Is Chou Tzuyu a Taiwanese, Chinese or Stateless person? International law tells you...

I have finally figured out the true nationality status of my favourite idol, TWICE’s Chou Tzuyu.

Without a serious incident breaking out, we will not bother about the underlying issue that causes it. The underlying issue of the Chou Tzuyu flag controversy is the question of sovereignty for Taiwan.

I admit that I had no awareness of the importance of international law all my life. Having a background in science, I decided that I learn up the subject to answer this question. This question involving international law is one of the toughest I have dealt with. After crossing many hurdles, I have mastered it with confidence. I was willing to approach the subject for my idol.

International law, more than just formalities for diplomats and politicians, permeates in our lives as ordinary individuals. One of the central theme of international law is sovereignty. The main body of sovereignty is the State, and territorial sovereignty is subsidiary held by the State. At first, international law dealt with States, over time the law developed to accommodate international organizations, war, international responsibility, waters, airspace, health and many more everyday concerns.

Nationality is a political need of everyone that is governed by domestic laws. As a matter of principle, each State have the sovereignty to determine who are its nationals. It should not be neglected that nationality is governed by international law especially in times of war. We are no longer living in the days of conquest equals gaining sovereignty. The laws governing armed conflict not only tells soldiers how to behave in a battlefield, but also provides for legal status of territories involved in war. Today, countries at war are not to indiscriminately naturalize people belonging to the enemy.

In war, enemy territories may come under control of soldiers. The territory is said to be under military occupation. The key principle is that military occupation of enemy territory does not transfer sovereignty to the occupying State. Military occupation is allowed for the occupying State to achieve war objectives, after which the occupying State must withdraw from the territory once the war ends. Throughout occupation, public order must be maintained.

As for the case of Taiwan, it is convenient for us to start with the Treaty of Shimonoseki. It is a treaty of peace signed between the Qing Empire and Japan to terminate the First Sino-Japanese War. The treaty provides for cession of Taiwan and Penghu to Japan. There is no question about the sovereignty transfer for Taiwan.

It remains debatable whether the Qing Empire was really China. The ruling class of the Qing Empire were the Manchurians. Territory of the Qing Empire comprised Manchuria, China Proper, Mongolia, Xinjiang and Tibet. These territories do not belong to each other, and the Qing Court assigned different forms of government for each territory. China Proper, homeland to the Han Chinese, was a colony of the Manchus. Likewise, Taiwan and Penghu were colonies that were incorporated as part of China Proper. Whilst previous empires have set up outposts in Penghu, no Han Chinese empire has ever governed the island of Taiwan.

When it came to the middle of World War 2, representatives of United Kingdom, United States and China sat down in Cairo to discuss war plans. Taiwan, Penghu and Manchuria were promised to be returned to China to shore up Chinese support to fight against Japan. That was the Cairo Declaration. Sovereignty of Taiwan was in the hands of Japan during World War 2. As Japan must be approached for change of hands for Taiwan, the way to go was to defeat Japan. The Cairo Declaration is not a binding legal instrument because it was merely a statement of common purpose for allied countries, not the final settlement. What more, one cannot locate the Cairo Declaration in "Treaties in Force" issued by the United States Department of State up to this day.

Japan surrendered after the use of atomic bombs against Hiroshima and Nagasaki. Generalissimo Chiang Kai Shek was tasked to take over administration of Taiwan and Penghu as stipulated by General Order No. 1 issued by General Douglas MacArthur, the Supreme Commander for the Allied Powers. It should be noted that sovereignty of Taiwan and Penghu remained in the hands of Japan, as a peace treaty for sovereignty transfer has yet to be signed; and the General Order was a military order not equivalent to a peace treaty. The governance of China on Taiwan is a case of military occupation, and this governance does not transfer sovereignty to China. The notion of “Taiwan Retrocession Day” is false. Likewise, Japan proper came under occupation of the United States. A note is that military occupation conducted during World War 2 is governed by The Hague Conventions.

