US holds Taiwan's sovereignty
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By Richard Hartzell
Saturday, Nov 13, 2004,Page 8
Regarding the dispute over Taiwan's sovereignty which has recently made
headlines, I offer the following analysis.
Let's first consider the Cairo Declaration, Potsdam Proclamation and
Japanese surrender documents. Do these have the force of an
internationally binding treaty arrangement to formally transfer the
sovereignty of "Formosa and the Pescadores" to the Republic of China
(ROC)?
No, they are only statements of "intent." Hence, we can analyze the
Taiwan sovereignty question in three steps.
Step 1: From international law it is easily seen that Oct. 25, 1945
marks the beginning of the military occupation of "Formosa and the
Pescadores" by the ROC. Military occupation does not transfer
sovereignty.
Step 2: When the government of the ROC fled to Taiwan in late 1949, it
became a "government-in-exile." The ROC continued to exercise
"effective territorial control" over this area which it was holding
under military occupation.
Step 3: In the post-war San Francisco Peace Treaty and Sino-Japanese
Peace Treaty, the sovereignty of Taiwan was not awarded to the ROC.
Hence, Secretary of State Powell is correct, Taiwan does not enjoy
sovereignty as a nation.
So where is the sovereignty of Taiwan?
Again, we may obtain the answer in three steps.
Step 1: All attacks on Japanese fortifications and installations in
Taiwan during WWII were carried out by US military forces.
According to the "customary laws of warfare in the post Napoleonic
period," the US will be the principal occupying power.
Step 2: General MacArthur, head of the US military government,
delegated matters regarding the Japanese surrender ceremonies and
occupation of Taiwan to Chiang Kai-shek (蔣介石).
This is simply a "principal" to "agent" relationship.
Step 3: In the post-war peace treaties, the sovereignty of Taiwan was
not awarded to the ROC, hence Taiwan remains under the administrative
authority of the US military government, and this is an interim status
condition. In the San Francisco Peace Treaty, Article 4b clearly states
that the US military government has final disposition rights over
"Formosa and the Pescadores."
In addition, Article 23 reconfirms the US as the principal occupying
power.
In effect, the US is holding the sovereignty of Taiwan "in trust," and
in the Shanghai Communique the US president is making arrangements for
the future handover of this sovereignty to the People's Rebpublic of
China, which is recognized as the sole legitimate government of China!
However, at the present time, Taiwan is still under US administrative
authority, and should be enjoying "fundamental rights" under the US
Constitution, as in all other US overseas territories.
Based on the insular cases of the Supreme Court, (and especially
Gonzales v. Williams, 1904) in regard to Puerto Rico, after the treaty
cession, when Puerto Rico was under a US military government (before
the promulgation of the Foraker Act, May 1, 1900) the local people were
"island citizens of the Puerto Rico cession."
Hence, in Cuba, after the coming into effect of the treaty, when Cuba
was under US military government (before independence on May 20, 1902)
the local people were "island citizens of the Cuba cession."
In Taiwan, after the coming into effect of the San Francisco Peace
Treaty, with Taiwan under the administrative authority of the US
military government, the local people are "island citizens of the
Taiwan cession."
Of course, the US flag should be flying. Taiwan is foreign territory
under the dominion of the US, or more technically a "quasi-trusteeship
of insular status under the US military government." The passport
issued to Taiwanese citizens would be similar to a "trusteeship" one,
and would fall under the category of "US national, non-citizen."
This is a jus soli nationality based on the US Supreme Court's insular
cases, and not based on the 14th Amendment to the US Constitution.
Taiwan's citizens do not (will not) have voting rights in US federal
elections.
Richard Hartzell
Taipei