ROC is a government-in-exile

Politics Taiwan Politics
21

Okay, so I’ve got a couple hundred pages worth of Taiwan Sovereignty reading for you folks. Authors: Frank Chiang, Eric Ting-Lun Huang and others. I may put it up on a website somewhere probably.

From Frank Y. Chiang’s ONE-CHINA POLICY AND TAIWAN 28 Fordham Int’l L.J 1. Cursory reading of his summary seems to support Hartzell’s position although I don’t really know. Chiang advances certain arguments re: solution to the Taiwan sovereignty question which are similar to mine.

[quote]D. Taiwan as a Territorial Entity
There are three implications from the conclusion that China has not acquired title to the island of Taiwan. The first implication is that China has no sovereignty over Taiwan. …

The second implication is that under international law, the Taiwan issue is not a domestic issue for the state of China.

The third implication is that the island of Taiwan has an unusual status; it may be described as a territorial entity. …

Taiwan is not a State. [FN328] Not all civil societies are States. A society in a territory may be a political entity, yet be neither a State, nor subject to any sovereignty. Taiwan is not a State because it has never declared the establishment of statehood. [FN329] Half a century after the conclusion of the Peace Treaty of San Francisco, Taiwan has developed into an unusual society: a society which is neither a State, nor subject to any sovereignty. This Article has referred to such a territory and its society as a territorial entity.

…

Although the Peace Treaty of San Francisco contains no provision with respect to the post-treaty administration of the affairs of Taiwan, it is presumed that the R.O.C. government, which was authorized by the United States as its agent to conduct a military occupation of the island of Taiwan, is to continue the administration of the island. This is true because there has never been a directive by the United States or the Allied Powers changing the mandate of the R.O.C. government.
[/quote]

[quote]CONCLUSION
This Article, by applying the principles of international law, analyzed the Cairo Declaration, the occupation of the R.O.C. government, the Peace Treaty of San Francisco, and other historical events with respect to the rules of international law and concluded that China has not reacquired title to the island of Taiwan after the Treaty of Shimonoseki. Thus, China has no sovereignty over the island of Taiwan and its people. The one-China principle that the P.R.C. government advocates is flawed in its proposition that Taiwan is part of China. The one-China policy that has formed U.S. foreign policy toward China for the last three decades is not the same as the one-China principle held by the P.R.C. government; it is at best vague, and at times misleading.

This Article has offered a solution for the Taiwan problem–a referendum by the people of Taiwan to be conducted by the United Nations with an international guarantee of its result.
[/quote]

From Eric Ting-Lun Huang THE MODERN CONCEPT OF SOVEREIGNTY, STATEHOOD AND RECOGNITION: A CASE STUDY OF TAIWAN
(16 N.Y. Int’l L. Rev. 99)

[quote]VI. Conclusion
According to legal doctrine and states’ practices, to qualify as a state, recognition by other states is not a requirement under customary international law. [FN580] More importantly, the denial of recognition is not meant to effect political change but rather is the result of either the observation that the putative government simply does not control the state [FN581] or a government comes to power by means of violating international law. [FN582] Once a political entity has met the criteria, namely, it possesses a territory [FN583] and a population that is subject to the control of the authority which is sovereign, [FN584] it is the duty of the international community to consider that the entity meets the threshold for recognition. [FN585] Therefore, an effective government, such as Taiwan, should be recognized and its status should be acknowledged.[/quote]

Note: Footnote 580, Eric Huang uses Restatement (Third) of Foreign Relations Law of the United States

22

The problem is not what international law states or whether or not it should be up to the people of Taiwan to decide. Everyone knows that the PRC’s claim to Taiwan is dubious at best (including the Beijing government). However, whether or not you have proven that “international law” or whatever has backed up whatever assertion of Taiwan’s legal status, it still doesn’t make a bit of difference in the end, because whatever “international law” says, the PRC doesn’t give a f**k, and it has 600+ ballistic missles to back up its position, and the UN or international community is not going to back up Taiwan as long as they need China economically. That’s the reality of the situation. I don’t know why people still keep wasting so much time researching this issue, writing papers, etc. … because what it all comes down to is that the PRC doesn’t care about the “legality” of it, and the international community isn’t going to piss off Beijing. It’s time to let go, people, and just let what happens happen …

23

Darn you LittleBuddhaTW, you’re not playing along :p. I agree, it’s academic. But there’s a lot of folks who do care, who don’t think it is academic, and have killed a lot of trees to say so (One article had about 600 footnotes in it!).

