PART 1: Article 4(b) of the SFPT specifies that, in relation to the SFPT Article 2 and Article 3 territories, the dispositions of property of Japan and Japanese nationals is subject to the determination of the United States Military Government (USMG).

Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.  (Reference: U.S. Supreme Court, Ex parte Milligan, 71 U.S. 2 (1866).)  In other words, military government is the government of occupied territory. Hence, Article 4(b) is confirming that SFPT Article 2(b) "Formosa and the Pescadores" (aka Taiwan), and Article 3 the "Ryukyu Island Group" are both occupied territory. Moreover, both are under the jurisdiction of USMG.

Notes: US military government jurisdiction over both the Ryukyu Island Group and Taiwan are specified in SFPT Article 4(b). (FN: 1)

Unfortunately, however, "military government" is outside the scope of U.S. constitutional principles recognized by most civilians. For example, The Heritage Guide to the Constitution,   a so-called authoritative compilation completed with the assistance of over one hundred scholars under the auspices of The Heritage Foundation, Washington D.C., does not discuss military government. There is no listing for USMG. There are no listings for quasi-trusteeship, insular areas, or civil affairs administration. This Guide is available in both online and printed form, and contains nearly 500 pages.

It is then, perhaps, not surprising that the subject of the US constitutional rights of persons in territory under USMG jurisdiction is totally overlooked both in the nearly 300 articles regarding Taiwan on the www.heritage.org website, and in The Heritage Guide to the Constitution as well.

Notes: US military government jurisdiction over both the Ryukyu Island Group and Taiwan are specified in SFPT Article 4(b). (FN: 1)

Unfortunately, however, "military government" is outside the scope of U.S. constitutional principles recognized by most civilians. For example, The Heritage Guide to the Constitution,   a so-called authoritative compilation completed with the assistance of over one hundred scholars under the auspices of The Heritage Foundation, Washington D.C., does not discuss military government. There is no listing for USMG. There are no listings for quasi-trusteeship, insular areas, or civil affairs administration. This Guide is available in both online and printed form, and contains nearly 500 pages.

It is then, perhaps, not surprising that the subject of the US constitutional rights of persons in territory under USMG jurisdiction is totally overlooked both in the nearly 300 articles regarding Taiwan on the www.heritage.org website, and in The Heritage Guide to the Constitution as well.

Surrender Ceremonies:  According to international law, Sept. 7, 1945, is the beginning of the military occupation of the Ryukyus, and certainly not the date when the territorial sovereignty of the Ryukyus was transferred to some other country. In a similar fashion, according to international law, Oct. 25, 1945, is the beginning of the military occupation of Taiwan, and certainly not "Taiwan Retrocession Day." (FN: 2)  A firm tenet of international law states that "Military occupation does not transfer sovereignty."

PART 2: Due to an unfamiliarity with the laws of war, many researchers who read the SFPT completely fail to recognize an important point: After war, for territory separated from the "mother country" via the specifications of a peace treaty, the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted (by a recognized civil government).

The territories as specified in Articles 2 and 3 of the treaty have been separated from the "motherland" of Japan, therefore the military governments exercising jurisdiction over these areas do not end with the coming into force of the peace treaty. Most civilian scholars, being unfamiliar with the subject of "military jurisdiction under international law," have little understanding of such a concept. However such a "legal framework" has been verified by numerous rulings of the U.S. Supreme Court, and can be easily confirmed by examination of the precedent established in dealing with the territories acquired by the USA in the Mexican - American War and the Spanish - American War.

PART 3: For further clarification, Article 4(b) should be read in conjunction with Article 23(a).

Article 23(a) confirms that under the geographic scope of the treaty, the United States of America is the principal occupying power of all territories which remain under military occupation (aka "civil affairs administration of USMG") after the peace treaty has come into force. In consideration of this along with the specifications of Article 4(b), it is clear that USMG has jurisdiction over all the "property" of Japan and Japanese nationals in Articles 2 and 3.

Territory is a form of property. For reference, please see the definition of property as given on the Taiwan Flowchart webpage.

PART 4: The scope of USMG's jurisdiction can be delineated. In order to do this, we can look at the historical situations of other territories, or areas, which were under military occupation by the United States. Many examples from the Mexican American War period and the Spanish American War period immediately come to mind. What is clearly seen is that USMG exercised all relevant powers of administration, legislation, and jurisdiction over the territory and inhabitants. The limitations on USMG's authority were prescribed by the internationally recognized laws of war.

