Letters and Commentary

Independence? Ask the US

TAIPEI TIMES, Mar. 21, 2006, page 8

Gilles Chartrand's letter (Letter, March 18, page 8) highlights most Westerners' complete ignorance about Taiwan and China. While he notes that "Quebec and Taiwan are both democratic societies," he then adds the curious statement that "They both have a percentage of their citizenry that wants to leave a larger entity."

For Chartrand's information, Taiwan is not a part of China. Since the founding of the People's Republic of China (PRC) on Oct. 1, 1949, that nation has ruled Taiwan for a total of 0 hours, 0 minutes and 0 seconds.

Admittedly, there is much confusion about this aspect, since the government in Taiwan continues to call the country the "Republic of China" (ROC). When the representatives of Chiang Kai-shek accepted the surrender of Japanese troops on Oct. 25, 1945, they declared it "Taiwan Retrocession Day," saying that its territorial sovereignty was given to China on that date.

However, in order for such an interpretation to be true, then US president Harry Truman and General Douglas MacArthur should have had the authority to transfer the territorial sovereignty of Taiwan to the Chinese nationalists. In fact, they had no such authority.

When Truman and MacArthur drafted General Order No. 1, the only authority they had was to direct Chiang's military forces to come to Taiwan to accept the surrender of Japanese troops. The surrender ceremonies mark the beginning of the military occupation of Taiwan, nothing more nothing less.

Since all military attacks against Taiwan (and indeed against the four main Japanese islands) from 1941 to 1945 were conducted by US military forces, it is clear that the US was the "conqueror." In the military occupation of Taiwan, the US was the principal occupying power. In contrast, the military troops under Chiang were only a subordinate occupying power.

The PRC was founded in the fall of 1949, and high-ranking officials of the ROC government fled to Taiwan to become a government in exile. Hence, even up to the present day, the ROC only has "effective territorial control" over Taiwan, but does not hold Taiwan's territorial sovereignty. That territorial sovereignty is held by the US Military Government.

In summary, if Taiwan wants to be independent, it should be talking to members of the US Congress (who have jurisdiction over Taiwan under the territorial clause of the US Constitution), and not holding street demonstrations against the misguided policies of the PRC, or listening to the ramblings of uninformed political commentators who suggest that Taiwan has a need to clearly establish its separate identity from the PRC.

   by Roger C. S. Lin

Taiwanese should seek US Constitutional rights

ASIA TIMES, Jan. 31, 2004

We can construct a simple model of modern Taiwan history which will help us better understand the status quo as viewed by the United States government.

We must begin at the close of World War II, after the dropping of atomic bombs on Japan. There is the necessity of handling the surrender of Japanese troops and the military occupation of each locale. Over such a broad geographic area, it will be necessary to determine the "principal occupying power" to deal with these issues. In General Order No 1 of September 2, 1945, General Douglas Macarthur, whom in today's terminology we would call "leader of the coalition forces", directed the military troops under his command to handle all related details. A law of war analysis shows that Macarthur is acting in his position as head of the United States Military Government (USMG), in issuing this general order.

The representatives of Chiang Kai-shek (CKS) were directed to accept the surrender of Japanese forces in "Formosa and the Pescadores" (hereinafter referred to as "Taiwan"). When CKS' representatives finally did get to Taipei, Taiwan, and accept the Japanese surrender, they immediately claimed that day of October 25, 1945, as "Taiwan Retrocession Day", and stated that Taiwan was returned to the Republic of China based on the Cairo Declaration, the Potsdam Proclamation, and the terms of the Japanese surrender documents signed on the USS Missouri.

Even though many scholars have argued about the legal validity of such actions for decades, in fact no argument is necessary. According to the Hague Conventions, and accompanying Hague Regulations of 1907, "territory is considered occupied when it is actually placed under the authority of the hostile army". This, along with the fact that "occupation does not transfer sovereignty", are accepted principles of the law of war, and its subset: the law of occupation.

Although the Chinese history books state that CKS' representatives came to Taiwan on their own initiative, in fact they were exercising delegated administrative authority for the occupation under USMG. According to the fiduciary relationship established under the law of occupation, USMG holds the sovereignty of the area in trust in its position as "principal occupying power." October 25, 1945, clearly marks the beginning of the period of belligerent occupation.

Post-World War II legal issues for Taiwan

In this type of scenario, after the surrender of Japanese troops in Taiwan, we have several legal issues to deal with:
  • The determination of the "lawful government" of Taiwan;
  • The end of US military government in Taiwan;
  • The transfer of sovereignty to the "lawful government" of the area.
In the post-war peace treaty, we would normally expect to see explicit provisions for the handling of the occupied territory. However, in the San Francisco Peace Treaty (SFPT), which came into effect on April 28, 1952, Article 2b only states: "Japan renounces all right, title and claim to Formosa and the Pescadores." No specification was made about to which government these areas were ceded.

Taiwan President Chen Shui-bian and his advisors today interpret this clause to mean that the sovereignty of Taiwan has been returned to the Taiwanese people, however, under the law of war such an analysis is incorrect. The cession of territory is from "government" to "government". Hence, a more coherent analysis of SFPT Article 2b would hold that the "lawful government" of Taiwan had not yet been determined as of April, 1952. In such a situation, military occupation continues, but we call this "friendly occupation", or more properly "the civil affairs administration of a military government".

Since Taiwan was not ceded to the Republic of China in the SFPT, it remains under the administrative authority of the principal occupying power, which is the US, as per Article 23. This is further clarified by Article 4b, which states: "Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3."

If the lawful government of Taiwan was undetermined as of April, 1952, when was it determined? In over-viewing all relevant documentation, we find the Shanghai Communique of 1972, which stated there is only one China, and the People's Republic of China is the sole legitimate government of China. In that communique, the US also reaffirmed its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.

