Brimstone & Co.
Jonathan Levy
Attorney & Solicitor
1629 K Street NW Suite 300
Washington DC 20006 USA
Tel/Fax 1-202-318-2406
[Date]
[Agency)
This a Freedom of Information Act request by the TCG Foundation.
The TCG Foundation has the stated purpose of demanding the implementation of Articles 2(b), 4(b) and 23(a) of the San Francisco Peace Treaty (SFPT) under which Taiwan (aka “Formosa and the Pescadores”) is militarily occupied territory of the United States of America. See our APPENDIX for further details.
As part of the purpose of demanding the implementation of these Articles of the SFPT, the TCG Foundation wants the American Flag (aka Stars and Stripes) and the United States “Taiwan Occupation flag” to be raised over all United States installations and offices in occupied Taiwan.
Therefore before implementing its formal flag raising request to the United States government, the TCG Foundation, pursuant to the Freedom of Information Act, needs to know the following information:
1. Location of all current agency facilities in Taiwan as well as the location of any other related facilities there with significant agency staff including staff on temporary assignment or inactive status assigned to other government or non government agencies.
2. Type of flags and indicia (US, ROC, unmarked, other) utilized at those facilities above, if any, and if none, confirmation of that fact.
3. All agency policies from April 28, 1952 to date regarding the use of flags and indicia in the US occupied territory of Taiwan (aka “Formosa and the Pescadores”).
The information requested is for the reasons stated above and the request is not intended to nor does it intrude upon the national security of the United States or occupied Taiwan.
TCG Foundation agrees to pay reasonable and customary copying costs and preauthorizes costs up to $200 beyond which the agency should contact TCG Foundation.
Please confirm this request by fax 1-202-318-2406 or email to
If any further clarification is required please contact me immediately.
Thank you for your help and cooperation,
ADDENDUM
According to the best information which the TCG Foundation has been able to obtain from reliable sources in Taiwan, the following installations, offices, and/or locations in Taiwan have significant numbers of US Dept. of Defense personnel, under the direct supervision of the relevant US DOD agencies/departments.
Location in Taiwan1) / AIT Taipei Office
No. 7, Lane 134, Sec. 3, Xinyi Road, Da-an District, Taipei City 10659 TAIWAN
2) / AIT Kaoshiung Branch Office
5F., No. 2, Zhongzheng 3rd Road, Xinxing District, Kaohsiung City 80052 TAIWAN
3) / AIT Taipei New Headquarters Office
No. 100 Jin Hu Road, Nei Hu District, Taipei, TAIWAN
4) / CCK Airbase
Taichung, TAIWAN
5) / Jia Shan Airport
Hualien, TAIWAN
6) / Le Shan Radar Station
Hsinchu, TAIWAN
7) / Tainan Airport
Tainan, TAIWAN
Note: “AIT” is an abbreviation for “American Institute in Taiwan”
APPENDIX
Mission: Raising the United States Flag(s) in Taiwan
Taiwan[1] is an island of over 34,000 sq km (over 13,300 sq mi) situated in the western Pacific Ocean off the southeastern coast of the Chinese mainland. Taiwan's current international legal status may be given as follows: Taiwan is de jure militarily occupied territory of the United States of America.
Background Issues to Discussing Taiwan's Legal Status
In order to explain the derivation of this legal status, it is compulsory that one have an intimate knowledge of the laws of war[2] (also frequently called the “customary laws of warfare”) of the post-Napoleonic period. Unfortunately, 99% of the civilian officials in the White House, National Security Council, Central Intelligence Agency, Dept. of State, or the American Institute in Taiwan do not a background in “laws of war” studies. Hence, for over sixty years, a clear statement of Taiwan’s international legal position has been beyond the reach of 99% the officials in the Executive Branch (with the possible exception of certain knowledgeable persons in the Dept. of Defense).
As civilians, Executive Branch officials typically have very limited knowledge of legal topics which fall under the broad categorization of “military jurisdiction under the US Constitution,” and which include not only specific details of the decisions in relevant US Supreme Court cases, but also the Hague and Geneva Conventions, the content of US Army Field Manuals, the writings of recognized experts in laws of war studies, customary precedent in dealing with military occupation issues, the specific steps in the disposition of territorial cessions after war, and a wide variety of related topics. This Appendix explains these topics in detail, and many informative footnotes are also provided.[3]
Military Occupation: Three Questions
“Territory is considered occupied when it is actually placed under the authority of the hostile army.” Such a definition of military occupation is given in the Hague Regulations of 1907, later included in US Army Field Manual FM 27-10 (first edition Oct. 1, 1940), and recognized internationally as part of the laws of war of the post Napoleonic period, which is binding on all civilized nations.
While this definition and its application are important in recognizing situations of military occupation, and in particular in making an answer to the question of (1) When did the occupation begin? Nevertheless, two additional questions are also of central importance. These questions are: (2) Who is the occupying power? (3) When did the occupation end?
To date, the most authoritative statements of Taiwan's international legal position issued by Dept. of State, namely the 1961 Czyzak Memorandum and the 1971 Starr Memorandum, do not discuss the fundamentals of military occupation or analyze these three questions.
In fact, it has only been in the last few decades that many civilian scholars have come to the conclusion that the Oct. 25, 1945, Japanese surrender ceremonies in Taiwan were merely the beginning of the island’s military occupation.[4], [5] However, these scholars still lack the intimate knowledge of the laws of war necessary to delve into the answers to the latter two questions.
