• Many Chinese historians insist that the interpretation of the term "hostile invasion" is not applicable to the situation of Taiwan in the Fall of 1945. They specifically point to the date of October 25, 1945, when ROC government representatives accepted the surrender of Japanese forces in Taiwan. At that time, the Chief Executive of Taiwan Province Chen Yi sent a memorandum to the Japanese governor-general of Taiwan, stating that "As the Chief Executive of Taiwan Province of the ROC, . . . . . I restore all legal territory, people, administration, political, economic, and cultural facilities and assets of Taiwan (including the Penghu Islands)."
• However, in regard to the disposition of territory as a result of war, there is no specific international legal framework which outlines legal procedures to "restore territory" to a country which previously held it. Moreover, even if such a legal framework did exist, it is highly unlikely that the ROC's arrival in Taiwan in October 1945 would meet the criteria to be handled in this manner. This is because at the time of the 1895 cession of Taiwan to Japan in the Treaty of Simononseki, the Republic of China did not yet exist.
• More commonly, under international law, in regard to any particular piece of territory, the transfer of its territorial sovereignty (or "each transfer of its territorial sovereignty") is viewed as a separate and distinct event. In other words, the issue of what countries may have previoulsy exercised sovereignty over the territory is regarded as irrelevant.
• More importantly, there is no international legal framework which validates a new disposition of territorial sovereignty as a result of the conduct of surrrender ceremonies.
• The only international legal framework which relates to the disposition of territory after the close of hostilities in a war is found in the Hague Regulations of 1907. Article 42 states: Territory is considered occupied when it is actually placed under the authority of the hostile army.The occupation extends only to the territory where such authority has been established and can be exercised. (FN: 1)
• At the same time, a firm dictate of international law states that "Military occupation does not transfer sovereignty."

• Many civilian scholars often hold the opinion that the interpretation of the term "hostile invasion" is only applicable to the actions of ground forces or ground troops. If indeed this were true, then the Allies administration over Japan beginning early Sept. 1945 would not have been referred to as military occupation. (After all, the record of Allied ground troops' attacks against the four main Japanese islands is zero, or close to zero.) However, in fact, the world community agreed that Japan had come under military occupation in Sept. 1945.
• Hence, the correct interpretation of the term "hostile invasion" is to recognize that it applies to any and all types of military attacks, whether by air, sea, land, etc.

• Still other civilian scholars insist that the term "hostile invasion" would not apply to the situation of Taiwan in 1945 due to the fact that both the incoming ROC troops and the local Taiwan populace are both ethnically Chinese. Additionally, the incoming ROC troops were welcomed by the local Taiwan populace and (for the first few days anyway) and many of them were of a reasonably pleasant disposition.
• However, at the most basic level, such a viewpoint finds its basis in deep confusion between the concepts of "nationality" and "ethnicity". These two concepts are not the same.
• Examination of relevant historical records shows that in the 1940s, when people from mainland China traveled overseas, and when people from Taiwan traveled overseas, the travel documents which they carried were different. This is because they were from different countries, and had different nationalities.
• As used in the Hague Regulations of 1907, the original meaning of "hostile" is simply "of or belonging to a military enemy". This term does not refer to the attitude or disposition of the incoming military troops, or whether or not they were welcomed by the local populace.
• It is certainly true that Japan (including Japanese Taiwan) and the ROC were military enemies in WWII.

• Some commentators also point to the wording of "Occupation is a question of fact" to say that in the occupied territory the determination of "the legal occupier" should only be made by reference to the observable facts on the ground.
• An imagined scenario from the Iraq War (2003 to 2011) can illustrate the inappropriateness of such an interpretation. Suppose that there was a traditional tribal region in northern Iraq which was called Kurdokellistan, which in addition to covering a portion of northern Iraq, also extended into neighboring Syria and Turkey. Let us additionally suppose that after conquering Iraq, the US-lead coalition decided to delegate the military occupation of the Kurdokellistan region to military forces fighting for the indigenous people there, who call themselves Kurdomerkels.
• Based on an examination of the observable facts on the ground, the military forces organized by the Kurdomerkels give the strong impression of serving in the role of the legal occupier of the Kurdokellistan Region.
• Later when the US mission in Iraq came to a close in Dec. 2011, perhaps many official observers from leading world countries would be confused to learn that rather than return to their previous status of being an autonomous region in Iraq, the leaders of this Kurdokellistan Region decided to simply declare independence. (Such an outcome was certainly not in the original planning for the conduct of the military occupation of Iraq . . . . . . )
• In fact, a more accurate evaluation of the situation shows that the military forces organized by for the Kurdomerkels are only exercising delegated administrative authority for the military occupation of the Kurdokellistan Region. They would be more appropriately described as "proxy occupying forces."
• Importantly, in the entirety of Iraq, the fighting has been done by a US-lead coalition, and the United States is best described as "the principal occupying power" . . . . . however these facts are not immediately evident by reference to the observable facts on the ground in this Kurdokellistan Region, and especially after the Kurdokellistan leaders have declared independence.

