[Conscript] Conscription of US cit for ROC military service

Legal Military Conscription
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RE: proposed second lawsuit in US Federal District Court, Washington, D.C.
** Conscription of US citizen for ROC military service **

I am retaining legal counsel in the USA to evaluate filing suits against the Taiwan authorities in Federal District Court in Washington, D.C. for human rights violations against US citizens in Taiwan. After six months of research I now believe that under the Taiwan Relations Act (TRA), the US Constitution, and other relevant treaties and conventions, it should be possible to do this.

In particular, in regard to the filing of a second lawsuit, I am looking for a dual citizen (USA

2

Legally speaking you DO NOT have a case.

U.S. federal courts do not have original jurisdiction over foreign citizens or officials, except where the foreign official has committed a flagrant violation of human rights. (See Alien Torts Act and Filartiga v. Pena-Irala)

Every male citizen of Taiwan, except those who do not meet certain health qualifications, must serve in the military (or related services), and that requiring a U.S. citizen who freely chooses to become a Taiwanese citizen or a permanent resident to serve in the militray does not qualify as a flagrant human rights violation.

Unless you are challenging that the enforcement of the mandatory military conscription law violates the human rights of every male citizen in Taiwan.

Also, amending the military conscript law exempting naturalized Taiwanese citizens from military service would be discriminatory and unconsititional. The actions you are recommending is an attempt to mock and manipulate the laws of Taiwan for your personal gain (i.e. your motive is to avoid military service), and not because you are concerned about the protection of the human rights of foreigners in Taiwan.

Every foreigner who has come to Taiwan have been given preferential, first-rate treatment. For example, most foreigners receive above average salaries, often double their Taiwanese counterparts, and it is easier for them to get things done and find jobs, which is the exact opposite treatment afforded new immigrants who arrive in the U.S. today.

If you are really concerned about human rights of foreigners, there are more pressing human rights issues affecting immigrants and minorities in your country (You must know that African American and Hispanic together compose over 65 percent of the state and federal prison population, and that U.S. is the only developed country that withdrew from the International Court of Justice.)

You have also cited the TRA as giving U.S. jurisdiction over the human rights violations that occur in Taiwan. Can you be more specific on which clause or section of the TRA you are referring to where the Taiwanese government has wavied their jurisdiction over U.S. citizens residing in Taiwan? Just because the people of the U.S. do not recognize Taiwan as a sovereign country, it doesn’t mean U.S. laws can supercede the laws of Taiwan. Furthermore, TRA is not a treaty signed between U.S. and Taiwan, therefore, Taiwanese officials do not have ANY obligation to obey and uphold the law of the U.S.

3

No case, eh?

First, you wrongly assume that these are draft-dodgers when many US citizens have been willing to volunteer for some forms of ROC “alternative service” like in an English-speaking militia. Under the ROC conscription laws, there are gross violations of the Laws of War for Taiwan cession including illegal declarations of “oaths of allegiance” in contravention of customary laws of war and peace treaties.

Secondly, you have obviously not read the 1946 US-ROC Treaty of Commerce, Friendship, and Navigation for the applicable purposes of its conscription clauses, nor do you understand how the TRA “treaty clause” upholds such old treaties including the San Francisco Peace Treaty.

Thirdly, the ROC is not an independent country under the terms of SFPT cession and the Laws of War. The key issue is of administrative authority and the supreme authority of the USA. In full legal accordance with the executive agreement of the Shanghai Communiques, the final treaty status of SFPT cession is between the ROC and PRC in accordance with Para. 354, Chapter 6 “Laws of Occupation”, and under these same Int’l Laws of War is a federal court doctrine of Civis Romanus Sum for the official establishment of US Military Commissions to protect these US citizens. I suggest you see the movie “Judgement in Berlin” before you think in terms of traditional human rights cases or wade into something which law school does not teach, but the military does. US citizens are protected from ROC abuses under the Laws of War, but they are not so necessarily exempted from military service under the 1946 Treaty. The absence of bonafided exemptions for conscientious objectors is regretable and this is indicative of the very low standards of the ROC military in comparison with NATO.

