Puerto Rico, the Philippines, Guam, Cuba, & Taiwan

PREFACE

Many "territories" in North America, South America, Oceania and other continents have reached the goal of "establishing an international position" or "establishing an international identity", and these accomplishments have all been completed in accordance with a certain series of steps. In order to achieve such a goal, the post-war disposition of Puerto Rico, the Philippines, Guam, and Cuba can be used as a frame of reference. Taiwan's geographical location and the island’s modern history are quite unique. However, without knowledge of the entirety of international law and important "historical comparative studies,” efforts to enable Taiwan to directly participate in international organizations in the name of "Taiwan" are guaranteed to be fruitless.

Let's start with the subject of “war.” If one reads the history of the wars around the world for the past 125 years or so, it is quickly found that Puerto Rico, the Philippines, Guam and Cuba share the similarity of being attacked and later becoming conquered territories of the United States. Hereinafter we refer to them as the "Four Precedents." We should recognize that these "Four Precedents" have a lot in common in terms of their post-war dispositions based on the "laws of war" and its subset the "laws of occupation." These similarities can be used for analysis and comparison.

It is important to note that Taiwan was attacked and conquered by the United States during World War II in the Pacific. During the period from December 1941 to the fall of 1945, the army of the Republic of China was only one army among all of the Allies led by the United States, and did not make attacks against Taiwan. After fully comprehending this historical situation, we can glimpse some important indicators, and then by undertaking an analysis and comparison of the "Four Precedents," we can see how post-war territorial dispositions are handled. In this way, the commonly followed international legal structures, provisions, and practices will also be revealed. Frankly speaking, most scholars who have studied Taiwanese history have not made investigations from this angle, which (broadly speaking) is a part of "wartime international law," also known as the "laws of war".

For the people of Taiwan, “How to Establish Our Nation” is a very popular topic in the society. From studying the post-war disposition of the "Four Precedents" by the United States, we can obtain a more accurate conceptualization of the correct legal procedures and methodology. This will assist us in understanding how Taiwan should move forward, whereupon the achievement of the goal of true autonomy followed by statehood will then be within our grasp.

Cessions: Puerto Rico, the Philippines, Guam, Cuba, and Taiwan were ceded, as specified in a peace treaty after a war. Therefore, these five places are correctly categorized as “territorial cessions.” (See cede) To understand how these five places have embarked on the road to autonomy, we must first clarify the relevant historical and legal details.

In recent decades, the use of the title of "Republic of China in Taiwan" in the international community has encountered many difficulties, such as the fact that the ROC is unable to enter the United Nations and various other international organizations, diplomatic relations have been shrinking, ROC nationals are being extradited to other countries for trial . . . . Moreover, there is no consensus in the direction of constitutional reform, the question of the recognition of a proper "nationality" has been controversial, the aborigines have constantly challenged the legitimacy of government land ownership, etc. People are continually issuing challenges and objections to the nation’s “title” and “flag”, and demanding that amended policies be instituted.

It may be possible to trace all these difficult questions down to a single issue, which is: “Were the procedures of Taiwan’s post-war territorial disposition flawed in some way?” How should we study this topic? In fact, it may be quite helpful to explore the details regarding the post-war conditions and development of the "Four Precedents", and then do a detailed comparison with the situation of Taiwan.

This is the purpose of this website. Interested persons are welcome to reference our organized analysis on the post-war situations of Puerto Rico, the Philippines, Guam, and Cuba. Extra attention should be paid to the following points:

The legal status of each territory after the surrender ceremony
The difference between annexation and occupation
The relationship between the conqueror and the legal occupier
The jurisdiction of the military government
The legal basis for the end of military occupation
Comparison of a legal government and a government in exile
The legal basis and effective date of territorial cession
The legal basis for establishing a new local government after the cession
The two components of "territorial sovereignty"
The difference between the end of hostilities and the end of the war

(Further explanations are provided in the "Summary.")

PUERTO RICO

In the Spanish American War period, United States Military Government (USMG) in Puerto Rico began on August 12, 1898, with the surrender of Spanish troops.

The Treaty of Peace between the United States and Spain (Treaty of Paris) was signed on December 10, 1898, and came into force: April 11, 1899. 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."

