Taiwan: An Overseas Territory under United States Military Government

by Richard W. Hartzell*

Acknowledgements**

Part I. Introduction

Taiwan’s international legal position has confused legal researchers for over fifty years. In fact, with a basic knowledge of the laws of war and military jurisdiction under the US Constitution, a derivation of Taiwan’s status is not overly difficult. An examination of the arrangements for the Ryukyu Islands in the San Francisco Peace Treaty (SFPT)1 of 1952, followed by later historical events, provides the basic parameters.

Article 3 of the SFPT provides: Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto south of 29deg. north latitude (including the Ryukyu Islands and the Daito Islands), Nanpo Shoto south of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.

* Born in Dayton, Ohio in 1951; B.S. Economics, Wharton School, Univ. of Penn., Philadelphia, Penn. After taking up his initial residency on the island in 1975, Mr. Hartzell was able to observe the curious situation of Taiwan’s political, social, and legal developments for several decades. His systematic research into Taiwan’s international legal status began in mid-2000. ** The author wishes to express his sincere appreciation to Dr. Roger C. S. Lin who has worked untiringly to promote and publicize the author’s research results both in Taiwan and in Taiwanese groups overseas. Dr. Lin was born in Taiwan in 1950, and has a Ph. D. in international law from Meijo University, Nagoya, Japan. He currently serves as Convener of the Taiwan Civil Government Establishment Committee of both the Taiwan Nation Party and the Taiwan Civil Action Party, while actively liaisoning with other political parties and NGOs in Taiwan.

After an initial meeting in Jan. 2005, Dr. Roger C. S. Lin and the author decided to collaborate in further investigation into Taiwan’s legal status. Based on the author’s research, Dr. Lin organized a group of native Taiwanese persons and the members of the Taiwan Nation Party to file a Complaint for Declaratory Relief in the United States District Court for the District of Columbia in late Oct. 2006. Lin et. al. v. United States of America is still being adjudicated at the time of this writing. 1 Treaty of Peace with Japan, Sept. 8, 1951, Allied Powers-Japan, 136 U.N.T.S. 46 (entered into force Apr. 28, 1952)

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Article 4(b) of the SFPT provides: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.

The property2 spoken of here is clearly not only limited to real estate in the Ryukyu islands, but to the “title” (or “territorial sovereignty”) to the Ryukyu islands as well. Such a disposition will have been achieved when United States Military Government (USMG) jurisdiction over the Ryukyu islands has ended.

The criteria for determining the end of USMG jurisdiction is easily derived by examining the situations of Puerto Rico, the Philippines, and Cuba after the Spanish American War. The Treaty of Paris (Spanish American Peace Treaty)3 came into effect on April 11, 1899. USMG jurisdiction over Puerto Rico ended on May 1, 1900, with the establishment of civil government for Puerto Rico. USMG jurisdiction over the Philippines ended on July 4, 1901, with the establishment of civil government for the Philippines. USMG jurisdiction over Cuba ended on May 20, 1902, with the establishment of civil government for Cuba.

As the last of the Article 3 territories to be returned to Japan, USMG in the Ryukyu Islands ended on May 15, 1972, when the sovereignty of the island chain was transferred to Japan.4 In other words, USMG jurisdiction over this Article 3 territory was supplanted by a Japanese civil government. This date of May 15, 1972 was fully announced and widely publicized, and indeed has become part of the historical and legal record.

Military government is the form of administration by which an occupying power exercises government authority over occupied territory. In the practice of the United States, such authority has also been used in the administration of trust territories. After overviewing the information presented above, it is clear that the end of USMG jurisdiction is given by the rule: “Military government continues until legally supplanted.”

Now, turning back to the situation of “Formosa and the Pescadores” (aka Taiwan),

2 Property -- (1) something, as land and assets, legally possessed, (2) a piece of real estate, (3) something tangible or intangible to which its owner has legal title, (4) the right of ownership; title.3 Treaty of Peace between the United States of America and the Kingdom of Spain, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754 (entered into force Apr. 11, 1899)4 Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands, June 17, 1971, commonly called the Okinawa Reversion Agreement, (entered into force May 15, 1972), available at http://www.niraikanai.wwma.net/pages/archive/rev71.html

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Article 2(b) of the SFPT provides:Japan renounces all right, title and claim to Formosa and the Pescadores.

Article 4(b) is as given above. However, after diligent research covering the period of 1952 to the present, the author can find no record of any announcement by the US Executive Branch, and in particular of the Commander in Chief, regarding the end of USMG jurisdiction over Taiwan. Hence, only one conclusion can be reached: USMG jurisdiction over Taiwan is still active.5 To put this another way, at the present time Taiwan remains as “occupied territory,” and the occupying power is the United States of America.

In order to present all the details regarding Taiwan’s international legal position in a comprehensive fashion, Part II. of this article will first overview the key legal parameters of WWII in the Pacific and its aftermath. Part III. will present important background information on US Army Regulations and insular area studies. Part IV offers a detailed commentary on the Taiwan question from the viewpoint of several key paragraphs in US Army Field Manual FM 27-10 “The Law of Land Warfare.” Part V. gives a preliminary listing of the major war crimes committed in relation to the handling of the Taiwan issue in the period 1945 to today. Part VI. will then examine the legal rationale for the establishment of the United States Court of Taiwan, a military commission which will have the authority to deal with all relevant and unsettled legal issues.

Part II. The Key Legal Parameters of WWII in the Pacific and its Aftermath

5 Many Taiwan independence advocates maintain that when Japan ceded Taiwan in the SFPT without specifying a “receiving country,” the sovereignty of Taiwan reverted to the Taiwanese people. However there is no doctrine under international law to support such a premise. Contrastingly, in reviewing the well known situations of Louisiana in 1803, Florida in 1821, California in 1848, Alaska in 1867, Puerto Rico, Guam, Philippines, etc. in 1899, Virgin Islands in 1917, etc. it is quite evident that “territorial cession” is an action between governments, and what is being ceded is public property, i.e. that property which belongs to the government. For example, speaking of the Adams-Onis Treaty (aka Florida Purchase Treaty, entered into force: Feb. 22, 1821), in Doe Ex Dem Clark v. Braden, 57 U.S. 635 (1853), the Justices analyzed that: “This treaty with Spain in the consideration of the 8th article, and of the clauses of territorial cession, has been by the Supreme Court always determined to design no departure from the great principle of civilized justice, and of modern international law, that in no transfer of a territory can any domain be passed or be accepted from the ceding nation than what belongs to the government -- the public property. That property alone, and the sovereignty of the transferred region, are the only legitimate objects of such international transactions, and the sovereignty is to be esteemed the primary object. The court has said that the express terms of this treaty deferring to private rights, were not needed for thus limiting the treaty's scope; and the 8th article is not to be regarded as enlarging the cession of property.”

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Background: In the aftermath of the First Sino-Japanese War, Qing China6 ceded Taiwan to Japan. Following the 1895 Treaty of Shimonoseki,7 Japan exercised sovereignty over Taiwan and held title to its territory. The Republic of China was founded in 1912, with Dr. Sun Yat-sen as the provisional president.8 Taiwan, however, having come under Japanese rule in 1895, was not part of the ROC in the early years of the 20th century.9

The following historical and legal details are important for understanding Taiwan’s true situation in the world today.

(1) The US entered the Pacific War against Japan on Dec. 8, 1941. All military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by US military forces,10 as confirmed in numerous published sources.11 The United States is the “conqueror” and will be the principal occupying power.

(2) The Republic of China (ROC) was entrusted with authority over Formosa and the Pescadores based on the specifications of General Order No. 1,12 issued on of Sept. 2, 1945, the day of the Japanese surrender.13 General Douglas MacArthur issued General Order No. 1 directing the “senior Japanese commanders and all ground, sea, air and auxiliary forces within . . . Formosa” to “surrender to Generalissimo Chiang Kai-shek.” Nothing in the post-war San Francisco Peace Treaty (SFPT) nor in any other treaty executed by or between the ROC and the other Allied Powers has altered this arrangement.

6 Taiwan became part of the Chinese Empire in 1683 following the fall of the Ming Dynasty and the establishment of the Qing Dynasty. See, e.g., Jonathan I. Charney and J. R. V. Prescott, Resolving Cross-Straight Relations between China and Taiwan, 94 A.J.I.L. 453, 453-456 (2000). 7 Treaty of Peace, Apr. 17, 1895, China-Japan, 181 Consol. TS 217 (entered into force May 8, 1895).8 After Sun's death in March 1925, Chiang Kai-shek became the recognized leader, establishing a Nationalist Government in Nanjing in Oct. 1928.9 It can also be argued that the ROC government has never completed any relevant legal procedures to “incorporate” Taiwan into Chinese territory. Art. 4 of the ROC Constitution (entered into force Dec. 25, 1947) specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged inclusion of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.10 In Formosa Betrayed, George H. Kerr indicates the beginning of such US aerial bombardment as Thanksgiving Day 1943, and gives further information on bombing raids throughout 1944. See Formosa Betrayed, Chapter 2, by George H. Kerr, Houghton Mifflin Co., Boston, Mass. (1965), republished Taiwan Publishing Co., Irvine, Calif. (1992). 11 In Untying the Knot, Richard Bush also states that US airplanes had begun bombing targets on Taiwan in November 1943. See Untying the Knot, Chapter 2, by Richard C. Bush, Brookings Institution Press, Washington, D.C. (2005) 12 Supreme Commander for the Allied Powers General Order No. 1, Sept. 2, 1945, J.C.S. 1467/2.13 The Japanese representatives signed the Instrument of Surrender aboard the battleship USS Missouri anchored with other United States and British ships in Tokyo Bay. Separate surrender ceremonies were held in Taiwan, and the military occupation of Taiwan was conducted separately from that of the four main Japanese islands.

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(3) Although the surrender ceremonies in Taiwan on Oct. 25, 1945, were ostensibly conducted on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of the principal occupying power – the United States of America.14

(4) Following the acceptance of the surrender of Japanese forces in Taiwan by the representatives of Chiang Kai-shek's government, Taiwan remained de jure Japanese territory. General Douglas MacArthur stated at a congressional hearing in May 1951, “legalistically Formosa is still a part of the Empire of Japan.”15 The ROC government occupied Taiwan on behalf of the principal occupying power pending a peace treaty with Japan, which would change the legal status of Taiwan. In other words, the surrender ceremonies for Japanese troops did not signify any transfer of Taiwan sovereignty to the ROC.

(5) The Hague Regulations of 1907 specify: “Oath of Allegiance Forbidden: It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.”16 Hence, the Jan. 1946 military order authorizing mass naturalization17

of native Taiwanese persons as ROC citizens is illegal under international law. Additionally, some important treaty provisions have remained in limbo for over fifty years because no ROC laws (including the Nationality Law) have ever been updated to reflect any mass naturalization of native Taiwanese persons as ROC citizens in the post-1945 era.18

14 Chinese scholars have traditionally placed much emphasis on the fact that “the Japanese troops in Taiwan surrendered to the Republic of China,” while ignoring the United States’ role as the conqueror and the principal occupying power. 15 See Statement by General Douglas MacArthur, N.Y. Times, May 5, 1951, at A7; see also Y. Frank Chiang, One-China Policy and Taiwan, 28 Fordham Int’l L.J. 1, 16, n.72 (2004). 16 See Annex to Hague Convention No. IV, 18 October 1907, embodying the Regulations Respecting the Laws and Customs of War on Land, Art. 45; also quoted in FM 27-10 para. 359.17 Although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the "legal basis" of native Taiwanese persons as having ROC nationality is a Jan. 12, 1946, order issued by the ROC military authorities. However, that order was never ratified by the Legislative Yuan, nor made into a law. Importantly, as "belligerent occupation" of Taiwan began on Oct. 25, 1945, with the surrender of Japanese troops, and only ended with the coming into force of the SFPT on April 28, 1952, such an order is prohibited.18 Article 10 of the Sino-Japanese Peace Treaty (aka “Treaty of Taipei”) of Aug. 5, 1952 specifies: "For the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendents who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores)...." The ROC Nationality Law was originally promulgated in Feb. 1929, when Taiwan was a part of Japan. It was revised in February 2000, however there were no Articles addressing the mass naturalization of Taiwanese persons as ROC citizens. Nor have any other laws in the ROC addressed this mass naturalization issue in the post-1945 period. Hence, the conditions of Article 10 of this Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan...." have yet to be fulfilled.

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(6) The US position regarding the legal status of Taiwan after the Oct. 25, 1945 surrender ceremonies was been continually stated as "undetermined." This was reflected in the Truman Statement of June 27, 1950,19 and repeated again in a 1971 State Dept. Memorandum.20

(7) When the ROC fled to occupied Taiwan in December 1949, it became a government in exile.21

(8) Pursuant to the SFPT, Japan renounced its sovereignty over Taiwan and title to its territory. SFPT Article 2(b) read: "Japan renounces all right, title and claim to Formosa and the Pescadores."

(9) China never became a party to the SFPT. Neither the ROC government, which occupied the island of Taiwan as agent for the principal occupying power, nor the government of the People's Republic of China (PRC), established on Oct. 1, 1949, signed or ratified the SFPT.

