Comments on the Lawsuit
2007
Dear All:
Let me start to make a response to some of the points in the many disputes about this lawsuit which are being circulated on the internet.
1. If we do not make it clear that legally speaking Taiwan is not the territory of the ROC and or the PRC, and trying to organize 10,000 communities to protect Taiwan from being taken over by China from inside out ..... this is not only the passive mode but also fighting against the trap of Taiwan is a part of China. Moreover, it is nothing but another kind of endless dispute. It means not much to me.
2. Any game has its rules. The law is the law and it is almost impossible to achieve our goal of building the sovereign state of Taiwan against the law. Particularly in the USA, there is no way for us to persuade anyone regarding the political issues, as you see in the Jan. 12th reply, the USA government tried to twist our legal issue into the political issue in the lawsuit ..... Unfortunately, the vast majority of the communication among our TA on the issue of TI is just a kind of slogan shouting, and the results amount to nothing.
3. We have a strong feeling that we will win the case since US State Dept. and Whitehouse do not want to deal with it as the legal issue, but the court does. As a matter of fact, in the lawsuit we are presenting the legal issues only. Some of you said our suit has failed but I do not know why they anyone would say that the case had failed??? We are still moving forward. There will be several rounds of documents going back and forth, so of course it will take some time.
4. I think that there is a big misunderstanding on our issue. We have stated that no matter whether you like it or not, Taiwan is one of the overseas territories of the USA according to the law. If you can prove that the Taiwanese people can exercise the sovereignty of Taiwan I will be happy to hear it. No self-comforting phrases and excuses please. No slogans please. I need to know how we can show that the Taiwanese have 100% complete sovereignty, and how such a fact can be proved.
5. We have never tried to be a part of USA. (By the way, territory under USMG is still considered foreign territory.) Our legal logic is only the tool for Taiwanese people to get rid of the ROC and to make it clear that Taiwan is not a part of China legally. At the same time, we have to put all parties face to the law and to stop engaging in the endless dispute. I can forecast that the Dept. of Justice lawyer who is in charge of the response to our lawsuit might be dismissed due to the very poor explanations he has provided against our legal arguments.
6. Some say we need 75% support for TI in Taiwan, then we can do what we want. Is it possible?? How?? We are even having no way to win 2008!! There is the total figure for all green of 44% .... if we put together Taipei and Kaohsiung. Obviously, that is even less than 50%.
7. My dear Taiwanese Americans, please answer my questions straightforwardly. Why do you feel it is shame to fly the American flag instead of the ROC flag in the sky of Taiwan? To me, the American flag releases the Taiwanese from the Chinese on both sides of the Strait, when some day I see it flying over Taiwan! The Chinese are the killers and vampires but the American have not killed Taiwanese over the past fifty or sixty years, have they?? All of us understand very clearly that China and the Chinese are the enemy of Taiwanese, but why do you not want to take down the ROC flag? I am sure you also understand very clearly that only the USA is protecting Taiwan, and the USA is the only one who can protect Taiwan. Can we protect ourselves? Can we get rid of the ROC by ourselves without the issue of USA legal base? What's wrong with all the TA? Can anyone make reasonable comments (or rebuttals) to these serious points?
Cheng Kuang Chen
San Jose, Calif.
Richard and All:
On political or legal issue rebuttal for the lawsuit, my thoughts are as following:
Gen. MacArthur's General Order No. 1 created the entire legal, political framework for how Taiwan is to be governed after WWII, but the Shanghai Communique illegally excluded Taiwanese voices from being heard. That is the damage No. 1 for the Taiwanese.
The Taiwanese have no way to pursue justice through the international systems, because the UN has consistently blocked Taiwan's applications and the US insists on maintaining an absurd "status quo policy" for Taiwan while unfairly allowing China to place nearly 1,000 millisles threatening Taiwan from declaring an official INDEPENDENCE, or seeking the right to self-determination.
Best regards,
Charles Chang
Sacramento, Calif.
Dear All:
Thank you all for the feedbacks, particularly to Don Rogers for his rare but thoughtful contribution. The questions posed by Don Rogers and Albert Kuo are particularly helpful because they suggest that different people have different ideas of the Lin/Hartzell "theory." For example, Rogers asked: "Is it really the goal of the people of Taiwan to be a protectorate of the US or any other country?" And it seems so absurd that the Taiwan Nation Party (Nation Building Party in Hanji) is leading the law suit. Albert Kuo's questions also hint at the same but deeper problems. They also raise the key question: Are Hartzell and Lin/Hartzell the same thing?
