A Derivation of the International Legal Status of Taiwan Based on the Delineation of “Categories of Territory” found in U.S. Court Decisions and Customary.

A Derivation of the International Legal Status of Taiwan Based on the Delineation of “Categories of Territory” found in U.S. Court Decisions and Customary International Precedent regarding the Disposition of Territory after War

Index TitleSlide All Territory Under The Jurisdiction Of A Particular Country Is Not Necessarily “Domestic Territory”6 Laws of War Studies12 Confusion Arising From The Misconception That “ All Territory Under The Jurisdiction Of A Particular Country Is Domestic Territory” 13 Rigorous Distinctions are Needed15 Territorial Cession in the Modern World16 United States Military Government (USMG)17 TAIWAN and WWII in the Pacific18 The Military Occupation of Taiwan20 The Signing of the SFPT21 Implementing the Specifications of the SFPT22 A Civilian View of Taiwan in the Post-WWII Era23 Version 1.0

Index TitleSlide "Problems" of the Civilian View24 Important Steps in the Development of the Republic of China’s Legal Position in Taiwan 25-28 Summary Conclusions for Taiwan29 The 1952 SFPT30 Is Taiwan a part of Japan?31 Is Taiwan a part of China?32 Is Taiwan a part of the United States?33 Taiwan: Conquered Territory of the United States34 Peace Treaty Specifications for Cuba and Taiwan35 WWII in the Pacific36 Proxy Occupying Force37

Index TitleSlide Chinese government in exile in Taipei38 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu39 The ROC in Taiwan40 Introduction to fundamental Laws of War Concepts41 Military Government42-43 The End of Military Government44-46 USMG jurisdiction over Taiwan is still active47-48 The Principle of Conquest49-50 Sources of International Law52 Sources of the Laws of War53 Native Taiwanese and ROC Exiles54-55

Index TitleSlide United States Treatment of Taiwan as a “Trusteeship”56-57 Taiwan as a U.S. Insular Area58-59 Taiwan and the Montevideo Convention60 Serious Violations of International Law62 U.S. Constitution, supremacy clause63 Collected Statements from the U.S. Executive Branch and the Courts 64

Fundamentally, we need to recognize that: ALL TERRITORY UNDER THE JURISDICTION OF A PARTICULAR COUNTRY IS NOT NECESSARILY “DOMESTIC TERRITORY”

To aid in the discussion of this concept, illustrations from United States history will be given for reference. EXAMPLE 1: One common situation which arises is when U.S. military troops have occupied some particular area. The United States military occupation of the northern and central Mexican states during the Mexican American War is a good example of the category of “foreign territory under the jurisdiction of the United States.” U.S. Supreme Court References Fleming v. Page (1850) Cross v. Harrison (1853) DeLima v. Bidwell (1901)

EXAMPLE 2: Even in situations after war where territory was ceded to the USA by treaty, and was added within the boundaries of USA national territory, such territory was still regarded as “foreign to the states of the Union.” Additionally, it was held that the U.S. Constitution did not apply in its entirety to these areas, whether during the period of United States Military Government (USMG) jurisdiction or later when the local “civil government” was organized. Examples are Puerto Rico, Guam, and the Philippines after the close of the Spanish American War. In the early to mid-1900s, some scholars wrote articles examining the legal treatment of these territories, and concluded that they were “foreign in a domestic sense.” U.S. Supreme Court References Dooley v. U.S. (1901) Downes v. Bidwell (1901 Gonzales v. Williams (1904) Foreign in a Domestic Sense: American Expansion, and the Constitution by Christina Duffy Burnett and Burke Marshall (Editors), Duke University Press, Durham, N.C. (2001).

EXAMPLE 3(a): A further peculiarity is where U.S. military troops liberated the territory, the original sovereign renounced its sovereignty in the peace treaty, but no “recipient country” was designated. In such situations, U.S. court decisions have found that United States Military Government (USMG) jurisdiction continues, and such an area is “foreign territory under the dominion of the United States.” Cuba, as a result of the Spanish American War, and before its independence, is a very prominent example.

EXAMPLE 3(b): As stated above, after the coming into force of the Spanish – American Peace Treaty, although not ceded to the USA, Cuba remained under USMG jurisdiction. Interestingly, during this period of time, and before the founding of the Republic of Cuba, the island was a non-sovereign entity. More specifically, it was neither part of the United States, nor was it independent in its own right. Such a description amounts to saying that Cuba had not yet reached a final political status. U.S. Supreme Court References Neely v. Henkel (1901) DeLima v. Bidwell (1901) Pearcy v. Stranahan (1907) EXAMPLE 4: Another example of the non-domestic treatment of territory is “foreign territory leased by the USA.” Guantanamo Bay, Cuba, is one well-known example which is often in the news.

SUMMARY: As an overview of the above four examples, it is quickly seen that all of these situations have arisen as a result of the conduct of war. Accordingly, the recognition and understanding of these situations is typically beyond the capabilities of those civilian scholars who have no background in “laws of war studies,” which we may refer to in a somewhat broader fashion as “the customary laws of warfare.”

