Nationality Decrees Issued in
Tunis and Morocco
Question Presented:
By international law, are Nationality Decrees solely a matter of domestic jurisdiction?
Permanent Court of International Justice [Advisory Opinion]:
The answer must be given in the negative.
Permanent Court of International Justice
(often called the World Court)
1922 – 1946
under the League of Nations
BACKGROUND:
There was a dispute between France and Great Britain regarding the Nationality Decrees issued in Tunis and the French zone of Morocco on November 8, 1921, and their application to British subjects. Both Tunisia and a large portion of Morocco were French protectorates in at that time.
In this regard, the representatives of Great Britain claimed that under the protectorate treaties concluded with Tunis and Morocco in 1856 and 1875, the acquisition of another nationality was excluded. France, on the other hand, argued that these treaties had already lost their effectiveness. This was because France had now taken control of both territories, creating a new situation in which France was solely responsible for dealing with nationality issues therein.
The case was referred to the Permanent Court of International Justice for its advisory opinion on the question of whether the dispute in question was or was not by international law solely a matter of the domestic jurisdiction of any one state.
On October 4th, 1922, the Council of the League of Nations adopted the following resolution (Official Journal of the League of Nations, 3rd year, No. II (Part z), page 1206 ; French Counter-Case, pages 48 and 49) :
(English text)
"The Council has examined the proposals made by Lord Balfour and M. Léon Bourgeois on the subject of the following question, placed on its agenda of August 11th at the request of the Government of His Britannic Majesty:
" 'Dispute between France and Great Britain as to the Nationality Decrees issued in Tunis and Morocco (French zone) on November 8th, 1921, and their application to British subjects, the French Government having refused to submit the legal questions involved to arbitration.'
The Council adopted the following resolution:
"(a) The Council decides to refer to the Permanent Court of International Justice, for its opinion, the question whether the dispute referred to above is or is not by international law solely a matter of domestic jurisdiction (Article 15, paragraph 8, of the Covenant) ; "
(b)" And it requests the two Governments to bring this matter before the Permanent Court of International Justice, and to arrange with the Court with regard to the date on which the question can be heard and with regard to the procedure to be followed ;
"(c) Furthermore, the Council takes note that the two Governments have agreed that, if the opinion of the Court upon the above question is that it is not solely a matter of domestic jurisdiction, the whole dispute will be referred to arbitration or to judicial settlement under conditions to be agreed between the Governments.
"(d) The Secretary-General of the League will communicate paragraphs (a) and (b) to the Court."
Permanent Court of International Justice, The Hague, Advisory Opinion No. 4, February 7, 1923
ADVISORY OPINION
"'Whereas questions of treaty obligation are by international law necessarily outside the exclusive domestic jurisdiction of any one State,
"Whereas it appears from the Cases and Counter-Cases submitted by the two Governments and from the arguments addressed to the Court that each Government relies partly on questions of the existence or abrogation of treaties and of the construction of the terms of such treaties ;and
"Therefore the Court will be pleased to say
"That the answer to the question put by the Council is in the Negative."
In the formation of its opinion, the Permanent Court of International Justice also stated that a very important consideration in its deliberations was the content of all relevant international treaties in existence. Reference to these treaties was essential, in order to clarify both the relationships between the parties, and the basis of the legal authority for the exercise of governmental control in the territorial areas concerned.
Relevance to the Republic of China Nationality in Taiwan
Part 1
Although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the "legal basis" of native Taiwanese persons as having ROC nationality is a January 12, 1946, order issued by the ROC military authorities. However, that order was never ratified by the Legislative Yuan, nor made into a law.
Reference to the pronouncements of the US government, the British government, etc. in the late 1940's (and even into the 1950's) confirms that the leading Allied nations never recognized the legal validity of the mass naturalization of native Taiwanese persons as "ROC citizens" by the Chiang Kai-shek regime in the 1940's.
