Roger C. S. Lin et. al. v. United States of America [Part 2]

Legal General Legal Matters
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This topic is continued from viewtopic.php?f=89&t=56438&start=280

Dr. Roger Lin’s legal action against the United States of America is now in the U.S. Court of Appeals. Two lengthy Briefs were filed in 2008, according to the schedule stipulated by the court. Those filings were on on Nov. 3 and Dec. 17.

Previous discussion on forumosa.com spent much time debating whether or not this suit is justiciable, in particular with regard to the “political question doctrine.”

However, as the two Briefs filed in 2008 make abundantly clear, this lawsuit does not present a nonjusticiable political question, or judicial intervention into political matters, even though some persons may feel that it has significant political overtones.

This lawsuit merely seeks declarations which require the examination of Appellants’ “status resulting from prior action.” Relevant excerpts from these two Briefs are available at taiwanbasic.com/insular/lin.htm

Oral Arguments are now scheduled for Feb. 5, 2009 in Washington D.C., and will focus on the central question at issue in this appeal: whether the political question doctrine bars the District Court from determining Appellant’s legal rights under United States statutes and the Constitution as a result of the undisputable fact that under Article 23(a) of the San Francisco Peace Treaty (SFPT) of April 28, 1952, the United States is “the principal occupying Power” of Taiwan, over which Japan renounced “all right, title and claim” in Article 2(b).

The United States’ status as “principal occupying Power” over Taiwan has resulted from the United States defeat of Japan in World War II, including the United States’ conquest of Taiwan, and subsequent United States military government jurisdiction over Taiwan, which is further authenticated by SFPT Article 4(b) confirming the validity of United States Military Government directives pertaining to Taiwan.

Note: The form of administration by which an occupying power exercises government authority over occupied territory is called “military government.” For a territorial cession in a peace treaty after war, the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted by a recognized civil government for the area. See – taiwanadvice.com/milgovdchart.htm

A Summary of the fundamental legal rationale for the court case, and the Relief Requested, is given here – taiwanbasic.com/civil/tcourt.htm

Additional background information on the case, informative links, and downloads of the complete versions of the two Briefs are available at – civil-taiwan.org/usca.htm

Relevant observations, suggestions, or comments from the forumosa.com community are welcome.

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The following commentary provides some valuable background information on the “rationale” for the court case.

Commentary on the One China Policy
taiwanbasic.com/onechina/eitem1.htm

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This is a fascinating case. It is, in my very humble point of view, a very unusual position to take.

I do have a few questions about this. First, consider this scenario:

When the Republic of China was formally given power by the Qing Dynasty as the successor to the Emperor, they considered the Treaty of Shimonoseki to be invalid as one of the “Unequal Treaties” and refused to formally recognize that it had ever been valid.

This was confirmed in the Treaty of Taipei between Japan and the ROC, which in Article 4 states that all treaties before 1941 are considered null and void, effectively stating that the soverignty of Taiwan was considered has never being transfered to Japan. The Treaty of San Francisco, Chapter II, Article 2, section (b) also confirms this nullification between Japan and the other signatories of the SFPT.

To the best of my knowledge, such a retroactive invalidation of a treaty is unprecedented. However, if this process is considered valid and having legal force, then it means that Taiwan was always part of the territory that the ROC has soverignty over. Therefore, no constitutional referendum or amendment was required in order to add Taiwan as a new territory because it was always part of the ROC.

Futhermore, the raising of the ROC flag in Taiwan in 1945 signifies that the US forces in Taiwan who resisted the Japanese forces were doing so on behalf of the ROC, and that the authority of the USMG to do so came from the ROC. This is lent further credence by the later treaties (Treaty of Taipei and SFPT) which invalidate the Treaty of Shimonoseki and validate the ROC’s position (and later the PRC’s) that the ROC always had soverignty over Taiwan, as it means that the ROC was in a position to authorize the USMG to resist Japanese occupation on its behalf.

However, even if the Treaty was never invalidated and the ROC never had soverignty, it does not follow that the USMG could not have been fighting on behalf of the ROC. In other words, even if the treaty of Shimonoseki counts, the US military may still have been serving as surrogate ROC forces.

In conclusion, the Treaty of Shimonoseki was rejected by the Republic of China as an unequal treaty. The ROC considered itself the soverign government of Taiwan since its inception, and Taiwan as being a ROC territory since that time (and as a Qing dynasty China owned territory from before that time). This was confirmed by Japan in the San Franciso Peace Treaty and the Treaty of Taipei, as well as by the other dominant international powers of that time (namely the United States of America) by the SFPT. The USMG, on behalf of the ROC, fought to remove the illegitimate occupying power of the Japan Empire from Taiwan and did so successfully, bringing it under ROC administration in 1945 (but the territory was always under ROC soverignty). Thus, at least until 1949, the ROC was the rightful government of Taiwan. (Any post 1949 issues are contended only by the status of the PRC being the successor government of the ROC.)

My questions are thusly:

  1. Why is the Treaty of Taipei invalid? Governments-in-exile are able to make treaties.

  2. Can the Treaty of Shimonoseki be considered retroactively invalidated?

2a) If so, then how did soverignty transfer from the ROC to the USMG?

2b) If not, why not? What does this make of the ROC’s position on Taiwan, or the PRC’s, when neither government was directly responsible for the Treaty (having been signed by the Qing Dynasty prior to falling) ?

  1. What makes one believe that the ROC occupied Taiwan on behalf of the USMG in 1945, instead of the reverse?

  2. Unrelated to the above scenario, but only in regards to US domestic law - what makes you think that the residents of Taiwan are US citizens?

At best, unincorporated US territory allows for gaining US nationality, but this does not imply citizen. Example: Residents of American Samoa are generally considered US nationals and eligible for US passports, but are not US citizens and must naturalize in the US after residing in the one of the 50 States or the Federal District of Columbia for 5 years in order to be able to gain the ability to vote for the President of America.

In order for all residents to automatically be citizens, as is the case in Guam or Puerto Rico, an act of Congress is required. No such act exists for American Samoa - or Taiwan.

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After researching your position further, I realize you may be claiming rights for Taiwan residents on the basis of being U.S. nationals and not U.S. citizens. This answers my question (4) above, but it raises another one:

From Section 101(A)(29) (www.theodora.com/ina_96_title_1.html):

And from Section 308(1) (www.theodora.com/ina_96_title_3.html):

So Taiwan is explictly not defined as being an outlying possession of the United States, and the U.S. national and not U.S. citizen status is explicitly defined in one’s relation to a territory that is defined as an outlying possession.

Furthermore, the rights of U.S. national noncitizens (as opposed to some of rights that apply only to U.S. citizens or those that apply to everyone, including aliens) are only defined in the U.S.C. U.S. national noncitizens have no rights that are directly afforded to them (and them alone, or them and U.S. citizens alone) through the U.S. Consititution.

