FROM 1895 TO THE PRESENT
- Treaty of Shimonoseki, May 8, 1895
Comments: According to Article 5 of the treaty, there was a two year grace period, where those persons preferring to retain the nationality of Qing China could remove themselves and their possessions to mainland China.
After the cession of Taiwan to Japan in this treaty, the local inhabitants of Taiwan were regarded as having Japanese nationality, according to the laws regarding the administration of overseas territories by the Imperial Japanese government.
The validity of the cession of Taiwan by Qing China was fully recognized in the 1922 Washington Naval Treaty, where "Formosa and the Pescadores" were classified as an insular area of Japan.
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Note: It is incorrect to refer to the period of Japanese rule of Taiwan as "the Japanese occupation." This period was not military occupation, but rather was a transfer of Taiwan’s territorial sovereignty to Japan. Terminology such as "Japanese colonial period" may be more appropriate.
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- Promulgation of ROC Nationality Law, Feb. 5, 1929
Comments: The promulgation of this law had no effect on the native Taiwanese people, for the simple reason that in that era, Taiwan was still an overseas territory of Japan.
- United States entry into WWII in the Pacific, Dec. 8, 1941
Comments: The US Congress declared war against the Empire of Japan following the surprise attack against Pearl Harbor, Hawaii.
During the course of the Pacific war, the historical record shows that all military attacks against (Japanese) Formosa and the Pescadores, were conducted by United States military forces. The Republic of China military forces did not participate.
- Japanese Surrender Ceremonies in Tokyo Bay, Sept. 2, 1945
- General Order No. 1, Sept. 2, 1945
Comments: In this General Order, General Douglas MacArthur directed Japanese troops in Taiwan to surrender to Chiang Kai-shek.
- Japanese Surrender Ceremonies in Taiwan, Oct. 25, 1945
Comments: ROC military officers announced "Taiwan Retrocession Day," i.e. proclaiming that Taiwan was being annexed by the Republic of China.
Under international law, such an announcement is totally illegal.
In truth, beginning on this date, the ROC is merely exercising "delegated administrative authority" for the military occupation of Taiwan. According to the customary laws of warfare, the legal occupier is the conqueror, and that is the United States of America.
- ROC Military Order of Jan. 12, 1946
Comments: On this date, ROC military officers announced that all native Taiwanese were mass naturalized as "ROC citizens," retroactive to Oct. 25, 1945.
Under international law, such an action is totally illegal. In fact, Taiwan was still part of Japan's national territory until April 28, 1952, when Japan gave up all right, claim, and title.
It is also important to note that this Jan 12, 1946, order was never ratified by the ROC’s Legislative Yuan, nor made into a law. Additionally, in violation of standard international practice, there was no grace period.
- ROC Constitution comes into force, December 25, 1947
Comments: This constitution was brought over from Mainland China by the KMT during the Chinese Civil War period of the late 1940's. During this period of time, Taiwan was under military occupation, and had not been incorporated into Chinese territory. As such, under international law, it is very questionable to regard this ROC Constitution (often called the "Nanjing Constitution") as the true organic law of the Taiwan cession.
- Martial law announced in Taiwan, May 20, 1949
Comments: For the inhabitants of Taiwan, travel outside of Taiwan area was now severely restricted.
- Institution of Mandatory Military Conscription in Taiwan, 1949
Comments: In recent years, a number of citizen rights groups in Taiwan have asked officials of the ROC, ministry of National defense for specific details regarding the legal basis for manditory military conscription in the Taiwan area, and to our knowledge, no definitive replies have ever been forthcoming. In the view of the US Supreme Court, (Selective Draft Law Cases, 1918), military conscription is one of the attributes of a national government. As the ROC does not exercise sovereignty over Taiwan, its qualification as a "national goverment" is extremely questionable.
- ROC Central Government moves to Taiwan, Dec. 10, 1949
Comments: The announcement of "Taiwan Retrocession Day" on Oct. 25, 1945, was not considered valid by the Allies. Under international law, Taiwan remained a part of Japan's national territory until the coming into force of the San Francisco Peace Treaty on April 28, 1952. Hence, by moving to Taiwan in Dec. 1949, the ROC Central Government was moving outside of China’s national territory, and immediately became a government in exile.
- San Francisco Peace Treaty of April 28, 1952
Comments: In this treaty, Japan renounced all right, title and claim to Formosa and the Pescadores (aka "Taiwan"). However, no "receiving country" was designated. To cede territory in this manner may be called a "limbo cession."
In other words, the territorial sovereignty of Taiwan was not awarded to the ROC, see Articles 2(b) and 21.
In recognition of the United States' role as the conqueror of Taiwan, the Ryukyus, etc., the United States of America is confirmed as "the principal occupying power" in Article 23(a). Additionally, Article 4(b) confirms that these areas are under the jurisdiction of the military arm of the US government. This is a US federal agency called the "United States Military Government (USMG)."
- The Sino-Japanese Peace Treaty of Aug. 5, 1952
Comments: Article 10 confuses many researchers. It states:
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For the purposes of the present Treaty, nationals of the Republic of China, shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendents who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores); and juridical persons of the Republic of China shall be deemed to include all those registered under the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores).
