PROBLEMS with the US Government Response, and Additional Commentary

PROBLEMS WITH THE US government response, and additional commentary

The Plaintiffs are all born and raised in Taiwan, and are Taiwanese, not Chinese. The Plaintiffs take very strong exception to the Defendant's explanation regarding the status of Taiwan, which includes a quotation from the 1972 Communique, and the 1979 Communique, in which the United States acknowledged “that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China.”

Regarding the 1972 and 1979 Communiques, the Plaintiffs also note that although the US acknowledged the Chinese position, this is different from a "recognition" or "acceptance" of the Chinese position. In fact, the US position on this matter is left unsaid.

The Plaintiffs repeat that they are Taiwanese, and not Chinese. The "Chinese" (in Taiwan) referred to in the 1972 Communique can only be interpreted to be are those members of the ROC government and KMT political party (and their offspring) who fled from mainland China in the late 1940's, and who then established their Rep. of China government-in-exile on Taiwan. The Plaintiffs are not members of that ethnic group.

Moreover the Chinese (in Taiwan) referred to in the 1972 Communique only currently comprise some 15% of the population of Taiwan.

[ RE: Government in exile, see http://www.taiwankey.net/dc/rocexile.htm ]

Moreover, the "One China Policy" has never been precisely defined by the US political branches.

Testifying before the House International Relations Committee on April 21, 2004, Assistant Secretary of State for East Asian and Pacific Affairs James Kelly summarized US policy toward Taiwan (Republic of China, or ROC) and China (People's Republic of China, or PRC). He emphasized that the U.S. "remains committed to the one-China policy based on the three Joint Communiques and the Taiwan Relations Act. The U.S. does not support independence for Taiwan or unilateral moves that would change the status quo as we define it."

During a follow-up Q&A period, Kelly was asked to further define the "One China Policy." He rather hesitatingly admitted, "I cannot very easily define it. I can tell you what it is not. It is not the One-China Policy or the One-China Principle that Beijing suggests, and it may not be the definition that some would have in Taiwan."

[see -- http://www.taiwankey.net/dc/twintro6.htm ]

1. The Jan. 12 response confuses "Taiwan" with "Republic of China" in many instances, but the two are not the same

* US broke relations with "ROC," not with "Taiwan"

* the significance of the diplomatic break in relations was to say that the United States no longer recognized the "ROC" as the legal government of China

* The Taiwan Relations Act uses the terminology of the "Taiwan governing authorities" since the "Republic of China" nomenclature is no longer recognized

An historical overview, which can illustrate the correct usage of this terminology is provided as follows, in relation to key historical events, and with some supplementary explanations as necessary --

The areas of "Formosa and the Pescadores" hereinafter ("Taiwan") had been ceded to Japan by the Qing Dynasty in 1895 via the Treaty of Shimonoseki. Sovereignty of Japan over Taiwan ended on April 28, 1952.

The Republic of China was founded in 1912.

By the late 1920's, the Republic of China (ROC) was recognized by the United States as a the legal government of China.

After the events of Aug. 1945, in General Order No. 1, Douglas MacArthur directed Chiang Kai-shek to go to Taiwan to accept the surrender of Japanese troops. Hence, upon the Oct 25, 1945, surrender ceremonies, the ROC has two roles: (1) it is the recognized legal government of China, (2) it is exercising delegated administrative authority for the military occupation of Taiwan under the United States, which is the principal occupying power.

On Oct. 1, 1949, after a civil war, the People's Republic of China was founded in Bejing. Remnants of the ROC government hierarchy fled the country, many going to occupied Taiwan.

In Dec. 1949, high officials and military officers of the ROC began formal government operations in Taiwan. At this point the ROC's position has changed: (1) it is the recognized legal government of China, but it is now a government in exile, (2) it continues to exercise delegated administrative authority for the military occupation of Taiwan under the United States, which is the principal occupying power.