In the peace treaty, Spain ceded Puerto Rico, and the United States was designated as the receiving country. In reality, the transfer of the sovereignty of Puerto Rico from Spain to the United States was conducted through USMG. This can be explained as follows:

Diagram 1

	Action	Result
1.	Spain has ceded Puerto Rico in the peace treaty.	In effect, upon the date of cession, Spain has ceded Puerto Rico to the USMG, and this is an interim status condition.
2.	With Spain's consent, the peace treaty has specified the United States as the "receiving country" for the cession.	Importantly, upon the date of cession, under international law, an authorized civil government for Puerto Rico, to whom the (principal) occupying power can transfer the administration of the territory, does not yet exist. However, Puerto Rico has been ceded to the USA in the treaty, hence the United States Congress is authorized to pass relevant legislation to establish a civil government for Puerto Rico.

Comments:

Under USMG, the United States flag flew over Puerto Rico from August 12, 1898, until May 1, 1900. During this period, the allegiance of the local populace was to the United States. Moreover, since Puerto Rico was ceded to the USA in the post-war peace treaty, the United States flag continued to fly after the establishment of civil government operations in the territory. The populace continued to give allegiance to the United States.

It is important to recognize that under the military government of the (principal) occupying power, Puerto Rico had not yet reached a final political status. During this period, Puerto Rico was in "interim status" under the law of occupation. This "interim status" condition continued until the military government of the (principal) occupying power was legally supplanted.

PHILIPPINES

In the Spanish American War period, United States Military Government (USMG) in the Philippines began on August 14, 1898, with the surrender of Spanish troops.

The Treaty of Peace between the United States and Spain (Treaty of Paris) was signed on December 10, 1898, and came into force: April 11, 1899. Article 3 specified: "Spain cedes to the United States the archipelago known as the Philippine Islands . . . . ."

In the peace treaty, Spain ceded the Philippines, and the United States was designated as the receiving country. In reality, the transfer of the sovereignty of the Philippines from Spain to the United States was conducted through USMG. This can be explained as follows:

Diagram 2

	Action	Result
1.	Spain has ceded the Philippines in the peace treaty.	In effect, upon the date of cession, Spain has ceded the Philippines to the USMG, and this is an interim status condition.
2.	With Spain's consent, the peace treaty has specified the United States as the "receiving country" for the cession.	Importantly, upon the date of cession, under international law, an authorized civil government for the Philippines, to whom the (principal) occupying power can transfer the administration of the territory, does not yet exist. However, the Philippines has been ceded to the USA in the treaty, hence the United States Congress is authorized to pass relevant legislation to establish a civil government for the Philippines.

Comments:

Under USMG, the United States flag flew over the Philippines from August 14, 1898, until July 4, 1901. During this period, the allegiance of the local populace was to the United States. Moreover, since the Philippines was ceded to the USA in the post-war peace treaty, the United States flag continued to fly after the establishment of civil government operations in the territory. The populace continued to give allegiance to the United States.

It is important to recognize that under the military government of the (principal) occupying power, the Philippines had not yet reached a final political status. During this period, the Philippines was in "interim status" under the law of occupation. This "interim status" condition continued until the military government of the (principal) occupying power was legally supplanted.

GUAM

In the Spanish American War period, United States Military Government (USMG) in Guam began on June 21, 1898, with the surrender of Spanish troops.

The Treaty of Peace between the United States and Spain (Treaty of Paris) was signed on December 10, 1898, and came into force: April 11, 1899. 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."

In the peace treaty, Spain ceded Guam, and the United States was designated as the receiving country. In reality, the transfer of the sovereignty of Guam from Spain to the United States was conducted through USMG. This can be explained as follows:

Diagram 3

	Action	Result
1.	Spain has ceded Guam in the peace treaty.	In effect, upon the date of cession, Spain has ceded Guam to the USMG, and this is an interim status condition.
2.	With Spain's consent, the peace treaty has specified the United States as the "receiving country" for the cession.	Importantly, upon the date of cession, under international law, an authorized civil government for Guam, to whom the (principal) occupying power can transfer the administration of the territory, does not yet exist. However, Guam has been ceded to the USA in the treaty, hence the United States Congress is authorized to pass relevant legislation to establish a civil government for Guam.

