[NOV. 23, 2009, DATELINE TAIPEI]
Over the past year, native Taiwanese people have expressed enormous dissatisfaction with the policies of Republic of China (ROC) President Ma Ying-jeou, especially his initiatives to achieve closer Taiwanese integration with China. Many local groups are now striving to find ways to have more native Taiwanese input in the formation of central government actions. They would also like to see Taiwan assert itself more forcefully on the international stage, and to develop an "international personality" completely separate from China.

In the past, most local Taiwanese activists have channeled their energies into winning local elections, in order to attempt to bring about change through the government bureaucracy. However, even when the Democratic Progressive Party's Chen Shui-bian served as ROC President from 2000 to 2008, little progress was seen in removing the overwhelming Chinese influence from local party politics. That "Chinese influence" stresses that the best scenario for Taiwan's future is in full political integration with the People's Republic of China (PRC). Contrastingly, most local Taiwanese would prefer that Taiwan remain politically separate from mainland China.

Taiwan has regular elections for local and central government officials, and most international observers maintain that Taiwan is already a very democratic society. However, what these observers typically characterize as Taiwan's "flourishing democracy" has not helped the island make any advances in achieving a greater degree of self-rule, and this is a problem which perplexes most native Taiwanese people. Developing successful strategies to deal with this problem has proven elusive to date.

However, a new consensus on the recognition of one key element of this problem has emerged in the local Taiwanese media over the past few months. It has been derived by carefully stripping away the "Chinese propaganda" from official published accounts of Taiwan history from the late 1930s to the present. Under this more neutral and balanced view, an important fact emerges, namely the Republic of China on Taiwan is not a legitimate government for the Taiwanese people, it is merely a government in exile.

The Blindspots of a Chinese World View

"In general, persons educated with a Chinese world view have very little understanding of the modern day concept of a government in exile," says Chi-yuan Tsai, an associate professor of economics at Kainan University in Taiwan. "Over the thousands of years of Chinese history, many governments saw their capitals moved to different locations throughout the Chinese empire. The issue of whether the capital was moved to a location inside or outside of the existing national boundaries was not considered to particularly important. When military troops overran a new area, they simply annexed it, there were no complicated or drawn out legal procedures."

What is missing from such a Chinese world view is the concept of "military occupation," a legal construction which gained widespread acceptance in the international community after the close of the Napoleonic Wars, in approx. 1830. As codified in the Hague Conventions of 1907, "Territory is considered occupied when it is placed under the authority of the hostile army." In other words, when territory comes under the control of foreign military forces, customary legal norms in the world today hold that the territory is "occupied," it isn't "annexed."

"With such a recognition, the Chinese claim that the Oct. 25, 1945, surrender of Japanese troops in Taiwan amounted to a 'transfer of Taiwan's territorial sovereignty to China' is quickly exposed for the total fraud that it is," says Li-tsai Lin, Secretary General of the 228 Victims' Association.

The officials of the ROC in Taiwan and the PRC in Beijing have always referred to this Oct. 25, 1945 date as "Taiwan Retrocession Day." According to their Chinese world view, Taiwan came under Chinese control on that day, hence it was immediately annexed into the national territory of China.

Not surprisingly, none of the Allies have ever held such a view. A further examination of the customary legal norms of the post-Napoleonic period clearly show that in order to transfer the sovereignty of territory, a treaty is needed. The surrender of Japanese forces in Taiwan is merely a convenient marker for the beginning of the military occupation. And of course it is the conqueror that will be "the occupying power."

Treaty Specifications for Taiwan

Taiwan had previously been a territorial cession in the Treaty of Shimonoseki of 1895. In that treaty, Qing China ceded the territorial sovereignty of Taiwan to Japan. After the close of hostilities in WWII in the Pacific, the final draft of a peace treaty wasn't completed until mid-1951. "The San Francisco Peace Treaty came into force on April 28, 1952," says Chung-mo Cheng, Chairman of the Taiwan Law and Policy Research Foundation, and former Vice President of the Judicial Yuan in Taiwan. "In that treaty, Japan renounced all right, title, and claim to Taiwan, but no receiving country was specified. Hence, from the point of view of international treaty law, it is clear that Taiwan is not Chinese territory."

