Resolution of Damages After WWII?

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Re: Resolution of Damages After WWII?

Postby Hartzell » 21 Feb 2010, 16:45

Eiger John wrote: Hartzell, then with all due respect, within the context of this thread are you making an argument for the Taiwanese to pay or receive damages pertaining to World War II? Or are you saying that none should be received or paid?

I am saying that I don't see any validity to making damage claims against Japan, if we are speaking of the 1895 to 1945 period.
Eiger John wrote: My take is that during World War II, Taiwan was part of the Japanese empire -- i.e., this territory was a colony of a country that was on the "other side" from the U.S.

Right. Taiwan was a part of the Empire of Japan. I would also like to note the following points on which many posters in the forumosa.com forums appear to be confused.

(1) The state of war between the USA and Japan ended on April 28, 1952. See -- Holmes v. United States, 391 US 936 (May 27, 1968), US Supreme Court, http://laws.findlaw.com/us/391/936.html , quote = The effective date of termination of state of war with Japan was April 28, 1952, when the Japanese Peace Treaty took effect (66 Stat., c. 31). See Lee v. Madigan, 358 US 228 (1959).

(2) Taiwan was Japanese territory until April 28, 1952. See --
http://www.taiwanbasic.com/state/frus/t ... 1955aq.htm
http://www.taiwanbasic.com/hansard/uk/uk1956aq.htm

Eiger John wrote:But if you have some purpose or if there is any relevance within the current discussion for exclusively blaming the U.S. for bombing raids here, please let us know.

(3) The United States is designated as the "principal occupying power" under the 1952 peace treaty, in Article 23. Military occupation is conducted under military government, and hence it would be expected that the United States Military Government would have jurisdiction over Taiwan. In fact, this specification is given in Article 4(b) of the 1952 peace treaty.

Comparing the US experience in California (after the Mexican American War), and Guam, Philippines, Puerto Rico, and Cuba (after the Spanish American War), it is clear that the criteria for the "end of military occupation" in the territorial cession of Taiwan has not yet been met. For more detailed explanation, see -- http://www.taiwanbasic.com/key/milgovchart1x.htm

The United States has delegated the military occupation of Taiwan to the Chinese Nationalists. The United States is the principal occupying power, as fully specified in the SFPT, with USMG jurisdiction over Taiwan. The ROC is a subordinate occupying power. This is a principal - agent relationship.

The law of agency is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself." Hugo Grotius spoke of agency in his treatise On the Law of War and Peace, written in 1625.

Eiger John wrote:As to the identity of all combatants, I've read some historical information that the U.S. was not the only one of the Allied powers that participated in air raids over Taiwan.

(4) Don't know where you read that. See -- "ONE-CHINA POLICY AND TAIWAN" in the Fordham International Law Journal, Vol. 28:1, December 2004, Author: Y. Frank Chiang, Professor of Law, Fordham University School of Law.

quote p. 79 - 80: With respect to the island of Taiwan, the term "Allied Powers" or "Allies" in this Article essentially refers to the United States. To clarify, in describing the Second World War and the Peace Treaty of San Francisco, this Article has referred to the victorious States over Japan as Allied Powers or Allies. But it is clear that it was the United States that fought with and defeated Japan. It was to the United States that Japan surrendered. It was the United States that, as the victorious State, won the right to dispose of Japan's territory as it wished. It was the United States that assigned Chiang Kai-shek's R.O.C. government to occupy and administer the island of Taiwan on its behalf. So, fifty years later, the R.O.C. government still acts as an agent of the United States. The passage of time will not change, and has not changed, the legal relationship of agent and principal.

quote p. 13 (footnote 58): General MacArthur recalled that "none of these powers [Russia and the United Kingdom] had been forthcoming with troops to fight the Pacific war when we [the United States] needed them. We had borne the burden with Australia . . . . " DOUGLAS MACARTHUR, REMINISCENCES 291 (1964).

Also see --
http://www.taiwanbasic.com/state/frus/t ... 1954as.htm
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Re: Resolution of Damages After WWII?

