Many people who are pushing for Taiwan to join the United Nations and other international organizations as an "independent sovereign state" stress that the "Republic of China on Taiwan" meets all the relevant criteria for statehood, including having #1 a permanent population, #2 a defined territory, #3 a government, and #4 the capacity to enter into foreign relations with other states.
However, new research on the internationally recognized laws of war, including the laws of military occupation, suggests that the ROC's so-called "permanent population" may be a case of mistaken identity. In other words, leading researchers are now suggesting that the legal basis for recognizing Taiwanese persons as having ROC citizenship is open to serious doubt. Moreover, the "territorial title" to the areas of Formosa and the Pescadores is not currently held by the Republic of China or Taiwan governing authorities.
Before going into a detailed discussion of these issues, some background information on the United States' role in the war against Japan is necessary for reference.
World War II in the Pacific
Taiwan had been ceded to Japan by China in the 1895 Treaty of Shimonoseki. After 1895, under international law, there is no doubt that Taiwan was a part of the Japanese Empire.
After the attack on Pearl Harbor, Hawaii, the United States Congress declared war against Japan on December 8, 1941. On the following day, December 9th, Chiang Kai-shek's Republic of China also declared war against Japan.
All military attacks on the four main Japanese Islands and (Japanese) Taiwan during the December 8, 1941 to August 15, 1945 period were conducted by United States military forces. The Republic of China military forces did not participate. Hence, in relation to Taiwan, the United States is the "conqueror."
After a thorough review of the specifications of General Douglas MacArthur's General Order No. 1 of Sept. 2, 1945, the question which must be asked is: "In these Pacific Ocean areas and environs, who is fulfilling the role of the occupying power as specified in the customary laws of warfare?"
*** 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. ***
As we know, President Harry Truman (dates in office: April 12, 1945, to Jan. 20, 1953) approved General Order No. 1 before its promulgation, the United States is the "conqueror" of Taiwan, and General MacArthur is the head of the United States military forces. Hence the strongest presumption would be that United States is the principal occupying power of Taiwan. Importantly, Article 23 of the post-war Senate ratified San Francisco Peace Treaty fully confirms this.
After this background discussion, the following points may be raised about the questionable legal basis for recognizing Taiwanese persons as "ROC citizens" or recognizing Formosa and the Pescadores as ROC territory.
Under the customary laws of warfare, upon the surrender of Japanese troops the local populace in Taiwan will pass under a "temporary allegiance" to the conqueror, which in the post-Napoleonic era will be the principal occupying power. Moreover, the doctrine of "temporary allegiance" only exists in a single-tiered formulation. The historical record clearly shows that the United States was the "conqueror" of Taiwan, not the Republic of China.
In General Order No. 1, General 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. The surrender ceremonies mark the beginning of the belligerent occupation. The United States is the "conqueror" and the "principal occupying power." The Republic of China military forces are merely a "subordinate occupying power" under the USA.
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 Jan. 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 "belligerent occupation" of Taiwan began on October 25, 1945, with the surrender of Japanese troops, and only ended with the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952, 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 (1) any announcement of "Taiwan Retrocession Day" or (2) the mass naturalization of native Taiwanese persons as "ROC citizens" by the Chiang Kai-shek regime in the 1940's.
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.
Moreover, international law specifies that "military occupation does not transfer sovereignty." More specifically, 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.
In conclusion, without a clear legal rationale and/or documentation for having either a "permanent population" or "territorial title" to the areas of Formosa & the Pescadores, Taiwan is not qualified to enter the United Nations.