Shanghai Communique leaves unification to be negotiated

The relevant clauses of this 1972 communique conveniently serve the purpose of a civil affairs agreement under the law of occupation to arrange the transfer of territory to the "lawful government" of the area. No timetable was specified, hence the determination of the exact date for this expected "unification" has been left up to negotiations between officials on both sides of the Strait. Here in 2004, it is clear that the PRC officials would like to see quicker action on this matter, while the Taiwanese officials would prefer that any actions toward unification be put off further into the future.

At some point in the future, when the Taiwan and PRC officials do come to the negotiating table, it can be expected that Taiwan will have to agree to the "one country, two systems" model. When the two sides finally unify, the US administrative authority over Taiwan will be supplanted, and the transfer of Taiwan's sovereignty to the PRC (ie "the lawful government of the area") will be completed with the agreement of the Taiwanese themselves. At that point the US will offer its blessings.

By using law of war principles to construct this simple model of modern Taiwan history, we can review various US actions over the past 50 years and we find them in perfect agreement with this model's parameters. In addition to the Shanghai Communique's specifications mentioned above, the diplomatic break with the Republic of China (ROC) on Taiwan in late 1978, the promulgation of the Taiwan Relations Act, President Reagan's Six Assurances, President Clinton's Three Nos, and the current pronouncements of the Bush administration on the Taiwan question all dovetail nicely.

The ROC on Taiwan currently has (a) permanent population, (b) defined territory, (c) government, and (d) the capacity to enter into relations with other states [international legal standards by which nationhood is adjudged], yet it is not considered a "sovereign nation" by the United Nations. In other words, the world community does not consider that the "sovereignty" of Taiwan is held by the Taiwan governing authorities. Considering that the PRC does not currently exercise any administrative authority over Taiwan, this model also gives us an answer to the perplexing question of where Taiwan's sovereignty currently is.

Are there are "two equal governments" on each side of the strait, as the Taiwanese officials claim? Or is the ROC on Taiwan merely a "government-in-exile"? What is the proper format for Taiwan to apply for membership in the World Health Organization? Will Taiwan's bids to join the UN be successful? We can evaluate all of these topics with this model (based on law of war principles).

1952 treaty giving US authority over Taiwan still valid

In summary, under the terms of the San Francisco Peace Treaty of 1952, the US's administrative authority over Taiwan is still active, even here in 21st century. However, as of 1972, the US has placed Taiwan on a "flight path" for eventual unification with the PRC. This defines the status quo from the US perspective. Based on this realization, an evaluation of what the White House or the State Department mean when they dissuade either Taiwan or the PRC to undertake any "unilateral moves to change the status quo" is easy.

The PRC must hold to the preconditions of not using force or coercion, and Taiwan should not deviate from the "flight path" which was previously determined for it.

In the Insular Cases of the early 1900s, the US Supreme Court developed the idea that, without any action by the Congress, "fundamental rights" under the US Constitution are available in all areas under the jurisdiction of the US, but that other rights apply only when extended to such areas by law. As recently as 1990, in United States vs Verdugo-Urquidez, it was reaffirmed that, "It is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power."

Question: What would be the reaction of Washington if the Taiwanese, being under US administrative authority during this period of interim status under the law of occupation, demand their "fundamental rights" under the US Constitution?

The US Constitution grants Fifth Amendment rights to life, liberty, property, and due process that are certainly considered "fundamental". In addition, there is the US Constitution's basic Article 1 stipulation that the US Congress will provide for the "common defense". The Congress established the War Department in 1789, and this was reorganized as the Department of Defense in 1949.

Afghanis and Iraqis who are held by US authorities know enough to ask for their US Constitutional rights. When will the Taiwanese start asking for theirs?

   by Richard W. Hartzell

A Framework for Taiwan's "Non-Independence"

EPOCH TIMES, Dec. 7, 2004

In a TV interview in Beijing, China, on October 25, 2004, Secretary of State Colin Powell issued unusually straightforward remarks by saying "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy." This is the most robust language that he has used to deny Taiwan's current claims of sovereignty.

Not unexpectedly, Secretary Powell's remarks drew strong criticism in Taiwan. Numerous legislators of every camp quickly pointed out that Taiwan has a permanent population, defined territory, and a fully functioning government, plus diplomatic relations with 26 countries. Based on these "Montevideo Convention criteria," they stress, Taiwan is a sovereign entity.

Of vital interest to the Taiwanese, Secretary Powell has not revealed why the US maintains that Taiwan does not enjoy sovereignty as a nation. Is this more of the "creative ambiguity" of the PRC - Taiwan - USA relationship which has developed since the early 1970's? Commenting on this, in the same interview, the Secretary clarified: "It is often conveyed as ambiguous, but I think it is pretty clear. Everyone has understood what it meant for the last thirty years. And it has allowed Taiwan to be successful."

With President Bush elected to a second term, and Dr. Condoleezza Rice most likely to take over as the new Secretary of State, Taiwanese are nervous to see if there will be any substantial changes in US íV Taiwan -- PRC relations in the near future. The Taiwanese are secretly hoping that someone in the new administration will "see the light" and force the State Department to retract Secretary Powell's overly blunt comments. However, realistically speaking, it is highly unlikely that the State Department will issue any full scale retraction, simply because examination of recent history shows the reasoning behind the Secretary Powell's remarks to be entirely accurate.

In order to correctly interpret that recent history, however, we must examine it from a military, not a civilian, viewpoint. Essential details are as follows: In 1895, the Qing Dynasty ceded Taiwan to Japan. In late November, 1943, the US, UK, and Republic of China (ROC) held the Cairo Conference, in which (according to the Chinese reasoning) it was agreed that Taiwan would be "given back" to China after the War.

In September 1945, General MacArthur directed the representatives of Chiang Kai-shek (CKS) to go to Taiwan and accept the surrender of the Japanese. The surrender date of October 25, 1945, is what the Chinese history books have traditionally termed "Taiwan Retrocession Day." According to civilian Chinese scholars, this date was the fulfillment of the "promise" as stated in the Cairo Conference to "give Taiwan back to China."