Cursory reading of the materials tells me that I’ve got it right.

  1. Use the UN, throw the onus back to the world.
  2. World rejects (no surprise), so use the recognized universal right to self-determination. (Throw the ball back to PRC and US)
  3. Sit tight and wait.

Options are there’s war or there’s no war. Taiwan’s a pawn but you know, pawns can be very powerful in chess too :wink:

24

That Carolan piece from the Taiwansecurity.org site isn’t all that great. He has a much better and more scholarly work published in the New York University Law Review in 2000. Markus Puder was the only author I wasn’t able to get. He wrote "The Grass will not be Trampled Because the Tigers Need Not Fight: New Thoughts and Old Paradigms for D

25

I don’t find the so-called rebuttal in the Taipei Times to be very convincing. The author is apparently unaware that General Order No. 1 of Sept. 2, 1945 directed Chiang Kai-shek to come to Taiwan to accept the surrender of Japanese troops. She states that no such order exists . . . . . .

My associate Dr. Roger Lin has also researched the Taiwan sovereignty question in detail. He concludes that while the Taiwanese people have popular sovereignty (the right to vote, impeach public officials, etc.) they do not have state sovereignty (aka “territorial sovereignty”). Dr. Lin has a Ph.D. in international law.

The following is an article which we wrote about a month ago – worldnetdaily.com/news/artic … _ID=49379#

With all the talk on the internet now about the status quo in the Taiwan Strait, we believe that it is important to recognize that the One China Policy is correct. However, Taiwan is Taiwan and China is China.

The ROC on Taiwan is a subordinate occupying power and a government in exile … it is not a “country” in the sense of international law.

26

Ms Chen has simply formed an opinion about the matter and is thrashing around for any sources which appear at first blush to support her view. Unfortunately it appears that her grasp of international law is so limited that she has not notice at least two of the sources above contradict her view. On the other hand, Hartzell has actually done original research on the issue, and as wacky as it might sound, there is quite a strong body of evidence in favour of the proposition he puts forward in relation to Taiwan actually being unincorporated territory of the USA, or something. Now, of course, the world is not a democracy. Countries didn’t sit around and vote for America to be really rich, and Africa to be really poor. We are simply presented with those facts. But if we are going to ignore “international law”, we might as well find out what it is we are ignoring. I myself subscribe to the Biggest Kid in the Playground (BKIP) school of international legal studies, but the prescription and recognition arguments are important, as are the issues relating to the laws of war and military occupation. Look at Iraq. Where is the legal sovereignty there? And I mean where exactly? We can poo-poo the study of international law all we like, but we’re going to have to dream up some legal basis for whatever entity emerges in Iraq, otherwise we just descend into “It’s Illegal” / “No it isn’t!” / “Yes it is!” / “No it isn’t!” / “Look behind you!” - BAM!

FWIW, the BKIP theory provides that the biggest kid in the playground will simply tell all the other kids who’s boss after he’s beaten them to a pulp, and his favourite sychophant, the Smartest Kid in the Playground (SKIP), will write up the legal bumf and charge a huge fee.

27

I wonder if Richard has the historical evidence to support this claim from the article above:

And for that matter, what’s the relevancy of this fact? During the World War II period, Taiwan was Japanese territory, no different than the Japanese home isles. Shouldn’t all forces who fought against Japan during World War II be legally considered the “conqueror”?

Didn’t Japan surrender to “Allied forces”, rather than the United States explicitly? Wasn’t the surrender document on the U.S.S. Missouri also signed by Chinese, British, Soviet, Australian, Canadian, French, Dutch, and New Zealand representatives? Why is the United States the conquering force?

28

Hello:

If you want to understand the position Taiwan in the world today, you need to first be clear about the following concepts, and the significance of each under international law –
(1) conquest
(2) the (principal) occupying power
(3) military government
(4) cession
(5) government in exile

From your posting, it is apparent you are unfamiliar with these concepts.

You need to spend some time researching the essays at taiwanadvice.com

Everything is explained there, with essays, charts, diagrams, and other documentation. Also, in case you missed it, the Declaration of War against the Empire of Japan on December 8, 1941 was by the United States. That was not a Declaration of War by the Allies.

29

I’m not being difficult; just curious about your logic. I think my question is relatively simple, and “researching” your website seems like a lot of work for a simple question.

