Thu, Aug 10, 2006 - Page 8 News List

Taiwan is an abandoned territory

By Frank Chiang 江永芳

This article is a belated response to John Hsieh's letter (Letters, June 25, page 8). His piece referred to my earlier article ("Taiwan is in no way a US territory," June 8, page 8) and also touched upon some issues concerning the sovereignty of Taiwan.

Due to space constraints, this article will be confined to discussing his claim that the US acquired title to the island of Taiwan by conquest within the framework of international law.

There are three principal sources of international law: treaties, including international conventions; international custom; and general principles of law recognized by civilized nations. The International Court of Justice (the World Court) applies rules of international law arising out of these sources to adjudicate cases brought before it.

Treaties are signed by nations, or parties, which agree to be bound by the provisions of the treaty. Multilateral treaties or international conventions are agreements between many nations, which create norms of conduct and may become rules of international law that bind the parties, as well as nonparty states. International customs arise out of the consensus of the nations on practices, or are based on the writings of ancient influential writers. Hugo Grotius explained in his work The Law of War and Peace that a body of international law was created by the practices of the Western states.

In my earlier article, I asserted that the US did not acquire title to the island of Taiwan after World War II when it requested and allowed the Republic of China to occupy and administer Taiwan. The island of Taiwan did not become US territory under these circumstances because the US Supreme Court has ruled that "the victorious state is considered merely an administrator, not the owner, of the enemy's territory which it occupies during a war; a rule of international law on territory is, if the defeated state is not entirely annexed by the victorious state, then a transfer of a territory from the defeated state to the victorious state must be achieved by a treaty."

This rule is from a 1828 case called American Insurance Co v Cantor (the "American Insurance") and is further supported by the 1907 Hague Convention Respecting the Laws and Customs of War on Land.

The rule of international law which I referred to above is a customary rule developed from state practices concerning the transfer of territory between nations. The most common way of transferring territory between nations is by treaty. Alsace and Lorraine changed hands between France and Germany many times. Each time, the transfer was by treaty: France acquired Alsace from Germany by the Peace of Westphalia in 1648 after the Thirty Years War; Germany re-acquired Alsace and Lorraine from France by the Treaty of Versailles in 1871 after the Franco-German War; France again acquired Alsace and Lorraine from Germany under the Peace Treaty of Versailles of 1919 at the end of the World War I.

Other examples of transfer of territories by a treaty after a war include the Congress of Vienna (1815), which settled the territories among the European states at the end of the Napoleonic Wars; the Treaty of Nanking (1842), in which China ceded Hong Kong to Great Britain at the end of the first Opium War; the Treaty of Shimonoseki (1895), in which China ceded Formosa (the island of Taiwan) and the Pescadores (Penghu) to Japan at the end of the Sino-Japanese War; and the Treaty of Paris (1898), in which Spain ceded Puerto Rico, the Philippines and Guam to the US at the end of the Spanish-American War.

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