The Exercise of Legitimate Authority

DOS rationale for the presence of the Republic of China in Taiwan

" . . . . 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 [Japanese troops in] Formosa [in the Fall of 1945] on behalf of the victorious allies."

Based on the above rationale of DOS, in relation to such a situation beginning with the "close of hostilities" and continuing for an indefinite period thereafter, if we attempt to derive a formula for determining if any governmental entity  (FN: 1) is "exercising legitimate authority over a particular geographic area," we obtain the following --

[EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA:]  Original version  Subject Matter to be Determined: The existence of an exercise of "legitimate authority" over territory by a country Relevant Context and Continuing Validity: Beginning in a wartime situation, typically the close of hostilities, and extending onward in time past the coming into force of the final peace settlement/treaty. A valid determination of the exercise of legitimate authority over the territory in question is made upon the following conditions being met -- (a) When the military forces of this country, acting on behalf of its allies and/or their wartime leader(s), had accepted the surrender of enemy troops in the territory.

Analysis of this Exercise of Legitimate Authority Formula

According to the announcements of DOS, we are being given the strong impression that this FORMULA, (re-described here in a more general fashion), will provide us with a conclusion, which was confirmed by DOS on April 28, 1971, that the ROC has been exercising legitimate authority (FN: 2) over Taiwan since Oct. 25, 1945.

To restate this --

The Dept. of State recognizes the Republic of China as exercising legitimate authority over Taiwan and the Pescadores by virtue of the fact that ROC forces accepted the surrender of Japanese troops in Formosa in the Fall of 1945 on behalf of the victorious allies.

This statement has been repeated by DOS officials at various times up to the present.

Area		Surrender Date	Nationality of Troops Surrendering		Accepting Surrender
1	Taiwan	Oct. 25, 1945	Japan		ROC

So, in regard to making a determination regarding "exercising legitimate authority" over a particular geographic area, the criteria presented here appear to require conducting --

the acceptance of the surrender of troops in that geographic area on behalf of some recognized authority

But we want to pose the question: "Is this truly a legitimate standard for making such a determination?"

Let’s look at some other historical data to begin to gauge if such criterion is valid. We have collected numerous related examples and present them below.

Comparative WWII Examples in Asia and the Pacific

Area		Surrender Date	Nationality of Troops Surrendering	Conqueror/   Liberator	Accepting Surrender	Upon surrender, a transfer of territorial sovereignty to Japan was recognized
2	Dutch East Indies	March 9, 1942	Allied	Japan	Japan	No
3	Guam	Dec. 10, 1941	USA	Japan	Japan	No
4	Wake Island	Dec. 23, 1941	USA	Japan	Japan	No
5	Attu and Kiska	June 7, 1942	USA	Japan	Japan	No
6	Singapore	Feb. 15, 1942	UK	Japan	Japan	No

To provide some necessary background information for explaining this table, we note that a careful examination of the historical and legal record shows that there was no transfer of the territorial sovereignty of any of these geographic areas to Japan with the completion of the surrender ceremonies in each area.

In fact, international law recognizes that the condition in which territory is under the effective control of foreign armed forces is called "military occupation." This rule is specifically stated in Article 42 of the Annex to the Hague Conventions, often called the Hague Regulations, of 1907.

However, we do note that the situations in each of these areas appear to fully confirm with the EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA given by DOS and explained above. That is --

A valid determination of the exercise of legitimate authority over the territory in question is made upon the following conditions being met -- (a) When the military forces of this country, acting on behalf of its allies and/or their wartime leader(s), had accepted the surrender of enemy troops in the territory.

Nevertheless, as of the early 1970s, it does not appear that the US Dept. of State (DOS) recognized Japan’s exercise of any continuing "legitimate authority" in these areas (numbers 2 to 6). Why is this? One could suppose that the key issue is that "Japan lost the war." Hence, it would seem reasonable (in many respects) to say that the territory over which it was exercising "legitimate authority," by virtue of the fact that Japanese forces had accepted the surrender of [American, British, etc.] forces therein on behalf of the Japanese Emperor, had somehow been terminated!