In Oct. 1971, the ROC was expelled from the United Nations.

As of Jan. 1979, the United States derecognized the ROC as the legal government of China, and formally established diplomatic relations with the PRC.

Hence, in this flow of events, the following facts are important --

The political branches of the US government recognized the ROC as the legal government of China from the late 1920's through Dec. 31, 1978.

However, since late Dec. 1949, the ROC has been a government in exile.

The political branches of the US government have never recognized the ROC as the legal government of Taiwan. The Mutual Defense Treaty of 1955 only recognized the ROC's effective territorial control of "Formosa and the Pescadores," and in accompaniment with the ratification of the MDT by the Senate, a specific statement regarding non-recognition of sovereignty was added into the public record.

According to Article 6 of the Constitution, the San Francisco Peace Treaty is part of the supreme law of the land. The SFPT does not recognize any jurisdiction of "China" (however defined) over Taiwan. The SFPT is of a higher legal weight than the Three Joint Communiques.

The SFPT does recognize the United States as the "principal occupying power" of the geographic areas covered by the treaty.

2. The Jan. 12 response says that there are no legally valid criteria to determine US jurisdiction over Taiwan

* however, military occupation is conducted under military government, and military occupation is an exercise in the rights of sovereignty (see United States v. Rice, (1819) where the judges held that: …by the military occupation of Castine, the enemy acquired a possession which enabled him to exercise the fullest rights of sovereignty; …. )

* moreover, "military government" continues until legally supplanted, so the presence of USMG jurisdiction over Taiwan is is easily verified

also see FM 27-10 para. 353 and 354

also see comments on Military Government on this webpage -- http://www.taiwanbasic.com/dc/notes11.htm

also see comments on Military Government on this webpage -- http://en.wikipedia.org/wiki/Military_government

3. The Jan. 12 response does not recognize that General Order No. 1 provides a legal framework which is fully incorporated into the San Francisco Peace Treaty

* hence, under the SFPT, Taiwan is clearly occupied territory of the USA

* under the SFPT, the sovereignty of Taiwan was not awarded to China (however "China" may be defined)

* the SFPT is the highest ranking document of international law, and of US law, regarding the status of Taiwan in the post WWII period, and the fact that Taiwan is occupied territory of the USA can be derived directly from a laws of war reading of the SFPT

4. The Jan. 12 response holding that there is no recognition by the US government that Taiwan is "occupied territory of the United States" is legally untenable

* a close reading of SFPT from the viewpoint of the customary laws of warfare of the post-Napoleonic period, and with reference to the Mexican American Peace Treaty, Spanish American Peace Treaty, etc. and relevant Supreme Court decisions show that Taiwan is occupied territory of the United States

* the SFPT is the supreme law of the land and supercedes any Executive Orders or Communiques

5. The Jan. 12 response claims that the determination of what government exercises sovereignty over Taiwan is a purely political matter

* however, Taiwan is a territorial cession under the SFPT, so a legal determination is rather straightforwardly made

* neither the PRC nor the ROC signed or ratified the SFPT, and hence cannot benefit from it, the US government lawyers ignore this aspect. In other words, under the specifications of the Senate-ratified SFPT, the ROC can have no claims to Taiwan whatsoever, and this objective fact must be recognized by all US government departments.

* the Plaintiffs suffer damage because under US law they are incorrectly classified as "ROC citizens" and subject to a wide variety of immigration restrictions into the US fifty-states

6. The Jan. 12 response states that the three PRC-USA communiques and a 1996 Executive Order have already determined (and/or "specified") the status of Taiwan

* in fact, the consistent policy of the US government has been that the status of Taiwan is "undetermined"

See See Memorandum from the Department of State Legal Advisor (L/EA - Robert I. Starr) to the Director of the Office of Republic of China Affairs (Charles T. Sylvester], July 13, 1971, "Subject: Legal Status of Taiwan." This memorandum is reprinted as Appendix C in John J. Tkacik, ed., Rethinking One China (Washington, D.C.: The Heritage Foundation, 2004), p. 181.

