1. As such, and regardless of the lack of any action by Congress, Taiwan is a TYPE 1 Insular Area of the United States, acquired under the principle of conquest.
2. At the present time, Taiwan has not reached a "final (political) status" and is being held under the administrative authority of "the principal occupying power" (i.e the United States), as specified in the SFPT.

The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself." Hugo Grotius discussed agency in his treatise On the Law of War and Peace, written in 1625. [FN #2]

REFERENCE: 7 FAM 1121.1 How Territories and Possessions Were Acquired   (TL:CON-66; 10-10-96)

a. In the late 19th and early 20th centuries, U.S. sovereignty was extended to overseas territories. These territories (unlike those of the western United States, Alaska, and Hawaii) were not considered a part of the United States, and the Constitution was held not to be fully applicable to them.

b. The territories came under U.S. control in a number of ways:
(1) Puerto Rico, Guam, and the Philippines. After the Spanish-American War, Spain ceded Puerto Rico, Guam, and the Philippines to the United States by the Treaty of Paris of 1899 (30 Stat. 1754)("Treaty of Paris"). The treaty came into force in April 11, 1899. The Philippines ceased being a U.S. territory upon its independence on July 4, 1946;

TYPE 1: Insular Areas Acquired by Conquest -- In the Treaty of Paris signed at the end of the Spanish - American War in 1898, Spain ceded Puerto Rico, Guam, and the Philippines to the United States. In the same treaty, Spain's sovereignty over Cuba was relinquished, but no recipient was designated.

TYPE 2: Insular Areas Acquired by Purchase -- The United States purchased the Virgin Islands from Denmark in 1917.

TYPE 3: Insular Areas Acquired by Agreement -- Great Britain and Germany renounced their claims over Samoa in Feb. 1900. The island group was then formally ceded to the United States by the Samoan chiefs, with ratification by the US Congress in 1929.

TYPE 4: Insular Areas Acquired after United Nations Trusteeship, as a Commonwealth of the United States -- The United States was responsible for administering the Northern Mariana Islands after World War II as a United Nations trusteeship. In 1976 Congress approved the mutually negotiated "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States." The commonwealth government adopted its own constitution in 1977, and the constitutional government took office in Jan. 1978. The Covenant was fully implemented on Nov. 3, 1986, pursuant to Presidential Proclamation No. 5564.

(TYPE 5: An additional type of Insular Area would be those countries which have achieved independence but are now in "Free Association with the USA." However, these are not "unincorporated territories" and hence are not considered here.)

REFERENCE: 7 FAM 1111.3 Nationality (TL:CON-64; 11-30-95)
a. The term "nationals of the United States", as defined by statute (Section l0l(a)(22) INA) includes all citizens of the United States, and other persons who owe allegiance to the United States but who have not been granted the privilege of citizenship.

b. Nationals of the United States who are not citizens are entitled to the consular protection of the United States when abroad, and to U.S. documentation, such as U.S.passports. They are not entitled to voting representation in Congress and, under most state laws, are not entitled to vote in federal, State, or local elections except in their place of birth.

c. Historically, Congress, through statutes, granted U.S. nationality, but not citizenship, to persons born or inhabiting territory acquired by the United States through conquest or treaty. At one time or other natives and certain other residents of Puerto Rico, the U.S.Virgin Islands, the Philippines, Guam, and the Panama Canal Zone were U.S. non-citizen nationals.

REFERENCE: 8 USC 1408
Unless otherwise provided in section 1401 of this title, the following shall be nationals, but not citizens, of the United States at birth:

(1) A person born in an outlying possession of the United States on or after the date of formal acquisition of such possession;

(2) A person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have had a residence in the United States, or one of its outlying possessions prior to the birth of such person;

REFERENCE: 7 FAM 1121.1
c. Treaties, conventions, and proclamations concerning these areas provided for the nationality or citizenship of certain of the inhabitants, but none of the provisions was very specific. Questions arose almost immediately about the status and rights of the inhabitants and the relationship of the newly acquired territories to the United States.