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• Some legal researchers stress that the essential ingredient for applicability of the law of occupation is the actual control exercised by the occupying forces, and that wording which states "Occupation is a question of fact" clearly implies that there will be numbers of uniformed military personnel in the "occupied territory," thus making their presence very obvious. These researchers then point out that there is a total lack of uniformed US military personnel in the cities and counties of Taiwan, and immediately ask: "Under such circumstances, how can Taiwan be considered as occupied territory of the USA?" or "How does this correspond to the rule that the occupation extends only to the territory where such authority has been established and can be exercised . . . . . ?"
• However, the posing of such questions fails to take into account two important considerations: (1) Neither the Hague Conventions nor the Geneva Conventions have any specifications regarding a "minimum number of uniformed military personnel" which are required to be present in the occupied territory. (2) Moreover, in terms of daily operations, the military occupation of a particular area can be delegated to another country's troops.
• More specifically, the US Supreme Court has previously found that "The right to thus occupy an enemy's country and temporarily provide for its government has been recognized by previous action of the executive authority, and sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, . . . . . . . . "   -- Macleod v. U.S, 229 U.S. 416 (1913)

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• Notably, on May 3, 1951, in a conversation at the United Nations in New York City among Yakov "Jacob" Malik, Permanent Soviet Representative to the United Nations; Semen K. Tsarapkin, Alternate Soviet Representative to the United Nations; and some other of their UN colleagues, some important comments were made about the United States military presence in Formosa. Malik continued to insist that the United States occupies the island, adducing as additional proof the recent establishment of an American Military Advisory Group for Formosa. At this point, Tsarapkin offered his observations that there were various forms of occupation and the United States could occupy Formosa without many Americans being present.
• Source: Memorandum of Conversation by Frank P. Corrigan and Thomas Cory of the US Mission at the United Nations; Date: May 3, 1951, New York; Subject: Some Soviet Views on the World Situation, (as archived in the Foreign Relations of the United States series, edited by the US Dept. of State) (FN: 2)

• It is also important to recognize that in the practice of the United States, Senate-ratified treaties have a higher weight than military manuals promulgated by the Dept. of Defense or any branch of the armed services.
• Hence, in the situation of the San Francisco Peace Treaty (SFPT), Article 4(b) states: 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.
• Explanatory Notes: In the practice of the United States, military government is the form of administration by which an occupying power exercises government authority over occupied territory. (FN: 3)
• Hence, this Article is specifying that the Article 2(b) territory of Taiwan, being subject to the disposition of USMG, is occupied territory of the United States.

In SFPT Article 2(b), Japan renounced all rights over Taiwan, but no "receiving country" was designated. Unquestionably, Taiwan was not given to "China." However, the question arises: "How is this Article to be interpreted?" Some scholars go so far as to claim that according to the wording of this Article, Taiwan has become terra derelicta or terra nullius, available for any country to annex. However, such an interpretation totally ignores the "laws of war" of the post-Napoleonic period. Notably, the U.S. Dept. of State made a clear statement in the 1961 Czyzak Memorandum (FN: 4) and the 1971 Starr Memorandum,(FN: 5) quoting from the Senate Committee on Foreign Relations Report on the final draft of the Treaty, dated Feb. 14, 1952: It is important to remember that Article 2 is a renunciatory article and makes no provision for the power or powers which are to succeed Japan in the possession of and sovereignty over the ceded territory. This conclusion is further emphasized in another paragraph of the Starr Memorandum:

Article 2 of the Japanese Peace treaty, signed on Sept. 8, 1951 at San Francisco, provides that "Japan renounces all right, title and claim to Formosa and the Pescadores." The same language was used in Article 2 of the Treaty of Peace between China and Japan signed on April 28, 1952. In neither treaty did Japan cede this area to any particular entity. While it is true that the treaty has made no "final disposition" of Taiwan, it has made a "temporary disposition." In recognition of the United States' role as the conqueror of Taiwan, Article 4(b) has confirmed that Taiwan is under the jurisdiction of the military arm of the US government. This is USMG.

