Hartzell's COMMENTARIES on The Taiwan Question

Legal General Legal Matters
1

Over a year ago, I was subscribed to the TaiwanFocus Group on yahoo, but the Moderator there (apparently) didn’t like a number of my postings, so he cancelled my subscription. Hence, I have not participated in the discussions in that online group for about a year.

However, I have recently learned that there are continuing comments in that online group regarding my research on “The Taiwan Question.” In particular, many persons there feel that I should not be offering my opinions on this topic, since I am not a lawyer. Moreover, I did not major in law at the university.

These “objections” are, however, somewhat problematic at this stage here in July 2007. Recently, I was invited to record a series of broadcasts regarding “The Taiwan Question.” The content of those broadcasts is based on my nearly ten years of research into all relevant details. In this regard, I primarily deal with US constitutional law issues and international law issues, including international treaty law, and occasionally with ROC law.

In fact, over the last two weeks, we have recorded some segments and started on the editing. It is all proceeding very smoothly. However, I am wondering if perhaps I should scrap this entire project??

Am I out of my depth in discussing US constitutional law issues and international law issues, (including international treaty law), and ROC law?? My educational background is a B.S. in Economics from the Wharton School of the University of Pennsylvania.

Also, (granted), I am a currently a “foreigner” living in Taiwan. Do I have freedom of speech to record and broadcast my views on “The Taiwan Question” ?? I would be interested in the comments of the forumosa.com community.

2

I believe that anyone has the right to speak on whatever topic they feel like. Whether you’re out of your depth or not is an assessment that isn’t necessarily defined by the number of degrees earned, or the fields they were earned in.

Since when have you ever listened to the peanut gallery? Screw 'em. You know the issues, say what’s on your mind. Whether or not you’ll get anybody to agree with you is a separate matter, but definitely you should speak up if you feel strongly about a subject.

3

Since you asked, I think you’ll have difficulty persuading real lawyers to take you seriously – I mean, most here aren’t lawyers and even we don’t really take you seriously at all on this issue, notwithstanding the fine work you do for foreign spouses.

How seriously did the US courts take you with your last petition? That should give you some clue.

But as Maoman, says, screw 'em. You have a hobby horse and a fine one it is. Ride 'im, cowboy!

4

[quote=“Hartzell”]These “objections” are, however, somewhat problematic at this stage here in July 2007.

…

Am I out of my depth in discussing US constitutional law issues and international law issues, (including international treaty law), and ROC law?? [/quote]

Apparently, yes. The U.S. State Department has just weighed in on this subject.

Dr. Lu received a reply letter from the State Department in response to her letter to Dr. Rice of the Secretary of State. The letter was signed by Sue Bremner, the Deputy Director, Taiwan Coordination Office. The letter was dated June 28, 2007 and reads as follows:

Dear Dr. Lu:

Thank you for your letter of June 4 to Secretary Rice. You asked whether the United States has been “holding” Taiwan’s sovereignty since 1945 and whether Taiwan, like Puerto Rico, is part of the United States.

The United States has never claimed to have acquired title to Taiwan by law, treaty or conquest.

Our relations with Taiwan are governed by the three Joint Communiques and the Taiwan Relations Act. The 1972 Shanghai Communique “acknowledges that all Chinese on either side of the Taiwan Strait maintain there is one China and that Taiwan is a part of China.” Although the United States recognizes the PRC government as the sole legal government of China, we have not formally recognized Chinese sovereignty over Taiwan. In fact, we have not made any determination as to Taiwan’s political status. Our consistent position remains that sovereignty of Taiwan is a question to be decided peacefully by the Chinese people on both sides of the Taiwan Strait.

I hope this information is useful to you.

Sincerely,

Sue Bremner
Deputy Director
Taiwan Coordination Office

5

Apparently, yes. The U.S. State Department has just weighed in on this subject.

Dr. Lu received a reply letter from the State Department in response to her letter to Dr. Rice of the Secretary of State. The letter was signed by Sue Bremner, the Deputy Director, Taiwan Coordination Office. The letter was dated June 28, 2007 and reads as follows:

Dear Dr. Lu:

Thank you for your letter of June 4 to Secretary Rice. You asked whether the United States has been “holding” Taiwan’s sovereignty since 1945 and whether Taiwan, like Puerto Rico, is part of the United States.

The United States has never claimed to have acquired title to Taiwan by law, treaty or conquest.

