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draft of the Japanese Peace Treaty, the formula that Japan would renounce all right, claim, and title to "Formosa and the Pescadores," with no receiving country being specified, was adopted. State Dept. officials commented that: "It is the United States view, reflected in the treaty, that Japan should be required to renounce its rights in South Sakhalin and the Kuriles but that disposition of these territories should not be made by the treaty. This formula is consistent with that for Formosa, but is based on different considerations. The reason for leaving the disposition of Formosa undetermined is that conflicting interests prevent agreement on what the disposition should be."

Twenty years later, a July 13, 1971, State Dept. "Memorandum on the Legal Status of Taiwan" amplified this by stating: "Pursuant to Japanese Imperial General Headquarters General Order No. 1, issued at the direction of the Supreme Commander for the Allied Powers, . . . . . Continuously since that time, the Government of the Republic of China has occupied and exercised authority over Formosa and the Pescadores."

Unfortunately, in reviewing State Dept. documents regarding Taiwan from the 1940's to the present, the lack of understanding of "the laws of war" and "military jurisdiction under the US Constitution" is all too apparent. In the above quotation, although the ROC's status in Taiwan is characterized as "military occupation," the clear implication is that the ROC is "the occupying power." But that is incorrect. The United States is the legal occupier. The SFPT has clauses which identify the United States as the "principal occupying power," and state that USMG has the right to dispose of Formosan/Pescadorean "property," which would include territorial title.

As with other territorial cessions like Cuba and the Philippines which have come under some form of US jurisdiction after war, any path toward formal statehood would have to begin with the local populace forming their own civil government. That is not a change in the status quo, but a clarification of it. As an overseas territory under the jurisdiction of the US, the Taiwanese have fundamental rights under the US Constitution. To date, these rights have been denied for over 50 years.

Hence, the first step in insuring continued democratic development in Taiwan is not to push for United Nations membership, because from the historical and legal record it is clear that Taiwan is not yet a "country." The first step is to authorize the Taiwanese people to form their own civil government. Why the State Dept. has failed to coordinate this issue in the period of 1979 to the present is a mystery. However, it is a question that members of Congress would want to consider if they were to review the Executive Branch's mismanagement of the Taiwan question in the post-WWII period.

Learn more about this author, Roger Lin.
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