REFERENCE: 7 FAM 1121.2-2 Court Decisions
a. In the first decade of the 20th century, in a series of court cases often called the "Insular Cases", the Supreme Court developed the rationale that, absent specific Congressional legislation or treaty provisions --

(1) The Constitution has only limited applicability to U.S. territories; and

(2) Inhabitants of territories acquired by the United States acquire U.S. nationality -- but not U.S. citizenship.

1. In an authoritative 1997 report compiled by the United States General Accounting Office for the House Committee on Resources, it was stated that "These fundamental rights appear to correspond roughly to the 'natural rights' earlier described by Justice White in a concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901). Justice White included among 'natural rights' the right to one's own religious opinion as well as 'the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice; to due process and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments . . . . ' "
   
   
2. The guarantees in the Fifth Amendment that no person shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" are clearly fundamental rights. Indeed, the ruling in Downes v. Bidwell, 182 U.S. 244 (1901) also held that ". . . . even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution."
   
   
3. "In sum, it can fairly be said that the Insular Cases stand for essentially two propositions: (1) for territories incorporated into the United States, the Constitution applies ex proprio vigore, and (2) for unincorporated territories, only 'fundamental' constitutional rights apply." See King v. Morton, US Court of Appeals, D.C. Circuit, (1975).

REFERENCE: 7 FAM 1121.4-3 Status of Inhabitants of Territories Not Mentioned in the Immigration and Nationality Act (INA)(TL:CON-66; 10-10-96)

The United States exercises sovereignty over a few territories besides those mentioned above. Under international law and Supreme Court dicta, inhabitants of those territories, (Midway, Wake, Johnston, and other islands) would be considered non-citizen, U.S. nationals; However, because the INA defines "outlying possessions of the United States" as only American Samoa and Swains Island, there is no current law relating to the nationality of the inhabitants of those territories or persons born there who have not acquired U.S. nationality by other means.

1. According to the precedent in Kent v. Dulles, 357 U.S. 116 (1958), the right to travel is a part of the "liberty" of which a citizen, or other person owing allegiance to the United States, cannot be deprived without due process of law under the Fifth Amendment. [FN #5]

1. Importantly, freedom of movement across frontiers in either direction, and inside frontiers as well, has been a part of the American heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in the American scheme of values. The right to travel includes the right to obtain a passport.

• Article 2(b) Japan renounces all right, title and claim to Formosa and the Pescadores.
• Article 4(b) Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.
• Article 21 Notwithstanding the provisions of Article 25 of the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a)2; and Korea to the benefits of Articles 2, 4, 9 and 12 of the present Treaty.
• Article 23 ...... including the United States of America as the principal occupying Power, .....

REFERENCE: Taiwan Relations Act, 22 USC 3303 (b) (6)
For purposes of the Immigration and Nationality Act (8 USC 1101 et seq.), Taiwan may be treated in the manner specified in the first sentence of section 202(b) of that Act (8 USC 1152(b)).

REFERENCE: Immigration and Nationality Act, 8 USC 1152(b)
Rules for chargeability
Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) of this section when approved by the Secretary of State.

REFERENCE: INA [8 USC 1101 (a) (3)]
The term "alien" means any person not a citizen or national of the United States.

REFERENCE: INA [8 USC 1101 (a) (21)]
The term "national" means a person owing permanent allegiance to a state.

REFERENCE: INA [8 USC 1101 (a) (22)]
The term "national of the United States" means
(A) a citizen of the United States, or
(B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

1. Conceding to counsel that the general terms 'alien,' 'citizen,' 'subject,' are not absolutely inclusive, or completely comprehensive, and that, therefore, neither of the numerous definitions of the term 'alien' is necessarily controlling, we, nevertheless, cannot concede, in view of the language of the treaty and of the act of April 12, 1900, that the word 'alien,' as used in the act of 1891, embraces the citizens of Puerto Rico.
   