From this I conclude that even if Taiwan is a US territory or a USMG-occupied territory, it does not follow that the residents therein are necessarily U.S. citizens OR U.S. national noncitizens. And of course, only US citizens or US national noncitzens have a right to a US passport.

My question is thusly:

5a) If the residents of Taiwan are not U.S. nationals at all, how can they qualify for any sort of rights from the US, such as being guarranteed a U.S. passport? What is the basis for this?

5b) If the residents of Taiwan are in fact U.S. nationals, how do you come to this conclusion?

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Q1) Why is the Treaty of Taipei invalid? Governments-in-exile are able to make treaties.
A1) Dr. Lin does not hold that the Treaty of Taipei is invalid. The Treaty of Taipei is a subsidiary treaty under Article 26 of the San Francisco Peace Treaty (SFPT), with the specific limitation that its terms and conditions cannot exceed those of the SFPT.

The SFPT (which entered into force April 28, 1952) did not award the sovereignty of Taiwan to “China.” This is specifically stated in Article 2(b) and confirmed in Article 21.

Hence, there is no way to interpret the Treaty of Taipei (which entered into force Aug. 5, 1952) to say that it awarded the sovereignty of Taiwan to China.

Q2) Can the Treaty of Shimonoseki be considered retroactively invalidated?
A2) If you want to make an argument in this area, you are going to have to show that the international community accepts such a premise – in other words you are going to have to show (historically, in the last two hundred years or so) that there have been other treaties which have be retroactively cancelled based on some various “criteria.” Failing that, and without a relevant ruling from some international tribunal, no one is going to take such an argument seriously.

When a treaty is invalidated, what does that mean? In fact, the invalidation of a treaty ONLY involves “active clauses.” If the invalidation of a treaty actually did involve each and every clause in the treaty, then in the case of the Treaty of Shimonoseki, the stipulation of Article 4 involving the war indemnity of 200,000,000 Kuping taels would have to be paid back to China. However, from the 1940s to the present, no such payment has ever been demanded, for the simple reason that this has always been considered a “completed clause,” no longer active, hence the cancellation or invalidation of the treaty can have no effect on this clause. In a similar manner, the cession of Taiwan to Japan was completed in 1895, after which time Article 2 was no longer an “active clause” of the treaty, and therefore not subject to any retroactive change or “restoration.”

Moreover, Article XIX of the Limitation of Armament Treaty Between the United States of America, the British Empire, France, Italy, and Japan, (signed at Washington, Feb. 6, 1922) affirmatively identified Formosa and the Pescadores as part of Japanese territory.

Moreover, original drafts of the ROC constitution, completed in the 1920s and 1930s had complete listings of all Chinese provinces included in the “national territory,” and Taiwan was not included.

Moreover, reporter Edgar Snow, in his interview with Chairman Mao Tse-dong on July 16, 1936, quoted the Chairman as advocating that “Taiwan should be independent out of the Japanese colonial rule.” Hence, Chairman Mao clearly recognized that Taiwan was not a part of Chinese territory.

Q2a) If so, then how did soverignty transfer from the ROC to the USMG?
A2a) The ROC has never held the sovereignty of Taiwan. For a more detailed analysis of the sovereignty issue see – taiwanbasic.com/civil/tmodhiae.htm

Q2b) If not, why not? What does this make of the ROC’s position on Taiwan, or the PRC’s, when neither government was directly responsible for the Treaty (having been signed by the Qing Dynasty prior to falling) ?
A2b) The historical development of the legal status of the ROC on Taiwan is given here – taiwanbasic.com/civil/histdev.htm

Q3) What makes one believe that the ROC occupied Taiwan on behalf of the USMG in 1945, instead of the reverse?
A3) This comes back to a question of: Who is the occupying power? The occupying power is the “conqueror.” All military attacks against Taiwan in the WWII period were conducted by US military forces. The ROC did not participate. (Nor was Taiwan inside the “China Theatre.”) As clarified in the San Francisco Peace Treaty, the United States is the “principal occupying Power,” and United States Military Government jurisdiction over Taiwan is active.

Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.

Dr. Lin’s case concerns itself with the correct nationality determination for native Taiwanese people after the coming into force of the SFPT on April 28, 1952. There is no way under international law, or under US constitutional law, that native Taiwanese people can be correctly classified as “ROC citizens,” “ROC nationals,” or anything similar. This incorrect nationality classification is the source of the great majority of problems which the native Taiwanese people are facing in the present era.

Q4) Unrelated to the above scenario, but only in regards to US domestic law - what makes you think that the residents of Taiwan are US citizens?
A4) No, Dr. Lin’s case argues that they are US nationals. Importantly, US courts have not interpreted the INA clause defining “outlying possessions of the United States” equals American Samoa and Swain’s Island as being all-inclusive. The Dept. of State Foreign Affairs Manuals also make this clear. For details on how to arrive at a determination of “US nationality” for native Taiwanese people, see – taiwankey.net/dc/applyp6.htm

1 Like
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Ok, I think I understand your position better.

Article 2(b) simply states that Japan renounces claim over Taiwan. Article 21 states that China is entitled to the benefits of Article 10 (which is a renouncement and abrogation of a bunch of other claims that it had in China from 1901) and Article 14(a)2 simply states that the Allied Powers had the right to take property, rights, and interests either owned by Japan or controlled by Japan.

Taiwan wasn’t part of the claims from China in 1901 (the Treaty of Shimonoseki being signed several decades earlier), so Article 10 is not relevant here. If Taiwan was part of such claims, Article 10 simply restates Article 2(b) - that Japan renounces the claim over Taiwan.

Article 14(a)2 confirms the ability (and the fact of) the USMG assisting the ROC in taking control of Taiwan from Japan and giving it back to Taiwan. And Article 21 confirms China’s entitlement to benefit from that fact.

Based on Article 14(a)2 and Article 10 of the SFPT, one can draw the conclusion that the SFPT allows for the transfer of sovereignty of Taiwan to be taken from Japan by the USMG and handed over to China. However, since the Treaty of Taipei stated that all previous treaties (such as the Treaty of Shimonoseki) were considered null and void, it is not necessary to state that the sovereignty of Taiwan was explicitly transfered to the ROC - or even to China - as Japan revokes its own claim of sovereignty.

Article 26 further complicates this matter as it implies, that if the Treaty of Taipei was subordinate to the SFPT, then it is not possible for Japan to explicitly grant sovereignty to China on its own. If it were to attempt to so do, Article 26 would hold Japan to give soverignty over to the Allied Powers as well. Therefore, Japan would have had to explicitly handed over the soverignty to an Allied Power who in turn would have given it back to China in a separate treaty.

