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 (
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
Could Asia be on the verge of a new wave of nuclear proliferation? A look back at the early history of the North Atlantic Treaty Organization (NATO), which recently celebrated its 75th anniversary, illuminates some reasons for concern in the Indo-Pacific today. US Secretary of Defense Lloyd Austin recently described NATO as “the most powerful and successful alliance in history,” but the organization’s early years were not without challenges. At its inception, the signing of the North Atlantic Treaty marked a sea change in American strategic thinking. The United States had been intent on withdrawing from Europe in the years following
My wife and I spent the week in the interior of Taiwan where Shuyuan spent her childhood. In that town there is a street that functions as an open farmer’s market. Walk along that street, as Shuyuan did yesterday, and it is next to impossible to come home empty-handed. Some mangoes that looked vaguely like others we had seen around here ended up on our table. Shuyuan told how she had bought them from a little old farmer woman from the countryside who said the mangoes were from a very old tree she had on her property. The big surprise
The issue of China’s overcapacity has drawn greater global attention recently, with US Secretary of the Treasury Janet Yellen urging Beijing to address its excess production in key industries during her visit to China last week. Meanwhile in Brussels, European Commission President Ursula von der Leyen last week said that Europe must have a tough talk with China on its perceived overcapacity and unfair trade practices. The remarks by Yellen and Von der Leyen come as China’s economy is undergoing a painful transition. Beijing is trying to steer the world’s second-largest economy out of a COVID-19 slump, the property crisis and
Former president Ma Ying-jeou’s (馬英九) trip to China provides a pertinent reminder of why Taiwanese protested so vociferously against attempts to force through the cross-strait service trade agreement in 2014 and why, since Ma’s presidential election win in 2012, they have not voted in another Chinese Nationalist Party (KMT) candidate. While the nation narrowly avoided tragedy — the treaty would have put Taiwan on the path toward the demobilization of its democracy, which Courtney Donovan Smith wrote about in the Taipei Times in “With the Sunflower movement Taiwan dodged a bullet” — Ma’s political swansong in China, which included fawning dithyrambs