USMG's authority over the Ryukyu Island Group was administered through the United States Civil Administration of the Ryukyus (USCAR). Accordingly, USMG's authority over Taiwan should be administered through the United States Civil Administration of Taiwan (USCAT).

Importantly, with reference to the United States' administration of the Ryukyu island group beginning in 1945, one notable feature was that the U.S. military authorities later issued "Certificates of Identity" as travel documents for the native people of the Ryukyu islands.

Therefore it is fully reasonable under the terms of the SFPT to demand that the United States military authorities issue travel documents (aka "passports") for the native people of Taiwan.

This is but one aspect of the authority that the SFPT gives USMG in regard to the administration of Taiwan. As a general rule, it can be stated that whatever actions USCAR undertook during its administration of the Ryukyus, USCAT (after its formation) is fully qualified to undertake in Taiwan. Such an interpretation is based on SFPT Articles 4(b) and 23(a).

PART 5: There is no wording in the SFPT which can be interpreted to say that the territorial sovereignty of Taiwan or the territorial sovereignty of the Ryukyu Island Group was awarded to (given to, transferred to) China. The signatories did not award or delegate any role for the ROC to play in the governance of Taiwan or the Ryukyu Island Group after April 28, 1952.

In summary, the ROC in Taiwan is fulfilling the role of (1) proxy occupying forces, beginning Oct. 25, 1945; and (2) government in exile, beginning Dec. 10, 1949. Under international law, it is impossible to conclude that the ROC has an equal status with the PRC, or that the ROC's presence in Taiwan amounts to an exercise of "governance" over Chinese territory.  This conclusion is further reinforced by noting that for many decades, the U.S. Dept. of State publication Treaties in Force has clearly stated that "The United States does not recognize the Republic of China as a state or a government."

PART 1: Article 23(a) confirms that under the geographic scope of the treaty, the United States of America is the principal occupying power of all territories which remain under military occupation (aka "civil affairs administration of USMG") after the peace treaty has come into force. The territories as specified in Articles 2 and 3 of the treaty have been separated from the "motherland" of Japan, therefore as explained in the ANNOTATIONS to Article 4(b) above, the military governments exercising jurisdiction over these areas do not end with the coming into force of the peace treaty. More detailed explanations regarding this principle can be found in specific U.S. Supreme Court cases, beginning with Cross v. Harrison, 57 U.S. 164 (1853), and with reaffirmation in Dooley v. U.S., 182 U.S. 222 (1901), Santaigo v. Nogueras, 214 U.S. 260 (1909), etc.

For territory which becomes separated from its "mother country" in a peace treaty, the stages of military occupation are as follows:

• Belligerent occupation: This encompasses the period of time from the surrender ceremonies until the peace treaty comes into force.
• Friendly occupation: This encompasses the period of time from the peace treaty coming into force until the termination of the military government of the principal occupying power.

In modern usage, the following terminology is frequently used --

Friendly occupation  is often called the "Civil Affairs Administration of a military government." Hence, under such a naming convention, USMG jurisdiction in the Ryukyus would be called United States Civil Administration of the Ryukyu Islands (USCAR).

USMG jurisdiction in Taiwan (beginning late April 1952) would most likely be called United States Civil Administration of Taiwan (USCAT).

However it must be remembered that USCAR and USCAT are still military government.

PART 2: In our series of three Flowcharts, the concepts regarding "conquest/liberation," "military government," "military occupation," etc. form an important part of the laws of occupation, which are included in the internationally recognized laws of war.

Anyone familiar with these legal concepts will recognize that the SFPT must designate "the (principal) occupying power" in order to ascertain which country bears the final responsibility for the military occupation of the areas specified in Articles 2 and 3. Of particular concern to us are Article 2(b) "Formosa and the Pescadores" (aka Taiwan), and Article 3 the "Ryukyu Island Group." Article 23(a) confirms the United States of America as the principal occupying power.

PART 3: At the most basic level, both Taiwan and the Ryukyus are conquered territory (aka "liberated territory") of the United States of America. Even to the extent that other countries (i.e. members of the Allies) participated in these "liberation" efforts, with the coming into force of the SFPT, their residual rights and responsibilities in this regard have been assigned to the USA. Such an interpretation is thoroughly reinforced by noting that with the coming into force of the SFPT on April 28, 1952, the Allies (who fought in the Pacific War) have, for all intents and purposes, disbanded.