However, since Japan renounced all claims as null and void, including the claim of having soverignty over Taiwan, this issue does not arise (as the revocation of a claim is not a grant).

This is the key issue here. As far as I know, this would have been unprecedented (although your comments below - stating the definition of the invalidation of a treaty - suggest that you have knowledge of it being otherwise). Since I personally do not know of any treaties in the last 200 years being similar invalidated, and I do not know of any international tribunals ruling on this specific matter, I can not meet your requirement of evidence as stated.

However, I do not think the matter can rest there. There is a third possibility to provide evidence of the Treaty of Shimonoseki being considered retroactively invalidated - the behavior of the Allied Powers (namely the USMG and the US’s executive branch), Japan, and China (be it the PRC or the ROC) at this time and later.

The US has made it clear that it has never claimed soverignty over Taiwan (as explicitly stated in a letter posted in the original thread that this was split off of). Japan has explicitly renounced soverignty in the SPFT and the Treaty of Taipei. While it is true that both the PRC and the ROC contest soverignty over Taiwan, the current Taiwan doctrine of special non-state to non-state relations ( en.wikipedia.org/wiki/Special_no … _relations ) makes it clear that there is only a single soverign state (or nation-state if you prefer) and that they are both part of that state.

This means that the PRC and the ROC position is the same, in the sense that they currently agree that China is soverign over Taiwan.

The US does not claim to hold soverignty over Taiwan. Japan does not claim to hold soverignty over Taiwan. China does claim to hold soverignty over Taiwan.

Furthermore, in that letter, the US made it clear that they have never recognized the PRC’s claim of soverignty over Taiwan. Neither do they recognize that Taiwan is an independent soverign country. In light of the Special non-state to non-state relations between the PRC and the ROC, the simplest interpretation of this is that the US recognizes the claim of China over Taiwan but does not recognize that PRC is explictly the voice (or at least the sole voice) of this China.

The claim of soverignty is an active claim. Japan must have continously stated that it had soverignty of Taiwan in international affairs to be recogized as such. It did so until the end of WWII, when it was required by treaty (SPFT and Treaty of Taipei) to stop actively claiming this and consider that claim null and void.

As a side note:

From asmrb.pbwiki.com/TooB+Currency+1900 :

The ratio of $20.67 USD to 27.8 Kuping tael shows that one Kuping tael was equal to approximately $0.75 USD.

So in 1900, those 200,000,000 Kuping tael were worth $150,000,000.00

I was not able to determine how much a Kuping tael is worth today. However, assuming the use of USD as a measure of worth over time is valid, it would be worth $3,820,798,525.80 today and $258,538,083.54 in 1940.

If (and only if) the Treaty of Shimonoseki was considered invalidated - then the SFPT superceeds the Japanese claim in Article XIX.

What counts is not a draft, but the first final completed version of the ROC constitution at the time it was adopted and given the full force of law.

In international law, this is overriden by the SPFT and the Treaty of Taipei. Whether or not the ROC’s consititution and actual practice of governing are consistent is a matter that is internal to the ROC and doesn’t affect international recogniztion of the ROC’s, or China’s, soverignty over Taiwan; or lack thereof.

Chairman Mao did not speak for the ROC.

Even if he did, this statement only signifies that Taiwan was controlled by Japan and that Chairman Mao thought Taiwan should be removed from Japanese control. It is not necessarily a recognition of Japense soverignty over Taiwan per se.

In any case, that statement by itself can not be seen as having force of law either domestically or in international law. It’s simply a comment made by a political leader that can be withdrawn later, or simply ignored by later policies - which (assuming your interpretation is correct) is clearly the case, as the PRC later claimed to have soverignty over Taiwan over the ROC’s claim.

Conceeded - the ROC never had soverignty transfered to the USMG. Either one held it or the other did. As to why the USMG never held soverignty, I refer to my comments from the above sections.

Conceeded, with the same caveat as above.

The USMG conducted the actual military attacks, but it was the ROC flag that was raised. And it was the ROC that occupied Taiwan after Japan had been forced out. Thus, the USMG acted on the ROC’s behalf (as it was allowed to do, as later confirmed by SFPT Article 21) and the ROC was the actual occupying power.

US constitutional law only provides for classification as US citizens or aliens. The U.S.C. also provides for status as US national non citizens. Stating that provisions for ROC citizen status or ROC national status are absent from the US constitution is quite like stating that the constitution of New Zealand has no provision for specifying US citizenship status.

As for international law, if the ROC was, prior to the takeover by the PRC, the government of China - and at this time, the ROC either held soverignty over Taiwan or occupied it - then international law agrees that the ROC can do this.

In any case, international law states that citizenship is left to the matters of a soverign state to define. And in addition, that other states do not have the right to interfere with such classification. If China is a soverign state, and China allows the ROC to define its own citizenship laws, then international law does not all for a nullification of this.

That clause is self-evident as being all-inclusive. Importantly, the status of the US Trust Territory of the Pacific Islands is important here - now independent, they were never considered as US nationals but only as citizens of the Trust Territory. If the Trust Territory - once acknowledged as being under US administration - did not confer US national status, how can Taiwan - which is further away as it is not even acknowledged by the US and is under de-facto ROC administration - confer US national status?

The web page you cite states that Taiwan residents have rights under the US constitution, but also that Taiwan is under US military occupation. US citizens who are inducted into the US military are not under the US constitution while on active duty, so it is not clear to me why a US militarily occupied territory would fall under the US constitution. Also, the web page erroroneously states that the right to hold a passport is in the US constitution. This right is actually part of the U.S.C and is amendable by an act of Congress.

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And here is the link to the post for the letter (first post by Ga-ma):

formosa.com/taiwan/viewtopic.php … ff1bca8de2

On a side note, I am wondering if you know of any documents where it is explicitly stated that the soverignty of Taiwan has been transfered to, or belongs to, the US or the USMG. Or if you know of any documents where the ROC/PRC explicitly acknowledges Japanese soverignty (and not just occupation/control/administration) over Taiwan. Or if you know of any documents Post WWII from any of the Allied Powers which states that Japan once had soverignty over Taiwan.

Preferably, such documents would have “United States”/“Allied Powers”/“Supreme Commander of the Allied Powers”, “Japan”, “Taiwan”/“Formosa”/“Taipei”, and “soverignty” all within the same paragraph (at least).

In any case, the Cairo Declaration and the Potsdam Declaration make it clear that the original intent was to give control of Taiwan back to China. Importantly, these Declarations do not mention Japanese soverignty over Taiwan - only that Japan occupied Taiwan.

While these may not have force of law, since they are issued after 1922 they are a clear refutation from the Allied Powers of Japan having gained soverignty over Taiwan.

Additionally, Supreme Commander of the Allied Powers General Order no. 1 states that Japan forces in Taiwan must surrender to Chiang Kai-shek. This makes it explicit that it was the ROC, and not the USMG, who had been granted authority over Taiwan. The power of the SCAP to issue this order is confirmed by Article 2(b) of the SFPT.

