The transferring of the title of Taiwan

[Dog's_Breakfast]

The people toward whom you think the US should repent are, by and large, mostly dead.

A lot of atrocities have been committed and there is a lot to apologize for. But all that will come out of it are opportunistic lawsuits, from people that were not even harmed directly. Everyone loves a good class action and making money they didn't earn, don't they.

First of all, thumbs-up Dan2006, you hit the nail on the head. I couldn't agree more.

As for the rest of this "Taiwan is occupied by the USA" nonsense, the USA withdrew its diplomatic relations with the ROC (and military forces at the same time) in 1979. Without a single US soldier on Taiwanese soil, this does not strike me as an "occupied country." True, Ma Yin-jeou is down on his hands and knees kissing the asses of American agribusiness lobbyists (over the ractopamine-in-beef issue), but his being an idiot still doesn't make Taiwan a US colony.

[raymondaliasapollyon]

You call International Law: A Treatise by Lassa Francis Lawrence Oppenheim outdated? It seems that this remark is from someone who does not know the book has been printed in numerous editions. The latest one was published in 2006 by the Lawbook Exchange.

You stated that you were quoting from the 1912 edition. That was your statement.

If you believe the content in that book is outdated and there is more reliable information in other sources, why not post the information here so that everyone can evaluate the claim that the US is the 'principal occupying power' over Taiwan? Specifically, we'd like to know how other authorities on international law than Oppenheim define 'effective oocupation', as opposed to 'fictitious occupation'.

Read the post-war San Francisco Peace Treaty.

I also recall that there was a lengthy article published about this in the Harvard Asia Quarterly some years back. I believe it was entitled "Understanding the San Francisco Peace Treaty's Disposition of Formosa and the Pescadores." If you haven't read it, it is informative. Most people do not have a background in laws of war studies, and hence they do not understand the content of the treaty.

For a chart which explains the relationship of "laws of war" to international law in general, see -- http://www.civil-taiwan.org/chart-int1law.htm

After googling the keywords you provided, I came across one article written by you. You tried to explain what 'military occupation' is. However, you quoted a work published in 1914, only two years later than the work I quoted. I doubt any kind of dramatic change could have taken place in the realm of laws of war during the two years.

With the aid of Google Books, I managed to find the 1920 edition of Oppenheim's book. On p. 384-5, I found the same passages as in the 1912 edition that I quoted. Now it is your turn to find something contrary to Oppenheim's claims.

That said, let us now examine what you quoted from Birkhimer's work:

"...In the opus, Military Government and Martial Law,4 which was a standard reference for US military personnel for decades, the author William E. Birkhimer held that The truth must be that a territory is militarily occupied when the invader dominates it to the exclusion of the former and regular government. The true test is exclusive possession..."


The explanation calls for further explanation. What exactly is 'exclusive possession'? I looked up the entry of 'possession' in the Oxford Dictionary of Law:

Actual control of property combined with the intention to use it, rightly or wrongly, as one's own. In the case of land, possession may be actual, when the owner has entered onto the land, or possession in law, when he has the right to enter but has not yet done so. Possession includes receipt of rent and profits, or the right to receive them.

And this definition echoes with Oppenheim's claim: the intention of the occupying power is a necessary condition of effective occupation.
Since the US government expressly denied any such intentions, the US cannot be 'the principal occupying power' over Taiwan.

[fanglangzhe]

Good luck trying to get the US government to claim that it is the rightful occupier (or has sovereignty) over Taiwan. You'll need it, to put it mildly. What exactly are you trying to accomplish?

[Hartzell]

As for the rest of this "Taiwan is occupied by the USA" nonsense, the USA withdrew its diplomatic relations with the ROC (and military forces at the same time) in 1979. Without a single US soldier on Taiwanese soil, this does not strike me as an "occupied country."

Quote:
There are various forms of military occupation and it is possible for the United States to occupy Formosa without many Americans being physically present.

-- Foreign Relations of the United States
http://www.taiwanbasic.com/state/frus/t ... 1951ar.htm

[raymondaliasapollyon]

As for the rest of this "Taiwan is occupied by the USA" nonsense, the USA withdrew its diplomatic relations with the ROC (and military forces at the same time) in 1979. Without a single US soldier on Taiwanese soil, this does not strike me as an "occupied country."

Quote:
There are various forms of military occupation and it is possible for the United States to occupy Formosa without many Americans being physically present.

