The Laws of War and the
Taiwan Status Question


Fundamental Analysis


PART 1

The "laws of war" are a part of international law recognized by all of the world's civilized nations. It is important to clarify that these are "the laws of war of the post-Napoleonic period."
          Article 38 of the statute of the International Court of Justice lists five sources of international law. They are: international conventions (treaties); international custom as evidence of a general practice accepted as law; general principles of law recognized by civilized nations; judicial decisions; and the teachings of the most highly qualified publicists.
          Also see International Law.

          The laws of war are considered jus cogens ("compelling law") and binding on all nations. The laws of war are derived from two principal sources:
          a. Lawmaking Treaties (or Conventions), such as the Hague and Geneva Conventions.
          b. Custom. Although some of the law of war has not been incorporated in any treaty or convention to which the United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.
          Lawmaking treaties may be compared with legislative enactments in the national law of the United States and the customary law of war with the unwritten Anglo-American common law.
          "International humanitarian law" (as the laws of war are sometimes called) is based on a large number of treaties, in particular the Hague and Geneva Conventions and various Additional Protocols. There is also a substantial body of customary law that is binding on all States and parties to a conflict.

A simple explanation of the laws of war can be made under the framework of the following three topics.
  1. Conquest of territory
  2. Military occupation
  3. Military government
This is explained as follows. We consider the situation where a foreign military force comes and makes conquest of a particular piece of territory.

Now being under the effective control of foreign armed forces, the territory is considered to be under military occupation.
See the Hague Convention of 1907, specifically within "Laws and Customs of War on Land" (Hague IV); Oct. 18, 1907: "Section III Military Authority over the territory of the hostile State." The first two articles of that section state:
Article 42. 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.

Article 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
In 1949 these laws governing belligerent occupation of an enemy state's territory were further extended by the adoption of the Fourth Geneva Convention (GCIV). Much of GCIV is relevant to protected persons in occupied territories and Section III: "Occupied territories" is a specific section covering the issue.

It must be further understood that "occupied territory" is under the jurisdiction of "military government."
"Military government" may be broadly characterized as the administration or supervision of occupied territory, or as the governmental form of such an administration. In other words, the form of administration by which an occupying power exercises government authority over occupied territory is called military government.
For occupied territory, four issues must be considered.
  1. When did the military occupation begin?
  2. Which country is "the occupying power"? This will be the conqueror.
  3. When did the peace treaty come into force?
  4. When did military government jurisdiction over the territory end? This date marks the end of the military occupation.

Using the analytical structure outlined above, it is possible to more fully understand the different stages of military occupation, and to unravel the significance of many seemingly confusing aspects of the peace treaty.

PART 2

As two simple examples, let's consider the situation of Puerto Rico and Cuba as a result of the Spanish – American War.

Puerto Rico

The most commonly quoted date for the surrender of Spanish troops in Puerto Rico is Aug. 12, 1898. This marks the beginning of the military occupation, and United States Military Government (USMG) jurisdiction over Puerto Rico is in effect. Our four questions are answered as follows:
  1. The military occupation began on Aug. 12, 1898.
  2. The United States of America is the conqueror. The United States of America is "the occupying power."
  3. The Spanish – American Peace Treaty came into force on April 11, 1899.
  4. According to the historical and legal record, USMG jurisdiction over Puerto Rico ended on May 1, 1900. On this date the Puerto Rico Civil Government officially began functioning. Puerto Rico was an overseas territory of the United States.

Cuba

The most commonly quoted date for the surrender of Spanish troops in Cuba is July 17, 1898. This marks the beginning of the military occupation, and United States Military Government (USMG) jurisdiction over Cuba is in effect. Our four questions are answered as follows:
  1. The military occupation began on July 17, 1898.
  2. The United States of America is the conqueror. The United States of America is "the occupying power."
  3. The Spanish – American Peace Treaty came into force on April 11, 1899.
  4. According to the historical and legal record, USMG jurisdiction over Cuba ended on May 20, 1902. On this date the Cuba Civil Government officially began functioning. The Republic of Cuba was recognized as an independent nation.

