Taiwan's Status: A Overview of the SFPT

version   1.00       Oct. 16, 2013

Article VI of the US Constitution provides that: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . . . "


Part 1: Important Articles and Annotations



San Francisco Peace Treaty                                                   April 28, 1952

Article 2

(a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.

(b) Japan renounces all right, title and claim to Formosa and the Pescadores.

(c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of 5 September 1905.

(d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and accepts the action of the United Nations Security Council of 2 April 1947, extending the trusteeship system to the Pacific Islands formerly under mandate to Japan.

(e) Japan renounces all claim to any right or title to or interest in connection with any part of the Antarctic area, whether deriving from the activities of Japanese nationals or otherwise.

(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.

 

ANNOTATIONS

In this Article, Japan renounced all rights over Taiwan, but no "receiving country" was designated. Unquestionably, Taiwan was not given to "China." However, the question arises: "Which country's legal experts have the right to explain the meaning?" China, Japan, England, France, Russia, or Australia perhaps?

In fact, as the conqueror, the United States of America has military jurisdiction over the territory, and therefore has the authority to decide how this Article will be interpreted and implemented.

Notably, the US Dept. of State made a clear statement in the 1961 Czyzak Memorandum and the 1971 Starr Memorandum, quoting from the Senate Committee on Foreign Relations Report on the Treaty, dated Feb. 14, 1952:
It is important to remember that Article 2 is a renunciatory article and makes no provision for the power or powers which are to succeed Japan in the possession of and sovereignty over the ceded territory.


For reference, also see definition of cede.

Note: In recognition of the United States' role as the conqueror of Taiwan, Article 4(b) has confirmed that Taiwan is under the jurisdiction of the military arm of the US government.





Article 3

Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto south of 29deg. north latitude (including the Ryukyu Islands and the Daito Islands), Nanpo Shoto south of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.

 

 

ANNOTATIONS

According to Article 4(b), the Article 3 territory which we may collectively call the "Ryukyu island group" and the Article 2(b) territory of "Formosa and the Pescadores" (aka "Taiwan") are both under the jurisdiction of the United States Military Government (USMG).

Article 3 territory is to be administered as a United Nations trusteeship under the jurisdiction of USMG.

Taiwan is simply a quasi-trusteeship under USMG.




Article 4

(a) Subject to the provisions of paragraph (b) of this Article, the disposition of property of Japan and of its nationals in the areas referred to in Article 2, and their claims, including debts, against the authorities presently administering such areas and the residents (including juridical persons) thereof, and the disposition in Japan of property of such authorities and residents, and of claims, including debts, of such authorities and residents against Japan and its nationals, shall be the subject of special arrangements between Japan and such authorities. The property of any of the Allied Powers or its nationals in the areas referred to in Article 2 shall, insofar as this has not already been done, be returned by the administering authority in the condition in which it now exists. (The term nationals whenever used in the present Treaty includes juridical persons.)

(b) Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.

(c) Japanese owned submarine cables connection Japan with territory removed from Japanese control pursuant to the present Treaty shall be equally divided, Japan retaining the Japanese terminal and adjoining half of the cable, and the detached territory the remainder of the cable and connecting terminal facilities.

 

 

ANNOTATIONS

Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. In other words, military government is the government of occupied territory, and therefore it can be quickly seen that the Article 2(b) territory of Taiwan is occupied territory.

According to international law, Oct. 25, 1945 is the beginning of the military occupation of Taiwan, and certainly not "Taiwan Retrocession Day." A firm tenet of international law states that "Military occupation does not transfer sovereignty."

Due to an unfamiliarity with the laws of war, many researchers who read the SFPT completely fail to recognize an important point: After war, for territory separated from the "mother country" via the specifications of a peace treaty, 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 (by a recognized civil government).

The territories as specified in Articles 2 and 3 of the treaty have been separated from the "motherland" of Japan, therefore we must recognize that the military governments exercising jurisdiction over these areas do not end with the coming into force of the peace treaty. Such a legal framework has been confirmed by numerous rulings of the US Supreme Court, as well as by examination of the precedent established in dealing with the territories acquired in the Mexican - American War and the Spanish - American War.

For a detailed chart which explains this principle, along with authoritative commentary, please see Areas Conquered by US military forces and therefore under USMG jurisdiction, with later "new disposition" by peace treaty.

Article 4(b) should be read in conjunction with Article 23(a).

Article 23(a) confirms that the United States of America in the principal occupying power of all territories under the geographic scope of the treaty. In consideration of this along with the specifications of Article 4(b), it is clear that the United States Military Government (USMG) has jurisdiction over all the territories in Articles 2 and 3.

For reference, also see definition of property.

