Importantly, if any of the members of Congress would spend some time reading the 1952 Senate-ratified SFPT, they would soon realize that Resolutions on supporting UN membership for Taiwan are a total waste of time. Taiwan is not a sovereign state, and it is not part of the ROC either. Moreover, for the Taiwanese to be carrying ROC passports is totally without legal basis.
What Passports Should the Taiwanese Be Carrying?
With this background information out of the way, there is still a need for some concluding remarks to explain exactly what passports the native Taiwanese people should be carrying. To delve into this topic, it is necessary to understand that passports are issued based on the concept of “allegiance.”
Under the customary laws of warfare, upon the surrender of Japanese troops the local populace in Taiwan will pass under a "temporary allegiance" to the conqueror, which in the post-Napoleonic era will be the principal occupying power. Moreover, the doctrine of "temporary allegiance" only exists in a single-tiered formulation. The historical record clearly shows that all military attacks against Taiwan in the WWII period were conducted by United States military forces. Hence, the United States was the "conqueror" of Taiwan, not the Republic of China.
In General Order No. 1, General MacArthur gave directions to Chiang Kai-shek of the Republic of China to accept the surrender of Japanese troops in Taiwan. The Generalissimo accepted these orders. The surrender ceremonies mark the beginning of the belligerent occupation. The United States is the "conqueror" and the "principal occupying power." Under international law, the Republic of China military forces are merely a "subordinate occupying power" under the USA.
The ROC officials have consistently maintained that the sovereignty of Taiwan was transferred to the ROC on the date of the Japanese surrender ceremonies in Taipei: Oct. 25, 1945. They then base all of their “legal logic” on this incorrect legal premise.
Looking at the actual details of the nationality determination, although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the "legal basis" of native Taiwanese persons as having ROC nationality is a Jan. 12, 1946, order issued by the ROC military authorities. Surprisingly however, that order was never ratified by the Legislative Yuan, nor made into a law. Importantly, as "belligerent occupation" of Taiwan began on October 25, 1945, with the surrender of Japanese troops, and only ended with the coming into force of the SFPT on April 28, 1952, such an order is prohibited under international law. More specifically, the imposition of mass-naturalization procedures over the civilian population in occupied Taiwan territory is a war crime.
Reference to the pronouncements of the US government, the British government, etc. in the late 1940's (and even into the 1950's) confirms that the leading Allied nations never recognized the legal validity of the mass naturalization of native Taiwanese persons as "ROC citizens" by the Chiang Kai-shek regime in the 1940's.
International law clearly specifies that military occupation does not transfer sovereignty. The proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, thus indicating a clear intention and objective to annex Taiwan territory, is a war crime.
Notably, Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.
Examination of Article 26 of the SFPT exposes further problems. This Article serves to authorize the drafting of a peace treaty between the ROC and Japan. Article 10 of the Sino-Japanese Peace Treaty (Treaty of Taipei) of August 5, 1952 specifies: "For the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendents who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores)...."
Looking at the legal record, the ROC Nationality Law was originally promulgated in February 1929, when Taiwan was a part of Japan. It was revised in February 2000, however there were no Articles addressing the mass naturalization of Taiwanese persons as ROC citizens.
Hence, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan...." have yet to be fulfilled.
Japanese Courts have held that the native persons of "Formosa and the Pescadores" were of Japanese nationality until the early Spring of 1952. In the SFPT, Japan renounced the sovereignty of Taiwan, but the ROC was not the recipient of this sovereignty. This is stated in Article 2b and confirmed in Article 21. Hence, according to the provisions of the SFPT, the ROC is not the legal government of Taiwan.
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