   
2. . . . . . . the act relates to foreigners as respects this country, to persons owing allegiance to a foreign government, and citizens or subjects thereof; and that citizens of Puerto Rico, whose permanent allegiance is due to the United States; who live in the peace of the dominion of the United States; the organic law of whose domicil was enacted by the United States, and is enforced through officials sworn to support the Constitution of the United States, are not 'aliens,' and upon their arrival by water at the ports of our mainland are not 'alien immigrants,' within the intent and meaning of the act of 1891.
   
   
3. The Attorney General applied the ruling in DeLima v. Bidwell, 182 U.S. 1 (May 27, 1901), that "with the ratification of the treaty of peace between the United States and Spain, April 11, 1899, the island of Puerto Rico ceased to be a 'foreign country' within the meaning of the tariff laws." Gonzales was not a passenger from a foreign port, and was a passenger "from territory or other place" subject to the jurisdiction of the United States.

Alien (Type 2): "a native inhabitant of a domestic country," as in the situation of Puerto Rico, Guam, and the Philippines, after the coming into force of the Treaty of Paris (April 11, 1899) and without any action by the US Congress.

Alien (Type 3): "a native inhabitant of foreign territory under the dominion of the United States," as in the situation of Cuba, after the coming into force of the Treaty of Paris (April 11, 1899) and without any action by the US Congress.

REFERENCE: Taiwan Relations Act, 22 USC 3301 (c)
The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States.

The court described the status of Formosa as follows: "Following World War II, Japan surrendered all claims of sovereignty over Formosa. But in the view of our State Department, no agreement has 'purported to transfer the sovereignty of Formosa to (the Republic of) China'....."

"At the present time, we accept the exercise of Chinese authority over Formosa, and recognize the Government of the Republic of China as the legal Government of China."

REFERENCE: INA [8 USC 1101 (a)(30) ]
The term "passport" means any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country.

Note: The consideration of whether the ROC Ministry of Foreign Affairs is the competent authority for issuing passports to native persons in the Kinmen (Jinmen) and Matsu (Mazu) island groups is an entirely separate matter however. These two island groups are not included in the definition of "Taiwan" given in the Taiwan Relations Act. See 22 USC 3314 (2).

"The term 'United States' may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States extends, or it may be the collective name of the states which are united by and under the Constitution."

"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." Also in American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511, 7 L. ed. 242, (1828).

" . . . We have no doubt, however, that, from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty and until further action by Congress. Reference: Cross v. Harrison, (1853) 16 How. 182, 14 L. ed. 896. At the same time, while the right to administer the government continued, the conclusion of the treaty of peace and the cession of the island to the United States were not without their significance."

Article 1 of the Treaty of Paris (April 11, 1899) specifies:
Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.

1. Justice Gray in a concurring opinion stated: "So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory, in the sense of the revenue laws; but those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress. Such was the unanimous opinion of this Court, as declared by Chief Justice Taney in Fleming v. Page, (1850)."

REFERENCE: Taiwan Relations Act [22 USC 3303 (b)]:
Application of United States laws in specific and enumerated areas
  The application of subsection (a) of this section shall include, but shall not be limited to, the following:
  (1) Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.
  (2) Whenever authorized by or pursuant to the laws of the United States to conduct or carry out programs, transactions, or other relations with respect to foreign countries, nations, states, governments, or similar entities, the President or any agency of the United States Government is authorized to conduct and carry out, in accordance with section 3305 of this title, such programs, transactions, and other relations with respect to Taiwan (including, but not limited to, the performance of services for the United States through contracts with commercial entities on Taiwan), in accordance with the applicable laws of the United States.

• United States means the continental United States, the State of Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, the Canal Zone, American Samoa, Guam and any other islands or territory over which the United States exercises jurisdiction.
• Department means the Department of State of the United States of America.
• Secretary means the Secretary of State.
• National means a citizen of the United States or a noncitizen owing permanent allegiance to the United States.