However, from the military viewpoint, this analysis does not conform to the "customary laws of warfare" in the post-Napoleonic era. As codified in the Hague Conventions of 1907, "Territory is considered occupied when it is actually placed under the authority of the hostile army." Under international law, recognized by all nations, "military occupation does not transfer sovereignty." Thus, October 25, 1945, can only be viewed as the beginning of military occupation of Taiwan. Although there was no transfer of sovereignty, the ROC government forces did begin to exercise "effective territorial control" over Formosa and the Pescadores on that date.

The historical background provides the rational for this conclusion. All attacks on Japanese installations and fortifications in Taiwan during WWII were done by United States military forces. Based on the precedent in the Mexican - American War (in regard to California), and the Spanish - American War (in regard to Puerto Rico and Cuba), the United States is "the (principal) occupying power." When General MacArthur, head of the United States Military Government (USMG), directed the ROC troops to come to Taiwan and handle the surrender ceremonies and other details, the United States was fulfilling its role as the principal occupying power, and delegating the role of subordinate occupying power to the ROC. This is simply a "principal - agent" relationship.

Four years later, the ROC government fled to Taiwan in late 1949. In Article 2b of the April, 1952, San Francisco Peace Treaty (SFPT), Japan ceded the sovereignty of Taiwan, but no specification was made about the "receiving country." However, Article 23 re-clarifies that the US is the "principal occupying power," and in Article 4b, USMG is given "disposition rights" over Taiwan.

Chinese and Taiwanese legal scholars don't differentiate between exercising "effective territorial control," and exercising "sovereignty," but the United States and most other world nations do. This presents a dilemma. In order for the Taiwan governing authorities' claims of exercising sovereignty over Taiwan to be considered valid, it would be necessary for the US State Department to admit: "The sovereignty of these areas was not awarded to the ROC in the post-war peace treaty, but that is irrelevant! We are happy to announce that we are accepting the Taiwanese assertions that their ownership claims are legitimate!" Clearly, that is not going to happen. After all, the SFPT is a Senate ratified treaty. Moreover, international legal scholars who have considered Taiwan's historical development in detail have to admit that the Montevideo Conventions four criteria for delineating a "sovereign nation" are much too unspecific to deal with complicated situations of territorial cession, military occupation, or governments in exile.

When the ROC left mainland China 1949, its government leaders (headed by CKS) considered their actions entirely legitimate, but in fact it was newly establishing "central government operations" in an area which its troops were holding under military occupation. Many researchers have pointed out that at this juncture the ROC became a government in exile, but most of them have missed the fact that the ROC's true legal position in Taiwan is simply that of a "subordinate occupying power." These researchers then fail to take the next step and arrive at a conclusion for the decades old quandary of what Taiwan's true international legal status is.

That the United States still exercises administrative authority over Taiwan is both verified by the provisions of the SFPT, as mentioned above, and the fact that the Taiwan Relations Act is a domestic law of the USA. In essence, Taiwan is "foreign territory under the dominion of the United States." Based on this realization it is easy to see that the US government's insistence on the "One China Policy," while at the same time refusing to offer support for Taiwan's repeated applications to enter the United Nations, is entirely correct.

The Secretary of State, coming from a military background, sees all this analysis instinctively. However, more clarifications will be needed to let the Taiwanese fully understand their international legal situation, and to help them focus their efforts within this framework to maintain peace in the Taiwan Strait.

   by Richard W. Hartzell

Taiwan belongs to US

TAIPEI TIMES, Mar 19, 2005, page 8

I enjoyed Frank Chiang's article ("Sadly, Taiwan is not a state," March 12, page 8). Chiang makes a number of excellent points. However, his conclusion is not powerful enough.

For a solution to Taiwan's current international identity crisis, he suggests that "All the government in Taiwan has to do is announce that the people of Taiwan have no desire to unify with China."

While no doubt well-intentioned, it is highly unlikely that such an announcement will have any greater effect than previous announcements opposing the placement of hundreds of Chinese missiles pointed directly at Taiwan. To my knowledge, such pleas to the international community, international organizations, human rights groups and so forth have been completely futile.

Before I outline how Chiang's arguments could lead to a much stronger conclusion, let me first review some basic history of the Spanish-American War. That war began in early 1898, and Cuba was completely under the authority of invading US military forces upon the surrender of Spanish troops there on July 17, 1898. The peace treaty (Treaty of Paris) was signed in December 1898 and came into effect on April 11, 1899. Spain ceded Cuba, but no "receiving country" was specified.

At the time, the consensus of the international community was that Cuba should be an independent country. Hence, the Cuban people were involved in nation building for the next few years.

On May 20, 1902, Cuban independence was recognized, the US flag came down, and the Republic of Cuba flag went up. In this simple sequence of events, we see an outline of how the sovereignty of Cuba was transferred from Spain to the Republic of Cuba via the US military administration.

More specifically, in the post-Napoleonic period, international law recognizes that "territory is considered occupied when it is actually placed under the authority of a hostile army." All military attacks against Spanish installations and fortifications in Cuba were conducted by US military forces, hence the US was the principal occupying power.

This is very close to Taiwan's situation after World War II, and so we can call this a "limbo cession." Unfortunately, the Taiwanese people don't understand how the sovereignty of Cuba was transferred from Spain to the Republic of Cuba between the period of 1898 to 1902. As such, it is impossible for them to understand Taiwan's current international legal status.

As a basic orientation, remember that "military occupation" is conducted under military government, and for the US this is the US Military Government (USMG). Military occupation may be conducted directly or delegated, and hence, the principal occupying power can be considered a subordinate occupying power. The subordinate occupying power is merely acting as an "agent."