[As discussed in the article: America's "China Policy" Is in Urgent Need of Definition by John J. Tkacik, Jr., available at http://www.heritage.org/Research/AsiaandthePacific/hl874.cfm ]

* in fact, there are no US documents which prove that the PRC is holding Taiwan's sovereignty

[ The PRC has never had control over Taiwan since its founding on Oct. 1, 1949. This fact has been known by the US State Dept. since the founding of the PRC. A very early reference to this fact is a Sept. 4, 1958 Statement by Secretary of State Dulles, printed in the Dept. of State Bulletin, Sept. 22, 1958, pages 445-446 ]

* in fact, the provisions of the SFPT have a higher legal weight that the specifications of the Three Joint Communiques or any Executive Order

Importantly, however, US authority under the three communiques has only arisen due to Taiwan's status as occupied territory of the US

In other words, the US commander in chief's legal authority to determine that Taiwan should be put on a flight-path for future unification with the PRC has only arisen because, legally speaking, Taiwan is occupied territory of the United States, and hence the commander in chief (as head of the military arm of the government) can make arrangements for disposition of this "occupied territory" under SFPT Article 4b.

Reference: the concurring opinion of Justices White, Shiras, McKenna in Downes v. Bidwell, (1901) --

... it seems to me it is not open to serious dispute that the military arm of the government of the United States may hold and occupy conquered territory without incorporation for such length of time as may seem appropriate to Congress in the exercise of its discretion.

[ see -- http://www.taiwankey.net/dc/downesqu6.htm ]

RE: Legally manageable criteria for adjudicating this case

In order to understand the legally manageable criteria for adjudicating this case, it is necessary to examine the basic nature of military occupation, and in particular how military occupation relates to peace treaty cessions.

In the realm of internationally law, the concept of "military occupation" is primarily an outgrowth of the Napoleonic Wars. In other words, in most areas of the world, in the period before the early 1800's, armies of a country which conquered territory simply annexed the territory. The conqueror was the annexor.

In the post-Napoleonic world, these norms began to change. Certainly, in the practice of the United States, the difference between "military occupation" and "annexation" was recognized very early on, even during the Revolutionary War period.

According to these new customary norms of warfare, the conqueror was merely the occupying power. In consideration that the military occupation of a particular area could be delegated to other country's troops, the most correct wording is to say that: The conqueror is the (principal) occupying power.

As a codification of these customary norms, the definition of military occupation was more carefully codified in the Hague Conventions of 1907, which state that: "Territory is considered occupied when it is actually placed under the authority of the hostile army."

Hence, in relation to the military occupation of a particular area, three elements must be discussed: (1) Who is the (principal) occupying power? (2) When did the military occupation begin? (3) When did the military occupation end?

An overview of the history of California in the Mexican American War period is useful for seeing how these questions are answered.

The Mexican territory of California was under the authority of the hostile army (i.e. US military forces) as of Jan. 13, 1847, thus providing a convenient date for the beginning of the US military occupation of California territory. Military occupation is conducted under military government, and so United States Military Government jurisdiction over California territory has begun as of this date.

The Mexican American Peace Treaty came into effect on July 4, 1848. According to the terms of Article 5 of the Treaty, California territory was ceded to the USA by Mexico.

In Cross v. Harrison (1853), the US Supreme Court confirmed that the military government of the (principal) occupying power did not end with the coming into force of the peace treaty but continued until legally supplanted.

Civil government in California began on Dec. 20, 1849, thus supplanting United States Military Government in the territory.

A similar structure was seen in Puerto Rico. The United States was the conqueror and the (principal) occupying power. The military occupation of Puerto Rico began with the surrender of Spanish troops, and the date given in many sources is Aug. 12, 1898. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Puerto Rico territory has begun as of this date.