Gonzalez v. Williams

quote[quote] 'The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.' [/quote]

The “undefined” civil rights of peace treaties is found in the customary law for cessions like Cuba as this case demonstrates for the “human rights” of TRA. Customary law is deeply embedded into the TRA as an integral legal part of the USC Title 22 “Foreign Discourse” as the customary laws of all ratified peace treaties are the supreme law of the land.

4

If an US court finds against Taiwan in the proposed suit, what would be the remedies available to the plaintiff and how would they be enforced ?

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I would also mention that under the ROC Labor Laws, including the Employment Services Act, as well as the Immigration Law, Statue Governing Issuance of ROC Visas on Foreign Passports, Regulations Governing Visiting, Residence, and Permanent Residence of Aliens, etc., etc. a dual passport holder under ROC law WHO ENTERS THE ROC ON A FOREIGN PASSPORT IS CONSIDERED TO BE A CITIZEN OF THAT COUNTRY.

Thus, there is much solid legal reasoning to say that the conscription of a dual passport holder (USA - ROC) who entered the Taiwan area on a US passport is illegal under Taiwan law. At the least, there is a severe conflict of laws here which should be resolved by a judge.

In terms of the remedies which a court action could achieve, at the minimum the person involved should be allowed to leave the country. I also suspect that certain changes in the ROC conscription laws would be required.

Many people assume that the Taiwan Relations Act is a legal act between the USA and the Taiwan authorities, but it is actually much more than that. The TRA defines Taiwan’s status under international law. As a previous poster noted, Taiwan has no dejure rights to sovereignty, hence the entire basis of its military conscription rules is questionable.

I would also note that I have attended many Legislative Yuan conferences on this (and related) ROC military conscription issues, and the people who complained the most loudly were the Taiwanese parents of the dual passport holding young men who were seeing their work, graduate school, and other plans abruptly cut off due to this unexpected military conscription problem. They had assumed (based on legal advice from local lawyers, in no small part hinging on the stipulations in the laws quoted in my first paragraph, I suspect) that entering Taiwan on a US passport for some period of time did not complicate them in any way, shape, or form to ROC military conscription. They had quite a rude awakening when they found out otherwise.

After an LY conference in April of this year, I did submit several formal proposals for revisions to the Statue Governing Issuance of ROC Visas on Foreign Passports and Military Conscription Law to some DPP legislators. In my proposed revisions, Overseas ROC Offices would be barred from issuing visas to dual nationality males of military age who applied for such visas with A FOREIGN PASSPORT. This would eliminate the problem/confusion at its source, and I believe would be a solution acceptable to all parties. I am unaware if my proposed revisions will be able to go to committee when the Legislative Yuan goes back to work in September, 2002.

6

Notice that I didn’t mention ROC in my reply.

ROC is a remanant of the KMT regime defeated by the communists. Whatever treaties the ROC signed will become irrelavant very soon because ROC will disappear once the people of Taiwan declares independence or [reunite with the PRC].

The bottomline is that these people are draft dodgers. They only want to enjoy the privilges of being a Taiwanese citizen, but they dont want serve the country. They are attempting to use U.S. laws and treaties to obtain preferential treatment in our country. The only winners are the rich who can afford to immigrate overseas and foreigners, and those who cannot afford to leave are stuck to serve in the military.

Taiwan should create a English-speaking militia only after the U.S. naturalization exams are given in Taiwanese.

7
quote:
Originally posted by jasonlin: The bottomline is that these people are draft dodgers. They only want to enjoy the privilges of being a Taiwanese citizen, but they dont want serve the country. They are attempting to use U.S. laws and treaties to obtain preferential treatment in our country. The only winners are the rich who can afford to immigrate overseas and foreigners, and those who cannot afford to leave are stuck to serve in the military.

Exactly! They want to wiggle out of both their Taiwan AND US obligations. How anyone can trust these scum is beyond me.