For the Cuban people, it is important to note that "Cuban independence" was only one possible outcome of the Spanish-American War. Looking at three types of "limbo cession" scenarios, we see how Cuban independence might have evolved. In the first scenario, suppose that in early 1899, two separate groups began "nation building," by establishing a Congress, drafting a constitution, selecting presidential candidates, writing draft laws and so on. One group might have been in eastern Cuba while the other in western Cuba. In other words, two new "governments" emerged. Who would have decided which "government" is the lawful authority?

In the second scenario, suppose that in early 1899 the Cuban social situation had degenerated into "warring tribes." Although the consensus of the international community was that Cuba should be an independent country, since it had degenerated into warring factions, and no "government of Cuba" was emerging. Who would have decided which was the lawful government of the area?

Scenario three: As an additional complication to either of the above situations, suppose that in 1898 the USMG had delegated the occupation of a number of outlying islands to Venezuelan military forces. At this point the president of Venezuela might suggest to the US president: "Why don't you just let us take over the island of Cuba? Our people share many of the same cultural, religious, and other values with the Cubans, and I am sure they would be happy under our government." Who would have decided whether to adopt this proposal?

The answer to the above question are the same -- the principal occupying power decides. In this situation, the US is the occupying power. In terms of a chain of command, who is at the head of this military power structure? Of course it is the US president, and indeed under the Constitution he has plenary power over foreign affairs.

Let us summarize and clarify all the above before we turn to Taiwan's situation: First, the flag of the principal occupying power should be raised when territory is actually placed under the authority of the hostile army, and this is the beginning of "military occupation." Second, under international law, a military occupation does not transfer sovereignty. Third, it is up to the occupying power to relinquish control to the lawful government of the area. Fourth, in the peace treaty, a "cession of territory," with or without a "receiving country," is easily understood under the laws of war. The designation of a "receiving country" merely means that this country is authorized to establish a civil government in the area.

Fifth, when no "receiving country" is specified, the occupying power will make the final determination of the disposition of the territory. Sixth, since the occupying power has "disposition rights" over the territory, we can say that it is holding the territorial sovereignty in trust. After Cuba came under military occupation by the US and before it was relinquished to the lawful government of the area, the territorial sovereignty of Cuba must be discussed in terms of a fiduciary relationship. The US was the trustee and the people of Cuba were the beneficiaries. The "territory of Cuba" is the trust corpus. Seventh, military government continues until legally supplanted. Eighth, before the end of US military occupation of Cuba, the island was not a sovereign nation.

With keeping this detailed analysis of Cuba in mind, let us turn to Taiwan's situation. During World War II, all military attacks against Japanese positions in Taiwan were conducted by US military forces. Hence, the US was the principal occupying power. Taiwan was administered separately from Japan, and the USMG delegated the administration of Taiwan to Chiang Kai-shek.

On Oct. 25, 1945, Taiwan came under the authority of the hostile army. Chiang called this "Taiwan Retrocession Day," and raised the ROC flag. However, this entire procedure is incorrect, because this date merely marks the beginning of military occupation and not the transfer of sovereignty. The flag of the principal occupying power should have been raised, and the ROC flag would (at most) be the second flag on the flagpole. As with Cuba, the territorial sovereignty was held in trust by the principal occupying power.

Taiwan's international legal position is that of an independent customs territory under US control, with administration delegated to Chiang. As of late 1949, the ROC was a government in exile exercising territorial control over a geographic area where it did not possess sovereignty. According to the San Francisco Peace Treaty, which came into effect on April 28, 1952, Taiwan is in "limbo cession," as spelled out on Article 2b. The US is the principal occupying, as stated in Article 23. The USMG has the authority to make final disposition of Taiwan, as per Article 4b. Hence, as of late April 1952, Taiwan is the unincorporated territory of the US, and the US flag should be flying.

Under the law of occupation, Taiwan has not reached its final status. The USMG in Taiwan has not ended, and the territorial sovereignty is still held in trust by the principal occupying power.

The statement in Frank Chiang's article that "the island has become a territorial entity not subject to any sovereignty," is incorrect. Since Feb. 28, 1972, the PRC has been recognized as the lawful government of the area and a "one China" policy came into effect. Taiwan has been put on a flight path for eventual unification with the China. The fact that the Chinese government does not practice the virtues of freedom and democracy (which are core values of the US system of government) is essentially irrelevant under this legal formulation.

As a verification of the above analysis, former US Secretary of State Powell said that Taiwan is not a sovereign nation. Obviously, the ROC is a government in exile and has no international legitimacy. However, Taiwan's current international identity crisis is easily solved as follows: the Taiwanese people must demand that the US choose to relinquish the territorial sovereignty of Taiwan to its people. Then Taiwan will be an independent nation. Or, the US president and secretary of state must admit that Taiwan is an overseas territory of the US, and that Taiwan's defense and diplomatic affairs should be handled by the US government, while Taiwanese people are entitled to hold a form of "US national non-citizen passport."

I believe that I summarized many of these points in my letter published on Nov. 13, 2004 entitled "US holds nation's sovereignty," although that analysis may have been too brief for many readers to fully understand. My 9,000-word research paper entitled "Understanding the SFPT's Disposition of Formosa and the Pescadores," published in the Harvard Asia Quarterly, Fall 2004 edition, goes into much more detail.

   by Richard W. Hartzell

US holds nation's sovereignty

TAIPEI TIMES, Nov 13, 2004, page 8

Regarding the dispute over Taiwan's sovereignty which has recently made headlines, I offer the following analysis.

Let's first consider the Cairo Declaration, Potsdam Proclamation and Japanese surrender documents. Do these have the force of an internationally binding treaty arrangement to formally transfer the sovereignty of "Formosa and the Pescadores" to the Republic of China (ROC)?

No, they are only statements of "intent." Hence, we can analyze the Taiwan sovereignty question in three steps.

Step 1: From international law it is easily seen that Oct. 25, 1945 marks the beginning of the military occupation of "Formosa and the Pescadores" by the ROC. Military occupation does not transfer sovereignty.

