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FOR THE DISTRICT OF COLUMBIA Complaint for Declaratory Relief Background Information and Statement of Purpose RECITALS: WHEREAS 1. In the 1895 Treaty of Shimonoseki which concluded the first Sino-Japanese War (1894 - 95), Article 2 specifies: China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon: --(b) The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa. 2. On Dec. 7, 1941, the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan. 3. On Dec 8, 1941, the US Congress issued a Declaration of War against the Empire of Japan. The "Pacific War" began on this day, and was fought for a period exceeding three years and eight months. 4. After the events of August 1945, in a ceremony aboard the battleship USS Missouri, anchored in Tokyo Bay, the Japanese representatives signed the formal surrender document on Sept. 2, 1945. 5. Also on Sept. 2, 1945, General of the Army Douglas MacArthur issued General Order No. 1, which contains the following specifications: The senior Japanese commanders and all ground, sea, air and auxiliary forces within China (excluding Manchuria), Formosa and French Indo-China north of 16 north latitude shall surrender to Generalissimo Chiang Kai-shek.6. The Republic of China military forces were transported to Formosa on US ships. The formal surrender ceremonies were held on Oct. 25, 1945, in the city of Taipei. WHEREAS 1. The laws of armed conflict (aka the laws of war) of the post-Napoleonic period are not completely codified. 2. The Martens Clause has formed a part of the laws of armed conflict since its first appearance in the preamble to the 1899 Hague Convention (II) with respect to the laws and customs of war on land. This Clause was based upon and took its name from a declaration read by Professor von Martens, the Russian delegate at the Hague Peace Conferences 1899. It specifies: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. 3. Together with treaties and conventions, customary law is one of the principal sources or components of the laws of war. It results from a general and consistent practice of States that is followed by them from a sense of legal obligation. The most obvious significance of a norm -- a principle or rule -- of a customary character is that it binds States that are not parties to the treaty in which the norm is restated. It is therefore the customary norm with identical content to that provision of the relevant treaty or convention that binds all States. Customary law is also important for filling in matters inadequately covered by international conventions regarding the laws of war and its subset -- the laws of occupation. 4. From the second half of the 1700's onwards, international law has come to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars in the 1800's. 5. The Hague Conventions of 1907 specify that "Territory is considered occupied when it is actually placed under the authority of the hostile army." (See HR 42.) This definition of "military occupation" is included in US Army Field Manual FM 27-10, The Law of Land Warfare, Chapter 6: Occupation, para. 351. 6. Military occupation is a "transitional period," or period of "interim (political) status." The occupied territory may be said to be "in interim status under the law of occupation." 7. Having not yet reached a "final (political) status," the status of occupied territory may also be described as "undetermined." WHEREAS 1. During the course of the Pacific War, the historical record shows that all military attacks against Japanese Formosa & the Pescadores, and indeed against the four main Japanese islands, were conducted by United States military forces. The United States is the "conqueror." 2. 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. One of these powers is the right to institute military governments. In Ex Parte Milligan 71 U.S. 2 (1866), the US Supreme Court held that military government is: . . . . to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents. 3. The conqueror has the belligerent right to institute military government over conquered territory. A dictionary definition says that "military government" is the form of administration by which an occupying power exercises government authority over occupied territory. 4. The disposition of territory acquired under the principle of conquest must be conducted according to the laws of war. 5. In Dooley v. U.S., 182 U.S. 222 (1901), the US Supreme Court held that: . . . . . The doctrine upon this subject is thus summed up by Halleck in his work on International Law (vol. 2, page 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conqueror for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world and confirmed by the writings of publicists and decisions of courts, -- in fine, from the law of nations. . . . "6. As quoted in the US Supreme Court case of Madsen v. Kinsella, 343 U.S. 341 (argued Jan. 8, 1952, decided April 28, 1952): In speaking of the nature of military government, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (second edition, 1920 reprint), says on page 800: "Military government . . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist . . . . The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part suspended and others substituted in their stead -- in the discretion of the governing authority." WHEREAS 1. The law of agency is the body of legal rules and norms concerned with any principal - agent relationship, in which one person (or group) has legal authority to act for another. 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 spoke of agency relationships between nations in his treatise On the Law of War and Peace, published in 1625. 