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Ng Yuzin Chiautong, Chairman, World United Formosans for Independence (WUFI), researched the records of the Japanese National Diet for the period when the "Sino-Japanese Peace Treaty" was being reviewed. Writing in the 2nd edition (1972) of his book Historical and Legal Aspects of the International Status of Taiwan (Formosa) maintained that Article 10 is not an affirmative definition of the Chinese nationality of the Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese as ROC nationals, because otherwise they would be considered stateless and be ineligible for documentation to enable them to travel to Japan. He further points out that the Treaty of Taipei does not call the Taiwanese "Chinese nationals" but instead employs the term "residents".
Moreover, Japan formally surrendered its claim to sovereignty over Taiwan on April 28, 1952, thus calling into serious doubt the authority of Japan to formally make such an assignment regarding the status of Taiwan over three months later on August 5, 1952.
- Mutual Defense Treaty of March 3, 1955
Comments: In conjunction with the review of the 1955 Mutual Defense Treaty, the US Senate's Committee on Foreign Relations issued a report on Feb. 8, 1955 which discussed the international legal status of Formosa and the Pescadores. That report included the following statement:
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It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies.
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- Sheng v. Rogers, D.C. Circuit, Oct. 6, 1959
Comments: The judges examined the legal status of Taiwan in detail, and held:
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. . . that the Government of the Republic of China exercises authority over the island; that the sovereignty of Formosa has not been transferred to China; and that Formosa is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into. Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China.
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- Czyzak Memorandum, US Dept. of State, Feb. 3, 1961
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The most tenable theory regarding the status of Formosa and the Pescadores is that sovereignty over the islands has not yet been finally determined.
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- Starr Memorandum, US Dept. of State, July 13, 1971
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The position of the United States was set forth by the State Department in connection with the 1970 Hearings before the Subcommittee on United States Security Agreements and Commitments Abroad of the Senate Committee on Foreign Relations (91st Cong., 2d Sess.):
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Legal Status of Taiwan as Defined in Japanese Peace Treaty and Sino - Japanese Peace Treaty
"Article 2 of the Japanese Peace treaty, signed on September 8, 1951 at San Francisco, provides that 'Japan renounces all right, title and claim to Formosa and the Pescadores.' The same language was used in Article 2 of the Treaty of Peace between China and Japan signed on April 28, 1952. In neither treaty did Japan cede this area to any particular entity. As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution . . . . "
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- "One China Policy" of the United States, Feb. 27, 1972
The final text in the [First] Commmunique turned out to be, "the U.S. declared: the United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position." In other words, the Nixon Administration only took notice of what "the Chinese on either side of the Taiwan Strait" claimed.
The statement "the United States Government does not challenge that position," meant that the U.S. government did not deny that "all Chinese on either side of the Taiwan Strait" assert the same thing, namely that there is only one China. It does not mean that the U.S. government agreed with the position taken by the Chinese on both sides of the Taiwan Strait. Although such interpretation is not apparent in the statement itself, it was also confirmed in the second Joint Communique issued by U.S. President Carter . . . .
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- Taiwan Relations Act, 1979
Comments: After the United States Commander in Chief broke dipomatic relations with the Republic of China on Taiwan effective January 1, 1979, the US Congress passed the Taiwan Relations Act. The TRA has many provisions, and among the most important are the clauses which assert the following: (1) the terminology of "Republic of China" is not recognized after January 1, 1979,
(2) the geographic boundaries of "Taiwan" only include the islands of Taiwan and the Pescadores,
(3) "The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States."
- Issuance of ROC Passports relaxed, 1979
Comments: Holders of ROC passports may now go overseas for the purpose of tourism
- Usage of the title "Chinese Taipei" in International Organizations, November 1979
Comments: After the People's Republic of China (PRC) took over the seat of Republic of China (ROC) in the United Nations in 1971, more and more countries changed their diplomatic relations from the ROC in Taiwan to the PRC in Beijing. ROC officials found that in order to participate in some international forums it would have to make various concessions regarding its membership name/title.
The International Olympic Committee (IOC) was the first major international organization to use the title of "Chinese Taipei" for Taiwan. In negotiating with the IOC, ROC officials stressed that (1) China is a divided nation, both parts of divided China are Chinese territories, (2) the people in one part of divided China are no less Chinese than those in the other. (3) the people of the ROC in Taiwan are Chinese and not "Taiwanese," so the word Taiwan is not appropriate.
In fact, none of these assertions correspond with the historical or legal record. The true meaning of "Chinese Taipei" is more properly interpreted as "Chinese government in exile in Taipei."
- Tokyo High Court decision, June 12, 1980
Comments: At the latest, upon the coming into force of the Treaty of Peace between Japan and the Republic of China (August 5, 1952), the native inhabitants of Taiwan lost their Japanese nationality.
- Lifting of Martial Law in Taiwan, July 14, 1987
Comments: Enforcement of martial law had been gradually relaxed after the death of Chiang Kai-shek on April 5, 1975.
