Dr. Roger C. S. Lin et. al. v. United States of America

Politics Taiwan Politics
21

[quote=“almondcookie”][quote=“Mick”]
this is an interesting point. I noticed today in the TT an article on “The nation’s sovereignty and legal status differ” taipeitimes.com/News/editori … 2003337841

How open to interpretation is the legal status, can every side put forward solid arguments to back up their claims. How definitive is the lawsuit?[/quote]

  1. Taiwan’s legal status - in terms of international personality as a sovereign state - is very open to interpretation bc there are just so many theories flying around, plus the fact that political power distorts the operation of rules and norms. the legal stuff, to an extent, can only inform the debate, not resolve it."[/quote]

Seems the TT is of the opinion the legal issues surrounding Taiwan’s status are in fashion with a second article in two days on the subject.
taipeitimes.com/News/editori … 2003337973

I read with interest your link to Frank Chiang’s article in the TT. While Mr. Hartzells lawsuit does indeed sound rather fruity, reading through the lawsuit and supporting documents one does find it difficult to find the flaws in the logic and cites dozens of references to back up the claims.

Something which I found myself questioning right from the start of Frank Chiang’s piece. The first claim he makes.

(1) “First, the US has not acquired title to Taiwan by occupation.”
This had me thinking, “but they were listed in the SFPT as the principal occupying Power”, however he then backs up his reasoning with reference to a case and quoting Hague Conventions Respecting the Laws and Customs of War. Well to be fair, in an article to a newspaper I’m sure in limited space a quick summary of thoughts is all that is possible and since Mr. Harzell has about 20 links and dozens of references of his own, it seems this point is going to be debatable among the lawyers, for which I wouldn’t even try to make an attempt to do. But can this statement be regarded as fact?

(2) “Second, the US did not acquired title to Taiwan by the San Francisco peace treaty.”
No one did, so I’m not sure what this point proves. Is it being argued that Taiwan should exist in a state of Limbo forever?

The last two points refer to the fact that as America hasn’t taken responsibility or acknowledged Taiwan as being under their jurisdiction it is therefore not so and America has no obligation or responsibility which I think is part of the point in the lawsuit.

The United Nations Charter Article 1.2 says

The Taiwanese are being denied this by the international community. They are not permitted to join international organizations and are forced to live under the threat of war. The whole mess was caused by the US and the treaties that were signed that left the status of Taiwan in complete ambiguity.

I think it is high time someone takes all the relevant legal documents, dumps them on the US doorstop and asks “what the hell are you going to do about this mess, take some responsibility for the situation which you helped create.”

22

This seems to be the old tunes sung on this board years ago. Dig through the archives and you may find some of those arguments on the other side. There is, of course, a lot to say about all the claims, but let’s forget about the specifics for a moment and just consider the problem: there is a chain of a dozen or so highly controversial claims that must all be willingly taken up for consideration and resolved in favor for this to work; fail one and the whole exercise is moot. Now you see why this is a paper exercise. With “island mentality”, where the sight is lost on the big picture, it all sounds oh so plausible.

23

I noticed that too. Maybe it could be compared to domestic U.S. laws pertaining to war (e.g., can only be declared by Congress) and international law on the same (which would recognize as wars many conflicts which did not go through this procedure). In other words, maybe Taiwan could be a “U.S. territory” according to international law of war, but not according to domestic U.S. laws about the acquisition of “U.S. territories.”

24

We got to thank the US administrations at the time and that genius of a man called CKS for all this mess.

What will happen if there is really any fundament (meaning if the US judges found anything gullible) in the story? Will Taiwan accept that his faith is ruled by the court of law of another country?

25

A few points that need more development, even assuming this doesn’t get thrown out immediately.