The question may be asked: What does USMG's jurisdiction include? To answer this question, we can refer to the United States' administration of the Ryukyu island group beginning in 1945, and thereby gain a full understanding. Of course, one important aspect of this jurisdiction was that the US military authorities issued "Certificates of Identity" as travel documents for the native people of the Ryukyu islands.

Therefore it is fully reasonable under the terms of the SFPT to demand that such "Certificates of Identity" be issued as travel documents for the native people of Taiwan.





Article 6

(a) All occupation forces of the Allied Powers shall be withdrawn from Japan as soon as possible after the coming into force of the present Treaty, and in any case not later than 90 days thereafter. Nothing in this provision shall, however, prevent the stationing or retention of foreign armed forces in Japanese territory under or in consequence of any bilateral or multilateral agreements which have been or may be made between one or more of the Allied Powers, on the one hand, and Japan on the other.

(b) The provisions of Article 9 of the Potsdam Proclamation of 26 July 1945, dealing with the return of Japanese military forces to their homes, to the extent not already completed, will be carried out.

(c) All Japanese property for which compensation has not already been paid, which was supplied for the use of the occupation forces and which remains in the possession of those forces at the time of the coming into force of the present Treaty, shall be returned to the Japanese Government within the same 90 days unless other arrangements are made by mutual agreement.

 

 

ANNOTATIONS

In order to deny that Taiwan is under military occupation, many people make reference to Article 6(a) of the treaty.

However, with the coming into force of the SFPT on April 28, 1952, Taiwan immediately became separated from Japan. Hence, Article 6(a) has no relationship to Taiwan territory whatsoever.

 





Article 21

Notwithstanding the provisions of Article 25 of the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a)2; and Korea to the benefits of Articles 2, 4, 9 and 12 of the present Treaty.

 

 

 

ANNOTATIONS

The Republic of China was not a signatory to the SFPT, and therefore cannot claim any rights, benefits, interest, etc. from the treaty (unless specifically stated therein). Hence, under the terms of Article 2(b) it is clear that Japan has renounced all rights over Taiwan, but no "receiving country" was specified. However, Article 21 specifies the benefits that China is to receive from the treaty, which are primarily in regard to the geographic delineation of certain territory in mainland China, and war reparations. Significantly, Article 21 makes no mention of Taiwan.

Hence, it is important to read Articles 2(b) and 21 together, in order to understand the full import of the treaty's specifications, and to clearly understand that Taiwan was not awarded to China (either the PRC or the ROC).

It is also important to recognize that as non-signatories to the SFPT, neither the ROC nor the PRC are included in the meaning of the term "Allied Powers." Such a determination arises directly from SFPT Article 25.





Article 23

(a) The present Treaty shall be ratified by the States which sign it, including Japan, and will come into force for all the States which have then ratified it, when instruments of ratification have been deposited by Japan and by a majority, including the United States of America as the principal occupying Power, of the following States, namely Australia, Canada, Ceylon, France, Indonesia, the Kingdom of the Netherlands, New Zealand, Pakistan, the Republic of the Philippines, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. The present Treaty shall come into force of each State which subsequently ratifies it, on the date of the deposit of its instrument of ratification.

(b) If the Treaty has not come into force within nine months after the date of the deposit of Japan's ratification, any State which has ratified it may bring the Treaty into force between itself and Japan by a notification to that effect given to the Governments of Japan and the United States of America not later than three years after the date of deposit of Japan's ratification.

 

 

ANNOTATIONS

The territories as specified in Articles 2 and 3 of the treaty have been separated from the "motherland" of Japan, therefore as explained in the ANNOTATIONS to Article 4(b) above, the military governments exercising jurisdiction over these areas do not end with the coming into force of the peace treaty.

More detailed explanations regarding this principle can be found in specific US Supreme Court cases, beginning with Cross v. Harrison, 57 U.S. 164 (1853), and with reaffirmation in Dooley v. U.S., 182 U.S. 222 (1901), Santaigo v. Nogueras, 214 U.S. 260 (1909) , etc.

For full details see Territorial Cession after War and the End of Military Government.

The above concepts regarding "conquest," "military government," "military occupation," etc. form an important part of the laws of occupation, which are included in the internationally recognized laws of war.

Anyone familiar with these legal concepts will recognize that the SFPT must designate "the (principal) occupying power" in order to ascertain which country bears the final responsibility for the military occupation of the areas specified in Articles 2 and 3.

Additionally, the significance of the term "the principal occupying power" clearly indicates that the military troops of other countries may be directed to undertake the military occupation of particular areas, thus forming a "principal - agent relationship."

