Was Taiwan returned to China after WWII?

[Rgroup]

A court case now proceeding in Washington DC is claiming that native Taiwanese people are entitled to certain fundamental rights under the US Constitution.

This is a new line of argument which has never been presented in the federal judiciary before. A summary of the legal rationale for the court case is here -- http://www.taiwanbasic.com/civil/tcourt.htm

and other 2008 documentation is here -- http://www.taiwanbasic.com/insular/lin-excerpts.htm

In particular, the Briefs of Nov. 3 and Dec. 17, 2008 make excellent reading.

This entire case is based on a careful reading of the post-war peace treaties, in particular the San Francisco Peace Treaty (SFPT) of 1952. (The Treaty of Taipei is a subsidiary treaty under SFPT Article 26.) Although Japan renounced all right, title, and claim to Taiwan in the SFPT, (and those arrangements were confirmed in the Treaty of Taipei) however no "receiving country" was specified. Hence, it can be successfully argued that Taiwan does not belong to China (either ROC or PRC), and native Taiwanese persons cannot be classified as having any form of "Chinese nationality."

Additionally, since the United States Executive Branch does not regard "Taiwan" or the "ROC" as sovereign independent nations, it can be additionally argued that native Taiwanese people are stateless, which is both a violation of the International Covenant on Civil and Political Rights, and the Eighth Amendment to the US Constitution ("cruel and unusual punishment.")

Under the treaty arrangements of the Senate-ratified SFPT, and according to the experience in other historical territorial cessions such as California, Puerto Rico, Guam, Philippines, and Cuba, (and with reference to relevant US Supreme Court explanations) it is clear that Taiwan remains under the jurisdiction of the "principal occupying Power" of the SFPT -- the United States of America. The native Taiwanese people should thus be entitled to certain fundamental rights under US laws and the Constitution.

[David Thompson]

For interested readers -- The text of the peace treaty with Japan (Treaty of San Francisco) can be seen at http://www.uni-erfurt.de/ostasiatische_ ... treaty.htm

[Kingfish]

Although the jurisdiction of Republic of China only covers Taiwan and outlying islands since 1949, during the early Cold War the ROC was recognized by most Western nations and the United Nations as the sole legitimate government of China. During the 1970s, the ROC began to lose these recognitions in favor of the People's Republic of China. The Republic of China has not relinquished its claim as the legitimate government of all China.[7] Both former Presidents Lee Teng-hui and Chen Shui-bian have held the view that it is a sovereign and independent country separate from mainland China and there is no need for a formal declaration of independence.[8] President Ma Ying-jeou has expressed the view that the ROC is a sovereign and independent country that includes both Taiwan and mainland China, a view that corresponds with the ROC constitution and the 1992 Consensus.

Seems to me the people of Taiwan have no problem considering themselves not only a sovereign and independent nation, but also as the legitimate rulers of all mainland China.

Perhaps the drafters of this appeal should try convincing the PRC they really answer to their comrades across the straits of Formosa.

[Rgroup]

Seems to me the people of Taiwan have no problem considering themselves not only a sovereign and independent nation, but also as the legitimate rulers of all mainland China.

My impression is that such a viewpoint is only held by the government officials of the ROC government in exile.

Perhaps the drafters of this appeal should try convincing the PRC they really answer to their comrades across the straits of Formosa.

According to our research, the United States Executive Branch has never recognized the forcible incorporation of Taiwan into Chinese territory.

This lawsuit was filed in the US courts. It has nothing to do with the PRC.

[Kingfish]

Seems to me the people of Taiwan have no problem considering themselves not only a sovereign and independent nation, but also as the legitimate rulers of all mainland China.

My impression is that such a viewpoint is only held by the government officials of the ROC government in exile.

Government officials that the Taiwanese people freely elected to act as their representatives, especially in matters of sovereignty and foreign policy.

So, if the Taiwanese government (I.e. the Taiwanese people) considers Taiwan sovereign and independent, then who exactly is Dr. Robert C.S. Lin representing?

Perhaps the drafters of this appeal should try convincing the PRC they really answer to their comrades across the straits of Formosa.

According to our research, the United States Executive Branch has never recognized the forcible incorporation of Taiwan into Chinese territory.

Taiwan has been part of China from as far back as the Qing Dynasty, long before the United States was around, let alone powerful enough to have a voice on the world stage.

[Rgroup]

Seems to me the people of Taiwan have no problem considering themselves not only a sovereign and independent nation, but also as the legitimate rulers of all mainland China.

My impression is that such a viewpoint is only held by the government officials of the ROC government in exile.