  1. Political Question – U.S. courts will most likely treat it as such, just as they have treated most other suits involving Taiwan/China diplomacy – simply alleging a civil rights issue doesn’t seem to get you around that.
  2. Is the San Fransisco treaty self-executing? Unless it is, it is not considered U.S. law. Even if it is, how does it flow that Taiwan is therefore made a U.S. territory when it was entrusted to the allies as a whole, and subsequently governance was shifted (at least in practical terms) to the ROC-- after all the U.S. section of West Germany did not become a U.S. territory in any permanent fashion, even though a specific segment was entrusted to U.S. jurisdiction.
  3. Why should we treat Taiwan as under USMG jurisdiction – it seems a stretch considering it has been governing itself for some time now. Even if it was at one point, surely there has been a De Facto abandonment of said jurisdiction on both sides. I don’t see the analagies to Guam and other places as really being that similar.
  4. How has Congress acted, as someone mentioned it seems awfully hard to acquire territory without an act of Congress
  5. Even if there were some sort of territorial interest, how in the world do you make the jump to statehood when nobody on either side of the Pacific has ever held so much as a hearing on the issue, much less actual voting and ratification and all that.

More generally I have a hard time seeing why a sketchy (at best) case that by some legal formality Taiwan is part of the U.S. is going to win out over the reality that neither side has acted as though it was. I just don’t see any court (except possibly the 9th Circuit, which would immediately be overruled) buying it.

26

[quote=“redandy”]A few points that need more development, even assuming this doesn’t get thrown out immediately.

  1. Political Question – U.S. courts will most likely treat it as such, just as they have treated most other suits involving Taiwan/China diplomacy – simply alleging a civil rights issue doesn’t seem to get you around that. [/quote]
    This lawsuit does not challenge the political questions. A number of the most important of these are
  • The announced United States’ position is that Taiwan is not a sovereign country
  • The United States does not maintain diplomatic relations with (ROC) Taiwan
  • According to the TRA, the US does not recognize the nomenclature of the “Republic of China” after Jan. 1, 1979.
  • President Clinton’s Three Noes: The US does not support independence for Taiwan; or two Chinas; or one Taiwan, one China. And we don’t believe that Taiwan should be a member in any organization for which statehood is a requirement.
  • The Three Major Components of the USA - PRC - Taiwan relationship: (1) One China Policy, the (2) Taiwan Relations Act, and the (3) Three Joint USA-PRC Communiques

However, we can still see the reality of US administrative authority over Taiwan by examining the similarities with the Spanish American War cessions. See – taiwankey.net/dc/prcutai6.htm

Under Article 6 of the Constitution, a Senate-ratified Treaty is part of the supreme law of the land. As was said by Chief Justice Marshall in United States v. The Peggy, 5 US 103 (1801):
Where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court, as an act of Congress.

And in Foster v. Neilson, 27 U.S. 253 (1829) he repeated this in substance:
Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.

Under the laws of war, it can be held that the surrender ceremonies in Taipei were conducted on behalf of the Allies. However, the ensuing military occupation of Taiwan is being conducted on behalf of the “principal occupying power” – the USA. Under the laws of war, legal relationships flow from a determination of who is the “conqueror” (who, in the post-Napoleonic period, is commonly referred to as “the occupying power”). Under the SFPT, the ROC has no rights or claim to Taiwan whatsoever.

Importantly, it must be pointed out that Taiwan was sovereign Japanese territory up until April 28, 1952. (None of the Allies were under the impression that there was any transfer of sovereignty to the ROC on Oct. 25, 1945, and relevant quotations from the leaders of the USA, France, and the UK are included in this lawsuit.) Obviously, Oct. 25, 1945 was not Taiwan Retrocession Day … and therefore there is no legal basis for the mass naturalization of native Taiwanese persons as ROC citizens in Jan. 1946.

The US section of West Germany was not a territorial cession. Taiwan was a territorial cession in the peace treaty. SFPT Article 2(b) states:
Japan renounces all right, title and claim to Formosa and the Pescadores.
No “receiving country” was designated for this territorial cession in the SFPT. However, Article 23 designates the United States as the principal occupying power.