-- Foreign Relations of the United States
http://www.taiwanbasic.com/state/frus/t ... 1951ar.htm

Even if there were US military personnel on the island of Formosa, their presence, as the words ' an American Military Advisory Group for Formosa' indicate, was only advisory in nature. To reiterate, the governing authority on the island has never administered Taiwan in the name of the USA. The situation contrasts sharply with South Korea, where the USA established the United States Army Military Government in Korea (USAMGIK). The presence of US military personnel in Korea was not advisory in nature, and the US military personnel governed the portion of the Korean Peninsula in the name of the USA. If the US were the 'principal occupying power over Taiwan', we would expect Taiwan's situation to be similar to Korea's, i.e. be governed in the name of the USA. The failure of this prediction shows that the US was not, and is not, the principal occupying power over Taiwan.

Btw, I hope you don't think the words from the mouth of the Soviet Communists are 'reliable information on international law'. Were they jurists like Oppenheim? Also, FYI, the Soviet representative to the SFPT conference openly declared that Formosa is an indisputable part of Chinese territory. Would you buy that as well? Don't clutch at straws here; it won't be helpful.

[Dog's_Breakfast]

There are various forms of military occupation and it is possible for the United States to occupy Formosa without many Americans being physically present.

Well, I always thought there was something sinister about all these English teachers here in Taiwan. After all, they get paid so much money to do nothing, but now that I realize the CIA is paying their salaries, it all makes sense. Must be highly trained agents - some of them are so good that they even pretend to be Brits or South Africans and manage to fake the accent.

I salute our boys here on the front lines. Next time I walk past a buxiban, I'll have renewed respect.

[TheGingerMan]

There are various forms of military occupation and it is possible for the United States to occupy Formosa without many Americans being physically present.

Well, I always thought there was something sinister about all these English teachers here in Taiwan. After all, they get paid so much money to do nothing, but now that I realize the CIA is paying their salaries, it all makes sense. Must be highly trained agents - some of them are so good that they even pretend to be Brits or South Africans and manage to fake the accent.

I salute our boys here on the front lines. Next time I walk past a buxiban, I'll have renewed respect.

Huzzah!

[Hartzell]

There are grounds for believing that the US was not an occupying power of Taiwan. Please examine the following passages from Oppenheim, L. , International law： A Treatise, 2nd ed., Longmans, Green and Co., 1912 .

§222. Para 1 Theory and practice agree nowadays upon the rule that occupation is effected through taking possession of and establishing an administration over the territory in the name of and for the acquiring State. Occupation thus effected is real occupation, and, in contradistinction to fictitious occupation, is named effective occupation. Possession and administration are the two essential facts that constitute an effective occupation.

This quotation, and the others which you have provided from Oppenheim, are not concerned with "military occupation." What Oppenheim is speaking of here is "occupation of terra nullius," such as the situation of uninhabited islands in the Pacific Ocen which were claimed by US citizens under the legal authority of international law plus the Guano Islands Act.

For general information on the contents and application of this Act, see http://en.wikipedia.org/wiki/Guano_Islands_Act

To sum up, the US is most probably not the said 'principal occupying power of Taiwan'. If there is ever such an authority on Taiwan, it must be the Republic of China.

Totally incorrect. As I have said before, read the treaty.

Do I ned to repeat that here for you? Here it is in capital letters:
READ THE TREATY.

Further comments are as follows: My associates and I do not agree with the viewpoint that Taiwan, with a population of approx. 6 million persons in 1945, was terra nullius. Indeed, under international law, Taiwan was sovereign Japanese territory until renounced in the post-war treaty effective April 28, 1952. (General Douglas MacArthur stated at a congressional hearing in May 1951, "legalistically Formosa is still a part of the Empire of Japan." )

Unfortunately, there may be some confusion being generated here due to the different meanings of “occupation” in the English language.

Primarily, there are two types of “occupation,” and the first would be over islands with no population –- which we would view as terra nullius. (A subset of this type would be occupation over populated islands or other territories with “no central government” (characterized by the presence of a large number of aboriginal tribes, etc.) – which we would view as terra sine domino.)

terra sine domino -- [spoken of populated territory] "land without master," land with no central government, abandoned territory.

terra nullius -- [spoken of unpopulated territory] uninhabited islands or lands.

However, the second type of “occupation” is “military occupation” and that is something else entirely.

[DEFINITION] Military Occupation -- (1) invasion, conquest, and control of a nation or territory by foreign armed forces, (2) a condition in which territory is under the effective control of foreign armed forces, (3) the military government exercising control over an occupied nation or territory.

International law specifies that "Military occupation does not transfer sovereignty." [Note: military occupation is not annexation and the doctrine of "prescription" does not apply.]

The quotes which some posters here on forumosa.com have provided from Oppenheim appear to fall into the realm of the first type of "occupation." That however, is not military occupation, which is what I am concerned with.

Also see FM 27-10
362. Necessity for Military Government
Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.