Government officials that the Taiwanese people freely elected to act as their representatives, especially in matters of sovereignty and foreign policy.

With all due respect, it seems to us to be a gross aberration of international law to say that elections held under the auspices of a government in exile, which is not exercising sovereignty over the territory in question, and which is without a legally valid "local population," can be called free elections.

If you want to accept such a premise, you are entitled to do so. We do not, and we are backing up our dissatisfaction with the appropriate court action.

Perhaps the drafters of this appeal should try convincing the PRC they really answer to their comrades across the straits of Formosa.

According to our research, the United States Executive Branch has never recognized the forcible incorporation of Taiwan into Chinese territory.

Taiwan has been part of China from as far back as the Qing Dynasty, long before the United States was around, let alone powerful enough to have a voice on the world stage.

We don't believe that anyone is arguing this point. However, Taiwan was ceded to Japan in the 1895 Treaty of Shimonoseki. From the point of view of the 20th and 21st centuries, there are no legal documents which have ever recognized a cession of Taiwan back to "China" (either the ROC or the PRC).

[Kingfish]

With all due respect, it seems to us to be a gross aberration of international law to say that elections held under the auspices of a government in exile, which is not exercising sovereignty over the territory in question, and which is without a legally valid "local population," can be called free elections.

Doesn't matter, it is your government.

I'm not especially fond of how the two major political parties in my country have held such a monopoly on power, but until a better system is devised they are our representatives.

If you want to accept such a premise, you are entitled to do so. We do not, and we are backing up our dissatisfaction with the appropriate court action.

Please explain how filing a suit in another country's court system remedies your dissatisfaction with your own country's politics?
Doesn't arguing that the Taiwanese people are somehow under the jurisdiction of the U.S., and thus entitled to constitutional rights, undermine any attempt at establishing yourselves as independent and sovereign? Or is that not what Dr. Lin is after?

We don't believe that anyone is arguing this point. However, Taiwan was ceded to Japan in the 1895 Treaty of Shimonoseki. From the point of view of the 20th and 21st centuries, there are no legal documents which have ever recognized a cession of Taiwan back to "China" (either the ROC or the PRC).

Why doesn't Dr. Lin file the appropriate legal documents? Seriously, what exactly is Dr. Lin's agenda?

[Rgroup]

With all due respect, it seems to us to be a gross aberration of international law to say that elections held under the auspices of a government in exile, which is not exercising sovereignty over the territory in question, and which is without a legally valid "local population," can be called free elections.

Doesn't matter, it is your government.

Dr. Lin does not agree. The Republic of China is not the government of the native Taiwanese people. The ROC is a Chinese government in exile.

Please explain how filing a suit in another country's court system remedies your dissatisfaction with your own country's politics?
Doesn't arguing that the Taiwanese people are somehow under the jurisdiction of the U.S., and thus entitled to constitutional rights, undermine any attempt at establishing yourselves as independent and sovereign?

In Dr. Lin's view, in order to establish an independent Taiwan, at some point there would have to be the proclamation of a "Declaration of Independence" or some other act to signify the intent to be independent. However, Dr. Lin disagrees with the majority of Taiwan independence advocates in saying that such a "Declaration of Independence" should be issued against the Republic of China, ... or the People's Republic of China. Dr. Lin's legal researchers in Washington D.C. have found no legal documents from the period of the late 1930s to the present which can prove that Taiwan has ever come under Chinese sovereignty. (More specifically, it must be recognized that Taiwan was under Japanese sovereignty until April 28, 1952. Hence, in his view, the correct starting point for such an "investigation" is from April 1952 to the present .... ) However, at any rate, no such documentation has been uncovered.

(Note: Although many researchers are very adamant in stating otherwise, in fact the US Executive Branch has never recognized the forcible incorporation of Taiwan into Chinese territory. Over the past few decades, after the break in diplomatic relations with the ROC government in exile, the Executive Branch has consistently held that Taiwan is not a state in the international community. Consequently, the native Taiwanese people are essentially stateless, which is a violation of the International Convenant on Civil and Political Rights, signed by the USA in 1992, as well as being in violation of the Eighth Amendment's stipulation against "cruel and unusual punishment." Since it can be argued that Taiwan has remained under the jurisdiction of the United States Military Government [see below], hence it should be possible for the native Taiwanese people to obtain US-issued passports and other identification documents.)

Considering the entire course of the Chinese Civil War and WWII in the Pacific, since Taiwan's ownership was never legally transferred to "China," the only possible conclusion is therefore, in Dr. Lin's view, that Taiwan remains under the jurisdiction of the United States, which was the "conqueror" of Japan and her overseas dependencies (territories, etc.) during WWII. Hence, any "Declaration of Independence" by the native Taiwanese people would have to be issued against the USA.