• Determining whether a territory is under military occupation can be a challenge for many civilian observers. The International Committee of the Red Cross (ICRC), whose mandate is to safeguard international humanitarian law, does not consistently publicize its determinations. Moreover, the ICRC does not provide any procedures for outside parties to make formal application for definitive verification of whether any particular geographic area is under military occupation or not. The International Court of Justice (ICJ), which is the United Nation’s principal judicial organ, only addresses a territory’s status when a relevant case is brought before it.
• Occupying powers also often dispute the status of the territory they occupy, and this undermines the ability to identify when the laws of occupation apply.
• For TAIWAN, historical summaries provided in the online (1) CIA World Factbook and (2) Dept. of State Fact Sheets do not mention the wording "occupation" or "military occupation." Obviously, this is a serious oversight.
• Nevertheless, it was the consensus of the Allies that the Japanese surrender ceremonies of Oct. 25, 1945, marked the beginning of the military occupation of Taiwan, and there was no transfer of Taiwan's territorial sovereignty on that day.  International legal scholars have consistently supported this view. See -- The Military Occupation of Taiwan: Authoritative References
  • Clearly, the ROC's announcement of Taiwan Retrocession Day is a serious fraud perpetrated upon the Taiwan people. Based on their superior command responsibility, the US military authorities' failure to take prompt action to demand that the ROC military officers retract that announcement is a grave dereliction of duty, both regrettable and outrageous.
  • Similar condemnation can be made of the ROC military authorities order of Jan. 12, 1946, implementing a mass naturalization of Taiwan people as ROC citizens.
  • Both of the above actions in occupied Taiwan territory are serious violations of the laws of war.
• Up to the present day, the US State Dept. has issued two Memoranda regarding the international legal status of Taiwan. The first is the Czyzak Memorandum of 1961, and the second is the Starr Memorandum of 1971. Except for a cursory remark in the Czyzak Memorandum about the situation of occupied Cuba after the Spanish American War, nowhere in these two State Dept. documents do we find any comprehensive analysis of Taiwan's legal status based on the customary laws of warfare of the post-Napoleonic period.
• From the US perspective, it strongly appears that the so-called experts working in the CIA, the Dept. of State, and other related agencies have little to no knowledge of the content or application of the 1907 Hague Regulations, the 1949 Fourth Geneva Convention, and customary international humanitarian law.

• SFPT Article 23(a) confirms the role of the United States as principal occupying power over all areas under the geographic scope of the treaty.
• Since these Article 4(b) and Article 23(a) specifications regarding military occupation are contained in the Senate-ratified treaty, they are the controlling interpretations. As everyone knows, US government officials take an oath of office to uphold the Constitution, and that includes the upholding of Senate-ratified treaties.
• Under the US Constitution, if US government officials disregard the content of a Senate-ratified treaty, it is a violation of the Faithful Execution Clause (Article II, sec. 3, cl. 5), the Supremacy Clause (Article VI, cl. 2), and the Treaty Clause (Article II, sec. 2, cl. 2), among others.

Government officials of the People's Republic of China have also frequently criticized the United States' military occupation of Taiwan. The following examples are particularly noteworthy:

(1) On Nov. 28, 1950 (over five years after the Oct. 25, 1945, surrender ceremonies in Taiwan, and nearly fourteen months after the founding of the PRC on Oct. 1, 1949), Mr. Wu Hsiu-chuan, representative of the Central People's Government of the PRC, delivered a lengthy speech in the United Nations Security Council, regarding the armed aggression of the United States' in its invasion and military occupation of Taiwan.

