Hmortar

Legal status of Taiwan

Hello there, I looked at the link you mentioned at the talk page of "Legal status of Taiwan," and other than the simple rehash of the SFPT arguments, I'm not sure what your point is. Could you please explain, with regard to Colin Powell's statements? Thanks. (FWIW, said page is obviously highly POV for reasons listed in the main article "Legal status of Taiwan.") Ngchen 15:04, 16 November 2005 (UTC)

Hmortar replies -- it all depends on your explanation of the significance of Oct. 25,1945. If you recognize that that is the beginning of the military occupation of Taiwan, then there was no transfer of sovereignty on that date. The claim of that day being "Taiwan Retrocession Day" then evaporates. Hence, when the ROC moved to Taiwan in December 1949, it became a government in exile. In the SFPT, the sovereignty of "Formosa and the Pescadores" was not awarded to the ROC. While no one doubts that the Taiwanese people have the right to vote to elect their government officers, and the right to impeach government officials, etc. (i.e. "popular sovereignty") they do not have "territorial sovereignty" over the area of Formosa and the Pescadores, and that is what Sec. of State Powell was speaking of. Hence, his statement was correct. Also see

• The Fourth Geneva Convention, Military Occupation, and Taiwan

Well, IIRC interpreting his statement that way is taking his speech out-of-context. As was mentioned in the discussion of the article, when taken in context, he seemed to be suggesting PRC sovereignty. At least that was how it was received, and critics blasted him (for in their view) the ridiculous claim. Whether he was technically correct or not I think is first, a legal issue that was already addressed in the arguments section, and second, probably irrelevant in terms of the "official" US position (which may or may not exist, FWIW). IMO, it's interesting how the people supporting Taiwan independence are often eager to push for US sovereignty. After all, if the US were sovereign over Taiwan, then by default there is no Taiwan independence. But anyway that's kind of irrelevant. IMHO, the Chinese claim by dint of prescription is probably the strongest argument of them all, from the totality of the arguments that have amassed. No one other than China has ever persistently claimed and exercised sovereignty over the island for the decades after WWII, and no one has ever persistently and consistently made any counterclaim for these decades. But the validity of that is just my opinion :-).

Hmortar replies -- Military occupation does not transfer sovereignty, so the doctrine of "prescription" cannot be invoked. (Look at the situation of the Israeli pullout from the Gaza strip as an example.)

I'm not sure what you mean by the Israeli pullout of Gaza. FWIW, Israel never claimed sovereignty over Gaza ......

Hmortar replies: I have many Jewish friends who claim that Israel had sovereignty over the Gaza Strip.

Hmmm. That is interesting. I wonder whether the Israeli government has ever officially proclaimed itself sovereign over Gaza. As far as I know, the answer is no. But I may be wrong.

As a matter of fact, the Israelis always regarded it as "disputed" or "unsettled." Israel itself regarded it's occupation of Gaza as an occupation, and has never proclaimed any annexation of it. Had Israel proclaimed annexation, (1) there would be protests galore by entities like Egypt and Jordan, and (2) there would be an international outcry. Anyway, Israel never did it, so the question is moot.

Prescription is the transfer of sovereignty whereas the original sovereign, by either negligence or neglect or some other reason, does not behave as a sovereign at all with regard to said territory, and negligently (w/o giving any sort of permission such as leasing or such) allows some other entity to act as sovereign over the area in question. If the situation persists for years and years w/o the original "rightful" sovereign raising a protest, sovereignty is transferred, more or less based on the "abandonment" of the territory by the original entity. A similar rule exists for personal real estate, called adverse possession.

Hmortar replies: This is fine in the realm of civilian law. However, military occupation does not transfer sovereignty, so the doctrine of "prescription" cannot be invoked.

