The transferring of the title of Taiwan

It’s interesting to note down the records of the transferring of the title of Taiwan.

Prehistory. The concept and the practice of the property ownership of the aborigines in Taiwan is a controversial issue.

  1. Dutch East India Company acquired title of the land surrounding Fort Zeelandia (that area was called ‘dawon’ by the local aborigines) via ‘the right of conquest’.

  2. Lord Koxinga acquired Dutch’s title of the land via ‘the right of conquest’. Koxinga’s family acquired more land in the west coast from the aborigines later on via ‘the right of conquest’.

  3. Emperor Kangxi acquired the title of land from Konxinga’s grandson, who had inherited the ownership from Konxinga, via ‘the right of conquest’.

1683 - 1885. The legal descendants of Emperor Kangxi retained the title and acquired most of the west coast via ‘the right conquest’. However the east coast and the central mountain area were still owned by various aboriginal tribes.

  1. Emperor Meiji acquired that title from Emperor Guangxu via ‘the right of conquest’. Later Japan Empire acquired the rest of Taiwan via ‘the right of conquest’.

Up to this point, the title of ownership of Taiwan has always been transferred between private hands. Notice that the concept and the reality of nation state never existed in east Asia up to this point. That implied that the concept and the reality of China as a nation state did not exist in 1885. Before 1911, all land under heaven belonged to whichever Emperor that controled China. China before 1911 was only a geographical term used by the westerners.

  1. USA as a nation state acquired the title of the 13 states from King George III via ‘the right of independence’. The emperors of Spain and France acquired other small piece of lands.

From WIKI “After the attempted conquests of Napoleon and up to the attempted conquests of Hitler, the disposition of territory acquired under the principle of conquest had to, according to international law, be conducted according to the existing laws of war. This meant that there had to be military occupation followed by a peace settlement. If there was a territorial cession, then there had to be a formal peace treaty.”

1948. USA as a nation state acquired the right to setttle the title of Taiwan from Emperor Hirohito via ‘the right of conquest’.

  1. Treaty of San Fancisco was signed but the recipient of the title of Taiwan was not determined in the treaty.

1948 - present. USA has determined neither the recipient of the title nor the way to settle it.

In the aftermath of WWII, and with regard to the provisions of the San Francisco Peace Treaty, it is clear that the “title” to Taiwan territory has not been transferred to any particular state party, . . . . . hence it is still held in trust by the principal occupying power as an interim status condition.

Such an analysis flows directly from relevant US Supreme Court decisions. See –
Fiduciary Relationships: Sovereignty Held in Trust

Looking at the last four hundred years of Taiwan history, it quickly becomes clear that all changes of sovereignty have been based on the principle of conquest. See –
On the Subjects of “Conquest” and “Dominion”

This recent letter in the TAIPEI TIMES is also of interest in discussing this topic.
Taiwan is occupied territory … 2003534301
The following URL reference is included in that letter.

Hi Richard,
Thanks for providing those documents in your website that clarify the status quo of Taiwan as an ocupied territory of USA. Now according to the law of war the USA has an obligation to determine the recipient of the title to Taiwan territory. The requirement for the occupying force by the law of war to maintina a period of peaceful settlement has been met. USA government can no longer postpone their decision. It is even worse to intentionally skip any public discussion on the issue of Taiwan status. USA government has for years kept saying they don’t support Taiwan independence. Ok then what exactly will USA government support about Taiwan’s future status?

This is a short list of candidates which are interested to receive the title to Taiwan territory:

  1. Emperor of Japan, 2. government of Republic of China, 3. USA government, 4. government of People’s Republic of China, 5. government of new Independent Taiwanese nation (if there will be such one in the future), 6. Taiwan civil government.

And there are several ways that USA can determine the recipient:

  1. putting the title for an open bidding in an intrernational market.
  2. being determined by the original inhibitants of Taiwan via pubic referendum.
  3. trading it with ROC in exchange of something from her.
  4. trading it with PROC in exchange of something from her.
  5. trading it with the Empror of Japan in exchange of something from him.
  6. possessing it by USA herself.
  7. or any other outside-box way.

Or more practically what function would the USA want to see Taiwan territory serve in 2049?

  1. a strong naval post in the AirSea Battle stragegy.
  2. a light house of democracy to guide Chinese people.
  3. a node in global supply/manufacturing chain
  4. a present and a token of kindness to PROC from generous American citenzens.
  5. a migraine that constantly bothers PROC.
  6. a migraine that constantly bothers the whole world.

