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The Beginning of WWII in the Pacific
"Yesterday, December 7, 1941 -- a date which will live in infamy -- the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan." President Roosevelt's speech of December 8, 1941, was immediately followed by a Congressional Declaration of War. On the following day, December 9th, the Chiang Kai-shek's Republic of China also declared war against Japan.
Formosa and the Pescadores had been ceded to the Emperor of Japan in the 1895 Treaty of Shimonoseki. Under international law, there is no doubt that the Japanese Emperor had possession of the sovereignty of these areas after 1895, and that he had delegated their administration to the Japanese government.
During the course of the Pacific war, the historical record shows that all military attacks against Japanese Formosa and the Pescadores, and indeed against the four main Japanese islands, were conducted by United States military forces. It is very significant that the Republic of China military forces did not participate. According to the precedent established in the Mexican American War, the Spanish American War, etc., after the end of hostilities, the United States will be the (principal) occupying power of these areas.
In early August 1945, the United States dropped two atomic bombs on Japan, and the Japanese Emperor agreed to an unconditional surrender on August 15th. US troops were in Formosa soon after, and on September 1st, US naval vessels arrived to arrange for the transport of 1,000 US prisoners of war to Manila. On September 2nd, General Douglas MacArthur directed the senior Japanese commanders and all ground, sea, air and auxiliary forces within Formosa to surrender to Chiang Kai-shek (CKS) in General Order No. 1.
The relationship between the United States and the CKS' Republic of China in the military occupation of Formosa and the Pescadores (hereinafter called "Taiwan") is important. The United States is the principal occupying power. The Republic of China under CKS (hereinafter called "ROC") is a subordinate occupying power. General MacArthur gave orders to Chiang Kai-shek, and the Generalissimo accepted them. This is a principal - agent relationship.
The ROC military forces accepted the surrender of Japanese troops on October 25, 1945, in Taipei. The ROC officials immediately announced this occasion as "Taiwan Retrocession Day," however such an announcement is a violation of the laws of war. It is extremely regrettable that the United States government made no efforts to correct this error at the time. This was the first major mistake by the USA in the handling of Taiwanese affairs in the post-war period.
According to the Hague Conventions of 1907, the date of October 25, 1945 can only be interpreted as the beginning of the military occupation of Taiwan. Military occupation is conducted under "military government," and the United States has delegated the military occupation of Taiwan to the ROC. United States Military Government (USMG) in Taiwan has begun as of October 25, 1945.
In January of 1946, the ROC government announced mass naturalization of native persons in Taiwan as "ROC citizens." Additionally, some Taiwanese males were conscripted to fight in the Chinese civil war. (More formal military conscription laws over Taiwanese males were put into effect several years later.) Such unilateral announcements regarding naturalization and military conscription over persons in occupied territory are violations of the laws of war. It is extremely regrettable that the United States government made no efforts to correct these errors at the time. These were the second and third major mistakes by the USA in the handling of Taiwanese affairs in the post-war period.
In late 1949, with a civil war raging in Mainland China, additional military forces and government officials of the ROC fled to Taiwan. As of early 1950, the ROC government in Taiwan is "wearing two hats" -- it is a subordinate occupying power (beginning October 25, 1945), exercising "effective territorial control" over Taiwan, and at the same time it is a government-in-exile (beginning December 1949). Decisions regarding the transfer of the territorial sovereignty of Taiwan will be made in the post-war peace treaty, hence in early 1950 the ROC is clearly not in possession of the territorial sovereignty of Taiwan.
On April 28, 1952, the San Francisco Peace Treaty (SFPT) came into force. The Japanese government renounced all administrative rights over Taiwan in Article 2b, however, no receiving country was specified. The Japanese Emperor still holds Taiwan's territorial sovereignty, although his rights have been suspended by the fact of Taiwan's military occupation and the restrictions on the Emperor's powers in the new Japanese Constitution of May 3, 1947. The United States is confirmed as the principal occupying power in Article 23. Final disposition of Taiwan will be according to the directives of USMG, as per Article 4b:
Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to the directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.
The ROC on Taiwan
As we know, the ROC is the legal government of "China" as spoken of in WWII. However, the ROC failed to maintain its legal position when it fled to Taiwan in late 1949. As of late April 1952, with the coming into force of the SFPT, the ROC is not the legally recognized government of Taiwan; it is merely a subordinate occupying power and government in exile.
With this recognition, an analysis of Taiwan's position under international law and US Constitutional law from late April 1952 up to the present day can proceed very straightforwardly. An examination of the situation of Cuba after the Spanish American War and the Ryukyus after WWII provides the necessary legal background.
Cuba, the Ryukyus, and Taiwan
The Hague Conventions of 1907 specify that "territory is considered occupied when it is actually placed under the authority of the hostile army." The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." The military government of the principal occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted.
United States Military Government in Cuba began on July 17, 1898, with the surrender of Spanish troops. The United States was the (principal) occupying power. The Treaty of Paris came into force on April 11, 1899, and Cuba was a limbo cession in Article 1. However, the Republic of Cuba government, established to provide a civil government for Cuba (and supplant USMG), only began operations on May 20, 1902. Based on the rulings in Downes v. Bidwell (1901) and Neely v. Henkel (1901) it is clear that upon the coming into force of the peace treaty, Cuba became "unincorporated territory under USMG." Indeed, the United States flag flew over Cuba from July 17, 1898, until the formal end of USMG in Cuba was proclaimed by the US President on May 20, 1902.