Our major source for making this kind of determination is the DOS website’s "Countries and Areas" Reports on Indonesia, Guam, Aleutian Islands (Alaska), Wake Island, and Singapore. After a thorough reading of each Report, we do not see any recognition that Japan has continued any exercise of "legitimate authority" in these areas after the close of WWII. (FN: 3)

Do examples 2, 3, 4, 5, and 6 give us a CONFIRMATION OF THE EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA promulgated by DOS?

No

Comparative WWII Examples in Europe

We can also look at representative examples from Europe.

Area		Surrender Date	Nationality of Troops Surrendering	Conqueror/   Liberator	Accepting Surrender	Upon surrender, a transfer of territorial sovereignty to Germany was recognized
7	Denmark	April 9, 1940	Denmark	Germany	Germany	No
8	Norway	June 10, 1940	Norway	Germany	Germany	No

When explaining this Table, we will also want to provide the relevant background information, i.e. a careful examination of the historical and legal record shows that there was no transfer of the territorial sovereignty of Denmark to Germany, or of Norway to Germany, with the completion of the surrender ceremonies on the dates indicated. (FN: 4)

International law recognizes that the condition in which territory is under the effective control of foreign armed forces is called "military occupation." This rule is specifically stated in Article 42 of the Annex to the Hague Conventions, often called the Hague Regulations, of 1907.

Next, we note that the situations in Denmark and Norway appear to fully confirm with the FORMULA given previously. But we may ask the question: Has DOS recognized any continuing exercise of "legitimate authority" in Denmark or Norway by Germany after the close of WWII?

We can examine "Countries and Areas" Report on the DOS website for Denmark and Norway. However, after a thorough reading of these Reports, we do not see any recognition that Germany has continued any exercise of "legitimate authority" in Denmark or Norway after the close of WWII.

Do examples 7 and 8 give us a CONFIRMATION OF THE EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA promulgated by DOS?

No

Why is this? One could suppose that the key issue is that "Germany lost the war."

Comparative War of 1812 Example

But maybe some other example will provide better insight. Let’s go back to the War of 1812, which was fought between the British and the Americans, from June 18, 1812, to Feb. 18, 1815. On Sept. 1, 1814, all US military troops in Castine, Maine, surrendered.

Area		Surrender Date	Nationality of Troops Surrendering	Conqueror/   Liberator	Accepting Surrender	Upon surrender, a transfer of territorial sovereignty to the UK was recognized
9	Castine,   Maine	Sept. 1, 1814	USA	UK	UK	No

The British military troops in Castine accepted the surrender of US troops on behalf of King George III. Hence, we strongly believe that the situation in this area fully conforms with the FORMULA given previously.

Our question becomes -- has the US Dept. of State (DOS) recognized any continuing exercise of "legitimate authority" in this area of Maine by the UK after the close of the War of 1812? After a thorough inspection of all information presented on the https://www.maine.gov/ website, we do not see any recognition that the UK has continued any exercise of "legitimate authority" in any portion of Maine after the close of the War of 1812.

Does example 9 give us a CONFIRMATION OF THE EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA promulgated by DOS?

No

Comparative Mexican American War Examples

Let’s go back to the Mexican American War to look at some contrasting examples. The US Congress declared war against Mexico on May 13, 1846.

