Which Country is Holding Taiwan's Sovereignty?

Regarding the dispute over Taiwan's sovereignty which continually makes headlines, the following analysis can be given. Let's first consider the Cairo Declaration, Potsdam Proclamation and Japanese surrender documents. Do these have the force of an internationally binding treaty arrangement to formally transfer the sovereignty of "Formosa and the Pescadores" to the Republic of China (ROC)? The answer is “No, they are only statements of intent.” Hence, we can overview the Taiwan sovereignty question in three steps.

Three Steps (Set #1) Step 1: From international law it is easily seen that Oct. 25, 1945 marks the beginning of the military occupation of "Formosa and the Pescadores" by the ROC. Military occupation does not transfer sovereignty. Step 2: When the government of the ROC fled to Taiwan in late 1949, it became a "government-in-exile." The ROC continued to exercise "effective territorial control" over this area which it was holding under military occupation. Step 3: In the post-war San Francisco Peace Treaty and Sino- Japanese Peace Treaty, the sovereignty of Taiwan was not awarded to the ROC.

Powell’s Statement Our conclusion must be that Sec. of State Powell’s Oct. 25, 2004 statement “Taiwan does not enjoy sovereignty as a nation” is correct. Background note: Everyone knows that the Taiwanese people have the right to participate in local elections. Obviously Sec. Powell was not speaking of so-called “popular sovereignty.” He was speaking of “territorial sovereignty.” It is important to recognize that “territorial sovereignty” is held by a government, and “territorial cession” is an action between governments. Taiwan was a territorial cession in Article 2(b) of the 1952 San Francisco Peace Treaty.

The Location of Taiwan’s Sovereignty So where is the sovereignty of Taiwan? Again, we may obtain the answer in three steps.

Three Steps (Set #2) Step 1: All attacks on Japanese fortifications and installations in Taiwan during WWII were carried out by US military forces. According to the "customary laws of warfare in the post Napoleonic period," the US will be the principal occupying power. Step 2: General Douglas MacArthur was the head of the United States Military Government, and also the Supreme Commander of the Allied Powers. He delegated matters regarding the Japanese surrender ceremonies on Taiwan to Chiang Kai-shek (CKS). The surrender ceremonies of Oct. 25, 1945, were held on behalf of the Allies. However, after the surrender ceremonies, CKS continued with the military occupation of Taiwan on behalf of the United States Military Government. In terms of the military occupation, this is simply a "principal" to "agent" relationship.

Step 3: In the post-war peace treaties, the sovereignty of Taiwan was not awarded to the ROC, hence the Japanese property of Taiwan remains under the administrative authority of the United States Military Government, and this is an interim status condition. In the San Francisco Peace Treaty, Article 4(b) clearly states that the United States Military Government has final disposition rights over the Japanese property of "Formosa and the Pescadores." In addition, Article 23 reconfirms the US as the principal occupying power.

The United States is Holding Taiwan’s Sovereignty In effect, the US is holding the sovereignty of Taiwan "in trust," and in the Shanghai Communique the US president is making arrangements for the future handover of this sovereignty to the People's Republic of China (PRC), which is recognized as the sole legitimate government of China! If the Taiwanese people don’t agree with this sort of arrangement, they should be making complaints to (or suing) the officials of the United States government, and not arguing with the officials of the ROC or PRC! This is because, at the present time, Taiwan is still under US administrative authority. Native Taiwanese people should be enjoying "fundamental rights" under the US Constitution, as do the native inhabitants of other US overseas territories!

Island Citizens Based on the insular cases of the Supreme Court, (and especially Gonzales v. Williams, 1904) in regard to Puerto Rico, after the 1899 treaty cession, when Puerto Rico was under United States Military Government (before the promulgation of the Foraker Act, May 1, 1900) the local people were "island citizens of the Puerto Rico cession." Hence, in Cuba, after the coming into effect of the 1899 treaty, when Cuba was under United States Military Government (before independence on May 20, 1902) the local people were "island citizens of the Cuba cession." In Taiwan, after the coming into effect of the 1952 San Francisco Peace Treaty, with Taiwan under the administrative authority of the United States Military Government, the local people are "island citizens of the Taiwan cession." Of course, the US flag should be flying. Taiwan is foreign territory under the dominion of the US, or more technically a "quasi-trusteeship of insular status under the United States Military Government."

US Passports The passports to whichTaiwanese citizens are entitled would be similar to a "trusteeship" ones. A more exact specification of this status should be made by the US State Dept. This is a jus soli nationality based on the US Supreme Court's Insular Cases, and not based on the 14th Amendment to the US Constitution. Taiwan's citizens do not (will not) have voting rights in US federal elections.

Addendum: Sovereignty Held in Trust

Sovereignty Held in Trust The US Supreme Court has recognized that the United States has a fiduciary duty over occupied territory. (Fiduciary duty is a legal relationship between two or more parties, who are most commonly termed a trustee and a beneficiary.) In their concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901), Justices White, Shiras, and McKenna, speaking of the 1899 Spanish American Peace Treaty (Treaty of Paris), stated: 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.

Downes v. Bidwell (1901) 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).

Sub-sovereign Foreign State Equivalent In a similar situation to Cuba after April 11, 1899, Taiwan is "foreign territory under the dominion of the United States." The Taiwan Relations Act does not treat Taiwan as a sovereign independent nation, but rather as a "sub- sovereign foreign state equivalent." The TRA contains a "foreign state equivalency" clause. See: Taiwan Relations Act [22 USC 3303 (b)]: Application of United States laws in specific and enumerated areas

Taiwan Relations Act The application of subsection (a) of this section shall include, but shall not be limited to, the following: (1) Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan. (2) Whenever authorized by or pursuant to the laws of the United States to conduct or carry out programs, transactions, or other relations with respect to foreign countries, nations, states, governments, or similar entities, the President or any agency of the United States Government is authorized to conduct and carry out, in accordance with section 3305 of this title, such programs, transactions, and other relations with respect to Taiwan (including, but not limited to, the performance of services for the United States through contracts with commercial entities on Taiwan), in accordance with the applicable laws of the United States.

Sovereignty of occupied territory held in trust The concept of the sovereignty of occupied territory being held in trust is further clarified on page 44 of Military Government and Martial Law by William E. Birkhimer, 3rd edition (1914), Chapter VI “Effect of Occupation on Local Administration,” Section 63 “Instance occupation of Cuba” -- 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.

Military Government and Martial Law, by William E. Birkhimer Also see Section 74 on page 49, which discusses the case of Neely v. Henkel, 180 U.S. 109 (1901) -- 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.

To paraphrase the concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901): Considering the provisions of the San Francisco Peace Treaty,....., by which the sovereignty of Taiwan is to be held by the United States for the benefit of the people of Taiwan and for their account, to be relinquished to them when the conditions justify its accomplishment,.... ( it must be maintained that ) Taiwan has not been incorporated into the United States, and is a foreign country.

God bless America, Taiwan, and the whole world! Author: Formosa Nation Legal-strategy Association (FNLA) March 2009 October 2010