Name Rectification for Taiwan: New Perspectives by Cheng Chung-mo

In the months before the opening of the Olympic Games in Beijing on August 8, 2008, there was much discussion in all sectors of Taiwan's society regarding whether our teams could participate under the name of "Taiwan." However, after negotiations were held with the Chinese authorities and the Olympic officials, the final name chosen was "Chinese Taipei."

I have long promoted the goal of name rectification for Taiwan, and of course it was disappointing for me to see that our participation in the 2008 Olympic Games could not proceed under the name of Taiwan.

The United States has continually said that Taiwan does not have sovereignty, that neither Taiwan nor the Republic of China (ROC) are "states in the international community," that Taiwan is not a part of the People's Republic of China (PRC), etc. etc. Such remarks were made by former Secretary of State Colin Powell on Oct. 25, 2004, by National Security Council (NSC) Senior Director for Asian Affairs Dennis Wilder on Aug. 30, 2007, and then in official US State Dept. announcements to the Secretary-General of the United Nations in Sept

And yet, at the same time, we know that Puerto Rico is not a country, it is a self- governing commonwealth in association with the United States. Despite this lack of nationhood, it does not participate in the Olympics under the name of its capital city, with some nomenclature such as "American San Juan," rather it directly participates in the Olympics under the name of Puerto Rico.

Hence, in relation to the issue of name rectification, over the past few years I have been wondering if there may be important lessons which we Taiwanese people can learn by studying the history of Puerto Rico in the modern era. Indeed I believe that there are. For this we need to go back to the Spanish American War of 1898, and reference this to WWII in the Pacific.

First, we can see that all military attacks against Spanish forces in Puerto Rico and against Japanese forces in Taiwan were made by United States military forces. (I must make a special note that the ROC military forces did not participate in any attacks against Taiwan.)

Next, the date of the surrender of Spanish troops on the island is generally given as Aug. 12, Despite any previous proclamations, declarations, or any other announcements, the international community did not recognize any transfer of the Puerto Rico's sovereignty to the United States on this date. In a similar fashion, we do not find that any of the Allies agreed that there was any transfer of Taiwan's sovereignty to "China" upon the Oct. 25, 1945, date of the surrender of Japanese troops on the island.

Next, in the Spanish American Peace Treaty of April 11, 1899, Puerto Rico was ceded to the United States, but there was no domestic "civil government" which had been formed to administer the local governmental affairs. Hence, Puerto Rico remained under the jurisdiction of the United States military forces. Later it was the Foraker Act, passed by the US Congress, and which came into effect May 1, 1900, which established a "civil government" for Puerto Rico. With the coming into effect of this civil government, US military jurisdiction over Puerto Rico ended.

Now turning to Taiwan, we can see that the US military has administrative authority over Taiwan via the international law principle of "conquest," but when has such administrative authority ended? This is the question we face. USMG flag

We know that the Republic of China was recognized by the United States as the sole legitimate government of China up until Dec. 31, But if the US government had already recognized the ROC as the legitimate "civil government" of Taiwan in the post-WWII era, there would have been a very clear Policy of "One China, One Taiwan" dating from the coming into force of the San Francisco Peace Treaty in late April 1952, or shortly thereafter.

Moreover, there would have been no need to announce any "break in relations" in late December All of this amounts to saying that the fate of Taiwan continues to depend on the United States, and in my opinion the US government should support the Taiwanese people's right to form their own "civil government."

My advisers tell me that in regard to the territorial cession of Taiwan, and with full respect to the principles of US constitutional law, the post-war San Francisco Peace Treaty, other relevant United States' policies (such as continued opposition to formal Taiwan independence), etc. etc. the formation of such a "civil government" for Taiwan cannot be construed as "a change in the status quo as defined by the United States." Indeed, this is more of a deepening of Taiwan's democratic form of government.

The history of Puerto Rico provides many important points of reference for our own international development. But what has gone wrong? Why can't Taiwan be called Taiwan? In fact, the states parties to the SFPT did not abandon Taiwan and render it terra nullius available to any State for annexation. Rather, considering the facts of the United States conquest of Taiwan, the SFPT confirmed the US role as “the principal occupying power."

Hence, we can dissect the issue of Taiwan's de jure "state sovereignty" by asking: Which state has the better right to "possess," and thus has the better right to claim the LEGAL TITLE to Taiwan territory, and by extension, the legal competence which flows from it?

As summarized above, with respect to the ROC: (1) from 1895 to 1952, Taiwan was de jure Japanese territory, and the ROC's presence beginning in Oct was thus in the nature of belligerent occupation, which does not confer title; (2) neither the SFPT nor the ROC-Japan Peace Treaty in 1952 gave the ROC any rights over Taiwan,

(3) the ROC on Taiwan has always been dependent on United States support, so that its occupation and "effective control" can be viewed as an extension of the United States' own power; (4) the United States derecognized the ROC as of Jan. 1, 1979, and has consistently asserted that Taiwan is not independent, (5) moreover the United States considers Taiwan territory "strategic" and subject to unilateral military involvement, including the development of local forces, which it has accomplished over the last half a century by massive financial support for Taiwan's military.

More specifically, in regard to the United States role in Taiwan, since 1952 it has (1) demonstrated broad military use and domination of the island; (2) gone to the brink of war several times to protect its "rights" on Taiwan; (3) provided enormous, full-spectrum support to an economically dependent Taiwan and militarily and politically dependent ROC, including taking on the role of direct counterpart to the PRC with respect to Taiwan, and invoking the right to individual self-defense in such regard;

(4) has dictated the terms of, and veto power over, any future disposition, of the territory, which is fully in line with international trusteeship practice and precedent; (5) has deemed its role's duration to be limited in theory but indefinite in practice; and (6) sought to deny, or exclude formal provisions for, Taiwan territory's independence. The above actions represent present sovereignty, (as opposed to "future sovereignty") as they would be intolerable to any other State having (or viewing itself as having) sovereignty over Taiwan.

In conclusion, it is clear that Taiwan has a much closer relationship with the United States than most researchers have previously recognized. I strongly urge the US State Department to face up to its poor management of the Taiwan question in the post-WWII era and especially in regard to its failure to carry out the provisions of the Senate-ratified SFPT.

After all of these complex legal issues are sorted out, I am confident that our participation in the Olympics, the World Health Organization, and other international organizations can all be done in the name of "Taiwan."

Dr. Cheng Chung-Mo Education 1962 LL.B Soochow University, Taiwan 1966 LL.M Waseda University, Japan 1970 LL.D Vienna University, Austria Career Highlights 1971 Professor of Law in Soochow University, Taiwan 1973 Chairman, Dept. of Law, Soochow University, Taiwan 1971 Visiting Professor, University of Wisconsin, USA 1981 Visiting Professor, University of Vienna, Austria 1994 appointed Grand Justice in Taiwan 1998 appointed Minister of Justice, Taiwan 1999 appointed Vice President, Judicial Yuan, Taiwan

God bless America, Taiwan, and the whole world! Author: Cheng Chung-mo March 2009 October 2010