United States Military Government in the Ryukyus began on June 23, 1945, with the surrender of Japanese troops. The United States was the (principal) occupying power. The San Francisco Peace Treaty came into force on April 28, 1952, and the Ryukyus were elevated to the status of a United Nations Trusteeship, with the United States as the sole administering authority, as per the specifications in Article 3.
United States Military Government in Taiwan began on October 25, 1945, with the surrender of Japanese troops. The United States is the principal occupying power. The San Francisco Peace Treaty came into force on April 28, 1952, and the Japanese government's disposition of Taiwan was made in Article 2b. Upon the coming into force of the peace treaty, Taiwan has become a quasi-trusteeship under USMG. As of late April 1952 (if not earlier), the United States flag should be flying over Taiwan. To date, there has been no announcement by the US President of the formal end of USMG in Taiwan. Importantly however, the Taiwan Civil Government (TCG) was founded in Taipei on February 2, 2008, and is currently doing active coordination with the Dept. of Defense and other Executive Branch agencies to carefully implement a new governmental organizational structure for Taiwan.
Unfortunately, over the past 65 years the Taiwanese people have been forced to accept ROC citizenship without any internationally recognized legal basis, and males are subject to military conscription in violation of the Geneva Conventions. The Taiwanese people are living under the ROC Constitution, and in their daily lives they are singing the ROC national anthem, raising the ROC flag, and recognizing an ROC national father. The ROC on Taiwan is a non-state, but the ROC constitutional structure in force specifies that insurrection or rebellion against the ROC is punishable by death or lengthy imprisonment!!
Indeed, the myriad mistakes by the USA in the handling of Taiwanese affairs in the post-war period are extremely regrettable.
The One China Policy
With the coming into force of the SFPT in 1952, a clear basis for the future development of Japan was established. However, the situation of Taiwan was a total mess.
We do not dispute the One China Policy, but at the same time it must be recognized that Taiwan is Taiwan and China is China.
In the Shanghai Communique of February 28, 1972, the following wording is particularly important:
The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves. With this prospect in mind, it affirms the ultimate objective of the withdrawal of all US forces and military installations from Taiwan.
Some have argued that this is a very convoluted way of saying that "Although Taiwan is not a part of China, we want everyone to think that it is." This is certainly worthy of further examination.
That the Commander in Chief has the right to make "dispositions of the property of Japan," in accordance with SFPT Article 4b, we do not challenge. However, we do maintain having done no prior consultation with the Taiwanese people, making a decision to put Taiwan on a "flight-path" for eventual unification with the PRC does violate the rights of the Taiwanese people to life, liberty, property, and due process of law under the Fifth Amendment. These Fifth Amendment protections are "fundamental rights" under the US Constitution, and apply in all overseas territories under the jurisdiction of the USA even without any actions by the US Congress.
Misleading the US Congress?
The State Department informed the Senate in 1970 that "As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution."
This statement was repeated in a "Subject: Legal Status of Taiwan" Memorandum from the Department of State Legal Advisor on July 13, 1971, and has been often repeated since. Is this willful ignorance of the truth . . . . . or some type of politically motivated cover-up? Might it indicate collusion with the China lobby, funded by Generalissimo and Madame Chiang Kai-shek? Or is it simple negligence?
We believe that after reading this entire essay, all members of the public will understand why the "ROC on Taiwan" is not an internationally recognized government, while at the same time the Taiwan Relations Act is a domestic law of the United States. Moreover they will understand why when tensions flared between the PRC and Taiwan 1996, the US Commander in Chief sent two aircraft carriers into the Taiwan Strait without any previous consultation with the Taiwan governing authorities. Significantly, the "ROC on Taiwan" has been unable to obtain admittance to the United Nations, and has been refused membership in such important international bodies as the World Health Organization. Why is this?
On October 25, 2004, in a press conference in Beijing, former Secretary of State Powell stated: "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy." We agree with Mr. Powell's statement entirely.
The Situation in 2012 and 2013
We strongly urge that the members of Congress and other responsible US government officials consider the following actions:
* Suspension of the operations of the ROC Ministry of National Defense. The US Constitution states that Congress will provide for the common defense. Guam, Northern Mariana Islands, American Samoa, Puerto Rico, and the US Virgin Islands are the five pre-existing major overseas territories under the jurisdiction of the USA, and none of these have their own Ministry of National Defense, nor have they instituted military conscription laws over their local populace. All defense matters for the fifty states and territories under US administrative authority are handled by the Department of Defense in the Pentagon.
* Authorization for the US Department of Defense to assume full responsibility for the defense of Taiwan, and to increase the deployment of military equipment and personnel in the western Pacific in order to protect United States' interests. This would include the establishment of US military bases on Taiwan.
* Suspension of the operations of the ROC Ministry of Foreign Affairs. All diplomatic and consular matters for the fifty states and territories under US administrative authority are handled by the Department of State.
* Establishment of the "United States Court of Taiwan." Under the US Constitution, this would be an Article II Court, and would serve to protect the rights of US citizens in Taiwan and deal with other important matters regarding US administrative authority over Taiwan. The issue of whether this Court or a separate tribunal would deal with the alleged war crimes perpetrated by ROC government officials could be decided at a later date.
* Authorization for the Taiwanese people to begin preparations for the taking over of all government functions now handled by the Republic of China government in exile, beginning with the operations of the Customs Service, Ministry of Interior, Ministry of Finance, Central Bank, etc.
* Authorization for the Taiwanese people to obtain new "Travel Documents," issued by the United States government.
* Authorization for US military personnel in Taiwan to wear their uniforms when conducting daily activities, and for the US flag to be raised in all prominent locations throughout the island.