2. The terminology of "the occupying power" as spoken of in the customary laws of warfare is most properly rendered as "the principal occupying power," or alternatively as "the (principal) occupying power." This is because the law of agency is always available. 3. In Taiwan, the military forces under Chiang Kai-shek (CKS) accepted the Japanese surrender on behalf of the Allies. However, the ensuing military occupation of Taiwan is being conducted on behalf of the "conqueror" and the "principal occupying power" -- the United States. 4. Military occupation is conducted under "military government," and the United States has delegated the military occupation of Taiwan to CKS, who is the head of the ROC. Hence, United States Military Government (USMG) in Taiwan has begun as of Oct. 25, 1945. 5. When the ROC regime moved to occupied Taiwan in Dec. 1949 it became a government in exile. WHEREAS 1. In their broad original senses, the verb "cede" and the noun "cession" are used to denote the "surrendering of possession of," "relinquishment of sovereignty over," "renouncing of all right, title and claim to," etc. 2. Article VI of the US Constitution provides that: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . . . " 3. As was said by Chief Justice Marshall in United States v. The Peggy, 5 US 103 (1801): Where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court, as an act of Congress.And in Foster v. Neilson, 27 U.S. 253 (1829) he repeated this in substance: Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. WHEREAS 1. In Article 2 of the Senate-ratified San Francisco Peace Treaty (SFPT) of April 28, 1952, a number of territorial cessions were specified by Japan. 2. SFPT Article 2(b) states: Japan renounces all right, title and claim to Formosa and the Pescadores.No "receiving country" was designated for this territorial cession in the SFPT. However, Article 23 designates the United States as the principal occupying power. 3. Moreover, SFPT Article 4(b) specifies: 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.Importantly, in the English language, the term "property" includes the concept of "title." WHEREAS 1. In the famous American Insurance Company case, 26 U.S. 511 (1828), Chief Justice Marshall offered this penetrating analysis: 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. 2. And more explicitly, in United States v. Huckabee, 83 U.S. 414 (1872), the Court speaking through Mr. Justice Clifford, said: Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined . . . . 3. Indeed, the American Insurance Company (1828) case is cited in Joseph Story's Commentaries on the Constitution (1833), in his explanation of the scope of application of the "territorial clause" (Art. 4, Sec. 3, Clause 2): "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . . " 4. In Church of Jesus Christ of L. D. S. v. United States 136 U.S. 1 (1890), the Supreme Court concluded that: The power to acquire territory, other than the territory northwest of the Ohio River (which belonged to the United States at the adoption of the Constitution), is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty, and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty. 5. In the US Court for Berlin case of United States v. Tiede, 86 F.R.D. 227; 1979 U.S. Dist. LEXIS 13805, Judge Herbert J. Stern held that: It is appropriate to visualize a hierarchy of types of United States involvement in the governance of overseas territories. For incorporated territories, which are in many cases territories on their way toward full statehood, the full panoply of Constitutional rights is applicable. Next there are those territories, as yet unincorporated, which are guarantees most or all Constitutional safeguards by virtue of act of Congress. Then there are unincorporated territories now governed by the King [v. Morton, 520 F.2d 1140] doctrine, where the constitutionality of Congressional failure to extend the provisions of the Bill of Rights is determined on the basis of a factual inquiry into the feasibility of applying the Bill of Rights at least as to American citizens. In all of these territories, the United States exercises sovereignty . . . 6. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the US Supreme Court held that: To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government . . . 7. The provision that the US Congress has the authority to make a determination of the "civil rights and political status" of native persons in territory acquired by the United States has been specified in all treaties from the 1803 Louisiana cession to the present. Such a provision can thus be cited as the customary law of treaties. WHEREAS 1. On May 13, 1846, the US Congress issued a Declaration of War against Mexico. The military occupation of Mexico during the Mexican-American War created an "independent customs territory" under the jurisdicition of USMG. The legal concept of "independent customs territory" arises from military occupation. 2. In US Supreme Court case of Fleming v. Page, 50 U.S. 603 (1850), it was determined that: 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 . . . . but those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress. WHEREAS 1. On April 22, 1898, the US Congress issued a Declaration of War against Spain. For those territories over which Spain gave up her sovereignty as a result of the April 11, 1899, Spanish-American Peace Treaty (Treaty of Paris), the landmark ruling of Downes v. Bidwell, 182 U.S. 244 (1901) introduced the concept of "unincorporated territory" into the United States legal lexicon. 