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Comments:
(1) Any analysis of the legal status of the ROC’s Ministry of National Defense must begin with a discussion of the “sovereign status” of the ROC on Taiwan under international law. The United States does not recognize the ROC as a sovereign nation. According to the exhaustive historical, political, and legal analysis presented by the various researchers over the past few years, the Taiwan governing authorities have no legal claim to the sovereignty to Taiwan and the Pescadores. As such, the imposition of compulsory military conscription on the local Taiwanese populace, with criminal penalties for non-compliance, are actions serving to intimidate or coerce a civilian population, and can only be viewed as a war crimes. Of note is that coordination of these military conscription policies over ROC civilians working, studying, or otherwise living in the 50 states are also actively carried out by TECRO and TECO offices in the USA.
(2) According to the provisions of the San Francisco Peace Treaty of (SFPT) April 28, 1952, the United States is authorized as the principal occupying power of Japan and her former dependencies, which means that the United States Military Government (USMG) has jurisdiction over these areas until the military occupation ends. Examination of the historical record in regard to the territorial cessions after the Mexican American War and after the Spanish American War clearly shows that “military government continues until legally supplanted,” and we can find no record of a USMG announcement of an end to dejure occupation of Formosa and the Pescadores. As such, the United States’ support of a subordinate group of “military governors” on Taiwan (i.e. the TRA’s “Taiwan governing authorities”) amounts to the maintenance of a puppet government, or proxy occupation. To the extent that this “puppet government” has violated the human rights of the local populace, and engaged in a variety of criminal acts, such actions are terrorist in nature, and in many instances qualify as war crimes as well.
(3) The Constitution in use in Taiwan is the “ROC Constitution,” designed for use in mainland China and promulgated in Nanjing in the late 1940’s. It is not by any means an organic law for the Taiwan cession. Many segments of the ROC military establishment continue to maintain that the mainland is ROC territory, as it was before the establishment of the PRC on October 1, 1949. Indeed, the ROC Constitution makes such a claim. Surprisingly, in the period of 1949 to the present day, this ROC Constitution has never been changed to reflect the fact that the ROC only has effective territorial control over Formosa and the Pescadores and other such nearby minor island groups. (The limits of effective “ROC territorial control” were spelled out in the USA-ROC Mutual Defense Treaty, however the “ROC Constitution” used in Taiwan has never been changed to reflect this.) If the Taiwan governing authorities are sincere in renouncing all claim over rights to mainland China territory, then they must draft a new Constitution or new Basic Law. Otherwise, this
organic law has always been interpreted by Taiwan’s Supreme Court to say that mainland China is ROC territory. Importantly, such a legal formulation which underlies the functioning of the government structure in Taiwan clearly shows the intent to influence the policy of the PRC government by intimidation or coercion. Clearly, the premise of the Shanghai Communiques that “there is only one China and the PRC is the lawful government of China” is being denied, and that denial is backed up with military forces.
(4) The legal basis for the functioning of the ROC’s Ministry of National Defense and all subsidiary agencies is found in the “ROC Constitution.” However, as noted above, the “ROC Constitution” is not the true organic law for the Taiwan cession, because Taiwan has never been incorporated into ROC territory. This fact
was expounded upon in the decision of Rogers v. Sheng, (D.C. Circuit, 1960). Moreover, there is no international precedent whereby the Constitution of a non-recognized government-in-exile can be accredited legal validity, especially in terms of authorizing the establishment and maintenance of a Ministry of National Defense and military forces.
(5) The mandatory conscription of USA-Taiwan dual nationals into the ROC military forces is in violation of the terms of the Taiwan Friendship Commerce, and Navigation Treaty. The complicity of the personnel of “Taiwan Overseas Representative Offices” in the USA in enforcing such military conscription into the military forces of this “non-recognized government-in-exile” should be viewed as a
violation of the criminal laws of the United States.
(6) The military actions and the threats of Taiwan’s Ministry of National Defense in asserting sovereignty rights over the Spratly Islands and the Daioyutai (Senkaku) Islands, involve violent acts or acts dangerous to human life, as a direct challenge to the territorial claims of other internationally recognized “sovereign nations”, and occur primarily outside the territorial jurisdiction of the United States, transcending US national boundaries in terms of the means by which they are accomplished, and the persons they appear intended to intimidate or coerce.
Historically these actions have lead to, and in the future can be expected to lead to armed conflict between military forces.
(7) According to the Insular Cases of the US Supreme Court, where the United States is the principal occupying power, thus resulting in USMG jurisdiction over an island territory, a “limbo cession” by treaty is an independent customs territory under USMG and a insular area of the USA by
default. The precedent for this is the situation of Cuba after the Spanish American War, which is delineated by the 1898 Treaty of Paris, Article 1. Additionally, the US Constitution states that Congress shall have the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water” (Article 1, Section 8, clause 11) Public property captured or seized from the enemy, as well as private property validly captured on the battlefield and abandoned property, is property of the United States.
(8) After the defeat of Japan in WWII, Japanese forces in Taiwan surrendered on October 25, 1945. Despite the fact that the ROC government authorities do exercise the executive, judicial, and legislative roles as defacto “military governors” of the Taiwan cession, in light of the above facts, it is clear that the public land as well as private property validly captured on the battlefield and abandoned property in Taiwan as of October 25, 1945, belongs to the US government. The failure of the Taiwan governing authorities to turn over such property to the proper authorities, and the disposal of some portions thereof for personal profit, is a violation of Article 103 of the Uniform Code of Military Justice.
(9) Furthermore, under SFPT Article 10 and 14(b), any seizure, confiscation, and/or sale of such public land as well as private property validly captured on the battlefield and abandoned property, as has been done by the ROC “military governors” in their role as “subordinate occupational administrators” beginning October 25, 1945, and continuing up to the present day, is pillaging, which is a war crime in violation both of US law and the laws of war.
(10) The United States typically sells the Taiwan governing authorities large amounts of military hardware and software every year, in support of the Taiwan regime, directly aiding and abetting the Ministry of National Defense and its military forces to defend the ROC claims of “sovereignty” over various territorial areas where they have no sovereignty, and to commit other criminal acts. The sale of such military hardware and software must be based on the premise that “military conscription” policies in the Taiwan area rest on a firm legal basis, however as outlined above no such legal basis exists.
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