Postby IceEagle » 23 Feb 2010, 08:48

Slightly off topic, but...

Hartzell wrote:Comparing the US experience in California (after the Mexican American War), and Guam, Philippines, Puerto Rico, and Cuba (after the Spanish American War), it is clear that the criteria for the "end of military occupation" in the territorial cession of Taiwan has not yet been met. For more detailed explanation, see -- http://www.taiwanbasic.com/key/milgovchart1x.htm


The case on Taiwan is more difficult to fit into this chart. No USMG ever existed on Taiwan, as the ROC government played this role that the USMG held elsewhere. And as I explain below, the Nationalist government on Taiwan is not a valid replacement for the USMG in this case.

Now, while I feel that the elections in 1996 and 2000 conclusively point to the end of any military occupation, I can see how as a technicality a referendum is required for de jure soverignty to exist and be properly recognized - whether it is a referendum that results in the creation of a new independent state, or a referendum that results in the territory joining another currently existing state such as the PRC. (At this time, it seems this is a highly unlikely event.)

Hartzell wrote:The United States has delegated the military occupation of Taiwan to the Chinese Nationalists. The United States is the principal occupying power, as fully specified in the SFPT, with USMG jurisdiction over Taiwan. The ROC is a subordinate occupying power. This is a principal - agent relationship.

The law of agency is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself." Hugo Grotius spoke of agency in his treatise On the Law of War and Peace, written in 1625.


I am not familiar with Hugo Grotius's treatise, although I have no reason to doubt anything stated here about it.

The Law of Agency that I understand referred to legal persons not soverign states, which makes it quite difficult to generalize the law to this case. However, based on a January 19, 1949 Department of State memo (from http://michaelturton.blogspot.com/2009/ ... paper.html which I discovered from this post, http://flob.me/p1101238 ), specificaly paragraph 8a of that memo, the difficulty that the State Department anticipates in trying to convince the Nationalist government to allow the US to directly occupy Taiwan and set up a true USMG there suggests quite strongly that the true relationship between the two governments was not at all that of principal-agent.

Hartzell wrote:(3) The United States is designated as the "principal occupying power" under the 1952 peace treaty, in Article 23. Military occupation is conducted under military government, and hence it would be expected that the United States Military Government would have jurisdiction over Taiwan. In fact, this specification is given in Article 4(b) of the 1952 peace treaty.


While this might have been specified by treaty, in practice it appears that the Nationalists controlled Taiwan as the de-facto occupying power. They might have done so illegally (as according to the treaty that they were not a party to), but the US did not do anything about that.

If the US ever had the level of control over the ROC in Taiwan as would be suggested by the Law of Agency, it would appear that the US had lost it by 19/1/1949 - over three years before the SPFT was signed. In 1952, the US did not have control over the troops occupying Taiwan, and therefore did not have de facto soverignty. Although the US did have military troops in Taiwan at that time, in practice those troops did not control the government in power on Taiwan, and in any case such occupation by the US had clearly ended by 1979.
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Re: Resolution of Damages After WWII?

Postby Eiger John » 12 Apr 2010, 16:29

Hartzell wrote:
Eiger John wrote:But if you have some purpose or if there is any relevance within the current discussion for exclusively blaming the U.S. for bombing raids here, please let us know.

(3) The United States is designated as the "principal occupying power" under the 1952 peace treaty, in Article 23. Military occupation is conducted under military government, and hence it would be expected that the United States Military Government would have jurisdiction over Taiwan. In fact, this specification is given in Article 4(b) of the 1952 peace treaty.


Hartzell, I don't really understand this response. I wrote my comment above in response to your assertion that:

With all due respect, it would be more proper to identify this as "US bombing." All military attacks against Taiwan in the WWII period were conducted by US military forces.


All military attacks? I might be American, but I don't pretend we went it completely alone in the Pacific. Even if one goes with the idea that the Chinese were fighting the "Second Sino-Japanese War" and we were fighting the "Second World War" to arbitrarily eliminate all air-raids of the period leading up to Pearl Harbor, we weren't purely alone. Even aside from the raids conducted by the ROC air force and joint operations with the U.S. Army Air Force, the British Pacific Fleet was camped out off the coast doing raids on Taiwan air fields as well.