2. In other words, the US Supreme Court determined that upon the termination of Spanish sovereignty over these territories, under US law they became "US unincorporated territories." However, at the time that the Treaty of Paris came into effect (and indeed for several years thereafter in most cases), all of these territories were under United States Military Government (USMG), and not under any form of "civil government." 3. Hence, beginning with the Spanish-American War cessions, what the US Supreme Court is speaking of is the category of "unincorporated territory under USMG." Clearly, the three fundamental criteria for the recognition of this most basic type of US insular area are -- conquest by US military forces, the US as "the (principal) occupying power," and territorial cession in the peace treaty. 4. As a restatement of the above, the earliest delineation of US insular areas was by the Supreme Court after the Spanish - American War. The United States was the "conqueror," hence (in the post-Napoleonic era) the United States is the (principal) occupying power. Obviously, "military occupation" is not equivalent to "annexation." 5. As a result, the earliest recognition of US insular areas included four: Puerto Rico, the Philippines, Guam, and Cuba -- each of which had its own USMG. According to the historical record, civil government authorized by (or recognized by) the US Congress was achieved on the following dates: Puerto Rico - May 1, 1900; Philippines - July 4, 1901; Guam - July 1, 1950; and Cuba - May 20, 1902. 6. In summary, it can thus be seen that beginning in 1898, the three fundamental criteria for the recognition of a type of US insular area are -- conquest by US military forces, the United States as the (principal) occupying power, and territorial cession in the peace treaty. Significantly, Taiwan fits these criteria exactly. WHEREAS 1. The US State Dept. informed the Senate in 1970 that "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." This statement was repeated in a "Subject: Legal Status of Taiwan" Memorandum from the Department of State Legal Advisor on July 13, 1971, and has been often repeated since. However, this statement is not entirely correct. 2. In a concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901) Justice White, Mr. Justice Shiras, and Mr. Justice McKenna, stated: . . . 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. The denial of the right of the civil power to do so would not, therefore, prevent the holding of territory by the United States if it was deemed best by the political department of the government, but would simply necessitate that it should be exercised by the military instead of by the civil power. 3. In the situation of a territorial cession, the military government of the (principal) occupying power does not end with the coming into force of the peace treaty. "Military government continues until legally supplanted" is the rule as given in William E. Birkhimer's opus Military Government and Martial Law, 3rd edition, (1914), p. 26. This rule is also apparent from the US Supreme Court case of Cross v. Harrison, 57 U.S. 164 (1853), in which the Justices held that: The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, -- with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government. 4. However, there is no historical record of the end of United States Military Government (USMG) in "Formosa & the Pescadores" (aka Taiwan). Cessation of hostilities in WWII did not end military government. Nor did military government end with the signing of the San Francisco Peace Treaty on Sept. 8, 1951, or the coming into effect of the Treaty on April 28, 1952. Nor did the Taiwan Relations Act (TRA) of 1979 include any such specifications. Nor did the Jan. 1, 1980 termination of the Mutual Defense Treaty include any such provisions. Furthermore, investigation of the collected speeches of the US Commanders in Chief from 1952 to the present, including Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush (senior), Clinton, and Bush (junior), fails to reveal any such announcement. 5. Hence, in the present day, the USMG administrative authority over Taiwan is still legally active. For all effective purposes, Taiwan remains under dejure US military occupation, which is described in military terms as a "Civil Affairs Administration of a military government", while being held under the doctrine of unincorporated territory. With reference to the historical record and the Senate ratified SFPT, the territorial status of Taiwan must be recognized as "unincorporated territory under USMG." WHEREAS 1. After the Spanish - American War, much confusion arose regarding the nationality of the native inhabitants of the newly acquired territories. 2. 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. 3. 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. 4. The decisions in the Insular Cases of the US Supreme Court are important for determining the civil rights of native inhabitants of US insular areas. According to the precedent in the US Supreme Court case of Dorr v. United States, 195 U.S. 138 (May 31, 1904), under the US Constitution there is the concept of "fundamental rights," and these may be described as "inherent although unexpressed principles which are the basis of all free government . . . . " (A) 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 . . . . ' " WHEREAS 1. The following are violations of the laws of war by the Republic of China authorities: a. the announcement of "Taiwan Retrocession Day" on Oct. 25, 1945, 2. In the modern era, the SFPT is the highest ranking document of international law regarding the disposition of "Formosa & the Pescadores." The Republic of China is not a member of the group of 48 countries signatory to the SFPT. 3. SFPT Article 25 expressly stipulates that the treaty shall not confer any benefits on any non-signatory countries. 