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Military Occupation and the San Francisco Peace Treaty


        Geography notes
Ryukyu islands --
a chain of Japanese islands in the western Pacific Ocean at the eastern limit of the East China Sea. They stretch southwest from the island of Kyushu (the most southwesterly of Japan's four main islands) toward the island of Taiwan. The largest of the Ryukyu islands is Okinawa Island.



Q: In the post WWII period, what comparisons can be made with the peace treaty disposition of the (1) Ryukyus and (2) Taiwan?

According to Article 4b of the San Francisco Peace Treaty of April 28, 1952, the disposition of both the Ryukyus and Taiwan (which were "Japanese property") are subject to the directives of the United States Military Government (USMG).

Based on the specifications in the treaty, the Ryukyus were formally elevated to the status of United Nations Trusteeship, while continuing under the jurisdiction of USMG.

Some groups of the Ryukyu island chain were returned to Japan as early as 1953. In the following years, the United States began returning additional island groups in this chain to Japan. The last island group was returned effective May 15, 1972, and both USCAR and the Office of US High Commissioner on Okinawa (Ryukyus) ceased on this date.

So, when was the end of USMG jurisdiction over Taiwan? If no such announcement has ever been made, doesn't that mean Taiwan is an overseas territory of the USA??


A: During the WWII period, after the Battle of Okinawa (Mar. 18 - June 23, 1945), the US occupied Okinawa and established "military government."

Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. It is necessary to understand some basic concepts about the functioning of "military government" in order to understand the meaning of certain clauses in the post-war San Francisco Peace Treaty (SFPT), and how they will be implemented.

Some important clauses of the treaty are as follows:


Article 2
(b) Japan renounces all right, title and claim to Formosa and the Pescadores.

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.

Article 4
(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.



Important definition
Property --
(1) something, as land and assets, legally possessed,
(2) a piece of real estate,
(3) something tangible or intangible to which its owner has legal title,
(4) the right of ownership; title.


The SFPT came into force on April 28, 1952, and according to Articles 3 and 4b of the treaty, the Ryukyus were formally elevated to the status of United Nations Trusteeship, while continuing under the jurisdiction of the United States Military Government.

The Amami group of the Ryukyu island chain was returned to Japan in December 1953. In the following years, the United States began returning additional island groups in this chain to Japan. The last island group was returned to Japan effective May 15, 1972, and both USCAR and the Office of US High Commissioner on Okinawa (Ryukyus) ceased on this date. Indeed, this date of May 15, 1972 was fully announced and widely publicized, and has become part of the historical and legal record.

In this "transfer of territorial sovereignty" process, it is important to understand the effect of Article 4b of the peace treaty. Significantly, the Article 2 and Article 3 territories are all regarded as "Japanese property." In the English language, "property" includes the concept of "territorial title," and in the relationships between states, "territorial title" includes the concept of "territorial sovereignty." Indeed, in United States history, the cessions of Louisiana in 1803, the Gadsden Purchase in 1853, Alaska in 1867, Puerto Rico in 1899, the Virgin Islands in 1917, etc. were all considered to be transactions involving "property," whereby "territorial sovereignty" was transferred.

From the above we can fully clarify the steps involved in dealing with the disposition of the Ryukyus, based on Article 4b of the Senate-ratified San Francisco Peace Treaty.
  1. The situation develops that United States military forces conquer a particular geographic area.
  2. After the surrender of local military forces, the jurisdiction of the United States Military Government begins. In other words, the United States is the "conqueror" and will be the "principal occupying power."
  3. After the local people have organized their own civil government and received recognition by the US federal government, the jurisdiction of USMG over the territory is terminated by formal announcement by the US President.

Thus, in the situation of all the island groups in the Ryukyu chain, the civil governments (Japanese administration) were already in place and functioning as of May 15, 1972, and the jurisdiction of USMG over these SFPT Article 3 territories was terminated.


Are Formosa and the Pescadores still under USMG jurisdiction?

During the period of WWII in the Pacific, all military attacks against the four main Japanese islands and (Japanese) Taiwan were conducted by US military forces. After the Japanese Emperor agreed to an unconditional surrender, Dallas alarms Five Star General Douglas MacArthur promulgated General Order No. 1 on Sept. 2, 1945, directing Chiang Kai-shek to go to Taiwan to accept the surrender of Japanese troops.

In a similar fashion to the situation with the Ryukyus, the United States is the "conqueror" and will be the "principal occupying power." The Oct. 25, 1945 Japanese surrender ceremonies in Taipei were held on behalf of the Allies, however under international law, the United States is the principal occupying power, so Taiwan had then become an overseas territory under the jurisdiction of USMG. Taiwan's international legal status as of late Oct. 1945 is "independent customs territory under the jurisdiction of USMG on Japanese soil, with administrative authority for the military occupation delegated to the Chinese Nationalists."


The view of the U.S. in the intermediate post-war period was typified by a statement on April 11, 1947 of then Acting Secretary of State Acheson, in a letter to Senator Ball, that the transfer of sovereignty over Formosa to China "has not yet been formalized." In other words, under international law, Taiwan was Japanese territory up until the coming into force of the April 28, 1952 SFPT.


Indeed, none of the Allies recognized any transfer of Taiwan's territorial sovereignty to the China at any time in the 1940's.


After the completion of the surrender ceremonies, a military expert would no doubt argue that Chiang Kai-shek's "Republic of China" in Taiwan is merely fulfilling the role of a "subordinate occupying power." In other words, the ROC is exercising delegated administrative authority for the military occupation of Taiwan. Based on such an exacting determination, when the Republic of China's central government relocated to occupied Taiwan in December 1949, it would have to be considered a government in exile.