Moreover, SFPT Article 4(b) specifies:
Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.
Importantly, in the English language, the term “property” includes the concept of “title.”

Consider USMG to be part of the military arm of the US government. Who is the head of the military arm of the US government? Of course, it is the Commander in Chief. What is the Shanghai Communique? It is the Commander in Chief’s planning for a future intended disposition of “occupied Taiwan territory.”

Is the formulation of the Shanghai Communique still in effect today? Yes, very much so. Also, consider the stipulations in Article 4b of the San Francisco Peace Treaty. Hence, whether from the de facto or de jure standpoint, US jurisdiction over Taiwan is still active. With such a recognition, as this lawsuit points out, the Taiwanese people are entitled to fundamental rights under US laws, including the Constitution.

Please refer to the quotes by Chief Justice Marshall above. Also see – taiwanadvice.com/declare.htm

Sorry for the confusion. There is no attempted jump to statehood here. Taiwan’s correct international position is simply as one of the major overseas territories of the USA. To be exact, it is the sixth major overseas territory. Please see – taiwankey.net/dc/usa_new6.htm

Taiwan is not part of the US. It is an “overseas territory under the jurisdiction of the US.” This is very similar to the situation of Cuba after the Spanish American War. Also, it is very much true that the US is constantly telling Taiwan what it “can” and “cannot” do … in terms of having a referendum, writing (or amending) the Constitution, changing its “national title,” etc. … So when viewed from this angle the US is very much “acting like it has jurisdiction over Taiwan.”

27

Hi,

I’ve read the links are articles contained in this thread (yes I do have alot of time on my hands) and my view is that Taiwan’s position can be summarised as this…

Taiwan was Japanese territory, Taiwanese at the time had Japanese citizenship (correct me if I’m wrong).

At the end of WWII, America ordered representives of the ROC to accept the surrender of Japan on Taiwan.

Taiwanese nationhood was transferred from Japan to someone.

Who was Taiwan transferred to?

And the crux of the question here is, if America (General McCarthur) can create orders that affect Taiwan’s affairs, how come they are not being held accountable now?

If someone comes along and orders the demolition of your property, then they should be held accountable for relocating you or rebuilding your house.

Just some thoughts
Michael G

28

[quote=“mkegruber”]Hi,

I’ve read the links are articles contained in this thread (yes I do have alot of time on my hands) and my view is that Taiwan’s position can be summarised as this…

Taiwan was Japanese territory, Taiwanese at the time had Japanese citizenship (correct me if I’m wrong).

At the end of WWII, America ordered representives of the ROC to accept the surrender of Japan on Taiwan.

Taiwanese nationhood was transferred from Japan to someone.

Who was Taiwan transferred to?

And the crux of the question here is, if America (General McCarthur) can create orders that affect Taiwan’s affairs, how come they are not being held accountable now?

If someone comes along and orders the demolition of your property, then they should be held accountable for relocating you or rebuilding your house.

Just some thoughts
Michael G[/quote]
Good summary.
The million dollar question, Who was Taiwan transferred to?
Retrocession seems to be a lame cover-up, Why didn’t Truman clear this shit up at the time?
I hope the law suit goes foward and brings a final answer to the question that Truman neglected to answer.
And as to calling people crackpots, it seems to me that niether Hartzell or Dr. Lin are crackpots, but maybe Truman was.

29

What “declarative relief” (is that the right term?) are Hartzell and Lin asking from the U.S. government? Do they want the court to order the U.S. to re-take over Taiwan or something? Just issue passports and set up that “U.S. Court of Taiwan” here somewhere? Pay money, like they did to compensate for violating treaties with the Injuns? Rubber-stamp the coming elections and say their job is done here? What?