(10) SFPT Article 25 specifically provided that the Treaty did "not confer any rights, titles or benefits on any State which [was] not an Allied Power [as defined in Article 23(a),]" subject to certain narrow exceptions set forth in Article 21. Accordingly, China, a non-party, did not receive "any right, titles or benefits" under the SFPT except as specifically provided in Article 21.

(11) Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan. The parties to the SFPT chose not to give any "right, title [or] claim to Formosa and the Pescadores" to China.

(12) While SFPT Article 2(b) did not designate a recipient of "all right, title and claim to Formosa and the Pescadores," Article 23 confirmed the US as "the principal occupying power" with respect to the territories covered by the geographical scope of the SFPT, including "Formosa and the Pescadores." Article 4(b) further confirmed the jurisdiction of the United States Military Government over Taiwan.

19 See a more detailed discussion of the Truman Statement in Part IV of this article.20 Memorandum from the Department of State Legal Advisor (L/EA - Robert I. Starr) to the Director of the Office of Republic of China Affairs (Charles T. Sylvester], July 13, 1971, "Subject: Legal Status of Taiwan." This memorandum is reprinted as Appendix C in John J. Tkacik, ed., Rethinking One China (Washington, D.C.: The Heritage Foundation, 2004), p. 181.21 A government in exile may be defined as “A political group that claims to be a country's legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country,” or more simply as “A government established outside of its territorial base.”

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(13) The Treaty of Peace between the ROC and Japan (aka the "Treaty of Taipei"),22 entered into force on August 5, 1952, did not transfer sovereignty over Taiwan from Japan to China either.23

(14) The SFPT did not terminate the agency relationship between the US, the principal, and the ROC, the agent, with regard to the occupation and administration of Taiwan.24

(15) In the aftermath of the SFPT, the governments of the leading allies interpreted the SFPT to mean that no state acquired sovereignty over Taiwan and title to its territory.25

For example, United States Secretary of State John Foster Dulles told the Senate in December 1954, “[the] technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese peace treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese peace treaty, nor is it determined by the peace treaty which was concluded between the [ROC] and Japan.”26 Likewise, British Foreign 22 Treaty of Peace with Japan, Apr. 28, 1952, R.O.C.-Japan, 163 U.N.T.S. 38 (entered into force Aug. 5, 1952). 23 Art. 2 of the Treaty of Taipei provides: “It is recognised that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands.”

While downplaying these Art. 2 provisions, many Chinese scholars have traditionally placed much emphasis on the fact that in the post-war treaty arrangements, Japan renounced the sovereignty of Formosa and the Pescadores and then concluded the bilateral Treaty of Taipei with the ROC. Hence, (in their view) under international law, the ROC must be interpreted as the recipient of the sovereignty of these areas, since one country “renounced,” the other naturally “received.” Such an interpretation is incorrect however. Two important considerations must be noted: (1) Under Art. 2(b) of the SFPT (effective April 28, 1952) Japan renounced “all right, title and claim to Formosa and the Pescadores.” Obviously, after this date Japan could no longer make any further disposition of these areas, and notably the Treaty of Taipei only came into effect on Aug. 5, 1952. Moreover, (2) the Treaty of Taipei is a subsidiary treaty under the provisions of SFPT Art. 26, and its provisions cannot exceed those of the SFPT. 24 The ROC is not a signatory to the SFPT, and according to the provisions of Article 25 cannot be considered one of the Allied Powers under the treaty. As a result, nothing in the SFPT can give any weight to an assertion (by numerous scholars) that the “ROC on Taiwan” represents the “Allied Powers” or that it is an organ established by the Allies. Under Article 2(b), Japan has all right, title and claim to Taiwan without naming a “receiving country,” however under Article 4(b), United States Military Government (USMG) jurisdiction over Taiwan is active, hence the role of the ROC as an agent for USMG is quite apparent. Additionally, Article 23(a) recognizes the USA as the “principal occupying Power,” a choice of terminology which strongly suggests that there is/are “subordinate occupying power(s)” exercising delegated administrative authority for the military occupation of particular areas which are included within the geographic scope of the treaty. See further commentary on this aspect in Part IV of this article in the discussion of FM 27-10, para. 353.25 However, the leaders of the Allies may have failed to comprehend the full significance of military jurisdiction under the US Constitution. For example, in the concurring opinion by Justices White, Shiras, and McKenna in Downes v. Bidwell, 182 U.S. 244 (1901), it was stated: “It cannot be denied that under the rule clearly settled in Neely v. Henkel, 180 U.S. 109, ante, 302, 21 Sup. Ct. Rep. 302, the sovereignty of the United States may be extended over foreign territory to remain paramount until, in the discretion of the political department of the government of the United States, it be relinquished.”26 See Statement by Secretary John Foster Dulles, Dep’t St. Bull., Dec. 1954, at 896; see also Y. Frank Chiang, One-China Policy and Taiwan, 28 Fordham Int’l L.J. 1, 36, n.164 (Dec. 2004); Lung-chu

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Secretary Anthony Eden told the British House of Commons, “under the Peace Treaty of April, 1952, Japan formally renounced all right, title and claim to Formosa and the Pescadores; but again this did not operate as a transfer to Chinese sovereignty, whether to the [PRC] or to the [ROC]. Formosa and the Pescadores are therefore, in the view of Her Majesty’s Government, territory the de jure sovereignty over which is uncertain or undermined.”27 Similarly, in 1964, President Georges Pompidou (then premier) stated that “Formosa (Taiwan) was detached from Japan, but it was not attached to anyone” under the SFPT.28 Thus the leading allies were in consensus that China did not acquire sovereignty over Taiwan or title to its territory pursuant to the SFPT.

(16) In conjunction with the US Senate ratification proceedings on the US-ROC Mutual Defense Treaty,29 the Committee on Foreign Relations issued a statement on Feb. 8, 1955, which read: “It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies.”30

(17) Moreover, as confirmed by the Truman Statement of June 27, 1950, and the SFPT, the United States government has never recognized the forcible incorporation of Taiwan into China.31 Following the entry into force of the SFPT on April 28, 1952, the ROC did not exercise sovereignty over Taiwan and did not have title to its territory.

Chen and W.M. Reisman, Who Owns Taiwan: A Search for International Title, 81 Yale L.J. 599, 644 (1972). 27 See Statement by Secretary Anthony Eden, 536 Parl. Deb., H.C., 5th ser., 1955, at 159; see also Y. Frank Chiang, One-China Policy and Taiwan, 28 Fordham Int’l L.J. 1, 36, n.167 (2004). 28 See Statement by President Georges Pompidou, N.Y. Times, Apr. 24, 1964, at 4, col. 4; see also Lung-chu Chen and W.M. Reisman, Who Owns Taiwan: A Search for International Title, 81 Yale L.J. 599, 645 (1972). 29 Mutual Defense Treaty with the Republic of China, Treaties and International Acts Series 3178, (1955).30 See Report on Mutual Defense Treaty with the Republic of China, U.S. Senate, Committee on Foreign Relations (1955), Appendix 17, available at http://www.cns.miis.edu/straittalk/Appendix%2017.htm 31 The analysis of this important point is confirmed by Cheng Fu Sheng v. Rogers, 177 F. Supp. 281 (D.D.C. 1959), where the court felt it was “necessary . . . to ascertain and be guided by the attitude of the Department of State on the question whether [Taiwan] is to be regarded as a part of China.” To that end, the court examined, inter alia, a Department of State Bulletin, which constituted an official expression of foreign policy regarding Taiwan. The Bulletin discussed the Treaty of Shimonoseki, whereby China ceded Taiwan to Japan; the Cairo Declaration; the Potsdam Declaration; the 1945 Instrument of Surrender; General MacArthur’s General Order No. 1; and the SFPT, whereby Japan renounced all “right, title and claim” to Taiwan. Id. at 283-284, citing Dep’t State Bulletin, Vol. XXXIX, No. 1017, Dec. 22, 1958, at 1005-1009. The Department of State Bulletin further stated that “neither [the SFPT] nor any other agreement thereafter has purported to transfer the sovereignty of [Taiwan] to China.” Id. The court held that “the sovereignty of [Taiwan] has not been transferred to China; and that [Taiwan] is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into.”

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(18) Under Article 6 of the US Constitution, the content of the Senate-ratified SFPT is part of the “supreme law of the land.”32

(19) From the mid 1930’s to December 31, 1978, the United States recognized the ROC as the legal government of China. At no time did the United States recognize the ROC as the legal government of Taiwan.33

(20) From 1945 to the present, Taiwan has been an occupied territory of the US, "the principal occupying power."34 Neither the SFPT, the Treaty of Taipei nor any other subsequent legal instruments after 1952 changed the status of Taiwan.

(21) The US as the principal occupying power has never transferred the sovereignty over Taiwan or title to its territory to any other government.35 Hence, today, the Taiwanese people are entitled to enjoy “fundamental rights” under the US Constitution, similar to the residents of other US overseas territories.36

Part III. Background Information on US Army Regulations and Insular Area Studies

32 Under the Supremacy Clause of the Constitution, “all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme Law of the land.” U.S. CONST. art. VI, §2. 33 In the period of 1952 to the present, no “civil government” recognized by the principal occupying power (the United States) has been established in Taiwan to supplant USMG jurisdiction over the territory. Formerly, the United States afforded official diplomatic recognition to the ROC on the basis of its being the sole legal government of China. This recognition was terminated effective Jan. 1, 1979. Although the ROC has been exercising delegated administrative authority for the military occupation of Taiwan from 1945 to the present, the exercise of such “effective territorial control” is not equivalent to an international law determination that the ROC is the legal government of Taiwan, or that the ROC on Taiwan is a sovereign nation. 34 As discussed in Part I of this article, a direct comparison to the situation of the Ryukyu Islands may be made. USMG jurisdiction over this last remaining SFPT Art. 3 territory ended by formal announcement on May 15, 1972, whereupon a fully functioning civil government for the Ryukyu islands under Japanese sovereignty was recognized by the United States. Contrastingly, there has been no similar pronouncement of the end of USMG jurisdiction over Taiwan.35 As discussed in Part IV of this article, the relevant clauses of the 1972 Shanghai Communique can be viewed as a civil affairs agreement as per the specifications of FM 27-10 para. 354 to put Taiwan on a “flight-path” for an eventual unification with the PRC. To date however, no transfer of sovereignty has taken place. 36 Article 2(b) and Article 23(a) of the SFPT demonstrate intent to create a private cause of action against the United States. By designating the United States as the principal occupying Power in Article 23(a), and by further confirming the jurisdiction of USMG over Taiwan in Article 4(b), the SFPT created the United States’ obligation to guarantee fundamental rights to the persons living in the territory deemed occupied by the United States under the SFPT. Considering that the United States is holding de jure sovereignty over Taiwan, the Taiwanese people owe permanent allegiance to the United States and have the status of United States nationals (as opposed to citizens).

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A. Brief Introduction to US Army Field Manual FM 27-10

Most modern concepts of the laws of war date from the post-Napoleonic period, some go back earlier. In the late 1930's, the US Department of the Army decided to put together a compendium of all this data. The Army researchers assembled quite a bit of information and edited it into a Field Manual code-named FM 27-10 "The Law of Land Warfare." The first edition was published Oct. 1, 1940.

Up to the present day, FM 27-10 has been updated a few times, and the most recent edition is July 1976, but it is still incomplete in many respects. Reading through its nine chapters, one doesn’t find commentary from On the Laws of War and Peace (1625) by Hugo Grotius, or The Law of Nations (1758) by Emerich de Vattel, although in discussing laws of war issues, those authors are often considered authoritative. There are no references to the famous nineteenth-century treatises of Military Law and Precedents by Colonel William Winthrop, Military Government and Martial Law by William E. Birkhimer, or other volumes which were at one time or another regarded as "standard references" by US Army personnel. There are no annotations from the abundant Supreme Court or international court decisions which deal with war, conquest, military occupation, military commissions, war crimes, and similar matters. There is no mention of Joseph Story's Commentaries on the Constitution (1833) which involve similar issues. Also in absence are any quotations from the International Committee of the Red Cross's Commentaries on the four 1949 Geneva Conventions and their Protocols, or analysis from the Military Law Review, widely regarded as the premier journal of military legal scholarship in the USA and published since 1958. Nor are there any references to peace treaties, and examples of how the different clauses are to be interpreted based on military jurisdiction, Supreme Court dicta, established international precedent, etc. so indeed a lot of information is missing.

Most importantly, in terms of military occupation, FM 27-10 primarily deals with situations which are "in and out." In other words, US troops land on the beaches or at the border, the territory is conquered, military occupation is conducted, a peace settlement is reached, sovereignty is restored, and the troops leave.

Hence, before the author can begin discussing the content of the more important paragraphs from FM 27-10, Chapter 6: Occupation, in relation to the Taiwan status issue, it is necessary to offer a preliminary introduction to Insular Area studies.

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B. US Insular Area Studies

At the present time, the United States has many types of overseas territories which are collectively referred to as "the insular areas." The larger insular areas originally came under the sovereignty of the United States in various ways. The following is a brief categorization of Major US Insular Areas, which are also called "unincorporated territories."

TYPE 1: Insular Areas Acquired by Conquest -- In a treaty signed at the end of the Spanish-American War in 1898, Spain ceded Puerto Rico, Guam, and the Philippines to the United States. In the same treaty, Spain's sovereignty over Cuba was relinquished, but no recipient was designated.37

TYPE 2: Insular Areas Acquired by Purchase -- The United States purchased the Virgin Islands from Denmark in 1917.