8

I agree totally with Jasonlin. If these people entered Taiwan using a US passport, how do the Taiwan authorities know that they are ROC citizens and therefore subject to the draft? It must be because they are registered as such, and enjoying the rights of ROC citizens, such as the right to vote. Since they are enjoying the rights of ROC citizens, they should also expect to perform the duties that other ROC citizens have to perform. If they want to do alternative service, they can apply to do so, just like other ROC citizens. If they object to doing any kind of service, they can refuse to do it, and then they can go to prison, just like any other healthy male ROC citizen who refuses to do service.

The Taiwan Relations Act is an American law passed by American politicians only. How can such a law define Taiwan’s status in international law? How would Americans feel if the ROC or PRC passed a law defining the status of Puerto Rico or Alaska? It would just be a big joke, wouldn’t it - just like the Taiwan Relations Act.

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Gonzalez v. Williams:
‘The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.’

Since when is Taiwan a territory of the U.S? This case refers to Puerto Rico, whose people want independence as much as Taiwan.

As a conscientious objector, I can’t get financial aid in the U.S., but that is my choice.
You shouldn’t create double standards for the rich who flee Taiwan and the poor who can’t afford to flee.
If you don’t want to serve, come back after you are 30; otherwise do the time and get on with your life.

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quote:
Originally posted by wwwright: Puerto Rico, whose people want independence as much as Taiwan.

Does that mean that they do want it, or don’t, or - like the majority of people in Taiwan, actually - don’t really care as long as they can get on with their lives?

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quote:
Originally posted by wwwright: ....Puerto Rico, whose people want independence as much as Taiwan.

You don’t know what you’re talking about.

http://geography.about.com/library/weekly/aa031698.htm

“On September 17, 1988 the U.S. Senate unanimously adopted a resolution which supported the right of the people of Puerto Rico to self-determination. On December 13, 1998 a referendum was held in Puerto Rico and the option “None of the above” won with over one-half the vote. “Territorial” Commonwealth earned 993 votes (0.1%); Free Association, 4,536 (0.3%); Statehood, 728,157 (46.5%); Independence, 39,838 (2.5%); None of the above, 787,900 (50.3%); and blank and void ballots, 4,846 (0.3%). “None of the above” won a majority of 59,743 votes over statehood. 1,566,270 of the 2,197,824 registered voters cast ballots, for a turnout rate of 71.3%.”

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Thanks for the clarification on Puerto Rico, so where is the referendum on Taiwan Independence?

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O’brien has a very good inclination to the basic issues of Taiwan status and how it gained self-determination under the operations of the peace treaty cession for the Puerto Rico case.

Taiwan legally resembles the status of the Cuban Question of the same peace treaty of the Puerto Rican and Filipino cessions.

Gonzalez v. Williams was not just about the Puerto Ricans whom were later collectively naturalized as US citizens under INA, but it more about their underlying legal nationality status as “island citizens” of a limbo treaty cession.
You don’t know what you’re talking about with regards to customary law and “Taiwan nationality” just like in Article 5 of the 1895 Treaty of Shimonoseki.

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quote:
Originally posted by jasonlin: Legally speaking you DO NOT have a case.

Every foreigner who has come to Taiwan have been given preferential, first-rate treatment. For example, most foreigners receive above average salaries, often double their Taiwanese counterparts, and it is easier for them to get things done and find jobs, which is the exact opposite treatment afforded new immigrants who arrive in the U.S. today.

I couldn’t agree with you more. Every laboror and maid from Thailand, the Philipines, and other southeast Asian nations is given much better treatment than their Taiwanese counterparts. Right.

As for teachers and other professionals, the laws of supply and are at work, just as they are in the US. My company, in the US, recently hired 5 new high-level managers. Three were from Asia. They all make more than I do–not because they are foreigners, but because they have skills that are hard to come by. I have no problem with that.

If these people have children in the US, these children will have the right to US citizenship regardless of their parents’ status. If I had children in Taiwan, they would not have the right to Taiwanese citzenship. In fact, they would not even have the right to attend public school in Taiwan, whereas all children living in the United States, regardless of their residency status, have the legal right to atttend public schools.

