Why Isn't the US Flag Flying over Taiwan?

by Richard W. Hartzell  

In a U.S. congressional hearing on May 10, 2006, Deputy Secretary of State Robert Zoellick gave a warning against separatist movements in Taiwan, cautioning the leaders of the "Republic of China" not to pursue an independence agenda in connection with their announced plans to revise the ROC Constitution.

Zoellick said that the US administration wanted to be "supportive of Taiwan while not encouraging those that try to move toward independence." He stressed that Taiwan will "keep hitting into a wall" if it continues to dispute the "One China Policy" under which Washington switched diplomatic recognition from Taipei to Beijing in 1979.

Increasingly, current US policy ignores the existence of the "Republic of China on Taiwan" and its democratically elected leaders. Many members of Congress criticize this policy as inappropriate and illogical, viewing it as primarily based on misguided attempts to appease the communist dictators in Beijing.

However, the logic of the Executive Branch's stance on the Taiwan issue can be found in an area of legal studies called the "customary laws of warfare," wherein there is a subset of norms called the "customary laws of flag raising."

The Customary Laws of Flag Raising

Most countries which have engaged in war in the last several hundred years have seen numerous instances of their flag flying over foreign territory. Nevertheless, it is probably a surprise to most persons that there are actually laws regarding such matters. For the most part, these laws have not been fully codified, hence they are referred to as "customary laws."

Looking back at the early days of the United States, there was a British invasion of Castine, Maine, during the War of 1812 and the British flag was raised. Such a military action is not "annexation," rather Britain's position as the conqueror means that Britain will be "the occupying power." Any matters regarding territorial cession are specified in a post-war peace treaty. In the Treaty of Ghent, this section of Maine was not ceded to the British, so of course the British flag came down and the US flag went back up.

However, even from this simple British example we can get an insight into certain "customary laws." Specifically, we see that
  1. territory can be "acquired" under the principle of conquest,
  2. the conqueror is "the occupying power,"
  3. the flag of the conqueror (i.e. the occupying power) should be raised at the surrender ceremonies,
  4. the correct disposition of conquered territory is "military occupation" followed by a peace treaty.
(Contrastingly, the announcement of the outright "annexation" of occupied territory is a war crime.)

Can such a customary law formulation help us to understand Japanese attacks on the USA after Pearl Harbor? During WWII, Japan acquired Guam and portions of the Aleutian Islands. These territories were under military occupation by Japan, but not annexed. Japan was the conqueror and the occupying power, so the Japanese flag was flying. Yes, our four point formulation works exactly.

What about US attacks on Japan? During WWII, the US acquired many overseas territories of Japan, and Iwo Jima was one famous example. The United States was the conqueror and the occupying power. The US flag was flying. In the post-war San Francisco Peace Treaty (SFPT), Iwo Jima wasn't a territorial cession, so US troops left the area, and the Japanese resumed control. Again, our four point formulation gives the correct framework.

Now let's turn to Formosa and the Pescadores, aka "Taiwan." Taiwan had been ceded to Japan in the 1895 Treaty of Shimonoseki. After Pearl Harbor, the United States declared war against Japan on Dec. 8, 1941. During the WWII period, all military attacks against (Japanese) Taiwan were conducted by US military forces, so it is clear that the USA acquired Taiwan under the principle of conquest. According to the customary laws of warfare, the United States is the conqueror and the occupying power. US military troops were in Taiwan in early September 1945.

However, at this point some unusual events occurred. Gen. MacArthur delegated the holding of the surrender ceremonies to Chiang Kai-shek of the Republic of China. After the surrender of Japanese troops in Taiwan on Oct. 25, 1945, the flag of the ROC was raised, and the ROC military forces announced "Taiwan Retrocession Day," saying that Taiwan had been annexed.

Clearly, these actions fall entirely outside of the four point formulation given above. While it is true that CKS held the surrender ceremonies on behalf of the Allies, nevertheless legally speaking the ensuing military occupation of Taiwan is being conducted on behalf of "the conqueror" and "the occupying power" - and that is the United States. The ROC is not "the occupying power," it is only "an occupying power," or more properly "a subordinate occupying power." The ROC is exercising delegated administrative authority for the military occupation of Taiwan under the United States Military Government (USMG). Announcement of the annexation of Taiwan territory is a war crime.

Taiwan under the SFPT

On Oct. 1, 1949, the People's Republic of China was founded, and in the ensuing months the remnants of the ROC government fled to occupied Taiwan. Some two years later, in late April, 1952, the SFPT came into force. Japan renounced the sovereignty of Taiwan, but no receiving country was designated. Hence, Taiwan remained under the administrative authority of USMG. Surprisingly however, the flag of the ROC continued to be displayed everywhere.

Iwo Jima wasn't ceded to the United States, so of course the US flag came down. Taiwan wasn't ceded to the ROC, so why is the flag of the ROC government in exile still flying? Where is the flag of the United States military authorities? That's the same flag that US civilians know as "the star-spangled banner."

As we get nearer to Flag Day on June 14, this is one question which all patriotic Americans should be seriously concerned about: "Why isn't the US flag flying over Taiwan?"


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