The San Francisco Peace Treaty (SFPT), signed on Sept. 8, 1951, entered into force April 28, 1952, in which Japan renounced all right, title, and claim to "Formosa and the Pescadores," (hereinafter "Taiwan"), did not leave Taiwan as terra nullius, but rather established the United States as the "principal occupying Power" over Taiwan -- a legal status unchanged by any subsequent laws, treaties, US executive orders, etc.
The SFPT established the United States as the "principal occupying Power" over Taiwan -- in essence determining the United States' present de jure sovereignty over Taiwan for the purposed of United States law.
The geographical application of the scope of the "principal occupying Power" designation in SFPT Article 23(a) is given by Article 4(b).
There are no international legal documents, agreements, treaties, etc. which can prove that the sovereignty of Taiwan has ever been transferred to the Republic of China. Not surprisingly, the US government maintains that neither the Republic of China nor Taiwan are states in the international community.
International law does does not support the contentions of many Chinese officials that the sovereignty of Taiwan was returned to China upon the completion of the Oct. 25, 1945 Japanese surrender ceremonies. To transfer the sovereignty of territory between nations, a treaty is needed.
In fact, none of the leading world nations recognized any transfer of the sovereignty of Taiwan to the Republic of China at any time from the Japanese invasion of China on July 7, 1937, up through the close of the 1950s.
court case: Rogers v. Sheng, (D.C. Circuit, 1960):
subject: Legal Status of Formosa
statement: The court described the status of Formosa as follows: "Following World War II, Japan surrendered all claims of sovereignty over Formosa. But in the view of our State Department, no agreement has 'purported to transfer the sovereignty of Formosa to (the Republic of) China'..... "
Notably, Taiwan was sovereign Japanese territory until the SFPT entered into force in late April 1952.
Under the laws of war, there are specific criteria which must be completed to mark the end of "military occupation" in a territorial cession. In the situation of Taiwan, those criteria have not yet been met, and Taiwan remains as occupied territory in the present era.
As territory under military occupation, Taiwan has still not reached a final political status. In other words, its status is "undetermined." Such a categorization does not affect the fact that the United States Military Government (USMG) currently maintains jurisdiction over Taiwan.
Appellants' Amended Complaint seeks a declaration of limited, yet basic rights under the United States Constitution and particular applicable United States laws. In particular, Appellants are entitled to the life, liberty, property, and due process of law of the Fifth and Fourteenth Amendments to the Constitution. The US Supreme Court has repeatedly held that "liberty" includes the right to travel, and to hold a passport. The Eighth Amendment's stipulation against "cruel and unusual punishment" includes the right to hold an internationally recognized nationality.
All people concerned about the future democratic development of Taiwan are invited to read the entire Brief for complete details.
November 3, 2008
Brief (.pdf) 53 pages
Cover Page (stamped) (.pdf) 1 page
Joint Appendix (.pdf) 381 pages