Derivation of the International Legal Status of Taiwan

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A Derivation of the International Legal Status of Taiwan

A Derivation of the International Legal Status of TaiwanBased on the Delineation of Categories of Territory found in U.S. Court Decisionsand Customary International Precedent regarding the Disposition of Territory after War

IndexTitleSlideAll Territory Under The Jurisdiction Of A Particular Country Is Not Necessarily Domestic Territory6Laws of War Studies12Confusion Arising From The Misconception That All Territory Under The Jurisdiction Of A Particular Country Is Domestic Territory13Rigorous Distinctions are Needed15Territorial Cession in the Modern World16United States Military Government (USMG)17TAIWAN and WWII in the Pacific18The Military Occupation of Taiwan20The Signing of the SFPT21Implementing the Specifications of the SFPT22A Civilian View of Taiwan in the Post-WWII Era23

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IndexTitleSlide"Problems" of the Civilian View24Important Steps in the Development of theRepublic of Chinas Legal Position in Taiwan25-28Summary Conclusions for Taiwan29The 1952 SFPT30Is Taiwan a part of Japan?31Is Taiwan a part of China?32Is Taiwan a part of the United States?33Taiwan: Conquered Territory of the United States34Peace Treaty Specifications for Cuba and Taiwan35WWII in the Pacific36Proxy Occupying Force37

IndexTitleSlideChinese government in exile in Taipei38The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu39The ROC in Taiwan40Introduction to fundamental Laws of War Concepts41Military Government42-43The End of Military Government44-46USMG jurisdiction over Taiwan is still active47-48The Principle of Conquest49-50Sources of International Law52Sources of the Laws of War53Native Taiwanese and ROC Exiles54-55

IndexTitleSlideUnited States Treatment of Taiwan as a Trusteeship56-57Taiwan as a U.S. Insular Area58-59Taiwan and the Montevideo Convention60Serious Violations of International Law62U.S. Constitution, supremacy clause63Collected Statements from the U.S. Executive Branchand the Courts64

Fundamentally, we need to recognize that:ALL TERRITORY UNDER THE JURISDICTION OF A PARTICULAR COUNTRY IS NOT NECESSARILY DOMESTIC TERRITORY

To aid in the discussion of this concept, illustrations from United States history will be given for reference.EXAMPLE 1:One common situation which arises is when U.S. military troops have occupied some particular area. The United States military occupation of the northern and central Mexican states during the Mexican American War is a good example of the category of foreign territory under the jurisdiction of the United States.U.S. Supreme Court ReferencesFleming v. Page (1850)Cross v. Harrison (1853)DeLima v. Bidwell (1901)

EXAMPLE 2:Even in situations after war where territory was ceded to the USA by treaty, and was added within the boundaries of USA national territory, such territory was still regarded as foreign to the states of the Union. Additionally, it was held that the U.S. Constitution did not apply in its entirety to these areas, whether during the period of United States Military Government (USMG) jurisdiction or later when the local civil government was organized. Examples are Puerto Rico, Guam, and the Philippines after the close of the Spanish American War. In the early to mid-1900s, some scholars wrote articles examining the legal treatment of these territories, and concluded that they were foreign in a domestic sense.U.S. Supreme Court ReferencesDooley v. U.S. (1901) Downes v. Bidwell (1901Gonzales v. Williams (1904)Foreign in a Domestic Sense: American Expansion, and the Constitution by Christina Duffy Burnett and Burke Marshall (Editors), Duke University Press, Durham, N.C. (2001).

EXAMPLE 3(a):A further peculiarity is where U.S. military troops liberated the territory, the original sovereign renounced its sovereignty in the peace treaty, but no recipient country was designated. In such situations, U.S. court decisions have found that United States Military Government (USMG) jurisdiction continues, and such an area is foreign territory under the dominion of the United States. Cuba, as a result of the Spanish American War, and before its independence, is a very prominent example.

EXAMPLE 3(b):As stated above, after the coming into force of the Spanish American Peace Treaty, although not ceded to the USA, Cuba remained under USMG jurisdiction. Interestingly, during this period of time, and before the founding of the Republic of Cuba, the island was a non-sovereign entity. More specifically, it was neither part of the United States, nor was it independent in its own right. Such a description amounts to saying that Cuba had not yet reached a final political status. U.S. Supreme Court ReferencesNeely v. Henkel (1901)DeLima v. Bidwell (1901)Pearcy v. Stranahan (1907)EXAMPLE 4:Another example of the non-domestic treatment of territory is foreign territory leased by the USA. Guantanamo Bay, Cuba, is one well-known example which is often in the news.