The Republic of China also declared war on the Empire of Japan, on December 9, 1941. Why is the US declaration especially insignificant? And again, regardless of who declared war first/second/last… didn’t Japan surrender to “the Allies”?

Or if you really want me to head to your site, gimme a hand… on what page in your website do you explain your assertion that the United States, and the United States alone, “conquered” Japan?

30

Taipei Times is where TI/ers duke it out. Regardless, it published this letter not long ago, and I have yet to see a good response to it…

taipeitimes.com/News/editori … 2003298802

31

Oops, as we say, devil is in the details :smiling_imp:

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[quote=“zeugmite”]Taipei Times is where TI/ers duke it out. Regardless, it published this letter not long ago, and I have yet to see a good response to it…

taipeitimes.com/News/editori … 2003298802

[quote]
Letter: Taiwan is not US territory

By Kenneth Choy

Thursday, Mar 23, 2006,Page 8
Roger Lin (Letters, March 21, page 8) claimed that Taiwan’s “territorial sovereignty is held by the US Military Government” because the US, as Japan’s “conqueror” in World War II, was the “principal occupying power” of Taiwan.

He argued that under General Order No. 1, Chiang Kai-shek’s (蔣介石) troops, being a subordinate occupying power under the Americans, only had the authority to go “to Taiwan to accept the surrender of Japanese troops” on behalf of the US military and acceptance of that surrender was “the beginning of the military occupation of Taiwan” which continued to this day. Therefore, Lin concluded that under the US Constitution’s territorial clauses, the US – specifically, the US military – holds territorial sovereignty over Taiwan.

Lin’s assertion notwithstanding, although General Douglas MacArthur was the commander of the US Army at the time, he was not acting in that capacity when he issued the General Order No. 1. General MacArthur was also Supreme Commander of the Allied Powers of which the US is a member. The order was issued by him in that capacity, under the authority of the Allied Powers.

The order instructed Japanese forces “to surrender unconditionally to commanders [including Generalissimo Chiang Kai-shek] acting on behalf of the US, the Republic of China, the United Kingdom and the British Empire, and the Union of Soviet Socialist Republics” and these “commanders [were] the only representatives of the Allied Powers empowered” to accept Japanese surrender. Nowhere did the order say surrender was to the US military, a crucial fact Lin ignored.

Completing his flawed analysis, Taiwan’s territorial sovereignty, then, is not held by the US, but the Allied Powers. Thus, under this logic, many governments may have a claim to Taiwan, including the UK, members of the British Commonwealth consisting of former colonies of the British Empire and even the republics of the former Soviet Union!

Kenneth Choy
Hong Kong
[/quote][/quote]

If you really wanted a response, you should’ve just PMed Hartzell over it. Upon gaining his attention, we could see his response to this.

33

All he’d get was “You clearly don’t understand,” which is the equivalent of “You just don’t understand Hartzell theory culture.”

34

Neither the Hague Conventions nor the Geneva Conventions specify any legal rights or privileges which are afforded “the troops that accept the surrender.” It is also important to remember that the Dec. 8, 1941 Declaration of War Against the Empire of Japan was issued by the United States. It was not a Declaration of War by the Allies. These are crucial facts that Kenneth Choy has ignored.

In relation to the military occupation of a particular area, we are faced with three central questions, (which all must be answered based on the customary laws of warfare):

  1. When does the military occupation begin?
  2. Who is “the occupying power”?
  3. When did the military occupation end?

In order to sort out the answers to these questions, we have to do a thorough overview the customary laws regarding military occupation. However, it may first be valuable to research the subjects of “conquest” and “dominion” as discussed in US Supreme Court cases. See – taiwanbasic.com/key/dc/conqudm6.htm

Then go to the study of military occupation issues –
See – taiwanbasic.com/key/dc/axoverv6.htm

[quote=“K. Choy”]Completing his flawed analysis, Taiwan’s territorial sovereignty, then, is not held by the US, but the Allied Powers. Thus, under this logic, many governments may have a claim to Taiwan, including the UK, members of the British Commonwealth consisting of former colonies of the British Empire and even the republics of the former Soviet Union!

Kenneth Choy
Hong Kong
[/quote]
Unfortunately, Mr. K. Choy ignores the fact that the Allies have disbanded. What is left is the “principal occupying power” as specified under the San Francisco Peace Treaty (SFPT). I am unaware if Mr. K. Choy has read the treaty or not. The specification of the “principal occupying power” is given in Article 23(a). It is the United States of America.

