Taiwan’s Fundamental Legal Position

The direct result of conquest is to obtain jurisdiction over the territory.

According to the wartime records assembled by US Dept. of War consultant George H. Kerr, and Brookings Institution Senior Fellow Richard C. Bush, US airplanes began bombing targets on Taiwan in November 1943. (FN: 1) (FN: 2) These US military attacks continued through early August 1945.

In the home islands of Japan, the early August 1945 US bombings of Hiroshima and Nagasaki finally convinced the Japanese Emperor to agree to an unconditional surrender.

Q: What was Taiwan’s legal position from mid-August through late-October 1945?

A: The legal status of Taiwan from mid-August 1945 through late-October 1945 was "conquered territory of the United States."

The territorial sovereignty of Taiwan was still held by Japan.

THE MILITARY OCCUPATION OF TAIWAN BEGINS

Q: In relation to Taiwan, what happened in October 1945?

A: ROC military commanders and troops were transported by United States ships and aircraft to Taiwan.

After the holding of the surrender ceremonies on Oct. 25, the military occupation of Taiwan began. However,

Importantly, at this time, the territorial sovereignty of Taiwan was still held by Japan.

Operating under the superior command responsibility of the US Pacific Command and US Commander in Chief under the authority of General Order no. 1 (issued: Sept. 2, 1945) of the Supreme Commander for the Allied Powers, the ROC military commanders were exercising delegated administrative authority to undertake the military occupation.

The United States is the principal occupying power, and the ROC serves in the role of proxy occupying forces. Such an interpretation is confirmed by numerous Supreme Court rulings.

In December 1949, the territorial sovereignty of Taiwan was still held by Japan. By moving to occupied Taiwan, the ROC has relocated itself outside of China’s national territory. This statement is strong proof that the ROC is now a government in exile. The ROC central government has moved to occupied Taiwan, however the ROC is not exercising sovereignty over this location.

In the SFPT, Japan renounced the territorial sovereignty of Taiwan, but no "receiving country" was specified. Under the SFPT,

The Ryukyu island group is also fittingly described as "conquered territory of the United States."

TIMELINE

A more complete Timeline of related events is as follows:

Preface: (1) After the atomic bomb attacks on Hiroshima and Nagasaki, Japan, the Japanese Emperor agreed to an unconditional surrender. The formal Japanese surrender ceremonies were held on Sept. 2, 1945 in Tokyo.

Neither of the above three actions/events resulted in a transfer of Taiwan’s territorial sovereignty.

Additional actions/events in following years can be analyzed as follows:

CONCLUSION

In the above Timeline, the only one of the events which has caused an upgrading of Taiwan’s legal position is the coming into force of the April 28, 1952, SFPT. Under the specifications of the SFPT, Taiwan now immediately ascends to the status of US overseas quasi-trusteeship.

See -- US Overseas "quasi-Trusteeships"

A summary of the most important principles which should be observed in occupied territory are given on a separate webpage.

See -- Most Important Principles governing the Law of Occupation

OBJECTIONS AND REBUTTALS

to the above analysis

Objection #1: Most pro-China scholars stress that the combined effect of China’s Declaration of War Against Japan on Dec. 9, 1941; the Cairo Declaration of Dec. 1, 1943; the Potsdam Proclamation of July 26, 1945; and the Japanese Surrender documents of Sept. 2, 1945 and Oct. 25, 1945, did result in a transfer of Taiwan’s territorial sovereignty to China effective Oct. 25, 1945.

Rebuttal #1: If indeed there was a transfer of Taiwan's territorial sovereignty effective Oct. 25, 1945, then this fact must be based on an existing principle of international law (of the post Napoleonic period). If this is based on an existing principle of international law, then there must be additional examples.

Where are these examples? Where are the other instances where the conclusion of surrender ceremonies resulted in the international community recognizing an immediate transfer of territorial sovereignty? Four or five examples would be adequate to prove the point.

However, after decades of research into the Taiwan question, and countless arguments with scores of pro-China scholars, no one has been able to step forth and offer even a single example of this.

The conclusion appears obvious. If no one can submit even one example, it should be clear that the pro-China supporters’ explanation of the effect of the Oct. 25, 1945 surrender ceremonies as being "Taiwan Retrocession Day" remains as an exercise in self-delusion.

Objection #2: In fact, General MacArthur’s General Order no. 1 of Sept. 1, 1945, already shows the clear intent to transfer Taiwan’s sovereignty to the Republic of China.

