TAIPEI, Taiwan – When discussing Taiwan’s international position, we are frequently told that after World War II there was a peace treaty where Japan renounced all right, claim and title to “Formosa and the Pescadores” (aka Taiwan), but these areas were not given to any other country. Based on a simple analysis of these treaty provisions, it could be held that Taiwan’s international legal position is undetermined. In the past few years, however, many people have begun to disagree with such an interpretation.
In Taiwan, local independence advocates stress that Taiwan belongs to the Taiwanese people. The People’s Republic of China authorities stress that Taiwan belongs to the PRC. Some activist groups claim that based on the U.N. Charter, Taiwan qualifies to be a U.N. trusteeship. These are all points of view that have received a large amount of coverage in the mainstream Taiwanese media.
By contrast, one aspect of history that has received little to no attention in the Taiwanese or international press is the historical similarity of Cuba after the Spanish American War and Taiwan after World War II. Spain renounced all rights to Cuba, but the island was not given to any other country. That is a very close similarity to Taiwan. There are many provisions of the peace treaty with Spain of April 11, 1899, that are very similar to the peace treaty with Japan of April 28, 1952.
Most importantly, historical researchers with a civilian mindset have consistently failed to analyze the role of military occupation in discussing the Taiwan question. They have considered peacetime legal concepts, but failed to consider the law of war.
In the mid to late 1800s all civilized nations came to recognize that territory seized or conquered in the course of war was not considered “annexed” but only “occupied.” To finalize a formal territorial cession, there needed to be a formal peace treaty. In fact, this recognition of the law of war was already part of the “law of nations” before being formally codified in the Hague Conventions of 1907. The formal definition is “Territory is considered occupied when it is actually placed under the authority of the hostile army.” It is important to note that the wording used is “occupied” and not “annexed.”
The nature of occupation is clarified by noting that “Military occupation does not transfer the sovereignty to the occupant, but simply the authority or power to exercise the rights of sovereignty.”
Let’s turn back to Cuba. All military attacks against Cuba during the Spanish American War period were conducted by the United States, so the U.S. is the “conqueror.” The Spanish military forces in Cuba surrendered on July 17, 1898, so that is the beginning of the military occupation. The peace treaty between the U.S. and Spain came into effect on April 11, 1899. Cuba was not ceded to any other country, hence it remained under military occupation and military government. The (principal) occupying power was the United States Military Government, or USMG, which was holding the territorial sovereignty of Cuba in trust during this period. To put this in somewhat technical language, from April 11, 1899, to May 20, 1902, Cuba was a “quasi-trusteeship under USMG within the U.S. insular law framework.”
During this period, the U.S. flag was flying over Cuba. On May 20, 1902, USMG in Cuba ended by proclamation of the commander in chief, the U.S. flag came down, and the Republic of Cuba flag went up.
At this point we may look at this entire series of events and pose a hypothetical question. What if the USMG had been busy in other areas of the theatre and had delegated the occupation of Cuba to Venezuelan military forces? When the Spanish troops surrendered in Cuba, could this be interpreted as to say that Cuba was being annexed to Venezuela? When Spain renounced all rights and claims to Cuba in the formal peace treaty, without specifying that Cuba was being ceded to any other nation, would this have meant that Cuba belonged to Venezuela? The answer in both cases is no.
Let’s look at Taiwan. All military attacks against Taiwan during the World War II period were conducted by the United States, so the U.S. is the “conqueror.” The surrender of the Japanese military forces in Formosa was on Oct. 25, 1945, thus beginning the military occupation, and the administrative authority for this military occupation was delegated to Chiang Kai-shek (aka the Chinese nationalists or Republic of China). The treaty between the U.S. and Japan came into effect on April 28, 1952. Japan renounced the territorial sovereignty of Taiwan, but no receiving country was named. The Republic of China flag should have come down at this point.
So, who has legal jurisdiction over Taiwan? Article 23 of the peace treaty confirmed that the United States was the principal occupying power, and Article 4b gave the USMG full authority to make final disposition of “Formosa and the Pescadores.” So, does the military government of the principal occupying power end with the coming into effect of the peace treaty? For a territorial cession, the answer is no.
This means that when Japan renounced the territorial sovereignty of Taiwan in the post-war peace treaty without naming a receiving country, in fact Taiwan was being relinquished to USMG as an interim status condition. More technically, from April 28, 1952, to the present, Taiwan is correctly classified as a “quasi-trusteeship under USMG within the U.S. insular law framework.” The U.S. flag should be flying!
The end result of military occupation is to “hand over the occupied territory to the lawful government of the area.” Before this is done, the principal occupying power will control the course of events. So, if you are looking for an explanation of why the United States plays such a major role in “Taiwanese affairs,” look no further. The hidden facts are now clear: Taiwan’s true status is that it is an overseas territory of the USA.
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Richard W. Hartzell is an American researcher of the law of war who has lived in Taiwan since 1975. Roger C. S. Lin holds a Ph.D. in international law from Meijo University in Japan. The writers’ website is TaiwanAdvice.com.