TYPE 3: Insular Areas Acquired by Agreement -- Great Britain and Germany renounced their claims over Samoa in February 1900. The island group was then formally ceded to the United States by the Samoan chiefs, with ratification by the US Congress in 1929.

TYPE 4: Insular Areas Acquired after United Nations Trusteeship, as a Commonwealth of the United States -- The United States was responsible for administering the Northern Mariana Islands as a United Nations trusteeship, beginning July 18, 1947. In 1976 Congress approved the mutually negotiated "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States." The commonwealth government adopted its own constitution in 1977, and the constitutional government took office in Jan. 1978. The Covenant was fully implemented on Nov. 3, 1986, pursuant to Presidential Proclamation No. 5564.

(TYPE 5: An additional type of Insular Area would be those countries which have achieved independence but are now in "Free Association with the United States."

37 In Church of Jesus Christ of L. D. S. v. United States (1889) 136 U.S. 1, 34 L. ed. 478, 10 Sup. Ct. Rep. 792, Mr. Justice Bradley, announcing the opinion of the court declared (p. 42, L. ed. p. 491, Sup. Ct. Rep. p. 802): ‘The power to acquire territory, other than the territory northwest of the Ohio River (which belonged to the United States at the adoption of the Constitution), is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty, and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty . . . ’ as quoted in Downes v. Bidwell 182 U.S. 244 (1901).

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However, these are not an "unincorporated territories" and hence are not considered here. )

All of these insular areas now have civil governments which handle their affairs, and this is a fact which is so commonly recognized as to scarcely need mention. Indeed, when people refer to US insular areas in the present era, they are referring to areas under "civil government," established by some organic act.

However, what most civilian researchers have forgotten is that in the earliest recognition of this unincorporated territory concept, all US insular areas were under United States Military Government. This fact must be recognized before we can discuss the true relationship between Taiwan and the United States.

Background: In Fleming v. Page 50 U.S. 603 (1850), it was determined that: “So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory,...but those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress.”

For those territories over which Spain gave up her sovereignty as a result of the April 11, 1899, Spanish-American Peace Treaty (Treaty of Paris), the landmark ruling of Downes v. Bidwell 182 U.S. 244 (1901) introduced the concept of "unincorporated territory" into the United States legal lexicon. In other words, the US Supreme Court determined that upon the termination of Spanish sovereignty over these territories, without any peace treaty specifications or actions by Congress to the contrary, under US law they became "US unincorporated territories." However, at the time that the Treaty of Paris came into effect (and indeed for several years thereafter in most cases), all of these territories were under USMG, and not under any form of "civil government." Hence, beginning with the Spanish-American War cessions,38 what the US Supreme Court is speaking of is the category of "unincorporated territory under USMG."

C. Nationality Considerations in US Insular Areas

The DOS Foreign Affairs Manuals provide the following information:

38 In this article, and the noun “cession” and the verb “cede” are used in their broad original senses to denote the "surrendering of possession of,” “relinquishment of sovereignty over,” “renouncing of all right, title and claim to,” etc.

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REFERENCE: 7 FAM 1121.1 How Territories and Possessions Were Acquired (TL:CON-66; 10-10-96)

a. In the late 19th and early 20th centuries, U.S. sovereignty was extended to overseas territories. These territories (unlike those of the western United States, Alaska, and Hawaii) were not considered a part of the United States, and the Constitution was held not to be fully applicable to them.

b. The territories came under U.S. control in a number of ways: (1) Puerto Rico, Guam, and the Philippines. After the Spanish-American War, Spain ceded Puerto Rico, Guam, and the Philippines to the United States by the Treaty of Paris of 1899 (30 Stat. 1754)("Treaty of Paris"). The treaty came into force in April 11, 1899. The Philippines ceased being a U.S. territory upon its independence on July 4, 1946;

The explanation in 7 FAM 1121.1 b.(1) gives only the briefest summary of the acquirement of territories after the Spanish - American War, and ignores any considerations involving United States' military jurisdiction. In fact, Puerto Rico, Guam, the Philippines, and Cuba were all acquired under the principle of conquest. All were under United States Military Government for extended periods of time. In the April 11, 1899 peace treaty, Spain gave up the sovereignty of Puerto Rico, Guam, and the Philippines and the United States was designated as the receiving country for the sovereignty. Spain gave up the sovereignty of Cuba as well, but no receiving country was designated.39 However, even after the coming into effect of the peace treaty, all four of these island groups remained under United States Military Government jurisdiction.

Not surprisingly, after April 1899 much confusion arose regarding the nationality of the native inhabitants of the newly acquired territories. The following FAM references discuss the relevant historical and legal developments.

REFERENCE: 7 FAM 1121.1

39 The significance of the designation of a "receiving country" for a territorial cession in a peace treaty is explained as follows: The designation of a "receiving country" serves to authorize the Legislature of that country to pass legislation to establish civil government for the territory. Importantly however, before the beginning of civil government operations, the territory remains under the administrative authority of the (principal) occupying power. More explicitly, it should be noted that after the coming into force of the Treaty of Paris, the four areas of Puerto Rico, the Philippines, Guam, and Cuba are all in exactly the same relationship to the United States. In other words, they are all under United States Military Government. This is despite the fact that Puerto Rico, the Philippines, and Guam were ceded to the United States, and Cuba was not. Cuba was a "limbo cession."

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c. Treaties, conventions, and proclamations concerning these areas provided for the nationality or citizenship of certain of the inhabitants, but none of the provisions was very specific. Questions arose almost immediately about the status and rights of the inhabitants and the relationship of the newly acquired territories to the United States.

REFERENCE: 7 FAM 1121.2-2 Court Decisions a. In the first decade of the 20th century, in a series of court cases often called the "Insular Cases", the Supreme Court developed the rationale that, absent specific Congressional legislation or treaty provisions --

(1) The Constitution has only limited applicability to U.S. territories; and

(2) Inhabitants of territories acquired by the United States acquire U.S. nationality -- but not U.S. citizenship.

Based on the historical precedent, as well as the specifications in the DOS Foreign Affairs Manuals and INA, native Taiwanese persons qualify as US nationals (non-citizens).

REFERENCE: 7 FAM 1111.3 Nationality (TL:CON-64; 11-30-95) a. The term "nationals of the United States", as defined by statute (Section l0l(a)(22) INA) includes all citizens of the United States, and other persons who owe allegiance to the United States but who have not been granted the privilege of citizenship.

b. Nationals of the United States who are not citizens are entitled to the consular protection of the United States when abroad, and to U.S. documentation, such as U.S.passports. They are not entitled to voting representation in Congress and, under most state laws, are not entitled to vote in federal, State, or local elections except in their place of birth.

c. Historically, Congress, through statutes, granted U.S. nationality, but not citizenship, to persons born or inhabiting territory acquired by the United States through conquest or treaty. At one time or other natives and certain other residents of Puerto Rico, the U.S. Virgin Islands, the Philippines, Guam, and the Panama Canal Zone were U.S. non-citizen nationals.

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The term “national” is also defined in the United States Code.

REFERENCE: 8 USC 1408 Unless otherwise provided in section 1401 of this title, the following shall be nationals, but not citizens, of the United States at birth: (1) A person born in an outlying possession of the United States on or after the date of formal acquisition of such possession; (2) A person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have had a residence in the United States, or one of its outlying possessions prior to the birth of such person;

Further clarification is as follows. The findings in the Insular Cases40 of the Supreme Court confirm that there is a "default" nationality status for native inhabitants of territory acquired by the United States. This is despite the fact that INA may contain no specific provisions for the territory in question. Relevant details are as follows.

REFERENCE: 7 FAM 1121.4-3 Status of Inhabitants of Territories Not Mentioned in the Immigration and Nationality Act (INA)(TL:CON-66; 10-10-96)

The United States exercises sovereignty over a few territories besides those mentioned above. Under international law and Supreme Court dicta, inhabitants of those territories, (Midway, Wake, Johnston, and other islands) would be considered non-citizen, U.S. nationals; However, because the INA defines "outlying possessions of the United States" as only American Samoa and Swains Island, there is no current law relating to the nationality of the inhabitants of those territories or persons born there who have not acquired U.S. nationality by other means.

Although at present there is no law in the United States regarding the US national non-citizen status of native Taiwanese persons, there is full recognition in 7 FAM 1121.4-3 that the United States exercises sovereignty over some territories which are (1) not classified as "outlying possessions," and (2) are not even mentioned in the

40 In the Insular Cases (1901–1922), the Supreme Court determined the constitutional and political status of overseas territories acquired as a result of the Spanish American War. Later Supreme Court decisions have upheld the validity of these rulings. For example, in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) the Justices held that: "And certainly, it is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power."

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Immigration and Naturalization Act (INA). Furthermore, 7 FAM 1121.2-2 specifies that native persons of such territories are US nationals (non-citizens).

Such an analysis is also validated by reference to US Supreme Court rulings regarding territory acquired under the principle of conquest, which is confirmed by peace treaty cession. Speaking of the "April 11, 1899, to May 20, 1902" transitional period when Cuba was under the jurisdiction of the USMG, the US Supreme Court held in De Lima v. Bidwell 182 U.S. 1 (1901), that “Cuba is under the dominion of the United States.”41 The nationality of the native persons therein is thus provided by Boyd v. Nebraska ex rel Thayer, 143 U.S. 135 (1892) where the Court specified that: “The nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided.”

Moreover, in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Court held that: "To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, . . . It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered." 2 Kent, Comm. (6th Ed.) 39, 42. This determination was confirmed again in Gonzales v. Williams, 192 U.S. 1 (1904).

With the conclusion of these preliminary comments, the following section will overview six key paragraphs from US Army Field Manual FM 27-10, Chapter 6, Occupation.

Part IV. Commentary on US Army Field Manual FM 27-10, “The Law of Land Warfare,” para. 351 to 356

Chapter 6 OCCUPATION, Section I. GENERAL42

41 Such an interpretation is also supported by the ruling in Jones v. U.S., 137 U.S. 202 (1890), where the Supreme Court held that: “By the law of nations, recognized by all civilized states, dominion of new territory may be acquired by discovery and occupation as well as by cession or conquest . . . ” 42 The author is indebted to his research assistant, Jeffrey Geer, of Las Vegas, Nevada, for providing extensive commentary and analysis of the complications of military government, military occupation, insular law, and civil affairs administration as they relate to peace treaty cessions under the laws of war.

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351. Military Occupation Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. (HR, art. 42.)

Comments on paragraph 351 in relation to the Taiwan status issue: On Oct. 25, 1945, the Japanese Surrender Ceremonies in the Japanese area called “Formosa and the Pescadores” (aka Taiwan) were conducted based on the directions contained in General Douglas MacArthur’s General Order No. 1 of Sept. 2, 1945. This was after the close of fighting in the war.43 While the surrender ceremonies were held on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of the “conqueror” and “the principal occupying power,” which is the United States. This date of Oct. 25, 1945, marked the official starting date of the belligerent occupation. The Republic of China (ROC) authorities have waged a constant war of words for over 50 years, in their contraventions of the laws of occupation44 for stating (in 1945 and thereafter) that they were ¨annexing" Taiwan while still legally acting under the supreme authority of the United States Military Government (USMG).45 Under the customary laws of warfare, such annexation is impossible.

Author George Kerr noted that as early as 1943: Prominent officers in the State Department assumed (with much justification) that the outstanding issues affecting Sino-American relations in Asia could not be solved until China achieved unity under a strong central government, whatever political complexion that government might have. Arguing from this, they held that no central government could survive which failed to recover Formosa.

43 War is defined as a sustained struggle of a scale and duration that threatens the existence of the government of a state or an equivalent juridical person and that is waged between groups of forces that are armed, wear a distinctive insignia, and are subject to military discipline under a responsible command.44 Laws of occupation: the subset of the laws of war which deal with military occupation. Also rendered in the singular as “law of occupation.” 45 In speaking of the nature of military government, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (second edition, 1920 reprint), says on page 800: "Military government . . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist . . . . The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part suspended and others substituted in their stead -- in the discretion of the governing authority." -- as quoted in Madsen v. Kinsella, 343 U.S. 341 (1952).

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Nationalist and Communist Party propaganda alike held that it was a "lost province," stolen by the Japanese. They conveniently forgot that China had ceded Formosa to Japan in 1895 "in perpetuity," and that only a postwar treaty of peace could effect a legal retrocession.46

In Taiwan, under the government of the ROC, the announced annexation has always been called “retrocession¨. In other words, the ROC authorities maintain that Taiwan was retroceded to the ROC on Oct. 25, 1945. The PRC claims itself as the legitimate successor to the ROC, and hence maintains that Taiwan is a part of the PRC. The role of the United States as the principal occupying power is totally ignored.

However, paragraph 351, which is taken directly from the Annex to Hague Convention No. IV, of Oct. 18, 1907, embodying the “Regulations Respecting the Laws and Customs of War on Land,” tells us that there was no retrocession.

Additionally, the case of Korea clearly shows that the disposition of territory does not take effect automatically at the signing of an instrument of surrender and new arrangements are later required to effectuate it. This was the situation in the case of the surrender of Japan after WWII, even though Japan's actual control of the Korean Peninsula did not continue past that date. It was only under the provisions of the SFPT that Japan later formally recognized the independence of Korea.

