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Research Report The One China Policy and Taiwan's Identity Crisis by Richard W. Hartzell and Roger C. S. Lin
Background on the One China Policy Testifying before the House International Relations Committee on April 21, 2004, Assistant Secretary of State for East Asian and Pacific Affairs James Kelly summarized US policy toward Taiwan (Republic of China, abbreviated: ROC) and China (People's Republic of China, abbreviated: PRC). He emphasized that the U.S. "remains committed to the one-China policy based on the three Joint Communiques and the Taiwan Relations Act. The U.S. does not support independence for Taiwan or unilateral moves that would change the status quo as we define it." During a follow-up Q&A period, Kelly was asked to further define the "One China Policy." He rather hesitatingly admitted, "I cannot very easily define it. I can tell you what it is not. It is not the One-China Policy or the One-China Principle that Beijing suggests, and it may not be the definition that some would have in Taiwan." Political commentators in foreign affairs magazines, news magazines, academic journals etc. rarely portray the "One China Policy" in positive terms, and such descriptions as deliberate fabrication, longstanding myth, or carefully-calculated fiction are common. A more polite description is that the "One China Policy" is a term of art, whose meaning and significance change at the whim of State Dept. officials. Moreover, the majority of commentators argue that the ambiguity of the "One China Policy" is just an excuse to cover up the fact that no American Administration since WWII has possessed a coherent policy framework within which to manage the controversy between China and Taiwan. In other words, the "One China Policy" is a deliberate denial of reality which can only be compared to the Emperor's new clothes -- everyone knows that it does not exist, and is in no way valid, but no one dares to say so. Many human rights activists, overseas Taiwanese living in North America, and even members of Congress cringe at the thought of Taiwan's current level of democratic development being snuffed out by a formal unification with the People's Republic of China (PRC). They are quite vocal in their claims that there have been two sovereign states existing on each side of the Taiwan Strait since Mao Zedong proclaimed the founding of the PRC Oct. 1, 1949. Indeed the amount of invective hurled at the "One China Policy" has increased with each passing year since the Shanghai Communique was promulgated in Feb. 1972. However, what all these interested observers and pundits have failed to comprehend is that in fact the "One China Policy" rests on a very precise and detailed legal formulation. Unfortunately for those who need to understand the true facts of the "Taiwan question" in order to make effective policy decisions, or to offer criticism in an accurate fashion, this legal formulation is not something that is taught in undergraduate or graduate courses in US universities, in online study courses, or in seminars sponsored by leading think-tanks. Indeed, you would be very hard-pressed to find any books on this topic in any large metropolitan library. Not only is it well outside the realm of "civilian law," it is even outside the realm of "codified law." A broad general description of this area of legal studies would be "the laws of war," but a more exacting designation would have to be stated as "the customary laws of warfare." Most modern concepts of the laws of war date from the post-Napoleonic period, some go back earlier. In the late 1930's, the US Department of the Army decided to put together a compendium of all this data. The Army researchers assembled quite a bit of information and edited it into a Field Manual code-named FM 27-10 "The Law of Land Warfare." The first edition was published Oct. 1, 1940. US Army Field Manual FM 27-10 Up to the present day, FM 27-10 has been updated a few times (the most recent edition is July 1976), but it is still incomplete in many respects. Reading through its nine chapters, you won't find commentary from On the Laws of War and Peace (1625) by Hugo Grotius, or The Law of Nations (1758) by Emerich de Vattel, although in discussing laws of war issues, those authors are often considered authoritative. You won't find references to the famous nineteenth-century treatises of Military Law and Precedents by Colonel William Winthrop, Military Government and Martial Law by William E. Birkhimer, or other volumes which were at one time or another regarded as "standard references" by US Army personnel. You won't find annotations from the abundant Supreme Court or international court decisions which deal with war, conquest, military occupation, military commissions, war crimes, and similar matters. You won't find any mention of Joseph Story's Commentaries on the Constitution (1833) which involve similar issues. You won't find quotations from the International Committee of the Red Cross's Commentaries on the four 1949 Geneva Conventions and their Protocols, or analysis from the Military Law Review, widely regarded as the premier journal of military legal scholarship in the USA and published since 1958. You won't find references to peace treaties, and examples of how the different clauses are to be interpreted based on military jurisdiction, Supreme Court dicta, established international precedent, etc. so indeed a lot of information is missing. For the purposes of