Discussing Taiwan's Military History: Fundamental Concepts

(2) The direct result of conquest is to obtain jurisdiction over the territory. The U.S. Supreme Court has recognized that the conqueror/liberator is the (principal) occupying power, and is responsible for conducting the military occupation.         [LINK]

(3) The customary laws of warfare (aka "laws of war") of the post-Napoleonic period, even though not completely codified, have much content which affords protection to civilians, including those in occupied territory. Additionally, these laws provide a broad compendium of what activities are/were forbidden in occupied Taiwan territory. The international legal texts most commonly referenced are the 1907 Annex to the Hague Conventions (aka "Hague Regulations" or "HR") and the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Times of War (aka "Fourth Geneva Convention" or "GCIV"). Notably, in many cases, the 1949 GCIV specifications are codifications of customary norms which have existed since the latter half of the 19th century.

(4) The controlling legal framework for the interpretation of the significance of the Oct. 25, 1945, Japanese surrender ceremonies in Taipei, Taiwan, is HR Article 42 of the which states: "Territory is considered occupied when it is actually placed under the authority of the hostile army." This tenet of the customary laws of warfare was also specifically codified in US War Dept. Field Manual FM 27-10 Rules of Land Warfare (Oct. 1, 1940 edition) as para. 271.

(5) Although the surrender ceremonies in Taiwan on Oct. 25, 1945, were ostensibly conducted on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of the principal occupying power - the United States of America.

(6) International law states that military occupation does not transfer sovereignty. Statements, announcements, or assertions that China obtained the sovereignty of Taiwan in the 1940s, and in particular as a direct or indirect result of the Japanese surrender ceremonies, are clearly without any basis in international law. After Oct. 25, 1945, Taiwan is occupied territory.

(7) In the practice of the United States, the term "military government" means the form of administration by which an occupying power exercises government authority over occupied territory. In other words, military occupation is conducted under military government, and the fundamental nature of territory under military government jurisdiction is "occupied territory." United States Military Government’s (USMG) jurisdiction over Taiwan began with the completion of the Japanese surrender ceremonies. Therefore, in Taiwan, starting from October 25, 1945, the role fulfilled by the United States is "principal occupying power." The role of the ROC is best described as "proxy occupying forces." SFPT Article 23(a) confirms the United States of America as the "principal occupying power" over all areas within the geographic scope of the treaty, a role which the US has never formally abrogated.

(8) A comparison of the situations of Cuba (according to the 1899 Treaty of Paris) and Taiwan (according to the 1952 San Francisco Peace Treaty) may be made as follows: Item Treaty of Paris specifications for Cuba SFPT specifications for Taiwan United States is the (principal) occupying power Article 1 Article 23(a) Original "owner" did indeed cede the territory Article 1 Article 2(b) No "receiving country" was specified Article 1 Article 2(b) USMG has disposition rights over the territory Article 1 Article 4(b) Military government is present, and military occupation is a reality Article 1 Article 4(b) and the Hague Conventions (1907) USMG jurisdiction continues past the date when the peace treaty comes into effect Article 1, and the U.S. Supreme Court decision in Cross v. Harrison (1853) Article 4(b), Article 23(a), and the U.S. Supreme Court decision in Cross v. Harrison (1853)

(9) ROC military commanders and troops were transported by United States ships and aircraft to Taiwan in October 1945. Operating under the superior command responsibility of the US Pacific Command and US Commander in Chief under the authority of General Order no. 1 (issued: Sept. 2, 1945) of the Supreme Commander for the Allied Powers, the ROC military commanders were exercising delegated administrative authority to undertake the military occupation of Taiwan.

(10) In recognition that the SFPT of April 28, 1952, does not mention or confirm any relevant continuing authorization, therefore the General Order no. 1 arrangements for this ROC regime to be in Taiwan must be considered to have been superseded and therefore cancelled by the SFPT. Indeed, no Articles in the SFPT can be interpreted to say that the treaty has transferred the territorial sovereignty of Taiwan to the ROC regime under Chiang Kai-shek, or that the ROC regime is authorized to continue in the exercise of any governance activities in Taiwan. Having already made a disposition of Taiwan territory in the SFPT, it is impossible to conclude that Japan could make any further disposition of Taiwan in the Treaty of Taipei (aka "Treaty of Peace between China and Japan.")

(11) According to the Starr Memorandum of the US Dept. of State, issued July 13, 1971 -- Article 2 of the Japanese Peace treaty, signed on Sept. 8, 1951 at San Francisco, provides that "Japan renounces all right, title and claim to Formosa and the Pescadores." The same language was used in Article 2 of the Treaty of Peace between China and Japan signed on April 28, 1952. In neither treaty did Japan cede this area to any particular entity.

(12) In summary, the continuing presence of the ROC government structure in Taiwan after late April 1952 is not authorized by the One China Policy, the Taiwan Relations Act, the three joint USA-PRC Communiques, the Six Assurances, the post-war Treaties, or any Executive Orders issued by the US Commander in Chief. CONCLUSION: US officials must recognize that the continuing presence of the ROC government structure in Taiwan after late April 1952 is without legal basis.