Tue, Nov 09, 2004 - Page 8 News List

Powell is right

By Alfred Tsai

US Secretary of State Colin Powell is correct when he states that "Taiwan does not enjoy sovereignty as a nation." Let me review the historical facts, state the issues, analyze and conclude.

After Japan surrendered on Sept. 2, 1945, General MacArthur, in his capacity as Supreme Commander Allied Powers, issued Directive No. 1, where he required the Japanese commanders in Formosa to surrender to Generalissimo Chiang Kai-shek (蔣介石). Ever since September 1945, according to the US Federal Court case Cheng v. Rogers (177 F. Supp. 281), "the United States and the other Allied Powers have accepted the exercise of Chinese authority over the island."

In the Treaty of Peace between Japan and the Allied Powers, which came into force in 1952, of which neither the Republic of China (ROC) nor the People's Republic of China (PRC) is a party, Japan gives up all claims to Taiwan. But it did not cede Taiwan because among legal experts, there is a consensus that cession requires the stipulation of both donor and recipient. The court case says "neither this agreement nor any other agreement thereafter has purported to transfer the sovereignty of Formosa to China."

The same case goes on to say that "The situation is, then, one where the Allied Powers still have to come to some agreement or treaty with respect to the status of Formosa."

In diplomacy, there is a long-standing tradition that occupation does not transfer sovereignty. If a renter occupies a house for many years, he still does not get title. The house still belongs to the owner. Transfers of title or sovereignty must be done through written paper or treaty. Therefore, we must determine the status of the ROC and determine whether it has sovereignty.

The ROC acted under the orders of Supreme Commander Allied Powers and were acting on behalf of the Allied Powers when it came to Taiwan to effect the surrender of Japanese forces. In the Taiwan Relations Act, the ROC ceased to exist, the US began to call Taiwan Taiwan and began using the term "governing authority on Taiwan." The ROC came to Taiwan as an occupation force, and remains an occupational force today, regardless of whether it is called the ROC or the governing authority on Taiwan. To those who say that there has been a regime change in Taiwan, I urge them to read the ROC Constitution, and take a walk to Chiang Kai-shek Memorial and look at the flag that flies over it.

Even though the ROC might have come to Taiwan to claim it for itself, this fact is not recognized in the international arena and, to this day, there is no document granting sovereignty to the ROC. It has been said that sovereignty rests in the people of Taiwan. However, I feel that the people of Taiwan are comparable to renters who occupy a house, and sovereignty was never granted to them by Japan or the Allied Powers.

I am confident that Taiwan does not enjoy sovereignty. But maybe it is not so bad. Taking into account that US courts consider foreign countries to be territory completely within the sovereignty of another state, maybe they will rule that for the purposes of import duties, Taiwan is not a foreign country and thus, imports to the US from Taiwan can enter duty free.

Alfred Tsai

Taipei

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