Furthermore, Article 22 of the SFPT states that if there is a dispute related to the treaty that can not be settled by other means, the International Court of Justice must handle it. If the US were to claim that Taiwan was its territory, and the ROC disputed this, the ICJ and not the US Court of Appeals (or even the US Supreme Court) would thus be the place where the dispute would be settled.

In fact, as the US does not make such a claim (based on the letter linked to above), and the ROC does, so there is no dispute between them to settle. If the US ever did have such a claim, it allowed the ROC’s claim to supercede it by refusing to adjucate the claim in the ICJ. (Although this would be complicated by the fact that the ROC would first have to ratify the SFPT and then deposite the general declaration to the Registrar of the Court.)

[quote=“IceEagle”]

That clause is self-evident as being all-inclusive. Importantly, the status of the US Trust Territory of the Pacific Islands is important here - now independent, they were never considered as US nationals but only as citizens of the Trust Territory. If the Trust Territory - once acknowledged as being under US administration - did not confer US national status, how can Taiwan - which is further away as it is not even acknowledged by the US and is under de-facto ROC administration - confer US national status?

The web page you cite states that Taiwan residents have rights under the US constitution, but also that Taiwan is under US military occupation. US citizens who are inducted into the US military are not under the US constitution while on active duty, so it is not clear to me why a US militarily occupied territory would fall under the US constitution. Also, the web page erroroneously states that the right to hold a passport is in the US constitution. This right is actually part of the U.S.C and is amendable by an act of Congress.[/quote]

Additionally, even if a US court ruled that Taiwan counted as an outlying possession, it is still possible for Congress to pass an Act amending the law stating that Taiwan is not an outlying possession and that Taiwan residents are not US nationals. Furthermore, the Act can state that this is retroactive, effectively reversing the court’s ruling and preventing Taiwan from ever having been considered an outlying possession of the US.

If the US court does rule as such, and Congress then passes an Act as such, what will your response, or next step, be?

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Lots of Ifs. The US occupied Japan who unconditionally surrendered. But the US gave Japan back to its people and laid no claim to it. IT gave back Okinawa. It has never been seen to desire ownership of Taiwan.

The US prefers its position on Taiwan to be ambiguous and prefers this ambiguity as an advantage in light of current affairs.

So far the US has only stated that TAiwan is not an independent country. And that Taiwan’s fate should be determined by its residents.

I think the US position is pretty clear, in spite of the smoke screen.

  1. The US recognizes that the current government of Taiwan is in control of the island.
  2. The US recognizes that China lays claim to the island. But it doesnt refute it or promote it.
  3. The US recognizes that the citizens of Taiwan are not in favor of being administered by the PRC.
  4. The US holds the position that each side should not provoke the other side and that the only solution should be an amicable one. Amicable to both sides.
  5. The US holds its own cards on the matter close to its chest and wishes not to define further its present or future position.

Well thats tommys take on the situ :slight_smile: Not ratified by any treaties that were henceforth unratified or made null and void in any way , shape, word or form in shimonoseki, san francisco or taipei or anywhere else. Based upon no known fact or factless fact or an appearance of fact.

9

I think that you are trying to say that the US could have had some “secret agreement” to return Taiwan to the ROC. However, an examination of the historical and legal record fails to reveal any such agreement, “secret” or otherwise.

Dept. of State (DOS) documentation from the early 1950s is very clear in stating that the SFPT did not result in Taiwan being returned to China. President Eisenhower also confirmed this –

Office/Agency: Written Works of Dwight D. Eisenhower
subject: comments on the Japanese Peace Treaty
date: 1963
quote: The Japanese peace treaty of 1951 ended Japanese sovereignty over the islands but did not formally cede them to “China,” either Communist or Nationalist.
(source: Mandate for Change 1953-1956, by Dwight D. Eisenhower, published in 1963 by Doubleday & Co., New York, page 461.)

Your elaborate explanations of the treaties are interesting, but such explanations remain largely theoretical. Dr. Lin’s legal team has the DOS documentation and other references (from legal journals, etc.) to conclusively back up their interpretations. They have thousands of pages of data from the National Archives and Records Administration and other sources.

If you want further information, and more detailed legal rationale regarding the various points you have raised, please read the court documents from Nov. 3rd and Dec. 17th, 2008, which are lengthy and detailed. civil-taiwan.org/usca.htm

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[quote=“IceEagle”]In any case, the Cairo Declaration and the Potsdam Declaration make it clear that the original intent was to give control of Taiwan back to China. Importantly, these Declarations do not mention Japanese sovereignty over Taiwan - only that Japan occupied Taiwan.

While these may not have force of law, since they are issued after 1922 they are a clear refutation from the Allied Powers of Japan having gained sovereignty over Taiwan.[/quote]I don’t follow your logic.

[quote=“IceEagle”]The USMG conducted the actual military attacks, but it was the ROC flag that was raised. And it was the ROC that occupied Taiwan after Japan had been forced out. Thus, the USMG acted on the ROC’s behalf (as it was allowed to do, as later confirmed by SFPT Article 21) and the ROC was the actual occupying power.[/quote]The treaty confirms that the United States was the occupying power. As I stated before, the “conqueror” is the occupying power. The ROC is merely acting as agent for the United States in the military occupation of Taiwan.

[quote=“IceEagle”]Additionally, Supreme Commander of the Allied Powers General Order no. 1 states that Japan forces in Taiwan must surrender to Chiang Kai-shek. This makes it explicit that it was the ROC, and not the USMG, who had been granted authority over Taiwan.[/quote]Neither the Hague nor the Geneva Conventions accord any special status to “the troops that accept the surrender.”

[quote=“IceEagle”]Furthermore, Article 22 of the SFPT states that if there is a dispute related to the treaty that can not be settled by other means, the International Court of Justice must handle it. If the US were to claim that Taiwan was its territory, and the ROC disputed this, the ICJ and not the US Court of Appeals (or even the US Supreme Court) would thus be the place where the dispute would be settled.[/quote]Well, if you have friends in the ROC government, perhaps you can ask them to initiate such a suit. Dr. Lin has already chosen to work through the US federal judiciary.

[quote=“IceEagle”]In fact, as the US does not make such a claim (based on the letter linked to above), and the ROC does, so there is no dispute between them to settle.[/quote]We regard Taiwan as something very similiar to an illegitimate child. When the “father” doesn’t admit to the existence of this child, you go to court. That is what we are doing. A Senate-ratified treaty is the supreme law of the land.

