Fourth Geneva Convention Military occupation Occupied territories
Part III, section III, of the Fourth Geneva Convention concerns occupied territories ...
The Taiwan Cession
Sovereign Nation, Province of the PRC, or Something Else?
The Fourth Geneva Convention
The Fourth Geneva Convention is one of the most important of the four Conventions signed by the representatives of the States of the world at the Conference that met in Geneva in 1949. The purpose of that Convention was to afford greater protection to civilian persons in time of war since it had become abundantly clear that many civilians who suffered the harshest conditions during the Second World War, in particular those who were under military occupation.
Provisions Concerning the Civilian Population in Occupied Territories
Part III, section III, of the
Convention concerns occupied territories and contains provisions
concerning the civilian population of those territories which codify
established customary principles with respect to military occupation and
spell out, in the light of the experience of warfare, the necessary
protection for such persons. The rules of international law, both
customary and treaty law, have established that military occupation does
not affect sovereignty over an occupied country (or territory) and that
such occupation does not transfer sovereignty to the occupying Power. 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 in the nineteenth century.
Turning to the historical record from the mid-1940's, we see
The surrender documents were superceded by the San Francisco Peace Treaty (SFPT) April 28, 1952, with the United States designated as "principal occupying power."
According to Article 2(b) of the SFPT, "Japan renounces all right, title and claim to Formosa and the Pescadores." The sovereignty of Formosa and the Pescadores was not assigned to any country however. In international law, this is known as a limbo cession.
An exact parallel to Taiwan's situation may be found by considering the situation of Cuba in 1898 after the end of the Spanish-American War. A important quotation may be taken from the US Supreme Court case of Neely v. Henkel 180 U.S. 109 (1901).
A study of the territorial cessions after the Mexican American and the Spanish American War confirms that the military government of the principal occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted.
After the end of belligerent occupation but before the end of the military government of the principal occupying power, Cuba was a self-governing dominion held under United States Military Government which was given "trust territory" characteristics by the USA. In regard to Taiwan, there is the creation self-governing dominion by the San Francisco Peace Treaty cession. Indeed, under the Taiwan Relations Act, the United States government treats Taiwan as a "sub-sovereign foreign-state equivalent."
Taiwan was never under any UN Trusteeship arrangement, and must currently be viewed as under an interim status of post USA "belligerent occupation." The USA legally holds the sovereignty of Taiwan cession while the ROC exercises the effective territorial control as the subordinate military governors of SFPT.
However, when considering that the Taiwanese people have US Constitutional rights under such an arrangement, it is clearly necessary for the ROC government to close down operations in Taiwan and move to their rightful place in the Jinmen and Matsu island groups.
The Taiwanese would quickly gain many advantages by demanding their US Constitutional rights. For example, the nomenclature of "Republic of China" in all laws and regulations can be changed to "Taiwan," thereby meeting the goal of name rectification, and the Taiwanese people can make preparations for the calling of a Constitutional Convention under US administrative authority, thus meeting the goal of giving the Taiwanese people their own Taiwan Constitution. Additional advantages would be:
Clearly, this is the best hope for Taiwan's future.
Compiled by Richard W.
Please see additional essays,
commentary, and useful links on our affiliated website.
A New Look at Taiwan's International Legal Position