Laws of War Studies This field of study includes the Hague and Geneva Conventions, the laws of occupation, as well as much other customary precedent which has been established over the last two hundred years. It also includes the subject matter of “military jurisdiction under the U.S. Constitution” and the legal ramifications of “the principle of conquest,” academic areas in which most civilian scholars have essentially no knowledge. The above topics will be overviewed more thoroughly in the “Introduction to fundamental Laws of War Concepts” section.

There is much confusion in the world today which arises from: THE MISCONCEPTION THAT “ALL TERRITORY UNDER THE JURISDICTION OF A PARTICULAR COUNTRY IS DOMESTIC TERRITORY”

For discussion purposes, let us use the nomenclature of “Country C” to designate one particular country. The following problem arises. By regarding all territory under the jurisdiction of “Country C” as domestic, it then becomes a simple mental leap to say that “Country C” can obtain new territory merely by issuing a proclamation or holding a press conference, and then sending in its troops. When the military forces in the conquered territory surrender, the officials of Country C can announce the annexation of the territory, and the war is over.

Rigorous Distinctions are Needed Those scholars and researchers who unwittingly assume that “All territory under the jurisdiction of a particular country is domestic territory” also fail to make a rigorous distinction between “having sovereignty” over a piece of territory, versus merely “having jurisdiction” over that territory. Research into “the customary laws of warfare” and a close examination of Examples 1, 2, & 3, above, quickly show that (a) not all territory under the jurisdiction of a particular country is domestic territory, (b) having jurisdiction over territory and having sovereignty over territory are two distinct concepts.

Territorial Cession in the Modern World In the post-Napoleonic world, territorial cession is accomplished by treaty, and the world history of the last (nearly) two hundred years provides many examples. In the 1800s, the difference between “military occupation” and “annexation” became firmly established in customary law, and was later formally codified in the Hague Conventions of 1907: Territory is considered occupied when it is actually placed under the authority of the hostile army." The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." In the Spanish American War examples given above, Spanish sovereignty continued until renounced in the peace treaty.

United States Military Government (USMG) Beginning of USMG AreaTreaty Came into force End of USMG USMG Supplanted by August 12, 1898 Puerto Rico Treaty of Paris, Art. 2 April 11, 1899 May 1, 1900 Civil Government for Puerto Rico (USA) August 14, 1898 Philippines Treaty of Paris, Art. 3 April 11, 1899 July 4, 1901 Civil Government for Philippines (USA) June 21, 1898 Guam Treaty of Paris, Art. 2 April 11, 1899 July 1, 1950 Civil Government for Guam (USA) July 17, 1898Cuba Treaty of Paris, Art. 1 April 11, 1899 May 20, 1902 Civil Government for Cuba (Republic of Cuba) United States Military Government (USMG) jurisdiction over these four territories began with the surrender of Spanish troops in each area, and continued (beyond the time when the peace treaty came into force) for many years. USMG jurisdiction was finally supplanted by the establishment of “civil government” for each territory. This is the established precedent for dealing with conquered territory.

TAIWAN and WWII in the Pacific All military attacks against the four main Japanese islands (aka “metropolitan Japan”) and Taiwan were conducted by U.S. military forces. The legal significance of such actions can be determined by examining the subject matter of “military jurisdiction under the U.S. Constitution” and the legal ramifications of “the principle of conquest.” Additionally, according to U.S. Supreme Court precedent regarding the application of the laws of occupation, the United States is the “conqueror,” and therefore will be the legal occupier.

Many historians dispute the view that the United States was the legal occupier of Japan, and point out that “The Allies occupied Japan.” However, Gerhard L. Weinberg (Ph.D., University of Chicago) clarifies the correct view in his essay “The End of the Pacific War in World War II.” He describes the historical situation in metropolitan Japan as follows: The Japanese surrender and occupation meant that America’s key aim had been attained. The fact that an American was supreme commander and through his staff could provide direction to the country as a whole enormously simplified a process that would not be hampered by any need for unanimity – or more likely conflicting plans and intentions – of several occupying powers. There was an Allied Council that met regularly in Tokyo and included Soviet, British, and Chinese representatives, but it operated in practice as an advisory, not an executive or administrative body. This essay is collected in Between War and Peace, How America Ends its Wars, edited by Col. Matthew Moten, published by Free Press (Simon & Schuster, Inc.), New York, N.Y. (2011).

The Military Occupation of Taiwan Importantly, in relation to Taiwan, the United States has the right, and indeed the obligation, to conduct the military occupation after the close of hostilities in WWII in the Pacific. The U.S. military authorities can (and did) delegate the administrative authority for this military occupation to co-belligerents (i.e. “allies”), namely the “ROC military forces,” via the law of agency. NOTES: The law of agency is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself."