[quote=“IceEagle”]That “outlying possessions” clause is self-evident as being all-inclusive.[/quote]I cannot understand why you are arguing on this point. As stated above, US courts have not interpreted the INA clause defining “outlying possessions of the United States” equals American Samoa and Swain’s Island as being all-inclusive. The Dept. of State Foreign Affairs Manuals also make this clear.

[quote=“IceEagle”]The web page you cite states that Taiwan residents have rights under the US constitution, but also that Taiwan is under US military occupation. . . . . Also, the web page erroroneously states that the right to hold a passport is in the US constitution. This right is actually part of the U.S.C and is amendable by an act of Congress.[/quote]The US Supreme Court has ruled that the right to travel, and the right to hold a passport, is part of the “liberty” of the Fifth Amendment.

[quote=“IceEagle”]Additionally, even if a US court ruled that Taiwan counted as an outlying possession, it is still possible for Congress to pass an Act amending the law stating that Taiwan is not an outlying possession and that Taiwan residents are not US nationals. Furthermore, the Act can state that this is retroactive, effectively reversing the court’s ruling and preventing Taiwan from ever having been considered an outlying possession of the US.

If the US court does rule as such, and Congress then passes an Act as such, what will your response, or next step, be?[/quote]
Dr. Lin is only arguing that native Taiwanese residents are US nationals, he is not asking the court to make any decision regarding whether or not Taiwan is an outlying possession of the USA. Dr. Lin is sticking very close to the “civil rights” aspects of this entire problem.

11

Well Taiwanese will soon not need US visas to visit the US of A.

12

[quote=“Hartzell”]

[quote=“IceEagle”]Additionally, even if a US court ruled that Taiwan counted as an outlying possession, it is still possible for Congress to pass an Act amending the law stating that Taiwan is not an outlying possession and that Taiwan residents are not US nationals. Furthermore, the Act can state that this is retroactive, effectively reversing the court’s ruling and preventing Taiwan from ever having been considered an outlying possession of the US.

If the US court does rule as such, and Congress then passes an Act as such, what will your response, or next step, be?[/quote]
Dr. Lin is only arguing that native Taiwanese residents are US nationals, he is not asking the court to make any decision regarding whether or not Taiwan is an outlying possession of the USA. Dr. Lin is sticking very close to the “civil rights” aspects of this entire problem.[/quote]

If Taiwan is not an outlying possession of the United States, then under what basis are native Taiwanese residents to be considered US nationals? Simply being a “territory” of the United States does not confer this status to the residents.

13

Okay, I guess the refutation wasn’t as obvious as I thought. In light of the presidential comments from 1953 (stating that soverignty was in Japanese hands and wasn’t handed over to China in explicit terms) - I conceed this point.

The ROC forces were in Taiwan when Japan surrendered to them, thus they were the occupying power. At least, they were one of the occupying powers.

For them to be able to sue successfully, they’d have to first contact the US over the disputed claim. The US does not currently have a disputed claim over Taiwan. The SFPT doesn’t spell out that the US is required to make a formal declaration as such - although if you ask it, the US says it has no claims - just that the dispute fail to be resolved by other means before landing in ICJ.

Since the US currently doesn’t actively dispute the claim, the ROC wouldn’t be able to take the case to the ICJ.

The treaty doesn’t explicitly grant the US soverignty over Formosa. While the court has to follow the treaty, there is some room for interpretation.

Side note:

Actually the constitution (including any amendments) trumphs a treaty that the US has signed.

The way the clause is written, it does not have a “including but not limited to” phrase in it. It just lists the two territories.

On the other hand, the clause doesn’t use the word “exclusively” either. There might be merit in having a case get such a ruling from the court, but if Congress had amended that clause in the past in order to add and remove territories considered outlying possessions then the court would take that into account as well.

A citiation of the ruling would be nice, but I’ll take your word for it.

However, only US nationals (including US citizens) are entitled to a US passport, so this argument only works once you have shown that native Taiwanese residents are already US nationals.

Furthermore, although the right to a passport for US national non-citizens may in fact be part of the constitution, the ability of Congress to define who is a US national non-citizen (without the need for a constitution amendment) raises the possibility that the US would attempt to reverse such a ruling for native Taiwanese residents by passing a law that explicitly strips US national status from them. Once stripped, the right to have and hold a US passport is also taken away.

14

No, I was simply stating that even if the US did have soverignty over Taiwan, the SFPT gives the US the power to hand it over to the ROC unilaterially - or, arguably, to the PRC as the successor state.

This is sufficent evidence to shoot down my “All the Allied Powers recognized and agreed with China’s claim of never having lost Taiwan” intepretation. That interpretation was clearly incorrect.

Although I am not sure that such comments have legal force, that quote does not state that the US recognized its own soverignty over Taiwan - the official view may have been that no one had soverignty over Taiwan, a situation similiar to the Gaza strip or Palestine.

[quote=“Hartzell”]
Your elaborate explanations of the treaties are interesting, but such explanations remain largely theoretical. Dr. Lin’s legal team has the DOS documentation and other references (from legal journals, etc.) to conclusively back up their interpretations. They have thousands of pages of data from the National Archives and Records Administration and other sources.

If you want further information, and more detailed legal rationale regarding the various points you have raised, please read the court documents from Nov. 3rd and Dec. 17th, 2008, which are lengthy and detailed. civil-taiwan.org/usca.htm[/quote]

15

February 2009 Headlines

Packed courtroom greets judges in Taiwan treaty lawsuit

Boston Progressive Examiner

examiner.com/x-1969-Boston-P … ty-lawsuit

Appeals Court Examining Taiwan, U.S. Relationship

Washington Legal Times BLOG –

legaltimes.typepad.com/blt/2009/ … nship.html

Press Conference

Feb. 5, 2009

National Press Club, Washington D.C.

taiwanbasic.com/vista/npc-press.htm

16

Keep us informed of the suit, please. In the meantime would you care to address the contents of this speech by Taiwan’s Ambassador Stephen Chen to a group in the UK. He presents very clearly the KMT’s position on Taiwan’s status which is obviously at odds with your and Dr Lin’s own. I am aware that some of the answers can be found in other comments you have made, but seeing as this is the full contrary position laid out by the KMT itself, it would be wonderfully edifying to read your counterpoints.

[quote]Historical Background and Legal Status of Taiwan

Taiwan was a part of the Fujian Province under the Manchu Dynasty and was later made a province. That was the legal status of Taiwan before it was ceded to Japan following the first Sino-Japanese War of 1894-95, in the Treaty of Shimonoseki.

The Republic of China, founded in 1912, succeeded the Manchu Dynasty, not only because of the Revolution led by Dr. Sun Yat-sen, but also because of the imperial edict to abdicate the throne in favor of the Republican government. As successor state, the Republic of China inherited all treaties signed by the Manchus with foreign
powers, including the Treaty of Shimonoseki and the Treaty of Nanking ceding Hong Kong to the United Kingdom.

