Background: World War II in the Pacific

  1. Taiwan had been ceded to Japan by China in the 1895 Treaty of Shimonoseki. After 1895, under international law, there is no doubt that Taiwan was a part of the Japanese Empire.

  2. After the attack on Pearl Harbor, Hawaii, the United States Congress declared war against Japan on Dec. 8, 1941. On the following day, Dec. 9th, Chiang Kai-shek's Republic of China (ROC) also declared war against Japan.

  3. All military attacks on (Japanese) Taiwan during the Dec. 8, 1941 to Aug. 15, 1945 period were conducted by United States military forces. None of the military forces of the U.K., France, Russia, Australia, or Republic of China participated. Hence, in relation to Taiwan, the United States is the "conqueror."

  4. After a thorough review of the specifications of General Douglas MacArthur's General Order No. 1 of Sept. 2, 1945, the question which must be asked is: "In these Pacific Ocean areas and environs, who is fulfilling the role of the occupying power as specified in the customary laws of warfare?" President Harry Truman (dates in office: April 12, 1945, to Jan. 20, 1953) approved General Order No. 1 before its promulgation, and General MacArthur is the head of the United States military forces, hence the strongest presumption would be that United States is fulfilling this role. Importantly, this is fully confirmed by Article 23(a) of the post-war San Francisco Peace Treaty, where the United States is designated as the principal occupying power. The US Senate ratified this treaty.

  5. Considering such legal and historical facts, it is clear that upon the surrender of Japanese troops in Taiwan on Oct. 25, 1945, the United States has "acquired" Taiwan under the principle of conquest. The United States is the "conqueror" and in this post-Napoleonic period it is the principal occupying power. Beginning in the summer of 1945, all considerations regarding the legal status of Taiwan, as well as the allegiance and nationality of native Taiwanese persons must flow from these facts.

  6. Beginning on Oct. 25, 1945, Taiwan's legal position is "independent customs territory under USMG on Japanese soil." The administrative authority for the military occupation has been delegated to the Chinese Nationalists. Under international law, this is merely "Grotian agency," which is the law of agency as applied to dealings between nations.
    The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself." Hugo Grotius discussed agency in his treatise On the Law of War and Peace, written in 1625.

The Peace Treaty

  1. In the San Francisco Peace Treaty (SFPT) of April 28, 1952, Japan renounced all claims of sovereignty over Taiwan, but no receiving country was specified. The following articles of the SFPT are particularly important to understanding Taiwan's international legal position.

    • Article 2(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
    • Article 4(b) 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.
    • Article 21 Notwithstanding the provisions of Article 25 of the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a)2; and Korea to the benefits of Articles 2, 4, 9 and 12 of the present Treaty.
    • Article 23(a) ..... including the United States of America as the principal occupying Power, .....

  2. The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." United States Military Government in Taiwan began on Oct. 25, 1945, with the surrender of Japanese troops. The United States is the principal occupying power, and it has delegated the military occupation of Taiwan to the Chinese Nationalists.

  3. For a territorial cession in a peace treaty 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.

  4. An examination of all relevant US government announcements, proclamations, treaties, laws, etc. regarding Taiwan from the period of late April, 1952, to the present, finds no record of a definitive statement of the end of United States Military Government authority over Taiwan. In other words,
    • the United States has never recognized the ROC as a legitimate civil government for Taiwan,
    • no other civil government operations have yet begun in Taiwan since 1952, and have coordinated with the U.S. Executive Branch and the Congress,
    • our conclusion must be that based on the Senate-ratified SFPT, United States Military Government jurisdiction over Taiwan is still active in the present day.

  5. THEREFORE, it can be argued that under the SFPT, Taiwan is under the exclusive jurisdiction of the United States. The decision to delegate that jurisdiction (in any way, shape, or form) to the Republic of China military forces is not directly authorized by the SFPT. To the extent that the delegation of jurisdiction for the military occupation of Taiwan is blocking the native Taiwanese persons' enjoyment of fundamental rights under the US Constitution, it must be regarded as void.

Additional Webpages of Interest

International Law Doctrines

The Status Quo in the Taiwan Strait as defined by the US Constitution

Understanding the SFPT's Disposition of Formosa & the Pescadores  

Harvard Asia Quarterly, Fall 2004

TEXT of the

San Francisco Peace Treaty