this research report, we will call this the "uncompiled content." Most importantly, in terms of military occupation, FM 27-10 primarily deals with situations which are "in and out." In other words, US troops land on the beaches or at the border, the territory is conquered, military occupation is conducted, a peace settlement is reached, sovereignty is restored, and the troops leave. Chapter 6 of FM 27-10 covers military occupation. The first paragraph is "Territory is considered occupied when it is actually placed under the authority of the hostile army." That is a definition of "military occupation" which is well established in the customary laws of warfare. In fact, it is a direct quote from the Annex to Hague Convention No. IV (1907), embodying the Regulations Respecting the Laws and Customs of War on Land. However, nowhere in Chapter 6 is any specific discussion of the US military occupation of areas which then become territorial cessions in a peace treaty. So, where are the customary laws for handling such matters? FM 27-10 is now widely available on the internet. In addition to that manual, one needs to study treatises written by military law experts and international legal authorities, court decisions, international conventions, etc. and to research established precedent, military history, and all topics which fall in the realm of the "uncompiled content" as mentioned above. From the Spanish American War to Taiwan For the purpose of considering the "Taiwan question" in the world today, and understanding the implications of the "One China Policy," the Spanish American War is a good starting place. The territorial cessions of Puerto Rico, Guam, the Philippines, and Cuba all resulted from that conflict. An overview of the precedent established for dealing with those territorial cessions provides many meaningful insights into the customary laws of warfare. These can guide us in evaluating Taiwan's situation after WWII. As defined by US Supreme Court justices in Ex parte Milligan (1866), "military jurisdiction" under the US Constitution is of three kinds. In particular, so-called "military government" is "to be exercised in time of foreign war without the boundaries of the United States...". Or, in more modern terminology, "military government" is the form of administration by which an occupying power exercises government authority over occupied territory. In the situation of Puerto Rico, we can say that United States Military Government (USMG) began with the surrender of Spanish troops on Aug. 12, 1898. The post-war peace treaty came into effect on April 11, 1899, and Article 2 specified: Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones. Most civilians would assume that the military occupation of Puerto Rico ended at that point. However, such is not the case. In fact, USMG in Puerto Rico only ended on May 1, 1900 with the commencement of "civil government." The basis for the "civil government" established in Puerto Rico was the Foraker Act passed by the US Congress. A comparative example for Cuba is also illustrative. USMG in Cuba began with the July 17, 1898 surrender of Spanish troops. Article 1 of the April 11, 1899 peace treaty specified: Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. Interestingly, the wording of Article 1 specifies that Cuba "is to be occupied by the United States . . . . . " (future tense) and yet the historical record shows that Cuba was already occupied as of mid-July 1898 (past tense). Is this contradictory? The answer is no. However, a close examination of the military history and the treaty provisions give us an insight into a very important aspect of the customary laws of warfare which is crucial for the understanding of territorial cessions after war. Specifically, we must recognize that for a territorial cession: the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until supplanted by a fully recognized "civil government" for the area. We can review the two examples of Puerto Rico and Cuba in more detail to see exactly how this works. Note: Puerto Rico and Cuba were both territorial cessions. These areas were ceded by Spain in the peace treaty. We must recognize the broad original senses of the verb "cede" and the noun "cession," which are used to denote the "surrendering of possession of," "relinquishment of sovereignty over," "renouncing of all right, title and claim to," etc. Military Attacks against Puerto Rico and Cuba All military attacks against (Spanish) Puerto Rico and (Spanish) Cuba were conducted by United States military forces. Earlier, in the American Insurance Company case (1828), US Supreme Court Chief Justice Marshall had offered this penetrating analysis: "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." In other words, Puerto Rico and Cuba were both "acquired" by the United States under the principle of conquest. What is the principle of conquest? Basically, the principle of conquest says that territory may be "acquired" by conquest, and then the disposition of that territory must be conducted according to the customary laws of warfare. In the most general terms, that will mean military occupation followed by a peace settlement. If there is a territorial cession involved, then there needs to be a formal peace treaty. In the peace treaty after the Spanish American War of 1898, Spain relinquished or otherwise gave up all claims of sovereignty over Puerto Rico and Cuba. For Puerto Rico, the USA was designated as the recipient of the cession, but for Cuba no