Comments:

Under USMG, the United States flag flew over Guam from June 21, 1898, until July 1, 1950. During this period, the allegiance of the local populace was to the United States. Moreover, since Guam was ceded to the USA in the post-war peace treaty, the United States flag continued to fly after the establishment of civil government operations in the territory. The populace continued to give allegiance to the United States.

It is important to recognize that under the military government of the (principal) occupying power, Guam had not yet reached a final political status. During this period, Guam was in "interim status" under the law of occupation. This "interim status" condition continued until the military government of the (principal) occupying power was legally supplanted.

CUBA

In the Spanish American War period, United States Military Government (USMG) in Cuba began on July 17, 1898, with the surrender of Spanish troops.

The Treaty of Peace between the United States and Spain (Treaty of Paris) was signed on December 10, 1898, and came into force: April 11, 1899. Article 1 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."

In the peace treaty, Spain ceded Cuba, but no receiving country was designated. This is a "limbo cession." In reality, the transfer of the sovereignty of Cuba from Spain to the Republic of Cuba was conducted through USMG. This can be explained as follows:

Diagram 4

	Action	Result
1.	Spain has ceded Cuba in the peace treaty.	In effect, upon the date of cession, Spain has ceded Cuba to the "United States Military Government," and this is an interim status condition.
2.	After consideration by all relevant parties, no agreement was reached to specify any other country as the "receiving country" for the cession. Hence, none is stipulated.	Importantly, upon the date of cession, under international law, an authorized civil government for Cuba, to whom the (principal) occupying power can transfer the administration of the territory, does not yet exist. Moreover, no country has been authorized to pass relevant legislation to establish a civil government for Cuba. Cuba remains under "United States Military Government" until USMG is legally supplanted.

Comments:

Under USMG, the United States flag flew over Cuba from July 17, 1898, until May 20, 1902. During this period, the allegiance of the local populace was to the United States. The Republic of Cuba began civil government operations on May 20, 1902, so on that day the United States flag came down, and the Republic of Cuba flag went up. The populace then gave allegiance to the Republic of Cuba.

It is important to recognize that under the military government of the (principal) occupying power, Cuba had not yet reached a final political status. During this period, Cuba was in "interim status" under the law of occupation. This "interim status" condition continued until the military government of the (principal) occupying power was legally supplanted.

TAIWAN

In the WWII period, after the end of military battles in the Pacific, United States Military Government (USMG) in "Formosa and the Pescadores" (aka "Taiwan") began on October 25, 1945, with the surrender of Japanese troops. USMG delegated the administration of this area to the Chinese Nationalists by means of the "law of agency." It is important to recognize that the administration of this area was handled separately from the administration of the four main Japanese islands.

Notes: The law of agency is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself."

The Treaty of Peace with Japan (San Francisco Peace Treaty) was signed on September 8, 1951, and came into force April 28, 1952. The following Articles are important.

Article 2(b):	Japan renounces all right, title and claim to Formosa and the Pescadores.
Article 4(b):	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.
Article 23(a):	. . . . . including the United States of America as the principal occupying Power, . . . . .

In the peace treaty, Japan ceded "Formosa and the Pescadores," but no receiving country was designated. This is a "limbo cession." An analysis of the transfer of the sovereignty of Taiwan from Japan to another civil government (which can justify itself as “legally recognized”) through USMG is provided as follows. (Note: As of 2017-18, this transfer has not yet been completed.)

Diagram 5

	Action	Result
1.	Japan has ceded Taiwan in the peace treaty.	In effect, upon the date of cession, Japan has ceded Taiwan to the "United States Military Government," and this is an interim status condition.
2.	After consideration by all relevant parties, no agreement was reached to specify any other country as the "receiving country" for the cession. Hence, none is stipulated.	Importantly, upon the date of cession, under international law, an authorized civil government for Taiwan, to whom the principal occupying power can transfer the administration of the territory, does not yet exist. Moreover, no country has been authorized to pass relevant legislation to establish a civil government for Taiwan. Taiwan remains under "United States Military Government" until USMG is legally supplanted.