Then came the Japanese invasion of China, starting as early as l931, with its sweep of Manchuria; however, only after the Marco Polo Bridge Incident in 1937 did the Republic of China organize a full-scale war of resistance against Japanese aggression, marking the beginning of the Second Sino-Japanese War. At this stage, for four years the Republic of China fought alone. In 1941, Japan launched a surprise attack on Pearl Harbor and invaded American and British colonies in Asia. The Republic of China followed in the footsteps of the U.S. and Britain in declaring war on Japan; the three countries formed an alliance in their war effort. The Republic of China, in accordance with international law, declared all treaties signed between China and Japan, including the Treaty of Shimonoseki, null and void.

The Cairo Conference took place between the US, the UK, and the Republic of China in December 1943. In the Cairo Declaration that ensued, the three Allied Powers demanded that Japan return all territories stolen from the Republic of China including Manchuria, Formosa (Taiwan), and the Pescadores (Penghu). The stipulation was later repeated in the Potsdam Declaration of 1945, and accepted by Japan in its Instrument of Surrender in 1945.

Following Japan’s unconditional surrender in August 1945, the Republic of China government immediately reclaimed Manchuria, Formosa, and the Pescadores. Back then, not a single state in the world questioned Taiwan’s status or objected to Taiwan’s return to the Republic of China’s jurisdiction.

The Chinese Civil War resumed shortly after, while thereafter the unfortunate 2/28 Incident occurred in 1947 in Taiwan. The Republic of China government relocated from Nanjing to Taipei in 1949 after losing control of the Mainland to the Chinese Communists. It was the worst of times for the Republic of China government; however, Divine Providence did not forsake the ROC. An epic victory in the Battle of Kuningtou on Kinmen (Quemoy) Island on October 25, 1949, was a crucial morale booster.

However, it is undeniable that the Republic of China was experiencing a Dark Ages on the diplomatic front at that time. Its plight was evident following the release of the White Paper by the US State Department in August 1949. After the People’s Republic of China was created on October 1, 1949, US President Harry S. Truman, however, stated in a press conference on January 5, 1950, and I quote, “In the Joint Declaration at Cairo on December 1, 1943, the President of the United States, the British Prime Minister, and the President of China stated that it was their purpose that territories Japan had stolen from China, such as Formosa, should be restored to the Republic of China. The United States was signatory to the Potsdam Declaration of July 26, 1945, which declared that the terms of the Cairo Declaration should be carried out. The provisions of this declaration were accepted by Japan at the time of its surrender. In keeping with these declarations, Formosa was surrendered to Generalissimo Chiang Kai-shek, and for the past 4 years the United States and other Allied Powers have accepted the exercise of Chinese [referring to the Republic of China] authority over the island.” End quote.

In fact, the U.S. Embassy accredited to the Republic of China government in Nanjing relocated to Taipei with the government. It is true that the Embassy in Taipei was headed by a young Charge d’Affaires, while the U.S. Ambassador, Leighton Stuart, stayed on the mainland. This fact did not diminish a bit the legal status of the U.S. diplomatic mission.

Later that day, Secretary of State Dean Gooderham Acheson, citing the Cairo Declaration and Potsdam Declaration, said:

“In the middle of the war, the President of the United States, the Prime Minister of Great Britain, and the President of China [referring to the Republic of China] agreed at Cairo that among the areas stolen from China by Japan was Formosa and Formosa should go back to China.

“As the President pointed out this morning, the statement was incorporated in the declaration at Potsdam and that declaration at Potsdam was conveyed to the Japanese as one of the terms of their surrender and was accepted by them, and the surrender was made on that basis.

“Shortly after that, the island of Formosa was turned over to the Chinese [referring to the Republic of China] in accordance with the declarations made with the conditions of the surrender.

“The Chinese [referring to the Republic of China] have administered Formosa for 4 years. Neither the United States nor any other ally ever questioned that authority and that occupation. When Formosa was made a province of China nobody raised any lawyers’ doubts about that. That was regarded as in accordance with the commitments.

“Now, in the opinion of some, the situation is changed. They believe that the forces now in control of the mainland of China, the forces which undoubtedly will soon be recognized by some other countries, are not friendly to us, and therefore they want to say, ‘Well, we have to wait for a treaty.’ We did not wait for a treaty on Korea. We did not wait for a treaty on the Kuriles. We did not wait for a treaty on the islands over which we have trusteeship.

“Whatever may be the legal situation, the United States of America, Mr. Truman said this morning, is not going to quibble on any lawyers’ words about the integrity of its position. That is where we stand.

“Therefore, the President says, we are not going to use our forces in connection with the present situation in Formosa. We are not going to attempt to seize the island. We are not going to get involved militarily in any way on the island of Formosa. So far as I know, no responsible person in the Government, no military man has ever believed that we should involve our forces in the island.” End quote.

The international political scene experienced a drastic change after the Korean War broke out on June 25, 1950. Seeing Taiwan’s strategic importance, President Truman ordered the Seventh Fleet to patrol the Taiwan Strait and declared, “Regarding confirmation of Taiwan’s status … it should not be decided until after peace and stability are restored in the region, or until after a peace treaty is signed with Japan, or until the United Nations reaches a decision on the subject.” End quote.

While the US once thought about defining Taiwan’s status as “undecided” until the signing of a peace treaty with Japan to save Taiwan from the grip of Communist China, it made its stance clear following its exchange of notes with the Republic of China government in February 1951, which led to the creation of the Joint Defense and Mutual Assistance Agreement. Meanwhile, the US steadfastly refused to recognize the People’s Republic of China regime.

In 1951, the Allies of World War II, including the US and the UK, began to discuss the signing of a peace treaty with Japan. Those countries that had recognized the PRC, including the UK, the Soviet Union, and India, argued that the PRC, not the ROC, should be invited to the peace conference as the representative of China. Alas! If that had happened, Taiwan would have long been part of the PRC. But it did not happen that way. That’s why I am here.

What happened was that the US finally decided not to invite any representative of China to the conference, which meant neither the PRC, nor the ROC would be invited. The US postulated that Japan should be allowed to sign a separate peace treaty with either the ROC or the PRC government after restoring its sovereignty following the signing of the Peace Treaty of San Francisco. Japan, at the urging of the US, chose the ROC. The Treaty of Peace between the Republic of China and Japan was signed on April 28, 1952 in Taipei, putting an end to all the uncertainties regarding the so-called undecided status of Taiwan.

Furthermore, the signing of the ROC-US Mutual Defense Treaty in 1954 greatly improved Taipei’s international status. It signified the fact that the Republic of China’s sovereignty over Taiwan and Pescadores had been confirmed by international treaties.

