I enjoyed Frank Chiang's (江永芳) article ("Sadly, Taiwan is not a state," March 12, page 8). Chiang makes a number of excellent points. However, his conclusion is not powerful enough.
For a solution to Taiwan's current international identity crisis, he suggests that "All the government in Taiwan has to do is announce that the people of Taiwan have no desire to unify with China."
While no doubt well-intentioned, it is highly unlikely that such an announcement will have any greater effect than previous announcements opposing the placement of hundreds of Chinese missiles pointed directly at Taiwan. To my knowledge, such pleas to the international community, international organizations, human rights groups and so forth have been completely futile.
Before I outline how Chiang's arguments could lead to a much stronger conclusion, let me first review some basic history of the Spanish-American War. That war began in early 1898, and Cuba was completely under the authority of invading US military forces upon the surrender of Spanish troops there on July 17, 1898. The peace treaty (Treaty of Paris) was signed in December 1898 and came into effect on April 11, 1899. Spain ceded Cuba, but no "receiving country" was specified.
At the time, the consensus of the international community was that Cuba should be an independent country. Hence, the Cuban people were involved in nation building for the next few years.
On May 20, 1902, Cuban independence was recognized, the US flag came down, and the Republic of Cuba flag went up. In this simple sequence of events, we see an outline of how the sovereignty of Cuba was transferred from Spain to the Republic of Cuba via the US military administration.
More specifically, in the post-Napoleonic period, international law recognizes that "territory is considered occupied when it is actually placed under the authority of a hostile army." All military attacks against Spanish installations and fortifications in Cuba were conducted by US military forces, hence the US was the principal occupying power.
This is very close to Taiwan's situation after World War II, and so we can call this a "limbo cession." Unfortunately, the Taiwanese people don't understand how the sovereignty of Cuba was transferred from Spain to the Republic of Cuba between the period of 1898 to 1902. As such, it is impossible for them to understand Taiwan's current international legal status.
As a basic orientation, remember that "military occupation" is conducted under military government, and for the US this is the US Military Government (USMG). Military occupation may be conducted directly or delegated, and hence, the principal occupying power can be considered a subordinate occupying power. The subordinate occupying power is merely acting as an "agent."
For the Cuban people, it is important to note that "Cuban independence" was only one possible outcome of the Spanish-American War. Looking at three types of "limbo cession" scenarios, we see how Cuban independence might have evolved. In the first scenario, suppose that in early 1899, two separate groups began "nation building," by establishing a Congress, drafting a constitution, selecting presidential candidates, writing draft laws and so on. One group might have been in eastern Cuba while the other in western Cuba. In other words, two new "governments" emerged. Who would have decided which "government" is the lawful authority?
In the second scenario, suppose that in early 1899 the Cuban social situation had degenerated into "warring tribes." Although the consensus of the international community was that Cuba should be an independent country, since it had degenerated into warring factions, and no "government of Cuba" was emerging. Who would have decided which was the lawful government of the area?
Scenario three: As an additional complication to either of the above situations, suppose that in 1898 the USMG had delegated the occupation of a number of outlying islands to Venezuelan military forces. At this point the president of Venezuela might suggest to the US president: "Why don't you just let us take over the island of Cuba? Our people share many of the same cultural, religious, and other values with the Cubans, and I am sure they would be happy under our government." Who would have decided whether to adopt this proposal?
The answer to the above question are the same -- the principal occupying power decides. In this situation, the US is the occupying power. In terms of a chain of command, who is at the head of this military power structure? Of course it is the US president, and indeed under the Constitution he has plenary power over foreign affairs.
Let us summarize and clarify all the above before we turn to Taiwan's situation: First, the flag of the principal occupying power should be raised when territory is actually placed under the authority of the hostile army, and this is the beginning of "military occupation." Second, under international law, a military occupation does not transfer sovereignty. Third, it is up to the occupying power to relinquish control to the lawful government of the area. Fourth, in the peace treaty, a "cession of territory," with or without a "receiving country," is easily understood under the laws of war. The designation of a "receiving country" merely means that this country is authorized to establish a civil government in the area.
Fifth, when no "receiving country" is specified, the occupying power will make the final determination of the disposition of the territory. Sixth, since the occupying power has "disposition rights" over the territory, we can say that it is holding the territorial sovereignty in trust. After Cuba came under military occupation by the US and before it was relinquished to the lawful government of the area, the territorial sovereignty of Cuba must be discussed in terms of a fiduciary relationship. The US was the trustee and the people of Cuba were the beneficiaries. The "territory of Cuba" is the trust corpus. Seventh, military government continues until legally supplanted. Eighth, before the end of US military occupation of Cuba, the island was not a sovereign nation.
With keeping this detailed analysis of Cuba in mind, let us turn to Taiwan's situation. During World War II, all military attacks against Japanese positions in Taiwan were conducted by US military forces. Hence, the US was the principal occupying power. Taiwan was administered separately from Japan, and the USMG delegated the administration of Taiwan to Chiang Kai-shek (
On Oct. 25, 1945, Taiwan came under the authority of the hostile army. Chiang called this "Taiwan Retrocession Day," and raised the ROC flag. However, this entire procedure is incorrect, because this date merely marks the beginning of military occupation and not the transfer of sovereignty. The flag of the principal occupying power should have been raised, and the ROC flag would (at most) be the second flag on the flagpole. As with Cuba, the territorial sovereignty was held in trust by the principal occupying power.
Taiwan's international legal position is that of an independent customs territory under US control, with administration delegated to Chiang. As of late 1949, the ROC was a government in exile exercising territorial control over a geographic area where it did not possess sovereignty. According to the San Francisco Peace Treaty, which came into effect on April 28, 1952, Taiwan is in "limbo cession," as spelled out on Article 2b. The US is the principal occupying, as stated in Article 23. The USMG has the authority to make final disposition of Taiwan, as per Article 4b. Hence, as of late April 1952, Taiwan is the unincorporated territory of the US, and the US flag should be flying.
Under the law of occupation, Taiwan has not reached its final status. The USMG in Taiwan has not ended, and the territorial sovereignty is still held in trust by the principal occupying power.
The statement in Frank Chiang's article that "the island has become a territorial entity not subject to any sovereignty," is incorrect. Since Feb. 28, 1972, the PRC has been recognized as the lawful government of the area and a "one China" policy came into effect. Taiwan has been put on a flight path for eventual unification with the China. The fact that the Chinese government does not practice the virtues of freedom and democracy (which are core values of the US system of government) is essentially irrelevant under this legal formulation.
As a verification of the above analysis, former US Secretary of State Powell said that Taiwan is not a sovereign nation. Obviously, the ROC is a government in exile and has no international legitimacy. However, Taiwan's current international identity crisis is easily solved as follows: the Taiwanese people must demand that the US choose to relinquish the territorial sovereignty of Taiwan to its people. Then Taiwan will be an independent nation. Or, the US president and secretary of state must admit that Taiwan is an overseas territory of the US, and that Taiwan's defense and diplomatic affairs should be handled by the US government, while Taiwanese people are entitled to hold a form of "US national non-citizen passport."
I believe that I summarized many of these points in my letter published on Nov. 13, 2004 entitled "US holds nation's sovereignty," although that analysis may have been too brief for many readers to fully understand. My 9,000-word research paper entitled "Understanding the SFPT's Disposition of Formosa and the Pescadores," published in the Harvard Asia Quarterly, Fall 2004 edition, goes into much more detail.
Richard Hartzell
Taipei
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