It seems that at this moment the USA government does not know what it wants from/for Taiwan. And this causes it to blame Taiwanese people either when they don’t know what they want or when they say what they exactly want. It seems that PROC is the only one that knows what they want. I don’t know if President Ma knows what he wants and even if he knows what he wants, he would not let me or anyone else to know what he wants. Ma is like a quantum riddle. The moment we know what he wants, he changes what he wants.


Number 6 please.

According to what I hear, the USA is happy to have Taiwan remain in interim status under the law of occupation. (The “one year” stipulation in Article 6 of the GC has never been applied to territorial cessions . . . . . . to my knowledge.)

You will recall that in Roger Lin v. USA, the judges found that native Taiwanese persons are essentially stateless. See –

In conformance with this line of thinking, we are pressing the DOD to authorize the issuance of some form of “Travel Document” to native Taiwanese persons. (Those ROC exiles who came to Taiwan in the late 1940s and early 1950s, and their descendants, will continue to use ROC passports.) In this way, native Taiwanese persons will obtain visa free travel to the USA.

I believe your team and you are doling the best and I am grateful for that. But what is the action you guys have taken to press the DOD? And how far are you away from the goal?

Good luck with your application to the DOD. The chances of that happening are lower than pigs growing wings and flying. Btw, ROC passport holders are months away from getting visa free access to the USA anyway. Doesn’t that defeat your aim?

All this talk about getting the US to grant the native Taiwanese some sort of protection and privilege due to the presumed sovereginty of the US over Taiwan is pointless.
The court simply rejected the Roger Lin case as falling outside the jurisdiction of the US judiciary. In other words, it was rejected based on the ‘political question doctrine’.

Totally agree, this effort is just insane. Unless if its all a big joke.

I think they should just give it all to me.
I’d be a benevolent dictator, I promise!

I have a question for you. Has any of those native Taiwanese people asked you to press for those travel document on their behalf (or even expressed a desire for those document), or is this a task you’re just taking upon yourself even though no one asked you to and probably none of the intended recipients have the slightest idea what you’re doing?

And you know what’ll be even better? While you’re at it, how about you press for native Taiwanese people to be classified as US nationals (which is different than US citizens and is given to people in outlying US possessions) and thus should be entitled to US passports. With your logic you know you have a case.

Since Taiwan is already under the occupation of the US, DoD does not have to ask if Taiwanese agrees with that Taiwan is an occupied territory. KMT came to Taiwan and murdered more than 2000,000 civilians. No Taiwanese that has been murdered by the KMT has been consulted if he was willing to be murdered.

The position of the US is that whoever the de jure soveregin of Taiwan is, it is not the US, and that the US was ‘the principal occupying power of Japan, not Taiwan’. Look at the final court ruling, please.

The US court rejected the Roger Lin case on the basis of the ‘political question doctrine’. I don’t understand why you insist that Taiwan is under the occupation of the US.

The reason that US government including all executive, legislative, and judiciary branches, does not want to admit she is the occupation power of Taiwan is as the following. If she admits her rightful position in Taiwan, she might face endless lawsuits against her for war crimes, which the US government is suspected to commit after she accepted the surrender of Japan Empire. A few plausible cases can be, for example, 1) the US millitary forced the Japanese citizens dewelling on Taiwan to abandon their Japan citizenship and be converted involuntarily into an ROC citizen, 2) US millitary probabily provided a conspiratory assistance to KMT in the killings of Japanese citizens and other civilians on Taiwan, totally over 2000,000 lives, without any fair trial based on a due process.

A lawsuit wlll stay as a legal problem in the judiciary system until a verdict is made. However ruling it as a political problem can not be qualified as a final verdict because that decision was not derived from the relevant code of law. It is a political intention trying to sweep the lawsuit under the rug and hopes no one will pull it out again. The US govenment created a huge pile of mess in Taiwan after the surrender of Japan Empire, in which tons of innocent lives were casted into an oppressive furnace. It’s time for the US government to come back and repent her sin even if her crimes can be shelved as ‘a political question doctrine’ by her court.

It is not just that the US does not want to recognize herself as the principal occupying power of Taiwan; more importantly, it is that the LEGAL PRINCIPLE, i.e. the political question doctrine, precludes the US judiciary from hearing the case. It has been confirmed that the so-called Taiwan Civil Government was demanding a right, a right that only US nationals can enjoy but that is inevitably linked with issues of sovereignty, which fall within the domain of the US executive, not judiciary, branch.That is why the case was REJECTED ALL THE WAY, from the district court through the Appeals Court to the Supreme Court. … /09-33.htm

See Petition DENIED? End of story.