I wonder if the cause might not have been better served with the “poster child” being a Taiwanese seeking only a U.S. passport, rather than Hartzell and Lin seeking some sort of grand re-conceptualization of U.S. policy towards Taiwan. One passport might have slipped under the radar, but opened the floodgates (mixing metaphors is good or bad? I forget) to a few million more by setting a precedent. The second way just sounds like those tax protester arguments–maybe correct, legally and historically speaking, but there’s no way they can ever be allowed to win.

I vaguely recall a treaty case in U.S. law (studied it for int’l business courst) in which a U.S. citizen sued his government over the interpretation of an int’l treaty, and the judge allowed his ruling to be guided by amicus curea-i sent by the governments which were party to it. His reasoning being, that if the parties to a treaty could agree on what it meant, far be it for he–the judge–to tell them it meant something else. Do all the parties to the treaty of SF agree that Taiwan isn’t a U.S. territory? And are willing to write the court to that effect…?

Hmmm. If this is all about the law of conquest, maybe the A.I.T. should invite Chen Shui-bian over, have him declare war on the U.S. occupiers, and then the U.S. could respond by surrendering over the following round of drinks. Would that be enough to satisfy international law?

30

SJ, this is an attempt from Taiwanese citizens to make the US clarify it’s position over Taiwan.

It might end up in nothing, but at least you cannot say that they didn’t try.

31

Not being a resident legal expert, I only took a few moments to find this online –
“Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).”
constitution.org/grossack/bivens.htm
Granted this is not a countersuit but the U.S. does have sovereign immunity, right?

I doubt the U.S. government is going to allow itself to be sued in court; however, I have been wrong before and maybe wrong in this case.

32

I am familiar with a case, which involves a Taiwanese attorney, which is right on point.
login.findlaw.com/scripts/callaw … /1154.html

I understand that Attorney Shieh (the star of the above entitled case) is still in practice here in Taipei. Maybe he could be of some help. I have had the august honor of meeting Attorney Shieh on two occasions. I should mention from an attorney ethics standpoint, Attorney Shieh is the one Taiwanese attorney who most California attorneys know by name. Attorney Shieh has brought honor to the Taiwanese Bar and as I aforementioned he would be great co-counsel on this case.

No charge for the referral,
Attorney Brian Kennedy

33

[quote=“brianlkennedy”]I am familiar with a case, which involves a Taiwanese attorney, which is right on point.
login.findlaw.com/scripts/callaw … /1154.html

I understand that Attorney Shieh (the star of the above entitled case) is still in practice here in Taipei. Maybe he could be of some help. I have had the august honor of meeting Attorney Shieh on two occasions. I should mention from an attorney ethics standpoint, Attorney Shieh is the one Taiwanese attorney who most California attorneys know by name. Attorney Shieh has brought honor to the Taiwanese Bar and as I aforementioned he would be great co-counsel on this case.

No charge for the referral,
Attorney Brian Kennedy[/quote]

This is an esoteric and confusing post. Why don’t you just say what you mean? And what is an august honor anyway?

BTW, a login to read the page linked to may be found here:
bugmenot.com/view/findlaw.com

From my quick scan of it, it sounds like this lawyer Hsieh is like a Li Ao among lawyers. Is this supposed to be a crafty commentary on the futility of the case that is the actual subject of this thread?

34

Just a question, was there a formal declaration at the time that said the U.S. was the principle occupying power, or was that just what someone inferred from them being the only ally with any presence there?

35

Hi redandy,
The San Francisco Peace Treaty in Article 23 does say the principle occupying power is America. For a more complete read , this is from taiwankey.net/dc/rocexile.htm

[quote]In order to examine the status of the Republic of China in Taiwan from the time of late October 1945 up to December 1949, we must first discuss the significance of the surrender of Japanese troops on October 25, 1945.

Under international law, the date of October 25, 1945, merely marks the beginning of the military occupation of Taiwan. There was no transfer of the sovereignty of Taiwan to the ROC on that date.

Let us look at the legal formulation of this military occupation in more detail.