Comments:

Part 1

Under USMG, the United States flag should be flying over Taiwan as of April 28, 1952, (if not earlier). The allegiance of the local populace is to the United States.

It is important to recognize that under the military government of the (principal) occupying power, Taiwan has not yet reached a final political status. During this period, Taiwan is in "interim status" under the law of occupation. This "interim status" condition continues until the military government of the principal occupying power is legally supplanted.

In other words, according to the examples provided above in regard to Puerto Rico, the Philippines, Guam, and Cuba, it is clear that the military government of the principal occupying power does not end upon the coming into force of the peace treaty, but continues until legally supplanted. To date, USMG administrative authority over Taiwan is still active.

During this period of "interim status," Taiwan is entitled to fundamental rights under the US Constitution. For the territory, these fundamental rights include the Article 1, Section 8 stipulation that Congress will provide for the "common defense," which would include all necessary personnel and equipment (paid for by DOD). For the people, these fundamental rights include the protections of life, liberty, property, and due process of law under the Fifth Amendment. Unfortunately, these rights have been denied for over sixty years. Additionally, with no US High Commission established in Taiwan, the Taiwanese people have even been denied the right to petition the Government for a redress of grievances.

Part 2

The handling of Taiwan's post-war situation is in sharp contrast to the handling of the other territorial cessions examined on this website. The ROC officials have always maintained that the completion of the Japanese surrender ceremony has resulted in the immediate annexation of Taiwan's territory by China ( "Taiwan Retrocession Day"). However, whether judging from a comprehensive review of the above Four Precedents, or analyzing related precedent established in dealing with the disposition of other territories after war, we can only conclude that such a “result” is impossible. Therefore, when we study the history of Taiwan, we still have to come to a clear recognition that October 25, 1945, was only the end of the hostilities and the beginning of the military occupation. In other words, there was no transfer of the territorial sovereignty of Taiwan on that day. The announcement of “Taiwan Retrocession Day” is a sham.

Although the surrender ceremony was held on behalf of the Allies, the ensuing military occupation is being conducted on behalf of the legal occupier. During the period of WWII in the Pacific, there are many records of the U.S. military attacks on Japan and Taiwan. However, the records of ROC military attacks on Japan (four main islands) and Taiwan are zero. Therefore, the United States is the conqueror, the United States is also the legal occupier. USMG’s jurisdiction over Taiwan began with the completion of the surrender ceremony. Therefore, in Taiwan, starting from October 25, 1945, the role fulfilled by the United States is “principal occupying power.” The role of the ROC is “proxy occupying forces.”

We must also recognize that Taiwan was Japan's sovereign territory until the coming into force of the peace treaty on April 28, 1952. As a result, when the central government of the ROC moved to occupied Taiwan in December 1949 it was moving outside of China’s national territory and immediately became a "government in exile."

The effective date of Taiwan's cession from Japan is the date of the coming into force of the San Francisco Peace Treaty (SFPT), which is also the date when WWII in the Pacific ended. Although the SFPT specified the cession of Taiwan from Japan, it did not designate the Republic of China as the receiving country. Thus, the promulgation of the ROC Constitution (“Nanjing Constitution”) in Taiwan territory and the establishment of the ROC government system in Taiwan territory are without any legal basis, and in fact may be categorized as war crimes.

In the history of the world, there are only two possibilities for the end of "military occupation" -- one is that the region (area, territory, etc.) itself becomes a sovereign and independent state and the other is that the region becomes part of another sovereign and independent state. In either one of these instances, the "political status" of the region has indeed been determined. For Taiwan, since it does not belong to China and is not independent itself, moreover the U.S. President has never announced the end of USMG jurisdiction over Taiwan, it is clear that Taiwan remains as occupied U.S. territory up to the present day. (Additionally, under the "One China Policy," the U.S. government does not regard Taiwan as belonging to national territory of the People's Republic of China. United States' officials have issued statements about this many times. See CRS Report)

At present in the international community, Taiwan is in a dilemma. The main reason is that its own modern history (at least from the early 1940s up to the present day) has always been interpreted erroneously. While seeking to formulate a more correct view of history, an important concept to remember is that if the people of Taiwan want to “travel their own path,” the organization with which they need comprehensive dialogue is the United States government, not the ROC government, not the PRC government, not the Japanese government, and not the United Nations.

SUMMARY

The Four Precedents

1. In the post-Napoleonic era, a lot of similar examples naturally come together to form "customary law". This is the significance of undertaking a study of the post-war situations of Puerto Rico, the Philippines, Guam, and Cuba (the so-called "Four Precedents").

The Surrender Ceremony

2. At the beginning of our study of the "Four Precedents", the meaning of the completion of the surrender ceremony was immediately seen. This date marked the end of hostilities, and the beginning of the military occupation of the various territories. There was no transfer of territorial sovereignty on that day.

The Peace Treaty

3. In accordance with established practice, the details of any territorial cession are specified in a "peace treaty" at the end of the war, and not merely stated in in a “Communique”, "Proclamation", “Announcement”, "Declaration", etc. or presented as the "Conclusions" to some meeting.

4. The relevant provisions of the peace treaty are the basis for the local people to establish a new government and the basis for the local people to write a new Constitution. In the absence of a designated "recipient country", the relevant territory remains under the jurisdiction of the military government of the legal occupier (i.e. the conqueror).

5. The date on which the peace treaty enters into force is the effective date of the "cession" of territories, and also marks the end of the war. Before this date of cession (i.e. the date of entry into force of the peace treaty), the sovereignty of the (home) country has not yet ended.

Military Occupation and Military Government

6. The "conqueror" is the legal occupier, and the form of administration by which an occupying power exercises governmental authority over occupied territory is known as "military government."

7. During the period of military occupation, documents such as identity cards and passports for the local people should be issued by the "military government" of the legal occupier.

8. In regard to the disposition of territory after war, for any cession of territory, the military government of the legal occupier does not end when the peace treaty comes into force. Legally speaking, this military government of the legal occupier will continue to operate until the civil government formed by the local people (and fully authorized by this military government) begins operations. At that point the military jurisdiction is legally supplanted.

9. It is also worthy of mention that, in regard to any locality or region, the President of the United States will announce the date of the end of the USMG jurisdiction. This is the customary precedent.

10. An area (territory, region, etc.) under "military occupation" has not yet reached a final political status and is therefore often described as having an "undetermined” status. If the military occupation has ended, then the area will have attained a final political status. Accordingly, its status will no longer be described as “undetermined” or “unsettled.”

CUBA & TAIWAN

A closer examination of the situations of Cuba (according to the Treaty of Paris) and Taiwan (according to the San Francisco Peace Treaty) may be made as follows:

Diagram 6

Item	Treaty of Paris specifications for Cuba	SFPT specifications for Taiwan
United States is the (principal) occupying power	Article 1	Article 23
Original "owner" did indeed cede the territory	Article 1	Article 2(b)
No "receiving country" was specified (i.e. "limbo cession")	Article 1	Article 2(b)
USMG has disposition rights over the territory	Article 1	Article 4(b)
Military government is present, and military occupation is a reality	Article 1	Article 4(b) and the Hague Conventions (1907)
USMG jurisdiction continues past the date when the peace treaty comes into effect	Article 1, and the U.S. Supreme Court decision in Cross v. Harrison (1853)	Article 4(b), Article 23(a), and the U.S. Supreme Court decision in Cross v. Harrison (1853)

US Army Field Manual FM 27-10

362. Military Government
Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.

FURTHER EXPLANATIONS

1. Disposition of Territories After War - Common Misconceptions

(a) Many people think that the United States has only the "U.S. Department of Defense" and no "U.S. Military Government," because most people lack an in-depth understanding of the subject of military jurisdiction under the U.S. Constitution. An early explanation of the functioning of the U.S. Military Government can be found in Ex Parte Milligan (1866), a decision of the U.S. Supreme Court. In modern times we can refer to the definition provided in paragraph 362 of U.S. Army Field Manual FM 27-10 : "Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. " Hence, any area under military government jurisdiction is considered to be occupied territory.