There are grounds for believing that the US was not an occupying power of Taiwan. Please examine the following passages from Oppenheim, L. , International law: A Treatise, 2nd ed., Longmans, Green and Co., 1912 .

§222. Para 1
Theory and practice agree nowadays upon the rule that occupation is effected through taking possession of and establishing an administration over the territory [color=#BF8080]
in the name of and for the acquiring State
[/color]. Occupation thus effected is real occupation, and, in contradistinction to fictitious occupation, is named effective occupation. Possession and administration are the two essential facts that constitute an effective occupation.

Now, if the US were the ‘principal occupying power’ of Taiwan and the ROC were only its proxy, we would expect to see the governing authority of Taiwan to officially recognize itself as the proxy for the acquiring State, i.e. the USA. In fact, this prediction is falsified and the authority concerned, the
Republic of China
, always asserts its sovereignty over Taiwan and its independence from the USA. Which means that the US did not fulfil the requirement in question and thus was not the ‘principal occupying power of Taiwan’.

§222. Para 2
(1) The territory must really be taken into possession by the occupying State. For this purpose it is necessary that the respective State should take the territory under its sway (corpus) with
[color=#8080BF]the intention to acquire sovereignty over it[/color]
(animus). This can only be done by a settlement on the territory accompanied by
some formal act which announces both that the territory has been taken possession of
and that the possessor intends to keep it under his sovereignty.

Again, the US never expressed the intention to keep Taiwan under its sovereignty; it even denied any such intention explicitly in the court. On the contrary, the Republic of China always asserts that it enjoys sovereignty over Taiwan and indeed announced that back in 1945.

§222. Para 3
The necessary formal act is usually performed either by the publication of a proclamation or by the hoisting of a flag. But such formal act by itself constitutes fictitious occupation only, unless there is left on the territory a settlement which is able to keep up the authority of the flag. On the other hand, it is irrelevant whether or not some agreement is made with the natives by which they submit themselves to the sway of the occupying State. Any such agreement is usually neither understood nor appreciated by them, and even if the natives really do understand the meaning, such agreements have a moral value only.

Apart from the fact that the ROC proclaimed that Taiwan was its territory, its flag has flown on the island for over 60 years. Also, the ROC has continued to exercise its authority on the island. In contrast, the US has never undertaken such acts. Which means that the US was not the ‘principal occupying power of Taiwan’.

To sum up, the US is most probably not the said ‘principal occupying power of Taiwan’. If there is ever such an authority on Taiwan, it must be the Republic of China.

Quoting from a book published in 1912?? And from someone who essentially has little knowledge of the laws of war of the post-Napoleonic period??? Hopelessly out of date I would say.

Why not research US Army Field Manual FM 27-10 The Law of Land Warfare ?? I believe the first edition was published in the early 1940s. It has been updated numerous times since then.

You call [color=#BF40BF]International Law: A Treatise [/color]by Lassa Francis Lawrence Oppenheim outdated? It seems that this remark is from someone who does not know the book has been printed in numerous editions. The latest one was published in 2006 by the Lawbook Exchange.

If you believe the content in that book is outdated and there is more reliable information in other sources, why not post the information here so that everyone can evaluate the claim that the US is the ‘principal occupying power’ over Taiwan? Specifically, we’d like to know how other authorities on international law than Oppenheim define ‘effective oocupation’, as opposed to ‘fictitious occupation’.

The people toward whom you think the US should repent are, by and large, mostly dead.

A lot of atrocities have been committed and there is a lot to apologize for. But all that will come out of it are opportunistic lawsuits, from people that were not even harmed directly. Everyone loves a good class action and making money they didn’t earn, don’t they.

You stated that you were quoting from the 1912 edition. That was your statement.

Read the post-war San Francisco Peace Treaty.

I also recall that there was a lengthy article published about this in the Harvard Asia Quarterly some years back. I believe it was entitled “Understanding the San Francisco Peace Treaty’s Disposition of Formosa and the Pescadores.” If you haven’t read it, it is informative. Most people do not have a background in laws of war studies, and hence they do not understand the content of the treaty.

For a chart which explains the relationship of “laws of war” to international law in general, see –