Area		Surrender Date	Nationality of Troops Surrendering	Conqueror/   Liberator	Accepting Surrender	Upon surrender, a transfer of territorial sovereignty to the USA was recognized
10	Tampico,   Mexico	Nov. 14, 1846	Mexico	USA	USA	No
11	Mexico City,   Mexico	Sept. 15, 1847	Mexico	USA	USA	No

The US military troops in Mexico accepted the surrender of Mexican troops in the above two areas on behalf of US President James K. Polk. Hence, we strongly believe that the situations in each of these two areas fully conform with the FORMULA given previously. In the Japanese examples previously given, although Japanese troops did accept the surrender in those geographic areas, but as the final result, Japan lost WWII. In the German examples previously, although German troops did accept the surrender in those geographic areas, but as the final result, Germany lost WWII. In the British example previously given, although the UK troops did accept the surrender in Castine, Maine, but as the final result, the UK lost the War of 1812. Contrastingly, in these two further examples (examples 10 and 11), US troops accepted the surrender of Mexican forces in Tampico and Mexico City, and in the final result, the USA won the war.

So, our question is -- has the US Dept. of State (DOS) recognized any continuing exercise of "legitimate authority" in these two areas by the USA after the close of the Mexican American War? Again, our major source for making this kind of determination is the DOS website’s "Countries and Areas" Report on Mexico. However, after a thorough reading of this Report, we do not see any recognition that the USA has continued any exercise of "legitimate authority" in these areas after the close of the Mexican American War.

Do examples 10 and 11 give us a CONFIRMATION OF THE EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA promulgated by DOS?

No

The ROC’s Exercise of "Legitimate Authority"

Now let us return to the major point of discussion, which is the ROC’s exercise of legitimate authority over any particular geographic area by virtue of the fact that ROC forces had accepted the surrender of [Japanese troops there] on behalf of the victorious allies.

For reference, we should go back and review General Order no. 1 of Sept. 2, 1945.

General Order no. 1 directs the Japanese troops in three major areas to surrender to Generalissimo Chiang Kai-shek. These three areas are (1) China, (2) Formosa, and (3) French Indo-China north of 16 north latitude.

It would certainly be useful to look at the situation in Northern Indo-China in more detail.

According to the logic of the Dept. of State official given above (as as explained in the EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA), DOS should also recognize the Republic of China as exercising legitimate authority over the so-called "French Indo-China north of 16 north latitude" by virtue of the fact that ROC forces had accepted the surrender of [Japanese troops in] northern French Indo-China on behalf of the victorious allies.

NORTHERN INDOCHINA: After the close of hostilities in WWII, some 200,000 Chinese troops under General Lu Han were sent by Chiang Kai-shek to northern Indochina (north of the 16th parallel) to accept the surrender of Japanese occupying forces there. The surrender ceremonies were held in mid- Sept. 1945.

Area		Surrender Date	Nationality of Troops Surrendering	Conqueror/   Liberator	Accepting Surrender	Upon surrender, a transfer of territorial sovereignty to the ROC was recognized
12	French Indo-China north of 16 N latitude	Mid-Sept. 1945	Japan	Allies	ROC	No

The ROC military troops in Northern French Indo-China accepted the surrender of Japanese troops on behalf of the victorious Allies. This follows the specifications of the FORMULA given previously. So, our question is -- has the US Dept. of State (DOS) recognized any continuing exercise of "legitimate authority" in these this area (i.e. Northern French Indo-China) by the ROC after the close of WWII?

Our major source for making this kind of determination is the DOS website’s "Countries and Areas" Report on Northern French Indo-China (present day Vietnam). However, after a thorough reading of this Report, we do not see any recognition that the ROC has continued any exercise of "legitimate authority" in this area after the close of WWII.

Does example 12 give us a CONFIRMATION OF THE EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA promulgated by DOS?

No

Comparative Spanish American War Examples

Maybe we can turn this around.

We can look for historical periods where there was a wartime situation, the surrender of enemy troops, and finally an exercise of "legitimate authority" was recognized, extending onward in time past the coming into force of the final peace settlement/treaty.

The Spanish American War provides several good examples.

Area		Surrender Date	Nationality of Troops Surrendering	Conqueror/   Liberator	Accepting Surrender	Upon surrender, a transfer of territorial sovereignty to the USA was recognized
13	Guam	June 21, 1898	Spain	USA	USA	No
14	Cuba	July 17, 1898	Spain	USA	USA	No
15	Puerto Rico	Aug. 12, 1898	Spain	USA	USA	No
16	Philippines	Aug. 14, 1898	Spain	USA	USA	No

However, upon further examination, the key criterion is not that the military forces of whichever country accepted the surrender of enemy troops on behalf of itself and/or its allies.

The key criterion is that the territory was ceded to a particular country in the final peace treaty [or peace settlement].

Hence, in the Spanish American Peace Treaty of April 11, 1899, Guam, Puerto Rico, and the Philippines were ceded by Spain, and the United States was designated as the receiving country. Cuba was ceded by Spain, and although no receiving country was specified, however the treaty left Cuba under the jurisdiction of the (principal) occupying power - the United States of America, until its final legal status was determined. The US Supreme Court ruled that during this period, Cuba was a "US overseas quasi-trusteeship."

With this new knowledge, we can look at the situation in Taiwan again.

Area		Surrender Date	Nationality of Troops Surrendering	Conqueror/   Liberator	Accepting Surrender	Upon surrender, a transfer of territorial sovereignty to the ROC was recognized
1	Taiwan	Oct. 25, 1945	Japan	USA	ROC	No

As explained earlier, international law does not recognize that the surrender ceremonies can be interpreted as signifying a transfer of the territorial sovereignty to the country of the troops accepting the surrender. (FN: 5)

Hence, having established that (a) there was no transfer of Taiwan’s territorial sovereignty to China on Oct. 25, 1945, and (b) there was no transfer of Taiwan’s territorial sovereignty to China in the post war San Francisco Peace Treaty (SFPT), and (c) taking into account the historical overview we have provided for the Dutch East Indies, Guam, Wake Island, Attu and Kiska Islands, Singapore, Denmark, Norway, Castine, Tampico, Mexico City, and French Indo-China, we are forced to conclude that the Dept. of State’s determination, as given in the statement of April 28, 1971, is totally incorrect. (FN: 6)

Revision of the Exercise of "Legitimate Authority" Formula

We are forced to revise the [EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA] as follows.

[EXERCISE OF "LEGITIMATE AUTHORITY" FORMULA:]  Revised version  Subject to be Determined: The existence of an exercise of "legitimate authority" over territory by a country Context and Continuing Validity: Beginning in a wartime situation, typically the close of hostilities, and extending onward in time past the coming into force of the final peace settlement/treaty. A valid determination of the exercise of legitimate authority over the territory in question is made upon the following conditions being met --   (a) When the military forces of this country, acting on behalf of its allies and/or their wartime leader(s), had accepted the surrender of enemy troops in the territory. (b) However, the maximum period of time for this exercise of legitimate authority over the territory only extends to the date when the final peace treaty [peace settlement] comes into force. In order for this exercise of legitimate authority to continue past this date, the peace treaty must award the territorial sovereignty of the territory in question to this country. (c) Other scenarios, such as a peace treaty’s awarding of territorial sovereignty of a particular territory to a country which was not involved in the surrender ceremonies are also possible.

In other words, after war, and as a result of conducting the surrender ceremonies, the clear precedent is that any so-called "legitimate authority" (or "temporary right of possession") over the territory expires when the there is no relevant cession of the territory in the peace treaty. (FN: 7)

Relevant Peace Treaty Specifications for Taiwan

The post-war SFPT does not authorize the continuing presence of the ROC in Taiwan after late April 1952. No Articles in the treaty can be offered as proof that the signatory Allies have consented to the ongoing governance of Taiwan by the ROC.

To put this another way, the signatories did not award or delegate any role for the ROC to play in the continuing governance of Taiwan after April 28, 1952. With no cession of Taiwan to the ROC in the SFPT, the specifications of General Order no. 1 for the ROC to be in Taiwan have expired as of this date. (FN: 8)