The Republic of China (ROC) in Taiwan has mandatory military conscription for males aged 19 and above. Estimates of the number of new draftees called up for this mandatory military conscription exceed 155,000 per year. According to the best information available, mandatory military conscription by the ROC regime in Taiwan began in late July 1951.
At that time, Taiwan was still under military occupation. Is it permissible for the governing authorities in occupied territory to impose military conscription policies over the people residing within their territorial boundaries? Examination of Article 45 of the 1907 Hague Regulations, as well as certain Articles of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War strongly suggests that the answer to this question is "No."
Did Taiwan later become de jure Chinese territory? As most people know, Japanese sovereignty over Taiwan only ended with the coming into force of the San Francisco Peace Treaty (SFPT) of April 28, 1952. However, Taiwan was not awarded to China.
In speaking of the SFPT, U.S. Dept. of State documents of Oct. 14, 1954 stated that:
"Japan has renounced its own right and title to the islands, but their future status was deliberately left undetermined, and the U.S. as a principal victor over Japan has an interest in their ultimate future."
By moving its central government outside of China’s national territory in December 1949, the ROC had become a government in exile, which is by definition, a non-sovereign entity. Moreover, international law does not recognize any actions, methods, or procedures whereby a government in exile can become recognized as the lawful government of its current locality of residence.
Is it permissible for non-sovereign nations to impose military conscription policies over the people residing within their territorial boundaries? U.S court decisions have confirmed that the answer to this question is "No."
The historical background to these court decisions is given as follows:
In America before 1862, combat duty was always voluntary. When President Lincoln enacted a military draft in 1863, it had let to riots, and Chief Justice Roger B. Taney drafted an opinion [LINK] (never delivered; there was no case before the Court) denying that such legislation was constitutional. Taney reasoned that the Constitution did not give Congress the authority to draft men into service. Instead, in the Chief Justice’s view, the Constitution said the Congress could raise and regulate armies, and it gave the federal government authority over the states’ militias in certain circumstances. As the Continental and Confederation Congresses had raised armies by requisitions on the states and through economic inducements, Taney reasoned, that was the extent of Congress’s power to "raise" armies.
In the Selective Draft Law Cases (1918), the defendants made arguments similar to Taney’s. They also made reference to the Thirteenth Amendment, which had been ratified since Taney’s death and which said that only convicts could be subjected to involuntary servitude.
Chief Justice Edward D. White’s decision for the Court used a very expansive interpretation of the Constitution to argue that because foreign governments conscripted soldiers, this power was obviously one of the attributes of a national sovereign government. White said that citizenship entailed the "supreme and noble duty of contributing to the defense of the rights and honor of the nation."
This was modified somewhat by a 1971 United States Supreme Court decision, Gillette v. United States, which established comprehensive criteria for being classified as a conscientious objector.
The ROC in Taiwan is a government in exile, and not a sovereign nation. Moreover, as Taiwan was not awarded to the ROC in the post WWII SFPT of 1952, and as Taiwan has never been incorporated into ROC national territory via the procedures in the ROC Constitution (see Article 4), it would be very difficult to say that military conscription laws in Taiwan, based on the authority of the ROC Constitution, are legal.
Indeed it can be argued that there are no clauses in the SFPT, the Taiwan Relations Act, the Three Joint PRC-USA Communiques, the One China Policy, or any pronouncements or Executive Orders issued by the U.S. Commander in Chief since the late 1940s up to today which can be interpreted (1) to authorize the operations of a Republic of China government structure in Taiwan, or (2) to respect the Republic of China Constitution as the true "organic law" of Taiwan.
These are very serious issues. 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.") For a non-sovereign entity like Taiwan, it would make sense for the United States to provide all necessary personnel and military hardware directly, and to establish U.S. military bases throughout the island.
In other words, all those concerned with Taiwan’s future are currently faced with the question of:
How can the United States sell military hardware to a non-sovereign entity which is not authorized to conduct military recruitment efforts and not authorized to maintain a military presence in its headquarters locality?
Torture of Conscriptees?
In July 2013, the 24-year-old draftee Hung Chung-chiu, who had graduated from the Department of Transportation Management of the National Cheng Kung University, died following an arduous punishment drill in Taiwan's searing summer heat. Corporal Hung was just three days short of completing his military service when he was reportedly put in solitary confinement. He was later subjected to a series of tough punishment exercises, and doctors say he died of organ failure brought on by severe heatstroke.
Newspaper reports estimate the number of deaths of new draftees in the ROC military at 300 per year. Those persons with advanced educational credentials are particularly susceptible to mistreatment and even torture. Some reporters have claimed that this rate of deaths, calculated in percentage terms, is greater than the yearly losses suffered by US troops in Afghanistan.
Since the early 1950s the legal status of Taiwan has been continually characterized as "undetermined." Moreover, beginning in the 1970’s US government policy toward Taiwan has been characterized as "strategic ambiguity." But, does this "strategic ambiguity" apply to the human rights of the native Taiwanese people as well?
Let us not forget that the Taiwan Relations Act (TRA) discusses "human rights" in some detail, see 22 USC 3301 (c) Human rights
Nothing contained in this chapter shall contravene the interest of the United States in human rights, especially with respect to the human rights of all the approximately eighteen million inhabitants of Taiwan. The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States.
In terms of human rights, the question we continually come back to is:
Where is the legal basis for the Republic of China in Taiwan to maintain a Ministry of National Defense on Taiwanese soil, and to impose mandatory military conscription policies over the local Taiwan populace?
Certainly, military conscription into a rebel Chinese regime (of questionable legal validity) is a gross violation of the human rights of all native Taiwanese persons. It is therefore clear that the native Taiwanese people are entitled to a detailed answer to this military conscription question.
U.S. Executive Branch officials and members of Congress should call for a moratorium on all military conscription activities by the ROC regime in Taiwan ASAP until the exact legal basis for such policies (under international law) can be firmly established.
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