recipient was designated. Both were under USMG for extended periods. Thus, an important point must be recognized -- for a territorial cession, it is fully proper to call the period in which the military government of the (principal) occupying power is in operation as "military occupation." In modern parlance, the period in time before the coming into force of the peace treaty is referred to as "belligerent occupation." The period in time after the coming into force of the peace treaty until the end of the military government of the (principal) occupying power is called "friendly occupation" or the "civil affairs administration of a military government." USMG in Cuba ended on May 20, 1902, with the beginning of the "civil government" operations of the Republic of Cuba. USMG in Puerto Rico ended on May 1, 1900, with the beginning of US "civil government" in the territory. A similar analysis can be done for Guam and the Philippines, but the Puerto Rico and Cuba examples provide the basic parameters. The Insular Cases of the US Supreme Court In the Insular Cases of the US Supreme Court (beginning 1901), it was determined that the Spanish American War cessions were "insular areas" of the United States. What were the common characteristics of these cessions? In the pre-Napoleonic era, in many countries throughout the world, conquest by military forces was quite frequently viewed as legal grounds for annexation of the territory. However, these legal norms began to change in the post-Napoleonic era, approximately from 1830 onward. (In fact, the United States government recognized the difference between "military occupation" and "annexation" even in the late 1700's.) Importantly, when United States military troops had seized control of Puerto Rico in 1898, it was military occupation not annexation. Under military occupation, the victorious state which occupies an enemy's territory is only an administrator. The rules of usufruct apply. According to the customary laws of warfare, the occupying power will be exercising control over the occupied territory, and a wide variety of responsibilities arise therewith. The local population also has numerous rights in this arrangement. Hence, a determination of "the occupying power" is a prerequisite for discussing the legal status of the territory, as well as the rights and responsibilities of the people living therein. Note: even in the present day, the Geneva Conventions and the Hague Conventions do not contain a definition of "the occupying power," although this terminology is used quite extensively when discussing laws of war issues. In determining the common characteristics of the four Spanish American War cessions, in the period of time before the coming into effect of the peace treaty, the following six criteria might be mentioned. In the views of some scholars, these types of criteria can be viewed as indicative for making a determination of "the occupying power." (Note: Puerto Rico was originally Spanish territory. Hence, "enemy troops" here refer to Spanish troops, "enemy property" refers to Spanish property, and "territory" refers to Puerto Rico)
At some later period, the following six criteria might also be mentioned:
In fact, many of these criteria are clearly problematic. In other words, for the occupying administration to assist the local native population to reorganize their own government structure is an action commonly seen. However, without the specification of territorial cession (and a clear transfer of title) in the peace treaty, the following actions would clearly be illegal under the customary laws of warfare:
Moreover, the above twelve criteria unfortunately ignore the fact that the military occupation of any area can be delegated to co-belligerents (i.e. "allies.") Looking back at the Spanish American War cessions of Puerto Rico, Guam, the Philippines, and Cuba, we need to find more general characteristics which are common to all four of these territorial cessions. Considering military jurisdiction under the US Constitution and the customary laws of warfare, the authors maintain that there are three fundamental characteristics common to these four territorial cessions: (1) the United States is the "conqueror," in other words each of these areas was acquired under the principle of conquest, (2) the United States is the (principal) occupying power, and indeed all legal relationships for conquered territory arise directly from this fact, and (3) each territory was ceded by its "original owner" in the post-war peace treaty. For the purposes of this research report, we will call these "the insular qualifying criteria." Is the above overview of the situations of the Spanish American War cessions spelled out in FM 27-10? The answer is no. As stated above, that Field Manual doesn't deal with considerations of territorial cessions and the operations of military government therein. Analysis such as that presented above must be assembled from a study of the historical record, relevant Supreme Court cases, the examination of other treaties and legal documents, and other "uncompiled content." In particular, the 1848 Treaty of Guadalupe Hidalgo after the Mexican American War, and the situations of the military occupation of California, Utah, Nevada, etc. all provide excellent sources of information. The legal details all follow the same patterns as outlined above. In summary, what are some of the significant points about the customary laws of warfare which we should notice? Several are apparent.
