The Status Quo in the Taiwan Strait as defined by the US Constitution

by Richard W. Hartzell & Dr. Roger C.S. Lin  

October 1, 2007  

After the First Sino-Japanese War, Qing China ceded Formosa and the Pescadores to Japan via the 1895 Treaty of Shimonoseki. 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 (aka Taiwan) as part of Japanese territory.

After President Roosevelt's speech of Dec. 8, 1941, the Congress declared war against the Empire of Japan, which included Taiwan. The US Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. Among other war powers, the government has the rights to declare war, to institute military governments, and to make treaties.

According to the historical record, all military attacks against the four main Japanese islands and (Japanese) Taiwan during the period of WWII in the Pacific were conducted by United States military forces.

The US Supreme Court has repeatedly held that "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." After the events of early August 1945, the Japanese Emperor announced his acceptance of an unconditional surrender, thus bringing all fighting in the Pacific to a close. In other words, Japan and her overseas possessions were acquired by US military forces, and were brought under the scope of the US Constitution's territorial clause. Importantly, having been acquired under the principle of conquest, the disposition of these areas must be conducted according to the laws of war.

General Order No. 1 was approved by Commander-in-chief Truman, and announced by General Douglas MacArthur on Sept. 2, 1945. Under the terms of this General Order, Chiang Kai-shek (of the Republic of China) was directed to go to Taiwan and accept the surrender of Japanese forces on the island. The Republic of China (ROC) military forces were transported to Taiwan on US ships and aircraft. The Japanese surrender ceremonies in Taiwan were conducted on Oct. 25, 1945.

While these Japanese surrender ceremonies were ostensibly conducted on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of the "conqueror" and "principal occupying power" -- the United States of America. None of the Allies recognized any transfer of the territorial sovereignty of Taiwan to the ROC on the date of the surrender of Japanese troops, (or any date thereafter). Under the laws of war, Oct. 25, 1945, only marks the beginning of the military occupation of Taiwan.

At the most basic level, the first status of the ROC in Taiwan is as a "subordinate occupying power." The United States is the principal occupying power. A principal - agent relationship is in existence. Military occupation is conducted under military government, and United States Military Government (USMG) jurisdiction over Taiwan has begun as of Oct. 25, 1945. Hence, the ROC military authorities' proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, the mass naturalization of native Taiwanese persons as "ROC citizens" in Jan. 1946, and the implementation of military conscription policies in occupied Taiwan territory are all serious violations of the laws of war.

With the Chinese communists gaining more and more territory in the Chinese civil war period, the ROC moved its central government to occupied Taiwan in December 1949, thus becoming a government in exile. This is the second status of the ROC in Taiwan.

According to Article VI of the US Constitution, a Senate-ratified treaty, such as the post war San Francisco Peace Treaty (SFPT) of April 28, 1952, is part of the "supreme law of the land." Forty-eight nations signed the SFPT. Article 23 confirms that the United States of America is the principal occupying power over all areas covered by the geographic scope of the treaty. Article 4b confirms that USMG jurisdiction over all Article 2 and Article 3 territories is active. In Article 2b, Japan has renounced all right, title, and claim to Taiwan, but no receiving country has been specified. Hence, under international law and US constitutional law, after April 28, 1952, there is no legal basis for the ROC flag to be flying over Taiwan.

Military government continues until legally supplanted. USMG jurisdiction over the four main Japanese islands has ended as of April 28, 1952, and metropolitan Japan has regained full sovereignty. However, up to the present day there has been no official US Executive Branch announcement of the end of USMG jurisdiction over Taiwan, and/or recognition of the commencement of any civil government operations in Taiwan which have supplanted USMG jurisdiction, Contrastingly, as of May 15, 1972, Japanese civil government operations fully supplanted USMG jurisdiction over the SFPT Article 3 territories, and the end of USMG jurisdiction over these territories was formally announced by the US Commander-in-chief.

Numerous US Supreme Court cases have confirmed that "foreign policy is the province and responsibility of the Executive." After December 1949, Presidents Truman, Eisenhower, Kennedy, Johnson, Nixon, and Ford continued to recognize the government-in-exile Republic of China as the "sole legal government of China." However, President Richard Nixon signed an Executive Agreement (Shanghai Communique) with the officials of the People's Republic of China (PRC) on Feb. 28, 1972, establishing a "One China Policy," and President Carter terminated the official US diplomatic recognition of the ROC as of Dec. 31, 1978. Beginning Jan. 1, 1979, diplomatic recognition was transferred to the PRC.