The Signing of the SFPT With the holding of the signing ceremonies for the San Francisco Peace Treaty (SFPT) in Sept. 1951, however, the Republic of China’s status as a government in exile is beginning to become apparent. Although recognized by most world nations as the legitimate government of China (where at that time it exercised no jurisdiction), no international agreements had yet recognized it as the legitimate government of Taiwan. As a result of these factors, the ROC was not invited to become a signatory to the SFPT, and therefore is not able to claim any rights, benefits, interest, etc. from the SFPT (other than those specifically stated therein).

Implementing the Specifications of the SFPT The SFPT did not award Taiwan to the ROC. Hence, by the early summer of 1952, under the legal framework of the SFPT and established laws of war precedent, the U.S. military authorities should be nurturing a local group in Taiwan to form the “Taiwan Civil Government,” and the ROC exiles should be allocated a parcel of land to continue to conduct their own affairs until such time as they can repatriate themselves back to the motherland of mainland China. Surprisingly however, the U.S. Executive Branch officials have chosen to treat the SFPT as a lost treaty, and to ignore the fact that ROC officials have no authority to speak for the majority of the island’s population (the “native Taiwanese”), and international precedent calls for the local people to form their own government and govern themselves under the overarching USMG jurisdiction. Among persons knowledgeable in laws of war studies, however, such United States’ actions have left it open to the charge that it is conducting a proxy occupation of Taiwan.

A Civilian View of Taiwan in the Post-WWII Era In the view of most civilian scholars and researchers, what is typically held to be most important is the following: As early as the summer of 1952, the Republic of China (ROC), even though having abandoned its governmental status in mainland China, has fully established itself in Formosa and the Pescadores (aka “Taiwan”). The ROC on Taiwan has a permanent population, defined territory, and a government, in addition to conducting a full range of foreign relations with many other states. Under these circumstances, the “conclusion” must be that the ROC in Taiwan meets the international criteria for being a sovereign state.

"Problems" of the Civilian View However, the formation of such a “conclusion” regarding the ROC’s legal position on Taiwan ignores a number of key legal parameters. In particular, an examination of the steps leading to the ROC’s exercise of full governance over Taiwan, beginning with events of the early 1940s, shows that ROC officials have committed many violations of the customary laws of warfare. This is analyzed further in the Chart(s) below:

Important Steps in the Development of the Republic of China’s Legal Position in Taiwan DateWhat Happened Legal Validity & Related Comments Version #1Version #2 1.Oct. 25, 1945 Surrender of Japanese troops in Taipei ROC officials announce “Taiwan Retrocession Day,” proclaiming that the annexation of Taiwan by the ROC is now complete Chinese officialdom holds that this “annexation” is based on various wartime declarations, statements, and accords. This October date only marks the beginning of the military occupation of Taiwan, and “military occupation does not transfer sovereignty.” Taiwan remains as sovereign Japanese territory until new arrangements are made in a peace treaty. 2.Oct. 25, 1945With the Japanese surrender, the ROC and other Allied officials announce that the war is over This was printed in many newspapers, so common-sense logic dictates that it must be true. The surrender ceremonies only mark the end of hostilities, not the end of the war. The war only ends when the peace treaty comes into force. With a dual analysis regarding the Legal Validity of each Step

Important Steps in the Development of the Republic of China’s Legal Position in Taiwan DateWhat Happened Legal Validity & Related Comments Version #1Version #2 3.Jan. 12, 1946Mass Naturalization of native Taiwanese people as ROC citizens Based on the Oct. 25, 1945, announcement of Taiwan Retrocession Day, this seems valid. In occupied territory, such an action is 100% illegal. 4.Dec. 25, 1947Promulgation of ROC Constitution as basis for new legal code in Taiwan Based on the Oct. 25, 1945, announcement of Taiwan Retrocession Day, this seems valid. In occupied territory, such an action is 100% illegal. 5.Mid-1949Broad-based military conscription policies are implemented in Taiwan Based on the Oct. 25, 1945, announcement of Taiwan Retrocession Day, this seems valid. In occupied territory, such an action is 100% illegal.

Important Steps in the Development of the Republic of China’s Legal Position in Taiwan DateWhat Happened Legal Validity & Related Comments Version #1Version #2 6.Dec. 10, 1949ROC central government relocates to Taiwan after the ROC’s loss of the Chinese civil war, and the founding of PRC in Beijing on Oct. 1 Based on the Oct. 25, 1945, announcement of Taiwan Retrocession Day, it appears that Taiwan is part of ROC territory, so the removal of the ROC central government to Taiwan has created a situation of two governments in one country: Two Chinas. The post-war peace treaty has not yet been finalized, hence Taiwan has remained as sovereign Japanese territory. Accordingly, by moving outside of the national territory of China, the ROC has become a government in exile. 7.April 28, 1952Post-war San Francisco Peace Treaty (SFPT) comes into force The ROC government is already firmly established in Taiwan when the peace treaty comes into force, hence it strongly appears that Taiwan belongs to the ROC. In the treaty, Japan renounced all right, title, and claim to Taiwan, but no “recipient country” was named. Clearly, Taiwan does not belong to China.

