Fri, Jul 15, 2005 page8

• Recover Taiwan's post-war position

  • By Roger Lin and Richard Hartzell
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  The beginning of World War II in the Pacific was marked by the announcement: "Yesterday, Dec. 7, 1941 -- a date which will live in infamy -- the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan." US President Franklin Roosevelt's speech of Dec. 8, 1941 was immediately followed by a Congressional declaration of war.

  On the following day, Dec. 9, Chiang Kai-shek's (蔣介石) Republic of China (ROC) also declared war against Japan.

  Formosa and the Pescadores had been ceded to Japan in the 1895 Treaty of Shimonoseki.

  Under international law, there is no doubt that Japan had possession of the sovereignty of these areas after 1895.

  During the course of the Pacific war, the historical record shows that all military attacks against Japanese Formosa and the Pescadores, and indeed against the four main Japanese islands, were conducted by US military forces. It is very significant that the ROC military forces did not participate.

  According to the precedent established in the Mexican American War, the Spanish American War and others, after the end of hostilities, the US became the principal occupying power of these areas.

  In early August 1945, the US dropped two atomic bombs on Japan, and the Japanese surrendered on Aug. 15. US troops were in Formosa soon after, and on Sept. 1, US naval vessels arrived to arrange for the transport of 1,000 US prisoners of war to Manila.

  On Sept. 2, General Douglas MacArthur directed the senior Japanese commanders and all ground, sea, air and auxiliary forces on Formosa to surrender to Chiang (ie, the ROC military forces).

  The relationship between the US and the ROC in the military occupation of Formosa and the Pescadores (hereafter called "Taiwan") is important. The US is the principal occupying power. The ROC is the subordinate occupying power. MacArthur gave orders to Chiang, and the generalissimo accepted them. This is a principal-agent relationship.

  There were three mistakes made by the US. The ROC military forces accepted the surrender of Japanese troops on Oct. 25, 1945, in Taipei. The ROC officials immediately announced this occasion as Taiwan Retrocession Day; however, such an announcement was a violation of the laws of war. It is extremely regrettable that the US government made no effort to correct this error at the time. This was the first major mistake by the US in the handling of Taiwanese affairs in the post-war period.

  According to the Hague Conventions of 1907, the date of Oct. 25, 1945 can only be interpreted as the beginning of the military occupation of Taiwan. Military occupation is conducted under military government, and the US has delegated the military occupation of Taiwan to the ROC. The US Military Government (USMG) in Taiwan began as of Oct. 25, 1945.

  The next phase was the occupation of Taiwan by the ROC government-in-exile.

  In November 1945, the ROC government announced the mass naturalization of native persons in Taiwan as "ROC citizens."

  Additionally, military conscription laws regarding Taiwanese males were put into effect shortly thereafter. Such unilateral announcements regarding naturalization and military conscription over persons in occupied territory are violations of the laws of war. It is extremely regrettable that the US government made no efforts to correct these errors at the time. These were the second and third major mistakes by the US in the handling of Taiwanese affairs in the post-war period.

  By late 1949, with a civil war raging in China, additional military forces and government officials of the ROC fled to Taiwan. As of early 1950, the ROC government in Taiwan was "wearing two hats" -- it was a subordinate occupying power (beginning Oct. 25, 1945), exercising effective territorial control over Taiwan, and at the same time it was a government-in-exile -- beginning in December 1949.

  Decisions regarding the transfer of Taiwan's sovereignty were to be made in the post-war peace treaty. Hence, in early 1950 the ROC was clearly not in possession of the sovereignty of Taiwan. Statements made in the 1943 Cairo Declaration and 1945 Potsdam Proclamation were "expressions of intent" made before the close of the war, but the final determination of Taiwan's status would be made under the San Francisco Peace Treaty (SFPT) signed Sept. 8, 1951.

  On April 28, 1952, the SFPT came into force. Japan renounced sovereignty of Taiwan in Article 2b. However, no receiving country was specified. This is a "limbo cession." The US is confirmed as the principal occupying power in Article 23.

  Final disposition of Taiwan was to be according to the directives of the USMG, as per Article 4b: Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to the directives of the USMG in any of the areas referred to in Articles 2 and 3.

  In English, the word property includes "the right of ownership or title." With regard to territorial cessions, this includes "sovereignty."

  As we know, the ROC was the legal government of China as referred to in World War II. However, the ROC failed to maintain its legal position when it fled to Taiwan in late 1949. As of late April 1952, with the coming into force of the SFPT, the ROC was not the legally recognized government of Taiwan; it was merely a subordinate occupying power and government in exile.

  With this recognition, an analysis of Taiwan's position under international law and US Constitutional law from late April 1952 up to the present day can proceed in a very straightforward fashion. An examination of the situation of Puerto Rico and Cuba after the Spanish American War provides the necessary legal background, especially with regard to the doctrine of "unincorporated territory."

  After the SFPT cession by Japan, Taiwan is clearly "unincorporated territory under the USMG." In other words, it is foreign territory under the dominion of the US, which is also a very close equivalent to an overseas territory of the US.

  Roger Lin and Richard Hartzell are members of the Political Research Committee of the Taiwan Defense Alliance.
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