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This is a specialised legal topic. Only a US Attorney practising in this particular area is qualified to give a legal opinion in this matter. It has nothing to do with immigration law or employment. It is a question of how a US Act of Congress affects the rights of United States citizens living in Taiwan. Richard is trying to make contact with a person who has locus standi to bring such an action.

Richard, is there any way I can find out the bones of the case you intend to bring ? I find the whole concept very interesting and would like to discuss it with a few lawyer friends of mine who work in various jurisdictions, one of which is New York.

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It is an interesting web page that taiwanstatus has concerning the agreements and treaties after WWII.
I will have to do more homework before posting my opinions.
I think Juba made a good point about how most Taiwanese feel. As long as China doesn’t treat Taiwan like Israel has been treating the Palestinians lately, this issue of status will take more time and a few more elections.

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Yes, I am reading some of the stuff now. Interesting and possibly unique situation. It will be interesting to read how judgements have been / might be enforced.

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Hexuan,

Under the 1946 Treaty of Commerce, Friendship, and Navigation, which is validated by the TRA, there are treaty exemptions for US citizens not to serve in the ROC military. In the event of a “War on Terrorism”, the concurrent waging of hostilities closes the exemption and so now US citizens in Taiwan may become subjected to conscription laws regardless of their ARC status or dual nationality:

ARTICLE XIV

  1. The nationals of each High Contracting Party shall be exempt from compulsory military or naval training or service under the jurisdiction of the other High Contracting Party, and shall also be exempt from all contributions in money or in kind imposed in lieu thereof.

  2. During any period of time when both of the High Contracting Parties are, through military or naval action in connection with which there is general compulsory military or naval service, (a) enforcing measures against the same third country or countries in pursuance of obligations for the maintenance of international peace and security, or (b) concurrently conducting hostilities against the same third country or countries, provisions of paragraph I of this Article shall not apply. However, in such an event the nationals of either High Contracting Party in the territory of the other High Contracting Party, who have not declared their intention to acquire the nationality of such other High Contracting Party, shall be exempt from military or naval service under the jurisdiction of such other High Contracting Party if within a reasonable time prior to their induction for such service they elect, in lieu of such service, to enter the military or naval service of the High Contracting Party of which they are nationals. In any such situation the High Contracting Parties will make the necessary arrangements for giving effect to the provisions of this paragraph.

  3. Nothing in this Article shall be construed to affect the right of either High Contracting Party to debar from acquiring its citizenship any person who seeks and obtains exemption in accordance with the provisions of paragraph I or 2 of this Article.

Given the 1979 termination of the Mutual Defense Treaty, certain other conscription exemptions from US or ROC military service were thus lost.
Under Goldwater v. Carter, such treaty actions of the Commander-in-Chief were never thus judicially reviewed. The TRA also creates some very serious problems for potential acquisition and losses of US citizenship rights as so covered under the US Immigration and Nationality Act of 1952.

quote[quote] It will be interesting to read how judgements have been / might be enforced. [/quote]

As this TRA issue is very much intertwined with the military laws and (international) laws of war, so you are amazingly looking at US military commissions to enforce such issues as applicably outlined in US v. Tiede, Johnson v. Eisentrager, Yamshita v. Styer, and Madsen v. Kinsella for a basic summary of the “core” of these US military commission case laws under the doctrine of Civis Romanus Sum and as initiated by US Commander-in-Chief Bush executive orders on terrorism.

University of Chicago on Military Commissions
US-ROC Treaty of Commerce, Friendship, and Navigation

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Army laid bare in conscript’s book

MILITARY SERVICE: The army is a world of illusions and deceit which is largely ignored, according to the experiences of a conscript on completion of his compulsory service

http://www.taipeitimes.com/news/2002/06/24/story/0000141613

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http://oriented.org/cgi-bin/ultimatebb.cgi?ubb=get_topic&f=12&t=000111