Saturday, Nov 13, 2004,Page 8

Regarding the dispute over Taiwan's sovereignty which has recently made headlines, I offer the following analysis.
Let's first consider the Cairo Declaration, Potsdam Proclamation and Japanese surrender documents. Do these have the force of an internationally binding treaty arrangement to formally transfer the sovereignty of "Formosa and the Pescadores" to the Republic of China (ROC)?
No, they are only statements of "intent." Hence, we can analyze the Taiwan sovereignty question in three steps.

Step 1: From international law it is easily seen that Oct. 25, 1945 marks the beginning of the military occupation of "Formosa and the Pescadores" by the ROC. Military occupation does not transfer sovereignty.

Step 2: When the government of the ROC fled to Taiwan in late 1949, it became a "government-in-exile." The ROC continued to exercise "effective territorial control" over this area which it was holding under military occupation.

Step 3: In the post-war San Francisco Peace Treaty and Sino-Japanese Peace Treaty, the sovereignty of Taiwan was not awarded to the ROC.
Hence, Secretary of State Powell is correct, Taiwan does not enjoy sovereignty as a nation.

So where is the sovereignty of Taiwan?
Again, we may obtain the answer in three steps.

Step 1: All attacks on Japanese fortifications and installations in Taiwan during WWII were carried out by US military forces.
According to the "customary laws of warfare in the post Napoleonic period," the US will be the principal occupying power.

Step 2: General MacArthur, head of the US military government, delegated matters regarding the Japanese surrender ceremonies and occupation of Taiwan to Chiang Kai-shek. This is simply a "principal" to "agent" relationship.

Step 3: In the post-war peace treaties, the sovereignty of Taiwan was not awarded to the ROC, hence Taiwan remains under the administrative authority of the US military government, and this is an interim status condition. In the San Francisco Peace Treaty, Article 4b clearly states that the US military government has final disposition rights over "Formosa and the Pescadores."

In addition, Article 23 reconfirms the US as the principal occupying power.
In effect, the US is holding the sovereignty of Taiwan "in trust," and in the Shanghai Communique the US president is making arrangements for the future handover of this sovereignty to the People's Rebpublic of China, which is recognized as the sole legitimate government of China! However, at the present time, Taiwan is still under US administrative authority, and should be enjoying "fundamental rights" under the US Constitution, as in all other US overseas territories.

Based on the insular cases of the Supreme Court, (and especially Gonzales v. Williams, 1904) in regard to Puerto Rico, after the treaty cession, when Puerto Rico was under a US military government (before the promulgation of the Foraker Act, May 1, 1900) the local people were "island citizens of the Puerto Rico cession."
Hence, in Cuba, after the coming into effect of the treaty, when Cuba was under US military government (before independence on May 20, 1902) the local people were "island citizens of the Cuba cession."

In Taiwan, after the coming into effect of the San Francisco Peace Treaty, with Taiwan under the administrative authority of the US military government, the local people are "island citizens of the Taiwan cession."

Of course, the US flag should be flying. Taiwan is foreign territory under the dominion of the US, or more technically a "quasi-trusteeship of insular status under the US military government." The passport issued to Taiwanese citizens would be similar to a "trusteeship" one, and would fall under the category of "US national, non-citizen."

This is a jus soli nationality based on the US Supreme Court's insular cases, and not based on the 14th Amendment to the US Constitution.
Taiwan's citizens do not (will not) have voting rights in US federal elections.

Richard Hartzell
Taipei