First, who is “the conqueror”? It is a matter of historical record that during the WWII period all military attacks against “Formosa and the Pescadores,” and indeed against the four main Japanese islands, were made by United States military forces. The Republic of China military forces did not participate. Hence, the United States is “the conqueror.”

Second, who is “the occupying power”? In a pre-Napoleonic age, “the conqueror” would simply annex the conquered territory. However, in a post Napoleonic age, the customary laws of warfare disallow “annexation.” After conquest, “the conqueror” only occupies the territory. Hence, in relation to "Formosa and the Pescadores, the United States is “the occupying power”. However, beginning October 25, 1945, the United States has delegated the administrative authority for the military occupation of “Formosa and the Pescadores” to the Chinese Nationalists under Chiang Kai-shek.

Third, what is the status of “Formosa and the Pescadores” in the post-war peace treaty? In the San Francisco Peace Treaty of April 28, 1952, Japan renounced the sovereignty of “Formosa and the Pescadores,” but this sovereignty was not awarded to any other country.
CONCLUSION #1:

For a territorial cession, the military government of the principal occupying power does not end with the coming into force of the post-war peace treaty, but continues until legally supplanted. (This is thoroughly explained in many US Supreme Court cases.) By recognizing this fact, we can see that under the terms of the San Francisco Peace Treaty, “Formosa and the Pescadores” remain under the administrative control of the United States Military Government (USMG).

Importantly, this conclusion is fully supported by Articles 2b, 4b, and 21 of the San Francisco Peace Treaty. The territorial sovereignty of “Formosa and the Pescadores” was definitely not awarded to the Republic of China. Additionally, Article 23 confirms that the United States is “the principal occupying power.”

CONCLUSION #2:

Up to the present day, United States Military Government administrative authority over “Formosa and the Pescadores” has not yet ended.

CONCLUSION #3:

Beginning October 25, 1945, in relation to the administration of “Formosa and the Pescadores,” the Republic of China has been a subordinate occupying power under the United States.

= = = = = = = = = =

China never became a party to the SFPT. Neither the ROC government, which occupied the island of Taiwan (Formosa) 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.

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),]” subject to certain narrow exceptions set forth in Article 21. Accordingly, China, a non-party, did not receive “any right, titles or benefits” under the SFPT except as specifically provided in Article 21.

Specifically, China, a non-party, was not entitled to any benefits under Article 2(b) dealing with the territory of Taiwan (Formosa). The parties to the SFPT chose not to give any “right, title [or] claim to Formosa and the Pescadores” to China.

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 of the SFPT designated the United States as “the principal occupying Power” with respect to the territories covered by the SFPT, including “Formosa and the Pescadores.”

Following the entry into force of the SFPT, the government of the ROC continued to occupy Taiwan (Formosa) as agent for the United States, “the principal occupying Power.”
[/quote]

36

So let me get this straight: the US issued a document that said the US was the occupying power. Neither China nor Taiwan signed this document or were even invited to the meeting where they signed it. But the document didn’t mention Taiwan or China, so we’ll just assume that the US is in charge and ignore all other existing situations. All other documents signed in other countries that mention China or Taiwan don’t count because this document is more important.

Ok, right. Has anyone ever been able to explain just what concrete results they expect from this ludicrous assumptive argument? Anyone? Not “to show” or “to demonstrate” or “reassess” or anything, but just what actions exactly do they hope will occur based on this argument?

37

Let me make a legal suggestion. When you begin the discovery process (discovery is the phase in a civil case where the two parties exchange and gather evidence) you should call a deposition for this gentlemen/thing.

I suspect that Reptoids (Reptile Humanoids from Outer Space) maybe fucking with Taiwan’s sovereignty. As a result, he/she/it may have some important evidence and should be questioned. I make this suggestion in keeping with the serious and real world nature of this whole thread.

