Invalid Criticism of US Executive Branch Policies
Most critics of the US Executive Branch policies on Taiwan are apparently unaware of the above analysis. Hence, they continue to proclaim that the "One China Policy of the United States is an anachronism, and urge that the US President adopt a "Two China Policy, which also recognizes the ROC on Taiwan as a sovereign state. "However, that is not going to happen, because the ROC on Taiwan doesn't meet the international legal criteria for statehood, explains Cheng-Kuang Chen, a Co-Founder of the San Francisco Peace Treaty Study Society in the Bay Area of California USA. "From the close of hostilities in WWII to the present, there has been no transfer of the territorial sovereignty of Taiwan to the ROC. The truth of the ROC's legal status is that it is merely a (1) subordinate occupying power, beginning Oct. 25, 1945, and (2) a government in exile, beginning mid-December 1949.
Yue-hung Huang, publisher of the Legal Times weekly, continues: "International law doesn't recognize any actions, procedures, or methodology by which a government in exile can become recognized as the legitimate government of its current locality of residence. Many people believe that Taiwan's flourishing democracy should enable it to be accepted as an ˜equal' by the international community of nations, but they conveniently forget that the ROC is a government in exile. Short of moving back to Nanjing, China, there is nothing which the ROC can do to upgrade its legal status in the international community. Moreover, the ROC cannot claim to hold the sovereignty of Taiwan based on the doctrine of ˜prescription' (long uninterrupted possession), because at the most basic level international law specifies that ˜military occupation does not transfer sovereignty.'
In the history of the United States, the end of the military occupation of foreign territory has always been formally announced by the Commander in Chief. More specifically, military occupation is conducted under military government, and the historical record shows that the end of United States Military Government (USMG) jurisdiction over territorial cessions such as California, Puerto Rico, Guam, Philippines, Cuba, etc. and other areas acquired under the principle of conquest was always made by formal Presidential announcement.
In the SFPT, de-jure USMG jurisdiction over Taiwan is specified in Article 4(b), however up to the present day, the US Commander in Chief has never announced the end of that jurisdiction over Taiwan territory. To look at this another way, from 1952 to the present, there has been no "civil government formed in Taiwan which is in charge of handling the island's daily affairs. From a de-facto standpoint, Taiwan remains under the jurisdiction of the ROC government in exile, hence it cannot enter the United Nations or join other international bodies under the name of "Taiwan.
Popular Sovereignty vs. Territorial Sovereignty
While remaining under military occupation, Taiwan has not yet reached a "final political status, hence its status is said to be "undetermined. Of course many local Taiwanese people have trouble agreeing with this analysis, stressing that with the advances in democratization made in the last twenty years, the Taiwan sovereignty question has been settled -- Taiwan's sovereignty belongs to its 23 million people.
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