Most important is to realize that under the customary laws of warfare there are no rationale whereby a distinction between “military occupation” and “annexation” can be legally achieved on the date of the surrender of local military troops. Nor can “annexation” be implemented simultaneously based on criteria which fall under the broad general categories of postliminium47 or irredentism48.

46 See Chapter 1 of Formosa Betrayed, published in 1965 by Houghton Mifflin, and republished in 1992 by the Taiwan Publishing Co. in Irvine, Calif., available at http://www.romanization.com/books/formosabetrayed/chap01.html47 Postliminium: (1) [Roman Antiquity] the return to his own country, and his former privileges, of a person who had gone to sojourn in a foreign country, or had been banished, or taken by an enemy, (2a) (international law) the right by virtue of which persons and things taken by an enemy in war are restored to their former state when coming again under the power of the nation to which they belonged, (2b) that right in virtue of which persons and things taken by the enemy are restored to their former state, when coming again under the power of the nation to which they belong.

It is important to note the transfer of the title of territory by treaty is an internationally recognized valid method for transmission and reassignment of "ownership." Regardless of the future outbreak of war between the affected parties, or the military occupation of each other's countries, international law does not recognize any claim to "retroactive reversion of title" to previously ceded territory, and the doctrine of "postliminium" cannot be invoked under such circumstances.48 Irredentism: claiming a right to territories belonging to another state on the grounds of common ethnicity and/or prior historical possession, actual or alleged.

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Nevertheless, further objections are often raised in regard to the 1952 SFPT. It is widely known that neither the Republic of China nor the People's Republic of China were signatories to the SFPT. Many scholars maintain that “If you don’t sign it, then you cannot be affected by it.” Then they point to the international law principle of uti possidetis49 to claim that since the ROC was under control of Taiwan in April 1952, and no other “receiving country” was designated in the SFPT, then of course Taiwan belongs to the ROC.

However, this analysis is invalid on many counts: (1) It is true that in the SFPT, Japan ceded “Formosa and the Pescadores,” however according to Article 2(b), the ROC was not the recipient of this territorial cession. (2) Article 25 of the SFPT clearly states that the treaty shall not confer any rights, titles or benefits on any non-signatory State, however an exception is provided for “China.” (3) Article 21 of the SFPT then clearly stipulates the benefits to which "China" is entitled under the treaty, however "Formosa and the Pescadores" are not included. (4) Taiwan had been ceded to Japan in 1895, and since its founding in 1912 the ROC had never held legal possession of "Formosa and the Pescadores" at any time before the coming into effect of the SFPT. (5) Under the customary laws of warfare, Oct. 25, 1945, only marks the beginning of the military occupation of Taiwan, and there could be no transfer of sovereignty on that date. Based on these criteria, upon the coming into force of the SFPT the doctrine of “uti possidetis” cannot be invoked by “China,” however “China” may be defined.

352. Invasion Distinguished a. Nature of Invasion. If resistance is offered, the state of invasion within any portion of a belligerent's territory corresponds with the period of resistance. If the invasion is unresisted, the state of invasion lasts only until the invader has taken firm control of the area with the intention of holding it. Invasion is not necessarily occupation, although occupation is normally preceded by invasion and may frequently coincide with it. An invader may attack with naval or air forces or its troops may push rapidly through a large portion of enemy territory without establishing that effective control which is essential to the status of occupation. Small raiding parties or flying columns, reconnaissance detachments or patrols moving through an area cannot be said to occupy it. Occupation, on the other hand, is invasion plus taking firm possession of enemy territory for the purpose of holding it.

49 Uti possidetis: a principle in international law that recognizes a peace treaty between parties as vesting each with the territory and property under its control unless otherwise stipulated. (Latin: uti possidetis, ita possideatis -- "as you possess, so may you continue to possess.")

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b. Application of Law of Occupation. The rules set forth in this chapter apply of their own force only to belligerently occupied areas, but they should, as a matter of policy, be observed as far as possible in areas through which troops are passing and even on the battlefield.

Comments on paragraph 352 in relation to the Taiwan status issue: The taking of firm possession of the Taiwan area is pertinent as was done on Oct. 25, 1945, thus establishing a starting date of belligerent occupation. Here in the first decade of the 21st century, the Taiwan status question has remained unresolved since the 1952 SFPT cession, and it has been the centerpiece of the US-China policy for over 30 years since the 1972 Shanghai Communique.50 Even the 1950 Truman Statement has reflected this continuing intention to not relinquish the administrative authority of the Taiwan area until a final resolution is reached. It is the "West Berlin" of the Far East in many respects. It is differentiated from West Berlin by the legal fact of a territorial cession in SFPT. This cession legally extends the occupation and the military government51 established for Taiwan by the USA remains in force until legally supplanted.52

1950 Truman Statement "The occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to the United States forces performing their lawful and necessary functions in that area. Accordingly, I have ordered the Seventh Fleet to prevent any attack on Formosa. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations."

-- US President Harry S. Truman, June 27, 1950

50 The text of the Three Joint USA-PRC Communiques is available at http://usinfo.state.gov/eap/east_asia_pacific/china/china_communiques.html51 The US Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments. In Ex Parte Milligan 71 U.S. 2 (1866), the US Supreme Court held that military government is: "... to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents."52 See Military Government and Martial Law by William E. Birkhimer, Kansas City, Missouri, Franklin Hudson Publishing Co., 3rd edition (1914), p. 26, Chapter II: Right to Establish Military Government, Sec. 25: “Military government continues till legally supplanted: New Mexico was not only conquered, but remained thereafter under the dominion of the United States. The provisional government established therein ordained laws and adopted a judicial system suited to the needs of the country. The Supreme Court of the United States held that these laws and this system legally might remain in force after the termination of the war and until modified either by the direct legislation of Congress or by the territorial government established by its authority. We have had the same experiences in Cuba, Porto Rico, and the Philippines.”

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Over the past 50 years, most people have failed to grasp the significance of what President Truman said in these remarks, especially when viewed in light of subsequent events. By adding the missing word in the third sentence it will become clear –

The determination of the future final status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.

In other words, after “cession by treaty”, i.e. the coming into force of the SFPT on April 28, 1952, the interim status (i.e “non-final political status”)53 of Taiwan was already completely defined.

The interim status from that time up to the present day can be definitively delineated as follows:

Name: Taiwan cession (or more simply “Taiwan”)Cession Day: April 28 Organized Territory: No54

Insular Area of the USA: Yes55

Status: Interim status under the laws of occupationFlag of the interim status: Flag of the USA National Anthem of the interim status: "Star Spangled Banner" 56

53 President Truman’s remarks of June 27, 1950, have typically been interpreted to say that the status of Taiwan is “undetermined.” This corresponds to the analysis that Taiwan has not yet reached a final political status, and is in interim status under the law of occupation. See Truman Statement, available at http://www.mtholyoke.edu/acad/intrel/pentagon/doc8.htm54 A territory without its own “organic law” (constitution) is said to be unorganized. The Republic of China Constitution currently in use in Taiwan was passed on Dec. 25, 1946, when the Chinese Nationalist Party (KMT) still ruled China. It was promulgated on Jan. 1, 1947, and came into force on Dec. 25, 1947. It was brought over from Mainland China by the KMT during the Chinese Civil War period of the late 1940’s. As such, this Constitution, which is often called the “Nanjing Constitution”, is not the true organic law of the Taiwan cession.55 See introduction to the larger insular areas in Part III (B) of this article. Significantly, beginning in 1898, three fundamental criteria for the recognition of the Type 1 insular area are apparent: (1) conquest by US military forces, (2) the United States as "the (principal) occupying power," and (3) territorial cession in the peace treaty. This is a "default status" for these areas, and does not require any confirmation by the US Congress. Taiwan fits these TYPE 1 criteria exactly.

In other words, after the coming into effect of the peace treaty, US insular law applies to Puerto Rico, Guam, the Philippines, Cuba, and Taiwan because they are inside the principle of "cession by conquest" which was confirmed by "cession by treaty." Such an interpretation is fully supported by the ruling in Fleming v. Page, 50 U.S. 603 (1850), where the Supreme Court held that: "The jurisdiction of the conqueror is complete. He may change the form of government and the laws at his pleasure, and may exercise every attribute of sovereignty. The conquered territory becomes a part of the domain of the conqueror, subject to the right of the nation to which it belonged to recapture it if they can. By reason of this right to recapture, the title of the conqueror is not perfect until confirmed by treaty of peace."56 "God Bless America" is also respected by many Americans to be of equivalent status.

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US Constitutional protections -- as an overseas area under the jurisdiction of the United States, the local populace is entitled to fundamental rights under the US Constitution

Sovereignty during the interim status -- the sovereignty of Taiwan is being held in trust by the principal occupying power, in a similar situation to that of Cuba after the coming into force of the Treaty of Paris on April 11, 1899. See Neely v. Henkel 180 US 109 (1901), Downes v. Bidwell 182 U.S. 244 (1901),57 the TRA,58 and Birkhimer.59

Territorial classification during the interim status -- "unincorporated territory under USMG" 60

Military Government -- United States Military government is present, and military occupation is a reality.61

57 The nature of the fiduciary relationship which arises under the laws of occupation is explained in the concurring opinion of Justices White, Shiras, and McKenna in Downes v. Bidwell, 182 U.S. 244 (1901): "It cannot, it is submitted, be questioned that, under this provision of the treaty, as long as the occupation of the United States lasts, the benign sovereignty of the United States extends over and dominates the island of Cuba.... Considering the provisions of this treaty, and reviewing the pledges of this government extraneous to that instrument, by which the sovereignty of Cuba is to be held by the United States for the benefit of the people of Cuba and for their account, to be relinquished to them when the conditions justify its accomplishment, this court unanimously held in Neely v. Henkel, 180 U.S. 109, ante, 302, 21 Sup. Ct. Rep. 302, that Cuba was not incorporated into the United States, and was a foreign country." And further: “... it seems to me it is not open to serious dispute that the military arm of the government of the United States may hold and occupy conquered territory without incorporation for such length of time as may seem appropriate to Congress in the exercise of its discretion.” Also, Justice Gray in a concurring opinion stated: "So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory, in the sense of the revenue laws; but those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress. Such was the unanimous opinion of this Court, as declared by Chief Justice Taney in Fleming v. Page, (1850)." 58 In a similar situation to Cuba after April 11, 1899, Taiwan is "foreign territory under the dominion of the United States." The TRA does not treat Taiwan as a sovereign independent nation, but rather as a "sub-sovereign foreign state equivalent," and, as would be expected, the TRA contains a "foreign state equivalency" clause. See 22 USC 3303 (b).59 See Birkhimer, ibid. p. 44, Chapter VI: Effect of Occupation on Local Administration, Sec. 63 "Instance occupation of Cuba" which states: "The position of the United States military authorities in Cuba, before the Spanish authorities abandoned the island in 1899, was one of military occupation, pure and simple; after that event, it was military occupation of a particular kind, namely, wherein the dominant military power exercised authority over the island as trustee for a Cuban nation not yet in existence, but the creation of which was promised and which was to have the assistance of the United States in establishing itself." In the same Chapter, Birkhimer also discusses the case of Neely v. Henkel, 180 U.S. 109 (1901) on p. 49: "The relation of the United States to Cuba, resulting from the war of 1898, came up for review before the Supreme Court. An American who in Cuba was charged with crime had been arrested within one of the States of the Union, and it was held that he was subject to extradition. The court remarked that, as between the United States and all foreign nations, the former held Cuba as conquered territory; as between the United States and Cuba, the latter was held by military power in trust for the Cuban people, to be delivered over on the establishment of a stable government. It was a military occupation." 60 See author’s discussion of the significance of the Downes v. Bidwell 182 U.S. 244 (1901) ruling in Part III (B) of this article. 61 References: SFPT Articles 4b and 23(a), and the Hague Regulations of 1907. Also of note is that Birkhimer ibid. on p. 25, Chapter II: Right to Establish Military Government, Sec. 24 states that “No proclamation of the part of the victorious commander is necessary to the lawful inauguration and enforcement of military government. That government results from the fact that the former sovereignty

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Taxes -- as an independent customs territory, the Taiwanese people do not have US federal income tax liability.62

Defense -- according to the "common defense" stipulation of Article 1, Sec. 8 of the US Constitution, "national defense" matters for Taiwan are the responsibility of the DOD in the Pentagon.

Allegiance of Island Citizens during the interim status: USAPassports -- the “competent authority” for issuing passports to native Taiwanese

persons during the interim status must be recognized as the US Dept. of State63

Nationality of native Taiwanese persons -- US national non-citizens, (aka “island citizens” of the Taiwan cession)64

There is a direct correspondence here to the situation of occupied Cuba in the 1898 to 1902 period. Anyone with knowledge of Cuban history can verify that the flag which flew over Cuba during the US military occupation of that island was the flag of the occupying power, as spoken of in the customary laws of warfare. That flag was the star spangled banner. During that period, before May 20, 1902, Cuba was in interim status under the laws of occupation.