Step 2: When the government of the ROC fled to Taiwan in late 1949, it became a "government-in-exile." The ROC continued to exercise "effective territorial control" over this area which it was holding under military occupation.

Step 3: In the post-war San Francisco Peace Treaty and Sino-Japanese Peace Treaty, the sovereignty of Taiwan was not awarded to the ROC.

Hence, Secretary of State Powell is correct, Taiwan does not enjoy sovereignty as a nation.

So where is the sovereignty of Taiwan?

Again, we may obtain the answer in three steps.

Step 1: All attacks on Japanese fortifications and installations in Taiwan during WWII were carried out by US military forces.

According to the "customary laws of warfare in the post Napoleonic period," the US will be the principal occupying power.

Step 2: General MacArthur, head of the United States Military Government, delegated matters regarding the Japanese surrender ceremonies and occupation of Taiwan to Chiang Kai-shek.

This is simply a "principal" to "agent" relationship.

Step 3: In the post-war peace treaties, the sovereignty of Taiwan was not awarded to the ROC, hence Taiwan remains under the administrative authority of the United States Military Government, and this is an interim status condition. In the San Francisco Peace Treaty, Article 4b clearly states that the United States Military Government has final disposition rights over "Formosa and the Pescadores."

In addition, Article 23 reconfirms the US as the principal occupying power.

In effect, the US is holding the sovereignty of Taiwan "in trust," and in the Shanghai Communique the US president is making arrangements for the future handover of this sovereignty to the People's Rebpublic of China, which is recognized as the sole legitimate government of China! However, at the present time, Taiwan is still under US administrative authority, and should be enjoying "fundamental rights" under the US Constitution, as in all other US overseas territories.

Based on the insular cases of the Supreme Court, (and especially Gonzales v. Williams, 1904) in regard to Puerto Rico, after the treaty cession, when Puerto Rico was under United States Military Government (before the promulgation of the Foraker Act, May 1, 1900) the local people were "island citizens of the Puerto Rico cession."

Hence, in Cuba, after the coming into effect of the treaty, when Cuba was under United States Military Government (before independence on May 20, 1902) the local people were "island citizens of the Cuba cession."

In Taiwan, after the coming into effect of the San Francisco Peace Treaty, with Taiwan under the administrative authority of the United States Military Government, the local people are "island citizens of the Taiwan cession."

Of course, the US flag should be flying. Taiwan is foreign territory under the dominion of the US, or more technically a "quasi-trusteeship of insular status under the United States Military Government." The passport issued to Taiwanese citizens would be similar to a "trusteeship" one, and would fall under the category of "US national, non-citizen."

This is a jus soli nationality based on the US Supreme Court's insular cases, and not based on the 14th Amendment to the US Constitution.

Taiwan's citizens do not (will not) have voting rights in US federal elections.

   by Richard W. Hartzell

Taiwan's legal standing

TAIPEI TIMES, May 16, 2005, page 8

For over fifty years large numbers of people have complained about the inadequacy of "international law" to clearly define the international legal status of Taiwan. Here on our beautiful island, this has had the unfortunate effect of discouraging people to study "international law," because it is felt to be useless. At present, this mindset is quite widespread among the Taiwanese populace, and in fact even among foreigners. For example, in "Letters to the Editor," or in online discussion forums, blogs, etc we often see remarks such as "all those laws, agreements, communiques, etc don't mean anything anymore," or "those old treaties no longer have any validity," and "all those legal details are nonsense," and so forth.

In fact, nothing could be further from the truth. Most importantly, the continuous stream of pronouncements to the effect that "Taiwan is already independent" are not going to win wide acceptance in the world community simply because the legal record shows otherwise. In a nutshell, the "sovereignty" of the former Formosa and the Pescadores was not transferred to the Republic of China in the post-World War II treaty.

Additionally, since the correct legal interpretation of Oct. 25, 1945 is merely the beginning of the military occupation of Taiwan, and "occupation does not transfer sovereignty," the "Republic of China" (ROC) is on very shaky legal ground when it claims to have its own "territory" (as one of the components necessary for statehood). To the casual observer it may appear that the ROC has its own territory, but in fact there has never been an internationally recognized "transfer of title," and without that the ROC (or "Taiwan" for that matter) will never be able to gain wide international recognition.

From the end of the Napoleonic era to the present, all valid territorial cessions have had a clear and unambiguous transfer of title. Taiwan is a territorial cession, and without such a definitive transfer of title, the ROC government cannot legally claim to have ownership (ie, sovereignty) over Formosa and the Pescadores.

Such arguments as "twenty years of democratic development have already made Taiwan into a fully sovereign democratic nation" are of no value, because there is no existing precedent of that nature.

However, as stated above, there is much existing legal precedent to say that a territorial cession, in order to be considered valid, must have a clear and unambiguous transfer of title. I mentioned this crucial fact in a previous letter entitled "A question of sovereignty" (Letters, page 8, Nov. 8, 2004) but unfortunately this was ignored because most readers prefer to think that "all those legal details are nonsense."

But, if the results of the lobbying, parading, speech-making and so on of the past thirty or more years are any indication, I believe that the only possible way out of Taiwan's current "identity crisis" is to find a workable solution under international law.

Such a legal solution will undoubtedly not be full "Taiwan independence," but it may be something very close, such as a self-governing territorial status. If such a self-governing territorial status could be firmly established, then the prospect of full "Taiwan independence" might be attainable thirty years or more down the road.

What options are available? If the people of Taiwan are uncomfortable in joining up with the People's Republic of China, and afraid of having their hard-won freedom and democracy snuffed out, why not join the US? As I pointed out in my Harvard Asia Quarterly article (Fall 2004), it is necessary to read the San Francisco Peace Treaty (SFPT) with a "military mindset" in order to fully understand it. After considering such fundamental aspects as military government, occupation, flag, allegiance, territorial cession and others, it is easy to make a case under both international law and US constitutional law that the US' administrative authority over Taiwan is still active.

