Are Taiwanese Persons ROC Citizens?
-- In Search of a Legal Basis for ROC Citizenship
Many people who are pushing for Taiwan to join the United Nations and other international organizations as an "independent sovereign state" stress that the "Republic of China on Taiwan" meets all the relevant criteria for statehood, including having #1 a permanent population, #2 a defined territory, #3 a government, and #4 the capacity to enter into foreign relations with other states.
However, new research on the internationally recognized laws of war, including the laws of military occupation, suggests that the ROC's so-called "permanent population" may be a case of mistaken identity. In other words, leading researchers are now suggesting that the legal basis for recognizing Taiwanese persons as having ROC citizenship is open to serious doubt.
Before going into a detailed discussion of this issue, some background information on the United States' role in the war against Japan is necessary for reference.
World War II in the Pacific
Taiwan had been ceded to Japan by China in the 1895 Treaty of Shimonoseki. After 1895, under international law, there is no doubt that Taiwan was a part of the Japanese Empire.
After the attack on Pearl Harbor, Hawaii, the United States Congress declared war against Japan on December 8, 1941. On the following day, December 9th, Chiang Kai-shek's Republic of China also declared war against Japan.
All military attacks on the four main Japanese Islands and (Japanese) Taiwan during the December 8, 1941 to August 15, 1945 period were conducted by United States military forces. The Republic of China military forces did not participate. Hence, in relation to Taiwan, the United States is the "conqueror."
After a thorough review of the specifications of General Douglas MacArthur's General Order No. 1 of Sept. 2, 1945, the question which must be asked is: "In these Pacific Ocean areas and environs, who is fulfilling the role of the occupying power as specified in the customary laws of warfare?"
Notes: Under the customary laws of warfare, legal relationships do not arise from a consideration of which army accepted the surrender of what other army, or which military troops were victorious in what particular battle, or what the composition of the Allies was at any particular point in time, or what intentions were stated in the surrender documents or other pre-surrender proclamations about the future disposition of territory, etc. Legal relationships arise from a consideration of "Who is the occupying power?" In the post-Napoleonic era, this goes back to a determination of "Who is the conqueror?"
As we know, President Harry Truman (dates in office: April 12, 1945, to Jan. 20, 1953) approved General Order No. 1 before its promulgation, the United States is the "conqueror" of Taiwan, and General MacArthur is the head of the United States military forces. Hence the strongest presumption would be that United States is the principal occupying power of Taiwan. Importantly, Article 23 of the post-war Senate ratified San Francisco Peace Treaty fully confirms this.
In fact, the terminology of the occupying power is used with only some minor variations in all relevant conventions and treaties which dictate international norms regarding the disposition of persons and property in areas under military occupation. For example, while Geneva Conventions generally refer to the occupying power, the Hague Conventions often speak of the occupying state. However, it is important to realize that in dealing with military occupation matters, the "law of agency" is always available. When the administrative authority for the military occupation of particular areas is delegated to allies, the terminology of the principal occupying power is most commonly seen, and a "principal - agent" relationship is in effect.
After this background discussion, the following points may be raised about the questionable legal basis for recognizing Taiwanese persons as "ROC citizens."
ROC Citizenship: A Questionable Legal Basis
- Under the customary laws of warfare, upon the surrender of Japanese troops the local populace in Taiwan will pass under a "temporary allegiance" to the conqueror, which in the post-Napoleonic era will be the principal occupying power. Moreover, the doctrine of "temporary allegiance" only exists in a single-tiered formulation. The historical record clearly shows that the United States was the "conqueror" of Taiwan, not the Republic of China.
- In General Order No. 1, General MacArthur gave directions to Chiang Kai-shek of the Republic of China to accept the surrender of Japanese troops in Taiwan. The Generalissimo accepted these orders. The surrender ceremonies mark the beginning of the belligerent occupation. The United States is the "conqueror" and the "principal occupying power." The Republic of China military forces are merely a "subordinate occupying power" under the USA.
- Although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the "legal basis" of native Taiwanese persons as having ROC nationality is a January 12, 1946, order issued by the ROC military authorities. However, that order was never ratified by the Legislative Yuan, nor made into a law. Importantly, as "belligerent occupation" of Taiwan began on October 25, 1945, with the surrender of Japanese troops, and only ended with the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952, such an order is prohibited. More specifically, the imposition of mass-naturalization procedures over the civilian population in occupied Taiwan territory is a war crime.
- Reference to the pronouncements of the US government, the British government, etc. in the late 1940's (and even into the 1950's) confirms that the leading Allied nations never recognized the legal validity of the mass naturalization of native Taiwanese persons as "ROC citizens" by the Chiang Kai-shek regime in the 1940's.
