For over fifty years large numbers of people have complained about the inadequacy of "international law" to clearly define the international legal status of Taiwan. Here on our beautiful island, this has had the unfortunate effect of discouraging people to study "international law," because it is felt to be useless. At present, this mindset is quite widespread among the Taiwanese populace, and in fact even among foreigners. For example, in "Letters to the Editor," or in online discussion forums, blogs, etc we often see remarks such as "all those laws, agreements, communiques, etc don't mean anything anymore," or "those old treaties no longer have any validity," and "all those legal details are nonsense," and so forth.
In fact, nothing could be further from the truth. Most importantly, the continuous stream of pronouncements to the effect that "Taiwan is already independent" are not going to win wide acceptance in the world community simply because the legal record shows otherwise. In a nutshell, the "sovereignty" of the former Formosa and the Pescadores was not transferred to the Republic of China in the post-World War II treaty.
Additionally, since the correct legal interpretation of Oct. 25, 1945 is merely the beginning of the military occupation of Taiwan, and "occupation does not transfer sovereignty," the "Republic of China" (ROC) is on very shaky legal ground when it claims to have its own "territory" (as one of the components necessary for statehood). To the casual observer it may appear that the ROC has its own territory, but in fact there has never been an internationally recognized "transfer of title," and without that the ROC (or "Taiwan" for that matter) will never be able to gain wide international recognition.
From the end of the Napoleonic era to the present, all valid territorial cessions have had a clear and unambiguous transfer of title. Taiwan is a territorial cession, and without such a definitive transfer of title, the ROC government cannot legally claim to have ownership (ie, sovereignty) over Formosa and the Pescadores.
Such arguments as "twenty years of democratic development have already made Taiwan into a fully sovereign democratic nation" are of no value, because there is no existing precedent of that nature.
However, as stated above, there is much existing legal precedent to say that a territorial cession, in order to be considered valid, must have a clear and unambiguous transfer of title. I mentioned this crucial fact in a previous letter entitled "A question of sovereignty" (Letters, page 8, Nov. 8, 2004) but unfortunately this was ignored because most readers prefer to think that "all those legal details are nonsense."
But, if the results of the lobbying, parading, speech-making and so on of the past thirty or more years are any indication, I believe that the only possible way out of Taiwan's current "identity crisis" is to find a workable solution under international law.
Such a legal solution will undoubtedly not be full "Taiwan independence," but it may be something very close, such as a self-governing territorial status. If such a self-governing territorial status could be firmly established, then the prospect of full "Taiwan independence" might be attainable thirty years or more down the road.
What options are available? If the people of Taiwan are uncomfortable in joining up with the People's Republic of China, and afraid of having their hard-won freedom and democracy snuffed out, why not join the US? As I pointed out in my Harvard Asia Quarterly article (Fall 2004), it is necessary to read the San Francisco Peace Treaty (SFPT) with a "military mindset" in order to fully understand it. After considering such fundamental aspects as military government, occupation, flag, allegiance, territorial cession and others, it is easy to make a case under both international law and US constitutional law that the US' administrative authority over Taiwan is still active.
Who liberated Iwo Jima? What flag went up there? I think the readers of this newspaper know the answer. Who liberated Taiwan in the 1941 to 1945 period? It was the US. Why didn't the US flag go up on Oct. 25, 1945? When General Douglas MacArthur directed the representatives of Chiang Kai-shek (蔣介石) to come to Taiwan to accept the surrender of the Japanese troops, is that equivalent to authorizing the transfer of sovereignty? Certainly not. Under existing military law and military precedent, the correct procedure would have been to have the US flag flying highest, and the ROC flag flying a bit lower, thus clearly distinguishing their different statuses. One represents the "principal occupying power" and the other the "subordinate occupying power."
In Article 2b of the post-war SFPT, Japan renounced the sovereignty of Formosa and the Pescadores, but no receiving country was specified.
That clause has puzzled civilian legal researchers for over fifty years but it is easily explained if you have a military mindset. By examining the handling of territorial cessions in the Mexican-American War and the Spanish-American War we quickly see that "The military government of the principal occupying power does not end with the coming into force of the peace treaty."
So what flag should have been flying over Taiwan on April 28, 1952 when the SFPT came into force? It is the US flag. Why didn't it happen? That would be a good question to ask at the regular US State Department press briefings in Washington.
When the Shanghai Communique was drafted in 1972, and it was decided that Taiwan should be recognized as a part of China, were the Taiwanese people consulted? Today, concerned individuals could make a very strong case in the US Federal Court system that over the last thirty or more years the State Department and the Oval Office have conspired to systematically deny the Taiwanese people their "fundamental rights" under the US Constitution.
In summary, in order for Taiwan to have a brighter tomorrow, what is needed is solid legal arguments and swift legal action.
Richard W. Hartzell
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