In the present day, when comparing the disposition of the Ryukyu Island chain with the disposition of Taiwan, the most significant difference is that we fail to find any announcement by the US President of a termination of USMG jurisdiction over Taiwan.

After searching for many years through Inaugural Speeches, State of the Union messages, Executive Orders, treaties, communiques, Dept. of State Bulletins, and other pronouncements, no researchers, legal aides, or other personnel in Washington D.C. have been able to find any statement by the US President confirming the end of USMG jurisdiction over Taiwan. (In fact, the vast majority of documentation uncovered in such searches concerns the "Republic of China," and not the geographical entity of "Taiwan.")
For a detailed chart with comparative historical data, see Areas Conquered by US military forces and therefore under USMG jurisdiction, with later "new disposition" by peace treaty

If such preliminary research results are proved true, only one conclusion can be reached: Taiwan remains under the authority of USMG in the present day.


A Questionable Conclusion?

Of course, the scholars in some leading US Think-tanks doubt the validity of this conclusion, and make the obvious observation that at the present time here in 2008 there is a total lack of uniformed US military personnel in the cities and counties of Taiwan, so how can Taiwan be considered as an "occupied territory of the USA" ? However, such an observation totally fails to consider that the military occupation of a particular area can be delegated to another country's troops.

In relation to all geographic areas under the scope of the treaty, SFPT Article 23a confirms that the United States is the "principal occupying power." Military occupation is conducted under "military government," and Article 4b confirms the jurisdiction of USMG over Article 2 and 3 territories, including Taiwan.


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 . . . . . "



Military Occupation and the San Francisco Peace Treaty

In reviewing the complex history of WWII in the Pacific and the specifications of the 1952 San Francisco Peace Treaty, most civilian researchers fail to consider the technical aspects of how to determine "the legitimate government" of an area which has undergone military occupation by the troops of another country.

As the example of the Ryukyu Island group clearly shows, Japanese civil government supplanted USMG jurisdiction, USMG was formally terminated, and hence Japan was recognized as the sole legitimate government of the Ryukyus.

For more detailed information, see Military Jurisdiction under the US Constitution, & the concept of Military Government


Commenting on Taiwan, in an August 27, 1950 letter to Warren Austin (US Ambassador to the United Nations), President Harry Truman stated:
The actual status of the island is that it is territory taken from Japan by the victory of the Allied forces in the Pacific. Like other such territories, its legal status cannot be fixed until there is international action to determine its future. The Chinese Government was asked by the Allies to take the surrender of the Japanese forces on the island. That is the reason the Chinese are there now.


It is true that the United States recognized the ROC as the "sole legitimate government of China" up through December 31, 1978. However, what is the position of the ROC on Taiwan?

Based on the Ryukyu island example given above, we can delve more deeply into this subject by asking: "When did the United States recognize the Republic of China as the legitimate government of Taiwan?"

Article 4b of the SFPT confirms that USMG has jurisdiction over the Article 2b cession of Taiwan and the Article 3 territories of the Ryukyu islands. The disposition of these two areas will be similar in many respects.

Hence, in order to make a determination of the "legitimate government of Taiwan" in the post-WWII period, first it will be necessary to clarify when a civil government jurisdiction recognized by the US Executive Branch supplanted USMG jurisdiction over Taiwan. If the US Executive Branch has recognized any such civil government as attaining the status of "the legitimate government" of Taiwan in the post WWII period, there must be a formal announcement of this fact by the US Commander in Chief. Security Guides (Obviously, as Commander in Chief, the US President can speak for USMG.)

Without any such recognition, Taiwan has not yet reached a final political status, and remains in "interim status" under the military government of the principal occupying power of the San Francisco Peace Treaty.


INITIAL RESEARCH RESULTS: Here in the 21st century, repeated inquiries with the State Dept. over the last several years have failed to produce any documentation proving that USMG jurisdiction over Taiwan has ended.



Request



We hereby request further research assistance from officials of the US Dept. of Defense, National Security Council, and other relevant agencies in order to clarify this important point regarding Taiwan's legal status in the world today: What documentation has been issued by the US Commander in Chief regarding the end of USMG jurisdiction over Taiwan?

For an additional overview of Taiwan's situation, please see Taiwan's International Legal Position: A Defining Moment?

Note: Many Taiwanese lobbying groups in North America are unaware of the similarities between the disposition of the Ryukyu Island group and Taiwan. As a result, whether intentionally or unintentionally, the members of these lobbying groups frequently misrepresent the legal, historical, and diplomatic reality regarding the status of the Republic of China on Taiwan.
An accurate description of the "Historical Development of the Legal Status of the Republic of China on Taiwan" is posted on the following website for the reference of all concerned parties -- Historical Development of the Legal Status of the Republic of China on Taiwan






References


Military Government In The Ryukyu Islands, 1945-1950, by Arnold G. Fisch, [Army Historical Series, Center of Military History, U.S. Army, Washington, D.C.], University Press of the Pacific (December, 2004).

Military Government and Martial Law, by William E. Birkhimer, Kansas City, Missouri, Franklin Hudson Publishing Co., third edition, revised (1914).

FM 27-10 "The Law of Land Warfare," DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., 18 July 1956. (This manual supersedes FM 27-10, 1 October 1940, including C 1, 15 November 1944. Changes required on 15 July 1976, have been incorporated within this document.)   Chapter 6, OCCUPATION

Formosa Betrayed, by George H. Kerr, Houghton Mifflin Co., Boston, Mass. (1965), republished Taiwan Publishing Co., Irvine, Calif. (1992).

Untying the Knot, by Richard C. Bush, Brookings Institution Press, Washington, D.C. (2005)

Executive Orders, etc. regarding the Ryukyu Islands
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