Who liberated Iwo Jima? What flag went up there? I think the readers of this newspaper know the answer. Who liberated Taiwan in the 1941 to 1945 period? It was the US. Why didn't the US flag go up on Oct. 25, 1945? When General Douglas MacArthur directed the representatives of Chiang Kai-shek to come to Taiwan to accept the surrender of the Japanese troops, is that equivalent to authorizing the transfer of sovereignty? Certainly not. Under existing military law and military precedent, the correct procedure would have been to have the US flag flying highest, and the ROC flag flying a bit lower, thus clearly distinguishing their different statuses. One represents the "principal occupying power" and the other the "subordinate occupying power."

In Article 2b of the post-war SFPT, Japan renounced the sovereignty of Formosa and the Pescadores, but no receiving country was specified.

That clause has puzzled civilian legal researchers for over fifty years but it is easily explained if you have a military mindset. By examining the handling of territorial cessions in the Mexican-American War and the Spanish-American War we quickly see that "The military government of the principal occupying power does not end with the coming into force of the peace treaty."

So what flag should have been flying over Taiwan on April 28, 1952 when the SFPT came into force? It is the US flag. Why didn't it happen? That would be a good question to ask at the regular US State Department press briefings in Washington.

When the Shanghai Communique was drafted in 1972, and it was decided that Taiwan should be recognized as a part of China, were the Taiwanese people consulted? Today, concerned individuals could make a very strong case in the US Federal Court system that over the last thirty or more years the State Department and the Oval Office have conspired to systematically deny the Taiwanese people their "fundamental rights" under the US Constitution.

In summary, in order for Taiwan to have a brighter tomorrow, what is needed is solid legal arguments and swift legal action.

   by Richard W. Hartzell

Sovereignty a tough question

TAIPEI TIMES, July 4, 2005, page 8

I read Dennis Hickey's letter (Letters, June 29, page 8) with much interest. Hickey has provided a very lucid analysis of some of the key international legal perspectives which have a great bearing on the Taiwan sovereignty issue.

From the content and tone of Hickey's letter, it is clear that he hopes that the Taiwanese people can have a bright future under a democratic government, and that peace, stability and prosperity in the Western Pacific can be maintained. I am sure that the readers of this newspaper, myself included, also share in these hopes.

Nevertheless, I must point out the arguments advanced in his letter are not persuasive. I have no doubt that Hickey is sincere. The problem does not rest with the thoroughness of his analysis, rather it rests with the underlying legal assumptions.

Specifically, Hickey and many other contributors to the Taipei Times editorial page before him have consistently made reference to the Montevideo Convention on the Rights and Duties of States. Perhaps it will come as a surprise to them that anyone could state that the formulation in this Montevideo Convention is "incomplete."

However, it clearly is. I believe that everyone who is interested in a democratic future for Taiwan should consider this aspect in some detail. An example is easily given as follows. Let us suppose that there was a war in Southeast Asia, and the military forces of Holland were fighting Indonesia. Further let us suppose that in the battle for Sumatra, Holland had been allied with Malaysia. Military forces from Holland and Malaysia were fighting together in the archipelago, and after several months of heavy aerial and naval bombardments by Holland, the Indonesian commanders on Sumatra agreed to surrender.

At this point we can imagine that Holland's military forces still had additional operations to take care of in nearby geographic areas. Hence, the Dutch general would direct that senior Indonesian commanders and all ground, sea, air and auxiliary forces within Sumatra surrender to Malaysia's military forces, and that Malaysia should take charge of the administration of the island.

Moreover, let us imagine that five years later (before the post-war peace treaty is written) there is a coup d'etat in Malaysia, and a number of high-ranking government officials and military personnel all flee to Sumatra. At this point it might be expected that the old Malaysian government which has established itself in Sumatra still has full diplomatic relations with thirty or more countries. An important question is: Can we consider "Malaysia in Sumatra" to be an independent and sovereign nation?

Consider the entire situation from the point of view of the local Sumatrans. What would they say about the legitimacy of the Malaysian government which has established itself in Sumatra? But with reference to Article 1 of the Montevideo Convention (which entered into force on December 26, 1934), "Malaysia in Sumatra" does indeed meet the four criteria of having (a) a permanent population, (b) a defined territory, (c) a government and (d) the capacity to enter into relations with other states.

A closer examination of the facts, however, shows that "Malaysia in Sumatra" is only a subordinate occupying power and a government in exile. It has effective territorial control over Sumatra, but does not have sovereignty. Indeed, the local Sumatrans would probably be glad for the Malaysians to move to Paris, Rome, London, or some other city and establish their government in exile there. However, it is unlikely the Malaysians would leave.

Hence, I would maintain that the four criteria of the Montevideo Convention are clearly incomplete. For complex situations which involve (1) military occupation, (2) governments in exile, or (3) territorial cessions with no clear transfer of legal title, the Montevideo Convention gives a "false reading."

This is exactly the problem with Taiwan. Under the customary laws of warfare of the post-Napoleonic period, it is clear that Oct. 25, 1945, can only be regarded as the beginning of the military occupation of Taiwan. In late 1949, the remnants of the ROC government fled from China and came to Taiwan, thus becoming a government in exile. In the postwar San Francisco Peace Treaty, Japan renounced the sovereignty of "Formosa and the Pescadores," but no receiving country was specified. Some researchers still maintain that that the ROC has been an independent sovereign state since its establishment in 1912, but conveniently fail to consider that the ROC did not include Taiwan in that era. China had already ceded Taiwan to Japan in the 1895 Treaty of Shimonoseki.