353. Subjugation or Conquest Distinguished Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional. On the other hand, subjugation or conquest implies a transfer of sovereignty, which generally takes the form of annexation and is normally effected by a treaty of peace. When sovereignty passes, belligerent occupation, as such, of course ceases, although the territory may and usually does, for a period at least, continue to be governed through military agencies.

is ousted, and the opposing army how has control.”62 The Congress has authority to impose income taxes on the worldwide income of U.S. citizens and corporations, including income from the insular areas. However, federal individual and corporate income taxes as such are not currently imposed in the insular areas. GAO Reference: US INSULAR AREAS -- Application of the US Constitution, page 37, available at http://www.gao.gov/archive/1998/og98005.pdf63 With no clear legal basis to include Taiwan in its definition of "national territory," and no international treaty references which can be found, there is no legal basis for the ROC to issue ID documentation (including ID cards, drivers' licenses, passports, etc.) of any kind to native Taiwanese persons. Such an interpretation must be recognized by all US government agencies under the terms of the SFPT. As defined in INA 101(a)(30) [see 8 USC 1101 (a)(30) ] the Republic of China's Ministry of Foreign Affairs cannot be construed as the competent authority for issuing passports native persons in the areas of Formosa and the Pescadores.64 Native Taiwanese persons are correctly classified as “Taiwan citizens” and US nationals.

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Comments on paragraph 353 in relation to the Taiwan status issue: In the US form of government, ratified treaties are supreme law after the US Constitution. They are superior to other laws except the Constitution itself. In the case of SFPT, the cession of Taiwan is supreme law of the land and the constitutionality of the Taiwan cession being held under the laws of occupation is directly based upon a number of Supreme Court cases called “the Insular Cases.” The treaty transformation of the territory is from that of “independent customs territory” under belligerent occupation to “unincorporated territory under USMG” for any ceded territory. It is not an "extra-territoriality" in the sovereign sense where the territorial sovereignty of the enemy country has been displaced for purposes of a belligerent occupation.

Belligerent Occupation does not transfer sovereignty, but a peace treaty cession does. Following such a final end of belligerent occupation by the specifications of territorial cession in a peace treaty, the military government of the principal occupying power will continue until legally supplanted.65 As was seen in the situation of the Spanish American War cessions, in each case USMG was supplanted by a civil government structure fully recognized by the US government.66

These Spanish American War cessions were "foreign in a domestic sense" because these self-governing dominions are not treated as dependent areas or US possessions, and the military government established during their interim period is only a provisional government imposed by force. However, at the same time, the US Supreme Court has held that fundamental US constitutional rights apply in all overseas US territories, and “unincorporated territory under USMG” (before the establishment of a recognized civil government in a territory) is one of the territorial categories which exist.

If a territory is destined to join the Union of States, then it is incorporated by Congress and will join the 50 other states at the appropriate time the federal territory is settled and the population is sufficient for that step. That was the situation in regard to California, Utah, Nevada, etc. after the Mexican American War. Otherwise, the federal government is supreme in the area until it is legally supplanted.

It is historically vital to understand that the federal government is the government of

65 See Birkimer ibid. p. 1, Introduction: Sphere of military government, Sec. 2: “Moreover, military government may be exercised not only during the time that war is flagrant, but down to the period when it comports with the policy of the dominant power to establish civil jurisdiction.”66 In the post-World War II period up to today, no treaty or law has ever terminated the United States' jurisdiction over Taiwan. By contrast, USMG jurisdiction over Puerto Rico, Guam, the Philippines and Cuba were all ended by affirmative (and widely publicized) actions of the United States Government.

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the Union and is held democratically and ultimately accountable to the Union voters (US citizens), not the island citizens. Power really lies with the Union voter whom ultimately imposes the final political status upon the island citizens, and not vice versa. Non-democratic traditions and tyranny are not tolerable to the US Constitution nor to its voters, so the colonial nature of the relationship is not as degrading as it might have been with other more traditional colonial powers of the past. If a criticism must be made, it is the plight of the colonial subjects or island citizens not to have been given better federal administrative priority in Washington, D.C.

Nevertheless, under the temporary allegiance theory of customary law, native persons in Taiwan are not ROC Citizens by their SFPT cession, since the ROC was merely the government which fled from mainland China in that 1945 to 1949 period. As an automatic operation of international law, customary law makes these people as the "island nationals" of the Taiwan cession. That is, the native inhabitants gain the nationality of their island during the interim period of customary law.67 Similar to the 1895 Treaty of Shimonoseki, it is fully legal for those exercising the supreme authority over the island citizens to determine their political status, but it is not legal for them contravene their "undefined" civil rights68 based on the utterly false notion that without a permanent political status, they have no civil rights.69

Under the laws of war, the continuation of military agencies like the governing authorities of the Taiwan Relations Act (TRA)70 or administrative authorities of SFPT is legal even if coming after the cession by peace treaty. Recognition formulas for governments under international law clearly show that the local ROC military governors are serving the joint role of “junior partners” (alternatively called a

67 Under Taiwan's qualification as a TYPE 1 US insular area, this "temporary allegiance" under the law of occupation gives rise to the immigration law status referred to as "permanent allegiance" or non-citizen national status. This is because INA merely defines "permanent" as “a relationship of continuing or lasting nature.” See 8 USC 1101 (a) (31): The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.”

Clearly, native Taiwanese persons living in Taiwan have "permanent ties" to Taiwan, as evidenced by payment of taxes, ownership of property, and the presence of family. These persons have a permanent dwelling place (or "domicile") in Taiwan to which they, when absent, intend to return.68 “Undefined” civil rights: "fundamental rights" under the US Constitution which are applicable in unincorporated territories even without any action by the US Congress.69 See Neely v. Henkel 180 U.S. 109 (1901), Downes v. Bidwell 182 U.S. 244 (1901), Gonzales v. Williams 192 U.S. 1 (1904), Balzac v. People of Porto Rico 258 U.S. 298 (1922), Reid v. Covert 354 U.S. 1, 13 (1957), Madisen v. Kinsella 343 U.S. 341 (1952), Johnson v. Eisentrager 339 U.S. 763 (1950), and US v. Tiede, US Court for Berlin, (1979).70 Taiwan Relations Act, 22 USC 3301-3316.

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“subordinate occupying power”71 or "proxy occupying forces"72) of the occupation while at the same time comprising a government in exile.73 Moreover, even under ROC law, there is no legal basis for considering native persons in Taiwan to be ROC citizens.74

Fortunately for the Taiwan cession at the present time, there is nothing to bar the island citizens from determining the degrees of affiliation with the USA. The minimum qualification of all forms of unincorporated territories are simply to recognize the existence of their rights under the US Constitution, and comply with the equal protections of due process for life, liberty, and property. That would include their rights to obtain passports issued under US administrative authority, which is included in the Fifth Amendment’s concept of “liberty.”75 The Taiwanese are entitled to have their own organic law (constitution), and there is nothing constitutionally barring their organic law from adopting the fuller bill of rights, but they are not required to do so by the trickle down theory of rights.

Just as military occupation does not transfer sovereignty and forbids oaths of allegiance to the hostile power for the implementation of military conscription, etc.,76 a ratified peace treaty coming into legal effect has the power of international law to change the previously temporary situation under the principle of conquest for the legal

71 General MacArthur gave orders to Chiang Kai-shek, and the Generalissimo accepted them. For the military occupation of Taiwan, the relationship between the United States and the Chiang Kai-shek's Republic of China is that of principal and agent. The United States is the principal occupying power, and has invoked the “law of agency,” which is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself." Hugo Grotius spoke of agency in his treatise On the Law of War and Peace, written in 1625.72 A proxy occupation results where the occupying power instructs an ally ("co-belligerent") to undertake the occupation of a particular area, as a substitute for the occupying power handling the occupation of that area directly. Under the Geneva Conventions, the USMG is the Protecting Power of the putative state on the Taiwan cession, while the government in exile ROC is a secondary Protecting Power, or co-belligerent insurgency.73 The ROC on Taiwan meets the specifications of being a government in exile, which is a temporary government moved to or formed in a foreign land by exiles who hope to rule when their country is liberated.74 This analysis of the Hague Regulations of 1907 and other relevant factors was given in Part II of this article. 75 According to the precedent in Kent v. Dulles, 357 U.S. 116 (1958), the right to travel is a part of the "liberty" of which a citizen, or other person owing allegiance to the United States, cannot be deprived without due process of law under the Fifth Amendment. The right to travel includes the right to obtain a passport.76 It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power. (HR, Art. 45.) The stricture against compelling the inhabitants of areas under military government from taking “oaths of allegiance” should not be confused with the (1) “pledge of allegiance” to the flag, (2) the doctrine of “temporary allegiance” under the law of occupation, or (3) the “swearing-in” ceremonies in a court. The “oaths of allegiance” in Article 45 of the Hague Regulations are stated in connection with any attempt to compel the local inhabitants to join in armed or auxiliary forces, or to otherwise do military service.

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acquisition of the territorial sovereignty.

Similar to the situation in Cuba which provides the background for the US Supreme Court case of Neely v. Henkel 180 U.S. 109 (1901), the territorial sovereignty of Taiwan was ceded by peace treaty into the supreme authority of the USA, following the acquirement of the territory under the principle of conquest.77 For the laws of war,78 supreme authority is equated with the sovereignty or dominion of the paramount occupational authority coming above other Allied Powers whom are merely just "junior partners". Equal standing of these Allies as juridical persons involves a hierarchal military leadership role of following the orders of the strongest power when acting as Supreme Commander over Allied Troops and is a common issue of the customary laws of warfare.

Under the SFPT, the cession of “Formosa and the Pescadores” ended Japanese sovereignty and left Taiwan in interim status under the laws of occupation, which means that its political status has not been finalized. Importantly, during the interim status period, the Taiwan cession may be retained by the supreme authority for an indefinite time interval until there is such finalization of its political status. However, it is a fallacy to believe that there are no civil rights of such an interim political status of a cession when still subject to the paramount occupational authority of the USA.79

Under the US Constitutional form of government, in all treaties involving territorial cession from the 1803 Louisiana cession to the present day, it has always been specified that the US Congress has the authority to determine the political status and civil rights of the native inhabitants. Therefore, the Taiwanese people can ask for similar treatment from the US Congress based on the fact that Taiwan was acquired by the United States under the principle of conquest, which was affirmed by the specifications of territorial cession in the SFPT. However, even before the Congress takes any action, the Taiwanese people are entitled to “fundamental rights” under the US Constitution.80

77 All military attacks on the four main Japanese Islands and (Japanese) Taiwan during the WWII period were conducted by United States military forces. The Republic of China military forces did not participate. Hence, in relation to Taiwan, the United States is the "conqueror."78 See Birkhimer, ibid. p. 174, Chapter XIV: Responsibility of Commanders - Military Government, Sec. 305: “The powers of commanders enforcing military government are derived from and are limited by the laws of war.”79 In July 1982, the United States gave "Six Assurances" to the Taiwan governing authorities, including that the "United States would not alter the terms of the Taiwan Relations Act[,]" "would not alter its position about the sovereignty of Taiwan[,]" and "would not formally recognize Chinese sovereignty over Taiwan."80 In general, fundamental rights, applicable to all individuals subject to the sovereignty of the United States, are "inherent, although unexpressed principles which are the basis of all free government." Dorr v. United States, 195 U.S. 138, 147 (1904); Downes v. Bidwell, 182 U.S. 244, 282-83 (1901). Although

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Here is paragraph 353 rewritten for the Taiwan status. 353. Subjugation or Conquest Distinguished

Belligerent occupation in a foreign war, being based upon the possession of enemy territory (Taiwan as Japanese territory under belligerent occupation during the period of 1945-52), necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power (USMG of metropolitan Japan and USMG of the Japanese dependency of Taiwan). Occupation is essentially provisional.

On the other hand, subjugation or conquest (international law principle of conquest which is confirmed by peace treaty) implies a transfer of sovereignty, which generally takes the form of annexation and is normally effected by a treaty of peace (SFPT effects the full transfer of plenum dominium). When sovereignty passes (peace treaty cession for territory acquired under the legal principle of conquest), belligerent occupation (US military occupation of enemy territory), as such, of course ceases, although the (SFPT-ceded Taiwan) territory may and usually does, for a (interim but indefinite) period at least, continue to be governed through military agencies (USMG in SFPT).

With the SFPT entering into force on April 28, 1952, belligerent occupation of the Taiwan cession has ceased.  However, the military government of the principal occupying power (and the laws of occupation) continue for Taiwan until legally supplanted. These concepts, which are embodied in the customary laws of warfare, seem to be totally outside the line of sight of the majority of researchers, professors, and commentators who deal with the Taiwan status question.

354. Friendly Territory Subject to Civil Affairs Administration Distinguished

Civil affairs administration is that form of administration established in friendly territory whereby a foreign government pursuant to an agreement, expressed or implied, with the government of the area concerned, may exercise certain authority normally the function of the local government.

Such administration is often established in areas which are freed from enemy occupation. It is normally required when the government of the area concerned is unable or unwilling to assume full responsibility for its administration. Territory

many elements have been identified, the Supreme Court has not comprehensively defined precisely which parts of the Constitution establish fundamental rights. Reid v. Covert, 354 U.S. 1, 13 (1957).

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subject to civil affairs administration is not considered to be occupied. If circumstances have precluded the conclusion of a civil affairs agreement with

the lawful government of allied territory recovered from enemy occupation or of other territory liberated from the enemy, military government may be established in the area as a provisional and interim measure (see par. 12b and c). A civil affairs agreement should, however, be concluded with the lawful government at the earliest possible opportunity.