[bohica]

In the aftermath of WWII, and with regard to the provisions of the San Francisco Peace Treaty, it is clear that the "title" to Taiwan territory has not been transferred to any particular state party, . . . . . hence it is still held in trust by the principal occupying power as an interim status condition.

If this is the case, don't you think it's about time US should figure what to do with Taiwan's title? Afterall it's been 60 years since SFPT, and there's absolutely no reason the US should continue the occupation of Taiwan any longer. So what should the US do with Taiwan?

According to what I hear, the USA is happy to have Taiwan remain in interim status under the law of occupation. (The "one year" stipulation in Article 6 of the GC has never been applied to territorial cessions . . . . . . to my knowledge.)

Where did you hear this? According to your logic, Taiwan has been in "interim status" for 60 years, time for the US for figure out a permanent solution, no?

[raymondaliasapollyon]

This quotation, and the others which you have provided from Oppenheim, are not concerned with "military occupation." What Oppenheim is speaking of here is "occupation of terra nullius," such as the situation of uninhabited islands in the Pacific Ocen which were claimed by US citizens under the legal authority of international law plus the Guano Islands Act.

For general information on the contents and application of this Act, see http://en.wikipedia.org/wiki/Guano_Islands_Act

You're right that the part of Oppenheim I quoted belongs to Part II: The Objects of the Law of Nations. It is indeed appplicable to 'non-military occupation'. It was my mistake. But I've also examined the 2nd volume of Oppenheim, which is devoted to laws of war. There are other sources available that support intention and actual authority as necessary conditions of military occupation, in a way consistent with Oppenheim's views in the 2nd volume:

Article 42 of the 1907 Hague Regulations stipulates that territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

LAW OF WAR HANDBOOK (2005) edited by MAJ Keith E. Puls:

Occupation = Invasion plus taking firm possession of the enemy territory for the purpose of holding it. FM 27-10, Para. 352a.
(1)Invasion: Invasion continues for as long as resistance is met. If no resistance is met, the state of invasion continues only until the invader takes firm control of the area, with an intention of holding it. Invasion is not necessarily occupation, but invasion usually precedes occupation. FM 27-10, Para. 352a. Invasion may be either resisted or unresisted.
(a) Resisted v. Unresisted Invasion. Occupation "presupposes" a hostile invasion -However, a "hostile" invasion may be either resisted or unresisted.

Since purpose presupposes intention and is part of the definition of military occupation and the US has expressly denied any such intention and exercised no actual control over Taiwan, it cannot be the so-called 'principal occupying power' over Taiwan.

To sum up, the US is most probably not the said 'principal occupying power of Taiwan'. If there is ever such an authority on Taiwan, it must be the Republic of China.

Totally incorrect. As I have said before, read the treaty.

Do I ned to repeat that here for you? Here it is in capital letters:
READ THE TREATY. .

Which part of the San Francisco Peace Treaty unambiguously claims that the US is 'the principal occyping power' over Taiwan?

Also, there's evidence contrary to the claim that the US is any sort of 'principal occupying power' over Taiwan.
The Sino-American Mutual Defense Treaty (1954) signed between the ROC and the USA stipulates:

ARTICLE VI

For the purposes of Articles II and V, the terms "territorial" and "territories" shall mean in respect of the Republic of China, Taiwan and the Pescadores...

ARTICLE VII

The Government of the Republic of China grants, and the Government of the United Stares of America accepts, the right to dispose such United States land, air and sea forces in and about Taiwan and the Pescadores as may be required for their defense, as determined by mutual agreement.

Graned, the purpose of the treaty was not to trasnfer the sovereignty over the islands. But this at least shows that the US considered Taiwan as part of the territiry controlled and occupied by the ROC. If the US had been 'the principal occupying power' over Taiwan and the ROC its proxy, there would have been no need to conclude this treaty; the US could have just notified the ROC via a phone call in case of military need. In other words, the right to deploy troops in Taiwan would have remained with the US as the 'principal occupier'; the ROC as the presumed proxy then could not have 'granted' such a right to the US.

International law specifies that "Military occupation does not transfer sovereignty." [Note: military occupation is not annexation and the doctrine of "prescription" does not apply.]

The quotes which some posters here on forumosa.com have provided from Oppenheim appear to fall into the realm of the first type of "occupation." That however, is not military occupation, which is what I am concerned with.

Also see FM 27-10
362. Necessity for Military Government
Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.

I am not arguing in this thread that the ROC acquired sovereignty over Taiwan through military occupation. I am only trying to show that the US is not 'the principal occupying power' over Taiwan.

http://books.google.com/books?id=G8NAAA ... &q&f=false
See p.233.