      Source:

(2) PRC Premier Chou En-lai often spoke of the military occupation of Formosa by the United States. For example, in his speech before the first session of the First National People's Congress on Sept. 23, 1954, Premier Chou observed:

quote:  "All proposals to place Taiwan under United Nations trusteeship or under neutral mandate, or to 'neutralize' Taiwan or to create a so-called 'independent Taiwan state,' are attempts to carve up China's territory, enslave the Chinese people on Taiwan, and legalize United States occupation of Taiwan. None of this will be tolerated by the Chinese people."

      Source:

The Legal Status of Formosa: A Study of British,
Chinese and Indian Views, by J. P. Jain,
Indian School of International Studies, Delhi, India.
(paywall) https://www.jstor.org/stable/2196175
published in
The American Journal of International Law
  Vol. 57, No. 1 (Jan., 1963), p. 36    

(3) On January 25, 1967, in Warsaw, Poland, talks were held between John A. Gronouski, U.S. Ambassador to Poland, and Wang Kuo‐chuan, PRC Ambassador to Poland, on a number of subjects.

In relation to Taiwan, Wang stated that the key to a solution in the U.S.-PRC dispute was to deal directly with the U.S. interference in the Chinese Communists' internal affairs and in particular the U.S. military occupation of Taiwan. Ambassador Wang asserted that if these issues remain unresolved, it will be "absolutely impossible to improve U.S.-Chinese relations."

      Source:

https://history.state.gov/historicaldocuments/
frus1964-68v30/d234

(4) INTERNATIONAL BOUNDARY STUDY, Series A, LIMITS IN THE SEAS, No. 43, STRAIGHT BASELINES: PEOPLE'S REPUBLIC OF CHINA. July 1, 1972.

quote:  "The Taiwan and Penghu areas are still occupied by the United States by armed force."

A statement issued on Sept. 4, 1958, by the PRC Government declared a 12-mile limit for Chinese territorial waters. The final paragraph reads:

        Source:

Text is in American Foreign Policy:
Current Documents, 1958, p. 1199.

history.state.gov/historicaldocuments/
frus1958-60v19/d66

• As stated above, in the practice of the United States, military government is the form of administration by which an occupying power exercises government authority over occupied territory.
• It is notable that Cuba, the Ryukyu island group, and Taiwan have all been under United States Military Government jurisdiction. After the end of USMG jurisdiction for each territory, there are two possibilities: (1) is that the territory is recognized as an independent sovereign nation. (2) is that the territory is recognized as part of another independent sovereign nation.
• For Taiwan, from 1952 to the present, there has been no announcement by any US Commander in Chief about the termination of US military government jurisdiction. Moreover, the legal status of Taiwan is most frequently described as undetermined or unsettled. In other words, Taiwan is neither recognized as an independent sovereign nation nor as part of any other independent sovereign nation. Such facts amount to very strong evidence that Taiwan is still under USMG jurisdiction.

• In a press conference in late April 1971, a Dept. of State spokesperson stated: "Now, 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." Turning to one reporter in the audience, this spokesperson added, "And, to answer the question about why we have relations with a government whose sovereignty may be in question, it is on the basis that the Republic of China exercises legitimate authority on Taiwan and the Pescadores."
• Some three months later, the Starr Memorandum,(FN: 5) issued by the Dept. of State on July 13, 1971, did further expounding upon the facts 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).
• In order to understand this topic more thoroughly, an historical overview and comparative study was done regarding the "exercise of legitimate authority" over the Dutch East Indies, Guam, Wake Island, Attu and Kiska Islands, Singapore, Denmark, Norway, Mexico City, Castine (Maine), Tampico (Mexico), and French Indo-China in their respective post-war eras.
• After thorough examination, it was found that the key criterion in the determination of an "exercise of legitimate authority" in the post-war period is not that the military forces of whichever country accepted the surrender of enemy troops on behalf of itself and/or its allies some time previously. The key criterion is that the territory was ceded to a particular country in the final peace treaty [or peace settlement].
• Hence, the compilers of this website are forced to conclude that the Dept. of State’s determination, as given in the statement of late April 1971, is totally incorrect. For more details, see -- The Exercise of Legitimate Authority.
• As a result of such investigations, some observers have concluded that the Republic of China is serving as an agent for the United States in governing Taiwan. (Note: In the SFPT, the role of the United States is confirmed as "the principal occupying power.")   See -- ROC Agency.