(b) Furthermore, any archipelago under the United States Military Government (USMG) jurisdiction is naturally an overseas territory of the United States. The only exception is where there are other provisions in the peace treaty (e.g. becoming a "United Nations trusteeship", etc.). Notably, Article 4 (b) of the San Francisco Peace Treaty of April 28, 1952, makes it very clear that USMG has jurisdiction over the Ryukyus, Taiwan, and certain other places. According to Article 3 of the same treaty, the Ryukyus were elevated to the status of "United Nations trusteeship" but Taiwan was not “elevated” in this way and remained as a United States’ occupied territory.

(c) Many scholars in Taiwan do not study the "laws of war," and point out that since Taiwan was ceded in the San Francisco Peace Treaty without the designation of a receiving country, Taiwan must naturally be classified as "terra nullius." However, this is an incorrect idea. Some other scholars think that since Taiwan originally belonged to China (the Qing Dynasty), after Japan’s relinquishment of sovereignty, Taiwan's territory must immediately return to China. This is a misunderstanding of the disposition of Taiwan as specified in the 1895 Treaty of Shimonoseki. Taiwan was a “cession” of territory, not a “concession,” so after the coming into force of the 1895 Treaty, Japan does indeed have sovereignty over Taiwan, and Taiwan has severed all of its relations with China. (Naturally there is no need to discuss any return to China.)

(d) Large numbers of people object to the idea that Taiwan is occupied territory of the United States because they do not see significant numbers of U.S. military personnel (in uniform) in the streets of Taiwan. However, neither the Hague Conventions nor the Geneva Conventions have any specific requirements for the number of military personnel which the legal occupier must station in occupied territory. In fact, necessary personnel may be stationed in another geographic location if desired. At the same time, even though a particular occupied territory (area, region, etc.) has attained a large degree of self-governance with local members of the populace serving in all governing positions does not change the fundamental legal status of the military occupation. Major decisions regarding the territory and the people are still subject to the decisions of the United States (i.e. the "legal occupier"). This shows that there is a distinction between the "outer" (Republic of China system) and the "inner" (USMG) layers of control.

2. A Correct Understanding of Sovereignty

(e) Many Taiwanese and Chinese scholars maintain that Japan did not have any jurisdiction, control, governance, etc. over Taiwan's territory after October 25, 1945, hence international law cannot be interpreted to say that "Japan's sovereignty over Taiwan continued until the San Francisco Peace Treaty entered into force (i.e. April 28, 1952).” Most probably, such an analysis comes from a misunderstanding of the concept of "sovereignty" itself. In the post-Napoleonic period, international law has recognized that sovereignty consists of two components. The first is the exercise of control over territory. The second is the legal ownership of the territory. For Taiwan, starting from October 25, 1945, the Republic of China was commissioned (or “entrusted”) the territorial control. However, sovereignty over Taiwan has not been acquired unless the ROC obtains the legal ownership of Taiwan in a peace treaty.

(f) With the end of WWII in the Pacific, the international treaty that determines the fate of Taiwan is the San Francisco Peace Treaty (SFPT). This treaty was concluded by multiple countries, and is not just the opinions of certain world leaders or conclusions of various meetings in the 1943 - 1945 period, (such as the Cairo Declaration or the Potsdam Proclamation). The 1952 SFPT only stipulated that Japan should give up its sovereignty over Taiwan. It did not stipulate that Taiwan should belong to the ROC, the People's Republic of China, or China. Based on this, many scholars in Taiwan think that: "Only the Taiwanese people own the sovereignty of Taiwan" or “Regardless of which country is the legal occupier, fundamentally speaking, the sovereignty of Formosa and the Pescadores should be returned to all its inhabitants.” However, a problem arises because what is being stipulated by the peace treaty is "territorial sovereignty." According to the customary international practice, only the government of a country can own "territorial sovereignty," and consequently have the right to make disposition of that territory. If we interpret the SFPT to claim that "the Taiwan people own the sovereignty of Taiwan," such an analysis represents misunderstanding and confusion regarding the concept of "sovereignty" itself.

3. The Dichotomy of International Law

(g) International law can be divided into two parts, namely "peacetime international law" and "wartime international law" (the latter also known as "the laws of war"). In Taiwan, China, and even in many Southeast Asian countries, many international law scholars only learn half of this subject matter, that is -- "peacetime international law."

