2001/12/28 Fri　 Jeffrey Geer
Taiwan Human Rights

Dear Friends:

It is ashame that accurate information has not been previously available to 
fully comprehend and explore the historical facts of Taiwan under the SFPT.  
Because this is your heritage, please attempt to fully understand the fine 
print of your legal history.

George Kerr used these laws of warfare when he took the Japanese Instrument 
of Surrender on Formosa on October 25, 1945. As a Naval Civil Affairs 
Officer, he was the only duly authorized representative of the US 
Commander-in-Chief to do so. This is the job description of Civil Affairs 
Officers. On Page 146 of Formosa Betrayed, he makes these circumstances of 
occupation very clear with regards to the omission of the USA by the ROC in 
the Chinese version of the Japanese surrender. The English version does not 
omit the role of the USA and their most unalienable interests of the Taiwan 
status occupation under the San Francisco Peace Treaty.

If you wish to understand the administrative authority of SFPT, then read 
these links as the field manuals were "RESTRICTED" materials, and these were 
only previously available to US Civil Affairs Officers of the US military. 
This was the military situation even coming after the Gulf War. The modern 
revisions of FM 27-10 have essentially been minimal since Kerr's 
"occupation" of Taiwan in 1945. The 1940 regulations were only superseded to 
fully include the Geneva Convention of 1949. For Taiwan, they remain legally 
in effect to this day specifically because of the Taiwan Relations Act.

Thus it seems the Internet now makes a very "open secret" of the Taiwan 
Relations Act:

FM 27-10. THE LAW OF LAND WARFARE.
http://faculty.ed.umuc.edu/~nstanton/FM27-10.htm

Quote:

This manual supersedes FM 27-10, 1 October 1940, including C 1, 15 November 
1944

Whenever possible, this Manual should be used in conjunction with TM 27-251, 
Treaties Governing Land Warfare.

FM 27-5, Civil Affairs/Military Government, which deals with military 
government policy and administration, should be consulted in connection with 
chapter 6 of the present Manual.
----------------
(The Civil Affairs regulations of the US Military apply to Taiwan status 
under SFPT/TRA:)

Chapter 6 Occupation
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#s2

Paragraph 358. Occupation Does Not Transfer Sovereignty
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p358

Being an incident of war, military occupation confers upon the invading 
force the means of exercising control for the period of occupation. It does 
not transfer the sovereignty to the occupant, but simply the authority or 
power to exercise some of the rights of sovereignty. The exercise of these. 
rights results from the established power of the occupant and from the 
necessity of maintaining law and order, indispensable both to the 
inhabitants and to the occupying force.
It is therefore unlawful for a belligerent occupant to annex occupied 
territory or to create a new State therein while hostilities are still in 
progress. (See GC, art. 47; par. 365 herein.)


365. Inviolability of Rights
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p365

Protected persons who are in occupied territory shall not be deprived, in 
any case or in any manner whatsoever, of the benefits of the present 
Convention by any change introduced, as the result of the occupation of a 
territory, into the institutions or government of the said territory, nor by 
any agreement concluded between the authorities of the occupied territories 
and the Occupying Power, nor by any annexation by the latter of the whole or 
part of the occupied territory. (GC, art. 47.)

(Geneva Convention mandates that these "political rights". The Taiwan 
Relations Act validates all the treaties for Taiwan prior to 1979 (eg. 
SFPT), and it further protects them from any contravention of the US 
interest in the "human rights" of Taiwan status.  If the contraventions of 
2/28 Incident are legally pursued in US Federal Court, these rights are 
inalienable.)

Paragraph 372. Prohibition as to Rights and Rights of Action
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p372

It is especially forbidden * * * to declare abolished, suspended, or 
inadmissible in a court of law the rights and actions of the nationals of 
the hostile party. (HR, art. 23, par. (h).)

(US Federal Courts cannot easily entertain a "Motion to Dismiss" when a 
human rights case is brought under the Taiwan Relations Act because of the 
Geneva Convention and SFPT. Japanese Nationals of Formosan descent are 
"hostile nationals" prior to the 1952 ratification of SFPT. The Japanese 
courts continually recognize this fact of prior nationality for redress of 
"Chinese claims" against Japan. However, Japan is not the proper legal venue 
of SFPT claims against the KMT-assets stolen during the "hostile occupation" 
of 1945-52. TRA provides for a legal redress of "Japanese Nationals" under 
the treaty terms of "property settlements" including the "administering 
authorities (eg. KMT) of Article 4 of SFPT. 
http://www.taiwandocuments.org/sanfrancisco01.htm

In Article 25, the USA was the "principal occupational authority" of a 
"Greater Japan" including her former Taiwan dependency. In 1952, the 
military occupation of Japan ceased with exception of her former 
dependencies in Article 2. The occupational authority of military government 
(eg. KMT) has continued under SFPT.)


