Taiwan: The Raising of the Flag
Part 1
Many people are interested in obtaining a simple explanation of Taiwan’s international legal position. What most people don’t realize is that a very simple and coherent explanation can be found by considering the so-called Customary Laws of Flag Raising.
Here is a book called “Flags of our Fathers,” written by a Mr. James Bradley, who is the son of one of the men in the famous photograph. As we know, theUnited Statesflag was raised over Iwo Jimaon February 23, 1945.
In the United States we have an Iwo Jima Memorial in Washington, D.C. The statue there commemorates the brave actions of all the US Marines who fought in the battle to gain control of the island during the period of February and March of 1945, including the many who lost their lives.
Iwo Jima is a volcanic island which lies south of Tokyoapproximately 650 miles (or 1046 km). In order to proceed in military attacks against the main Japanese islands, the United States considered Iwo Jima to be an important strategic objective, and spent over a month in attacking and conquering the island. When we gaze upon the Iwo Jima Memorial, we may pause to think: What is its true significance? What lesson can it teach us in regard to clarifying Taiwan's international legal position?
As everyone knows, Iwo Jima is not United States territory. So, why was the US flag raised over Iwo Jima? Most people would say: "This is because the soldiers who landed on the island were US Marines, so of course they raised the US flag!"
If we examine this matter a bit further and ask our Taiwanese friends: "When a foreign military force takes over a geographic area, what is the rule regarding what country's flag should be raised?" then most people will reply "We should just consider the nationality of the soldiers who arrive on the scene, and then that country's flag should be raised!"
Most people consider this to be sound logic, but in fact it is not very precise. We may even say that this sort of reasoning contains a number of blind spots.
The Customary Laws of Flag Raising
Most countries which have engaged in war in the last several hundred years have seen numerous instances of their flag flying over foreign territory. Nevertheless, it is probably a surprise to most persons that there are actually laws regarding such matters. For the most part, these laws have not been fully codified, hence they are referred to as "customary laws."
Looking back at the early days of the United States, there was a British invasion of Castine, Maine, during the War of 1812 and the British flag was raised. Such a military action is not "annexation," rather Britain's position as the conqueror means that Britain will be "the occupying power." Any matters regarding territorial cession are specified in a post-war peace treaty. In the Treaty of Ghent, this section of Maine was not ceded to the British, so of course the British flag came down and the US flag went back up.
However, even from this simple British example we can get an insight into certain "customary laws." Specifically, we see that
(1) territory can be "acquired" under the principle of conquest,
(2) the conqueror is "the occupying power,"
(3) the flag of the conqueror (which we also refer to as “the occupying power”) is raised,
(4) the correct disposition of conquered territory is "military occupation" followed by a peace settlement.
If there are territorial cessions involved, then a peace treaty is required. Contrastingly, the announcement of the outright "annexation" of occupied territory is a war crime.
Can such a customary law formulation help us to understand Japanese attacks on the USAbeginning inDecember 1941? During WWII, Japan acquired Guam and portions of the Aleutian Islands. These territories were under military occupation by Japan, but not annexed. Japan was the conqueror and thus the occupying power, so the Japanese flag was flying. Yes, our four point formulation works exactly.
What about US attacks on Japan? During WWII, the US acquired many overseas territories of Japan, and Iwo Jima was one famous example. The United States was the conqueror and the occupying power. The US flag was flying. In the post-war San Francisco Peace Treaty (SFPT), Iwo Jima wasn't a territorial cession, so US troops left the area, and the Japanese resumed control. Again, our four point formulation gives the correct framework.
Now let's turn to Formosa and the Pescadores, also known as "Taiwan." Taiwan had been ceded to Japan in the 1895 Treaty of Shimonoseki. After Pearl Harbor, the United States declared war against Japan on Dec. 8, 1941. During the WWII period, all military attacks against (Japanese) Taiwan were conducted by US military forces, so it is clear that the USA acquired Taiwan under the principle of conquest. According to the customary laws of warfare, the United States is the conqueror and the occupying power. US military troops were in Taiwan in early September 1945.
However, at this point some unusual events occurred. Gen. MacArthur delegated the holding of the surrender ceremonies to Chiang Kai-shek of the Republic of China. After the surrender of Japanese troops in Taiwan on Oct. 25, 1945, the flag of the ROC was raised, and the ROC military forces announced "Taiwan Retrocession Day," saying that Taiwan had been annexed.
Clearly, these actions fall entirely outside of the four point formulation given above. While it is true that CKS held the surrender ceremonies on behalf of the Allies, nevertheless legally speaking the ensuing military occupation of Taiwan is being conducted on behalf of "the conqueror" and "the occupying power" - and that is the United States.
What is the correct procedure for the raising of the flag over Taiwan in late October 1945? Here it is. The United States flag is on the top, the ROC flag is on the bottom. The United States is the principal occupying power.
Please be sure to watch Part 2 of this series for more details.