To save us from any further wild goose chase, you Lin/Hartzell enthusiasts have the responsibility to tell us exactly what theory you are talking about since you are the ones who keep plodding FAPA to take you seriously despite the fact that your number is very small.
C. M. Laauw
Boston, Ma.
Roger Lin replies:
During the period of time before April 28, 1952, there was arguably a question of "Taiwan independence." However, with the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952, the issue which confronts us is "nation building." Taiwan wants to be a new nation, so .... How can this be achieved?
Legally speaking, first we have to fully clarify Taiwan's international legal position. After this is done, and Taiwan is stable politically, financially, economically, educationally, judicially, etc. then we can move to the next step -- to let the Taiwanese people decide on the future direction for "national development."
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Dear All:
In response to the call of C.M. Laauw, via message #5089 on 1/17/07, for an description of Hartzell theory, I take the liberty to write even though I am relatively new to the theory and may not be a qualified one for the task. Therefore, if any part of my writing misrepresents the theory, please feel free to point out.
The Hartzell theory was originally published in Harvard Asian Quarterly, Fall 2004, "Understanding the San Francisco Peace Treaty's Disposition of Formosan and The Pescadores." What I write below is based on my understanding of this paper which is the foundation of all of Hartzell's articles in his website. To effect a quick grasp of the main points of the theory, I choose to write in the form of a summary instead of the lengthy explanation.
0. The current international legal status of Taiwan can be directly derived from the San Francisco Peace Treaty (SFPT) if one employs a "military mindset" instead of the conventional "civilian mindset".
1. U.S. is "THE" principal occupying power in Taiwan during WWII as further affirmed in Article 23(a) of SFPT. The laws of warfare (such as Hague Convention, Geneva convention, US Army Filed Manual FM 27-10) empower the principal occupying power certain authorities and responsibilities over the occupied territories.
2. Under the SFPT, Japan renounces her right, title, and claim to Taiwan, but no receiving country is specified per Article 2(b) of SFPT. Thus, the international legal status of Taiwan is undetermined. (My note in reply to Donald Rodgers' message #5081 on 1/16/07: Article 3 of SFPT specifies what territories shall be placed under the trusteeship of UN, Taiwan is not one of those.)
3. Japan recognizes the disposition of Taiwan per directives of the U.S. Military Government (USMG) as documented in Article 4(b) of SFPT. Chang Kai-shek's ROC Government is merely the agent on behalf of USMG to administer Taiwan. The current governing authority in Taiwan, which is the "successor" to ROC after US switching her recognition to PRC, remains the agent for USMG. (My note: The agent and its principal are responsible for all the wrong-doings in Taiwan made by ROC and its successor.)
4. The coming into effect of SFPT on April 28, 1952 does not mark the end of military occupation of Taiwan by USMG. To fulfill the responsibilities of the principal occupying power, USMG needs to assist the populace of Taiwan in establishing a legal civilian government. US has not even started this task yet, therefore Taiwan is currently in the interim status under USMG. This interim status qualifies Taiwan as an unincorporated territory of U.S. according to the Laws of Land Warfare FM 27-10 of U.S. Army. The populace of the U.S. unincorporated territory are entitled to U.S. constitutional rights.
5. The Executive branch of the U.S. Government entered into communiques with PRC to "acknowledge" that Taiwan is a part of China. This represents a shift of viewpoint for the U.S. on Taiwan status from "undetermined" to "a part of China" .... (however, the "legal fundamentals" have not changed). The Executive branch of the principal occupying power has the authority and power to influence what would be the final status of Taiwan, as it sees fit, within the bounds of SFPT and the US Constitution. (My note: This is a very alarming fact that deserves deep thought if the theory is indeed true).
6. Although the Judicial branch can not touch the political actions undertaken by the Executive branch, the Judicial branch can review the executive actions to safeguard the constitutional rights of the populace of the unincorporated territory. (My note: This is the basis of Roger Lin's lawsuit in Washington DC.)
7. The current interim status of unincorporated territory of U.S. is not a goal but a statement of the present legal reality. This interim status designation is fully compatible with the past and present U.S. policies and actions, and, in particular, with the Taiwan Relations Act which is a domestic U.S. law.
