by William E. Birkhimer, (3rd edition, 1914). See Chapter VI "Effect of Occupation on Local Administration", Section 63 "Instance occupation of Cuba".

The position of the United States military authorities in Cuba, before the Spanish authorities abandoned the island in 1899, was one of military occupation, pure and simple; after that event, it was military occupation of a particular kind -- namely, wherein the dominant military power exercised authority over the island as trustee for a Cuban nation not yet in existence, but the creation of which was promised and which was to have the assistance of the United States in establishing itself.

Final comments:

The statement that "United States administrative authority over Taiwan is still currently active," is not a goal, but a statement of current reality. In addition, I maintain that this assertion of Taiwan's interim status position does not result in the creation or recognition of "One China, One Taiwan", "Two Chinas", or a "Taiwan Republic", and is fully compatible with President Truman's Statement of June 1950, the San Francisco Peace Treaty, the Taiwan Relations Act, One-China policy, the Six Assurances (1982.17.14), the Cross-Straits Consensus of 1992, the Three No's Policy (1998.6.30), and the three USA-PRC joint communiqués. As such, this statement does not amount to a change of US policy, but rather a new recognition of all pre-existing US policy.