Subject: Military Occupation of Taiwan by the R.O.C.  

Excerpt from p. 21 - 22

It is common for a victorious army in a war to occupy the territory of the defeated State. Territory, after all, is an important element of the defeated State. The occupation of an enemy's territory after the enemy surrenders pending a settlement, however, does not give the occupying State the title to the territory that it occupies. As stated earlier, it has become a rule of customary international law that if title to a territory of the defeated State is to be changed after a war, then it must be achieved by a territorial treaty. The war between Japan and the Allied Powers did not formally end until April 28, 1952, when the Treaty of Peace with Japan (the "Peace Treaty of San Francisco"), to which China is not a party, entered into force. The war between Japan and China did not end until August 5, 1952, when the Peace Treaty between Japan and China, represented by the R.O.C. government, entered into force. Thus, the occupation of Formosa by the R.O.C. government was, until the conclusion of the Peace Treaty of San Francisco, a military wartime occupation.(103)   In May 1951, six years after assigning the task of the post-surrender administration in Formosa to the R.O.C. government, General MacArthur said, "Formosa is still a part of Japan." (104)

Both Labor and Conservative Parties of the British government also held the view that China did not acquire title to the island of Taiwan by occupation. In 1949, British Foreign Secretary Mayhew, in the Atlee (Labor Party) administration, said in the House that "the Chinese Nationalist authorities . . . are in control of the island [Formosa. However, any] change in the legal status of Formosa can only be formally effected in a treaty of peace with Japan." (105)

(103) See Am. Ins. Co. v. Canter, 26 U.S. 511, 541 (1828) ("The usage of the world is, if a [N]ation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace.")
(104) Statement of General General MacArthur before a Congressional hearing, N.Y. TIMES, May 5, 1951, at A7.
(105) 469 PARL. DEB., H.C. (5th ser.) 1679 (1949).

One-China Policy and Taiwan

by Y. Frank Chiang
Fordham International Law Journal  Vol. 28:1, December 2004

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