Chien-ming Huang, Chairman of the Taiwan Nation Party, offers a quick overview of the relevant historical and legal details as follows. "After the first Sino-Japanese War, Qing China ceded Taiwan to Japan under the terms of the Treaty of Shimonoseki in 1895. After the close of hostilities in WWII in the Pacific, the Japanese troops in Taiwan surrendered on Oct. 25, 1945, but that date only marked the beginning of the military occupation of Taiwan. The conqueror is the occupying power. The central government of the ROC moved to occupied Taiwan in early December 1949. Taiwan remained as sovereign Japanese territory until ceded in the SFPT effective April 28, 1952."

Yi-hsien Lin, Secretary General of the Taiwan Democratic Party, outlines a number of key points of this overview which most researchers miss. "Essentially speaking, a government in exile is 'a temporary government moved to or formed in a foreign land by exiles who hope to rule when their country is liberated.' Hence, we have to recognize that when the Republic of China moved its central government to occupied Taiwan in Dec. 1949, it became a government in exile. Although the military forces under Chiang Kai-shek (CKS) handled the military occupation of Taiwan beginning Oct. 25, 1945, technically speaking they are not 'the occupying power.' All military attacks against (Japanese) Taiwan in the WWII period were conducted by US military forces, so it is the United States which has the right, and also the duty, to conduct the military occupation of Taiwan. The military forces under CKS are merely exercising delegated administrative authority for the military occupation of Taiwan."

The accuracy of Mr. Lin's remarks can be quickly verified by reading the SFPT. The ROC is not a signatory to the treaty, and therefore does not gain any benefits from the treaty, except for those specifically designated. Under the terms of the treaty, Taiwan was not awarded to China. The United States is designated as the "principal occupying power" in Article 23, thus giving strong support to the notion that there are "subordinate occupying powers" operating within the geographic scope of the treaty. The military forces under CKS who are handling the military occupation of Taiwan must be construed to be one such subordinate occupying power.

Invalid Criticism of US Executive Branch Policies

Most critics of the US Executive Branch policies on Taiwan are apparently unaware of the above analysis. Hence, they continue to proclaim that the "One China Policy" of the United States is an anachronism, and urge that the US President adopt a "Two China Policy," which also recognizes the ROC on Taiwan as a sovereign state. "However, that is not going to happen, because the ROC on Taiwan doesn't meet the international legal criteria for statehood," explains Cheng-Kuang Chen, a Co-Founder of the San Francisco Peace Treaty Study Society in the Bay Area of California USA. "From the close of hostilities in WWII to the present, there has been no transfer of the territorial sovereignty of Taiwan to the ROC. The truth of the ROC's legal status is that it is merely a (1) subordinate occupying power, beginning Oct. 25, 1945, and (2) a government in exile, beginning mid-December 1949. "

Yue-hung Huang, publisher of the Legal Times weekly, continues: "International law doesn't recognize any actions, procedures, or methodology by which a government in exile can become recognized as the legitimate government of its current locality of residence. Many people believe that Taiwan's flourishing democracy should enable it to be accepted as an 'equal' by the international community of nations, but they conveniently forget that the ROC is a government in exile. Short of moving back to Nanjing, China, there is nothing which the ROC can do to upgrade its legal status in the international community. Moreover, the ROC cannot claim to hold the sovereignty of Taiwan based on the doctrine of 'prescription' (long uninterrupted possession), because at the most basic level international law specifies that 'military occupation does not transfer sovereignty.' "

In the history of the United States, the end of the military occupation of foreign territory has always been formally announced by the Commander in Chief. More specifically, military occupation is conducted under military government, and the historical record shows that the end of United States Military Government (USMG) jurisdiction over territorial cessions such as California, Puerto Rico, Guam, Philippines, Cuba, etc. and other areas acquired under the principle of conquest was always made by formal Presidential announcement.