Although the Allies have disbanded as of April 28, 1952, however, the jurisdiction of USMG over Article 2 and Article 3 territories continues. Such an interpretation flows naturally from the laws of war, and is confirmed by SFPT Article 4(b) read in conjunction with Article 23(a). The countries which have signed and ratified the SFPT have agreed to the United States fulfilling the role of "the principal occupying power."

At the same time, the term "the principal occupying power" signifies that the military troops of other countries may be directed to undertake the military occupation of particular areas, thus forming a "principal - agent relationship." This is exactly what happened in the situation of Taiwan.

Some people dispute this view, claiming that the terminology of "principal occupying power" only applies to the situation in the four main Japanese islands. However, with the coming into force of the SFPT on April 28, 1952, the military occupation of Kyushu, Shikoku, Honshu, and Hokkaido has ended. Hence, at that point, the United States of America has no further "military occupation" role to play in Japan proper.

PART 4: In regard to Taiwan, in General Order No. 1 of Sept. 2, 1945, (Supreme Commander) General Douglas MacArthur directed the military troops of Chiang Kai-shek to handle the surrender ceremonies and subsequent administration. In regard to the Ryukyus, the U.S. military authorities handled the surrender ceremonies and subsequent administration directly.

Under international law, this "administration" of Taiwan beginning Oct. 25, 1945, and of the Ryukyus beginning Sept. 7, 1945, can only be viewed as military occupation.

Clearly, the content of General Order no. 1 authorized the ROC regime under Chiang Kai-shek to establish a presence in Taiwan, including the administration of the island for some period of time. However, in recognition that the SFPT does not (a) mention or (b) confirm any relevant continuing authorization, and (c) this treaty did not transfer the territorial sovereignty of Taiwan to the ROC regime under Chiang Kai-shek, therefore the arrangements for this ROC regime to be in Taiwan (as specified in General Order no. 1) must be considered to have been cancelled by the SFPT.

Note: Some pro-China scholars have frequently maintained that the Republic of China can claim the territorial sovereignty of Taiwan based on the international law doctrine of "prescription." However, military occupation is not annexation and the doctrine of "prescription" does not apply.

In other words, being that the Republic of China's most fundamental position in Taiwan is that of military occupation, to convert such a status into that of "legal owner" of Taiwan is impossible, regardless of how many decades have passed.

According to the terms of the San Francisco Peace Treaty, [1] Taiwan has been left under the jurisdiction of USMG according to Article 4(b); moreover [2] the USA has been designated as the "principal occupying power" according to Article 23. It is clear that all States which have signed and ratified the treaty have agreed to all specifications in the treaty, including these roles for USMG and the USA.

PART 5: The end of military government is specified by the rule: "Military government continues until legally supplanted."

After negotiations with Japan, the end of USMG in the Ryukyu Island Group was announced by President Nixon to be May 15, 1972 – some twenty years after the coming into force of the SFPT itself. A civil government for the Ryukyu Island Group, under the sovereignty of Japan, began formal operations on this date.

Contrastingly, from 1952 to the present, examination of the speeches of Presidents Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton, Bush Jr., Obama, Trump, and Biden fail to find any announcement of the end of USMG jurisdiction over Taiwan.

Further information regarding the end of military occupation is given as follows.

To summarize what was stated previously:

The Allies have disbanded as of April 28, 1952. However, the jurisdiction of USMG over Article 2 and Article 3 territories continues. Such an interpretation flows naturally from the laws of war, and is confirmed by SFPT Article 4(b) read in conjunction with Article 23(a). The countries which have signed and ratified the SFPT have agreed to the United States fulfilling the role of "the principal occupying power."

Moreover, as fully explained in the essay "TAIWAN: Searching for a New Identity In a Changing World Order", PRC officials had already concluded that Taiwan was "occupied territory of the United States" as early as November 1950. (FN: 3)

PRC officials made a similar charge in an announcement given in 1958. (FN: 4)

The text of the San Francisco Peace Treaty contains 27 Articles. However, a thorough examination of this content fails to reveal any clauses which support the theory that this treaty has vested the sovereignty of Formosa and the Pescadores (aka "Taiwan") in its signatories. Moreover, an examination of the post-war historical record fails to reveal any statements, testimonials, or declarations by any of the signatories that their country is exercising (or participating in the exercise of) a condominium (FN: 5) over Taiwan.

