In 1895 the Ching court of China concluded the Treaty of Shimonoseki with Japan, ceding "Formosa and the Pescadores" to Japan in perpetuity. After World War II, the Republic of China (ROC) military forces were directed to come to Taiwan in 1945 and accept the surrender of Japanese military forces and handle all matters concerning the occupation of these areas. In the San Francisco Peace Treaty (SFPT) that came into effect in 1952, Japan renounced all right, title and claim to Formosa and the Pescadores. Although these areas were separated from Japan, they were not joined to any other nation. The Chinese-Japanese Peace Treaty concluded in 1952 also repeated the provisions of the San Francisco Peace Treaty. During this entire period of time, and indeed up to the present day, the People's Republic of China (PRC), which was founded in 1949, has never ruled Taiwan.

Even though these facts are clear, yet it is also true that Taiwan has never been able to escape the criticism that it is not "an independent sovereign country", or that "the PRC is the sole legitimate government of China" - and indeed these factors have rendered Taiwan's international position to be something of a dilemma. Whether we are trying to solve the thorny issue of how President Chen Shui-bian could pick an appropriate topic for a national referendum, how Taiwan could get admitted to the World Health Organization, or how to improve Taiwan's investment climate - for all of these issues, a clear statement of Taiwan's correct international position is a prerequisite.

But what is best procedure for researching such a statement? We will do well to start with the concept of "territorial cession".

Whether in the history of the Chinese dynasties or of the Western nations, all heads of state have had the experience of adding to their own territory by the military conquest of neighboring areas. These types of actions can be called "cession by conquest".

However, in the 1800s and after the end of the Napoleonic Era, this concept of cession came to be regarded differently by the world community. World leaders came to agree that this method of conquering and seizing new territory was not advantageous to the maintenance of a proper world order and respect for human rights. As a result, after nearly 100 years of consensus-building, in 1907 the Hague Conventions specified: "Territory is occupied when it is actually placed under the authority of the hostile army." Moreover, the international community formed a consensus that "occupation does not transfer sovereignty", and so any arrangements for the cession of territory needed to be clearly stated in an international treaty to be considered valid.

From this standpoint it can be seen that the rather ancient concept of "cession by conquest" underwent a drastic change in the 1800s, and according to the Hague Conventions could only be regarded as the "beginning of belligerent occupation". To be valid under international law, "cession by conquest" had to be confirmed by "cession by treaty".

Cession in peacetime vs cession by conquest

To look at the situation of the Alaska cession as an example, after the US secretary of state negotiated a price of US$7.2 million, Russia agreed to cede Alaska to the United States. Before the treaty went into effect on October 18, 1867, Alaska was under the administrative authority of Russia, but beginning on that date, Alaska came under the administrative authority of the US. This simple formulation is how most people regard the subject of "territorial cession" - there is one point in time that marks a clear division. However, it must be noted that this simple formulation is only applicable to territorial cessions conducted during peacetime.

For cessions that are the result of war, it is somewhat more complicated. The issues of military occupation, the coming into effect of the peace treaty, and the end of military government of the hostile power (and subsidiary military forces under its direction) must all be taken into account. The final status of "occupied territory" is only achieved when the principal occupying power has both de facto and de jure returned this territory to the lawful government of the area.

Belligerent occupation may be specified as covering the point in time when the hostile army places its authority over the territory, or the local troops surrender, to the point in time when the peace treaty comes into effect. Friendly occupation, or the "civil affairs administration of a military government", may be specified as covering the point in time when the peace treaty comes into effect until the point when the military government of the principal occupying power ends.

Looking at the situation of Taiwan from this perspective, we note that the head of the US Military Government, General Douglas MacArthur, directed the representatives of Chinese Nationalist leader Chiang Kai-shek to come to Taiwan and accept the surrender of Japanese military forces - so October 25, 1945, clearly marks the beginning of the belligerent occupation of "Formosa and the Pescadores". International law dictates that "military occupation does not transfer sovereignty", so of course there was no transfer of sovereignty on that date. On April 28, 1952, the SFPT went into effect, but "Formosa and the Pescadores" were not ceded to the Republic of China, nor to any other country. And so it follows that the sovereignty of these areas continues to be held as interim status by the principal occupying power, which is the United States as per Article 23. This is a fiduciary relationship, and not "ownership" or "annexation" per se.

Under this analysis, it is clear that the "Republic of China on Taiwan" is not a sovereign nation. This is exactly the view both of the US State Department and of the People's Republic of China. (However, after the publication of my last article in Asia Times Online, Taiwanese should seek US constitutional rights, January 31, several readers vehemently disagreed with this conclusion, stating unequivocally that the "Republic of China on Taiwan" is indeed a sovereign nation, and suggesting that this author review the definition of "sovereignty" in a dictionary.)

Article 1 of the Montevideo Convention specifies the international legal standards by which nationhood is adjudged. These are (a) permanent population, (b) defined territory, (c) government, and (d) the capacity to enter into relations with other states. However, if we accept these four stipulations for recognizing a "sovereign state" in the case of the "Republic of China on Taiwan", we are immediately faced with the conclusion that "military occupation does transfer sovereignty" - which is a clear violation of international law, as specified in the Geneva and Hague Conventions. Upon closer analysis it will be found that Article 1 of the Montevideo Convention is incomplete, and cannot correctly delineate situations that involve (a) military occupation or (b) governments in exile. (The author has completed a lengthy research paper on this subject that has been linked to the "International Law - Publications" page of the prestigious FindLaw website.)

San Francisco Peace Treaty and Taiwan's referendum

SFPT Article 4 (b) 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." Up to the present day, the US administrative authority over Taiwan is still active, because Taiwan has still not reached "final status". Under the provisions of the three US-PRC bilateral communiques, final status will be achieved when Taiwan unifies with the PRC.

The Taiwan Relations Act of 1979 is a domestic law of the United States because Taiwan is still under US administrative authority. What are missing during this period of interim status, however, are any provisions for the Taiwanese to enjoy their fundamental rights under the US constitution - rights that apply in all insular areas under US administrative authority.

President Chen Shui-bian's choice of March 20 referendum questions regarding "whether the citizenry supports enhancing the nation's defenses should China refuse to openly renounce the use of force and withdraw the missiles it has targeted at Taiwan, and whether the government should hold talks with China on cross-Strait peace and stability" don't seem to be particularly controversial or meaningful, yet many countries have openly criticized these referendum questions.

For Taiwan to solve many of the problems with which it is faced, the Taiwan governing authorities could offer more meaningful wording for a referendum as follows: "According to the San Francisco Peace Treaty, it can be maintained that United States administrative authority over Taiwan is still active up to the present day. Do you agree to the United States' administrative authority over Taiwan, and concur that the United States Department of Defense should directly and completely assume responsibility for all of Taiwan's defensive needs, as it does for the 50 states and all other overseas US territories?"


Richard W. Hartzell
Taipei

Fri., Feb. 27, 2004