But, with this clear realization, there is no need to argue further. The history of the Philippines provides a clear pathway to international statehood. For Taiwan, this would involve the following steps: (1) First, there must be the full recognition by the US government that based on the Senate-ratified San Francisco Peace Treaty of 1952, Taiwan remains as an overseas territory under the jurisdiction of the United States Military Government. (This is a post-treaty status, and not technically something which would fall under the category of "belligerent occupation.") Since there is no way to have any sort of direct dialogue with the US Executive Branch on this, the filing of a lawsuit for declaratory relief in the US federal court system is required, (2) Second, after recognition of their fundamental rights under US laws and the US constitution, the native Taiwanese plaintiffs can obtain US passports (which would be the "non-citizen passport" or "national passport," similar to that held by the native inhabitants of the Philippines from 1899 to 1946), since the right to travel and the right to hold passports are part of the "liberty" of the Fifth Amendment, which apply to all areas under US jurisdiction, (3) Third, after the economic, political, and social situations in Taiwan are stable under US administrative authority, then, if the native Taiwanese people felt it appropriate, a referendum on seeking formal independence, or "freely associated status," or upgrading their territorial status, etc. could be conducted, according to some sort of mutually agreed-upon timetable.

Seriously, what exactly is Dr. Lin's agenda?

Dr. Lin's primary agenda, initially, is to have Taiwan's current international legal status fully recognized. Without a full agreement on that current legal status, it is impossible to effectively discuss "possible routes to independence."

Dr. Lin feels that most of the rhetoric of the supporters of Taiwan independence is leading nowhere, and indeed this has been the situation over the past thirty or more years. No coherent discussion of a future independent Taiwan can be conducted unless everyone can agree on a statement of Taiwan's current international legal position.

[Kingfish]

Dr. Lin does not agree. The Republic of China is not the government of the native Taiwanese people. The ROC is a Chinese government in exile.

As I had mentioned in a previous post, Taiwan was under mainland Chinese rule from as far back as the Qing dynasty, then Japanese, and back to the Chinese under the Kuomintang. At what time did the native Taiwanese govern themselves?

Dr. Lin feels that most of the rhetoric of the supporters of Taiwan independence is leading nowhere, and indeed this has been the situation over the past thirty or more years.

And hitching his wagon to the U.S. is actually going to improve the situation?

I'll let you in on a little secret - the U.S. government has simply no desire to become involved in the internal affairs of Taiwan.

It seems to me Dr. Lin is trying the back door approach to achieving sovereignty and independence by asking the U.S. to take the Taiwanese under it's wing, then once the dust settles set them free. Just one problem (actually two) - the PRC and ROC will certainly not sit idly by while this plays out. See below.

No coherent discussion of a future independent Taiwan can be conducted unless everyone can agree on a statement of Taiwan's current international legal position.

Everyone?

[Rgroup]

Dr. Lin does not agree. The Republic of China is not the government of the native Taiwanese people. The ROC is a Chinese government in exile.

As I had mentioned in a previous post, Taiwan was under mainland Chinese rule from as far back as the Qing dynasty, then Japanese, and back to the Chinese under the Kuomintang. At what time did the native Taiwanese govern themselves?

As I had mentioned in a previous post, Taiwan was ceded to Japan in the 1895 Treaty of Shimonoseki. From the point of view of the 20th and 21st centuries, there are no legal documents which have ever recognized a cession of Taiwan back to "China" (either the ROC or the PRC). Hence, there was no transfer of Taiwan's sovereignty "back" to the Chinese.

I'll let you in on a little secret - the U.S. government has simply no desire to become involved in the internal affairs of Taiwan.

If Taiwan were an independent sovereign nation, your viewpoint would undoubtedly be correct. However, Dr. Lin feels that there are valid US constitutional arguments to say that at present Taiwan is still under the jurisdiction of the military arm of the US government (aka "United States Military Government" or USMG). This is an interpretation which flows directly from the Senate-ratified San Francisco Peace Treaty of 1952.

Hence, it is not a question of anyone's "desire" to become involved in anything. It is a legal, (indeed constitutional), issue. This is the thinking behind Dr. Lin's court action.

[JamesL]

A review of the US Dept. of Defense website indicates that there are NO American troops stationed on Taiwan (June 30, 2008 report).

The Japanese on Taiwan surrendered to Republic of China forces, not American forces.

My reading of the SFPT indicates that the term 'principal occupying Power' refers to American troops in Japan, not Taiwan.