Notably, in regard to the "Legal Status of Taiwan," the U.S. Dept. of State issued the 1961 Czyzak Memorandum (FN: 6) and the 1971 Starr Memorandum (FN: 7). In the earlier memorandum, author John Czyzak mentioned the occasionally-heard theory that Taiwan (and its associated islands) formed a condominium belonging to the parties to the Japanese Peace Treaty. However, he was unable to find any definitive proof to back up this theory.

Some international law scholars have advanced a similar theory, stating that " . . . . (1) Japan's surrender created a condominium over Taiwan in favor of the Allies jointly and that (2) this condominium, reinforced by the Peace Treaty with Japan, continues to the present day."

However, after doing extensive research into the customary laws of warfare of the post-Napoleonic period, no legal or historical proof for the contention that the surrender ceremonies can create legal relationships between the victorious party/parties and the defeated state/states has been found. More specifically, it is certainly worthy of note to say that neither the Hague nor Geneva Conventions contain any such stipulations.

In relation to Taiwan, the following point must also be considered. If there had been a condominium formed sometime during the 1945 to 1952 period, two of the most prominent members would undoubtedly have been the UK and the USSR, two of the leading Allies in WWII. However, these two countries had already derecognized the Republic of China during the 1949 to 1950 period. After the central government of the Republic of China moved to Taiwan in early December 1949, they did not want to have any further relationship with the Chiang Kai-shek regime.

Hence, the unwillingness of these two prominent allies to participate in any agreement regarding the formation of a condominium for Taiwan assured that such a condominium was never formed.

Under the One China Policy, some people deny any longstanding legal relationship between the United States and Taiwan whatsoever, strongly asserting that the U.S. government fully recognizes that Taiwan belongs to China, i.e. the PRC. However, this is not true. The U.S. government has never recognized Taiwan as having been incorporated into or belonging to the national territory of the People's Republic of China. In fact, United States' officials have issued statements about this many times. Please visit the REFERENCES page and see further analysis in the China/Taiwan: Evolution of the "One China" Policy.

Additionally, it is also seen that, such as in the situation of Japan, the US government fully recognizes that the islands of Kyushu, Shikoku, Honshu, and Hokkaido belong to Japan. Thus, the United States' relations with Japan fully include all relations with these four islands. Hence, there is no need to have a "Kyushu Relations Act," a "Shikoku Relations Act," etc.

In relation to PRC, the US government fully recognizes that the provinces of Hainan, Fujian, Sichuan, Guangdong, etc. belong to the PRC. Thus, the United States' relations with the PRC fully include all relations with these four provinces. Hence, there is no need to have a "Hainan Relations Act," a "Fujian Relations Act," a "Sichuan Relations Act," etc.

Accordingly, the existence of the Taiwan Relations Act clearly shows that the United States does not recognize Taiwan as being part of the PRC's territory.

Moreover, the Taiwan Relations Act is a clear manifestation of the jurisdiction of the "principal occupying power" (as specified in the SFPT) over Taiwan. In the post-WWII period up to today, none of the other Allies in the Pacific war have passed similar "domestic" legislation.

As explained previously, at the most basic level, both Taiwan and the Ryukyus are conquered territory (aka "liberated territory") of the United States of America. Importantly, the direct result of conquest is jurisdiction over territory.

Even to the extent that other countries (i.e. members of the Allies) participated in these "liberation" efforts, with the coming into force of the SFPT, their residual rights and responsibilities in this regard have been assigned to the USA, in its role as the principal occupying power.

As early as late April 1971, a US Dept. of State spokesman stated that: "We regard the Republic of China as exercising legitimate authority over Taiwan and the Pescadores by virtue of the fact that ROC forces had accepted the surrender of Formosa on behalf of the victorious allies."

Up to the present era, this statement has been repeated by US Dept. of State officials on various occasions.

However, there is no precedent in the customary laws of warfare which can give credence to the assertion that the troops accepting the surrender can obtain any special "rights or privileges" thereby. Indeed, neither the Geneva nor Hague Conventions contain any such specifications. Hence, we can only conclude that many US government officials lack any accurate knowledge about "laws of war" issues.

Please visit the REFERENCES page and see further analysis in the "The Exercise of Legitimate Authority."