- Revision of the ROC Nationality Law, Feb. 2000 (and in 2001 and 2006)
Comments: Notably, in the revisions of 2000 and later years, there have been no articles addressing the mass naturalization of Taiwanese persons as ROC citizens in 1946. Hence, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan . . . " have yet to be fulfilled.
- CRS Report to Congress, July 2007
Comments: Reference is made to China/Taiwan: Evolution of the "One China" Policy, released July 9, 2007.
In the Summary at the beginning of that report the following points were made --
(1) The United States did not explicitly state the sovereign status of Taiwan in the three US-PRC Joint Communiques of 1972, 1979, and 1982.
(2) The United States "acknowledged" the "One China" position of both sides of the Taiwan Strait.
(3) US policy has not recognized the PRC's sovereignty over Taiwan;
(4) US policy has not recognized Taiwan as a sovereign country; and
(5) US policy has considered Taiwan's status as undetermined.
- Statement by Dennis Wilder, US National Security Council Senior Director for Asian Affairs, Aug. 30, 2007
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Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years.
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- Roger Lin et al. v. United States of America [First Lawsuit]
filed late Oct, 2006
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(March 18, 2008 District Court Decision) [The Native Taiwanese] Plaintiffs have essentially been persons without a state for almost 60 years. The last completely clear statement of authority over Taiwan came from General MacArthur in 1945. One can understand and sympathize with Plaintiffs' desire to regularize their position in the world.
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(April 7, 2009 Court of Appeals Decision ) America and China's tumultuous relationship over the past sixty years has trapped the inhabitants of Taiwan in political purgatory. During this time the people on Taiwan have lived without any uniformly recognized government. In practical terms, this means they have uncertain status in the world community which infects the population's day-to-day lives. This pervasive ambiguity has driven Appellants to try to concretely define their national identity and personal rights.
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- Roger Lin et al. v. United States of America [Second Lawsuit]
filed late Feb. 2015
Developments in this new lawsuit are pending.
CONCLUSIONS
The Recognition of Native Taiwanese People as "ROC Citizens" is in Error
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1. For native Taiwanese persons to be bona fide ROC citizens, two conditions would need to be met. First, the SFPT would have to award the territorial sovereignty of Taiwan to the ROC and second, there would have to be a law passed regarding these mass-naturalization procedures, after the peace treaty came into effect on April 28, 1952. In fact, neither of these two conditions has been met.
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2. Notably, Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.
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3. Moreover, international law specifies that "military occupation does not transfer sovereignty." The proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, thus indicating a clear intention and objective to annex Taiwan territory, is a serious violation of the laws of war recognized by the United States.
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4. The mass naturalization of native Taiwanese inhabitants as ROC citizens in Jan. 1946, and the imposition of mandatory military conscription over the native Taiwanese inhabitants by the ROC regime in 1949 are further serious violations of the laws of war as recognized by the United States.
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5. For definitive commentary on the laws of war, please refer to US Army Field Manual FM 27-10 The Laws of Land Warfare.
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Historical Comparisons
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6. The situation of Cuba after the Spanish American War is in many respects very similar to that of Taiwan. Direct comparisons may be made between the treaty specifications regarding the disposition of Cuba under the terms of the Treaty of Paris (April 11, 1899), and Taiwan under the San Francisco Peace Treaty (April 28, 1952). See Chart.
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7. It may be argued that US Insular law principles apply to Cuba, from April 11, 1899 to May 20, 1902, and Taiwan, from April 28, 1952 to today, because they are both "inside" the principle of cession by conquest which was confirmed by cession by treaty.
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8. Although Cuba territory was certainly foreign during this period, in DeLima v. Bidwell 182 U.S. 1 (1901), the US Supreme Court held that "Cuba is under the dominion of the United States."
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9. The concept of "dominion" was discussed in United States v. State of California, 332 U.S. 19 (1947). The judges held that:
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To speak of 'dominion' carries precisely those overtones in the law which relate to property and not to political authority. Dominion, from the Roman concept dominium, was concerned with property and ownership, [332 U.S. 19 , 44] as against imperium, which related to political sovereignty . . . . .
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United States Conquest of Taiwan
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10. As stated above, during the course of the Pacific war, all military attacks against (Japanese) Formosa and the Pescadores were conducted by United States military forces. Therefore, in regard to making a legal determination of the correct nationality of native Taiwanese people, some insight is gained from Boyd v. State of Nebraska ex rel. Thayer, 143 U.S. 135 (1892) where the judges held that:
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Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal, or otherwise, as may be provided. [143 U.S. 135, 163]
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11. The judges in the case of Roger Lin et al. v. United States of America did not agree that the native Taiwanese people should be classified as "US national non-citizens." However, at the minimum, the native Taiwanese people strongly desire to have travel documents issued by a sovereign state. This would be an acceptable compromise to fulfilling the requirements of Article 15 of the Universal Declaration of Human Rights, which says that everyone has the right to a nationality.
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FURTHER REFERENCE
Many people now assert that native Taiwanese people who want to travel internationally should be able to apply for
travel documents issued by a sovereign state. This is certainly worthy of further study.
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