In 1979, the United States Congress passed the Taiwan Relations Act (TRA) to continue the commercial, cultural, and other relations between the people of the United States and the people on Taiwan. Importantly, the TRA specifies that "the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability."

Under the TRA (which is domestic legislation) the United States treats Taiwan as a "foreign state," however in terms of foreign relations, the United States does not consider Taiwan to be an independent sovereign nation. Taiwan is thus "foreign in a domestic sense," which is precisely the description attached to the United States' newly acquired insular possessions of Puerto Rico, Guam, Cuba, and the Philippines after the Spanish American War of 1898.


CONCLUSIONS AND RECOMMENDATIONS

In light of the analysis given above, the following points are notable:

1. As defined under the US Constitution, the status quo in the Taiwan Strait is delimited by the nature of the two entities which border it.

• On the west side of the Taiwan Strait is the People's Republic of China (PRC), established on Oct. 1, 1949, and recognized by the US President as of Jan. 1, 1979, as the sole legitimate government of China.
  
  
• On the east side of the Taiwan Strait is the Taiwan cession, which is a US overseas territory under the jurisdiction of USMG.

2. US Secretary of State Colin Powell's remarks of Oct. 25, 2004 are therefore confirmed as correct. He said: "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."

• After the surrender of Japanese troops on Oct. 25, 1945, Taiwan's international legal position could be correctly defined as "an independent customs territory under USMG on Japanese soil."
  
  
• After the coming into force of the SFPT on April 28, 1952, Taiwan's international legal position could be correctly defined as "unincorporated territory under USMG." There has been no change in this status to date.

3. As defined under the US Constitution and numerous Supreme Court cases, by virtue of living in a territory subject to US jurisdiction, the Taiwanese people

• have fundamental rights under United States laws, including the US Constitution,
  
  
• are entitled to be protected under the "common defense" umbrella of Article 1, Sec. 8, whereby Congress has authorized the US Dept. of Defense to assume full responsibility for the "national defense" needs of all states and territories subject to US jurisdiction,
  
  
• have the Fifth Amendment right and Fourteenth Amendment right against deprivation of life, liberty, or property, without due process of law,
  
  
• have the Eighth Amendment right against cruel and unusual punishment, including deprivation of citizenship, being "stateless," and/or conscription into service in a Chinese rebel army,
  
  
• have the Fourteenth Amendment right of equal protection of the laws, etc.
  
  
• may not be deprived of the Fifth Amendment right to travel (including the right to apply for a US passport) without due process of law, which requires a notice and a hearing.

4. According to the SFPT, the TRA, and the "One China Policy," and with reference to the definition of "passport" provided in the Immigration and Naturalization Act of the United States, as specified in INA 101(a)(30), there is no way that the Republic of China's Ministry of Foreign Affairs can be construed as the competent authority for issuing passports to native Taiwanese persons in Taiwan.

• Specifically, there are no international legal documents which can prove that Taiwan has ever been incorporated into the territory of the ROC or the PRC,
  
  
• Under international law and US constitutional law, there is no legal basis for classifying native Taiwanese persons as ROC citizens,
  
  
• According to the US Dept. of State's Foreign Affairs Manuals, native Taiwanese persons should be classified as "US non-citizen nationals."

5. Despite the remarkable progress in democratic development which the ROC on Taiwan has made during the past fifteen or more years, international law does not recognize any actions, procedures, or other methodology whereby a "government-in-exile" can become established as the legal government of its current locality of residence, and therefore

• At present, the operations of the government in exile "Republic of China" on Taiwan are blocking the Taiwanese people's enjoyment of fundamental rights under the US Constitution,
  
  
• the Commander-in-chief should issue an Executive Order to terminate the principal - agent relationship between the United States and the ROC, and implement direct USMG jurisdiction over Taiwan without delay,
  
  
• all ROC military conscription activities should be cancelled,
  
  
• the remnants of the ROC regime should retreat to the Kinmen and Mazu island groups, which in the present era remain as sovereign ROC territory,
  
  
• the ROC flag should not be flown over Taiwan.

6. Taiwan is the sixth major insular area of the United States, after Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands. While at present the five pre-existing insular areas all have civil governments established by some organic act, today Taiwan remains under the jurisdiction of USMG. A thorough reorganization of the Taiwan government is therefore necessary.