In the past, I have expressed my view that China has no title to Taiwan ("No other state has title to Taiwan," Oct. 3, 2005, page 8). Recently, a few commentators have argued that Taiwan is an American territory. According to them, the US, as the state which defeated Japan at the end of the World War II, has sovereignty over Taiwan.
The argument has no support in international law. It is true, when two states have engaged in a war, the victorious state may take a piece of territory of the defeated state that has unconditionally surrendered. John Foster Dulles, the US representative to the San Francisco conference on the peace treaty with Japan, supported this point.
At the conference on Aug. 15, 1951, he stated that "the United States, which for [six] years has been and is the occupying power [in Japan], could practically do [as] much as it wanted."
However, the island of Taiwan is not, and has never been, a territory of the US.
First, the US has not acquired title to Taiwan by occupation.
It is true that the US, as the major allied power during World War II, delegated its power to occupy and administer Taiwan to Chiang Kai-shek's (蔣介石) government, the Republic of China (ROC). But, in international customary law, a victorious state which occupies the territory of the defeated state does not acquire title to the occupied land by occupation.
Both the US Supreme Court in a 1822 case (American Insurance Co versus Cantor) and the 1907 Hague Convention Respecting the Laws and Customs of War on Land recognized this international customary rule. The victorious state is considered merely an administrator, not the owner, of the enemy's territory which it occupies during a war.
The rule of international law is, if the defeated state is not entirely annexed, then any transfer of conquered territory from the defeated state to the victorious state must be achieved by a peace treaty.
Second, the US did not acquired title to Taiwan by the San Francisco peace treaty. The peace treaty between Japan and the Allied powers required Japan to renounce title to the islands of Taiwan and Penghu without designating a transferee.
Rather than transferring Taiwan and Penghu to one of the Allied powers, the San Francisco peace treaty left both islands free of any nation's sovereignty.
Since the US did not receive title to Taiwan under this or any other treaty, it does not own Taiwan. Conversely, the US acquired all its present territories by treaties or agreements: Guam in 1898, Puerto Rico in 1899, American Samoa in 1904, the Virgin Islands in 1916, and the Northern Mariana Islands in 1976.
Third, no US government has ever claimed that Taiwan is its territory. In all legal documents, including congressional statutes, dealing with the territories of the US, the US government never lists Taiwan as its territory.
Documents issued by the US government specifically provide that "the US territory includes the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, American Samoa and the territorial waters adjoining the land areas of the US." Despite this detailed listing of US territories, Taiwan is not included as a US territory.
In addition, the Taiwan Relations Act (TRA) offers definite proof that the US government does not regard Taiwan its territory. The TRA was enacted by the US Congress in 1979 when the US government switched recognition of the representative government of the state of China from the ROC to the People's Republic of China (PRC).
Section 3 of the act provides that, "in furtherance of the policy of this Act, the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability."
In every country, the national government is responsible for protecting its people and territory against foreign invasions. Such responsibility is so fundamental and clear that it does not need any executive announcement or legislation to spell it out.
No country in the world would leave the national defense of a part of its territory to that territory itself. As a matter of law, if the US government had considered Taiwan an American territory, it would not have needed to enact the TRA.
There are some in Taiwan who have put forth the idea that Taiwan petitions Washington that the island becomes a US territory.
At present, the people of Taiwan, who collectively own the island, have many options to choose their own future. Even if they desire Taiwan to be a part of the US, approval by the US Congress is required for the US to acquire a new territory.
Until then, Taiwan is not a US territory.
[Citations of the quotations in this paper can be found in the article "The Territorial State and Taiwan" (The Comparative Law Journal of Japan, The Japanese Comparative Law Institute, Tokyo, Japan, 2003).]
Frank Chiang is president of the Taiwan Public Policy Council in the US and a professor of law at Fordham University School of Law, New York City.
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