by Roger Lin

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Since the break in relations with the Republic of China (ROC) in late 1978, and the implementation of the "Taiwan Relations Act" in 1979, Congressional hearings on the the Taiwan question consistently overlook one important legal document. That document, the Senate ratified San Francisco Peace Treaty (SFPT) of 1952, is in fact the highest ranking item of US constitutional law in the post-WWII era regarding the status of Taiwan.

US policy, as clarified by President Clinton in 1998 stated that: "We don't support independence for Taiwan; . . . or 'two Chinas'; or 'one Taiwan, one China'; . . . and we don't believe that Taiwan should be a member in any organization for which statehood is a requirement." The PRC reaction was quick and straightforward, as officials ther quickly pointed out that Mr. Clinton's statements could only permit one possible interpretation: namely, if Taiwan lacks the qualifications necessary for independence or statehood, (as witnessed by the United Nations' yearly refusal to admit Taiwan for membership), and since the US has recognized the PRC as the sole legal government of China, the US necessarily must agree that Taiwan is a province of the PRC.

However, in study of fifty key elements of US policy in regard to Taiwan's legal status released by the Taiwan Civil Alliance in 2007, less than 20% corresponded to the theory that Taiwan is a province of China. Contrastingly, over 90% corresponded to an interpretation which flows from a reading of the historical and legal record from the point of view of "the laws of war" and "military jurisdiction under the US Constitution." That interpretation says that Taiwan is occupied territory of the United States of America.

The mental blocks for most people in accepting such a conclusion are (1) confusing the surrender ceremonies with the military occupation, and (2)failing to recognize that the military occupation of a particular area can be delegated to other country's troops. In other words, under General MacArthur's General Order No. 1 of Sept. 2, 1945, surrender was to the Allies, and the United States was the legal occupier (aka "principal occupying power.") The Chinese Nationalists under Chiang Kai-shek were still officially subject to the supreme authority of General MacArthur, who was the Commander in Chief of US Armed Forces in the Far East. It was the United States Military Government (USMG) whom was legally occupying Japan and her territorial dependencies like Taiwan.

In a June 14, 1951, near-final 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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