Our relations with Taiwan are governed by the three Joint Communiques and the Taiwan Relations Act. The 1972 Shanghai Communique “acknowledges that all Chinese on either side of the Taiwan Strait maintain there is one China and that Taiwan is a part of China.” Although the United States recognizes the PRC government as the sole legal government of China, we have not formally recognized Chinese sovereignty over Taiwan. In fact, we have not made any determination as to Taiwan’s political status. Our consistent position remains that sovereignty of Taiwan is a question to be decided peacefully by the Chinese people on both sides of the Taiwan Strait.[/quote]
Ga-ma, that’s a non-answer and you know it. If I say I “never claimed” to be a human, that doesn’t mean that I’m not one. And the TRA is a very carefully ambiguous document. Quoting it doesn’t mean the US is weighing in on the matter - it means they’re avoiding it, which is something entirely different.

6

Really, the State Department’s response is a “non-answer?” Let’s see.

Hartzell and Lin claim that Taiwan is the property of the United States as they received ownership of the island by conquest following World War II. Hartzell and Lin, in their First Amended Complaint (“FAC”) allege as follows:

[quote=“Hartzell/Lin First Amended Complaint”]Paragraph 7 of the FAC states, “Plaintiffs seek a declaration that they have rights and privileges as United States nationals…”

Paragraph 47 of the FAC states, “…the government of the ROC continued to occupy Taiwan as agent for the United States, ‘the principal occupying Power.’”

Paragraph 52 of the FAC states, “Following the Pacific War, Taiwan has been an occupied territory of the United States, ‘the principal occupying Power.’ Currently, Taiwan is an occupied territory of the Unites States, and Taiwan’s statehood status is disputed and uncertain.”

Paragraph 68 of the FAC states, “…the Taiwanese people do not have an internationally recognized citizenship and nationality.”

Paragraph 70 of the FAC states, “Because of their status as United States nationals following to the SFPT [sic], individual Plaintiffs are entitled to United States national passports…”

Thereafter, in the prayer for relief, Plaintiffs request that the court find that the plaintiffs are United States nationals entitled to certain protections under the U.S. Constitution, specifically, the First, Fifth, Eighth, and Fourteenth Amendments. [/quote]

Now, the State Department replies as follows:

“The United States has never claimed to have acquired title to Taiwan by law, treaty or conquest.”

How is that a non-answer to Hartzell and Lin’s theory that Taiwan is “an occupied territory of the United States?”

7

Because the State Department doesn’t say “Taiwan isn’t an occupied territory.”
It merely says the US doesn’t claim Taiwan. Therefore, a non-answer.

8

[quote=“sandman”]Because the State Department doesn’t say “Taiwan isn’t an occupied territory.”
It merely says the US doesn’t claim Taiwan. Therefore, a non-answer.[/quote]

Ok, let’s put the State Department’s statement and your statement together to see whether the State Department’s response is a “non-answer.”

The State Department states that “The United States has never claimed to have acquired title to Taiwan by law, treaty or conquest;” however, Hartzell and Lin maintain that Taiwan is an occuped territory of the United States.

You really think the State Department’s response is a non-answer? How did the U.S. acquire occupation rights to Taiwan then, as they clearly did not get them through law, treaty or conquest as stated by the State Department.

9

Wrong. The only “clear” thing is that the State Department says the US makes no claim on Taiwan. It is NOT saying anything about who “owns” Taiwan, as this is left as “undetermined status.” ONLY that it is not making any claim on the issue. A non-answer, in other words.
Hartzell and his friend are saying: “Yes, we KNOW the official US stance, thanks very much. Our question, backed with our overwhelming evidence that in fact, Taiwan’s status is very much determined, is: Will the US live up to its responsibilities?” And needless to say, the US is unwilling to answer because it cannot, without admitting that in fact, yes it DOES “own” Taiwan. Which would open up such a large can of worms that they’d prefer to just have a hit man quietly take out Hartzell and end his awkward little questions once and for all.

10

Wrong. The only “clear” thing is that the State Department says the US makes no claim on Taiwan. It is NOT saying anything about who “owns” Taiwan, as this is left as “undetermined status.” ONLY that it is not making any claim on the issue. A non-answer.[/quote]

Sandman, I understand your argument, and if you want to argue word choice and symantics by the State Department to give Hartzell and Lin some ray of hope, so be it. The United States District Court for the District of Columbia will answer this question also very shortly.

But, Hartzell and Lin are now swimming completely up stream as the branch of the U.S. government delagated with authority to answer the question posed in their lawsuit has now spoken and clearly opined on this issue. Indeed, you state based on the State Department’s communication that, “[t]he only ‘clear’ thing is that the State Department says the US makes no claim on Taiwan.” Therefore, this is not a non-answer to Hartzell and Lin’s lawsuit. Indeed, this statement is an answer to the claims made in their lawsuit and is terminal to their lawsuit as the plaintiffs in that lawsuit seek “U.S. national” status. But that is not possible, because, as you clearly point out, “the US makes no claim on Taiwan” and the U.S. State Department states that “[t]he United States has never claimed to have acquired title to Taiwan by law, treaty or conquest.”