I believe that the above brief overview clearly illustrates the reasoning behind then US secretary of state Colin Powell's statement on Oct. 25, last year, that "Taiwan does not enjoy sovereignty as a nation." Powell's statement was correct. Those scholars or government officials who would claim otherwise are only considering "half" of the entire body of international law, ie, the portions concerned with peacetime matters and which primarily deal with civilian issues. They are failing to consider the customary laws of warfare, which include the Hague Conventions, Geneva Conventions, related international court decisions, the law of nations in regard to military issues, and so on.

   by Richard W. Hartzell

Sovereignty explored online

TAIPEI TIMES, Sep. 12, 2005, page 8

I have seen some recent comments in the local newspapers about a new argument between Chinese Nationalist Party (KMT) Chairman Ma Ying-jeou and Vice President Annette Lu regarding the international legal status of Taiwan.

Under international law, the territorial sovereignty of Taiwan was owned by Japan from 1895 until late April 1952. Ma's statement that the territorial sovereignty of Taiwan was transferred to the Republic of China (ROC) via the Cairo Declaration, the Potsdam Proclamation, and/or the Japanese surrender documents is totally incorrect.

In the post-Napoleonic period, the sovereignty of territory is transferred by treaty.

I have produced a chart which explores this topic in detail. It is entitled "Examination of Taiwan's Territorial Sovereignty and the ROC's International Legal Position," and is available at http://www.taiwanadvice.com/examlegal.htm

   by Richard W. Hartzell

No grounds for issuing IDs

TAIPEI TIMES, Oct. 4, 2005, page 8

The Ministry of the Interior has been making plans to issue new ROC ID cards for more than a year. In connection with the new procedures, the Council of Grand Justices has recently ruled that compulsory fingerprinting is unconstitutional.

However, a much more serious issue has been left unclar-ified. What is the legal basis for the ministry to issue ROC ID cards at all?

As has been noted in many Liberty Times (Taipei Times' sister newspaper) editorials, Oct. 25, 1945, only marked the beginning of the military occupation of "Formosa and the Pescadores." There was no transfer of sovereignty on that date. The announcement of Oct. 25, 1945, as "Taiwan Retrocession Day" is the big lie on which all other lies frequently promoted in Taiwan (or at least, those regarding the legitimacy of the ROC) are based.

The Nationality Law was originally promulgated in February 1929, but at that time Taiwan was part of Japan.

The representatives of Chiang Kai-shek arrived in Taiwan in mid-October 1945, at the direction of General Douglas MacArthur. They proclaimed Oct. 25 as "Taiwan Retrocession Day" and in the following months made numerous statements that the Taiwanese people were being naturalized en masse as "Republic of China citizens."

However, to institute naturalization procedures over civilians in occupied territory is a war crime. For the Taiwanese people to be bona fide ROC citizens, two conditions would need to be met. First, the post-war treaty 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 was met.

British foreign secretary Anthony Eden, in a written statement dated Feb. 5, 1955, affirmed that "In September 1945, the administration of Formosa was taken over from the Japanese by Chinese forces at the direction of the Supreme Commander of the Allied Powers; but this was not a cession, nor did it in itself involve any change of sovereignty."

Considering that Japan renounced the sovereignty of "Formosa and the Pescadores" in the San Francisco Peace Treaty, but that sovereignty of these areas was not awarded to the ROC, one could easily claim that there is no legal basis for the issuance of ROC ID cards to Taiwanese persons at all.

When will the "pro name-rectification" governing-party legislators in the Legislative Yuan wake up to this fact and demand that the Council of Grand Justices rule on this legal matter?

   by Richard W. Hartzell

Who is in control?

TAIPEI TIMES, Oct. 9, 2005, page 8

Huang Jei-hsuan stresses the need for Taiwan to maintain a strong defense capability (Letter, Oct. 2, page 8). This is certainly an important consideration for Taiwan's future. However, he then continues by saying that, "The US warning that it might withhold its support if Taiwan does not better arm itself does not make sense and is unhelpful."

He strongly suggests that the US change its "one China" policy in order to encourage the Taiwanese people to strive for sufficient deterrent capability, so that the Taiwanese know that their investment in defense is going to result in them some day being recognized as an independent and sovereign nation. While I don't doubt that Huang is sincere in his analysis, and wants to help Taiwan, there are numerous misconceptions and logical flaws in his argument.

First, let's look at the "one China" policy. I believe that what this policy says is that, "There is one China, and Taiwan is to be a part of China" (this is based on the Shanghai Communique). But, as everyone in Taiwan knows, at the present time, Taiwan is not a part of China (the People's Republic of China or PRC).

Second, let's look at the "Republic of China" (ROC) on Taiwan. The ROC was refused admittance to the UN again this year for the 13th time. Is the ROC a legitimate government for Taiwan? The answer is clearly: No.

The ROC military troops came to Taiwan and accepted the Japanese surrender on Oct. 25, 1945, on the direction of US General Douglas MacArthur. Many researchers say that the ROC accepted the Japanese surrender on behalf of the Allied Powers, but that misses the point. The laws of war do not discuss who surrendered to whom, or who defeated whom -- what they do discuss is "the occupying power."

If you read General Order No. 1 of Sept. 2, 1945, what can you conclude about who is "the occupying power" as spoken of under the laws of war? "The occupying power" is clearly the US. Hence, the ROC is merely a subordinate occupying power under the US; it has the position of an "agent." Moreover, when the ROC fled China in December 1949, it became a government-in-exile.

In the post-war San Francisco Peace Treaty, Japan renounced the sovereignty of Taiwan, but it was not given to the ROC. Today, the ROC on Taiwan continues to act in the dual capacities of a "subordinate occupying power" and a "government in exile."

Looking at the "one China" policy from this standpoint, it is clear that there is no need for the US to revise it. To repeat the obvious: "The ROC is not a legitimate government for Taiwan." That was made abundantly clear when the US derecognized the ROC in 1978. The Taiwan Relations Act refers to the government structure in Taiwan as the "Taiwan governing authorities" and does not recognize Taiwan as a sovereign state.

