= = = = = PART TWO = = = = =
Unfortunately, Taiwan has been colonized up to the present day by the combined Chinese (ROC) occupying authority and government in-exile. It is hard to understand upon what legal facts this recognition was/is based. The following facts are significant:
- There was no recognition by the Allies that there had been any transfer of Taiwan's territorial sovereignty to China at any time in the 1940s, and President Truman's statement upon the outbreak of the Korean War make this very clear. The only possible explanation is that Taiwan was militarily occupied territory beginning with the surrender ceremonies on Oct. 25, 1945, and has remained under military occupation pending finalization of its political status.
- International law states that military occupation does not transfer sovereignty. Consequently, before the drafting of the SFPT in the early 1950s, there could be no valid claim that Taiwan had already been incorporated into the national territory of China. Nor could there be any valid claim that native Taiwan inhabitants had already been naturalized as nationals of "China." During this era, under international law, Taiwan remained Japanese. When the ROC moved its central government to occupied Taiwan in December 1949, it was moving outside of the national territory of China.
- Under the framework of the Law of Nations, in addition to the Right of Sovereignty over Taiwan, the Government of Japan bore the Obligation of Sovereignty to Taiwan as well, while the native Taiwan inhabitants accepted their national duty to pledge loyalty and allegiance to Japan.
- Therefore, even though the Government of Japan renounced the Right of Sovereignty to the territory of Taiwan and thus lost the governance jurisdiction over the native Taiwan inhabitants and Taiwan territory in accordance to SFPT Article 2(b), such a treaty provision cannot release the Government of Japan's Obligation of Sovereignty to protect the native Taiwan inhabitants and Taiwan territory, along with the duty of the native Taiwan inhabitants to pledge allegiance to Japan.
- Consequently the Government of Japan cannot claim that it gained any authorization or legitimacy from the SFPT to deprive the native Taiwan inhabitants of their Japanese nationality.
- Surprisingly, however it was specified in Article 10 of the Treaty of Taipei, effective on August 5, 1952, that the native Taiwan inhabitants were "deemed" nationals of the Republic of China and thus deprived of their Japanese nationality. See comments on Article 10.
- Where is the legal basis for this specification? There were no such provisions included in Article 2(b) of the SFPT. Moreover, the Sino-Japanese Peace Treaty did not involve a further change in status of occupied Taiwan territory, therefore the specifications regarding "ROC nationality" for native Taiwan inhabitants are in violation of the principle that "nationality alteration should be voluntary and with the full intent of the individual involved," under relevant international laws and precedent. Additionally, these specifications also infringe on the essence of the "the Obligation of a Nation," what may be another name for the Obligation of Sovereignty, which is inherent and cannot be modified or taken exemption from as outlined by the Law of Nations.
- Therefore, depriving the native Taiwan inhabitants of their Japanese nationality is in violation of the international laws and precedent, and should be considered null and void.
- Moreover, after the abrogation of the Treaty of Taipei by the Government of Japan on September 29, 1972, the Government of Japan has already lost her Rechtsquelle (source of law) to regard the native Taiwanese as the nationals of the Republic of China. Hence, the legal identity of native Taiwan inhabitants should be restored to the original status (of the 99-day period between April 28, 1952 and August 5, 1952), which is "self-governing territory" under Japanese sovereignty within the framework under the Article 2(b) and 23(a) of the San Francisco Peace Treaty.
- Yet what we have seen since late Sept. 1972 is that the Government of Japan has not restored its Japanese nationality to the native Taiwan inhabitants, thus resulting in keeping them under the status of a "nationality suspension" caused by the de facto occupation of the Chinese (ROC) colonial regime under the tacit acceptance and approval of the United States of America. Consequently, in the eyes of the world, the Taiwan natives have become people without a country . . . . neither to be Japanese nationals nor ROC nationals. This situation was confirmed in a decision of the United States District Court on March 18, 2008, Judge Collyer affirmed that the "(native Taiwanese) Plaintiffs have essentially been persons without a state for almost 60 years."
- Then on April 7, 2009, the US Court of Appeals, Washington D.C., (Circuit Judge Brown) held that the Taiwanese "have no uniformly recognized government."
- Both the "Regarding Korea and Taiwan inhabitants Participation in National Politics Edict" (Imperial Rescript) and the "House of Representatives Electoral Amendment Law (Law No. 34)," promulgated by Emperor Hirohito on the first of April 1945 have never been abolished or cancelled, and hence are appropriate for the native Taiwan inhabitants up to this day.
- The right to participate in national political affairs for the native Taiwan inhabitants which was suspended until the ultimate legal status of Taiwan was confirmed has yet to be realized. This is due to Taiwan's status of being under military occupation from Oct. 25, 1945 to the present. Military occupation is a transitional period, or a period of "interim (political) status."
- Even though Japan was deprived her rights of administration over Taiwan by the Allies, but this does not mean that the Government of Japan can unilaterally cancel the political participation rights of native Taiwanese persons, because these rights were granted by the Emperor.
Conclusion: According to law #34, promulgated on April 1, 1945, the Taiwanese are still entitled to send three representatives to the House of Councillors and five representatives to the House of Representatives in Japan.