In Frank Chiang's (江永芳) article ("Taiwan is in no way a US territory," June 15, page 8), he makes a number of important points: First, a victorious state which occupies the territory of a defeated state does not acquire a claim to the occupied land by means of occupation. Second, the US, as a major allied power during World War II, delegated its power to occupy and administer Taiwan to Chiang Kai-shek's (蔣介石) government, the ROC. And third, a victorious state is merely considered an administrator of occupied territory.
In the American Insurance Co case which Chiang cited, Chief Justice John Marshall, stated: "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."
All allied military attacks against Taiwan during World War II were conducted by US military forces. Hence the US acquired Taiwan under the principle of conquest. The US was the principal occupying power.
ROC military forces accepted the surrender of Japanese troops on Oct. 25, 1945. No special legal relationships arises from that event, except that it marks the beginning of the military occupation of Taiwan. In international customary law, legal relationships arise from a consideration of "Who is the occupying power?"
In General Order No.1, General Douglas MacArthur gave instructions for the handling of the surrender ceremonies and military occupation of over twenty areas. He directed Chiang Kai-shek to come to Taiwan, and the generalissimo followed these instructions. A principal-agent relationship was created.
The US was the "occupying power" or more specifically it was the "principal occupying power" (because the law of agency was invoked.)
According to the San Francisco Peace Treaty, Japan renounced its claims to the islands of Taiwan and Penghu without designating a transferee. Importantly, examination of the Spanish American War cessions of Puerto Rico, Guam, the Philippines and Cuba clearly shows that the military government of the (principal) occupying power does not end with the enactment of a peace treaty. United States Military Government (USMG) authority over Taiwan has continued up to the present day.
The Shanghai Communique offers definitive proof that the above analysis is correct. That communique made arrangements for the disposition of "occupied Taiwanese territory."
Where does the US president get the authority to make such arrangements? It is because the US was the "conqueror" and the "principal occupying power" of Taiwan.
Since the peace treaty failed to name a transferee, the USMG has disposition rights over "occupied Taiwanese territory." Article 23 specifies the US as the "principal occupying power." Obviously, the president is the head of the US military.
Additionally, from 1952 to the present, there has been no announcement of the end of USMG in Taiwan. By contrast, the end of USMG jurisdiction in Puerto Rico, Guam, the Philippines and Cuba was made by US presidential proclamation. Hence, Taiwan is still under the jurisdiction of the USMG.
Yes, the people of Taiwan are entitled to decide their own future which has been delayed since the end of World War II, though at present the people of Taiwan de facto collectively own the island. Does it mean Taiwanese people legally own their territorial sovereignty now? If so, then, why is Taiwan not a member of the UN?
If Taiwan is in no way a US territory now, then USMG as the principal occupying power should voluntarily help Taiwan's people to have a fair referendum, and hand territorial sovereignty over to the people of Taiwan.
Former US secretary of state Colin Powell said "Taiwan is not independent. It does not enjoy the sovereignty of a nation." Does he not mean that the sovereignty of Taiwan is still held by the USMG? Otherwise, who legally possesses sovereignty of Taiwan today?
Love of Taiwan Association
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