The reason is very simple. If one follows the argument that Taiwan’s status had remained undecided even after a separate peace treaty had been signed between the ROC and Japan, how would it have been possible for the United States to sign a treaty of mutual defense with the Republic of China for the specific purpose of protecting Taiwan and Pescadores? It takes only elementary knowledge in international law to see through the fallacy of its logic.[/quote]

17

Office/Agency: (Dept. of State)
title: Check list of Problems Relating to China Which Would Be Affected by a Cease-fire or Armistice in Korea
FE - Mr. Merchant
CA – Mr. Perkins
date: July 5, 1951
quote:
I. Statement of the Issue: To determine the position of the United States with respect to:
(a) whether the Formosa question should be included on the Agenda of a Council of Foreign Ministers Meeting
(b) our policy respecting the disposition of Formosa if it is decided to include this problem on the agenda of such a meeting.

On June 27, the President of the United States stated that
… “Accordingly, I have ordered the Seventh Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. The Seventh Fleet will see that this is done. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.”

The Chinese National Government announced its acceptance of the neutralization measures respecting Formosa. The Chinese Communist regime protested vigorously, describing these measures as acts of American aggression, and appealed to the United Nations.

During subsequent General Assembly debate, Secretary of State Acheson … expressed the belief that the problem of Formosa and the nearly eight million people who inhabit the island should not be settled by force or by unilateral action, and that the international community has a legitimate interest and concern in having this matter settled by peaceful means in accordance with the Charter of the United Nations. He proposed that the General Assembly direct its attention to the solution of this problem under circumstances in which all parties concerned would have a full opportunity to express their views, and would agree to refrain from the use of force until a peaceful and equitable solution was found. The United States asked that the question of Formosa be placed on the agenda of the General Assembly.

In its memorandum supporting this request, the United States Delegation traced the recent history of the island which only a few years before had been used by Japan as a base for aggression in the Pacific area. It recalled that in 1943 the President of the United States, the British Prime Minister and the President of China had stated at Cairo that it was their purpose that Formosa and certain other territories should be restored to the Republic of China. They had reaffirmed this purpose in the terms for Japanese surrender defined at Potsdam on July 26, 1945. These terms had been accepted by Japan, and General Order No. 1 of the Japanese Imperial Headquarters, issued pursuant to the terms of surrender had provided for the surrender of the Japanese forces in Formosa to Generalissimo Chiang Kai-shek. The formal transfer of Formosa to China, the memorandum pointed out was to be at the conclusion of a peace treaty with Japan [ … ]

The Assembly placed the matter on its agenda despite objections by [Nationalist] China and the Soviet Union. …

B. History of Positions Taken by Each Country Concerned

Formosa was surrendered to Generalissimo Chiang Kai-shek on October 25, 1945, and since that time the United States and the other Allied Powers have accepted the exercise of Chinese authority over the Island. In the words of Secretary Acheson at his press conference on January 5, 1950, “When Formosa was made a province of China nobody raised any lawyers’ doubts about that. That was regarded as in accordance with the commitments”.

Like the United States, the British, the French and the Soviets have assumed that China’s control over Formosa would be formalized in the treaty of peace with Japan. …

C. Agreements Previously Made

By virtue of the political agreement concerning the restoration of Formosa to China reached at Cairo and reaffirmed in the Potsdam Proclamation and in the Instrument of Surrender, it was reasonable to conclude that China should occupy and carry on the administration of Formosa pending the peace settlement with Japan. …

It is the opinion of the Department’s Legal Adviser (Top Secret Memorandum dated January 4, 1950 from Mr. Adrian S. Fisher to Mr. W. Walton Butterworth) “that Generalissimo Chiang Kai-shek, in accepting the Japanese surrender on Formosa, may have done so not only in his capacity as representative of the Allied Powers but also in his capacity as representative of China, the power which was to undertake interim administration of Formosa, since existing inter-Allied agreements provided that Formosa should be restored to China and that the Japanese surrender of Formosa should be to Generalissimo Chiang Kai-shek.”

" … the Cairo Declaration and the Potsdam Proclamation contained a political agreement that Formosa should be restored to China. Japan accepted this in the Instrument of Surrender, and agreed to carry out the provisions of the Potsdam Declaration in good faith, and issue whatever orders and take whatever action may be required by the Supreme Commander for the Allied Powers or by any other designated representative of the Allied Powers for the purpose of giving effect to that Declaration." Thus, under the Instrument of Surrender, Japan became obligated to take whatever measures were necessary for giving effect to the provisions of the Potsdam Proclamation, including some further formal action indicating that Formosa is transferred to China; the normal place for such formal action would be in a treaty of peace. I do not believe that … any such formal action had already occurred."

In his memorandum of September 19, 1949 to Ambassador Jessup, concerning the “Legal Status of Formosa”, the Legal Adviser made the following statement respecting the breadth of authority granted by the aforementioned inter-Allied agreements:

“It is believed that the statement of the Cairo Conference was at most a declaration of intention with respect to future disposition of certain parts of the Japanese Empire, and that there is nothing in the Potsdam Proclamation, or in its acceptance by the Japanese Emperor, or in the Instrument of Surrender, which purports to make a present cession to China of sovereignty over Formosa. From the language of all of these instruments it appears that future action is contemplated, and the Japanese obligation is to take whatever action which may be required in the future to give effect to the Potsdam Proclamation, and hence to the Cairo Declaration. From the standpoint of accepted international law, any transfer of sovereignty must be upon the basis of a formal treaty or instrument to which the ceding nation is a signatory. 1 Hyde, 358-359; 1 Oppenheim, 500.”
(source: NARA declassified documents)

Robert I. Starr of the Bureau of East Asian and Pacific Affaris of the US Dept. of State wrote a 13 page Memorandum in 1971 which refutes over 90% of the contents of the above remarks by Stephen Chen. Here is an important piece of that Memorandum –

Office/Agency: Dept. of State
title: United States Security Agreements and Commitments Abroad
subject: Position of the United States
date: 1970
quote: The position of the United States was set forth by the State Department in connection with the 1970 Hearings before the Subcommittee on United States Security Agreements and Commitments Abroad of the Senate Committee on Foreign Relations (91st Cong., 2d Sess.):

"Legal Status of Taiwan as Defined in Japanese Peace Treaty and Sino - Japanese Peace Treaty
"Article 2 of the Japanese Peace treaty, signed on September 8, 1951 at San Francisco, provides that ‘Japan renounces all right, title and claim to Formosa and the Pescadores.’ The same language was used in Article 2 of the Treaty of Peace between China and Japan signed on April 28, 1952. In neither treaty did Japan cede this area to any particular entity. As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution … "
(source: Starr Memorandum, July 13, 1971)

With cognizance that under the terms of the Taiwan Relations Act the terminology of “Republic of China” is not recognized after Jan. 1, 1979, you might also want to refer to Colin Powell’s remarks of Oct. 25, 2004.

