This topic is continued from viewtopic.php?f=89&t=56438&start=280

Dr. Roger Lin's legal action against the United States of America is now in the U.S. Court of Appeals. Two lengthy Briefs were filed in 2008, according to the schedule stipulated by the court. Those filings were on on Nov. 3 and Dec. 17.

Previous discussion on forumosa.com spent much time debating whether or not this suit is justiciable, in particular with regard to the "political question doctrine."

However, as the two Briefs filed in 2008 make abundantly clear, this lawsuit does not present a nonjusticiable political question, or judicial intervention into political matters, even though some persons may feel that it has significant political overtones.

This lawsuit merely seeks declarations which require the examination of Appellants' "status resulting from prior action." Relevant excerpts from these two Briefs are available at http://www.taiwanbasic.com/insular/lin.htm

Oral Arguments are now scheduled for Feb. 5, 2009 in Washington D.C., and will focus on the central question at issue in this appeal: whether the political question doctrine bars the District Court from determining Appellant's legal rights under United States statutes and the Constitution as a result of the undisputable fact that under Article 23(a) of the San Francisco Peace Treaty (SFPT) of April 28, 1952, the United States is "the principal occupying Power" of Taiwan, over which Japan renounced "all right, title and claim" in Article 2(b).

The United States' status as "principal occupying Power" over Taiwan has resulted from the United States defeat of Japan in World War II, including the United States' conquest of Taiwan, and subsequent United States military government jurisdiction over Taiwan, which is further authenticated by SFPT Article 4(b) confirming the validity of United States Military Government directives pertaining to Taiwan.

Note: The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." For a territorial cession in a peace treaty after war, the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted by a recognized civil government for the area. See -- http://www.taiwanadvice.com/milgovdchart.htm

A Summary of the fundamental legal rationale for the court case, and the Relief Requested, is given here -- http://www.taiwanbasic.com/civil/tcourt.htm

Additional background information on the case, informative links, and downloads of the complete versions of the two Briefs are available at -- http://www.civil-taiwan.org/usca.htm

Relevant observations, suggestions, or comments from the forumosa.com community are welcome.

The following commentary provides some valuable background information on the "rationale" for the court case.

Commentary on the One China Policy
http://www.taiwanbasic.com/onechina/eitem1.htm

This is a fascinating case. It is, in my very humble point of view, a very unusual position to take.

I do have a few questions about this. First, consider this scenario:

When the Republic of China was formally given power by the Qing Dynasty as the successor to the Emperor, they considered the Treaty of Shimonoseki to be invalid as one of the "Unequal Treaties" and refused to formally recognize that it had ever been valid.

This was confirmed in the Treaty of Taipei between Japan and the ROC, which in Article 4 states that all treaties before 1941 are considered null and void, effectively stating that the soverignty of Taiwan was considered has never being transfered to Japan. The Treaty of San Francisco, Chapter II, Article 2, section (b) also confirms this nullification between Japan and the other signatories of the SFPT.

To the best of my knowledge, such a retroactive invalidation of a treaty is unprecedented. However, if this process is considered valid and having legal force, then it means that Taiwan was always part of the territory that the ROC has soverignty over. Therefore, no constitutional referendum or amendment was required in order to add Taiwan as a new territory because it was always part of the ROC.

Futhermore, the raising of the ROC flag in Taiwan in 1945 signifies that the US forces in Taiwan who resisted the Japanese forces were doing so on behalf of the ROC, and that the authority of the USMG to do so came from the ROC. This is lent further credence by the later treaties (Treaty of Taipei and SFPT) which invalidate the Treaty of Shimonoseki and validate the ROC's position (and later the PRC's) that the ROC always had soverignty over Taiwan, as it means that the ROC was in a position to authorize the USMG to resist Japanese occupation on its behalf.

However, even if the Treaty was never invalidated and the ROC never had soverignty, it does not follow that the USMG could not have been fighting on behalf of the ROC. In other words, even if the treaty of Shimonoseki counts, the US military may still have been serving as surrogate ROC forces.

In conclusion, the Treaty of Shimonoseki was rejected by the Republic of China as an unequal treaty. The ROC considered itself the soverign government of Taiwan since its inception, and Taiwan as being a ROC territory since that time (and as a Qing dynasty China owned territory from before that time). This was confirmed by Japan in the San Franciso Peace Treaty and the Treaty of Taipei, as well as by the other dominant international powers of that time (namely the United States of America) by the SFPT. The USMG, on behalf of the ROC, fought to remove the illegitimate occupying power of the Japan Empire from Taiwan and did so successfully, bringing it under ROC administration in 1945 (but the territory was always under ROC soverignty). Thus, at least until 1949, the ROC was the rightful government of Taiwan. (Any post 1949 issues are contended only by the status of the PRC being the successor government of the ROC.)

My questions are thusly:

1) Why is the Treaty of Taipei invalid? Governments-in-exile are able to make treaties.

2) Can the Treaty of Shimonoseki be considered retroactively invalidated?

2a) If so, then how did soverignty transfer from the ROC to the USMG?

2b) If not, why not? What does this make of the ROC's position on Taiwan, or the PRC's, when neither government was directly responsible for the Treaty (having been signed by the Qing Dynasty prior to falling) ?