- Notably, Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record. Moreover, international law specifies that "military occupation does not transfer sovereignty." The proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, thus indicating a clear intention and objective to annex Taiwan territory, is a war crime.
- Article 26 of the SFPT serves to authorize the drafting of a peace treaty between the ROC and Japan. Article 10 of the Sino-Japanese Peace Treaty (Treaty of Taipei) of August 5, 1952 specifies: "For the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendents who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores)...."
The ROC Nationality Law was originally promulgated in February 1929, when Taiwan was a part of Japan. It was revised in February 2000, however there were no Articles addressing the mass naturalization of Taiwanese persons as ROC citizens. Hence, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan...." have yet to be fulfilled.
- Japanese Courts have held that the native persons of "Formosa and the Pescadores" were of Japanese nationality until the early Spring of 1952. In the SFPT, Japan renounced the sovereignty of Taiwan, but the ROC was not the recipient of this sovereignty. This is stated in Article 2b and confirmed in Article 21. Hence, according to the provisions of the SFPT, the Republic of China is not the legal government of Taiwan.
- For native Taiwanese persons to be bona fide ROC citizens, two conditions would need to be met. First, the SFPT would have to award sovereignty of Taiwan to the ROC and second, there would have to be a law passed regarding these mass-naturalization procedures, after the peace treaty came into effect on April 28, 1952. In fact, neither of these two conditions has been met.
- Importantly, the ROC Constitution does not clearly define its own "territory." By contrast, the Constitution of the United States specifies the inclusion of the original thirteen states, as well as additional states which have entered the Union via acts of Congress. In regard to territories over which other countries have relinquished sovereignty, and which have come under the jurisdiction of the United States, there are treaties which give the full specifications.
- The "Republic of China" Constitution currently in use in Taiwan was passed on December 25, 1946, when the Chinese Nationalist Party (KMT) still ruled China. It was promulgated on January 1, 1947, and came into force on December 25, 1947. It was brought over from Mainland China by the KMT during the Chinese Civil War period of the late 1940's. During this period of time, Taiwan was under military occupation, and had not been incorporated into Chinese territory. As such, this ROC Constitution, which is often called the "Nanjing Constitution", is not the true organic law of the Taiwan cession, and all relevant articles regarding "the people of the ROC" cannot be interpreted to apply to Taiwanese persons.
- With no clear legal basis to include "Formosa and the Pescadores" (aka Taiwan) in its definition of "national territory," and no international treaty references which can be found, it is extremely questionable to say that the ROC Ministry of the Interior is the "competent authority" to issue ID cards to Taiwanese persons, or that the ROC Ministry of Foreign Affairs is the "competent authority" to issue passports to Taiwanese persons.
- The military government of the principal occupying power does not end with the coming into force of the peace treaty. To date, no record can be found of a formal announcement of the end of United States Military Government in Taiwan. Under such circumstances, the subordinate occupying power ROC's enforcement of mandatory military conscription policies over the native Taiwanese populace in occupied Taiwan territory from the early 1950's up to the present is a war crime.
In the modern era, it must be recognized that the highest ranking document in regard to the legal position of "Formosa and the Pescadores" (aka Taiwan) and the nationality of native Taiwanese persons is the San Francisco Peace Treaty of April 28, 1952. Notably, under the United States' form of government (as specified in Article VI of the US Constitution), the content of the Senate-ratified San Francisco Peace Treaty has the same weight as the US Constitution.
More importantly, under international law, the specifications of the San Francisco Peace Treaty take precedence over the "intentions" expressed in the Cairo Declaration of Dec. 1, 1943, the Potsdam Proclamation of July 26, 1945, or the Japanese Surrender documents of Aug. 15, 1945. None of these documents, nor the promulgation of General Order No. 1 on Sept. 2, 1945, nor the holding of the Japanese surrender ceremonies in Taipei on Oct. 25, 1945, can possibly be interpreted to formally transfer the sovereignty of "Formosa and the Pescadores" to the ROC. As stated above, in the SFPT, Japan renounced the sovereignty of Taiwan, but the ROC was not the recipient of this sovereignty.
Former US Secretary of State Powell has a military background, and is familiar with the customary laws of warfare. On October 25, 2004, in a press conference in Beijing, he stated: "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."
As explained in this article, the legal basis for regarding Taiwanese persons as "ROC citizens" is highly questionable. As such, it can be held that the "Republic of China on Taiwan" lacks the permanent population necessary to be considered an independent sovereign nation.