Any questions? Please cite the item number above. I'll do my best.
Albert S. Kuo
FAPA - St. Louis
Dear All:
I applaud Albert Kuo's (Kuey Sernggi) diligency in his pursuit for the truth of Taiwan's legal standing.
I agree fully with him that the goal of Roger's lawsuit is not in becoming a protectorate of the USA, but as a technical legal manuever to shut off China's pesty aggressive behavior.
It is a process to final self-determination and independence.
If there is a better way to achieve this utimate goal for Taiwan independence, please let this forum members know about it.
Sincerely,
Charles Chang
Sacramento, Calif.
Hi,
I respect and commend the effort put forth by Roger Lin and the supporters. That legal route is in other people's hands and it is hard to put our efforts to expedite it or even realize it. If the subjective desire from Taiwanese people, 75% and more, for establishing the new state materializes, that campaign will give us a strong legal support and further earn the moral support from the world's civilized community.
Our resources are limited, compared to the KMT. Therefore, if we do not put the best to win 2008, we may eventually have the same fate as Dali Lama and his exile regime. Dali Lama is one of the two most respected religious leaders in the world. Just see how many Hollywood stars (Richard Geere, and Sally Stone, etc..) are following him. With that kind of aura and visibility (Tibet being the most televised foreign place on US TV), Tibet's future is still very pessimistic. The Dali Lama could not even get the autonomous status for Tibet.
Actually, the Communists and the KMT are united, a fact which was evidenced by the recent ABien visit. These two bandit groups used to kill each other, jointly kill their own people, and now shake hands to form an even more formidable monster.
Again, our effort should be identifying the Taiwan's core values and realizing them to touch peoples' hearts.
God helps those who help themselves.
Sidney Chen
Menlo Park, Calif.
Hello:
I also saw some suggestions or opinions that are too much of a "sloganeering mindset," with little attention being paid to the legal considerations. I would like to put aside some elements of the theoretical dispute for a while and explore some practical steps that can help Taiwan.
If we apply USA laws to protect us, then, we have to stay within the law ... (This is my legal logic). All these laws give us the ability to put the following concepts and processes into motion.
1. The sovereignty of Taiwan does not belong to, and is not owned by either ROC nor PRC.
2. Taiwan is qualified to establish the legal civil government and USMG should support it by laws.
3. The "civil government" - "organic law" - "referendum" - "legalization" (of both civil government and the organic law), etc. are the fundamental factors to lead Taiwan to build the sovereign state.
4. I understand the above are all legal steps under political decision, and our efforts is how to establish the legal position of [Taiwanese shall be protected by the US constitution] through the legal process.
5. Should the judicial branch make a judicial decision that USA constitution is protecting Taiwanese, that will be very beneficial for us. It will immediately cause a re-evaluation of the Executive branch (political issue) decisions to put Taiwan under Chinese control, and fully clarify that Taiwan is not owned by the ROC, PRC, Taiwanese etc. ("Taiwanese" is de facto statelessness, and the sovereignty is held by USMG legally.)
6. A judicial precedent will take care of the Taiwan issue and will cut off the ROC and PRC, and also hold the promise of establishing a Taiwan sovereign state sooner or later.
7. The territory issue is not decided by the US President but by the Congress, and I would appreciate it if FAPA would keep promoting the Taiwan local opinion of being anti-China -- (either ROC or & PRC). We don't want the ROC or the PRC.
8. Many political commentators point out that UN charter guarantees the inviolability of borders of all internationally recognized states, as well as their sovereignty and territorial integrity. Hence, by supporting the "ROC" and its constitution, you are denying any possibility that the Taiwanese can someday have their own independent country.
9. I must also point out that FAPA's stance that "Taiwan is already a sovereign and independent state" is not only misleading but also very irresponsible ...., I suggest that everyone should urge FAPA to change this stance as soon as possible. There are also many ROC government officers who claim that the Taiwanese own 100% sovereignty of Taiwan. It is simply the self-cheating, self-defeating, and obscurantist policy.
10. A final question is why the elite group such as FAPA is supporting the aggressor's government-in-exile simply because it is run by Taiwanese (President Chen, VP Lu, etc.) !! Many Taiwanese enemies are 100% pure Taiwanese, why do you support these enemies to kill ourselves?? The ROC is the aggressor.
Cheng Kuang Chen
San Jose, Calif.
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