Hartzell wrote:Comparing the US experience in California (after the Mexican American War), and Guam, Philippines, Puerto Rico, and Cuba (after the Spanish American War), it is clear that the criteria for the "end of military occupation" in the territorial cession of Taiwan has not yet been met.


Again, not sure what connection this has to the concepts of who fought in World War II.

Hartzell wrote:The United States has delegated the military occupation of Taiwan to the Chinese Nationalists. The United States is the principal occupying power, as fully specified in the SFPT, with USMG jurisdiction over Taiwan. The ROC is a subordinate occupying power. This is a principal - agent relationship.


I don't understand your logic here. Perhaps you're combining your thoughts on who occupied Taiwan with thoughts about who participated in attacks on the Japanese on Taiwan. If you're arguing that the air raids that the ROC launched in 1938 were as an "agent" of the United States, that's a very novel legal argument on the history of the war.

Hartzell wrote:The law of agency is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself." Hugo Grotius spoke of agency in his treatise On the Law of War and Peace, written in 1625.


If you're arguing that China was bombing the Japanese as an "agent" of the United States, then that might explain why the Japanese launched their attack on the U.S. in 1941. But for those who have looked at the extensive history of Japan's attempt to occupy and enslave vast areas of China in the 1930s, it's really a dead end.

Hartzell wrote:
Eiger John wrote:As to the identity of all combatants, I've read some historical information that the U.S. was not the only one of the Allied powers that participated in air raids over Taiwan.

(4) Don't know where you read that. See -- "ONE-CHINA POLICY AND TAIWAN" in the Fordham International Law Journal, Vol. 28:1, December 2004, Author: Y. Frank Chiang, Professor of Law, Fordham University School of Law.


Do either of these articles offer some form of conclusive proof that the British Royal Navy did not conduct actions against airfields in Northern Taiwan in the spring of 1945, that the ROC did not conduct air raids against targets on Taiwan in 1941 and 1943, and so on?

Hartzell wrote:quote p. 79 - 80: With respect to the island of Taiwan, the term "Allied Powers" or "Allies" in this Article essentially refers to the United States.


Yeah, I remember growing up in the U.S., too. If I'd gotten my knowledge of World War II history from high-school history books and old John Wayne movies, I'd have been persuaded that nobody had done a damn thing until the U.S. showed up and kicked ass on the Germans and Japanese. But I read a little further than that. The U.S. did a lot of the heavy lifting in the war in the Pacific theater, but unlike the Chinese we didn't have the Japanese soldiers using their bayonets to play lacrosse with our infant children on the streets of our capital. In terms of raw sacrifice and misery, the Chinese went through more than their share. Perhaps one can argue that the U.S. was "more efficient" in its methods of fighting war and merely note that we were lucky to be far enough away that we didn't suffer the privations of territories attacked and occupied by the Axis powers.

And even if Gen. "Vinegar Joe" Stillwell didn't like the corruption of the Nationalist Government guys once they were exposed the massive amounts of military hardware we were shipping over, I can't sniff at the estimated 3 million to 4 million Chinese military casualties or the much vaster civilian casualties that the Chinese suffered. For the same reason, I don't sniff at the Philippine military or civilian losses during the Japanese attack, the Bataan Death March, or in the massive human-rights abuses that ensued under the Japanese occupation.

But just because there's an article that has handily defined the "Allies" as meaning the U.S., don't expect me to accept it unquestioningly.
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Re: Resolution of Damages After WWII?

Postby Hartzell » 04 Jun 2010, 22:21

IceEagle wrote:The case on Taiwan is more difficult to fit into this chart..
Not at all. You need to study the chart more carefully.
IceEagle wrote:No USMG ever existed on Taiwan, as the ROC government played this role that the USMG held elsewhere.
It is the law of agency, which can and does exist between nations. The USMG does not have to be physically present in Taiwan in order to serve in the status of "principal" in such a principal - agent relationship.

The law of agency is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself."