The Republic of China on Taiwan Now let's turn to a discussion of the Republic of China (ROC). What exactly is the status of the ROC on Taiwan? As we know, the ROC provides the full range of government services to a population of 23 million. Does its presence show that the "One China Policy" is an illusion and a deception? Or that the Executive Branch has sold out to the China Lobby? In order to answer these questions we will need to do an overview of WWII in the Pacific. United States' Declaration of War Against Japan Looking at the historical record, after the Japanese attack on Pearl Harbor, the United States declared war on the Empire of Japan on December 8, 1941. During the war, all military attacks on (Japanese) Taiwan were conducted by United States military forces, so it is clear that the United States has acquired Taiwan under the principle of conquest. The United States is the "conqueror," and according to the customary laws of warfare in the post-Napoleonic period, the United States will be the principal occupying power. In General Order No. 1 of Sept. 2, 1945, the General MacArthur specified arrangements for the surrender ceremonies and military occupation of over twenty areas. In particular, General MacArthur delegated the military occupation of Taiwan to Chiang Kai-shek (aka "Chinese nationalists" or "Republic of China"). What is the significance of the surrender of Japanese troops in Taiwan on Oct. 25, 1945? How do legal relationships arise over in territory which has been "conquered" by foreign military forces? The answers to these questions are directly derivable from the discussion of the Spanish American War given above. A very clear definition is provided by the Hague Conventions of 1907, to wit: "Territory is considered occupied when it is placed under the authority of the hostile army." However, in discussing the situation of Taiwan on Oct. 25, 1945, many scholars are quick to point out that the Japanese troops in Taiwan surrendered to the representatives of Chiang Kai-shek (CKS). Presumably, those representatives were acting under the authority of the Allies, and they announced that day as "Taiwan Retrocession Day" based on the stipulations contained in certain pre-existing international declarations. In other words, many scholars maintain that the situation of Taiwan on that fateful day in October 1945 was up to Chiang Kai-shek and his ROC military forces to decide. Unfortunately, these same scholars ignore the fact that the customary laws of warfare already contained complete specifications for dealing with such eventualities. International law has its basis in international custom, international conventions or treaties, and general principles of law recognized by civilized nations. For the most part, customary international law is not completely codified. A rule is "customary" if it reflects state practice and when there exists a conviction in the international community that such practice is required as a matter of law. While treaties only bind those States which have ratified them, customary law norms are binding on all States. As fully illustrated in the Spanish American War overview given above, and easily clarified by examining the situation of the War of 1812, Mexican American War, etc. under the customary laws of warfare the legal relationships for conquered territory do not arise from a consideration of which army accepted the surrender of what other army, which military troops were victorious in what particular battle, or what intentions were stated in the surrender documents, surrender ceremonies, or even in various and sundry pre-surrender proclamations about the planned future disposition of territory, etc. More specifically, upon the surrender of Japanese troops, legal relationships for Taiwan do not arise from the intentions expressed in the Cairo Declaration, Potsdam Declaration, and Japanese surrender documents. Legal relationships arise from a consideration of one simple fact: "Who is the occupying power?" In the post-Napoleonic era, this goes back to a determination of "Who is the conqueror?" So, while it is true that the representatives of 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 USMG. The principal occupying power is the United States. 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, where it immediately obtained the legal status of "government in exile." Some two years later, on April 28, 1952, the San Francisco Peace Treaty (SFPT) came into force. Japan renounced the sovereignty of Taiwan, but no receiving country was designated. Hence, as of late 1949, although still enjoying wide recognition as the "de-jure government of China," the ROC was in fact no longer the "de-facto government of China." It is a government in exile, exercising "effective territorial control" over a geographic area where it does not possess sovereignty. With this situation having emerged, it is not surprising that the world community did not consent to designating the ROC as the recipient of the sovereignty of Taiwan, even though Japan renounced that sovereignty in the peace treaty. As a result, from late April 1952 to the present, the ROC is the "de-facto government of Taiwan," but not the "de-jure government of Taiwan." With the break in diplomatic relations with the USA in late 1978, the ROC is the "non-recognized government in exile of China." The ROC has merely been maintained in Taiwan as a tool of US foreign policy. Conclusion: There is only One China, and that is the PRC. As for Taiwan territory, comprising "Formosa and the Pescadores," it is correctly classified as an overseas territory of the United States, since it meets "the insular qualifying criteria" as given above. The wording of the Shanghai Communique of Feb. 1972 is serving to put Taiwan on a "flight-path" for eventual unification with the PRC. As stated in Article 4b of the SFPT, USMG has disposition rights over the property of Japan. In the English language, "property" includes the concept of "title." In other words, the title to Taiwan territory is currently held by USMG in the form of a fiduciary relationship, and the US Commander in Chief can take charge of making disposition of it, as long as the Taiwanese people are kept in the dark about their rights under the US Constitution, as defined in the Insular Cases of the US Supreme Court. Beginning in the Spring of 1952, the Taiwanese people should be enjoying "fundamental rights" under the US Constitution as do the inhabitants of other overseas US territories. Fundamental rights include the "liberty" of the Fifth Amendment, which includes the right to travel. The right to travel includes the right to obtain a passport. Unfortunately, over the past fifty years the officials of the US State Department have chosen to deal with the "Taiwan question" with a deliberate policy of strategic ambiguity. The US Commander in Chief is waiting for "all Chinese on either side of the Taiwan Strait" to make some arrangements for a peaceful unification, and at that point the title to Taiwan territory can be passed to the PRC. The Validity of Territorial Cession Under international law, cession by treaty is recognized as a valid method of transferring the title of territory. From the historical record we know that in regard to the territorial title of Taiwan, there are two important treaties in the modern era. The first is the Treaty of Shimonoseki in 1895, where China ceded Taiwan, and Japan was designated as the receiving country. Second, in the SFPT of 1952, Japan ceded Taiwan, but no receiving country was designated. From the close of the fighting in WWII in the Pacific to the present, Taiwan has remained under the jurisdiction of the "conqueror" and "principal occupying power" -- the United States of America. Note: In relation to Taiwan, the United States is the "conqueror" and "principal occupying power". According to the Taiwan Relations Act, the United States government does not recognize the terminology of "Republic of China" after Jan. 1, 1979. Hence, in the present era, the fact that the United States government maintains that Taiwan is not a sovereign nation is proof that USMG administrative authority over Taiwan is still active. The Montevideo Convention and its Blindspots But, as many people have observed over the years, there is a competing line of reasoning to say that the "Republic of China on Taiwan" has a (1) permanent population, (2) defined territory, (3) government, and (4) the ability to conduct foreign relations. According to commonly accepted definitions of "statehood," in the eyes of civilian scholars, it should qualify as a sovereign state. However, the customary laws of warfare provide a different picture. Indeed, it must be recognized that the so-called criteria for "statehood" as outlined in the Montevideo Convention of 1934 take no notice of the extenuating circumstances of [a] governments in exile, [b] military occupation, [c] complicated situations of territorial cession with no clear transfer of title, etc. Also important is to recognize that in the 20th century, customary laws regarding the treatment of civilians in occupied territory were also recognized. Three notable aspects of these customary laws, which were violated by the ROC military authorities were --
After late April 1952 (if not earlier), the US flag should be flying over Taiwan. This is because in the post war peace treaty, the sovereignty of Taiwan was not awarded to any other country, however as specified in Article 23 of the SFPT, the United States is the principal occupying power. As stated above, for a territorial cession: the military government of the principal occupying power does not end with the coming into force of the peace treaty, but continues until supplanted by a fully recognized "civil government" for the area. What is the meaning of fully recognized "civil government"? Of course, the civil government must be fully recognized by the national government of the principal occupying power. Indeed, this was the situation after the Spanish American War, where we saw that USMG in Puerto Rico, USMG in Guam, USMG in the Philippines, and USMG in Cuba were all ended by US Presidential proclamation. Contrastingly, the United States is the principal occupying power of Taiwan, but we can find no record of any US Presidential announcement of the end of USMG in Taiwan. Nor has the US government recognized the governing authorities in Taiwan as the lawful civil government of the Taiwan area. In the view of US government officials, the status of the Republic of China is given as follows:
Under the US constitutional form of government, the status of Taiwan territory (including Taiwan and the Pescadores) with relevant historical commentary is given as follows:
US Government Policy Pronouncements In June 1998 President Clinton told the press that: "We don't support independence for Taiwan, or two Chinas, or One Taiwan - One China. And we don't believe that Taiwan should be a member of any organization for which statehood is a requirement." Indeed, from the point of view of the customary laws of warfare, there is no legal basis for saying that the ROC on Taiwan has either a "territory" or a "population," so it is clearly not a sovereign nation. President Clinton's remarks are not surprising when viewed in this light. Nor is it unexpected that the Taiwanese officials' repeated applications for admission to the United Nations and other international organizations have been refused. In a press conference in Beijing on Oct. 25, 2004, Secretary of State Colin Powell said that "Taiwan does not enjoy sovereignty as a nation." He emphasized this by adding that "There is only one China. Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy." Secretary Powell had a distinguished military career, and is certainly familiar with the customary laws of warfare. His evaluation of the status quo in the Taiwan Strait is very much correct. However, what he has neglected to give the American public, the members of Congress, and indeed the world community is a full clarification of the details of this legal formulation. The "One China Policy" is correct, but Taiwan is Taiwan, and China is China. In the post WWII era, Taiwan has remained under the jurisdiction of the principal occupying power of the SFPT, and as such has not yet reached a "final (political) status." The Shanghai Communique of 1972 contains certain clauses which serve as an Executive agreement to make arrangements for the future planned transfer of the title of Taiwan territory to the PRC, but up to the present day that transfer has not been completed. Such a transfer of title is clearly predicated on the governments of the two sides of the Taiwan Strait reaching a comprehensive agreement for their "unification." What is the correct nationality determination of native Taiwanese persons at present? In fact, there is no legal basis for recognizing native Taiwanese persons as ROC citizens. With reference to the Department of State (DOS) Foreign Affairs Manuals, Series 7, and the Immigration and Naturalization Act of the USA, during this period of "interim status" under the law of occupation, native Taiwanese persons are correctly classified as "US national non-citizens," and are entitled to carry "US national non-citizen passports." Question and Answer Q1: Have any articles in leading law journals in the USA or elsewhere discussed the international status of Taiwan from the point of view of military jurisdiction under the US Constitution? A1: No. Some well-known articles which discuss the international legal status of Taiwan are -- Carolan, Christopher J. (2000). The "Republic of Taiwan": A Legal-Historical Justification for a Taiwanese Declaration of Independence,However, none of these articles has touched on military jurisdiction or laws of war issues in any depth. Q2: What is the status of US Army Field Manual FM 27-10 under U.S. law? A2: FM 27-10 is a compilation of the customary laws of warfare, including the Hague Conventions and the Geneva Conventions. As such, it can be said to contain a great deal of the content of the laws of war as recognized by the United States. However, as noted in the beginning of this research report, there is still much uncompiled content. Q3: Are "the insular qualifying criteria" outlined in the Hartzell-Lin research accepted by US government departments? A3: At the present time there is no formal classification of the different types of US insular areas, and the qualifying criteria for each type, which has been adopted by the US government. Hartzell-Lin have separated the US insular areas into five types. The only possible qualifying criteria for TYPE 1 are the three criteria which Hartzell-Lin have outlined. Many civilians simply assume that the first type of US insular areas would be those overseas territories ceded by peace treaty after war, with the "United States of America" clearly designated as the receiving country. Even the DOS Foreign Affairs Manuals adopt this overly simplistic approach. However such an analysis (or classification) clearly ignores military jurisdiction under the US Constitution. Q4: Are there any exceptions to "military occupation"? In other words are there any situations where the hostile army can legally announce "annexation" of the territory? A4: According to our research, only two types of situations might provide possible legal exceptions to the customary rule, and allow for annexation of the territory: [1] a pre 1830 world, [2] debellatio. However, frankly speaking, the latter is usually only invoked in a pre-Napoleonic world. debellatio -- complete subjugation of a belligerent nation usually involving loss of sovereignty. Sentence example: The Punic Wars ended with the Roman debellatio of Carthage. [Note: the term debellatio refers to a conquered people who are dissolved, leaving no one to assert their rights as a people.]Also, as stated above, the United States government