Important Steps in the Development of the Republic of China’s Legal Position in Taiwan DateWhat Happened Legal Validity & Related Comments Version #1Version #2 8.Aug. 5, 1952Post-war Sino-Japanese Peace Treaty comes into force Many pro-China scholars say that this subsidiary treaty must be interpreted to have awarded Taiwan to the ROC. This treaty recognizes the disposition of Taiwan which was made in the SFPT. In other words, Taiwan was not awarded to China. 9.March 3, 1955USA – ROC Mutual Defense Treaty comes into force Many pro-China scholars say that this treaty recognizes the ROC’s sovereignty over Taiwan. A Feb. 8, 1955 report by the Senate's Committee on Foreign Relations stated that the coming into force of the USA – ROC MDT was not to be interpreted as modifying or affecting the existing legal status of Taiwan. In other words, the 1955 MDT only recognizes the ROC’s jurisdiction (i.e. “effective territorial control”) over Taiwan. Which Version of the “Legal Validity” Comments is authoritative? Version #2 is the legally accurate one.

Summary Conclusions for Taiwan It is a matter of historical record that the ROC military commanders and troops were transported to Taiwan by United States ships and aircraft in October 1945. Thus, the era of the ROC in Taiwan began in Oct. 1945 with the full assistance and tutelage of the United States. However, none of the Allies recognized any transfer of Taiwan’s sovereignty to China or to any other country in the 1940s or early 1950s. Hence, there was no “Taiwan Retrocession Day.” Beginning with the surrender ceremonies on Oct. 25, 1945, the legal status of Formosa and the Pescadores (aka “Taiwan”) can be described as: an independent customs territory under USMG on Japanese soil, with administrative authority for the military occupation delegated to the Chinese Nationalists (ROC). In discussing Taiwan history, an understanding of the legal significance of the events of Oct. 25, 1945, is very important. Please see detailed analysis at http://www.twinfopost.com/oct25data.htm

The 1952 SFPT The 1952 SFPT has confirmed that Japan has renounced all right, claim, and title over Taiwan. However, at the same time, Taiwan was not awarded to the Republic of China (ROC) in the treaty, and therefore is not a part of Chinese national territory (either ROC or PRC). In the treaty, Taiwan was a “limbo cession” in Article 2(b), with the United States designated as the principal occupying power in Article 23(a). Therefore, Taiwan is not a part of Japan, not a part of China, and not a part of the United States. At the same time, Taiwan (or “the ROC on Taiwan”) is not an independent nation in the international community.

Is Taiwan a part of Japan? No. Japan renounced all right, claim, and title over Taiwan in the 1952 SFPT. The validity of this renunciation has been confirmed by many Japanese court rulings. Two additional points regarding Japanese nationality are also noteworthy. First, Japanese courts have ruled that native Taiwanese people did not regain their Japanese nationality due to the Japanese government’s abrogation of the Treaty of Taipei on Sept. 29, 1972. Second, the Constitution of Japan provides that the conditions necessary for being a Japanese national shall be determined by law. However, there is no provision in the current Japanese Nationality Law outlining any legal procedure whereby former Japanese subjects in Taiwan (or their descendants) could regain Japanese nationality. In other words, at present there is no established application procedure under Japanese law which would enable any native Taiwanese persons, domiciled in Taiwan, to obtain (or re-obtain) Japanese nationality. Honestly speaking, petitions to the Japanese Diet in regard to such nationality issues are essentially just exercises in futility.

Is Taiwan a part of China? No. The designation of "Taiwan, Province of China" by UN agencies, and by organizations that follow UN standards, such as the International Organization for Standardization (in its listing of ISO 3166-1 country codes), is based on an incomplete understanding of the principles of international law. It is highly recommended the United Nations’ Office of Legal Affairs establish a task force to do thorough research into the customary laws of warfare of the post-Napoleonic period and their application to a correct determination of Taiwan’s international legal status.

Is Taiwan a part of the United States? No. To the knowledge of the Taiwan – U.S. Democracy Association, no U.S. court decisions have ever held that territory not specifically ceded to the United States by treaty, although held under USMG jurisdiction, is “part of the United States” in a technical legal sense. In further confirmation of this, U.S. courts have held that any area under USMG jurisdiction forms an independent customs territory and is not subject to the U.S. Constitution’s Article 1, Section 8 requirement that “all Duties, Imposts and Excises shall be uniform throughout the United States.” This is despite the fact that, for insular areas, such territory may be fully regarded as “an overseas territory of the United States.” The term insular simply means “relating to, or characteristic of, or situated on an island.”