Comments on paragraph 354 in relation to the Taiwan status issue: The Insular Cases don't apply to West Berlin because it was belligerent occupation which is only temporary acquisition of sovereignty under conquest, with no treaty cession. Paragraphs 353 and 354 are the standards of differentiating Berlin from Taiwan. In the situation of occupied Cuba, there was dejure control by USMG, and a judicial policy presumption of the continuation of military occupation, as recognized in Article 1 of the Treaty of Paris81 and overviewed in the case of Neely v. Henkel, 180 U.S. 109 (1901).82 Moreover, the US government was willing to nurture Cuban independence, and to wait for the proper time to inaugurate Cuba as a new member of the community of nations.83

The limbo status of Taiwan is after the peace treaty cession and the Insular Cases do apply. One only needs to reach out and associate their rights and to identify with the US Constitution. Occupied Berlin was a temporary acquisition of sovereignty by conquest, but not finalized by peace treaty. It is the bottom of the barrel for holding any legal sovereignty by conquest.

After the peace treaty comes into effect, with regard to territorial cessions, the acquisition of sovereignty is dejure, but not so permanent if in an interim status under

81 Article 1 of the Treaty of Paris specifies: "Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property." A five-element formulation for Cuba is evident in Article 1: (1) United States is the (principal) occupying power; (2) Original "owner" did indeed cede the territory; (3) No "receiving country" was specified (i.e. "limbo cession"); (4) USMG has disposition rights over the territory; & (5) Military government is present, and military occupation is a reality.

A similar five-element formulation for Taiwan is found, respectively, in the following Articles of the SFPT: 23; 2(b); 2(b); 4(b); 4(b) and the Hague Conventions (1907). See Chart: “Peace Treaty Specifications for Cuba and Taiwan.”82 Regarding the status of Cuba under USMG jurisdiction, also see Pearcy v. Stranahan 205 U.S. 257 (1907).83 In relation to Cuba, two facts must be remembered: (1) the United States was not opposed to Cuban independence, (2) the United States did indeed exercise sovereignty over Cuba from the date of the surrender of Spanish troops in Cuba (July 17, 1898), past the date when the Treaty of Paris came into effect (April 11, 1899), and indeed up until the proclamation of the end of USMG and the founding of the Republic of Cuba on May 20, 1902.

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the laws of occupation. This is Cuba Question (April 11, 1899 to May 20, 1902) or Taiwan Question (from April 28, 1952 to the present) as viewed from the vantage point of Para. 354. This is a safe harbor of SFPT and there are constitutional rights attached, as this is also unincorporated territory by the fact of dejure acquisition of American sovereignty over the cession.

Para. 354 shows us that SFPT has left Taiwan cession in an interim status condition. This may be more precisely described as a post belligerent-occupation status, or what is known in military parlance as a "civil affairs administration of a military government." FM 27-10 states that the Laws of War still legally apply during this interim status.84 Taiwan is being held in a military status and has not been transferred to any civilian status in the technical sense. That is why over the last fifty years the ROC authorities have been able to exercise "the colonial powers of local military governors of a self-governing dominion85 under SFPT interim status."

Para. 354 says: "Territory subject to civil affairs administration is not considered to be occupied." The occupational authority over Taiwan cession is not dejure occupation of belligerents in the laws of war. The laws of occupation are continued under SFPT on the sole basis of civil affairs administration for an indefinite period. Technically it is not belligerent occupation but it is still functioning just like it until someone in authority makes the political decision otherwise. Civil Affairs will just continue this form of civil administration according to their military regulations. This insular law practice after treaty cession is the true meaning of USMG for "foreign territory86 under the dominion of the United States" which is yet not incorporated into US Constitution and the Bill of Rights. This is "military occupation" within the insular law and FM 27-10. This Field Manual is written for the US Constitution and any peace treaty of USA supreme authority. It is a civil affairs regulation of legal authority.87

84 Also see Birkhimer ibid., p. 69, Chapter IX: Laws Obligatory Within Occupied Territory, Sec. 113: "The law of war prevails in occupied territory."85 Self-governing dominion: self-governing area under benign sovereignty of another country; a foreign state equivalent under international law or TRA; although not a trust territory or mandate territory, but treated similarly in international law (in many respects) as being a “sub-sovereign foreign state equivalent.”86 See Birkhimer ibid., p. 43, Chapter VI: Effect of Occupation on Local Administration, Sec. 57: “Important consequences result from the rule that territory under military government is considered foreign.”87 The military nature, or civilian nature, of the ROC government structure on Taiwan is immaterial as it was forced upon the island of Formosa and the Pescadores under the laws of war. Civil affairs regulations clearly allow for the provisional and interim establishment of military government to exercise the administrative authority (eg. insular territorial governor powers of executive, legislative, and judicial) within a ceded area for an indefinite periods during its period of undefined political status after cession. This is the significance of para. 354 when applied to the circumstances of Taiwan. Also see FM 41-5 "Joint Manual for Civil Affairs" and FM 41-10 "Civil Affairs Operations" which outline

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This is the current status until someone in authority changes it. Either finalization of political status via some formulation put into effect by the Commander-in-Chief or by the Congress. The courts cannot touch the political question. Importantly however, executive actions can be reviewed for violations of civil rights protections. Two methods of review are possible: (1) via the federal judiciary, (2) via the Congress. This is the constitutional system of the checks and balances facilitated by the status of "unincorporated territory" as dejurely created by the supreme law of SFPT.

Clearly, this paragraph explains quite a bit of the background for what Nixon and Kissinger used as a legal reasoning for concluding the (Feb. 28, 1972) Shanghai Communique. That Communique contains several important clauses which deal with the intended future disposition of the occupied territory of Taiwan.88 Not surprisingly, in the present day most native residents of Taiwan take strong exception to the notion that there should be a “ …settlement of the Taiwan question by the Chinese themselves,” as they consider themselves Taiwanese and not Chinese.

Here is paragraph 354 rewritten for the Taiwan status. 354. Friendly Territory Subject to Civil Affairs Administration Distinguished

Civil affairs administration is that form of administration established in friendly territory (after peace treaty conversion from enemy territory via full transfer of plenum dominium in SFPT) whereby a foreign government (US Military Government tentatively disclaiming but not officially relinquishing any plenum dominium) pursuant to an (Shanghai Communique as an executive) agreement, expressed or implied, with the (PRC) government of the (Taiwan) area concerned, may (allow the the ROC administrative authorities [aka “Chinese rebels”] on Taiwan to ) exercise certain (SFPT administrative) authority normally the function of the local government.

Such administration is often established in (Taiwan) areas which are freed from enemy occupation (by SFPT cession from Japan). It is normally required when the (PRC) government of the (Taiwan) area concerned is unable or unwilling to assume full responsibility for its (SFPT) administration (until a final political status can be achieved). (Taiwan) Territory subject to civil affairs administration (of US Military Government) is not considered to be (belligerently) occupied. (After treaty cession,

Civil Affair Operations. In particular, see the overview in FM 41-10, Chapter 2: "Civil Administration in Occupied Territory." 88 Quote: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.

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it is friendly territory and not a legal condition of belligerent occupation of enemy territory).

If circumstances have precluded the conclusion of a civil affairs agreement with the lawful government of allied territory recovered from enemy occupation or of other territory liberated from the (Japanese) enemy, (US/ROC) military government may be established in the (Taiwan) area as a provisional and interim measure (see par. 12b and c). A (Shanghai Communique and a PRC-ROC bilateral ) civil affairs agreement should, however, be concluded with the (intended)(PRC) lawful government at the earliest possible opportunity.

355. Occupation as Question of Fact Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.

Comments on paragraph 355 in relation to the Taiwan status issue: Under the principle of conquest, para. 355 explains the prevailing criteria of how an interim sovereignty is legally acquired by the occupant under laws of occupation. However, the principle of conquest alone does not officially transfer the sovereignty to the occupant until a cession by conquest is finalized in a peace treaty. The ROC was not the party whom received (or held) the supreme authority of the occupation after SFPT cession despite their continuing role as local military governors.89 The supreme authority of the USA permanently displaced the Japanese sovereignty upon cession in the SFPT, but due to the wide support for the ROC government-in-exile in the US Congress, the US executive branch was unwilling to publicly disclose the true situation regarding Taiwan’s territorial position under the US Constitution, and tacitly authorized the ROC to continue its administrative functions indefinitely during the post SFPT ratification period.90

89 Counting from the Oct. 25, 1945, beginning of the military occupation of Formosa and the Pescadores to the present, the ROC has exercised effective territorial control over these areas for over sixty years. However, due to the international law stipulation that “military occupation does not transfer sovereignty,” the doctrine of prescription cannot be invoked. Prescription: (1) the process of acquiring title to property by reason of uninterrupted possession of specified duration, (2) acquisition of ownership or other real rights in movables or immovables by continuous, uninterrupted, peaceable, public, and unequivocal possession for a period of time.90 For a detailed overview, see Chart: “Examination of Taiwan’s Territorial Sovereignty and the ROC’s International Legal Position.”

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Because of the continuing exercise of governmental functions by the occupational powers under SFPT, the laws of war will continue to bind the USA and ROC. The legal conditions of para. 354 mean that the one year termination of these Geneva Convention rights91 for the people of Taiwan does not occur, and these rights continue to be in legal effect for an indefinite period. Such an interpretation is further reinforced by an examination of the Spanish American War cessions, where the historical record clearly shows that the military government of the (principal) occupying power does not end with the coming into force of the peace treaty. Procedures and arrangements of this type must be viewed as part of the customary laws of warfare.92

Interestingly, the Shanghai Communique93 (and other two US-PRC Joint Communiques) have seen the USA establish a One China Policy which peacefully seeks to "return" the SFPT cession to the PRC, (not the ROC), as the (intended) “recognized” lawful government of the area.94 At present, the PRC is not even exercising any effective form of SFPT powers nor legally does it have the current supreme authority of the USA. So what we currently see is that both the ROC and PRC are most effectively dejurely displaced by the supreme authority of the USA/USMG in an escrow function of the limbo status of Taiwan.

As a result, the ROC is simply fulfilling the role of local military governors in Taiwan, and is not able to gain any meaningful international juridical standing as globally defined under the Montevideo Convention95 because of the Para. 354 "civil 91 Reference: GC 6, para. 2 & 3 -- In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. 92 The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." For a territorial cession, the fact that the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted by a fully recognized civil government has been confirmed by many US Supreme Court rulings. In particular, see Cross v. Harrison, 57 U.S. 164 (1853), De Lima v. Bidwell, 182 U.S. 1 (1901), Dooley v. U S, 182 U.S. 222 (1901), and Santaigo v. Nogueras, 214 U.S. 260 (1909).93 In regard to Taiwan, it is important to recognize that the 1972 Shanghai Communique was an executive agreement signed with a diplomatically non-recognized administrative authority.94 The fact that the PRC has never had control over Taiwan since its founding on Oct. 1, 1949, is fully known by the US State Dept. A very early reference to this fact is a Sept. 4, 1958 Statement by Secretary of State Dulles, printed in the Dept. of State Bulletin, Sept. 22, 1958, pages 445-446.95 Many researchers claim that the ROC on Taiwan meets the four Montevideo Convention criteria for statehood, while completely ignoring the facts that the mass naturalization of native Taiwanese persons as ROC citizens in Jan. 1946 is illegal under the laws of war, there are no international treaty references which can lead any credence to the assertion that the ROC has the title to Taiwan territory, and that as of late 1949 the ROC has already become a government in exile.

Significantly, there is no doctrine under international law whereby certain actions taken by a

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affairs agreement" between the USA and PRC. It is a trilateral relationship with the USA being the ringmaster of a three-ring circus called the One China policy.

356. Effectiveness of Occupation It follows from the definition that belligerent occupation must be both actual and effective, that is, the organized resistance must have been overcome and the force in possession must have taken measures to establish its authority. It is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district. It is immaterial whether the authority of the occupant is maintained by fixed garrisons or flying columns, whether by small or large forces, so long as the occupation is effective. The number of troops necessary to maintain effective occupation will depend on various considerations such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors. The mere existence of a fort or defended area within the occupied district, provided the fort or defended area is under attack, does not render the occupation of the remainder of the district ineffective. Similarly, the mere existence of local resistance groups does not render the occupation ineffective.

Comments on paragraph 356 in relation to the Taiwan status issue: Implementation clauses of the TRA for the US defense of Taiwan include weapon sales. With the termination of the Mutual Defense Treaty (MDT) on Jan. 1, 1980, the TRA has continued to provide for the defense of Taiwan territory by the TRA governing authorities with the assistance of the US military. Troop withdrawal is illusionary in the modern age of special forces, nuclear submarines, long-range bombers, smart-bombs, orbiting satellites, and other advanced military equipment. This means that the presence of US troops on the ground is not essential for deterring the territorial ambitions of PRC over Taiwan. In addition, there are many forward-based troops and military assets in Korea, Okinawa, and Guam that means deployment to Taiwan can be rapid in the event of any PRC invasion. By the TRA, the USA maintains its military capacity to defend Taiwan with the understanding that the Taiwan status issue will be solved peacefully.

Is the TRA still legally effective for maintaining an occupational status? The USA

government in exile can cause it to become the internationally recognized legal government of its current locality. By definition, a government in exile is spoken of in terms of its native country, hence it must return to its native country and regain power there in order to obtain legitimacy as the legal government of that geographic area. In other words, in order for the ROC to obtain legitimacy in the international community, it would have to return to Nanjing, China, and resume governance there.

