A press release issued on Oct. 2, 2008, by the Taiwan Civil Alliance offered some penetrating analysis on a Swiss Court’s ruling regarding the international legal status of Taiwan. The press release is repeated here for reference:

Swiss Court Should Amend Ruling in Taiwan Case

The Taiwan Civil Alliance deplores the recent ruling of the Geneva First Instance Court in regard to the international legal status of the Republic of China (Taiwan).

Background to the Court Case: In July 2007, the Taiwan governing authorities filed a lawsuit against the International Organization for Standardization (ISO) in Geneva, Switzerland. The lawsuit was in response to the ISO’s failure to respond to repeated requests from Taiwan for a name change designation in the ISO 3166 country codes list.

During court hearings held in November 2007 and February 2008, lawyers for the ISO maintained that the country codes list was created in 1974 in accordance with the United Nations' practice of referring to Taiwan as "Taiwan Province, China." Accordingly, they argued, this appellation on the ISO country codes list simply follows commonly accepted international practice.

The Taiwan governing authorities do not agree, and the lawsuit demands that the organization correct Taiwan's designation from "Taiwan Province, China" to "Republic of China (Taiwan)" in the country codes list, based on the simple fact that Taiwan is not a part of the People’s Republic of China. However, in an attempt to block Taiwan's legal action, the ISO challenged Taiwan's legal eligibility as a plaintiff during all previous court hearings.

Historical Details: After the Republic of China (ROC) was expelled from the United Nations in October 1971, the People’s Republic of China (PRC) assumed China’s seat at the UN. At present the ROC government on Taiwan has formal diplomatic relations with less than 25 countries, mostly small states in Central & South America and the Pacific area.

Ruling: In a ruling delivered Tuesday Sept. 16, 2008, to the Geneva bureau of Taiwan's representative office in Switzerland, the Geneva First Instance Court held that whether the country is a member of the United Nations and whether it has diplomatic relations with Switzerland are of no relevance in the current legal action. The Court further found that the “Republic of China (Taiwan)” is an eligible plaintiff in the case, on the grounds that it possesses all the elements of statehood and that its government holds and effectively exercises sovereignty over its territory.

The Taiwan Civil Alliance stresses that the court’s reasoning in this case is faulty, and should be amended at an early date. While it is true that Taiwan is not a part of the PRC, legally speaking it is not part of the ROC either. Moreover, Taiwan does not possess all of the necessary elements of statehood. In order to understand the true reality of Taiwan’s international legal status in the world today, it is necessary to review the history of Taiwan from the late 1800’s to the present. The following summary gives numerous key points of analysis.

(1) The Republic of China was entrusted with authority over Formosa and the Pescadores as agent for the Allied Powers. This arrangement was specified in General Order No. 1 of Sept. 2, 1945. Such trust on behalf of the Allied Powers, led by the United States, remains in effect today. Nothing in the post-war San Francisco Peace Treaty (SFPT) nor in any other treaty ever executed by or between the Republic of China and the other Allied Powers has altered this trusteeship arrangement.

(2) The United States of America is and remains the "principal occupying power" of Taiwan under SFPT Article 23(a). Furthermore, United States Military Government (USMG) jurisdiction over Taiwan is active as per SFPT Article 4(b).

(3) Following the acceptance of the surrender of Japanese forces in Taiwan by the representatives of the ROC's Chiang Kai-shek (CKS), Taiwan remained de jure Japanese territory. The ROC government occupied Taiwan on behalf of the Allied Powers (led by the United States) pending a peace treaty with Japan, which would change the legal status of Taiwan.

(4) When the ROC moved its central government to occupied Taiwan in mid-December 1949, it became a government in exile. According to international law, there are no actions, procedures, or initiatives which a government in exile can take to become internationally recognized as the legal government of its current locality.

(5) Pursuant to the SFPT, Japan renounced its sovereignty over Taiwan (Formosa) and title to its territory. Article 2(b) of the SFPT provided, "Japan renounces all right, title and claim to Formosa and the Pescadores." China never became a party to the SFPT. Neither the ROC government, which occupied the island of Taiwan as agent for the "principal occupying power," nor the government of the People's Republic of China ("PRC"), which controlled mainland China, signed, ratified, or adhered to the SFPT.

(6) Article 25 of the SFPT specifically provided that the Treaty did "not confer any rights, titles or benefits on any State which [was] not an Allied Power [as defined in Article 23(a).]

(7) Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan (Formosa).