For the sake of clarity, let me emphasise that from 1945 to 1952, Taiwan should be considered part of Japan, and the Japan came under Allied occupation with United States as the principal occupying power.

The Executive Yuan of China issued a governmental order to “restore the nationality of Taiwanese people to China” starting from the day China took over governance of Taiwan. The move earned diplomatic protests from United States and United Kingdom. The United Kingdom has gone as far as expressing “regret” over the move. However, China responded that the measure was taken for the sake of convenience. Both Western Allied Powers were aware that the change of nationality was unlawful under the circumstance circa 1945, and called for a treaty of cession to be formalized prior to making change in nationality. Strictly speaking, the change of nationality for Taiwan contravened Article 45 of The Hague IV Convention.

Before the victorious nations of the Allied Powers got to settle a peace treaty with Japan, the Nationalist Government of China lost in the civil war with the Communists and fled to Taiwan. Starting from that point, the Nationalist Government became a government-in-exile. There has only been one case which the occupying State went into exile in an occupied territory. The Communists founded the People’s Republic of China, the new government in situ of China.

As the Chinese mainland fell into “unfriendly hands” and Communist China’s intervention in the Korean War on North Korea’s behalf, the United States felt that there was no point to cede Taiwan to China and a change of direction was necessary. In the peace treaty with Japan that ensued, that is the Treaty of San Francisco, it was stipulated that Japan renounce sovereign rights over Taiwan and Penghu as set forth in Article 2 without naming any recipient country. Neither government of China was invited to negotiate and sign the peace treaty. From then on, sovereignty of Taiwan and Penghu are said to be undetermined. The Treaty of San Francisco officially ended the Pacific War.

The Treaty of San Francisco did not end the state of war between China and Japan, thus the Treaty of Taipei served as a supplementary treaty to bring peace between both nations. In the Treaty of Taipei, it was reiterated that Japan renounce sovereign interests in Taiwan, Penghu, Spratly Islands and Paracel Islands as previously spelled out in Treaty of San Francisco. Article 10 provided that all “inhabitants of Taiwan and Penghu” be deemed as nationals of the Republic of China and all juridical persons (companies and organisations) be deemed as belonging to the Republic of China. The provision did not act as a transfer of sovereignty, but merely reaffirm the Chinese government-in-exile’s jurisdiction over Taiwan and Penghu via military occupation. The provision conferred no bona fide Chinese nationality to Taiwanese people, but a simulated nationality for the sake of convenience. In other words, like false coloured pictures, the Chinese nationality imposed on the people of Taiwan and Penghu is a false nationality and identity. The status of Taiwan was not altered by the Treaty of Taipei.

China has long been an empire, and a central tenet to its territory is "all lands under heaven belongs to the emperor". Chinese thinks is that actually governing a territory entails having sovereignty over it. Annexation by invasion was the norm. This became ingrained throughout China’s long history of division and unification with force. Today, international law permits governance without possessing legal sovereignty by means of military occupation, trusteeship or territorial lease.

The state of affairs for Taiwan and Penghu persisted from 1952, the year Treaty of San Francisco came into effect until today. Taiwan does not belong to any State, and has yet to proclaim herself a sovereign State.

In Roger C.S. Lin vs. USA, the United States District Court of Columbia ruled that the Taiwanese population are stateless. In an appeal to the United States Court of Appeal, the judge noted that Taiwanese people have lived without a uniformly recognized government and having an uncertain status that infects their day-to-day lives. The lawsuit’s outcome was limited, as the judicial branch of the United States could not answer political questions. The question over the nationality of Taiwanese people can only be resolved before the international community.

What applies to my idol applies to the entire population of Taiwan. If anyone asks me what is the nationality of Chou Tzuyu, I’d answer you using deep rooted principles of international law. In practical terms, Chou Tzuyu is a Taiwanese. By law, she is a stateless “inhabitant of Taiwan and Penghu”. Her Republic of China nationality is a false nationality for the sake of convenience.