4. Importantly, SFPT Article 21 does not grant any "benefits" of Article 2(b) to any country. 5. The Sino-Japanese Peace Treaty of Aug. 5, 1952, is a subsidiary treaty drafted under the provisions of SFPT Article 26. 6. Under the TRA, the United States does not recognize the terminology of "Republic of China" after Jan. 1, 1979. 7. On Jan. 1, 2002, Taiwan was admitted to the World Trade Organization (WTO) as an "independent customs territory." 8. On Oct. 25, 2004, former Secretary of State Colin Powell stated: "Taiwan is not independent. It does not enjoy sovereignty as a nation." 9. In summary, whether considered from the viewpoint of US law, or international law, Taiwan is not territory of the Republic of China. Moreover, the classification of Taiwanese persons as Republic of China citizens is without legal basis. WHEREAS 1. With no clear legal foundation to include Taiwan in its definition of "national territory," and no international treaty references which can be found, the ROC is definitely not the competent authority to issue ID documentation (including ID cards, drivers' licenses, passports, etc.) of any kind to native Taiwanese persons. Such an interpretation must be recognized by all US government agencies under the terms of the SFPT. 2. Hence, as defined in INA 101(a)(30), the Republic of China's Ministry of Foreign Affairs cannot be construed as the competent authority for issuing passports to native persons in the areas of "Formosa & the Pescadores." 3. 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. 4. Reference: 9 FAM 41.104 N1 Interpreting "Competent Authority" The term "competent authority" as used in INA 101(a)(30) means an official who is duly authorized to issue passports by the government of the country of issuance. The term is not linked with the maintenance of diplomatic relations with, or recognition by, the United States. Accordingly, the Department will determine, on a case-by-case basis, whether a passport-issuing authority is a "competent authority" within the meaning of INA 101(a)(30). 5. The false claims of "citizenship of the Republic of China" for native Taiwanese persons holding ROC passports should render those passports illegal under US law. WHEREAS 1. The Republic of China Constitution currently in use in Taiwan was passed on Dec. 25, 1946, when the Chinese Nationalist Party (KMT) still ruled China. It was promulgated on Jan. 1, 1947, and came into force on Dec. 25, 1947. It was brought over from Mainland China by the KMT during the Chinese Civil War period of the late 1940's. During this period of time, Taiwan was under military occupation, and had not been incorporated into Chinese territory. 2. Notably, Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record. 3. As such, this ROC Constitution, which is often called the "Nanjing Constitution", is not the true organic law of the Taiwan cession. Under international law, and US Constitutional law, Taiwan remains as an unorganized territory. 4. Hence, at the present time, legally speaking, the ROC Constitution is only valid for use in the ROC territories of the Kinmen and Mazu island groups. These two island groups are not included in the definition of "Taiwan" given in the TRA. See 22 USC 3314 (2). 5. With no clear legal foundation to include Taiwan in its definition of "national territory," and no international treaty references which can be found, the ROC is definitely not the relevant authority to organize and maintain a Ministry of National Defense (MND), including General Staff Headquarters, Army, Navy, Air Force, Combined Services Forces, Armed Forces Reserve Command, Coast Guard Command, Military Police Command, etc. and to impose mandatory military conscription policies over the local Taiwanese populace in Formosa and the Pescadores. The ROC-MND's continued attempts to assert territorial jurisdiction over areas outside of Kinmen and Mazu clearly amounts to "the calculated use of violence or the threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are political and ideological." Such activities involve acts "dangerous to human life, property, or infrastructure," and meet the criteria of being "intended to intimidate or coerce a civilian population, and to influence the policy of a government by intimidation or coercion." The specifications of US Executive Order 13224 should render such activities illegal under US law. WHEREAS 1. The existence of the government in exile Republic of China regime on Taiwan is blocking the Taiwanese people's enjoyment of fundamental rights under the US Constitution. 2. The Republic of China regime on Taiwan is therefore an enemy of the US Constitution. THEREFORE, PREMISES CONSIDERED 1. In the present day, USMG administrative authority over Taiwan is still legally active. However, without its own "organic law," Taiwan is still unorganized territory. 2. In Reid v. Covert, 351 U.S. 487 (1956), Justice Black in a plurality opinion of the US Supreme Court asserted that wherever the United States acts it must do so only "in accordance with all the limitation imposed by the Constitution . . . . Constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home." 3. We have filed a Complaint for Declaratory Relief to confirm the fact that Taiwan is overseas territory under the jurisdiction of the United States of America, and that the native Taiwanese people are entitled to fundamental rights under the US Constitution and other laws. |