Taiwan is conquered territory of the United States of America, and in General Order No. 1 of Sept. 2, 1945, (Supreme Commander) General Douglas MacArthur directed the military troops of Chiang Kai-shek to come to Taiwan to handle the surrender ceremonies and subsequent administration, (which under international law can only be viewed as "military occupation.")   A comparison may be made by saying that in the military occupation of Taiwan, the USA is the "Chairman of the Board," and the ROC (originally led by Chiang Kai-shek) is the "General Manager."

It is also important to note that Taiwan was sovereign Japanese territory before the coming into force of the SFPT on April 28, 1952. Hence, when the Republic of China moved its central government to occupied Taiwan in early December 1949, it immediately became a government in exile.





Article 25

For the purposes of the present Treaty the Allied Powers shall be the States at war with Japan, or any State which previously formed a part of the territory of a State named in Article 23, provided that in each case the State concerned has signed and ratified the Treaty. Subject to the provisions of Article 21, the present Treaty shall not confer any rights, titles or benefits on any State which is not an Allied Power as herein defined; nor shall any right, title or interest of Japan be deemed to be diminished or prejudiced by any provision of the Treaty in favour of a State which is not an Allied Power as so defined.



 

ANNOTATIONS

As non-signatories to the SFPT, neither the ROC nor the PRC are included in the meaning of the term "Allied Powers."

 




Notes

Part 1

The Chinese often claim that Taiwan was defacto and dejure returned to China on the Oct. 25, 1945, date of the Japanese surrender ceremonies. The Chinese then often follow this up by saying: "We did not sign the SFPT, so the provisions of that treaty can have no influence or effect on our claims of ownership of Taiwan." However, such assertions are without any effect under international law.

It must be realized that the surrender ceremonies only marked the beginning of the military occupation, and Taiwan was a sovereign territory of Japan, from 1895 up until April 28, 1952. In other words, before this date in late April 1952, there had been no change in the sovereign status of Taiwan. China was not a signatory to the SFPT, so from reading Articles 2 and 21, it is very clear that China has no qualifications to make any claims regarding the ownership (i.e. "possession of any sovereign rights") over Taiwan territory.

In the present day, it is also interesting to note that if we travel to China, in all of the cities along the coast, we can visit many seafood restaurants. A lot of the seafood is imported from Alaska, and the importation documents clearly indicate the source of the seafood as "Alaska, USA." This is because Alaska belongs to the USA.

We can also make a comparison with the situation of Alaska, and we find that in regard to the 1867 Alaska Cession Treaty, negotiated between Russia and the United States, China was not a signatory. Yet, can anyone make the claim that the coming into force of this treaty had no affect on China at all?   In fact, this treaty has already become a part of international law, so all states in the world have to recognize its provisions.

Therefore it seems we are forced to come to the conclusion that the international order in the world today is not going to be "changed" or "reversed" when we look back and see that one country didn't sign a particular treaty. This is especially true when the country in question was neither involved in the "historical events" leading up to the treaty, nor part of the negotiations involved in the drafting of the treaty.

As an additional example of this, we know that Puerto Rico saw much military conflict during the Spanish American War. In the Spanish American Peace Treaty ending the war, which came into force on April 11, 1899, Puerto Rico was ceded to the United States. China was not a signatory to the Spanish American Peace Treaty, and therefore many people may want to ask if China still considers Puerto Rico a part of sovereign Spanish territory in the current era? But from all that we see, hear, and read, in the current era China very much recognizes that the ownership of Puerto Rico resides with the United States. In summary, a proclamation that "We did not sign it, so the provisions of that treaty can have no influence or effect on us" seems to be a very difficult proposition to support.

It is also worthy of observation that the "Treaty of Taipei," which the Chinese do claim to recognize, is in fact just a subsidiary treaty which was drafted according to the specifications of SFPT Article 26. Legally then, there is a strong presumption to assume that Chinese recognition of the "Treaty of Taipei" automatically implies a recognition of the SFPT.


Part 2

In General Order No. 1 of Sept. 2, 1945, (Supreme Commander) General Douglas MacArthur directed the military troops of Chiang Kai-shek to come to Taiwan to handle the Japanese surrender ceremonies and subsequent administration of the island.   It is a matter of historical record that the ROC military commanders and troops were transported to Taiwan by United States ships and aircraft in October 1945. Thus, the era of the ROC in Taiwan began in Oct. 1945 with the full assistance and tutelage of the United States.

The completion of the Oct. 25, 1945, surrender ceremonies only marked the beginning of the military occupation of Taiwan, and international law dictates that "military occupation does not transfer sovereignty." The legal occupier is the "conqueror," which (in consideration of the historical record of military attacks against Taiwan) is the United States of America.

