The Taiwan Question: Historic Mismanagement by the US Executive Branch?
Part 1
The Origin of the Taiwan Question in the 1940’s
In stories written by major news agencies, the present day Taiwan question is often described as arising from the Chinese civil war of the late 1940’s. This is explained by noting that when high ranking government officials, military officers, and other loyal Chinese nationalists fled from mainland China to Taiwan in late 1949, temporarily moving their capital from Nanjing to Taipei, China effectively became a divided nation.
Indeed, at that point, many observers were totally confused as to which government should be recognized as the legal government of China. There were two obvious choices – the People’s Republic of China, which was founded Oct. 1, 1949, and the original Republic of China, which had been founded in 1912, and which had, by late 1949, firmly established itself in the areas of Formosa and the Pescadores, commonly known as “Taiwan.”
As we know, in that post-war era, and indeed up through Dec. 31, 1978, the United States continued to recognize the Republic of China (which had by late 1949 firmly established itself in Taiwan) as the sole legitimate government of China. That was an era of very great anti-communist sentiment.
After the events of 1949, the world situation became even more complex. The Korean War broke out in 1950. That was a significant event in that era, but more important for our examination of the situation of Taiwan is the post WWII San Francisco Peace Treaty. That treaty was signed in the city of San Francisco in Sept. 1951, was ratified by the US Senate in the Spring of 1952, and then formally came into effect on April 28, 1952.
According to Article 6 of the US Constitution, a Senate-ratified treaty, such as the San Francisco Peace Treaty, is part of the “supreme law of the land,” indeed it has the same weight as the US Constitution.
To date, the San Francisco Peace Treaty is the highest ranking document of United States law, and of international law, which defines the international legal status of Taiwan in the post-WWII era. Most significantly, the San Francisco Peace Treaty, or SFPT, also fully defines the relationship between Taiwan and the United States of America.
However, today as most people know, when the subjects of Taiwan and China are mentioned, the US Executive Branch consistently maintains that the triangular US – Taiwan -- China relationship is defined by the three elements of the (1) One China Policy, (2) the Taiwan Relations Act, and (3) the Three Joint USA-PRC Communiques. The SFPT is not even mentioned. So, it certainly appears that the SFPT has gained the status of a “lost treaty” in current analysis of the Taiwan question.
A comprehensive examination of the SFPT is very important if we want to understand Taiwan’s international legal status in the world today, and if we want to understand Taiwan’s relationship to the United States of America. However, the US Commander in Chief, and the State Dept. officials have not explained the details of this treaty to the members of Congress, or to the American public. Hence, we believe that valid charges can be made to the effect that US Executive Branch has mismanaged the Taiwan question for over fifty years.
The scope of this mismanagement will become apparent in this series of broadcasts which we are recording and uploading to the internet.
Since the Taiwan question is something which arose from WWII in the Pacific, in which the United States was heavily involved after the Declaration of War against Japan on Dec. 8, 1941, we will need to have some familiarity with military jurisdiction under the US Constitution to discuss the Taiwan question intelligently.
The San Francisco Peace Treaty was written within the framework of the customary laws of warfare. The scope of these customary laws, and how they can assist us to precisely define Taiwan’s legal status under the US Constitution will become more clear in future installments of our series.
Thank you.
The Taiwan Question: Historic Mismanagement by the US Executive Branch?
Part 2
The Acquirement of Territory by Conquest and by Treaty
As we know, the Qing Dynasty ceded Formosa and the Pescadores (today known as Taiwan) to Japan in 1895. After the coming into force of the 1895 Treaty of Shimonoseki, Japan exercised sovereignty over Taiwan and held title to its territory. The Republic of China was founded in 1912, with Dr. Sun Yat-sen as the provisional president. Taiwan, however, having come under Japanese rule in 1895, was not part of ROC territory in the early years of the 20th century.
Article XIX of the Limitation of Armament Treaty Between the United States of America, the British Empire, France, Italy, and Japan, (signed at Washington, Feb. 6, 1922) affirmatively identified Formosa and the Pescadores as part of Japanese territory.
The following historical overview is of excellent reference value.
(1) The US entered the Pacific War against Japan in Dec. 1941. It is important to recognize that the Declaration of War against Japan on December 8, 1941, was by the United States of America. That was not a Declaration of War by the Allies.
