FUNDAMENTAL RATIONALE REGARDING THE ISSUANCE OF "CERTIFICATES OF IDENTITY" AS
FOR NATIVE TAIWANESE PEOPLE
Compiled by the Taiwan Civil Government (TCG), Washington D.C. Office
Reference is made to the Washington D.C. District Court Decision in Roger C. S. Lin et al v. United States of America of March 18, 2008, where the judge held that:
"(The native Taiwanese) Plaintiffs have essentially been persons without a state for almost 60 years. The last completely clear statement of authority over Taiwan came from General MacArthur in 1945. One can understand and sympathize with Plaintiffs' desire to regularize their position in the world. . . . . "
Therefore, the question we must face today is:
"What type of travel documents should the native Taiwanese people be carrying?"
The following legal and historical clarifications provide the background information needed for a comprehensive discussion of this topic.
- According to the terms of the 1895 Treaty of Shimonoseki concluded between the Emperor of China and the Emperor of Japan, Formosa and the Pescadores, now commonly known as Taiwan, was legally transferred in perpetuity and in full sovereignty from the Emperor of China to the Emperor of Japan in 1895. The United States Dec. 8, 1941, Declaration of War against the Empire of Japan included Taiwan.1
- The announced "cancellation" or "nullification" of the Treaty of Shimonoseki by the Chiang Kai-shek regime at various times during the 1930s and early to mid-1940s is without any legal significance whatsoever.2
- During the WWII period, all military operations against (Japanese) Taiwan were conducted by U.S. military forces; the Republic of China military forces did not participate. At the close of hostilities the United States had the right and the duty to occupy Taiwan.
At the most fundamental level, therefore, Taiwan is conquered territory of the United States of America, and the basic relationship between Taiwan and the United States can be deduced from numerous U.S. Supreme Court rulings: "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," American Insurance Company v. Canter, 26 U.S. 511 (1828); "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... ," Lyon v. Huckabee, 83 U.S. 414 (1872). See also: Jones v. U.S., 137 U.S. 202 (1890); "Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal, or otherwise, as may be provided." Boyd v. Nebraska, 143 U.S. 135, 163 (1892);
- According to the customary laws of warfare as recognized by the United States, the Oct. 25, 1945, Japanese surrender ceremonies in Taiwan marked the beginning of the Allied military occupation. The occupying power is the conqueror, which in the situation of (Japanese) Taiwan at the end of WWII in the Pacific was/is the United States of America. On January 29, 1946, the General Headquarters of the Supreme Allied Command in Tokyo confirmed its control over Taiwan by ordering the Imperial Japanese Government to cease from exerting control or attempting to communicate with officials in Formosa and the Pescadores. Order of Supreme Commander, Allied Powers, entitled: 189.
Memorandum concerning Governmental and Administrative Separation of Certain Outlying Areas from Japan, dated 29 Jan. 1946.3
The term Principal Occupying Power is used consistent with Article 42 of the Annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." Military occupation is conducted under military government. See SFPT Article 4(b). "Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory," See U.S. Army Field Manual FM 27-10, § 362. Military government continues until legally supplanted,4 and Taiwan today remains under military government under the SFPT. Such a reading of the SFPT is consistent with the United States' experience in the handling of other conquered territory.
- The status of the "Republic of China" in Taiwan beginning Oct. 25, 1945, was based upon its position as an Allied Power. When the central government of the "Republic of China" moved to Taipei, Taiwan, in December 1949, it became a government in exile. The Republic of China government occupied Taiwan on behalf of the Allied Powers (led by the United States) pending a peace treaty with Japan, which would change the legal status of Taiwan.
- As late as June 1950, President Truman confirmed that there had been no transfer of Taiwan's territorial sovereignty to China at any time in the 1940s, and the (final) legal status of Taiwan was still undetermined.5 Following the surrender and pending a peace settlement, Taiwan remained de jure Japanese territory.
General Douglas MacArthur stated at a congressional hearing on May 5, 1951, " . . . . Legalistically Formosa is still a part of the Empire of Japan."6
- The highest ranking document of international law and U.S. constitutional law regarding the disposition of Taiwan after the end of hostilities in WWII is the Senate-ratified San Francisco Peace Treaty hereafter SFPT. (3 U.S.T. 3169). Taiwan was sovereign Japanese territory until April 28, 1952.