IceEagle wrote:Now, while I feel that the elections in 1996 and 2000 conclusively point to the end of any military occupation . . . .
Please provide some references in the post-Napoleonic period to show that "elections" can end a military occupation. I am unaware of any.

IceEagle wrote:The Law of Agency that I understand referred to legal persons not sovereign states . . .
Your understanding is not quite correct.

IceEagle wrote:However, based on a January 19, 1949 Department of State memo (from http://michaelturton.blogspot.com/2009/ ... paper.html which I discovered from this post, http://flob.me/p1101238 ), specificaly paragraph 8a of that memo, the difficulty that the State Department anticipates in trying to convince the Nationalist government to allow the US to directly occupy Taiwan and set up a true USMG there suggests quite strongly that the true relationship between the two governments was not at all that of principal-agent.
The specifications of the Senate-ratified treaty have a higher legal weight than this DOS Memo.

Hartzell wrote:(3) The United States is designated as the "principal occupying power" under the 1952 peace treaty, in Article 23. Military occupation is conducted under military government, and hence it would be expected that the United States Military Government would have jurisdiction over Taiwan. In fact, this specification is given in Article 4(b) of the 1952 peace treaty.

IceEagle wrote:While this might have been specified by treaty, in practice it appears that the Nationalists controlled Taiwan as the de-facto occupying power.
The ROC is serving as a subordinate occupying power. There is a principal - agent relationship between the USA and Chiang Kai-shek's military forces for the military occupation of Taiwan. The legal specifications of the treaty have a higher legal weight than the "in practice" or "on site" situation which you refer to.

IceEagle wrote:If the US ever had the level of control over the ROC in Taiwan as would be suggested by the Law of Agency, it would appear that the US had lost it by 19/1/1949 . . . .
Don't know how you came up with this wild theory.

IceEagle wrote:. . . . and in any case such occupation by the US had clearly ended by 1979.
What are the criteria for the end of a military occupation? You have raised several different "theories," none of which according to what I can see, is supported by international law.

You need to study the chart more carefully.
http://www.taiwanbasic.com/key/milgovchart1.htm
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Re: Resolution of Damages After WWII?

Postby Eiger John » 11 Jun 2010, 18:30

One major problem in trying to establish a principal-agent concept for the US-ROC relationship is that neither party apparently saw it as such. The ROC came in, Taiwanese waved ROC flags and welcomed them in, but then they realized what a bunch of corrupt bunch of thugs had come on in. And thus began the long road through White Terror to democracy. But at no point did the U.S. come running up, yelling: "Whoa there, the status of that territory has yet to be decided."

And as to whether Japan had anything to sign away in 1952, the territory was already out of their hands and the Japanese were powerless in any case to maintain any claims to outlying territories -- just look at what happened to the islands the Soviets nabbed and which the Russians still keep. But one could just as well argue that the treaty provision was aimed at closing out their ability to rattle sabers in a century's time to insist that they "retake" Taiwan.

International Law is a much slower and more ponderous thing with relatively few surprises to it, and there's a lot more to it than just transactional receipts. In light of the decades of international acceptance of the ROC government on Taiwan and the lack of assertion or exertion of any kind of U.S. military authority over Taiwan, it would appear that further pieces of paper were not necessary. In a similar vein, if I go to buy electronic doo-dads over at Guang Hua market and don't get a fa-piao for my purchases, does that mean I didn't buy them?
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Re: Resolution of Damages After WWII?

Postby Hartzell » 15 Jun 2010, 21:20

Eiger John wrote:One major problem in trying to establish a principal-agent concept for the US-ROC relationship is that neither party apparently saw it as such. The ROC came in, Taiwanese waved ROC flags and welcomed them in, but then they realized what a bunch of corrupt bunch of thugs had come on in. And thus began the long road through White Terror to democracy. But at no point did the U.S. come running up, yelling: "Whoa there, the status of that territory has yet to be decided."
There were many statements on the undetermined status of Taiwan.