Taiwan: Conquered Territory of the United States In the 21st century, Taiwan remains, at the most fundamental level, as conquered territory of the United States of America which has not yet attained a final political status. This is very similar to the situation of occupied Cuba after the coming into force of the Spanish- American Peace Treaty on April 11, 1899. o Importantly, the SFPT has confirmed USMG jurisdiction over Taiwan in Article 4(b). After the coming into force of the SFPT, the Allies have, for all effective purposes, disbanded. However, as specified in Article 4(b), the jurisdiction of USMG over the Ryukyu island group, Taiwan, etc. remains active.

Peace Treaty Specifications for Cuba and Taiwan Item Treaty of Paris specifications for Cuba SFPT specifications for Taiwan United States is the (principal) occupying powerArticle 1Article 23(a) Original "owner" did indeed cede the territoryArticle 1Article 2(b) No "receiving country" was specified (i.e. "limbo cession") Article 1Article 2(b) USMG has disposition rights over the territoryArticle 1Article 4(b) Military government is present, and military occupation is a reality Article 1 Article 4(b), and the Hague Conventions (1907) USMG jurisdiction continues past the date when the peace treaty comes into effect Article 1, and the U.S. Supreme Court decision in Cross v. Harrison (1853) Article 4(b), Article 23(a), and the U.S. Supreme Court decision in Cross v. Harrison (1853) NOTE: During the Spanish American War and WWII in the Pacific, the United States military forces liberated Cuba and Taiwan respectively. The United States is the “conqueror,” and has both the right and the duty to conduct the military occupation of these areas.

WWII in the Pacific AreaTreaty Came Into Force End Of USMGUSMG Supplanted By RyukyusSFPT, Art. 3April 28, 1952May 15, 1972civil government for Ryukyus (Japan) TaiwanSFPT, Art. 2(b)April 28, 1952-- ? --[no arrangements made yet ] Areas Conquered by US military forces and therefore under USMG jurisdiction, with later "new disposition“ by peace treaty. With reference to the situation of Cuba after April 11, 1899, and other established laws of war precedent, this Article 4(b) of the SFPT has further elevated the independent customs territory of Formosa and the Pescadores (aka “Taiwan”) to the status of a quasi USA trusteeship under military government within the U.S. insular law framework. Military government continues till legally supplanted

Proxy Occupying Force The ROC was not a signatory to the 1952 SFPT. With the coming into force of this treaty, the ROC has merely continued to serve as (1) a proxy occupying force for the United States in conducting the military occupation of Taiwan, (2) a Chinese government in exile in Taipei (aka “Chinese Taipei”). Under the laws of war of the post-Napoleonic period, a proxy occupation is a military occupation where the occupying power directs a "co-belligerent" (i.e. ally) to undertake the occupation of a particular area, as a substitute for the occupying power handling the occupation of that area directly. The Hague Conventions and the Geneva Conventions do not specifically define the terminology of "the occupying power," and many legal researchers are confused about this aspect. In fact, the conqueror is the legal occupier, aka "the occupying power."

Chinese government in exile in Taipei The appellation of “Chinese Taipei” has been used frequently by the ROC government in exile when participating in various international organizations and events, including the Olympics, Miss Universe, Paralympics, Asian Games, Asian Para Games, Universiade, World Baseball Classic, Little League World Series, Federation Internationale de Football Association (FIFA) World Cup, etc. Additionally, since Jan. 1, 2002, membership in the World Trade Organization (WTO) has been under the formal nomenclature of “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu,” but "Chinese Taipei" is frequently used in WTO official documents and elsewhere.

The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu In relation to this formal nomenclature used by WTO, the following points are notable: Under the successor government principle, the People’s Republic of China (PRC) can claim sovereignty over the island groups of Kinmen and Matsu. However, the PRC cannot claim sovereignty over Taiwan and Pengu, because the ROC has never held sovereignty over these territories in the first place.

The ROC in Taiwan After late April 1952, there is no legal basis for the ROC flag to be flying over Taiwan, for the native Taiwanese people to be classified as “ROC citizens,” or for the ROC Constitution to be regarded as the fundamental law (or “organic law”) of Taiwan. For Taiwan territory, it would make more sense for the U.S. flag to be flying, since the SFPT has confirmed that Formosa and the Pescadores (aka “Taiwan”) is/are under the jurisdiction of a U.S. federal agency – the United States Military Government (USMG). At the same time, based on the decisions in the Insular cases of the U.S. Supreme Court, native Taiwanese people should be enjoying fundamental rights under the U.S. Constitution.

Introduction to fundamental Laws of War Concepts as related to a discussion of the international legal status of Taiwan

Military Government The Hague Conventions of 1907 specify that "territory is considered occupied when it is actually placed under the authority of the hostile army." On page 21 of his book Military Government and Martial Law, United States Army Brigadier General William E. Birkhimer specifies that: The U.S. Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments.

Military Government The U.S. Supreme Court case of Ex Parte Milligan (1866) is an authoritative reference. The Justices held that: MILITARY GOVERNMENT is exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress... More simply, "military government" is the form of administration by which an occupying power exercises governmental authority over occupied territory. Any area under military government jurisdiction is considered to be occupied territory.