recognized the difference between "military occupation" and "annexation" even in the late 1700's. Nevertheless, we can make the general summary that in most parts of the world, in the pre-Napoleonic era, the "conqueror" merely annexed the territory, and was recognized as the "annexor". In the post-Napoleonic world, these customary norms began to change, so international law said that the "conqueror" could only be regarded as the "(principal) occupying power". This was more formally codified in the Hague Conventions of 1907. Q5: If USMG administrative authority over Taiwan is still active, does this mean that Taiwan is part of the United States? A5: Technically speaking, no. Taiwan fits the category of "unincorporated territory under USMG," while at the same time being in "interim status under the law of occupation." Hence, Taiwan is unincorporated territory under military government, and is still "foreign territory" from the point of view of the revenue laws. Nevertheless, as an overseas territory of the United States, the inhabitants of Taiwan should be enjoying "fundamental rights" under the US Constitution. Such rights include the life, liberty, property, and due process of law of the Fifth Amendment. This "liberty" includes the right to travel and to obtain a passport. Since the Republic of China on Taiwan is blocking the Taiwanese people's enjoyment of these fundamental rights, the ROC must be considered an enemy of the US Constitution. Q6: Which countries currently have formal diplomatic relations with the Republic of China on Taiwan? A6: See this listing of Countries which have Formal Diplomatic Relations with the ROC. Q7: What would be the relationship of Taiwan to the other major unincorporated territories of the United States? A7: The United States currently has five major unincorporated territories: Puerto Rico, Guam, American Samoa, the Virgin Islands, and the Northern Mariana Islands. Although these territories were acquired by the United States in different ways, each of them currently has a fully functioning "civil government" in place. Taiwan is correctly classified as the sixth major insular area, and is under United States Military Government. Q8: What is the exact distinction between "the laws of war" and "the customary laws of warfare"? A8: It is frequently seen that these two terms are used interchangeably. Unfortunately, however, the terminology of "the laws of war" gives many people the impression that these laws are fully codified. That is not true however. Hence, it can be argued that "the customary laws of warfare" is the better terminology. In any event, "the laws of occupation" are included therein. Q9: What is the opinion of the leading think tanks in the USA such as the American Enterprise Institute, American Foreign Policy Council, Brookings Institution, Cato Institute, Center for Strategic and International Studies, Council on Foreign Relations, Heritage Foundation, Hudson Institute, National Bureau of Asian Research, Project for the New American Century, etc. in regard to the Hartzell-Lin research results on the international legal status of Taiwan? A9: These think tanks are completely unaware of this research. Attempted contact with these organizations over the past three or four years has proved fruitless. Q10: What other information is available on the issues raised in this research report? A10: It must be noted that the Hartzell-Lin research results have been obtained via a thorough consideration of the complicated interplay between (1) military jurisdiction under the US Constitution, (2) the laws of war as recognized by the United States, (3) territorial cession law, (4) insular law, (5) international treaty law, etc. To our knowledge, at the present time we are the only researchers who have approached the "Taiwan question" from this angle. The following essays provide further insights. The Territorial Cessions of Puerto Rico, the Philippines, Guam, Cuba, & Taiwan Does Taiwan Meet the Criteria to Qualify as an "Overseas Territory of the United States"? Our inquiry to the US government -- What are you doing? Territorial Cession after War and the End of Military Government Are Taiwanese Persons ROC Citizens? -- In Search of a Legal Basis for ROC Citizenship Quick Summary of the San Francisco Peace Treaty's Disposition of "Formosa and the Pescadores" Assuring a More Democratic Future for Taiwan under the US Constitution Taiwan's secret: Island is territory of U.S.! On the Subjects of "Conquest" and "Dominion" Important Quotations from Downes v. Bidwell, (US Supreme Court, May 27, 1901) regarding the United States' acquirement of territory under the US Constitution and the doctrine of "unincorporated territory" and other articles on the http://www.taiwanadvice.com/ website Our 35 page document to accompany a Passport Application is provided here -- HTML Format Statement of Historical and Legal Evidence for US Nationality Status provided in accompaniment with Application for US nationality non-citizen PASSPORT by native Taiwanese person born in Taiwan DOC Format Statement of Historical and Legal Evidence for US Nationality Status provided in accompaniment with Application for US nationality non-citizen PASSPORT by native Taiwanese person born in Taiwan (33 pages) apply-passport.doc (2 pages) haliena_app.doc |