Office/Agency: State Dept.
subject: Taiwan is not independent
date: October 25, 2004
item: Secretary of State Colin Powell said: Our policy is clear. There is only one China. Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy.
(source: news reports)

18

Taiwanese in US flock to sovereignty trial

taipeitimes.com/News/taiwan/ … 2003435490

19

Thanks, Richard. The memorandum is a very clear refutation of the ambassador’s argument. I recommend all and sundry to read. It was especially interesting to read that the foreign minister of the ROC at the time of the Treaty of San Fransisco and Sino-JapanesePeace Treaty recognized that that the ROC did not have Taiwan’s title under international law. in a report to the legislative yuan he says:

[quote]At another point, Foreign Minister Yeh stated that “no provision has been made either in the San Francisco Treaty of Peace as to the future of Taiwan and Penghu…

During the interpellations of the Sino-Japanese Peace Treaty in the Legislative Yuan, the Foreign Minister was asked, “What is the status of Formosa and the Pescadores?” He replied:

“Formosa and the Pescadores were formerly Chinese territories. As Japan has renounced her claim to Formosa and the Pescadores, only China has the right to take them over. In fact, we are controlling them now, and undoubtedly they constitute a part of our territories. However, the delicate international situation makes it that they do not belong to us. Under present circumstances, Japan has no right to transfer Formosa an the Pescadores to us; nor can we accept such a transfer from Japan even if she so wishes…In the Sino-Japanese peace treaty, we have made provisions to signify that residents including juristic persons of Formosa and the Pescadores bear Chinese nationality, and this provision may serve to mend any future gaps when Formosa and the Pescadores are restored to us.”[/quote]

I find most interesting the clear refutation of Ambassador Chen’s Dec 2009 position that:

[quote]Furthermore, the signing of the ROC-US Mutual Defense Treaty in 1954 greatly improved Taipei’s international status. It signified the fact that the Republic of China’s sovereignty over Taiwan and Pescadores had been confirmed by international treaties.

The reason is very simple. If one follows the argument that Taiwan’s status had remained undecided even after a separate peace treaty had been signed between the ROC and Japan, how would it have been possible for the United States to sign a treaty of mutual defense with the Republic of China for the specific purpose of protecting Taiwan and Pescadores? It takes only elementary knowledge in international law to see through the fallacy of its logic.[/quote]

But again, from the memo:

[quote]the United States and the Republic of China signed a Mutual Defense Treaty on December 2, 1954.19

…he (Secretary Dulles) informed the committee that the reference in article V to ‘the territories of either of the Parties’ was language carefully chosen to avoid denoting anything one way or the other as to their sovereignty.

“It is the view of the committee that the coming in to force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores. The treaty appears to be wholly consistent with all actions taken by the United States in this matter since the end of World War II, and does not introduce any basically new element in our relations with the territories in question. Both by act and by implication we have accepted the Nationalist Government as the lawful authority on Formosa.[/quote]

Lawful authority but not title holder.

Here’s the full memo. Fascinating stuff.

chinasupport.blogspot.com/2007/0 … andum.html

20

Looking at macmeekin.com/Library/Insular%20Cases.htm , specifically Hawaii v. Manikichi (there is a link to the actual court ruling) - just because the US holds sovereignty and legal title to Taiwan, doesn’t mean that the constitution applies. After all, the 5th and 6th amendments to the US Constitution do did not apply to Hawaii at the time of the court case - even though it was a US territory.

Balzac v. Puerto Rico emphasises this point, showing that the right to a speedy trial did not apply within Puerto Rico.

Downes v. Bidwell make clear this point as well - even if Taiwan is in principle subject to the juristicion of the United States, it is not of the United States - anymore than Puerto Rico was. I say in principle because, even if the US has sovereignty and/or legal title over Taiwan, it has never exercised its rights over Taiwan, with the exception of granting the ROC lawful authority to administer Taiwan following the renunciation of Japanese sovereignty of Taiwan. According to Reid v. Covert, the Insular cases show that Congress has the right to make up rules and regulations for territories with “wholly dissimilar traditions and institutions” - and the Sino-American Mutal Defense Treaty and the Taiwan Relations Act make it clear that the ROC’s institutions are legitimate in the eyes of the US.

Therefore, there is a strong presumption here against Taiwan permanent residents/ROC nationals being US nationals - if the US has sovereignty and legal title over Taiwan, it follows that Congress has the right to recognize the ROC’s current administration over Taiwan as lawful - and to deny them status as US nationals.

My current understanding of what happened with Taiwan in WWII is the following:

The Republic of China, as one of the Allied Powers, worked with the US to take Taiwan away from Japan and restore it to the sovereignty of the ROC (as the successor state to the Qing Dynasty).

The US inherited the title by default as the Principal Occupying Power under the San Fransico Peace Treaty.

Although the intent was for the US and Japan to sign a treaty to formally restore sovereignty of Taiwan to the ROC, this failed to come to pass because of the rise of the PRC on the mainland.

The sovereignty of Taiwan failed to be restored to China due to political reasons, and the US remains the holder of sovereignty and legal title by default according to the SFPT.

The PRC follows the same policy towards US sovereignty over Taiwan now as it did towards British sovereignty over Hong Kong and Portugese sovereignty over Macau - it is not formally recognized. The ROC seems to be in the same position currently, despite any statements the ROC’s representatives have made in the past.

In any case, the US has lawfully allowed the ROC to administer Taiwan.

According to the US’s One China Policy, the US wants Chinese on both sides of the Strait to peacefully come to a resolution. Presumbly, once both sides have come to a resolution, that resolution will be honored by the US under its own One China Policy by formally declaring the sovereignty of Taiwan to be under the government that the Chinese on both sides have agreed on.

So, the US holds sovereignty of Taiwan in trust and allows the ROC to handle the day to day matters, and once the ROC and the PRC have come to a resolution and both agree on the same government that will hold Taiwan’s sovereignty, the US will formally complete the transfer of sovereignty at that time.

In other words, a declaration of the US having de jure sovereignty over Taiwan need do nothing more than preserve the current status quo - Taiwan isn’t independent and can’t be until the US formally transfers the title to it*** , and the PRC’s claim of sovereignty over Taiwan can’t be recognized until the US agrees to hand it over.

The only effect I can see of this, politically, is that Taiwan can safely declare itself to be independent and expect US support if the PRC tries to intervene - and only because that declaration would be rendered null by the US’s legal title.

Now, if Taiwan was actually under, and protected by, the US constitution, the situation would be vastly different. But I see a compelling case to argue otherwise.

*** The US would first have to formally restore diplomatic relations with the ROC (or the Republic of Taiwan) after recognizing it as an independent country with no territory. Presumbly, if this happens, the PRC would have allowed it, as the PRC’s consent is required (or at least implied) in the US’s current One China Policy.