The End of Military Government RULE: Military Government continues until legally supplanted. This must be explained in two parts. PART 1: No Territorial Cession For the situation where no territorial cession is involved, the military government of the (principal) occupying power will end with the coming into force of the peace settlement. EXAMPLE 1: Metropolitan Japan after WWII. Japan regained its sovereignty with the coming into force of the San Francisco Peace Treaty on April 28, 1952. In other words, a civil government for Japan was in place and functioning as of this date.

The End of Military Government PART 2: A Territorial Cession In the situation of a territorial cession, there must be a formal peace treaty. However, the military government of the (principal) occupying power does not end with the coming into force of the peace treaty. EXAMPLE 1: Puerto Rico after the Spanish-American War. Military government continued in Puerto Rico past the coming into force of the Treaty of Paris of 1898 on April 11, 1899, and only ended on May 1, 1900 with the beginning of Puerto Rico's civil government. EXAMPLE 2: Cuba after the Spanish-American War. Military government continued in Cuba past the coming into force of the Treaty of Paris of 1898 on April 11, 1899, and only ended on May 20, 1902 with the beginning of the Republic of Cuba's civil government.

The End of Military Government Hence, at the most basic level, the terminology of "legally supplanted" is interpreted to mean "legally supplanted by a civil government fully recognized by the national (or "federal") government of the principal occupying power." RULE: Military Government continues until legally supplanted.

USMG jurisdiction over Taiwan is still active 1.An announcement regarding the end of USMG jurisdiction in California, Puerto Rico, Philippines, Guam, Cuba, and the Ryukyus was formally promulgated by the U.S. Commander in Chief. That USMG jurisdiction is terminated with such a formal announcement is clearly the established precedent. 2.With the end of USMG jurisdiction in California, Puerto Rico, Philippines, Guam, Cuba, and the Ryukyus, each has become either (a) a sovereign nation, or (b) "part" of another sovereign nation. Significantly, each area has a fully functioning and fully recognized "civil government," which of course has supplanted USMG jurisdiction. Taiwan is plainly the exception. Since the end of the Second World War, it has been the official policy of the United States government that the status of Taiwan is "an unsettled question.... "

USMG jurisdiction over Taiwan is still active 3.Today, Taiwan remains in a condition of “undetermined status” as an occupied (former) Japanese territory after peace treaty under the Law of Nations. 4.Beginning with the Truman Statement of June 27, 1950, (or arguably earlier) the U.S. position on the Taiwan status question has been "undetermined." As clarified by the Truman Statement and the SFPT, the United States has never recognized the forcible incorporation of Taiwan into China. 5.In light of the above facts, and in consideration that the U.S. Commander in Chief has never made any announcement regarding the end of USMG jurisdiction over Taiwan, we are forced to conclude that in the present day such jurisdiction is still active.

The Principle of Conquest 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). 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."

The Principle of Conquest 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.... " Invasion and annexation later 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) contains explicit provisions concerning the protection of civilians and their property in occupied territories.

International Law Public Law- Intergovernmental Private Law-Commercial Law Laws Of WarLaws Of Peace Conflict Management (Jus ad Bellum) Rules Of Hostilities (Jus in Bello) U.N. Charter Arms Control Customary Law Hague Conventions (Means & Methods) Geneva Convections (Humanitarian) Customary Law Based On: Law of War Handbook 2005 International & Operational Law Department The Judge Advocate General ‘s School, U.S. Army Charlottesville, Virginia

Sources of International Law The generally recognized authoritative statement on the sources of international law is the Statute of the International Court of Justice (ICJ), Article 38, which specifies: o International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; o International custom, as evidence of a general practice accepted as law; o The general principles of law recognized by civilized nations; o Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Sources of the Laws of War In order to fully understand Taiwan’s current legal status, one must be familiar with the laws of war, or more specifically “the customary laws of warfare of the post-Napoleonic period.” The laws of war are derived from two principal sources: a.Lawmaking Treaties (or Conventions), such as the Hague and Geneva Conventions. b.Custom. Although some of the law of war has not been incorporated in any treaty or convention to which the majority of nations are parties, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law. The validity of the customary laws of warfare is fully recognized by competent jurists, experts, and other legal scholars, even if the average civilian has little expertise or knowledge in such subjects.

Native Taiwanese and ROC Exiles From the period of the early 1950’s, and up to the current era, the population of Taiwan can be separated into two major groups, which of course will include their descendants up to the present day. GROUP 1: The first group is the native Taiwanese who trace their ancestry in Taiwan back to the early 1600s, or even earlier. Notably, at the end of WWII, these native Taiwanese had been in Taiwan eighteen generations or more. GROUP 2: The second group is the Republic of China (ROC) Chinese who came in mid- October 1945, brought by US ships and aircraft, and then and continued in a slow but steady immigrant stream through early 1949. At that point their numbers increased significantly as the communists gained successive victories over KMT forces in China, and ROC loyalists fled the mainland. In late 1949 and into 1950, this exodus resulted in a virtual flood of immigration into occupied Taiwan. As of the early 1950s, these people are properly labeled as the ROC exiles.