The State Department letter goes on to state, “…we have not formally recognized Chinese sovereignty over Taiwan. In fact, we have not made any determination as to Taiwan’s political status. Our consistent position remains that sovereignty of Taiwan is a question to be decided peacefully by the Chinese people on both sides of the Taiwan Strait.” Thus, the issue of Taiwan’s sovereignty is an issue left to the 23 million citizens of Taiwan, not the U.S.

Still think this is a non-answer?

11

Oh, so it IS an answer, not just the answer Hartzell and Lin were hoping for, which thus makes it a “non-answer.” Oh, ok, I follow you now.

12

Wrong. The only “clear” thing is that the State Department says the US makes no claim on Taiwan. It is NOT saying anything about who “owns” Taiwan, as this is left as “undetermined status.” ONLY that it is not making any claim on the issue. A non-answer.[/quote]
Sandman, I understand your argument, and if you want to argue word choice and semantics by the State Department to give Hartzell and Lin some ray of hope, so be it. The United States District Court for the District of Columbia will answer this question also very shortly.

But, Hartzell and Lin are now swimming completely up stream as the branch of the U.S. government delegated with authority to answer the question posed in their lawsuit has now spoken and clearly opined on this issue. Indeed, you state based on the State Departments communication that, “[t]he only ‘clear’ thing is that the State Department says the US makes no claim on Taiwan.” Therefore, this is not a non-answer to Hartzell and Lin’s lawsuit. Indeed, this statement is an answer to the claims made in their lawsuit and is terminal to their lawsuit as the plaintiffs in that lawsuit seek “U.S. national” status. But that is not possible, because, as you clearly point out, “the US makes no claim on Taiwan” and the U.S. State Department states that “[t]he United States has never claimed to have acquired title to Taiwan by law, treaty or conquest.”

The State Department letter goes on to state, “…we have not formally recognized Chinese sovereignty over Taiwan. In fact, we have not made any determination as to Taiwan’s political status. Our consistent position remains that sovereignty of Taiwan is a question to be decided peacefully by the Chinese people on both sides of the Taiwan Strait.” Thus, the issue of Taiwan’s sovereignty is an issue left to the 23 million citizens of Taiwan, not the U.S.

Still think this is a non-answer?[/quote]
Of course it’s a non-answer. :wall: Can’t you understand that Hartzell is arguing a technicality? I’m sure we all know that the issue is a non-starter. But the points Hartzell raises are interesting, and certainly valid, if only as a technical curiosity. If Hartzell wants to make an issue of it, why not? Your assertion that the US has “weighed in” on the matter is incorrect. If, as you say it will, the United States District Court for the District of Columbia will also address this question, then great. Until then, we have carefully-crafted diplospeak, designed to convey as little information as possible.

13

Hartzell is arguing a technicality? A technicality typically relates to minor details. Hartzell is arguing that the 23 million citizens of Taiwan were conquered by the United States following World War II, and regardless of their desire to form a democratic country and determine their own course in life, they cannot as the U.S. owns Taiwan. I hardly think Hartzell’s argument is based on a “technicality.”

14

It seems like lots of space has been deliberately left vacant for the ‘Taiwanese’ people to say that they are independent, and not part of China. “All Chinese on either side of the Taiwan Strait” does not necessarily imply anything about the Taiwanese living in Taiwan.

It does state that all Chinese citizens, no matter where they live (ie in China their home country or in another palce such as Taiwan or Okinawa or even the USA, which is on the other side of the Taiwan Strait) maintain that there is only one China state and that that state claims Taiwan. It does not suggest that anybody else in the world agrees with said claim. Nor does it imply that Taiwanese have to agree with it or accept it, only that those that identify themselves as Chinese make the claim.

Which is something that we have known all along. Just look at the KMT old guard…

Dropping the artifice of the name of the ROC is a very sound step towards international recognition of Taiwan’s independence.

The USA does not want to rock the boat at the moment, what with all the North Korea bargaining going on. But try again in a couple of years and you may get a different reception, especially after the Olympics fuss has gone away and China is no longer the whipping boy of the US FDA. Of course, the reception may be even more hostile, especially from China, but perhaps the US will be prepared to stand up and square off a bit to remind the Chinese tiger that it is actually surrounded by a fairly substantial cage.