No charge for the pre-trial advice,
Attorney Briannoid
Member of the Interplanetary Bar

38

[quote=“Poagao”]So let me get this straight: the US issued a document that said the US was the occupying power. Neither China nor Taiwan signed this document or were even invited to the meeting where they signed it. But the document didn’t mention Taiwan or China, so we’ll just assume that the US is in charge and ignore all other existing situations. All other documents signed in other countries that mention China or Taiwan don’t count because this document is more important.

Ok, right. Has anyone ever been able to explain just what concrete results they expect from this ludicrous assumptive argument? Anyone? Not “to show” or “to demonstrate” or “reassess” or anything, but just what actions exactly do they hope will occur based on this argument?[/quote]

from Richard Hartzell, thanks again:

" … December 7, 1941 – a date which will live in infamy – the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan." President Roosevelt’s speech of December 8, 1941, was immediately followed by a Congressional Declaration of War. On the following day, December 9th, the Chiang Kai-shek’s Republic of China also declared war against Japan.

Formosa and the Pescadores had been ceded to Japan in the 1895 Treaty of Shimonoseki. Under international law, there is no doubt that Japan had possession of the sovereignty of these areas after 1895.

During the course of the Pacific war, the historical record shows that all military attacks against Japanese Formosa and the Pescadores, and indeed against the four main Japanese islands, were conducted by United States military forces. It is very significant that the Republic of China military forces did not participate. According to the precedent established in the Mexican American War, the Spanish American War, etc., after the end of hostilities, the United States will be the (principal) occupying power of these areas.

continued at taiwankey.net/dc/what2do6.htm[/quote]

39

[quote=“brianlkennedy”]I am familiar with a case, which involves a Taiwanese attorney, which is right on point.
login.findlaw.com/scripts/callaw … /1154.html

I understand that Attorney Shieh (the star of the above entitled case) is still in practice here in Taipei. Maybe he could be of some help. I have had the august honor of meeting Attorney Shieh on two occasions. I should mention from an attorney ethics standpoint, Attorney Shieh is the one Taiwanese attorney who most California attorneys know by name. Attorney Shieh has brought honor to the Taiwanese Bar and as I aforementioned he would be great co-counsel on this case.[/quote]

Haha! Yes, Attorney Shieh… the one who holds all us foriegn lawyers in Taiwan in such high regard…

40

[quote=“almondcookie”][quote=“Poagao”]So let me get this straight: the US issued a document that said the US was the occupying power. Neither China nor Taiwan signed this document or were even invited to the meeting where they signed it. But the document didn’t mention Taiwan or China, so we’ll just assume that the US is in charge and ignore all other existing situations. All other documents signed in other countries that mention China or Taiwan don’t count because this document is more important.

Ok, right. Has anyone ever been able to explain just what concrete results they expect from this ludicrous assumptive argument? Anyone? Not “to show” or “to demonstrate” or “reassess” or anything, but just what actions exactly do they hope will occur based on this argument?[/quote]

from Richard Hartzell, thanks again:

" … December 7, 1941 – a date which will live in infamy – the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan." President Roosevelt’s speech of December 8, 1941, was immediately followed by a Congressional Declaration of War. On the following day, December 9th, the Chiang Kai-shek’s Republic of China also declared war against Japan.

Formosa and the Pescadores had been ceded to Japan in the 1895 Treaty of Shimonoseki. Under international law, there is no doubt that Japan had possession of the sovereignty of these areas after 1895.

During the course of the Pacific war, the historical record shows that all military attacks against Japanese Formosa and the Pescadores, and indeed against the four main Japanese islands, were conducted by United States military forces. It is very significant that the Republic of China military forces did not participate. According to the precedent established in the Mexican American War, the Spanish American War, etc., after the end of hostilities, the United States will be the (principal) occupying power of these areas.

continued at taiwankey.net/dc/what2do6.htm[/quote]

On the other hand, I like pie.

I don’t think you could have gotten further from answering my question than that response.