Native Taiwanese and ROC Exiles OVERVIEW: As an indigenous group, the native Taiwanese people (who comprise over 80% of the local population) meet the criteria of having a historical continuity with pre-invasion and pre-colonial societies that developed in their territory. As a result, they must be considered distinct from the ROC exiles who only began to arrive in the mid to late 1940s. They have a strong desire to preserve, develop and transmit to future generations their Taiwanese ethnic identity, as the basis of their continued existence as a people, in accordance with their own cultural patterns, social institutions, and evolving legal system. Legally speaking, the classification of native Taiwanese people as being “ROC citizens” is incorrect.

United States Treatment of Taiwan as a “Trusteeship” PART 1: The signatories to the SFPT did not abandon Taiwan and render it terra nullius or terra derelicta, available to any State for annexation. Rather, considering the facts of the United States conquest of Taiwan, the SFPT confirmed the US role as "principal occupying power.“ We can briefly overview the history of the island as follows: (i) from 1895 to 1952, Taiwan was de jure Japanese territory, and the ROC's presence beginning in Oct. 1945 was thus in the nature of belligerent occupation, which does not confer title; (ii) neither the SFPT nor the ROC- Japan Peace Treaty in 1952 gave the ROC any rights over Taiwan, (iii) 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; (iv) the United States derecognized the ROC as of Jan. 1, 1979, and has consistently asserted that Taiwan is not independent, (v) 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.

United States Treatment of Taiwan as a “Trusteeship” PART 2: 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, (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. This type of supervision and control is fully in line with international trusteeship practice and precedent.

Taiwan as a U.S. Insular Area The major U.S. insular areas may be separated into four types. Type 1 is the most important for reference in this report. TYPE 1: Insular Areas Acquired by Conquest -- In a treaty signed at the end of the Spanish-American War in 1898, Spain ceded Puerto Rico, Guam, and the Philippines to the United States. In the same treaty, Spain's sovereignty over Cuba was relinquished, but no recipient was designated. Cuba remained under USMG jurisdiction for several years. According to the historical and legal record, Taiwan and Cuba share many similarities, and both qualify as a Type 1 U.S. insular area during the period of USMG jurisdiction, after the coming into force of the peace treaty.

Taiwan as a U.S. Insular Area INCOME TAX IMPLICATIONS: U.S. federal individual and corporate income taxes as such are not currently imposed in U.S. insular areas. (FT: 1) In recognition of the fact that Taiwan meets the criteria to qualify as a U.S. insular area, U.S. citizen residents and corporations in Taiwan, as well as local Taiwanese persons and corporations, should be exempt from U.S. federal individual and corporate income taxes.(FN: 2) FOOTNOTES: 1.Nov. 1997 GAO Report to the Chairman, Committee on Resources, House of Representatives, "US INSULAR AREAS: Application of the U.S. Constitution," p. 37 2.During the past few years, the American Chamber of Commerce in Taipei has joined with the Asia Pacific Council of American Chambers of Commerce (APCAC) in urging the U.S. government to cease taxing the income of Americans working abroad. This would greatly enhance the global competitiveness of U.S. companies. Currently, the United States is the only leading industrialized country that subjects its expatriate citizens to income tax on their overseas earnings.

Taiwan and the Montevideo Convention Article 1 of the Montevideo Convention (entered into force Dec. 26, 1934) specifies that- The state as a person of international law should possess the following qualifications: a)a permanent population; b)a defined territory; c)government; and d)capacity to enter into relations with the other states. Some people would argue that the “Republic of China” on Taiwan meets all of the Montevideo Convention’s criteria for statehood. However, after doing some research in laws of war studies, a number of problems immediately become apparent. Upon closer examination, we find that all of the ROC’s “qualifying criteria” are phony.

PERMANENT POPULATION: The native Taiwanese population was mass-naturalized as ROC citizens in 1946, based on the false premise of “Taiwan Retrocession Day,” and in direct violation of the Hague Convention’s stipulations regarding the treatment of the populace of occupied territory DEFINED TERRITORY: The ROC exercises effective territorial control over Formosa and the Pescadores, but there has been no official transfer of title GOVERNMENT: The ROC appears to have a government, but it is a government in exile, and when conducting its FOREIGN RELATIONS it still asserts that it is the legitimate government of China, although from a legal and historical standpoint such an assertion is untrue

Serious Violations of International Law Members of the U.S. Congress and officials of the Executive Branch often praise Taiwan’s “democratic development,” while failing to note that the Republic of China Constitution, upon which such supposed “democratic development” is based, was promulgated during a period of belligerent occupation as the basis for an entirely new legal code in Taiwan territory. Such a promulgation is therefore a major violation of the laws of war. There is no statute of limitations on violations of the laws of war.

