1. In General Order No. 1, General Douglas MacArthur gave directions to Chiang Kai-shek of the Republic of China to accept the surrender of Japanese troops in Taiwan. The Generalissimo accepted these orders. This has created a "principal - agent relationship."
   
   The surrender ceremonies mark the beginning of the belligerent occupation. The United States is the "conqueror" and therefore will be the occupying power, as spoken of in the laws of war. The Republic of China military forces are merely exercising delegated administrative authority for the military occupation of Taiwan.
   
   

   Notes: Under the customary laws of warfare, 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?"
   
   In fact, the terminology of the occupying power is used with only some minor variations in all relevant conventions and treaties which dictate international norms regarding the disposition of persons and property in areas under military occupation. For example, while Geneva Conventions generally refer to the occupying power, the Hague Conventions often speak of the occupying state.
   
   However, it is important to realize that in dealing with military occupation matters, the "law of agency" is always available. When the administrative authority for the military occupation of particular areas is delegated to allies, the terminology of the principal occupying power is most commonly seen, and a "principal - agent" relationship is in effect.



2. Although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the "legal basis" of native Taiwanese persons as having ROC nationality is a January 12, 1946, order issued by the ROC military authorities. However, that order was never ratified by the Legislative Yuan, nor made into a law.
   
   Importantly, as the military occupation of Taiwan began on Oct. 25, 1945, with the surrender of Japanese troops, such an order is prohibited. More specifically, the imposition of mass-naturalization procedures over the civilian population in occupied Taiwan territory is a war crime.
   
   Reference to the pronouncements of the US government, the British government, etc. in the late 1940's (and even into the 1950's) confirms that the leading Allied nations never recognized the legal validity of the mass naturalization of native Taiwanese persons as "ROC citizens" by the Chiang Kai-shek regime in the 1940's.



3. Article 26 of the SFPT serves to authorize the drafting of a peace treaty between the ROC and Japan. Article 10 of the Sino-Japanese Peace Treaty (Treaty of Taipei) of August 5, 1952 specifies:

   "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) . . . . "

   
   
4. The ROC Nationality Law was originally promulgated in February 1929, when Taiwan was a part of Japan. It was revised in February 2000, however there were no Articles addressing the mass naturalization of Taiwanese persons as ROC citizens. 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.



5. Further research on Article 10 of the Treaty of Taipei shows that

   The specifications of Article 10 of the 1952 Sino-Japanese Peace Treaty (Treaty of Taipei) are not an affirmative definition of ROC nationality for native Taiwanese people, but merely an agreement reached for the sake of convenience on the treatment of the Taiwanese by the Japanese government . . . .   More . . .



6. Japanese Courts have held that the native persons of "Formosa and the Pescadores" were of Japanese nationality until 1952. In the SFPT, Japan renounced the sovereignty of Taiwan, but the ROC was not the recipient of this sovereignty. This is stated in Article 2(b) and confirmed in Article 21. Hence, according to the provisions of the SFPT, the Republic of China is not the legal government of Taiwan.



7. For native Taiwanese persons to be bona fide ROC citizens, two conditions would need to be met. First, the SFPT would have to award 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.



8. The "Republic of China" Constitution currently in use in Taiwan was passed on Dec. 25, 1946, when the Chinese Nationalist Party (KMT) still ruled China. It was promulgated on January 1, 1947, and came into force on December 25, 1947. It 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, this ROC Constitution, which is often called the "Nanjing Constitution", is not the true organic law of the Taiwan cession, and all relevant articles regarding "the people of the ROC" cannot be interpreted to apply to Taiwanese persons.



9. With no clear legal basis to include "Formosa and the Pescadores" (aka Taiwan) in its definition of "national territory," and no international treaty references which can be found, it is extremely questionable to say that the ROC Ministry of the Interior is the "competent authority" to issue ID cards to Taiwanese persons, or that the ROC Ministry of Foreign Affairs is the "competent authority" to issue passports to Taiwanese persons.



10. In fact, under the specifications of the San Francisco Peace Treaty, in Taiwan there is no legal justification for the existence of a legal structure based on the Republic of China Constitution. Nor is there any legal justification for the operation of a Republic of China government.



11. To date, no record can be found of a formal announcement of the end of United States Military Government jurisdiction in Taiwan.

    While the beginning of military government jurisdiction requires no formal declaration, the end of such jurisdiction does require a formal announcement by the US Commander in Chief. Such an announcement necessarily follows from the fact that military government must be supplanted by a recognized "civil government" for the territory. US Presidential proclamations regarding the end of USMG jurisdiction over previously occupied areas were given on the following dates -- Puerto Rico: May 1, 1900; Philippines: July 4, 1901; Guam: July 1, 1950; Cuba: May 20, 1902. In addition, the SFPT Article 3 territories (Ryukyu Islands) were also under USMG jurisdiction, which was terminated on May 15, 1972, by formal announcement of the US President. Significantly, numerous court cases have recognized the fiduciary duty of USMG over territories under its jurisdiction.



12. Under such circumstances, and in consideration that Taiwan does not belong to the Republic of China, is fully reasonable under the terms of the SFPT to demand that "Certificates of Identity" be issued as travel documents for the native people of Taiwan, based on the precedent established during USMG administration of the Ryukyu islands after WWII.

Reference Points: 1. The Treaty of Taipei was abrogated by the Government of Japan on Sept. 29, 1972, upon the establishment of diplomatic relations with the People's Republic of China.

2. From the vantage point of the early 1950's, the population of Taiwan can be separated into two major groups, which of course will include their descendants up to the present day. The first group is the native Taiwanese who had, by 1945, been in Taiwan eighteen generations or more. The second group is the ROC Chinese who came in mid-October 1945 (brought by US ships and aircraft) and continued in a slow but steady immigrant stream through early 1949, whereupon their numbers increased significantly as the communists gained successive victories over KMT forces in Mainland China, and expanded into a flood of immigrants in late 1949 and 1950. This second group, who may be called the ROC exiles, and including their descendants up to the present day, are of course fully qualified to carry ROC identification documents and passports. Also see explanation at Native Taiwanese and ROC Exiles.

3. Former US Secretary of State Powell has a military background, and is familiar with the laws of war. On Oct. 25, 2004, in a press conference in Beijing, he stated: "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."