CONCLUSION TO PARTS 1 & 2

It is possible to use the structured analysis given above to dissect the details regarding the US conquered territory of California, Puerto Rico, Cuba, Guam, the Philippines, the Ryukyu islands, etc. and even Taiwan. However, before moving to a discussion of Taiwan, we should consider international law ramifications of the structured analysis presented up to this point.

1. As an often seen scenario, the surrender of local troops is a convenient point in time which may be used to mark the beginning of the military occupation. Various "statements of intent" made during the period of hostilities, and other "assurances" made at the surrender ceremonies, etc. do not change the fact that when territory comes under the effective control of foreign armed forces it is considered as occupied (i.e. "under military occupation"), and there is no legitimate claim to annexation.
Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded. (See FM 27-10, para. 355)
In relation to Taiwan, the "hostile invasion" was aerial bombardment by US military forces.

Unfortunately, many persons otherwise knowledgeable in international law have no knowledge of the laws of war, (and its subset "the laws of occupation") and hence only understand the concept of annexation. Typically, they casually assume that "having jurisdiction over territory" immediately equates of "possessing sovereignty."

Of particular note is that military occupation equals "effective territorial control" without the possession of sovereignty. Additionally, military occupation must adhere to the international rules of "usufruct."
Usufruct -- (1) the right to the use and enjoyment of another's property and its profits, (2) the right to use and enjoy the profits and advantages of something belonging to another as long as the property is not damaged or altered in any way.

REFERENCE: the Hague Regulations stipulate that "the occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."

Hence, the occupying power does not have the right of sale, unqualified use, or expropriation of such property. Moreover, as administrator or usufructuary the occuping power should not exercise his rights in such a wasteful and negligent manner as seriously to impair the property's value.

2. A firm tenet of international law in the post-Napoleonic period is "Military occupation does not transfer sovereignty." Territory placed under the authority of the foreign military forces is considered to be under "military occupation," not annexed.
Importantly, under the laws of war, legal relationships do not arise from a consideration of which army accepted the surrender of what other army, or which military troops were victorious in what particular battle, or what the composition of the Allies was at any particular point in time, or what intentions were stated in the surrender documents or other pre-surrender proclamations about the future disposition of territory, etc. Legal relationships arise from a consideration of "Who is the occupying power?" In the post-Napoleonic era, this goes back to a determination of "Who is the conqueror?" It should also be noted that the "formal surrender" of local troops is not a strict requirement for the beginning of military occupation.

3. Military occupation is characterized by saying that the territory has not yet reached a final (political) status. Hence, the status of occupied territory is undetermined.

To put this another way, it may be said that occupied territory is "in interim status under the law of occupation."

4. Since the political status of occupied territory is undetermined (or "unsettled"), the nationality of the native persons in occupied territory may not be changed simply at the will of the conqueror.

5. Specifications for the cession of territory are made in a treaty. The territorial cession comes into force when the treaty comes into force.

6. Military government continues until legally supplanted (by a recognized civil government for the territory). The (principal) occupying power should nurture a loyal group of local persons to form this civil government. As can be seen by examining the situations of the conquered territories of California, Guam, Puerto Rico, the Philippines, Cuba, the Ryukyu islands, etc., the formation of a local civil government enables the local populace to enjoy a high degree of "self-rule." This of course can include the selection of a local seal, flag, flower, bird, and other emblems, as well as the formation of a congress.

For a territorial cession in a peace treaty after war, the rule that "The military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted" is clearly shown by examining the above dates for the end of USMG in each area.

7. The clear precedent is for the end of USMG jurisdiction to be announced by the US Commander in Chief.
Such announcements were given in California, Guam, Puerto Rico, Philippines, Cuba, the Ryukyus,, etc.
8. In Ex Parte Milligan, 71 U.S. 2 (1866), the US Supreme Court held that under the Constitution there are three types of military jurisdiction: military law, martial law, and military government.
"The US Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments."
  -- excerpted from Military Government and Martial Law, by William E. Birkhimer.

9. An examination of the historical record shows that there are two alternatives for the final disposition of occupied territory: (1) The territory becomes an independent sovereign nation. (2) The territory becomes part of (or under the specific jurisdiction of) another independent sovereign nation.

