Taiwan is an abandoned territory

By Frank Chiang 江永芳, Taipei Times, Thursday, Aug 10, 2006

This article is a belated response to John Hsieh's letter (Letters, June 25, page 8). His piece referred to my earlier article ("Taiwan is in no way a US territory," June 8, page 8) and also touched upon some issues concerning the sovereignty of Taiwan.

Due to space constraints, this article will be confined to discussing his claim that the US acquired title to the island of Taiwan by conquest within the framework of international law.

There are three principal sources of international law: treaties, including international conventions; international custom; and general principles of law recognized by civilized nations. The International Court of Justice (the World Court) applies rules of international law arising out of these sources to adjudicate cases brought before it.

Treaties are signed by nations, or parties, which agree to be bound by the provisions of the treaty. Multilateral treaties or international conventions are agreements between many nations, which create norms of conduct and may become rules of international law that bind the parties, as well as nonparty states. International customs arise out of the consensus of the nations on practices, or are based on the writings of ancient influential writers. Hugo Grotius explained in his work The Law of War and Peace that a body of international law was created by the practices of the Western states.

In my earlier article, I asserted that the US did not acquire title to the island of Taiwan after World War II when it requested and allowed the Republic of China to occupy and administer Taiwan. The island of Taiwan did not become US territory under these circumstances because the US Supreme Court has ruled that "the victorious state is considered merely an administrator, not the owner, of the enemy's territory which it occupies during a war; a rule of international law on territory is, if the defeated state is not entirely annexed by the victorious state, then a transfer of a territory from the defeated state to the victorious state must be achieved by a treaty."

This rule is from a 1828 case called American Insurance Co v Cantor (the "American Insurance") and is further supported by the 1907 Hague Convention Respecting the Laws and Customs of War on Land.

The rule of international law which I referred to above is a customary rule developed from state practices concerning the transfer of territory between nations. The most common way of transferring territory between nations is by treaty. Alsace and Lorraine changed hands between France and Germany many times. Each time, the transfer was by treaty: France acquired Alsace from Germany by the Peace of Westphalia in 1648 after the Thirty Years War; Germany re-acquired Alsace and Lorraine from France by the Treaty of Versailles in 1871 after the Franco-German War; France again acquired Alsace and Lorraine from Germany under the Peace Treaty of Versailles of 1919 at the end of the World War I.

Other examples of transfer of territories by a treaty after a war include the Congress of Vienna (1815), which settled the territories among the European states at the end of the Napoleonic Wars; the Treaty of Nanking (1842), in which China ceded Hong Kong to Great Britain at the end of the first Opium War; the Treaty of Shimonoseki (1895), in which China ceded Formosa (the island of Taiwan) and the Pescadores (Penghu) to Japan at the end of the Sino-Japanese War; and the Treaty of Paris (1898), in which Spain ceded Puerto Rico, the Philippines and Guam to the US at the end of the Spanish-American War.

While this is the most common way of transferring territories between states, there is an exception to the rule. The exception applies when the victorious state annexes the entire defeated state. In such instances, there is no need for the victorious state to sign a treaty acquiring the entire defeated state because the defeated state no longer exists and the victorious state has no other party with whom to sign a treaty.

Hsieh, in his letter, quoted a statement of Chief Justice John Marshall in the American Insurance case: "The [US] Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty," and thereby concluded that since "[a]ll allied military attacks against Taiwan during World War II were conducted by US military forces ... the US acquired Taiwan under the principle of conquest."

I assume that Hsieh derived "the principle of conquest" from Marshall's statement which he quoted. To properly analyze the argument from a legal perspective, we must first examine the case from which our arguments are derived. The American Insurance case involved a territory acquired by the US not by conquest, but by a treaty.

In 1825, American Insurance Co insured some goods on board a ship which was to sail from New Orleans to La Havre. The ship was stranded off the Florida coast, but the goods were salvaged. The salvaged goods were sold by a Florida court in an auction to Cantor to pay the salvors.