You are correct that military occupation by itself does not transfer sovereignty. That is not what this argument from prescription entails though. It's easy to accidentally convert an opposing argument into a straw man, and miss the point. The basic idea behind prescription is that it does not matter how a new would-be sovereign takes over a place, and runs it as its own, if the original sovereign for all practical purposes ceases to claim the place and/or protest the acts of the new would-be sovereign. For prescription to be valid, the "abandonment" can be inferred, but has to persist for a period of many years. FWIW, the rule exists mainly to prevent ever shifting boundaries based on putative discoveries of ever older documents claiming different boundaries (from another US case, Virginia v. Tennessee), making it impossible to ever securely own anything. (Let's say X grants sovereignty to Y for an area. Without said rule, Y can never be sure that X ever "legitimately" held the area in question. So then there can always be a Z who'll come along and claim the area from Y, alleging that X had earlier stolen the area from Z and therefore the transfer to Y is void as X never legally owned it.)

For an example of sovereignty transfer by prescription (albeit a US domestic example), see the case of Georgia losing certain islands to South Carolina. Basically, the original charter of Georgia included the islands; however, when South Carolina took the islands and built a bridge and engaged in other construction on the islands (acting as the sovereign over the islands), Georgia was silent. The silence went on for years and years, and as such, the US Supreme Court ruled that sovereignty over the islands had transferred to South Carolina by prescription. Georgia's ignoring South Carolina's open and continuous use and claims over the islands for many years had extinguished Georgia's original claim, notwithstanding the original charter and treaties in favor of Georgia. So for the case of Taiwan, the case for prescription is basically that the Oct. 25, 1945 proclamation (which was made to all, hence it was open) was not contested by any would-be sovereign at all even up to today in terms of a protest or counterclaim. The claims were consistent and open, and (the key point here) uncontested by any other sovereign. Hence, if whatever sovereign, let's call it X, had originally held Taiwan's sovereignty, it had relinquished it by its silence and acquiesence over the years.

Hmortar replies: The claims were contested by the Taiwanese and the KMT shot tens of thousands of them.

That counterargument was already included in the article. The "tens of thousands" is somewhat questionable, but yes, the KMT was a brutal dictatorship which killed many, if not most, of its opponents. And, FWIW, if you accept Hartzell's claim that individual people/groups of people, as opposed to states, can't be sovereign over territory, then the protests would be irrelevant from a legal standpoint. IMO, the self-determination argument is a very strong one, and if the people of a well-defined area truly wish to change the sovereign status of that area, they have a very good claim for doing so, notwithstanding whatever treaties, proclamations, and such to the contrary.

One more thing. It is entirely possible that the event back then was perhaps both a temporary (de facto) occupation and a resumption of sovereignty.

Hmortar replies: Taiwan was ceded to Japan in 1895.

Although the PRC disputes that. Anyway, most of this is all in the article already.

After all, militaries often occupy de facto areas in civil disorder or immediately in the aftermath of war or other chaos.

Hmortar replies: Yes, but they don't obtain sovereignty, do they  ??

Not by themselves. No one is claiming that a military is sovereign over anything. Rather, people are claiming that the state of China did/did not obtain sovereignty over Taiwan through a variety of arguments, which the article attempts to cover.

The interesting thing about the prescription argument is that yes, the anti-ROC critics would be correct in stating that the ROC is acting as a squatter if we take the prescription argument at face value. However, prescription is the international form of "squatter's rights," and in this case, it can be argued that that rule allowed the squatter to "win," since no one seemed to question the squatting for decades. Anyway, back to Powell's statement. I'm still not understanding what you're claiming he meant. Are you asserting that he meant to say that Taiwan's sovereignty was in limbo, or being held by X? I certainly remember it differently, in that the reports from that period all seemed to imply that his talk was very pleasing to his PRC hosts. As you probably know, the PRC has consistently claimed to be sovereign over Taiwan, so it would be inexplicable if he meant something that would be completely disagreeable to the PRC, for the PRC hosts to be happy to hear it. Some of this stuff was discussed previously with Mababa, Jiang, and others on the article's talk page, which IMO is an interesting read in itself <smile>.Ngchen 01:47, 17 November 2005 (UTC)

Hmortar replies: Military occupation does not transfer sovereignty, so the doctrine of "prescription" cannot be invoked. Hmortar 16:21, 21 November 2005 (UTC)