U.S. Constitution, supremacy clause The U.S Constitution specifies that a Senate ratified treaty, such as the SFPT, is part of “the supreme law of the land.” However, since late April 1952, U.S. Executive Branch agencies, and in particular the Dept. of State and Dept. of Defense, have been guilty of a grave dereliction of duty in regard to putting the provisions of the SFPT into force. Indeed, up to the present day, these Executive Branch agencies treat the SFPT as a “lost treaty,” when in fact its provisions have a higher legal weight than the Taiwan Relations Act, the Three Joint USA – PRC Communiques, the One China Policy, or Presidential statements such as the Six Assurances and the Three Noes.

Collected Statements from the U.S. Executive Branch and the Courts SECRETARY POWELL'S STATEMENT “ Our policy is clear. There is only one China. Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy. ” (Source: Statement by Sec. of State Colin Powell, Oct. 25, 2004) DIRECTOR WILDER'S STATEMENT “ Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years. ” (Source: Statement by Dennis Wilder, US National Security Council Senior Director for Asian Affairs, Aug. 30, 2007)

ROGER C. S. LIN ET AL. v. UNITED STATES OF AMERICA (March 18, 2008 District Court Decision) [The Native Taiwanese] Plaintiffs have essentially been persons without a state for almost 60 years. The last completely clear statement of authority over Taiwan came from General MacArthur in 1945. One can understand and sympathize with Plaintiffs' desire to regularize their position in the world. (April 7, 2009 Court of Appeals Decision) America and China's tumultuous relationship over the past sixty years has trapped the inhabitants of Taiwan in political purgatory. During this time the people on Taiwan have lived without any uniformly recognized government. In practical terms, this means they have uncertain status in the world community which infects the population's day-to-day lives. This pervasive ambiguity has driven Appellants to try to concretely define their national identity and personal rights.

PRESIDENT HARRY S. TRUMAN Letter to Warren Austin, Aug. 27, 1950 [excerpt] The Chinese Government was asked by the Allies to take the surrender of the Japanese forces on the island. That is the reason the Chinese are there now. PRESIDENT DWIGHT D. EISENHOWER Mandate for Change 1953-1956, Doubleday & Co., New York, N.Y. (1963) [excerpt] The Japanese peace treaty of 1951 ended Japanese sovereignty over the islands but did not formally cede them to "China," either Communist or Nationalist.

CONGRESSIONAL RESEARCH SERVICE China/Taiwan: Evolution of the "One China" Policy Date: June 24, 2011 [excerpt] Even while recognizing the ROC government and its "jurisdiction" over Taiwan, on the eve of the Nixon Administration's contacts with PRC leaders in Beijing, the State Department testified to Congress in 1969 and 1970 that the juridical matter of the status of Taiwan remained undetermined. The State Department also wrote that: In neither [the Japanese Peace Treaty of 1951 nor the Treaty of Peace between the Republic of China and Japan of 1952] did Japan cede this area [of Formosa and the Pescadores] to any particular entity. As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution. Both the Republic of China and the Chinese Communists disagree with this conclusion and consider that Taiwan and the Pescadores are part of the sovereign state of China. The United States recognizes the Government of the Republic of China as legitimately occupying and exercising jurisdiction over Taiwan and the Pescadores.

CONGRESSIONAL RESEARCH SERVICE China/Taiwan: Evolution of the "One China" Policy Date Issued: July 9, 2007 [ excerpt] 1.The United States did not explicitly state the sovereign status of Taiwan in the three US-PRC Joint Communiques of 1972, 1979, and 1982. 2.The United States "acknowledged" the "One China" position of both sides of the Taiwan Strait. 3.US policy has not recognized the PRC's sovereignty over Taiwan; 4.US policy has not recognized Taiwan as a sovereign country; and 5.US policy has considered Taiwan's status as undetermined.

SHENG v. ROGERS, D.C. CIRCUIT, OCT. 6, 1959 In this case the judges examined the legal status of Taiwan in detail, and held: "... that the Government of the Republic of China exercises authority over the island; that the sovereignty of Formosa has not been transferred to China; and that Formosa is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into. Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China." TREATIES IN FORCE For many years, and indeed up to the present day, the "Taiwan" entry in the U.S. Dept. of State publication Treaties in Force has clearly noted that: "The United States does not recognize the Republic of China as a state or a government."

Written & Compiled by the Taiwan – U.S. Democracy Association Version 1.01 September 2014 Updated April 2015

A Derivation of the International Legal Status of Taiwan Based on the Delineation of “Categories of Territory” found in U.S. Court Decisions and Customary.

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A Derivation of the International Legal Status of Taiwan Based on the Delineation of “Categories of Territory” found in U.S. Court Decisions and Customary.

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Presentation on theme: "A Derivation of the International Legal Status of Taiwan Based on the Delineation of “Categories of Territory” found in U.S. Court Decisions and Customary."— Presentation transcript:

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