Nearly seven years later, the SFPT came into force on April 28, 1952. Taiwan was not given to China, rather it remained under the jurisdiction of a US federal agency -- the United States Military Government.

The definition of "military government," as given in US Army Field Manual FM 27-10 The Law of Land Warfare is   Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.   Therefore, it would seem to directly follow that Taiwan is occupied territory of the United States of America.

In consideration of these facts, beginning in the late Spring of 1952 (if not earlier), the United States Defense Dept. should have followed the precedent in dealing with other US-conquered territories (e.g. California, Guam, Cuba, Philippines, Puerto Rico, the Ryukyus, etc.) and nurtured local groups of people to come together to form their own civil government. Such a civil government could function as the "government" of Taiwan for an indefinite period, and operate under the overall authority of USMG. In accordance with the stipulations of the US Constitution, "national defense," "foreign affairs," "refugee and asylum," etc. matters for Taiwan would be the responsibility of the US federal government.

Conversely, we can find no international legal precedent which authorizes a government in exile (which, at the most basic level, is a "foreign regime") to fulfill the role of a recognized civil government for occupied territory.


Part 3

The SFPT did not award Taiwan to China. Moreover, according to the laws of the Republic of China, Taiwan has never been incorporated into ROC national territory.
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. 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 war crime.

A full confirmation of the above facts is given in the case of Sheng v. Rogers (D.C. Circuit, Oct. 6, 1959). The judges held that:
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.

Occupied territory has not reached a "final (political) standing." Its status is therefore often described as "undetermined" or "unsettled." Such territory may be said to be in interim status under the law of occupation.

Taiwan has never been incorporated into the national territory of the Republic of China. Hence, in Taiwan, there is no justification for the existence of a legal structure based on the Republic of China Constitution. From this realization it should be easy to understand that "Republic of China citizens" is not a correct nationality designation for native Taiwanese people.

For a more detailed discussion of this nationality issue, please see ROC Citizenship: A Questionable Legal Basis.


Part 2: Territory Acquired by Conquest

The United States can acquire new territory by conquest, and such "acquired territory" is held under military occupation until final determination of status. The US Supreme Court has ruled on this aspect on many occasions. Quotations from a number of relevant cases are given as follows.


Jones v. United States (1890)
By the law of nations, recognized by all civilized states, dominion of new territory may be acquired by discovery . . . . as well as by cession or conquest . . .


Downes v. Bidwell (1901)
Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined . . . .
          -- quoting from United States v. Huckabee (1872)


Dorr v. United States (1904)
The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by treaty.
          -- quoting from American Insurance Company v. Canter (1828)


Rasul et al. v. Bush, President of the United States (2004)
. . . all of the territories Blackstone lists as dominions, are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on....

Notes

The delegates to the 1787 Constitutional Convention in Philadelphia were all intimately familiar with English law, and indeed Blackstone's Commentaries on the Laws of England are a standard reference for investigating the intent and scope of applicability of many clauses in the United States Constitution. Translating this legal concept from the British to the American version, the word "Crown" would become "US federal government."



With reference to the above US Supreme Court cases, and considering that the SFPT did not award Taiwan to any other country, it would appear that Taiwan is "acquired territory" of the United States of America. Therefore it is under a condition of military occupation. This status is probably most carefully described as a quasi-trusteeship under military government within the US insular law framework. See Quasi-Trusteeship. As such, Taiwan comprises a separate customs territory under USMG.

Comparisons with the disposition of Cuba under the terms of the Treaty of Paris (April 11, 1899) may also be useful. See Chart. 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. 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."

Importantly, the conclusions given here regarding Taiwan's legal status do not conflict with any Key Statements by U.S. Executive Branch Officials.


For further US Supreme Court references, see On the Subjects of "Conquest" and "Dominion"


Whether viewed from an historical or legal context, the statements that "The Republic of China is Taiwan," "The Republic of China is the official name of Taiwan," "Taiwan belongs to the Republic of China," "Taiwan is a province of China," "Taiwan and China split after the Civil War in 1949," etc. are all false, deceitful, and dishonest. Moreover, such statements are quite destructive to the efforts of the native Taiwanese people to advance their human rights.


The Joint Communique of the United States of America and the People's Republic of China (Aug. 17, 1982) contains the following important paragraph:
3. Respect for each other's sovereignty and territorial integrity and non-interference in each other's internal affairs constitute the fundamental principles guiding United States - China relations. These principles were confirmed in the Shanghai Communique of February 28, 1972 and reaffirmed in the Joint Communique on the Establishment Of Diplomatic Relations which came into effect on January 1, 1979. Both sides emphatically state that these principles continue to govern all aspects of their relations.