Notable is that US Army Field Manual FM 27-10 “The Law of Land Warfare” specifies that “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.” The application of Article 23(a) is given in Article 4(b):
[color=#BF00FF]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. [/color]

(In the event that Mr. K. Choy is not familiar with the definition of “property” in the English language, I offer it here for reference –
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. )

In light of the above definition(s), a detailed explanation of how the disposition of the Article 3 territories was handled (with comparative analysis for Taiwan) is available at – taiwanbasic.com/key/

For a territorial cession after war, 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. This is another crucial fact that Kenneth Choy has ignored.

For details on the situations of military occupation and territorial cessions from the Mexican American War up through WWII, see – taiwanbasic.com/key/milgovchart1x.htm

35

I can’t find a single case that refers to the US gaining a territory through the use of a foreign armed force or forces. All other cases directly involved the landing of US troops to take control of the territory in question.

The gain of territory by the United States solely through the use of a military occupation government made up of a group of policy-setting foreign nationals, backed by foreign armed forces that owe ultimate loyalty to a group other than the United States, appears to be unprecedented.

A military government can have either de jure sovereignty of a territory, or dde facto sovereignty, or both.

For the sake of argument, let us take the above argument as given, and accept that the relevant treaties at the end of WWII and afterwards granted the US de jure sovereignty and the right to set up a USMG on Taiwan.

Although this is unprecedented, let us assume that the US is allowed to accept a totally foreign government-in-exile to occupy the territory as the USMG or official representative thereof.

The US has no troops of its own on Taiwan today, so the sole means by which it has de facto sovereignty is through its control of the ROC-in-exile in its role as the USMG.

I understand that this might be considered by some to be a huge stretch, but I believe that the US has no control over the ROC today, beyond a level of influence similiar to that which it has over recognized foreign governments of sovereign states.

From this, I conclude that the US (assuming that it had it in the first place), has now lost de facto sovereignty over Taiwan, and that Taiwan is not currently under US military occupation.

While an argument can be made that Taiwan is under ROC military occupation (although I believe this has not been true since the 1996 democratic elections, when the inhabitants of the island were able to choose their own leaders, leading to the KMT being supplanted by the DPP in 2000), it is clear that this is not the same thing as a US military occupation.

All the court cases that I am aware of deal with US territories that are under de facto, or both de facto and de jure, sovereignty. I’m not aware of a court ever ruling on a territory with de jure, but no de facto, sovereignty, but it is a logical assumption to question how the US can enforce its laws and constitution on a territory that it has no effective control over.

So my conclusion is that the United States does not have sovereignty over Taiwan, and unless the US wants to launch an invasion and fight a war against the ROC, the only thing left to do is to sign a peace treaty to formally renounce and surrender any trace of de jure sovereignty that the US has to formalize the handover.

36

Exactly. There is one China, and the PRC is it. The ROC lost. All the rest, while interesting, is academic. In the real world there is China and Taiwan. Now the current government might sell Taiwan to China in exchange for a piece of the action, or China might take Taiwan by force. But to an outside observer, the two sure do look like different countries to me.

37

Taiwan trying to claim “ownership” by the USA is sort of like getting a father to recognize a daughter he doesnt want “in the house”.

He kinda recognizes its his daughter but wants to keep her out of shit but at the same time, is happy shes not living at home.

Meanwhile “evil” suitor China is unsuitable because he is really Taiwans cousin and incest aint a good thing, even among countries.

38

The United States has many troops in Taiwan at present. CCK Airbase in Taichung has hundreds of US troops. Airbases in Hualien and other localities also have many US troops.

You need to wake up to the reality of Taiwan’s international legal position.

39

Huh? I have a friend works there. I’ll need to ask him where these “hundreds of troops” hang out. :laughing: :laughing: :laughing:
Because, like, you’d think, wouldn’t you, that someone would notice the presence of “hundreds” of US military personnel down there – its a small place, after all.

40

Huh? I have a friend works there. I’ll need to ask him where these “hundreds of troops” hang out. :laughing: :laughing: :laughing:
Because, like, you’d think, wouldn’t you, that someone would notice the presence of “hundreds” of US military personnel down there – its a small place, after all.[/quote]

No dude, you don’t get it. The US troops are Taiwanese. They just don’t realize yet that they are US citizens. :sunglasses: