Laws of War, Taiwan, & the Montevideo Convention
Report Writing Project
BACKGROUND: The participants in one of my ongoing study groups have been researching the question of Taiwan's international legal status for many years. We have many written articles, commentaries, webpages, etc. which we now want to share with you. Additionally, it would be highly desirable if you could do some of your own research.
According to the findings we have personally collected, after the military troops of Chiang Kai-shek arrived in Taiwan in Oct. 1945, they began committing violations of the laws of war almost immediately. All in all, they committed many serious violations of the laws of war in the period of 1945 - 1950.
Many people say that the Republic of China on Taiwan meets the Montevideo Convention's criteria for statehood. (Some people use "FOUR CRITERIA" to discuss this issue, others use an expanded list with additional criteria. What do you think is relevant?)
However, we believe this is in error. In our opinion, the ROC does not qualify. Why? In our view, many of the ROC's supposed "qualifying criteria" are actually based on violations of the laws of war committed in the 1945 - 1950 period.
NEEDED REPORT CONTENT: Your assignment will be to write, compile, and edit your own report which discusses these important issues. In terms of content, there is a need to thoroughly overview the facts of why the ROC on Taiwan does not meet the criteria for statehood as specified in the Montevideo Convention. We presume that this would be primarily discussed from the viewpoint of the violations of the laws of war.
(Wrongful actions by the ROC military authorities included Announcement of Taiwan Retrocession Day, Mass Naturalization of local populace, Implementation of ROC Constitution, Seizure of Japanese Assets, Military Conscription over Local Populace, etc.)
Additionally, we need your evaluation (as best as possible) of the following points:
l Can these violations can be spoken of as "war crimes".... after all, no charges have ever been filed. (!)
l What actions should the United States military authorities have taken, beginning in 1945, to avoid these violations having ever taken place??
l Or what corrective actions should have been taken quickly after the violations took place ... ??
l What actions would have been appropriate when the ROC military authorities overstepped their bounds??
l What further actions should have been taken when the San Francisco Peace Treaty (SFPT) came into force in 1952??
Notably, Taiwan was not awarded to "China" in the post-war SFPT. Based on the precedent established in the Mexican American War and the Spanish American War, it is clear that Taiwan remained as occupied territory.
And what about today? Are these still considered war crimes? There is no statute of limitation on war crimes. But where is the redress for the Taiwanese people? The "ROC on Taiwan" is not a member of the United Nations. The Taiwanese people cannot file suit in the ICJ. The ROC courts in Taiwan will obviously not accept this line of reasoning. So, what activities can the local Taiwan populace take to rectify the many abuses they have suffered over the past 70 years?
It seems clear under international law that Taiwan does not belong to the Republic of China, and yet the local populace is forced to live under the ROC regime, swear allegiance to the ROC, and carry ROC identification documents and passports. (!) Surely there must be some method of dealing with this problem. (?)
Lastly, how can the existence of these "war crimes" be shown to the international community, and a call for sanctions (or other appropriate action) be made against the ROC regime in Taiwan?
Q & A and Other Commentary
Q: Do you have any additional information on any organizational requirements for the report, what type of format, and length you have in mind?
A: Something scholarly, probably five, six or more pages. Whenever we present information on the post-war situation of Taiwan, comments of Allied officials, etc..... in order to justify the international community’s treatment of the ROC/Taiwan as a “non-sovereign entity,” there is always the response of: "Yes, but regardless of the developments of 1945 - 1952, ROC/Taiwan meets the requirements for statehood under the Montevideo Convention !!! "
My associates totally disagree. How can "criteria" based on violations of the laws of war be held to be qualifying criteria under a Montevideo Convention Article 1 analysis ??
Hence, when we submit our petitions for "correct recognition of ROC/Taiwan's status under international law" to various organizations, (as a way of claiming Taiwan's right to self determination under various international covenants/charters) ... this Montevideo Convention issue must be thoroughly dissected ....
Self Determination
We do not believe that the right to self determination (as commonly interpreted as "independence") directly and immediately applies to occupied territories.
Rather, there must be the achievement of the intermediate step of "full clarification of all parameters of the current legal status."
The USA's ambiguity on Taiwan's legal status is a direct denial of the native Taiwanese people's right to self determination, even if we all agree that Taiwan should not be an independent country at present.
Under the (doctrine of the) right to self-determination., the Native Taiwanese people have the right to ascertain all parameters of their current international legal status, so (at the minimum) their grandchildren can move toward completion of that "goal."
Reference: http://www.twinfopost.com/nattwrocex.htm
Suggested URLs for Further Research on this Topic
(Preliminary List)
War Crimes
Practice Relating to Rule 130. Transfer of Own Civilian Population into Occupied Territory
http://www.icrc.org/customary-ihl/eng/print/v2_rul_rule130
Public and Private Property in Occupied Territory
http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule51
Mass Naturalization
Check on Google for “mass naturalization”
Occupied Territory
Various definitions are available on the internet, and many of them are less than ideal. See the commentary on the webpage regarding “occupied Cuba” –
In fact, Cuba was already under US military occupation beginning July 17, 1898. Hence, Article 1 of this Treaty clearly shows that for a territorial cession, the period of time from the coming into force of the peace treaty up until the end of the military government of the (principal) occupying power is also called "military occupation."
[More] See -- http://www.taiwanbasic.com/key/dc/tmodhiae.htm
Introduction and Outline for Modern Taiwanese History
In the aftermath of the First Sino-Japanese War, Qing China ceded Taiwan to Japan. Following the 1895 Treaty of Shimonoseki, Japan exercised sovereignty over Taiwan and held title to its territory. The Republic of China was founded in 1912, with Dr. Sun Yat-sen as the provisional president. Taiwan, however, having come under Japanese rule in 1895, was not part of the ROC in the early years of the 20th century.
[More] http://www.taiwanbasic.com/key/dc/tmodhiae.htm
Six Mistakes
When people are discussing Taiwan history, the following Six Mistakes are often noted. As a result, much unnecessary confusion is caused.
[More] six-mistakes-history.htm
Note regarding the Annexation of Territory
The Fourth Geneva Convention, in Article 47, proscribes the annexation of occupied territory, and the United Nations has repeatedly condemned a certain Middle Eastern country’s precipitous annexation of the eastern section of one large city, along with a wide belt of surrounding suburbs, villages and towns.
The Laws of War
The laws of war are derived from two principal sources:
a. Lawmaking Treaties (or Conventions).
b. Custom.
[More] laws-war-ihl.htm
Principle of Conquest
From the second half of the eighteenth century onwards, international law came to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in his opus The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars (circa 1820).
[More] prin-conquest.htm
Timeline of Modern History in Taiwan
http://www.taiwanadvice.com/timeline.htm
Taiwan’s Identity Crisis and the Customary Laws of Warfare
We suggest that the most important issue facing the Taiwanese people is to first agree on an interpretation of their own history which corresponds with all relevant international legal norms, so that Taiwan's current international legal position can be precisely defined. Such a "definition" will not in any way change the status quo, rather it will provide a precise clarification of what that status quo truly is. In order to research the last 100 or more years of this history in a correct fashion, there is a critical need to turn to the customary laws of warfare of the post-Napoleonic period.
[More] identity-crisis.htm
Law Journal Articles Excerpts
l The Chinese Nationalists occupied Taiwan in 1945 as result of the Japanese surrender.
l Neither the Cairo Declaration nor the Potsdam Proclamation served to transfer the sovereignty of Taiwan to China. In 1952, the post-war peace treaties nullified sovereignty of Japan over Taiwan, without ceding Taiwan to any particular state.
[More] http://www.civil-taiwan.org/lawjrn.htm
The Japanese Act of Surrender
In view of the Chinese claim that the surrender of Japan amounted to a transfer of sovereignty over Formosa and the Pescadores (aka "Taiwan"), it seems surprising that little attention is given by China to the Japan surrender documents and the events surrounding the surrender.
[More] http://www.civil-taiwan.org/japansurr.htm
Court cases
(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.
[More] http://www.taiwanbasic.com/court.htm
Foreign Relations of the United States
Jan. 19, 1949
Formosa and the Pescadores are under the de facto control of the Chinese Nationalists, but legally still part of the Empire of Japan.
[More] http://www.civil-taiwan.org/frus-data.htm
U.S. Dept of State
Documents and Statements on Taiwan
http://www.taiwanbasic.com/historical/statemenu.htm
International Law Chart
http://www.civil-taiwan.org/chart-intlaw.htm
Historical Development of the Legal Status of Taiwan and the Republic of China
http://www.taiwanbasic.com/civil/histdev.htm
Military Jurisdiction and the Taiwan status question
(1) With the end of USMG jurisdiction in California, Puerto Rico, Philippines, Guam, Cuba, and the Ryukyus, each has become either (a) a sovereign nation, or (b) "part" of another sovereign nation. Significantly, each area has a fully functioning "civil government." Taiwan is clearly the exception.
[More] http://www.taiwanbasic.com/key/dc/milgovex.htm
Territorial Cession after War and the End of Military Government
Moreover, military government may be exercised not only during the time that war is flagrant, but down to the period when it comports with the policy of the dominant power to establish civil jurisdiction.
[More] http://www.taiwanbasic.com/key/dc/milgovend6.htm
Military Conscription
Naturalization of native inhabitants along with the implementation of "military conscription" activities in occupied territory are in violation of the laws of war as recognized by the United States, in particular, see FM 27-10 The Law of Land Warfare.
[More] mil-consc.htm
Military Government and Martial Law (quotes)
(p. 21) 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.
[More] http://www.taiwanbasic.com/military/
ABCD Chart of Territorial Cession
http://www.taiwanbasic.com/civil/abcd-ex.htm
Treaty Collection
ROC Government in Exile
http://www.taiwanbasic.com/nstatus/tmodhiae-exile.htm
Publicly Available Information on the Taiwan Legal Status Question
http://www.twtreaties.net/public/
More Internet References regarding Taiwan