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does not support Taiwan membership in international organizations requiring any sovereign membership status. While the TRA specifically supports Taiwan membership in other international organizations (where sovereignty is not required), the all-important fact is that no sovereign status membership is supported is a result of the three US-PRC Joint Communiques.96 For example, Taiwan was able to officially join the WTO but only as a "separate customs territory" which so received full US support. Taiwan did not join the WTO as a “country.” This is fully compatible with the Insular Cases and this new WTO membership status is another piece of evidence of an effective militarily occupied status for the SFPT cession of Taiwan under the TRA

Notably, the TRA stipulates for the USA to " ... to provide Taiwan with arms of a defensive character." This is the law of the land. However, the implementation of such a law needs to be predicated on the fact that current "mandatory military conscription" policies in Taiwan rest on a solid legal basis. The State Dept. continually says that Taiwan (Republic of China) is not a sovereign nation.97 As we know from the post-war history, the territorial sovereignty of Taiwan was not awarded to the Republic of China in the post-war SFPT. So, what is the legal basis for a non-sovereign nation to maintain a "Ministry of National Defense" and to institute mandatory military conscription policies over a civilian populace? The consideration of these issues must necessarily take us into a discussion of the war crimes committed by the Republic of China officials on Taiwan from 1945 to the present.

Part V. Major Categories of War Crimes of the Republic of China on Taiwan

A. References

96 The United States does not support Taiwan independence. However, such a stance does not preclude the Taiwanese people from instituting name rectification of all local “Republic of China” entities to “Taiwan,” calling a constitutional convention to draft a new Taiwan constitution, designing a new flag, new seal, or selecting other emblems. What is needed is for the Taiwanese people to fully recognize the true nature of Taiwan’s international legal position, whereupon the majority of the democratic goals of the Taiwan independence advocates can be satisfied, and at the same time Taiwan can have a fully functioning civil government. Under such a legal framework, Taiwan would remain as a sub-sovereign entity under USMG, but as a US overseas territory, further upgrading or change of this status could be achieved in the future. See “Organization Chart for Taiwan Civil Government under USMG.”97 On Oct. 25, 2004, United States Secretary of State Colin Powell confirmed the United States’ continuing policy towards Taiwan. He stated, “Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy.”See Statement by Secretary Colin Powell, available at http://usinfo.state.gov/eap/Archive/2004/Oct/26-277540.html

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498. Crimes Under International Law98

Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Such offenses in connection with war comprise: (a) Crimes against peace, (b) Crimes against humanity, and (c) War crimes.

Source: para. 498

499. The term "war crime" is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.

Source: para. 499

There is no statute of limitations on war crimes, see Art. 1 of Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (entry into force 11 Nov. 11, 1970)99

Article 1No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: (a) War crimes as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (1) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims; (b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.

In regard to the United States government's responsibility for the actions of the

98 US Army Field Manual, FM 27-10, Chapter 8, Remedies for Violation of International Law; War Crimes99 Available at http://www.unhchr.ch/html/menu3/b/p_limit.htm

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Republic of China on Taiwan, reference is made to the United Nations document Responsibility of States for Internationally Wrongful Acts 2001.100

Article 8 Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

B. War Crimes

The following listing of war crimes are given in the order of their presentation as paragraphs in FM 27-10. These are primarily from Chapter 5 “Civilian Persons” and Chapter 6 “Occupation.” Where corresponding annotations to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 (abbreviated as GC) and Annex to Hague Convention No. IV, 18 October 1907, embodying the Regulations Respecting the Laws and Customs of War on Land (abbreviated HR), or other international conventions are available, they are listed separately. However, in order to follow the ordering presentation in FM 27-10, the articles of GC, HR, etc. quoted are not presented as a strict numerical sequence. Improper actions which have continued past the Dec. 1948 implementation of the Universal Declaration of Human Rights are listed as violations thereof. Other items are listed where appropriate.

The author believes that the principles stated in the particular articles of GC referenced below represent established international norms even before their further formal codification in 1949, and hence can be held to be part of the customary laws of warfare in the WWII period.

1. Seizure, Expropriation, and Confiscation of PropertyFM 27-10: 393, 395, 396, 397, 399, 400, 402, 403, 406GC: art. 53; art. 33HR: art. 23, par. (g); art. 47; art. 28; art. 55; art. 53; art. 46, 2nd par. Universal Declaration of Human Rights: art. 8; art. 17;

100 Available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf

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Comments: In late Oct. 1945, property in Taiwan could be classified into five types: (1) property of Japan, (2) property of Japanese nationals, (3) property of native Taiwanese persons, (4) property of local Taiwanese companies, organizations, associations, etc., (5) property of aboriginal groups.

In regard to the actions of the ROC government and its officials beginning in late Oct. 1945, and continuing over the next several decades, many private researchers, historians, and NGOs in Taiwan have collected extensive documentation concerning the confiscation, compulsory sale, forfeiture, destruction, looting, and pillage of all categories of this property, including blatant abuse of the power of eminent domain, along with the seizure, theft, and expropriation of other assets. This documentation can be filed with the appropriate tribunal.

Legally speaking, under the specifications of SFPT Article 4(b), the proper dispositions of the property of Japan and Japanese nationals in Taiwan are matters for the USMG to determine. Particularly notable is that FM 27-10 states:

396. Title to Captured or Seized Enemy Property Public property captured or seized from the enemy, as well as private property validly captured on the battlefield and abandoned property, is property of the United States (see U.S. Const., Art. I, sec. 8, cl. 11), and failure to turn over such property to the proper authorities or disposal thereof for personal profit is a violation of Article 103 of the Uniform Code of Military Justice.

2. Annexation of TerritoryFM 27-10: 358, 365GC: art. 47

Comments: The Republic of China’s announcement of the annexation of Taiwan territory on Oct. 25, 1945, the so-called “Taiwan Retrocession Day,” is a war crime.

3. Implementation of the mass naturalization of native Taiwanese persons, military conscription, travel restrictions, etc.

FM 27-10: 274, 359, 418, 420 GC, art. 35, art. 51HR, art. 45, art. 23, 2d parUniversal Declaration of Human Rights: art. 13 Executive Order 13224

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Comments: The January 1946 mass-naturalization of native Taiwanese persons as “Republic of China citizens” in occupied Taiwan territory is a war crime. Wide-ranging travel restrictions over native Taiwanese persons from the late 1940’s into the early 1980’s were not justified based on military necessity nor the national interest of the state. The mobilization of workers in occupied Taiwan territory into military units and other organizations of a military character, in addition to requiring them to swear allegiance to the Republic of China, also qualify as war crimes.

Additionally, the maintenance of a Ministry of National Defense, the imposition of mandatory military conscription policies over the local Taiwanese populace, the assertion of ROC sovereignty over various geographic areas in violation of the “One China Policy,” and the often seen actions by ROC military troops to assert their jurisdiction over nearby island groups (in particular the Taioyutai & Spratly island groups),101 all amount to violent act(s) or an act(s) dangerous to human life, property, or infrastructure; and appears to be intended --

a) to intimidate or coerce a civilian population; b) to influence the policy of a government by intimidation or coercion; or c) to affect the conduct of a government by mass destruction,

assassination, kidnapping, or hostage-taking.and thus strongly appear to meet the criteria of 18 USC 2331 and Executive Order

13224 regarding “terrorism.”

4. Trials of civilian personnel by military courts, introduction of a new penal code in occupied Taiwan territory, arbitrary arrest, death penalties without right of appeal, massacres, torture, etc.

FM 27-10: 270, 271, 272, 369, 370, 373, 422, 435, 436, 437, 438, 445GC: art. 31; art. 32; art. 33; art 64; art. 54; art. 65; art. 66; art. 67; art. 68; art. 76HR: art. 43, art. 23(h) Universal Declaration of Human Rights: art. 3; art. 5; art. 9; art. 10; art. 11; art.

12; art. 28

Comments: The following historical incidents or actions are noteworthy in regard to this category of war crimes:

(A) the “2-28 Incident” of Feb. 28, 1947, and its aftermath, including the era of “White Terror” up to the end of the martial law era in July 1987, together with

101 Geographically, the Taiwan Relations Act only recognizes Formosa and the Pescadores as being part of Taiwan. See 22 USC 3314 (2). Moreover, the TRA does not recognize the nomenclature of “Republic of China” after Jan. 1, 1979.

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(B) the democracy and freedom movement promoted by the “Free China” magazine, which was ordered to close in September, 1960, and its aftermath,

(C.) the “Declaration of Formosan Self Salvation” movement, of Sept. 20, 1964, and its aftermath,

(D) the “Chungli Incident” of Nov. 19, 1977, and its aftermath, (E.) the “Formosa Magazine Movement” of 1979, and its aftermath, plus the (F) the “Kaohsiung Incident” of Dec. 10, 1979, and its aftermath, (G) other incidents, and their aftermaths, including charges or allegations of

“sedition,” “treason,” “perfidy,” “adhering to the enemies of the ROC,” “giving aid and comfort to the enemies of the ROC”, “espionage for the enemy,” or related activities, against members of the Taiwanese populace,

(H) actions of the Taiwan Garrison Command, National Security Bureau, Criminal Investigation Bureau, or similar agencies, whether civilian or military, from late Oct. 1945 to the present, including physical or mental torture, cruelty, mutilation, forced prostitution, inhumane treatment of human beings, cephalocide, genocide, massacres, forced exile, false imprisonment, incarceration without due process, forced segregation, involuntary servitude, denial of civil rights, denial of liberty, denial of medical treatment, and other human rights abuses, including political, religious, or ethnic persecution.

5. Immigration into occupied territoryFM 27-10: 382GC, art. 49

Comments: In 1946, Taiwan’s population was estimated at 6.09 million. In the period of 1946 to 1952 alone, it was estimated to have further increased by 2 million persons. The new Chinese immigrants were loyal to the ROC, and fled the mainland during the Chinese civil war period of the late 1940’s. Moreover, additional Chinese immigration into occupied Taiwan territory continued after the founding of the People’s Republic of China on Oct. 1, 1949.

Part VI. United States Court of Taiwan

A. Outline of Organization Law for United States Court of Taiwan

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The following outline has been assembled based on the author’s notes made during seven years of research on the international legal status of Taiwan.102

ARTICLE 1United States Court

1. A United States Court of Taiwan (herein referred to as "the Court") is hereby established for the Taiwan cession. 2. Subject to the provisions of Article 3 the Court shall have jurisdiction to hear and decide any case arising under any legislation in effect within the area of Taiwan, including the Pescadores, in accordance to the definition of “Taiwan” in the Taiwan Relations Act, 22 USC 3314 (2), such areas herein referred to as "Taiwan", recognized by the United States as the Republic of China prior to Jan. 1, 1979. The jurisdiction of the Court may be extended to other nearby areas according to the determination of the Commander in Chief. 3. The Court shall establish its main branch in Taipei city, and further branches in other cities or localities of Taiwan as the United States Secretary of Defense and Chief of Mission may determine to be necessary.

ARTICLE 2Personnel

ARTICLE 3Jurisdiction

ARTICLE 4Process

ARTICLE 5Terminology Definitions

ARTICLE 6Fees

ARTICLE 7Languages and Forms

102 Also worthy of note is that Article 14 of the International Convention on Civil and Political Rights describes certain standards and procedures that should be used in all courts and tribunals. The United States is a party to this Convention.

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ARTICLE 8Cases Removed or Transferred from Taiwanese Courts

ARTICLE 9Jurisdiction to Review Taiwanese Court Decisions

ARTICLE 10Administrative Court Cases Subject to Re-adjudication

ARTICLE 11Annulment or Cancellation of Taiwanese Supreme Court Decisions

ARTICLE 12Amendment of Taiwanese Laws

ARTICLE 13In-Court Mediation

ARTICLE 14Enforcement of Judgments

ARTICLE 15Review of Decisions

ARTICLE 16Jurisdiction Clarifications

ARTICLE 17Amendments

ARTICLE 18Taiwan Presidential Pardons

ARTICLE 19Nomenclature

This Law shall be known as the Organization Law of the United States Court of Taiwan.

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ARTICLE 20Effective Date and Area of Applicability

B. Legal Rationale for the Founding of the Court

Background: The following overview first summarizes the relevant historical and legal data presented in previous sections of this article. With the recognition that Taiwan is an overseas territory under the jurisdiction of the United States Military Government,103 a dilemma immediately emerges due to the fact that no US civilians in Taiwan can obtain their full Bill of Rights protections in the Republic of China court system. Clearly, this dilemma needs to be remedied by the founding of an Article II Court104 in the Taiwan cession, most likely under the name of the “United States Court of Taiwan.”

Looking toward the future, a consideration of the constitutional rights of US military personnel in Taiwan, as well as the necessity to adjudicate the war crimes committed by ROC officials in the period of 1945 to present are offered as additional justifications for the founding of the court.

RECITALS:

WHEREAS1. At the close of World War II, Japanese forces on Taiwan surrendered on Oct. 25, 1945.

2. In the San Francisco Peace Treaty (SFPT) of April 28, 1952, Article 2(b) states: "Japan renounces all right, title and claim to Formosa and the Pescadores."