There isn't a need to repeat oneself that many times, IMO. Anyway, since Wikipedia isn't a soapbox, what was it that you wanted to add that isn't covered in the article already? Or was it an improvement that you wanted to make? What was it about Powell's statement or lack thereof? Thanks.Ngchen 03:59, 22 November 2005 (UTC)

Hmortar replies: The point to be made about former Secretary of State Powell's remarks to the effect that "Taiwan does not enjoy sovereignty as a nation .... " is that these remarks are solidly based on legal principles. There is no international agreement which shows a transfer of "territorial sovereignty" to the government of Taiwan, (by whatever name that government chooses to call itself.) The many comments above (by various people) about "prescription" do not work, and I have stated the rationale at least three times already ...... so I won't repeat it again. Moreover, if "prescription" was valid, Taiwan would long since have been a member of the United Nations, and Sec. Powell would not have made his remarks of October 25, 2004 in Beijing.

Additionally, it is easily seen from legal studies (some US Supreme Court cases actually mention this) that "territorial sovereignty does not disappear." At the present time, the Taiwanese seem to be under the impression that "sovereignty" is some sort of flowering plant, and if it has shriveled, it can be brought to life again by various actions ..... But this is mistaken. "Territorial sovereignty" does not disappear. If the PRC does not have it, and the ROC does not have it, then someone else has it. "Territorial sovereignty" is simply "title," which is included in the concept of "property." It is always held by a government.

Talk:Military occupation

You signed all the others but you forgot to sign your last entry on Talk:Military occupation please could you do so. --Philip Baird Shearer 09:55, 11 September 2006 (UTC)

re Proxy occupation

I deleted this article, for the reasons specified here: Wikipedia:Articles for deletion/Proxy occupation. I appreciate your work though, and if you want to add some bits to the article Military occupation that might be possible. Herostratus 16:32, 5 April 2007 (UTC)

March 2008

Welcome to Wikipedia, and thank you for your contributions. One of the core policies of Wikipedia is that articles should always be written from a neutral point of view. A contribution you made to Taiwan appears to carry a non-neutral point of view, and your edit may have been changed or reverted to correct the problem. Please remember to observe our core policies. Thank you. nat.utoronto 15:29, 28 March 2008 (UTC)

Your obssession with that one lost lawsuit

I am not sure if you are here on Wikipedia for propaganda purposes. But you seem to have an obsession with spreading the plaintiff's view without balancing it with the defendant's view. Your edits clearly are not neutral. At the very least, the plaintiffs lost the lawsuit and they are forced to appeal, so obviously the Court didn't agree with their main arguments.

Further, the way you use the source is against the reliable source rules. Primary sources like a judgment cannot be cited that way on Wikipedia. You cannot just take a sentence from her honour's judgement and conclude the US court said "Taiwanese people are stateless". There is a difference between Ratio decidendi and Obiter dictum in judgements. I suspect tha you just took the Obiter dictum - if that sentence is the Ratio decidendi, then the US government would be issuing the Taiwanese UN travel documents since they are stateless.--pyl (talk) 13:29, 23 December 2008 (UTC)

September 2009

Welcome to Wikipedia. We welcome and appreciate your contributions, including your edits to Taiwan Province, but we cannot accept original research. Original research also encompasses novel, unpublished syntheses of previously published material. Please be prepared to cite a reliable source for all of your information. In addition, the statement you added also has issues with maintaining a neutral point of view. Thank you. Ngchen (talk) 14:37, 15 September 2009 (UTC)

January 2010

Please do not add content without citing verifiable and reliable sources, as you did to Washington Naval Treaty. Before making any potentially controversial edits, it is recommended that you discuss them first on the article's talk page. Please review the guidelines at Wikipedia:Citing sources and take this opportunity to add references to the article. Thank you. -MBK₀₀₄ 06:06, 22 January 2010 (UTC)

Yes, the treaty is verifiable and reliable, but you still must follow WP:CITE for all edits regardless. That is a cornerstone policy and is non-negotiable. -MBK₀₀₄ 02:25, 23 January 2010 (UTC)

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