10. Speaking of "governments in exile", there are no methods, actions, or procedures under international law which can enable a "government in exile" to become recognized as the legal government of its current locality of residence.

Part 3

Taiwan

  1. The military occupation began on Oct. 25, 1945. The claim by Chinese government officials that Taiwan was returned to "Chinese sovereignty" on this date is without any legal basis.
    2. Indeed there is no precedent in the post-Napoleonic world to say that the surrender of troops immediately results in a legal annexation of the local territory. (Such thinking belongs to the era before the 1758 publication of The Law of Nations by Emerich de Vattel.)
  2. The United States of America is the conqueror. The United States of America is "the occupying power."
    3. The decision by US General MacArthur to send Chiang Kai-shek of the"Chinese Nationalists"(ROC) to Taiwan to handle the Japanese surrender ceremonies and the ensuing military occupation, along with Chiang's acceptance of this arrangement, has created a "principal-agent relationship."
  3. The San Francisco Peace Treaty came into force on April 28, 1952.
    4. Japan relinquished its sovereignty over Taiwan in Article 2(b), however as a non-signatory country, the ROC is not entitled to any rights or benefits to Taiwan territory whatsoever. Accordingly, it is impossible to understand the de-jure content of the SFPT, and the de-facto situation of day-to-day"governance" in Taiwan, without recognition of the "principal-agent relationship"between the United States' military authorities and the ROC. At the same time it must also be pointed out that the United States has been extremely negligent in its "management" or "overseeing" of the ROC's governance of Taiwan since 1945.
    As an additional point of note, as a non- signatory country, with the coming into force of the SFPT in late April 1952, the ROC has lost its qualification to be considered a member of the Allies.
  4. In General Order No. 1 of Sept. 2, 1945, Chiang Kai-shek of the"Chinese Nationalists" (ROC) were directed to go to Taiwan to accept the surrender of Japanese troops. Since there was no functioning Chinese navy in those years, United States' ships and airplanes began transporting the Chinese military personnel to Taiwan in mid-October 1945. As explained above, the Chinese Nationalists are acting as "agents" for USMG in conducting the military occupation of Taiwan.
    5. As spoken of in the laws of war, the Chinese Nationalists cannot be interpreted to be "the occupying power" of Taiwan for the simple reason that all military attacks against Taiwan in the WWII period were conducted by US military forces. The conqueror is "the occupying power," and that is the United States of America. The ROC is merely serving as "agent."
    Article 23(a) of the SFPT confirms that the United States of America is "the principal occupying power." As a definition, it may be said that the principal occupying power exercises military government jurisdiction over territory acquired under the principle of conquest.

Overall Summary

Taiwan territory remained under Japanese sovereignty until the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952. Hence, when the ROC central government moved to Taiwan effective Dec. 10, 1949, it immediately became a government in exile.
The realization of this fact is fundamental to understanding the legal position of the ROC in Taiwan, and the reality of the "One China Policy." As of late 1949, and indeed with the coming into force of the SFPT in 1952, the ROC can no longer claim to be a legitimate government for either Taiwan or for mainland China.
In the SFPT of April 28, 1952, Japan renounced all rights over Taiwan, but no "receiving country" was specified. However, Article 4(b) did confirm that Taiwan, the Ryukyu island group, and some additional territories were under the jurisdiction of the United States Military Government (USMG).
An understanding of the laws of war, including basic legal concepts and established precedent concerning the conquest of territory, military occupation, and military government are necessary to appreciate the significance of Article 4(b).
An examination of all Presidential pronouncements from late April 1952 to the present reveals that President Nixon announced the end of USMG jurisdiction over the Ryukyu island group effective May 15, 1972. However, there has been no statement regarding the end of USMG jurisdiction over Taiwan.

In this regard, our only possible conclusion is that USMG jurisdiction over Taiwan is still active in the present day, and therefore Taiwan remains as occupied territory of the United States of America.
(However, the US military authorities have failed to nurture any local Taiwanese groups to become the "Taiwan Civil Government."Instead, they have allowed the ROC government in exile to continue the administration of Taiwan, thus seriously impeding the advancement of the human rights of the native Taiwanese people.)

Indeed, US Executive Branch officials often say that the status of Taiwan is "unsettled" or "undetermined."