3. The United States Military Government is the principal occupying power according to SFPT Article 23(a). The beginning of United States Military Government (USMG) administrative authority over Formosa and the Pescadores can be traced back to the provisions of General Order No. 1,

103 A fundamental principle of international law is that, with few exceptions, a sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders.104 Article II of the US Constitution confers on the President the title of “Commander in Chief,” thereby authorizing him to establish military commissions. Additionally, the authority for the existence and operation of military tribunals is authorized by Article 21 of UCMJ.

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issued by General Douglas MacArthur on Sept. 2, 1945. SFPT Article 4(b) further confirms the jurisdiction of USMG over Taiwan.

WHEREAS1. The Republic of China (ROC) is not a member of the group of 48 countries signatory to the SFPT.

2. SFPT Article 25 expressly stipulates that the treaty shall not confer any benefits on any non-signatory countries.

3. Importantly, SFPT Article 21 does not grant any "benefits" of Article 2(b) to any country.

4. The rules of international law, both customary and treaty law, have established that military occupation does not affect sovereignty over an occupied country/area and that such occupation does not transfer sovereignty to the occupying Power. This was further codified in the Geneva Convention R elative to the Protection of Civilian Persons in Time of War (1949), Part III, section III.

WHEREAS 1. The constitutional authority for the establishment of United States Military Government is found in the US Supreme Court case Ex parte Milligan 71 U.S. 2 (1866).

2. In the US Supreme Court case of Downes v. Bidwell 182 U.S. 244 (1901) Justice White, with whom concurred Justice Shiras and Justice McKenna, stated: “ …it seems to me it is not open to serious dispute that the military arm of the government of the United States may hold and occupy conquered territory without incorporation for such length of time as may seem appropriate to Congress in the exercise of its discretion. The denial of the right of the civil power to do so would not, therefore, prevent the holding of territory by the United States if it was deemed best by the political department of the government, but would simply necessitate that it should be exercised by the military instead of by the civil power.”

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3. Military government continues until legally supplanted. However, there is no historical record of the end of United States military government in “Formosa and the Pescadores” (aka “Taiwan”). Cessation of hostilities in WWII did not end military government. Nor did military government end with the signing of the SFPT on Sept. 8, 1951, or the coming into effect of the Treaty on April 28, 1952. Nor did the Jan. 1, 1980 termination of the Mutual Defense Treaty include any such provision.

4. Hence, in the present day, the United States Military Government administrative authority over Taiwan is legally active. For all effective purposes, Taiwan remains under dejure US military occupation, which is described in military terms as a "Civil Affairs Administration of a military government", while being held under the doctrine of unincorporated territory.

WHEREAS1. According to Article 2 of the Geneva Convention R elative to the Protection of Civilian Persons in Time of War (1949), the laws of war apply in occupied territories. The US Supreme Court has continually held that "The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long-established."

2. In Ex parte Quirin, 317 U.S. 1, 29 -30, 35 (1942), the US Supreme Court held that "The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. '' . . . . .

"Even under the service connection rule, it was held that offenses against the

laws of war, whether committed by citizens or by alien enemy belligerents, could

be tried by a military commission." . . . "We hold only that those particular acts

constitute an offense against the law of war which the Constitution authorizes to

be tried by military commission."

3. In Reid v. Covert, 351 U.S. 487 (1956), Justice Black in a plurality opinion of the US Supreme Court asserted that wherever the United States acts it must do so only ''in accordance with all the limitation imposed by the

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Constitution . . . . Constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.''

4. In a rehearing on the case, Reid v. Covert, 354 U.S. 1 (1957), the Court discussed civis romanus sum105 protections for US citizens under the Constitution by stating:

The United States is entirely a creature of the Constitution. Its power and

authority have no other source. It can only act in accordance with all the

limitations imposed by the Constitution. When the Government reaches out to

punish a citizen who is abroad, the shield which the Bill of Rights and other parts

of the Constitution provide to protect his life and liberty should not be stripped

away just because he happens to be in another land. This is not a novel concept.

To the contrary, it is as old as government. It was recognized long before Paul

successfully invoked his right as a Roman citizen to be tried in strict accordance

with Roman law. And many centuries later an English historian wrote:

"In a Settled Colony the inhabitants have all the rights of Englishmen. They take with

them, in the first place, that which no Englishman can by expatriation put off, namely,

allegiance to the Crown, the duty of obedience to the lawful commands of the

Sovereign, and obedience to the Laws which Parliament may think proper to make with

reference to such a Colony. But, on the other hand, they take with them all the rights

and liberties of British Subjects; all the rights and liberties as against the Prerogative of

the Crown, which they would enjoy in this country."

4. In Madsen v. Kinsella, 343 U.S. 341 (1952), it is noted: " In speaking of the authority and occasion for the use of a military commission, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (2d ed. 1920 reprint), says at 831:

". . . it is those provisions of the Constitution which empower Congress to

`declare war' and `raise armies,' and which, in authorizing the initiation of war,

authorize the employment of all necessary and proper agencies for its due

105 Civis romanus sum: A Latin phrase spoken by the Apostle Paul to invoke the legal protections of Roman law and Roman courts. "I am a citizen of Rome," said St. Paul in the Bible (Acts 22:25) and this legal doctrine is further enumerated by the ruling in Johnson v. Eisentrager 339 U.S. 763 (1950) for the laws of war and SFPT.

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prosecution, from which this tribunal derives its original sanction. Its authority is

thus the same as the authority for the making and waging of war and for the

exercise of military government and martial law. The commission is simply an

instrumentality for the more efficient execution of the war powers vested in

Congress and the power vested in the President as Commander-in-chief in war.

In some instances . . . Congress has specifically recognized the military

commission as the proper war-court, and in terms provided for the trial thereby of

certain offences. In general, [343 U.S. 341, 347] however, it has left it to the

President, and the military commanders representing him, to employ the

commission, as occasion may require, for the investigation and punishment of

violations of the laws of war and other offences not cognizable by court-martial.

"The occasion for the military commission arises principally from the fact that the

jurisdiction of the court-martial proper, in our law, is restricted by statute almost

exclusively to members of the military force and to certain specific offences

defined in a written code. It does not extend to many criminal acts, especially of

civilians, peculiar to time of war; and for the trial of these a different tribunal is

required. . . . Hence, in our military law, the distinctive name of military

commission has been adopted for the exclusively war-court, which . . . is

essentially a distinct tribunal from the court-martial of the Articles of war."

5. In US v. Tiede (US Court of Berlin, 1979), Judge Stern held that in a military commission in occupied territory “Civil jurisdiction encompasses cases in which a member of the US Armed Forces is a party.” The US Court of Berlin was established pursuant to the powers granted to the President by Article II of the US Constitution.

6. The Taiwan Relations Act (TRA) states: “The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States.” Fundamental civil rights should certainly be a part of the enhancements legislatively promised by the US Congress. Reference to the US Supreme Court decision of Downes v. Bidwell 182 U.S. 244 (1901), strongly indicates that these human rights are applicable within a territorial jurisdiction upon cession by peace treaty where USMG is the principal occupying power.

7. Justice Gray in a concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901), stated: “The civil government of the United States cannot extend

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immediately, and of its own force, over territory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the President as Commander in Chief. Civil government cannot take effect at once, as soon as possession is acquired under military authority, or even as soon as that possession is confirmed by treaty. It can only be put in operation by the action of the appropriate political department of the government, at such time and in such degree as that department may determine. There must, of necessity, be a transition period.”

WHEREAS1. US Army Field Manual, FM 27-10 “Law of Land Warfare,” is a compilation of the principal offenses under the laws of war recognized by the United States. This Field Manual has been cited in US Supreme Court cases such as Application of Yamashita, 327 U.S. 1 (1946).

2. FM 27-10, Chapter 1 "BASIC RULES AND PRINCIPLES", Section 1 "GENERAL", para. 13 states:

13. Military Jurisdiction In areas occupied by United States forces, military jurisdiction over individuals, other than members of the Armed Forces, who are charged with violating legislation or orders of the occupant is usually exercised by military government courts. Although sometimes designated by other names, these tribunals are actually military commissions. They sit in and for the occupied area and thus exercise their jurisdiction on a territorial basis.

WHEREAS 1. Where there is a dispute over jurisdiction, the following clause of the TRA clearly states that the laws of Taiwan take precedence, in order to achieve a judicial decision which is to be considered valid in Taiwan:

Whenever the application of the laws of the United States depends upon the law that is or was applicable on Taiwan or compliance therewith, the law applied by the people on Taiwan shall be considered the applicable law for that purpose.

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2. In cognizance of the above, the TRA must be interpreted to say that the local Taiwan civil, criminal, and administrative law should apply in cases involving

(A) a United States citizen, and(B) Military, Naval, or Air Force personnel of the Armed Forces of the United States,

however FM 27-10, Chapter 6 "OCCUPATION", Section 2 "ADMINISTRATION OF OCCUPIED TERRITORY", paragraph 374 states:

374. Immunity of Occupation Personnel From Local LawMilitary and civilian personnel of the occupying forces and occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of the local courts of the occupied territory unless expressly made subject thereto by a competent officer of the occupying forces or occupation administration. The occupant should see to it that an appropriate system of substantive law applies to such persons and that tribunals are in existence to deal with civil litigation to which they are parties and with offenses committed by them.

3. Moreover, 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.

THEREFORE, PREMISES CONSIDERED 1. Due process and domicile together dictate when a US citizen is obliged to respond to orders of the government through its judicial branch. However, without the establishment of the US Court of Taiwan, US citizens in Taiwan are obliged to appear before a domestic Taiwan (ROC) court whenever process might be issued against them.

2. Hence, the correct court of venue for cases involving (A) a United States citizen, (B) Military, Naval, or Air Force personnel of the Armed Forces of the United States, (C.) other appropriate criteria as specified by the Department of Defense,

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is a US military commission convened within the Taiwan territorial jurisdiction, most likely under the name of "US Court of Taiwan". Indeed, it is only in such a court that United States citizens or members of the US Armed Forces can obtain their full Bill of Rights protections.

3. An important clause of the TRA upholds the validity of all treaties previously in force in regard to Taiwan.

For all purposes, including actions in any court in the United States, the Congress approves the continuation in force of all treaties and other international agreements, including multilateral conventions, entered into by the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to Jan. 1, 1979, and in force between them on Dec. 31, 1978, unless and until terminated in accordance with law.

4. And indeed the consideration of a "treaty" right to jury trial is an issue of civis romanus sum which relates closely to the provisions of the 14th Amendment to the US Constitution, thus widening the scope of equal protections, jus soli, and other self-executing civil rights of the 14th Amendment and the SFPT. These rights should be guaranteed to the categories of persons as specified above.

5. The US Secretary of Defense is the Head of the United States Military Government, and has the authority to convene the aforementioned US Court of Taiwan. SFPT administrative authority is a Department of Defense original jurisdiction, and it has not been assigned to the State Department or Interior Department.

6. According to its treaty validation clause and human rights clause, the TRA is the controlling legislative act of SFPT administrative authority. Traditionally, under TRA, any United States federal department must conduct their Taiwan affairs via the American Institute in Taiwan (AIT). However, the Department of Defense agency of administrative authority has never been an assigned job description of the AIT Chairman.

7. Alternatively, the US Court of Taiwan may be convened by the US High Commissioner, as was the case with the US Court of Berlin.

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8. Similar legal precedent does exist. In the absence of action by Congress, or a prior statute governing the matter, the President had the responsibility for administering the civilian government of the Ryukyu Islands, over which the United States assumed administrative control under Article 3 of the SFPT, and thus the Ryukyu Civil Administration Court was validly established by the President by Executive Order No. 10713, June 7, 1957, 3 CFR (1954-1958 Compilation) 368.

9. Offences against the laws of war could be tried by the US Court of Taiwan. Article 3 of the (proposed) Organization Law of the United States Court of Taiwan contains the following specifications:

Issues related to the nature and functioning of United States administrative authority over Taiwan shall take account of agency arrangements, or the delegation of the powers to exercise United States administrative authority, dating from October 25, 1945, to the present, and shall include corruption, bribery, pillaging, treason, extortion, embezzlement, larceny, sale of state secrets, illegal detentions, illegal exile, seizure of property, dereliction of duty, and war crimes.

10. Alternatively, a war crimes tribunal under US administrative authority could be established in Taiwan. Article 3 of the (proposed) Organization Law of the United States Court of Taiwan further specifies:

With reference to the preceding paragraphs of this Article regarding jurisdiction, the Chief of Mission may, with the approval of the Commander in Chief, appoint a special commission or separate tribunal to deal with any category or sub-category of issues, and remove it from the jurisdiction of the Court.

** END **

Chart: Peace Treaty Specifications for Cuba and Taiwan

Item Treaty of Parisspecifications for

Cuba

SFPTspecifications for

TaiwanUnited States is the (principal) occupying power

Article 1 Article 23

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Original “owner” did indeed cede the territory

Article 1 Article 2(b)

No “receiving country” was specified (i.e. “limbo cession”)

Article 1 Article 2(b)

USMG has disposition rights over the territory

Article 1 Article 4(b)

Military government is present, and military occupation is a reality

Article 1 Article 4(b) and the HagueConventions (1907)

Examination of Taiwan’s Territorial Sovereignty and the ROC’s International Legal Position

(separate file)

Organization Chart for Taiwan Civil Government under USMG

(separate file)

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