(8) While Article 2(b) of the SFPT did not designate a recipient of "all right, title and claim to Formosa and the Pescadores," Article 23(a) of the SFPT designated the United States as "the principal occupying power" with respect to the geographic areas covered by the SFPT, including "Formosa and the Pescadores."

(9) Following the entry into force of the SFPT, the government of the ROC continued to occupy Taiwan as agent for the United States, "the principal occupying power."

(10) The Treaty of Peace between the ROC and Japan, which was signed on April 28, 1952, and entered into force on August 5, 1952 (the "Treaty of Taipei"), did not transfer sovereignty over Taiwan from Japan to China either.

(11) The SFPT did not terminate the agency relationship between the United States, the principal, and the ROC, the agent, with regard to the occupation and administration of Taiwan. Up to the present day, the United States continues to be the “principal occupying power” and the ROC is fulfilling the role of a “subordinate occupying power.” In military terminology, the ROC is conducting a proxy occupation of Taiwan.

(12) Currently, Taiwan is an occupied territory of the United States, and it has not yet attained a “final political status,” Neither the SFPT nor the Treaty of Taipei nor any other subsequent legal instruments or occurrences after 1952 changed the status of Taiwan.

(13) With no transfer of the territorial sovereignty of Taiwan to the ROC at any time from the 1940’s to the present, the ROC in Taiwan cannot be said to own legal title to Taiwan territory. From a strict legal standpoint, with no legal basis to claim Taiwan as part of its national territory, Taiwan does not meet the Montevideo Convention’s criteria for statehood, and indeed the international community does not recognize Taiwan as a state.

(14) Following the entry into force of the SFPT on April 28, 1952, the ROC did not exercise sovereignty over Taiwan and did not have title to its territory. Today, Taiwan remains as occupied territory of the United States, and the ROC government in exile continues to conduct a proxy occupation of Taiwan territory.

The Taiwan Civil Alliance hereby publicly proclaims that the recent ruling by the Swiss Court in Geneva is in error, and should be amended at an early date.

The Taiwan Civil Alliance urges all international organizations, courts, and government bodies to conduct more careful research before adjudicating on the international legal status of Taiwan in the future. The correct designation for Taiwan is neither "Taiwan Province, China" or "Republic of China (Taiwan),” but simply “Taiwan.” The present day status of Taiwan has arisen as a result of the Pacific War against Japan, and must be understood in light of the historical developments as outlined above.

Source -- http://www.prlog.org/10124030-swiss-court-should-amend-ruling-in-taiwan-case.html

Additional Details on the Taiwan status issue:

The following five criteria for a proxy occupation may be outlined. Commentary for the situation of the Republic of China in Taiwan is given for each criterion.

(1) The local administration meets the definition of military occupation under the laws of war, as specified in the Hague and Geneva Conventions.

Commentary: According to the laws of war, territory is considered occupied when it is actually placed under the authority of foreign armed forces. Hence, the only possible legal significance for the completion of the Oct. 25, 1945, Japanese surrender ceremonies in Taiwan is to say that the “military occupation of Formosa and the Pescadores has begun.”

(2) The government forces conducting the local administration are not of the same country as the conquering forces.

Commentary: All military attacks against Taiwan in the WWII period were conducted by US military forces, hence the United States is the “conqueror.” However, the government forces conducting the local administration are those of the Republic of China.

(3) A delegation of administrative authority for the military occupation of the territory is clear from the provisions of the peace settlement and/or military orders.

Commentary: In General Order No. 1 of Sept. 2, 1945, General Douglas MacArthur directed the forces of Chiang Kai-shek of the Republic of China to go to Taiwan to accept the surrender of Japanese troops.

(4) If there was a cession of the territory in a peace treaty, the government of the local administrative authorities was neither designated as the “recipient,” nor as the (principal) occupying power.

Commentary: In the post-war San Francisco Peace Treaty (SFPT), Taiwan was not awarded to the Republic of China. Indeed, the ROC was not a party to this treaty. Importantly, the United States was designated as the principal occupying power.

(5) Final disposition of the territory is still subject to the determination of another government entity.

Commentary: According to Article 4(b) of the SFPT, the final disposition of the Article 2 territory (i.e. “Japanese property”) of Taiwan is subject to the final determination of the United States Military Government (USMG). Obviously, the US Commander in Chief can speak for USMG.

In summary, the Republic of China (Taiwan) does not possess all the elements of statehood. Furthermore, its government neither holds nor exercises sovereignty over Taiwan territory.