of Formosa and the Pescadores  

Harvard Asia Quarterly, Fall 2004

Although legal scholars have argued over the international legal position of (1) Taiwan and the (2) "Republic of China" on Taiwan for over fifty years, this article from the Fall 2004 edition of the Harvard Asia Quarterly, published in Cambridge, Massachusetts, was the first to clearly recognize that these questions are issues left over from WWII in the Pacific, and not (as most scholars maintain) a result of the Chinese Civil War in the late 1940s.

Considering the all important role of the United States' military troops in the defeat of Japan and her overseas territories, this article approaches the subject from the points of view of the internationally recognized "laws of war" in accompaniment with "military jurisdiction" under the US Constitution. The historical situations of other territorial cessions after war are analyzed and dissected, and a framework is developed for comparing and contrasting their similarities according to the peace treaty specifications and the historical record.

This framework is then applied to the situation of Taiwan, and the author finds that, by using the San Francisco Peace Treaty (SFPT) as the primary reference, all aspects of Taiwan's legal position may be quickly revealed.

As a fundamental starting point, a precise nationality determination for the native Taiwanese populace is derived, after which the topics of the correct appellation for Taiwan's participation in the Olympics, the WTO, the WHO, and other international organizations; income tax liability; voting rights; passport issuance; Taiwan's rights under the UN Charter; the proper direction for Taiwan's future constitutional, legal, and social reform, etc. are all dissected in a straightforward fashion.

Not surprisingly, when derived in this manner, the author's conclusions are found to be in full conformance to
  1. the One China Policy,

  2. the Taiwan Relations Act, and

  3. the Three Joint USA-PRC communiques.

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