To date, Taiwan is still legally a part of the Empire of Japan
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.
* http://www.taiwanbasic.com/state/frus/t ... 1949av.htm

Policy Toward Formosa
May 25, 1949
The British do not consider Taiwan to be Chinese territory, hence if the ROC moves to Taiwan it will become a government in exile. The Economist has referred to Taiwan as the "Ownerless Isle."
* http://www.taiwanbasic.com/state/frus/t ... 1949au.htm

Plebiscite Proposal
June 9, 1949
There has been no recognition (by the Allies) that Taiwan has been incorporated into Chinese territory.
* http://www.taiwanbasic.com/state/frus/t ... 1949aq.htm


Eiger John wrote:And as to whether Japan had anything to sign away in 1952, the territory was already out of their hands and the Japanese were powerless in any case to maintain any claims to outlying territories -- just look at what happened to the islands the Soviets nabbed and which the Russians still keep . . . . .
You are really having trouble understanding the concept of military occupation. You might want to start by reading Chapter 6 is U.S. Army Field Manual FM 27-10, which is a compilation of relevant articles from the Hague and Geneva Conventions. I also suggest that you read through the ICRC Commentaries on the Geneva Conventions.

Eiger John wrote: . . . . In a similar vein, if I go to buy electronic doo-dads over at Guang Hua market and don't get a fa-piao for my purchases, does that mean I didn't buy them?
If the question comes up as to who really owns these items, you may find that you are unable to successfully prove your "legal ownership." That is the problem being discussed here. Please reference the following --

Office/Agency: National Security Council
subject: An Issue Undecided
date: August 30, 2007
quote: "Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years."
(source: Statement by Senior Director for Asian Affairs, National Security Council (NSC), Dennis Wilder)
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Re: Resolution of Damages After WWII?

Postby Eiger John » 22 Jun 2010, 19:14

Hartzell wrote:There were many statements on the undetermined status of Taiwan.

To date, Taiwan is still legally a part of the Empire of Japan
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.
* http://www.taiwanbasic.com/state/frus/t ... 1949av.htm

Policy Toward Formosa
May 25, 1949
The British do not consider Taiwan to be Chinese territory, hence if the ROC moves to Taiwan it will become a government in exile. The Economist has referred to Taiwan as the "Ownerless Isle."
* http://www.taiwanbasic.com/state/frus/t ... 1949au.htm

Plebiscite Proposal
June 9, 1949
There has been no recognition (by the Allies) that Taiwan has been incorporated into Chinese territory.
* http://www.taiwanbasic.com/state/frus/t ... 1949aq.htm


Hartzell, you supply as "proof" the ancient opinion of some American official, a British document in which they state clearly that they've given little to no thought to the question, a cute turn of phrase by the Economist, and a musing by somebody that there could be a plebiscite?

Hartzell wrote:You are really having trouble understanding the concept of military occupation. You might want to start by reading Chapter 6 is U.S. Army Field Manual FM 27-10, which is a compilation of relevant articles from the Hague and Geneva Conventions. I also suggest that you read through the ICRC Commentaries on the Geneva Conventions.


And I suggest that you are having trouble understanding that the current democracy existing upon this island has not one characteristic of a military occupation.

Hartzell wrote:If the question comes up as to who really owns these items, you may find that you are unable to successfully prove your "legal ownership." That is the problem being discussed here.


It's actually not the issue. Show me a single former Allied nation that is claiming officially that the military occupation still exists or that the democratically elected government existing here in Taiwan should go somewhere else. The PRC (which was not a member of the "Allies", strictly speaking) has a competing claim to the sovereignty of this island that still claims this as Chinese territory. The ROC (which was a member of the Allies) claimed for ages that this was Chinese territory and vowed to retake the rest. But there's nobody to whom Taiwan must prove that it is not under military occupation.

Hartzell wrote:Please reference the following --

Office/Agency: National Security Council
subject: An Issue Undecided
date: August 30, 2007
quote: "Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years."
(source: Statement by Senior Director for Asian Affairs, National Security Council (NSC), Dennis Wilder)


Again, it is clear from the context that the issue discussed is Taiwan's position as a "state" in the sense of international law, not the issue of whether there is a military occupation still going on.
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