The owner of the goods abandoned the salvaged goods to American Insurance Co after he received the insurance proceeds from the company. American Insurance Co then sued Cantor for restitution. The Florida court was established under a law of the territorial legislature of Florida after Florida was ceded by Spain to the US in 1819, but before it became a state of the US in 1845. American Insurance Co alleged that the Florida court was incompetent to sell the goods because, it argued, that selling salvaged goods was an exclusive jurisdiction of the US Federal courts and the Florida court had no authority to sell the goods.

The US Circuit Court distinguished a territory acquired by a treaty from another state (nation) and a territory acquired from Aborigines by conquest and ruled for Cantor. The US Supreme Court, in affirming the judgment of the Circuit Court, emphasized that Florida was a territory acquired from Spain by a treaty.

Hsieh did not mention that Chief Justice Marshall, after making the statement quoted by him, stated that: "The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace."

Thus Marshall's second statement indicates that the term acquiring territory by conquest in the first statement quoted by Hsieh refers to a situation where a nation is entirely subdued (annexed). The statement also indicates that unless a nation is entirely subdued (annexed), the occupation of territory is merely a military occupation.

Thus, a customary rule exists, as Marshall pointed out, that unless the victorious state annexes the entire defeated state, it can only take title to a territory of the defeated state by a treaty; the victorious state which occupies an enemy's territory is only an administrator, not the owner.

This international law is also recognized and codified by the 1907 Hague Convention Respecting the Laws and Customs of War on Land (also called the Laws of War). Article 55 of the Convention states, "The occupying state [of an enemy's territory] shall be regarded only as administrator."

If a "principle of conquest" may be derived from the opinion of Marshall, the principle is that a victorious state in a war may claim to acquire (annex) a defeated state in its entirety without a treaty. Under this principle, it is essential that the victorious state has the intention to annex the entire defeated state.

A conquest of an enemy state without intention to annex the defeated state will not result in acquiring title to the entire state. After Japan surrendered unconditionally to the US in 1945, by international law, the US could have annexed Japan, but it did not. (At the San Francisco Conference on the Proposed Japanese Peace Treaty, John Foster Dulles, who was representing the US, said that "[t]he United States, which for [six] years has been and is the occupying power [in Japan], could practically do much as it wanted.") The US did not annex Japan because it was politically impractical and inconceivable.

Had the US annexed Japan, the US would have acquired the island of Taiwan without a treaty because from 1895 till 1952, the island of Taiwan was Japan's territory. However, the US claimed neither Japan nor its territory of Taiwan.

One reason that the US did not do so is that it could not do so without violating the principles it announced in the Cairo Declaration.

The Cairo Declaration, issued by the governments of the US, UK, and China in 1943, states: "The Three Great Allies covet no gain for themselves and have no thought of territorial expansion. It is their purpose that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [the island of Taiwan] and the Pescadores [Penghu], shall be restored to the Republic of China. The aforesaid three great powers are determined that in due course Korea shall become free and independent."

As I discussed in another article ("No state has title to Taiwan," Oct. 3, 2005, page 8), the Cairo Declaration was only a statement of common intent of the three Allies during the Pacific War, and therefore, they had no legal obligation to deliver the island of Taiwan to China after the war.

Furthermore, in the Cairo Declaration the Allies announced two principles for dealing with the postwar settlement of territories: The principle of non-aggression and the principle of no territorial ambitions. Subsequently, China, represented by the government of the People's Republic of China, violated the two principles by invading South Korea in 1950.

Because of the violation by China, the US and the UK altered their positions on the fate of the island of Taiwan. The US and the UK, instead of delivering Taiwan to China, required Japan to renounce title to the island in the Peace Treaty of San Francisco without designating a transferee. Thus, title to the island of Taiwan was not transferred to China or the US in the treaty. One of the reasons why the US did not claim Taiwan after the war is that the US was bound by the principles announced in the Cairo Declaration.

Taiwan is currently an abandoned territory of Japan, over which no country has a legitimate claim. The US cannot claim title to the island of Taiwan unless the people of Taiwan, as the collective owners of the island, request the US to take the island. Citations to the quotations and treaties can be found in my article "One China Policy and Taiwan" in the Fordham International Law Journal (December 2004).

Frank Chiang is president of the Taiwan Public Policy Council in the US and professor of law at Fordham University School of Law in New York City.