Rebuttal #2: In reading this General Order, three important points become apparent. (1) It authorized the surrender and disposition of Japanese forces, not Japanese territories; (2) It was a military directive, establishing procedures for demobilizing Japanese forces; (3) It was not meant to settle political questions, and indeed General MacArthur had no authority to "adjudicate" any territorial cession issues.

Objection #3: When Japan renounced the territorial sovereignty of Taiwan in the SFPT without specifying a "receiving country," under international law that would render Taiwan as terra nullius, and the ROC would have every right to annex it.

Rebuttal #3: When the SFPT came into force, the military occupation of Taiwan continued. Hence, Taiwan was not terra nullius, rather it remained as occupied territory. To put this another way, the military government jurisdiction of the principal occupying power had not yet ended. For more details, please study the Taiwan Flowchart on this twdefense.info/trust3/   website.

Objection #4: A close reading of the 1955 ROC - USA Mutual Defense Treaty (MDT) shows that Taiwan was already recognized as part of the ROC’s national territory.

Rebuttal #4: This is not true. In conjunction with the ratification of the MDT, a report issued Feb. 8, 1955, by the US Senate Committee on Foreign Relations specified: "It is the view of the committee that the coming into force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores."

Objection #5: Isn’t the legal and political status of Taiwan often described as "undetermined" ? This does not seem to correspond with a recognition that Taiwan is conquered territory of the United States.

Rebuttal #5: Being recognized with the fundamental legal status of "conquered territory of the United States" is not a final legal/political status for Taiwan. Taiwan’s undetermined status means that it remains in interim status under the law of occupation. Taiwan is occupied territory of the US, but at the same time it is an insular area of the US. Taiwan is probably best described as a US overseas quasi-trusteeship.

See -- US Overseas "quasi-Trusteeships"

In the future, it is still very much possible that Taiwan can upgrade its status within the US insular law framework.

ADDENDUM #1:

HISTORICAL CHANGES OF SOVEREIGNTY

ADDENDUM #2:

MILITARY OCCUPATION v. ANNEXATION

From the second half of the eighteenth century onwards, international law came to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in his opus The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars (circa 1820).

Sir William Blackstone, in his treatise Commentaries on the Laws of England, originally published 1765 - 1769 by the Clarendon Press at Oxford, also gave emphasis to this legal formulation. All of the territories Blackstone lists as dominions are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on.

To apply Blackstone's reasoning to the United States, we need merely substitute "federal government" for "Crown," and the meaning becomes clear.

Indeed, as early as 1828, US Supreme Court Chief Justice Marshall offered this penetrating analysis in the famous American Insurance Company case:

"The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."

And more explicitly, in the 1872 case of United States v. Huckabee, the Court speaking through Mr. Justice Clifford, said:

"Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined . . . . . . . "

After the close of the Napoleonic period, invasion and annexation ceased to be recognized by international law and were no longer accepted as a means of territorial acquisition. The Convention respecting the Laws and Customs of War on Land (Hague IV, 1907) and its Annex (aka "Hague Regulations") contained explicit provisions concerning the protection of civilians and their property in occupied territories.

Summary
of Relevant Principles

In the post-Napoleonic era, in regard to territory conquered by foreign military forces, the following recognitions and principles are applicable.

Relevance to Taiwan

Over 96% of all military attacks against Taiwan during the WWII period were made by US military forces, so it is clear that as a result of the Pacific War the United States has acquired Taiwan based on conquest.

Accordingly, it must be recognized that Taiwan is included under the geographic scope of the US Constitution’s "common defense clause" (Art. I, Sec. 8, cl. 1).

REFERENCE

REFERENCE

REFERENCE

Beginning in 1979, the Taiwan Relations Act (TRA) stipulates that the United States should "provide" or "make available" military hardware to the Taiwan governing authorities. (The TRA does not use the terminology of "sell to" or anything similar.) For an entity like Taiwan, it would make sense for the United States to provide all necessary personnel and military hardware directly, and to establish US military bases throughout the island.

Here in the 21st century, Taiwan has not yet reached a final political/legal status. Importantly, however, any final disposition of Taiwan must be conducted according to the laws of war. In regard to the specific details involved in making such as disposition, there is much established precedent which can be referenced. In particular, examination of the comparative historical and legal data for the US conquered areas of Cuba (after the Spanish American War) and the Ryukyu island group (after WWII) can prove insightful. Please see the Cuba Flowchart and the Ryukyu Islands Flowchart on this website.

FOOTNOTES

Footnote #1

Footnote #2

Footnote #3