Importantly, as "belligerent occupation" of Taiwan began on October 25, 1945, with the surrender of Japanese troops, and only ended with the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952, such an order is prohibited under the laws of war. This is precisely the reason why the Allies objected to it.
Part 2
Ignoring for the moment the fact that the promulgation of a new legal structure in occupied Taiwan territory is a violation of the laws of war, we note that Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record. Moreover, international law specifies that "military occupation does not transfer sovereignty." The proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, is therefore illegal and invalid, and does not establish a legal basis for the mass naturalization of Taiwan persons as ROC citizens.
Oct. 25, 1945 is the close of hostilities in Taiwan, but not the end of the war. As of January 1946, there are still no treaties defining the relationship between the Republic of China and other parties which can serve as a legal basis for an ROC mass naturalization order in Taiwan.
Part 3
Hence, examination of the Jan. 1946 actions of the ROC military authorities with reference to the Advisory Opinion of the Permanent Court of International Justice (PCIJ), of February 7, 1923, clearly shows that under international law:
Nationality Decrees are not solely a matter of domestic jurisdiction:
During the preparation for the promulgation of this mass naturalization order, the ROC military authorities should have first undertaken thorough consultations with the other leading Allies, and solicited their advice and opinions,
Nationality Decrees need to be discussed with reference to existing treaties:
During the preparation for the promulgation of this mass naturalization order, the ROC military authorities should have clarified the legal basis for redefining the Japan – China relationship as of Oct. 25, 1945, to say that Japan’s holding of the territorial sovereignty of Taiwan had already been terminated, and that this territorial sovereignty had already been transferred to China. Certainly there are no treaties that can offer support for such assertions.
Notes
1.
None of the following are “treaties” and hence (whether individually or collectively) cannot serve as the legal basis for claiming a transfer of territorial sovereignty of Taiwan to China: (a) China’s Declaration of War Against China of Dec. 9, 1941, (b) the Cairo Declaration of Dec. 1, 1943, (c) the Potsdam Proclamation of July 26, 1945, (d) General Order No. 1 of Sept. 2, 1945, (e) the Japanese Surrender documents of Sept. 2, 1945, or Oct. 25, 1945.
2.
Under international treaty law, Japan held the territorial sovereignty of Taiwan until April 28, 1952, which was the date that the San Francisco Peace Treaty (SFPT) came into force. In that treaty, Japan renounced the territorial sovereignty of Taiwan, but the ROC was not the recipient of this sovereignty.
Conclusion
With reference to the relevant Advisory Opinion of the PCIJ, we must conclude that there is no basis under international humanitarian law (aka "laws of war") or international treaty law for the promulgation of an ROC mass naturalization order over the Taiwan populace in January 1946. Such an order should be regarded as invalid and illegal.
Additional Information
PROTECTORATE
DEFINITION
A protectorate, in the context of international relations, is a state that is under protection by another state for defense against aggression and other violations of law. It is a dependent territory that enjoys autonomy over most of its internal affairs, while still recognizing the authority of the more powerful sovereign state (which is serving in the role of protecting state). The protectorate is not classified as one of the protecting state’s possessions, although the protecting state may control some of the protectorate’s foreign policy and international relations. In exchange, the protectorate usually accepts specified obligations depending on the terms of their arrangement.
Further details:
1.
Protectorates are usually established de jure by a treaty.
2.
Under certain conditions a state or quasi-state can also be labeled as a de facto protectorate.
3.
A protectorate and a colony are not the same. This is because a protectorate has local rulers, is not directly possessed, and rarely experiences colonization by the protecting state.
4.
Of importance is to note that a state or quasi-state that is under the protection of another state while retaining its "international personality" is more properly called a "protected state," not a protectorate.
| LINKs |
| Additional Webpages of Interest |
| Taiwan's Military History: Fundamental Concepts |
| Historical Research shows that Taiwan is not Part of China |
| Article 10, Treaty of Taipei |
[Chinese version] https://www.twdefense.info/trust3/natdecreesch.html