(2) All military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by US military forces, as confirmed in numerous published sources. The United States is the “conqueror.”
(3) After the events of early August 1945, the Japanese Emperor announced his willingness to surrender. The surrender ceremonies were held on Sept. 2, 1945.
(4) Were the four main Japanese islands (which we may call “metropolitan Japan”) then occupied territory of the United States of America? The answer is yes. In the San Francisco Peace Treaty, Article 23(a) identifies the United States as the principal occupying power. Thus, within the geographic scope covered by the SFPT, there is a clear implication that there are “subordinate occupying powers” which are in charge of the military occupation of some areas.
(5) The Hague Conventions and the Geneva Conventions speak of the occupying power or the occupying state. For the SFPT, this is the United States. Within the geographic scope covered by the treaty, other military troops handling military occupation matters are actually only exercising delegated administrative authority of the United States, in the form of a principal - agent relationship.
(6) Can we say that metropolitan Japan has become US territory? Let’s look at the opinion of US Supreme Court Chief Justice Marshall, who offered this penetrating analysis in the famous American Insurance Company case (1828): "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."
(7) And more explicitly, in United States v. Huckabee (1872), the Court speaking through Mr. Justice Clifford, said: "Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined.... "
(8) In overviewing the development of US Constitutional law and international law from the early 1800’s to the present day, the customary rule that we clearly see is the following – The disposition of territory acquired under the principle of conquest must be conducted according to the laws of war.
(9) What does this mean? In simple terms it will mean military occupation followed by some sort of peace settlement. If there is any territorial cession, then the specifications of the territorial cession must be given in a treaty. After a war, that settlement commonly takes the form of a peace treaty.
(10) As a point of reference, we know that territorial cessions in peacetime are also concluded by treaty. The territorial cessions of Louisiana in 1803, Florida in 1819, California in 1848, the Gadsden Purchase in 1853, Alaska in 1867, Puerto Rico, Cuba, Guam, and the Philippines in 1899, the Virgin Islands in 1917, etc were all concluded by treaty.
(11) So, we can claim that the four islands of Japan were “acquired” by the United States under the principle of conquest. The United States then made disposition of these areas according to the laws of war, which means that there was a military occupation, and then a peace settlement. The peace settlement was the San Francisco Peace Treaty of April 28, 1952. Metropolitan Japan was not a territorial cession, and it regained its sovereignty on April 28, 1952. The United States announced the end of the military occupation of Japan effective on that date.
It may come as a surprise to many civilians that Japan was formerly “acquired” territory of the United States of America. Did the laws of the United States actually extend over Japan, or how was it governed? What about Japan’s overseas territories such as Taiwan?
Please be sure to watch our next broadcast.
The Taiwan Question: Historic Mismanagement by the US Executive Branch?
Part 3
Military Jurisdiction under the US Constitution
Under the United States system of government, in order to discuss the governance of overseas territories acquired under the principle of conquest, we need to do an overview of military jurisdiction under the US Constitution.
The standard reference for this is Ex Parte Milligan (1866), where the Supreme Court held that:
There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.
We can organize this more straightforwardly as follows.
There are under the Constitution three kinds of military jurisdiction:
· MILITARY LAW is exercised both in peace and war; and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces;
· MILITARY GOVERNMENT is exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress;
· MARTIAL LAW PROPER is exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise; and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.
So, how did the United States govern Japan during the period of military occupation? The answer is four words: United States Military Government. That can be abbreviated as USMG.
For a more formal statement of this, we can offer the following: “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation, or the undesirability of allowing it to do so.” This definition comes from paragraph 362 of US Army Field Manual FM 27-10 “The Law of Land Warfare.”
The same Field Manual provides a definition of military occupation in paragraph 351 as follows: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
This definition is taken directly from the Annex to Hague Convention No. IV, Oct. 18, 1907, embodying the Regulations Respecting the Laws and Customs of War on Land.
So, while the surrender ceremonies were conducted on behalf of the Allies, we know that within the geographic scope covered by the SFPT, the United States is the principal occupying power. The military occupation of metropolitan Japan has ended on April 28, 1952. But what about the military occupation of Japan’s overseas territories such as Taiwan?