In the SFPT, de-jure USMG jurisdiction over Taiwan is specified in Article 4(b), however up to the present day, the US Commander in Chief has never announced the end of that jurisdiction over Taiwan territory. To look at this another way, from 1952 to the present, there has been no "civil government" formed in Taiwan which is in charge of handling the island's daily affairs. From a de-facto standpoint, Taiwan remains under the jurisdiction of the ROC government in exile, hence it cannot enter the United Nations or join other international bodies under the name of "Taiwan."

Popular Sovereignty vs. Territorial Sovereignty

While remaining under military occupation, Taiwan has not yet reached a "final political status," hence its status is said to be "undetermined." Of course many local Taiwanese people have trouble agreeing with this analysis, stressing that with the advances in democratization made in the last twenty years, the Taiwan sovereignty question has been settled -- Taiwan's sovereignty belongs to its 23 million people.

Unfortunately, such professions of "popular sovereignty" find few supporters in international political circles. In Oct. 2004, when US Sec. of State Colin Powell remarked that "Taiwan is not independent, it does not enjoy sovereignty as a nation "." he wasn't speaking of popular sovereignty. He was speaking of territorial sovereignty. There is little to no correspondence between the two concepts.

Powell certainly understood that the Taiwanese people have the right to vote, to initiate referenda, to institute impeachment proceedings, etc. In other words, the US Dept. of State is fully aware that the people of Taiwan have "popular sovereignty." What the Taiwan governing authorities lack is, obviously, territorial sovereignty. As outlined above, from the close of hostilities in WWII to the present, there has been no transfer of the territorial sovereignty of Taiwan to the ROC.

"There is an old adage which says that 'Full recognition of the problem is half of the solution,' " Yue-hung Huang points out. "The fact that the ROC on Taiwan is a government in exile is an important recognition of which all people interested in the island's future development should be aware. Many academics, diplomats, and other researchers continue to write 'Open Letters' to ROC President Ma Ying-jeou, and publish those in the local Taiwan media. They urge that he should pay more attention to issues such as the erosion of justice, significant flaws in the judicial system, and various social inequities. Granted, the observations of these so-called experts may be meaningful, but they are directing them to the wrong governmental entity and the wrong person. For all of their purported expertise in Taiwanese affairs, they still haven't come to the realization that the ROC is not the legitimate government of Taiwan."

Taiwan's Relationship with the USA

"Taiwan's central problem today is its relationship with the USA," stresses John Hsieh, CEO of the Taiwan Civil Rights Litigation Organization (TCRLO) in California. "Legally speaking, Taiwan is still occupied territory of the United States of America. Unfortunately however, there is very little knowledge of this fact on Capitol Hill. Outside of a few highly placed Defense Department officials, essentially no members of Congress or officials in the Executive Branch can offer a comprehensive explanation of the contents of the post-WWII SFPT from the perspective of the international norms concerning the conduct of military occupation."

In order to solve this problem, and at the request of some researchers with close ties to several members of the California State Senate, a book on

The True Legal Relationship between Taiwan and the USA
Who is Blocking the Sunlight in the Taiwanese Sky?
was recently compiled by the Formosa Nation Legal-strategy Association (FNLA) of Taipei, Taiwan. At slightly over 100 pages, the book offers a thorough overview of modern Taiwanese history and the complex composition of Taiwan's legal standing in the world today.

Representatives of the FNLA in Washington, D.C. are also making contact with members of Congress so that the content of this book can be distributed more widely.

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source: http://www.opednews.com/articles/Taiwan-Search-for-a-non-C-by-Roger-C-S-Lin-091122-432.html