Paragraph 353. Subjugation or Conquest Distinguished
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p353

Belligerent occupation in a foreign war, being based upon the possession of 
enemy territory, necessarily implies that the sovereignty of the occupied 
territory is not vested in the occupying power. Occupation is essentially 
provisional.

On the other hand, subjugation or conquest implies a transfer of 
sovereignty, which generally takes the form of annexation and is normally 
effected by a treaty of peace. When sovereignty passes, belligerent 
occupation, as such, of course ceases, although the territory may and 
usually does, for a period at least, continue to be governed through 
military agencies.

(Belligerent or hostile occupation was established by George Kerr in 1945 
when Japan surrendered on Formosa. In 1951, the SFPT officially ceased the 
"hostile" occupation, but the "subjugation" or "conquest" of Taiwan never 
has occurred under SFPT. Neither the ROC or PRC signed it. Taiwan legally 
became a "friendly territory" under the SFPT's military authority in 1952. 
Military occupation has ended, but the interim authority of the SFPT's 
military government still has not yet expired.)


Paragraph 354. Friendly Territory Subject to Civil Affairs Administration 
Distinguished
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p354


Civil affairs administration is that form of administration established in 
friendly territory whereby a foreign government pursuant to an agreement, 
expressed or implied, with the government of the area concerned, may 
exercise certain authority normally the function of the local government.

Such administration is often established in areas which are freed from enemy 
occupation. It is normally required when the government of the area 
concerned is unable or unwilling to assume full responsibility for its 
administration. Territory subject to civil affairs administration is not 
considered to be occupied.

If circumstances have precluded the conclusion of a civil affairs agreement 
with the lawful government of allied territory recovered from enemy 
occupation or of other territory liberated from the enemy, military 
government may be established in the area as a provisional and interim 
measure (see par. 12b and c). A civil affairs agreement should, however, be 
concluded with the lawful government at the earliest possible opportunity.


Paragraph 12. Military Government and Martial Law Distinguished
http://faculty.ed.umuc.edu/~nstanton/Ch1.htm#b4

In the practice of the United States, military government is the form of 
administration which may be established and maintained for the government of 
areas of the following types that have been subjected to military 
occupation:

b. Allied territory recovered from enemy occupation, when that territory has 
not been made the subject of a civil affairs agreement (see par. 354).

c. Other territory liberated from the enemy, such as neutral territory and 
areas unlawfully incorporated by the enemy into its own territory, when that 
territory has not been made the subject of a civil affairs agreement.

(Two choices of (b) or (c) apply under Paragraph 354 because of SFPT. The 
ROC was an Allied Power of SFPT in 1945. The PRC has never been an Allied 
Power, but is it a friendly government?  And is it the lawful government of 
Taiwan area?  The 1972 Shanghai Communique suggests the final answer to be 
an "implied" official policy of the USA. Attaining any civil administration 
of Taiwan status is closely intertwined with the ROC-PRC negotiations for 
determining a political agreement for Taiwan. Final resolution of Taiwan 
status is "between" ROC and PRC, but such a precondition of "interim status" 
in these negotiations is really dictated by the US policy. This US policy 
implies that Taiwan territory is not subject to "military occupation", but a 
mere legal continuation of an authorized military government of SFPT (eg. 
ROC as administrative authorities of SFPT)). The USA expressly maintains 
that Taiwan is in an interim status under SFPT and does not support Taiwan 
membership in international organizations requiring an "independent state 
status". The USA recognizes that the PRC is the lawful government of China 
and "Taiwan" is a most inseparable part of that interim status. Furthermore, 
the USA derecognized the ROC as a "juridical person", or as what legally 
constitutes a "country" under Article 4 of Montevideo Convention. For the 
elicit purposes of furthering the "interim" of  Taiwan status, President 
Carter unilaterally exercised his foreign affairs powers of "juridical 
person" authority found under Article 4 of SFPT. On this peace treaty basis 
of ROC derecognition, he then also terminated the US-ROC Mutual Defense 
Treaty. The MDT termination on the basis of derecognition was 
constitutionally validated by the US Supreme Court in Goldwater v. Carter. 
Despite an interim status of the "One China", the Taiwan Relations Act 
remains constitutionally valid and has been most successfully used by TECO, 
filing under TRA in US Federal Court , to sue Nigeria for a default on 
"commerical loans". Such commercial activity punches through the sovereign 
immunity of Nigeria, and some past human rights violations are handled in a 
very similiar manner.)

