The Taiwan Status Issue and the Customary Laws of Warfare
In order to fully understand Taiwan's current legal status, one must be familiar with the laws of war, or more specifically "the customary laws of warfare of the post-Napoleonic period," (hereinafter "the customary laws of warfare").
The laws of war are derived from two principal sources:
a. Lawmaking Treaties (or Conventions), such as the Hague and Geneva Conventions.
b. Custom. Although some of the law of war has not been incorporated in any treaty or convention to which the United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.
Lawmaking treaties may be compared with legislative enactments in the national law of the United States and the customary law of war with the unwritten Anglo-American common law.
In the broadest sense, a correct understanding of Taiwan's legal status requires in-depth knowledge of the following areas, (which we may call "needed background studies"):
The validity of the customary laws of warfare is fully recognized by competent jurists, experts, and other legal scholars, even if the average "civilian" has little expertise or knowledge in such subjects.
- military jurisdiction under the US Constitution, including military occupation, military government, the principle of conquest, etc. and the content of all relevant Supreme Court cases on these subjects,
- US Army regulations, including FM 27-5, FM 27-10, FM 41-10, etc.
- the functioning of governments in exile,
- the customary law of treaties, especially in regard to the dispositions of territorial cessions in general, and the disposition of territorial cessions after war in particular,
- the Insular Cases of the Supreme Court, and their relationship to military occupation issues, along with the development of insular law,
- the Hague Conventions, and especially Hague Convention IV of 1907,
- the Geneva Conventions, and especially the Geneva Conventions of 1949,
- other established laws of war precedent.
US Executive Branch Confusion about the Taiwan Status Issue
It is the Taiwan Civil Government's observation that outside of the Dept. of Defense, the majority of officials in the US Executive Branch, as well as members of the House and Senate, have little or no knowledge of the "needed background studies" outlined above, and therefore remain quite confused about the Taiwan status issue.
In particular, many Executive Branch officials appear to hold to a premise that the US government formerly recognized the ROC as exercising sovereignty over Taiwan, but no longer recognizes the ROC as exercising such sovereignty.
Such confusion can arise when the distinction between "exercising effective territorial control" vs. "exercising sovereignty" is not made. From the standpoint of the laws of war, these concepts are not necessarily the same. While being unclear of this distinction, many civilian scholars often quote certain Articles of the Mutual Defense Treaty (MDT) of 1955 to support this "premise" that the ROC at one time "exercised sovereignty" over Taiwan.
In fact, Japan held the sovereignty of Taiwan up until April 28, 1952. In the San Francisco Peace Treaty which came into effect on that date, Japan ceded Taiwan in Article 2b, but no receiving country was specified. The benefits which "China" (a non-signatory) received from the treaty were specified in Article 21, and Taiwan is clearly not included. Hence, under the terms of the Senate-ratified SFPT, Taiwan cannot be considered part of Chinese sovereign territory.
Additionally, in accompaniment with passage of the 1955 MDT, the US Senate's Committee on Foreign Relations issued a report on Feb. 8, 1955 which specified: "It is the view of the Committee that the coming into force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores." Hence, Article 6 of the MDT can only be interpreted to recognize the ROC as having effective territorial control over Taiwan, not sovereignty.
Even the Congressional Research Service is confused about this topic. In the Summary at the beginning of the CRS Report for Congress, July 9, 2007 -- China/Taiwan: Evolution of the "One China" Policy, five conclusions are offered, but an important sixth item is missing.
The five conclusions are:
(1) The United States did not explicitly state the sovereign status of Taiwan in the three US-PRC Joint Communiques of 1972, 1979, and 1982.
The missing item would be:
(2) The United States "acknowledged" the "One China" position of both sides of the Taiwan Strait.
(3) US policy has not recognized the PRC's sovereignty over Taiwan;
(4) US policy has not recognized Taiwan as a sovereign country; and
(5) US policy has considered Taiwan's status as undetermined.
(6) US policy has not recognized the ROC's sovereignty over Taiwan.
For more information, see The Law of Occupation
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