REFERENCE: 22 USC 212
No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.

Footnotes:

FN #1: In Article 2 of the Sino-Japanese Peace Treaty of Aug. 5, 1952, it is recognized that in the SFPT Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores). Obviously, if Japan did not possess all such right, title, and claim after 1895, and up to the coming into force of the SFPT in 1952, the signatories of the treaty would not be agreeing to such a renunciation, and Article 2 would be meaningless.

FN #2: In particular, see On the Law of War and Peace, Book 2, Chapter XI, Sec. XII: "We are obliged to confirm the engagements made by others, acting in our name, if it is evident that they had special, or general instructions from us to do so. And in granting a commission with full powers to any one, it may so happen that we are bound by the conduct of that agent, even if he exceed the secret instructions which he has received. For he acts upon that ostensible authority, by which we are bound to ratify whatever he does, although we may have bound him to do nothing but according to his private instructions."

FN #3: In the present document, the verb "cede," and the noun "cession" are used in their broad original senses to denote the "surrendering of possession of," "relinquishment of sovereignty over," "renouncing of all right, title and claim to," etc.

FN #4: The significance of the designation of a "receiving country" for a territorial cession in a peace treaty is explained as follows: The designation of a "receiving country" serves to authorize the Legislature of that country to pass legislation to establish civil government for the territory. Importantly however, before the beginning of civil government operations, the territory remains under the administrative authority of the (principal) occupying power.

   More explicitly, it should be noted that after the coming into force of the Treaty of Paris, the four areas of Puerto Rico, the Philippines, Guam, and Cuba are all in exactly the same relationship to the United States. In other words, they are all under United States Military Government. This is despite the fact that Puerto Rico, the Philippines, and Guam were ceded to the United States, and Cuba was not. Cuba was a "limbo cession."

   Hence in regard to the criteria for the designation of a TYPE 1 Insular Area of the United States (Insular Areas Acquired by Conquest), it is not necessary that the United States be designated as the "receiving country" for the territorial cession in the peace treaty, but only that the following three conditions be met: (1) conquest by US military forces, (2) the United States as "the (principal) occupying power," and (3) territorial cession in the peace treaty.

FN #5: A fundamental requirement of due process is "the opportunity to be heard." See Grannis v. Ordean, 234 U.S. 385, 394 (1914). It is an opportunity which must be granted at a meaningful time and in a meaningful manner.

FN #6: It is noted that no unincorporated territories of the United States have initiated their own mandatory military conscription policies, as such policies would be in violation of their status under the federal dominion. At the present time, Taiwanese males are subject to mandatory military conscription under the authority of the subordinate occupying power and government in exile "Republic of China." The imposition of these mandatory military conscription policies and related travel restrictions over the male Taiwanese populace beginning in the early 1950's are a denial of "liberty" under the US Constitution, and in direct violation of the Geneva Conventions. This is because any activity prohibited for the principal occupying power is certainly prohibited for a subordinate occupying power. See --

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, (1949.08.12), Article 51 and as codified in FM 27-10, paragraph 418:
The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted ... In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character.

   In Application of Yamashita, 327 U.S. 1 (1946), the US Supreme Court held that "FM 27-10 (1940), . . . states the principal offenses under the laws of war recognized by the United States."

FN #7: The standard US Supreme Court references for the doctrine of "temporary allegiance" under the law of occupation are United States v. Rice (1819) and Fleming v. Page (1850). The first involved the British occupation of Castine, Maine, during the War of 1812. The second involved the US occupation of the port of Tampico, in the State of Tamaulipas, Mexico, during the Mexican - American War. However, both were during periods of belligerent occupation, and were not followed by territorial cession in the peace treaty.

   In contrast, Taiwan is currently under a civil affairs administration of United States Military Government, which is after peace treaty cession. As a result of the peace treaty cession, under US Constitutional law, Taiwan has been elevated to the position of "unincorporated territory under USMG," and the allegiance of native Taiwanese persons has been raised to a more permanent condition.