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SPEAKING
FREELY
Taiwan poll should ask about US
sovereignty
By Richard W Hartzell
Speaking Freely is an Asia Times Online
feature that allows guest writers to have their say.
Please click here if you are
interested in contributing.
TAIPEI - In
1895 the Ching court of China concluded the Treaty of
Shimonoseki with Japan, ceding "Formosa and the
Pescadores" to Japan in perpetuity. After World War II,
the Republic of China (ROC) military forces were
directed to come to Taiwan in 1945 and accept the
surrender of Japanese military forces and handle all
matters concerning the occupation of these areas. In the
San Francisco Peace Treaty (SFPT) that came into effect
in 1952, Japan renounced all right, title and claim to
Formosa and the Pescadores. Although these areas were
separated from Japan, they were not joined to any other
nation. The Chinese-Japanese Peace Treaty concluded in
1952 also repeated the provisions of the San Francisco
Peace Treaty. During this entire period of time, and
indeed up to the present day, the People's Republic of
China (PRC), which was founded in 1949, has never ruled
Taiwan.
Even though these facts are clear, yet
it is also true that Taiwan has never been able to
escape the criticism that it is not "an independent
sovereign country", or that "the PRC is the sole
legitimate government of China" - and indeed these
factors have rendered Taiwan's international position to
be something of a dilemma. Whether we are trying to
solve the thorny issue of how President Chen Shui-bian
could pick an appropriate topic for a national
referendum, how Taiwan could get admitted to the World
Health Organization, or how to improve Taiwan's
investment climate - for all of these issues, a clear
statement of Taiwan's correct international position is
a prerequisite.
But what is best procedure for
researching such a statement? We will do well to start
with the concept of "territorial cession".
Whether in the history of the Chinese dynasties
or of the Western nations, all heads of state have had
the experience of adding to their own territory by the
military conquest of neighboring areas. These types of
actions can be called "cession by conquest".
However, in the 1800s and after the end of the
Napoleonic Era, this concept of cession came to be
regarded differently by the world community. World
leaders came to agree that this method of conquering and
seizing new territory was not advantageous to the
maintenance of a proper world order and respect for
human rights. As a result, after nearly 100 years of
consensus-building, in 1907 the Hague Conventions
specified: "Territory is occupied when it is actually
placed under the authority of the hostile army."
Moreover, the international community formed a consensus
that "occupation does not transfer sovereignty", and so
any arrangements for the cession of territory needed to
be clearly stated in an international treaty to be
considered valid.
From this standpoint it can be
seen that the rather ancient concept of "cession by
conquest" underwent a drastic change in the 1800s, and
according to the Hague Conventions could only be
regarded as the "beginning of belligerent occupation".
To be valid under international law, "cession by
conquest" had to be confirmed by "cession by treaty".
Cession in peacetime vs cession by conquest
To look at the situation of the Alaska cession
as an example, after the US secretary of state
negotiated a price of US$7.2 million, Russia agreed to
cede Alaska to the United States. Before the treaty went
into effect on October 18, 1867, Alaska was under the
administrative authority of Russia, but beginning on
that date, Alaska came under the administrative
authority of the US. This simple formulation is how most
people regard the subject of "territorial cession" -
there is one point in time that marks a clear division.
However, it must be noted that this simple formulation
is only applicable to territorial cessions conducted
during peacetime.
For cessions that are the
result of war, it is somewhat more complicated. The
issues of military occupation, the coming into effect of
the peace treaty, and the end of military government of
the hostile power (and subsidiary military forces under
its direction) must all be taken into account. The final
status of "occupied territory" is only achieved when the
principal occupying power has both de facto and de jure
returned this territory to the lawful government of the
area.
Belligerent occupation may be specified as
covering the point in time when the hostile army places
its authority over the territory, or the local troops
surrender, to the point in time when the peace treaty
comes into effect. Friendly occupation, or the "civil
affairs administration of a military government", may be
specified as covering the point in time when the peace
treaty comes into effect until the point when the
military government of the principal occupying power
ends.