Third, as with many other authors who feature in the Taipei Times, there is the curious notion that "certain actions must be undertaken so that Taiwan can be a normal country." In other words, since many officials in the international arena have denied that Taiwan is a sovereign nation, it is seemingly necessary to do various things so that Taiwan's sovereignty can re-bloom, or mature in its growth, since it apparently has shrunk, died or otherwise disappeared.

When discussing such topics, we need to distinguish between "popular sovereignty" (ie, the right to vote) and "territorial sovereignty" (or "state sovereignty"). The Taiwanese people have "popular sovereignty" but they don't have "territorial sovereignty" because it was not ceded to the ROC, nor to the Taiwanese governing authorities in the peace treaty (the transfer of territorial sovereignty is always between governments.)

"Territorial sovereignty" simply means "title;" and it cannot shrink, die or disappear. If Taiwan's governing authorities don't have it, then some other governmental entity has it.

In conclusion, if the Taiwanese people want to strive for a safe and democratic future for Taiwan, then the first necessity is to determine where Taiwan's "territorial sovereignty" is at the present time.

If indeed (as US government officials have stated) Taiwan is not a sovereign country, then Taiwan is certainly not responsible for its own "national defense," any more than Oregon, North Carolina or Puerto Rico are responsible for their own "national defense." A close overview of the San Francisco treaty shows that while the sovereignty of Taiwan was not awarded to any country, the US is the "principal occupying power." Hence, the strong possibility exists that the US is holding Taiwan's sovereignty in the form of a fiduciary relationship, with the US Military Government as trustee, the people of Taiwan as beneficiaries and the territory of "Formosa and the Pescadores" as trust corpus.

   by Audrey Deng

Taiwan is US territory

TAIPEI TIMES, Nov. 10, 2005, page 8

There have been numerous articles in the Taipei Times saying that Taiwan is already an independent sovereign nation, or asserting that the independence and sovereignty of Taiwan should be recognized. The point is to stress that Taiwan should be acknowledged by the world community as a normal country and that its diplomatic isolation should be ended.

I regret to say that I see no chance of Taiwan being recognized as a normal country in the near future. Taiwan is not, at the most basic level, a country at all.

Many writers have listed the four criteria for statehood as specified in the Montevideo Convention of 1934. Taiwan seems to meet all of them, but in fact it doesn't.

As an example, let's look at "a defined territory." There was no transfer of the "sovereignty" of Formosa and the Pescadores (Penghu) to the Republic of China (ROC) on Oct. 25, 1945. That date merely marks the beginning of the military occupation of Taiwan by the Chinese Nationalist Party (KMT). Moreover, there was no transfer of sovereignty of these areas in the postwar peace treaty. What is the role of the ROC in Formosa and the Pescadores today? The answer is "squatter."

I regret that most of the contributors to your editorial page fail to recognize this fact. The few who do, however, go on to say that whatever the postwar legal reality might have been, the situation today is different. I categorize their misconceptions below.

First, that the ROC now has title to Taiwan based on "prescription," ie, long and continuous ownership: This mistakes prescription for territorial cession. Taiwan was a territorial cession in Article 2b of the San Francisco treaty, and there must be a clear transfer of territorial title in order for this to be recognized as valid. The doctrine of "prescription" cannot be invoked under such circumstances.

Second, that the ROC now has title to Taiwan based on "popular sovereignty." This mistakes popular sovereignty for territorial sovereignty. "Popular sovereignty" is the right for the people to hold elections, to institute impeachment proceedings and the like.

Third, that the ROC has title to Taiwan based on "full control over the Taiwan area, secondary to no one." This mistakes "effective territorial control" for "territorial sovereignty." "Territorial sovereignty" is held by a government. There would have to be a clear transfer of title to the territory of Formosa and the Pescadores to the ROC under the San Francisco treaty in order for this to be accepted as valid.

Will saying that, "We are already independent," or "Our independence should be recognized" help the Taiwanese people to accomplish these goals? The answer is no.

After the dropping of two atomic bombs on Japan, the Japanese emperor agreed to an unconditional surrender on Aug. 15, 1945. On Sept. 2, General Douglas MacArthur issued General Order No. 1, which described procedures for surrender ceremonies and military occupation in more than 20 areas. After examining this order, we need to answer an important question: "Who is the occupying power?"

The only possible answer is the US. This is confirmed by Article 23 of the San Francisco treaty -- the US is described as "the principal occupying power."

With this in mind, the Taiwanese people can demand that the US commander-in-chief issue the order for the ROC to disband, because the ROC is now blocking the Taiwanese people from enjoying fundamental rights under the US Constitution. With the ROC out of the way, Taiwan can change its name and make preparations for a constitutional convention to draft a new constitution.

This would not be a unilateral change to the status quo, just a full clarification of it. Could the US president object to such a procedure? If so, he could be impeached. For the benefit of Taiwan's future, pro-Taiwan groups in the US should promote this strategy among members of the US Congress.

   by Roger C. S. Lin

A Taiwan tightrope


In "U.S. walks a tightrope over Taiwan" (World, Monday) Associated Press reporter Peter Enav states that "China and Taiwan split in 1949, and since then Beijing has never abandoned its position that the island is part of its territory." This description leaves out some important details.

After the events of August 1945, Gen. Douglas MacArthur directed Chiang Kai-shek to accept the surrender of Japanese troops in Taiwan, and his representatives did so on Oct. 25, 1945. Although the surrender ceremonies were held on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of the "conqueror" and "principal occupying power," and that is the United States. At the most basic level, the Republic of China on Taiwan is a subordinate occupying power. In December 1949, it also became a government in exile.

In the postwar peace treaty, Japan renounced the sovereignty of Taiwan without specifying a "receiving country," so Taiwan has remained under the jurisdiction of the United States Military Government up to the present day.

The Shanghai Communique is an executive agreement to arrange for the future final disposition of Taiwan. All of the executive branch's actions in walking a tightrope with Taiwan and China can be understood if viewed in this framework.

   by Roger C. S. Lin

For more information, contact: rgroup.tw@gmail.com