- Since the SFPT did not award the territorial sovereignty of Taiwan to any country, the United States Military Government was given de jure territorial rights over Taiwan territory. Under the terms of the SFPT, the United States of America is confirmed as the principal occupying power. Taiwan has remained under occupation by the Allied Powers, led by the United States as the Principal Occupying Power. SFPT Article 23(a). The Allied Powers did not include the Republic of China. SFPT Article 23(a). Nor was Republic of China a party to the SFPT.
"Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China." Cheng Fu Sheng v. Rogers, 177 F. Supp. 281, 284 (DC Dist. 1959).
"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." Cheng Fu Sheng v. Rogers, 280 F.2d 663, 665 fn2 (DC Cir. 1960). "Although the United States recognizes the Government of the Republic of China, the provisional capital of which is Taipei, Formosa, it does not consider Formosa as part of China." Chee Hock Chan v. Hurney, 206 F. Supp. 894, 896 (ED PA 1962).
- Acting under his foreign affairs powers, the United States President recognized the "Republic of China" as the sole legitimate government of China up through Dec. 31, 1978. However, no U.S. President has ever recognized the "Republic of China" as the legitimate government of Taiwan.
- According to the historical and legal precedent in dealing with the Mexican-American War cession of (1) California, and the Spanish American War cessions of (2) Puerto Rico, (3) Philippines, (4) Guam, and (5) Cuba, and the writings of military scholars, etc. the following important rule is apparent:
"Military government continues until legally supplanted."
In other words, military government jurisdiction continues until a fully recognized civil government for the territory is established and assumes governmental authority. The end of United States Military Government over the above mentioned five territories was announced by the U.S. President, and has become part of the historical record.
- Article 4(b) of the SFPT 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. The force and application of the terms of this Article are easily comprehended by examining the disposition of the Article 3 territories ("the Ryukyus") by USMG. Final disposition of the territorial sovereignty of this archipelago was completed by agreement between President Nixon and Prime Minister Eisaku Sato, effective May 15, 1972.
- Prior to the SFPT, the legal position of the ROC in exile in Taiwan was that of a belligerent occupier. The Republic of China (ROC) did however in 1952 conclude a separate peace treaty with Japan ending hostilities -- the Treaty of Taipei (1952). However, this treaty only reconfirmed Article 2(b) of the SFPT and did not transfer sovereignty of Taiwan to the ROC.
United States Secretary of State John Foster Dulles told the Senate in December 1954, "[The] technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese peace treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese peace treaty, nor is it determined by the peace treaty which was concluded between the [ROC] and Japan."
Likewise, British Foreign Secretary Anthony Eden told the British House of Commons, "[U]nder the Peace Treaty of April, 1952, Japan formally renounced all right, title and claim to Formosa and the Pescadores; but again this did not operate as a transfer to Chinese sovereignty, whether to the [PRC] or to the [ROC]. Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the de jure sovereignty over which is uncertain or undermined."
Similarly, in 1964, President Georges Pompidou (then premier) stated that "Formosa (Taiwan) was detached from Japan, but it was not attached to anyone" under the SFPT. Thus the leading allies were in consensus that China did not acquire sovereignty over Taiwan or title to its territory pursuant to the SFPT.
- The situation of Cuba after the Spanish American War provides an excellent comparative example for Taiwan after WWII in the Pacific. In fact, the specifications in the relevant treaties are very similar. Spain ceded Cuba to the "United States Military Government." Under USMG, the United States flag flew over Cuba from July 17, 1898, until May 20, 1902. During this period, the allegiance of the local populace was to the United States.
- Recent statements of the U.S. Executive Branch, along with recent U.S. judicial decisions, have confirmed that people on Taiwan have "no uniformly recognized government," and have been "essentially stateless" for nearly sixty years. The status of Taiwan remains as undetermined. The "Republic of China" on Taiwan is not a sovereign independent entity, and neither the Taiwan Relations Act nor the Senate-ratified SFPT recognizes the "Republic of China."