Looking at the situation of Taiwan from
this perspective, we note that the head of the US
Military Government, General Douglas MacArthur, directed
the representatives of Chinese Nationalist leader Chiang
Kai-shek to come to Taiwan and accept the surrender of
Japanese military forces - so October 25, 1945, clearly
marks the beginning of the belligerent occupation of
"Formosa and the Pescadores". International law dictates
that "military occupation does not transfer
sovereignty", so of course there was no transfer of
sovereignty on that date. On April 28, 1952, the SFPT
went into effect, but "Formosa and the Pescadores" were
not ceded to the Republic of China, nor to any other
country. And so it follows that the sovereignty of these
areas continues to be held as interim status by the
principal occupying power, which is the United States as
per Article 23. This is a fiduciary relationship, and
not "ownership" or "annexation" per se.
Under
this analysis, it is clear that the "Republic of China
on Taiwan" is not a sovereign nation. This is exactly
the view both of the US State Department and of the
People's Republic of China. (However, after the
publication of my last article in Asia Times
Online, Taiwanese should seek US constitutional
rights, January 31, several readers vehemently
disagreed with this conclusion, stating unequivocally
that the "Republic of China on Taiwan" is indeed a
sovereign nation, and suggesting that this author review
the definition of "sovereignty" in a dictionary.)
Article 1 of the Montevideo Convention specifies
the international legal standards by which nationhood is
adjudged. These are (a) permanent population, (b)
defined territory, (c) government, and (d) the capacity
to enter into relations with other states. However, if
we accept these four stipulations for recognizing a
"sovereign state" in the case of the "Republic of China
on Taiwan", we are immediately faced with the conclusion
that "military occupation does transfer sovereignty" -
which is a clear violation of international law, as
specified in the Geneva and Hague Conventions. Upon
closer analysis it will be found that Article 1 of the
Montevideo Convention is incomplete, and cannot
correctly delineate situations that involve (a) military
occupation or (b) governments in exile. (The author has
completed a lengthy research paper on this subject that
has been linked to the "International Law -
Publications" page of the prestigious FindLaw website.)
San Francisco Peace Treaty and Taiwan's
referendum
SFPT Article 4 (b) states: "Japan
recognizes the validity of dispositions of property of
Japan and Japanese nationals made by or pursuant to
directives of the United States Military Government in
any of the areas referred to in Articles 2 and 3." Up to
the present day, the US administrative authority over
Taiwan is still active, because Taiwan has still not
reached "final status". Under the provisions of the
three US-PRC bilateral communiques, final status will be
achieved when Taiwan unifies with the PRC.
The
Taiwan Relations Act of 1979 is a domestic law of the
United States because Taiwan is still under US
administrative authority. What are missing during this
period of interim status, however, are any provisions
for the Taiwanese to enjoy their fundamental rights
under the US constitution - rights that apply in all
insular areas under US administrative authority.
President Chen Shui-bian's choice of March 20
referendum questions regarding "whether the citizenry
supports enhancing the nation's defenses should China
refuse to openly renounce the use of force and withdraw
the missiles it has targeted at Taiwan, and whether the
government should hold talks with China on cross-Strait
peace and stability" don't seem to be particularly
controversial or meaningful, yet many countries have
openly criticized these referendum questions.
For Taiwan to solve many of the problems with
which it is faced, the Taiwan governing authorities
could offer more meaningful wording for a referendum as
follows: "According to the San Francisco Peace Treaty,
it can be maintained that United States administrative
authority over Taiwan is still active up to the present
day. Do you agree to the United States' administrative
authority over Taiwan, and concur that the United States
Department of Defense should directly and completely
assume responsibility for all of Taiwan's defensive
needs, as it does for the 50 states and all other
overseas US territories?"
Richard W
Hartzell is a researcher into the laws of war, a
columnist and writer who has lived in Taipei for nearly
30 years and is fluent in Mandarin. His interests
include differing Chinese and Western cultural norms,
Chinese language, the US-Taiwan-PRC legal relationship,
military law, laws of occupation, international treaty
law, Chinese and international law, territorial cession
law, US insular law, US constitutional law and US
Supreme Court cases. He can be reached at taiwanmidway@hotmail.com.
(Copyright 2004 Richard W Hartzell,)
Speaking Freely is an Asia Times Online
feature that allows guest writers to have their say.
Please click here if you are
interested in contributing.
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