See independent research on Taiwan status and 
TRA:http://www.apli.org/ftp/Taiwanstatus.pdf

Paragraph 355. Occupation as Question of Fact
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p355

Military occupation is a question of fact. It presupposes a hostile 
invasion, resisted or unresisted, as a result of which the invader has 
rendered the invaded government incapable of publicly exercising its 
authority, and that the invader has successfully substituted its own 
authority for that of the legitimate government in the territory invaded.

356. Effectiveness of Occupation
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p356

It follows from the definition that belligerent occupation must be both 
actual and effective, that is, the organized resistance must have been 
overcome and the force in possession must have taken measures to establish 
its authority. It is sufficient that the occupying force can, within a 
reasonable time, send detachments of troops to make its authority felt 
within the occupied district. It is immaterial whether the authority of the 
occupant is maintained by fixed garrisons or flying columns, whether by 
small or large forces, so long as the occupation is effective. The number of 
troops necessary to maintain effective occupation will depend on various 
considerations such as the disposition of the inhabitants, the number and 
density of the population, the nature of the terrain, and similar factors. 
The mere existence of a fort or defended area within the occupied district, 
provided the fort or defended area is under attack, does not render the 
occupation of the remainder of the district ineffective. Similarly, the mere 
existence of local resistance groups does not render the occupation 
ineffective.

(Congruent to the implementation clauses of Taiwan Relations Act and is 
consistent with policy of "strategic ambiguity" for Taiwan's "interim 
status" under SFPT. Any lack of a civil affairs agreement just is not 
pertinent to this interim standing, even if status is "indefinite".)

357. Proclamation of Occupation
http://faculty.ed.umuc.edu/~nstanton/Ch6.htm#p357

In a strict legal sense no proclamation of military occupation is necessary. 
However, on account of the special relations established between the 
inhabitants of the occupied territory and the occupant by virtue of the 
presence of the occupying forces, the fact of military occupation, with the 
extent of territory affected, should be made known. The practice of the 
United States is to make this fact known by proclamation.

(Technically, inapplicable to Taiwan as "occupation" has ceased under SFPT, 
but the peace treaty continuation of the ROC military government has been 
allowed. Is there an absence of a civil affairs agreement for Taiwan?)


"International persons" are created by organic law, or a constitution.
The ROC Constitution is not organic law of Taiwan, it is administrative 
under Article 4 of SFPT. Fundamental differences of sovereignty despite 
similiarity of operations of governing authority.

If you do accept this legal reality, then the "interim status" of Taiwan 
occupation is governed by the Laws of Land Warfare (Hague Conventions, 
Geneva Convention), and the Field Manual 27-10 is the US Military authority 
for the "occupational status" of Formosa under SFPT.

There are no legal requirements of self-determination under international 
law for the people of Taiwan other than the US Constitution and Insular 
Cases of 1900. These are the domestic laws which the USA must obey when 
dealing with Taiwan and Beijing during the "interim".

Ironically, the TRA is really the only legal safeguard of SFPT status for 
Taiwan during the prolonged interim. You might not like this legal reality, 
but there are few choices under international law especially the UN Charter.

What is your nationality--Taiwan or China?

Japan Foreign Affairs Minister Labels "Chinese Nationality" on Taiwan
http://www.taipeitimes.com/news/2001/12/28/story/0000117666

"Taiwan Nationality" under SFPT
http://www.taipeitimes.com/news/2001/09/08/story/0000102058

Treaty of Taipei
http://www.taiwandocuments.org/taipei01.htm

Treaty of Peace and Friendship
http://www.taiwandocuments.org/beijing.htm


As an operation of international law, these interim peace treaty 
circumstances created the "Taiwan nationality" because the SFPT does not. 
However, there is no sovereign country of Taiwan despite the ROC 
occupational authority of SFPT. The democraticization of the ROC is a 
"self-rule" status, not a sovereign status of "self-determination".
In comparison, isn't Hong Kong SAR largely considered as "democratic" and 
"self-governing"?

February 28, 1972
http://www.taiwandocuments.org/communique01.htm

February 28, 2001
http://www.taipeitimes.com/news/2001/02/28/story/0000075546

Sorry, but no "fait accompli" of Taiwan self-determination is going to 
successfully occur under SFPT. Being so sneaky is just complacency, and just 
who is deluding who now?