Taiwan: The Raising of the Flag
Part 2
As explained in Part 1 of this series, this is the correct procedure for the raising of the flag over Taiwan in late October 1945. The United States flag is on the top, the ROC flag is on the bottom.
The ROC is not "the occupying power," it is only "an occupying power," or more properly "a subordinate occupying power." The ROC is exercising delegated administrative authority for the military occupation of Taiwan under the United States Military Government (USMG). Announcement of the annexation of Taiwan territory is a war crime.
Taiwan under the SFPT
On Oct. 1, 1949, the People's Republic of China was founded, and in the ensuing months the remnants of the ROC government fled to occupied Taiwan. By moving its central government to occupied Taiwan, the ROC has become a government in exile.
Some two years later, in late April, 1952, the San Francisco Peace Treaty came into force. Japan renounced the sovereignty of Taiwan, but no receiving country was designated. Hence, Taiwan remained under the administrative authority of USMG. Surprisingly however, the flag of the ROC continued to be displayed everywhere.
Iwo Jima wasn't ceded to the United States, so of course the US flag came down. Taiwan wasn't ceded to the ROC, so why is the flag of the ROC government in exile still flying? Where is the flag of the United States military authorities? That's the same flag that US civilians know as "the star-spangled banner."
Here is the correct procedure for the flying of the flag over Taiwan beginning in late April 1952.
So, what is the international legal position of Taiwan under this framework? Taiwan is an overseas territory under the jurisdiction of the United States Military Government (USMG). Territory held under military government has not reached a final political status, and may be said to be “undetermined.”
What about the Republic of China? The ROC on Taiwan is (1) a subordinate occupying power, beginning Oct. 25, 1945, and (2) a government in exile, beginning mid-December 1949. The United States is the principal occupying power.
Unfortunately, most people don’t understand the analysis given above. As a result, in regard to the Taiwan question, many people say that the stance of the US Executive Branch is filled with contradictions. But is it really? When we go back and consider what flag should be flying over Taiwan today, how does that help us to understand the US Executive Branch’s policy statements on Taiwan?
Let’s do a quick overview.
First let’s look at the One China Policy and the three joint communiques. What does the One China Policy say? In fact, the One China Policy merely says that the PRC is the sole legitimate government of China. That is all that it says.
In July 2007 the Congressional Research Service published a report for the US Congress entitled "Evolution of the One China Policy." In the Summary at the beginning of that report the following points were made --
(1) The United States did not explicitly state the sovereign status of Taiwan in the threeU.S.-PRC Joint Communiques of 1972, 1979, and 1982.
(2) The United States“acknowledged” the “one China” position of both sides of the Taiwan Strait.
(3) U.S.policy has not recognized the PRC’s sovereignty over Taiwan;
(4) U.S. policy has not recognizedTaiwan as a sovereign country; and
(5) U.S. policy has considered Taiwan’s status as undetermined.
There is no contradiction with our analysis whatsoever. Taiwan is an overseas territory of the USA under military government, and the US flag should be flying.
What about the Three Noes of President Clinton? He said: "We don't support independence for Taiwan; ….. or 'two Chinas'; or 'one Taiwan, one China'; ….. and we don't believe that Taiwan should be a member in any organization for which statehood is a requirement."
There is no contradiction there either. Taiwan is a geographical term, not the name of a country. At the same time, the ROC on Taiwan is a government in exile.
Let’s go back to the Senate-ratified San Francisco Peace Treaty of 1952. In this treaty, Japan renounced all claims to Taiwan, but no receiving country was specified. So, I repeat that there is no reason for the ROC flag to be flying over Taiwan after late April 1952. What flag should be flying? The treaty does recognize the USA as the principal occupying power in Article 23, and then in Article 4b states that the United States Military Government has jurisdiction over Formosa and the Pescadores. So, the US flag should be flying.
Let’s turn to the Treaty of Taipei, which is the peace treaty between the Republic of China and Japan. In that treaty, the arrangements of the San Francisco Peace Treaty are fully recognized. In fact, the Treaty of Taipei is just a subsidiary treaty under SFPT Article 26. So, there is no contradiction with our analysis there.
Let’s look at the Taiwan Relations Act, which is domestic legislation of the USA. Under the TRA the United States treats Taiwan as a "foreign state," however in terms of foreign relations, we know that the US Executive Branch does not consider Taiwan to be an independent sovereign nation. Taiwan is thus "foreign in a domestic sense," which is precisely the description attached to the United States' newly acquired insular possessions of Puerto Rico, Guam, Cuba, and the Philippines after the Spanish American War of 1898.
So there is no contradiction there either. We are left with one conclusion: the US flag should be flying.
Additionally, at this juncture, it is important to clarify the following point: the Taiwan question is not an issue which has grown out of the Chinese civil war in the late 1940’s. A close examination of the legal and historical record shows that the Taiwan question is an issue left over from WWII in the Pacific.
In conclusion, as we think about the significance of Flag Day on June 14, this is one question which all patriotic Americans should be seriously concerned about: "Why isn't the US flag flying over Taiwan?"