The United States’ Right to Occupy Taiwan
Looking at the historical record, after the Japanese attack on Pearl Harbor, the United States declared war on the Empire of Japan on Dec. 8, 1941. During the war, all military attacks[6] on (Japanese) Taiwan were conducted by United States military forces,[7] so from the standpoint of the laws of war it is clear that the United States has the right to occupy Taiwan due to the fact of conquest.[8]
The United States is the "conqueror," and according to the customary laws of warfare in the post-Napoleonic period, the United States is uniquely eligible to hold the position of the principal occupying power.[9] The San Francisco Peace Treaty (SFPT)[10] confirms the United States as “the principal occupying power” in Article 23(a), and the scope of application of this status is given in Article 4(b),[11] which discusses military government.
As defined by US Supreme Court justices in Ex parte Milligan 71 U.S. 2 (1866), "military jurisdiction" under the US Constitution is of three kinds. In particular, so-called "military government" is: "to be exercised in time of foreign war without the boundaries of the United States . . ."
Or, in more modern terminology, "military government" is the form of administration by which an occupying power exercises government authority over occupied territory.[12]
Hence, in laws of war studies, the correspondence between two important concepts can be emphasized as follows: Governmental authority over occupied territory is called military government. Therefore, an area under military government is occupied territory.
In General Order No. 1,[13] issued on of Sept. 2, 1945, the Allied Powers (led by the United States) delegated the military occupation of Taiwan to Generalissimo Chiang Kai-shek (aka Chinese nationalists or Republic of China). The surrender ceremonies for Japanese troops in Taiwan were held on Oct. 25, 1945, hence this date also marks the beginning of Chinese Military Government jurisdiction on Taiwan.[14], [15] Significantly, the authority for this occupation was handled separately from that of the four main Japanese islands.
As the Chinese Civil War continued to rage in those turbulent years, the People's Republic of China (PRC) was founded on Oct. 1, 1949, and the remnants of the Republic of China regime fled to Taiwan, an area over which the Chinese colonial regime was accepted, by the authority of the United States of America, to exercise the combined roles of Chinese military occupiers and (as of Dec. 1949) Chinese government in exile.
Then in the post-war SFPT, Japan renounced all right, title and claim to Formosa and the Pescadores founded on the rights of sovereignty over Taiwan. However, no recipient country was named.[16] The following Articles of the treaty are particularly important in relation to Taiwan:
Article 2(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
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.
Article 23(a) ..... including the United States of America as the principal occupying Power, .....
With the coming into force of the SFPT, Taiwan has remained under the jurisdiction of the Chinese colonial regime exercising a proxy occupation as an interim agent of the United States Military Government of Taiwan, ratified by the Presidents of the United States. This is an interim status condition.[17] In other words, Taiwan has not yet reached a “final political status.”[18] A comparison of the legal status of (1) Taiwan territory, (2) the ROC in Taiwan, and (3) the United States of America in Taiwan are presented in Chart #2.
Under such a situation, and considering the established precedent in dealing with other territorial cessions in the history of the United States,[19] the President of the United States as the Commander-in-Chief of the United States Military Government of Formosa and the Pescadores should establish a civil government[20] for the people of Taiwan in the occupied territory.
Under international law, and indeed under United States law, Taiwan is de jure occupied territory of the United States of America.[21] Hence, it is impossible to understand why the flag of the Republic of China has been prominently displayed everywhere in Taiwan beginning in late Oct. 1945, and why the flag of the "conqueror" and "principal occupying power" (the United States) is not flying on any flagpole.[22], [23], [24]
After the coming into force of the San Francisco Peace Treaty on April 28, 1952, the United States has the right and also the obligation to deal with all matters concerning the governance of Taiwan.[25], [26]
In conclusion, the United States flag(s) should be flying over Taiwan.[27]
Chart #1
CUBA & TAIWAN
A closer examination of the situations of Cuba (according to the Treaty of Paris) and Taiwan (according to the San Francisco Peace Treaty) may be made as follows:
Item / Treaty of Paris specifications for Cuba / SFPT specifications for TaiwanUnited States is the (principal) occupying power / Article 1 / Article 23(a)
Original "owner" did indeed cede the territory / Article 1 / Article 2(b)
No "receiving country" was specified (i.e. "limbo cession") / Article 1 / Article 2(b)
USMG has disposition rights over the territory / Article 1 / Article 4(b)
Military government is present, and military occupation is a reality / Article 1 / Article 4(b) and the Hague Conventions (1907)
Chart #2
LEGAL STATUS COMPARISONS
The following dates are extremely significant in Taiwan’s recent history.
¨ Oct. 25, 1945 -- the Japanese surrender ceremonies on Taiwan
¨ Dec. 10, 1949 -- the relocation of the Republic of China central government to Taiwan
¨ April 28, 1952 -- the coming into force of the San Francisco Peace Treaty
For each date, it is important to be able to fully clarify the legal status of (1) Taiwan territory, (2) the ROC in Taiwan, and (3) the United States of America in Taiwan. This information is provided below.
Date / the legal status of Taiwan territory / the legal status of the ROC in TaiwanOct. 25, 1945 / An independent customs territory under USMG on Japanese soil, with administrative authority for the military occupation delegated to the Chinese Nationalists / (1) a subordinate occupying power under USMG
Dec. 10, 1949 / An independent customs territory under USMG on Japanese soil, with administrative authority for the military occupation delegated to the Chinese Nationalists / (1) a subordinate occupying power under USMG, (2) a government in exile
April 28, 1952 / Unincorporated territory under USMG. In other words: a quasi-trusteeship under military government within the US insular law framework / (1) a subordinate occupying power under USMG, (2) a government in exile
The United States of America is the principal occupying power.
Note: A government in exile may be defined as “A political group that claims to be a country's legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country or area,” or more simply as “A government established outside of its territorial base.” When the ROC moved its central government to occupied Taiwan in Dec. 1949, Taiwan was still sovereign Japanese territory.