The SFPT does not declare which government exercises sovereignty over Taiwan. It does generally identify the United States as "the principal occupying Power," but does not indicate over what. Id. [SFPT] at art. 23(a)." See Roger C. S. Lin et al v. United States of America, 561 F.3d 502, 504 (DC Cir. 2009). See Declarations of Chen Shui-bian infra for important clarification of the status of Taiwan and the SFPT.
- In a July 2007 Report, the Congressional Research Service confirmed that the United States has never recognized the sovereignty of the People's Republic of China over Taiwan.7 On Aug. 30, 2007, Mr. Dennis Wilder, National Security Council Senior Director for Asian Affairs stated that: "Taiwan, or the Republic of China, is not at this point a state in the international community. The position of the United States government is that the ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as you know, for many, many years." It should be recognized that the Petitioners' assertion that Taiwan is still occupied territory of the United States of America does not contradict this long-standing U.S. policy position. This is explained by noting that with the end of USMG jurisdiction in California, Puerto Rico, Philippines, Guam, Cuba, and the Ryukyus, each has reached a "final status" to become either (a) a sovereign nation, or (b) part of another sovereign nation.
Significantly, each area has its own fully functioning "civil government." Taiwan is clearly the exception, and remains in a condition of "undetermined status" as an occupied Japanese territory after peace treaty under the Law of Nations.
- The existence of the government in exile Republic of China regime on Taiwan is blocking the Taiwanese people's enjoyment of fundamental rights including the right to travel in many parts of the world. The Republic of China in exile passport is not recognized as a valid travel document or treated with suspicion in several jurisdictions. The forced use of the Republic of China passport by native Taiwanese persons ("people of Taiwan") is a violation of their human dignity and also leads to much confusion in the world community regarding the true legal status of Taiwan territory.
- In Reid v. Covert, 351 U.S. 487 (1956), Justice Black in a plurality opinion of the U.S. 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." Such a ruling must also apply to the U.S. occupied territory of Taiwan (in its current period of post peace-treaty).8
- California, Puerto Rico, Philippines, and Guam, were ceded to the United States, and hence the organic law for the formation of their civil government(s) must be promulgated by the U.S. Congress. Cuba was not ceded to the United States, and therefore, after the coming into force of the peace treaty, although beginning to form its own civil government, did remain under USMG jurisdiction until finalization of political status. Hence, the situation of Cuba after the Spanish American War provides a good comparison for Taiwan.9
Afterword: Please note that the Taiwan Civil Government's request that the U.S. military authorities issue (or authorize the issuance of) "Certificates of Identity" to native Taiwanese persons should not be equated with applications for any of the following: asylum, refugee status, U.S. green card(s), or permission to enter the United States (fifty states or any insular areas) on immigrant or non-immigrant visas. Further, the officials and supporters of the TCG are not tax protesters, not seeking benefits of any sort including unemployment benefits, retirement benefits, or any other financial aid, assistance, grants, etc. from the U.S. federal government, or any U.S. state government, or extraordinary treatment by the United States or any other country, territory, international organization, or state.
TCG does not dispute the official position of the United States Dept. of State, as given in the Taiwan entry of the official publication Treaties in Force that "The United States does not recognize the Republic of China as a state or a government." Nor does TCG dispute any provisions of the 1952 San Francisco Peace Treaty (SFPT) or the 1979 Taiwan Relations Act (TRA). TCG fully accepts the U.S. Executive Branch position which does not currently recognize any state as actively exercising sovereignty over Taiwan.10
In light of the above, the officials of the Taiwan Civil Government hereby call upon the U.S. military authorities headed by the U.S. President as the Commander in Chief to adhere to the Law of Nations, the U.S. Constitution, the Treaty of Peace with Japan, the laws and usages of war, the law of agency, and relevant U.S. court decisions to issue the "Certificates of Identity (COIs)" as "Travel Documents" to the people of Taiwan; i.e., native Taiwanese persons.
Such "Travel Documents" should be similar to the COIs issued by United States Civil Administration of the Ryukyu Islands to the native inhabitants of the Ryukyus from the late 1940s to the early 1970s.
Excerpted from Taiwan Civil Government legal documents finalized on
March 12, 2012