China is not happy with the current Japan/India/USA/Australia axis that is developing, and adding Taiwan to that list will surely help crystallize many latent tensions.

15

Who says that a technicality has to be a “minor” detail - you?

From m-w.com:
1 : something technical; especially : a detail meaningful only to a specialist
2 : the quality or state of being technical

I’d suggest that these details are meaningful to specialists - that is people interested in US constitutional law issues and international law issues, (including international treaty law), and ROC law. If you’re out of your depth, you should bow out of the discussion.
16

Oh, I am very much in my element. I think Hartzell and Lin are out of their depth as they are not lawyers or legal specialists who have any training in U.S. Constitutional law or any U.S. law for that matter, so it might be hard for them to understand legal technicialities. Or, is the fact that neither of them are lawyers licensed to practice law anywhere just a mere non-minor “technciality” to you?

17

I don’t. In fact, I think their argument, in light of realpoliticks, is specious and altogether Quixotic. They have absolutely NO chance, none whatsoever, of getting what they’re after. But that’s not to say they don’t have sound arguments. And its also not to say that the State Department doesn’t know perfectly well that their arguments are sound.
The State Department is choosing merely to tell them to “fuck off out of it. We’re not even interested in answering your arguments and neither is Taiwan or China, for that matter.”
That doesn’t mean Hartzell’s wrong. All it means is that it’s an issue nobody wants at center stage. But it is pretty interesting to see these arguments being put forward and to see the US squirming slightly. That’s my take, at least.

18

Oh, I am very much in my element. [/quote]
I don’t believe you. If you were, you’d have understood the points that Sandman and I made without needing a step-by-step explanation.

If you’d spend more time arguing their points and less time arguing their qualifications, I might have more to say about the matter. The fact is, you’re anonymously sniping at someone who has done more good for the foreign community than any other foreign resident I can think of. Who are you? What have you done? What are your qualifications? Why does it bother you so much that Hartzell feels passionate about this? Is he misrepresenting himself? As far as I can see, his only claim is that he’s done a lot of research on the matter. Now if you want to state who you are and what your qualifications are, that’d be just great. Otherwise, :stfu:

19

Oh, I am very much in my element. [/quote]
I don’t believe you. If you were, you’d have understood the points that Sandman and I made without needing a step-by-step explanation.

If you’d spend more time arguing their points and less time arguing their qualifications, I might have more to say about the matter. The fact is, you’re anonymously sniping at someone who has done more good for the foreign community than any other foreign resident I can think of. Who are you? What have you done? What are your qualifications? Why does it bother you so much that Hartzell feels passionate about this? Is he misrepresenting himself? As far as I can see, his only claim is that he’s done a lot of research on the matter. Now if you want to state who you are and what your qualifications are, that’d be just great. Otherwise, :stfu:[/quote]

Sandman’s point is that Hartzell has no chance of success. (See the post by Sandman above). I followed Sandman’s step-by-step explanation without any problem. You, on the other hand, have yet to make any point on the merits. Rather, your logic now is that because Hartzell “has done more good for the foreign community than any other foreign resident I can think of” he is right when he argues that the U.S. conquered Taiwan? Really, that is your argument now?

“As far as I can see, his only claim is that he’s done a lot of research on the matter.” So, I guess you haven’t read any of the articles written by Hartzell and Lin where they claim Taiwan is owned by the U.S. I guess you haven’t watched any of the TV talk shows where he claims Taiwan is owned by the U.S. I guess you haven’t read the complaint he filed in the U.S. District Court claiming that Taiwan is owned by the U.S. I guess you haven’t seen messages asking for donations to pay for the lawsuit. To you, all Hartzell claims “is that he’s done a lot of research on the matter.”

I guess you are not TAIWANESE - that is why it does not bother you at all that Hartzell claims that the Taiwanese are not in control of their own destiny. Why should it - to you, all Hartzell claims “is that he’s done a lot of research on the matter.” No harm, no foul. Who cares what others, including the TAIWANESE have to say.

So, let me ask you. Why does it bother you so much that I argue against Hartzell? Who are you to say that I am wrong. Is it because foreigners in Taiwan need to stick up for other foreigners?

Good grief. :loco:

20

Ah, this old topic again. As usual, a lot of specious argument and accusations being thrown about. “You don’t understand the argument!” “No, YOU don’t understand the argument!” Jesus, all this over what amounts to a solidly held strategic ambiguity unassailable by any amount of assumptions by Hartzell and Co. Pick the treaties/agreements/accords/whatever that happen to suite your cause, trash the rest and call anyone who disagrees or believes in another treaty/agreement/accord/whatever a moron because they CAN’T TYPE in CAPITAL LETTERS.