SUMMARY:As an overview of the above four examples, it is quickly seen that all of these situations have arisen as a result of the conduct of war. Accordingly, the recognition and understanding of these situations is typically beyond the capabilities of those civilian scholars who have no background in laws of war studies, which we may refer to in a somewhat broader fashion as the customary laws of warfare.

Laws of War StudiesThis field of study includes the Hague and Geneva Conventions, the laws of occupation, as well as much other customary precedent which has been established over the last two hundred years. It also includes the subject matter of military jurisdiction under the U.S. Constitution and the legal ramifications of the principle of conquest, academic areas in which most civilian scholars have essentially no knowledge.The above topics will be overviewed more thoroughly in the Introduction to fundamental Laws of War Concepts section.

There is much confusion in the world today which arises from:THE MISCONCEPTION THAT ALL TERRITORY UNDER THE JURISDICTION OF A PARTICULAR COUNTRY IS DOMESTIC TERRITORY

For discussion purposes, let us use the nomenclature of Country C to designate one particular country.The following problem arises. By regarding all territory under the jurisdiction of Country C as domestic, it then becomes a simple mental leap to say that Country C can obtain new territory merely by issuing a proclamation or holding a press conference, and then sending in its troops. When the military forces in the conquered territory surrender, the officials of Country C can announce the annexation of the territory, and the war is over.

Rigorous Distinctions are NeededThose scholars and researchers who unwittingly assume that All territory under the jurisdiction of a particular country is domestic territory also fail to make a rigorous distinction between having sovereignty over a piece of territory, versus merely having jurisdiction over that territory. Research into the customary laws of warfare and a close examination of Examples 1, 2, & 3, above, quickly show that (a) not all territory under the jurisdiction of a particular country is domestic territory, (b) having jurisdiction over territory and having sovereignty over territory are two distinct concepts.

Territorial Cession in the Modern WorldIn the post-Napoleonic world, territorial cession is accomplished by treaty, and the world history of the last (nearly) two hundred years provides many examples. In the 1800s, the difference between military occupation and annexation became firmly established in customary law, and was later formally codified in the Hague Conventions of 1907:Territory is considered occupied when it is actually placed under the authority of the hostile army."The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." In the Spanish American War examples given above, Spanish sovereignty continued until renounced in the peace treaty.

United States Military Government (USMG)Beginning of USMGAreaTreatyCame into forceEnd of USMGUSMG Supplanted byAugust 12, 1898Puerto RicoTreaty of Paris, Art. 2April 11, 1899May 1, 1900Civil Government for Puerto Rico (USA)August 14, 1898PhilippinesTreaty of Paris, Art. 3April 11, 1899July 4, 1901Civil Government for Philippines (USA)June 21, 1898GuamTreaty of Paris, Art. 2April 11, 1899July 1, 1950Civil Government for Guam (USA)July 17, 1898CubaTreaty of Paris, Art. 1April 11, 1899May 20, 1902Civil Government for Cuba (Republic of Cuba)

United States Military Government (USMG) jurisdiction over these four territories began with the surrender of Spanish troops in each area, and continued (beyond the time when the peace treaty came into force) for many years. USMG jurisdiction was finally supplanted by the establishment of civil government for each territory. This is the established precedent for dealing with conquered territory.

TAIWAN and WWII in the PacificAll military attacks against the four main Japanese islands (aka metropolitan Japan) and Taiwan were conducted by U.S. military forces. The legal significance of such actions can be determined by examining the subject matter of military jurisdiction under the U.S. Constitution and the legal ramifications of the principle of conquest.Additionally, according to U.S. Supreme Court precedent regarding the application of the laws of occupation, the United States is the conqueror, and therefore will be the legal occupier.

Many historians dispute the view that the United States was the legal occupier of Japan, and point out that The Allies occupied Japan. However, Gerhard L. Weinberg (Ph.D., University of Chicago) clarifies the correct view in his essay The End of the Pacific War in World War II. He describes the historical