The Cairo Declaration of 1943 pointed out that Taiwan was to be turned over to the Republic of China.

I doubt a US federal appellate court will tell the US Senate how to interpret a treaty.

I seem to recall that there was a movement in Sicily to become a US state...just after the war. Sicilians claimed that Sicily was not really a part of Italy. (Some Italians may agree!). It didn't come about.

[Rgroup]

The Japanese on Taiwan surrendered to Republic of China forces, not American forces.

Could you point to any articles in the Hague or Geneva Conventions, or in other "laws of war precedent" as recognized by the United States, or other leading world nations, regarding the significance of this??

My reading of the SFPT indicates that the term 'principal occupying Power' refers to American troops in Japan, not Taiwan.

The military occupation of metropolitan Japan ended on April 28, 1952.

In terms of other historical cessions, such as California (under the Mexican American Peace Treaty), Puerto Rico, Guam, Philippines, Cuba, (under the Spanish American Peace Treaty), etc. .... it your judgement, did the military occupation end with the coming into force of the peace treaty? or continue on to a later point in time?

The Cairo Declaration of 1943 pointed out that Taiwan was to be turned over to the Republic of China.

Would you consider the Cairo Declaration a binding legal document? Did the leaders of the US, UK, or France consider this a binding legal document?

[JamesL]

1. The significance of the surrender of Japanese troops to Republic of China forces on the island of Taiwan is that the US was not involved in the invasion, conquest or occupation of Taiwan. The US was not 'responsible' for Taiwan.

2. The US occupation of Japan ended in 1952. Until 1952 the US was the 'principle occupying Power' in Japan. I would not use the word 'metropolitan' because its definition is unclear.

3. The Cairo Declaration was a radio broadcast, similar to the Atlantic Charter. The Cairo Declaration was made by President Franklin Roosevelt, Prime Minister Winston Churchill and Gen. Chang Kai Shek (sp). France was not involved with the broadcast nor was Stalin and the USSR. I consider the agreement between the leaders of the countries involved valid.

4. Agreements between the US and other individual countries are to be reviewed independently. They really can't be lumped together.

[Rgroup]

1. The significance of the surrender of Japanese troops to Republic of China forces on the island of Taiwan is that the US was not involved in the invasion, conquest, or occupation of Taiwan. The US was not 'responsible' for Taiwan.

Dr. Lin maintains that the US was very much involved in the invasion and conquest of Taiwan, in fact all military attacks against (Japanese) Taiwan in the WWII period were conducted by US military forces. Hence, we would certainly expect the US to be the "principal occupying Power" of Taiwan.

Under such an arrangement, the Republic of China is merely a subordinate occupying power. The final responsibility for Taiwan rests with the US.

2. The US occupation of Japan ended in 1952. Until 1952 the US was the 'principal occupying Power' in Japan. I would not use the word 'metropolitan' because its definition is unclear.

Metropolitan -- (1) of, relating to, or constituting the home territory of an imperial or colonial state, (2) of, relating to, or characteristic of a major city or urbanized area.

3. The Cairo Declaration was a radio broadcast, similar to the Atlantic Charter. The Cairo Declaration was made by President Franklin Roosevelt, Prime Minister Winston Churchill and Gen. Chang Kai Shek (sp). France was not involved with the broadcast nor was Stalin and the USSR. I consider the agreement between the leaders of the countries involved valid.

It may be one thing to say that such agreement is valid (in some sense), but the real issue is whether it is binding or not under international law, and more specifically, whether it can be interpreted to supercede the peace treaty specifications. The peace treaty in question is the San Francisco Peace Treaty (SFPT) of 1952.

Moreover, in order to sort out all of these details, it is also very important to determine when Japan's sovereignty over Taiwan ended. Dr. Lin (and his legal counsel) would maintain that Japanese sovereignty over Taiwan only ended with the coming into force of the SFPT on April 28, 1952.

[JamesL]

A lot of our troops fought in France. France is not part of the USA.

I don't accept definition #1 in this case. The SFPT does not mention it with regards to Japan proper.

The Republic of China signed its own peace treaty with Japan, separate from the SFPT. By doing so the Republic of China acted as a sovereign independent country, not as a subordinate provincial government of the US or Great Britain.

The Cairo Declaration was made in 1943. It clearly shows the intent that the USA and Britain had no intention whatsoever of making Taiwan a colony or territory.

Under the US Constitution, which is superior to international law, the President of the US has the right to make certain agreements with foreign governments. Roosevelt and Churchill agreeing on certain matters was entirely within US law.