Technically speaking, it is not possible to deal with "political issues" through the judiciary. However, the courts can look at civil rights issues, and once these are carefully delineated, it may be much easier to understand the parameters of all related political questions.
In order to obtain better civil rights protections for the Taiwanese people, we need to determine the true status of Taiwan under international law. The United States, and indeed many world nations, have traditionally maintained a policy of strategic ambiguity on this issue, however we can discover the true facts of the matter by looking at the historical and legal record.
Taiwan, including the Pescadores, was ceded by China (then under the Qing Dynasty) to Japan in 1895. With regard to the beginning of the Pacific war in December 1941, the following facts are important:
- Contrary to the claims of some historians, Taiwan was not part of the China Theatre during the war.
- All military attacks against Taiwan during the war were conducted by United States military forces.
- Taiwan was de jure part of Japanese territory up until late April 1952.
After the events of August 1945, the Japanese Emperor announced his acceptance of the terms of an unconditional surrender. Japanese troops in Taiwan surrendered on Oct. 25, 1945, thus marking the beginning of the belligerent occupation of "Formosa and the Pescadores." Although the surrender ceremonies in Taiwan were held on behalf of the Allies, the ensuing military occupation on Taiwan was conducted on behalf of the "conqueror" and "principal occupying power" -- the United States of America.
After losing the Chinese civil war in 1949, the ROC government fled in exile to Taiwan, an area it was holding under military occupation on behalf of the principal occupying power. The People's Republic of China (PRC) was established on the mainland on October 1, 1949, and hence became the legal successor government to the ROC in the mainland areas.
In the April 28, 1952, San Francisco Peace Treaty, Japan renounced all right, title, and claim to Formosa and the Pescadores. However, no receiving country was named for this territorial cession. Hence, Taiwan has remained under the jurisdiction of the principal occupying power as an interim status condition.
Based on this simple legal and historical analysis, and with reference to the decisions in the Insular Cases of the US Supreme Court, the Taiwanese people, by virtue of living in a territory subject to the jurisdiction of the United States, should be entitled to enjoy fundamental rights under US laws, including the US Constitution. It should therefore be possible to file a Complaint for Declaratory Relief in the appropriate US Court to obtain these rights.
In this way, the controversy regarding the political status of Taiwan can be resolved as well.
A Complaint was filed in late October 2006. The United States government has until late mid-January 2007 to reply. Full details on the content of this Complaint, along with relevant historical and legal background information, are given below.
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