(h) The easiest way to research the development of the "laws of war" in the post-Napoleonic period is to collect and study many examples of territorial disposition after war. As mentioned above, many similar examples of this type naturally come together to form "customary law." This is because the "laws of war" are not entirely codified, and therefore attach great importance to customary practice.

4. Details of the Laws of War

(i) When issues regarding the disposition of territory arise as a result of war, the determination of "conqueror" is a necessary first precondition for making a resolution. As to who conducts the surrender ceremony, or who appears to be surrendering to whom, etc., these are primarily matters of appearances and formalities associated with that ceremony. These matters do not have any significant effect on the rights and obligations inherent in the legal structure which controls the administration and disposition of the conquered areas. At the same time, we must remember that the surrender ceremony marks the beginning of the military occupation. This is the significance of the surrender ceremony as revealed by studying the Hague and Geneva Conventions.

(j) The "legal occupier" may commission (or “entrust”) the military forces of other countries to conduct the military occupation. If the armed forces of other countries agree to such an arrangement, legally speaking they become "agents," thus automatically forming a principal-agent relationship.

[Note:] The so-called "law of agency" has a long history in the world and was already well established in the Roman era (specifying, for example, that the "agent" must not exceed the purpose or scope of the agency arrangement). Today, “agency” is included in the legal system of all civilized countries.

(k) In speaking of the content of a peace treaty, the verb “cede” and the noun "cession" are used for describing any piece of territory that is being "separated from its mother country." For the ceded territory, there are two possible situations: one is when a receiving country is designated, and the other is when receiving country is not designated. Although surprising to many people, at the time of entry into force of the peace treaty, all ceded territories continue to be under the jurisdiction of the "legal occupier" (i.e. the conqueror). In other words, as stated above, for ceded territories in a peace treaty, "military occupation" does not end with the entry into force of the peace treaty. See Chart

(l) Notably, in regard to the four main Japanese islands, the United States bore the major responsibility for the military occupation, and the other Allied Forces primarily served as advisors or consultants. However, some people still believe that the “legal occupiers” of Taiwan must be recognized as the Allied Forces. However, this is impossible since with the coming into force of the SFPT, the Allied Forces have disbanded, and yet the military occupation of ceded territories continues. We should not forget that the SFPT identifies the United States as the “principal occupying power.”

5. Government in Exile

(m) At the most basic level, a "government in exile" is a government that relocates outside of its own national territory. This is (A) regardless of whether this relocation is accompanied with a very large number of its own people, or a total of less than 75 persons, (B) regardless of the political status of the territory where it relocates itself, and (C) regardless of whether the cause of this relocation was “domestic pressure” or “foreign pressure.” Moreover, international law stipulates that no procedures or methods are available whereby a government in exile can be recognized as the legal government of its current locality of residence.

(n) Some people think that the ROC is a "rump state" with territorial sovereignty over Kinmen (Jinmen) and Matsu (Mazu) but no territorial sovereignty over Formosa and the Pescadores. However, the basic requirement for being recognized as a "rump state" is that the sovereign territory which is still held meets the criteria for becoming a "state." Unfortunately, Kinmen and Matsu are geographically located inside the territorial waters of another sovereign country (i.e. the People's Republic of China). Accordingly, with reference to international law, the territory of the Kinmen-Matsu region cannot form an independent state. Therefore, discussing the current status of the Republic of China based on the argument of being a "rump state" is not particularly meaningful.

(o) Many political figures in Taiwan like to say that Taiwan is not a normal country, however in truth probably every country in the world has one or more aspects which would qualify it to be called “non-normal.” Hence, such a description is not helpful in analyzing how Taiwan’s current problems should be solved. More critical is to recognize that Taiwan territory is currently under a legal condition of military occupation.

GRAMMAR NOTES

It is notable that in the original texts, and historical texts, the following nouns are all used in the singular:

The “occupying power” as spoken of in the Geneva Conventions,
The “occupying state” as spoken of in the Hague Conventions,
The “legal occupier” as spoken of in the laws of war and the laws of occupation,
The “conqueror” as spoken of in the laws of war and the laws of occupation,
The above concepts as spoken of in the customary laws of warfare,
The “principal occupying power” as spoken of in the San Francisco Peace Treaty and other peace treaties,
The above concepts as spoken of in U.S. Supreme Court and international court decisions.