3) What makes one believe that the ROC occupied Taiwan on behalf of the USMG in 1945, instead of the reverse?

4) Unrelated to the above scenario, but only in regards to US domestic law - what makes you think that the residents of Taiwan are US citizens?

At best, unincorporated US territory allows for gaining US nationality, but this does not imply citizen. Example: Residents of American Samoa are generally considered US nationals and eligible for US passports, but are not US citizens and must naturalize in the US after residing in the one of the 50 States or the Federal District of Columbia for 5 years in order to be able to gain the ability to vote for the President of America.

In order for all residents to automatically be citizens, as is the case in Guam or Puerto Rico, an act of Congress is required. No such act exists for American Samoa - or Taiwan.

After researching your position further, I realize you may be claiming rights for Taiwan residents on the basis of being U.S. nationals and not U.S. citizens. This answers my question (4) above, but it raises another one:

From Section 101(A)(29) (www.theodora.com/ina_96_title_1.html):



And from Section 308(1) (www.theodora.com/ina_96_title_3.html):



So Taiwan is explictly not defined as being an outlying possession of the United States, and the U.S. national and not U.S. citizen status is explicitly defined in one's relation to a territory that is defined as an outlying possession.

Furthermore, the rights of U.S. national noncitizens (as opposed to some of rights that apply only to U.S. citizens or those that apply to everyone, including aliens) are only defined in the U.S.C. U.S. national noncitizens have no rights that are directly afforded to them (and them alone, or them and U.S. citizens alone) through the U.S. Consititution.

From this I conclude that even if Taiwan is a US territory or a USMG-occupied territory, it does not follow that the residents therein are necessarily U.S. citizens OR U.S. national noncitizens. And of course, only US citizens or US national noncitzens have a right to a US passport.

My question is thusly:

5a) If the residents of Taiwan are not U.S. nationals at all, how can they qualify for any sort of rights from the US, such as being guarranteed a U.S. passport? What is the basis for this?

5b) If the residents of Taiwan are in fact U.S. nationals, how do you come to this conclusion?

Q1) Why is the Treaty of Taipei invalid? Governments-in-exile are able to make treaties.
A1) Dr. Lin does not hold that the Treaty of Taipei is invalid. The Treaty of Taipei is a subsidiary treaty under Article 26 of the San Francisco Peace Treaty (SFPT), with the specific limitation that its terms and conditions cannot exceed those of the SFPT.

The SFPT (which entered into force April 28, 1952) did not award the sovereignty of Taiwan to "China." This is specifically stated in Article 2(b) and confirmed in Article 21.

Hence, there is no way to interpret the Treaty of Taipei (which entered into force Aug. 5, 1952) to say that it awarded the sovereignty of Taiwan to China.

Q2) Can the Treaty of Shimonoseki be considered retroactively invalidated?
A2) If you want to make an argument in this area, you are going to have to show that the international community accepts such a premise -- in other words you are going to have to show (historically, in the last two hundred years or so) that there have been other treaties which have be retroactively cancelled based on some various "criteria." Failing that, and without a relevant ruling from some international tribunal, no one is going to take such an argument seriously.

When a treaty is invalidated, what does that mean? In fact, the invalidation of a treaty ONLY involves "active clauses." If the invalidation of a treaty actually did involve each and every clause in the treaty, then in the case of the Treaty of Shimonoseki, the stipulation of Article 4 involving the war indemnity of 200,000,000 Kuping taels would have to be paid back to China. However, from the 1940s to the present, no such payment has ever been demanded, for the simple reason that this has always been considered a "completed clause," no longer active, hence the cancellation or invalidation of the treaty can have no effect on this clause. In a similar manner, the cession of Taiwan to Japan was completed in 1895, after which time Article 2 was no longer an "active clause" of the treaty, and therefore not subject to any retroactive change or "restoration."

Moreover, Article XIX of the Limitation of Armament Treaty Between the United States of America, the British Empire, France, Italy, and Japan, (signed at Washington, Feb. 6, 1922) affirmatively identified Formosa and the Pescadores as part of Japanese territory.

Moreover, original drafts of the ROC constitution, completed in the 1920s and 1930s had complete listings of all Chinese provinces included in the "national territory," and Taiwan was not included.

Moreover, reporter Edgar Snow, in his interview with Chairman Mao Tse-dong on July 16, 1936, quoted the Chairman as advocating that "Taiwan should be independent out of the Japanese colonial rule." Hence, Chairman Mao clearly recognized that Taiwan was not a part of Chinese territory.

Q2a) If so, then how did soverignty transfer from the ROC to the USMG?
A2a) The ROC has never held the sovereignty of Taiwan. For a more detailed analysis of the sovereignty issue see -- http://www.taiwanbasic.com/civil/tmodhiae.htm

Q2b) If not, why not? What does this make of the ROC's position on Taiwan, or the PRC's, when neither government was directly responsible for the Treaty (having been signed by the Qing Dynasty prior to falling) ?
A2b) The historical development of the legal status of the ROC on Taiwan is given here -- http://www.taiwanbasic.com/civil/histdev.htm

Q3) What makes one believe that the ROC occupied Taiwan on behalf of the USMG in 1945, instead of the reverse?
A3) This comes back to a question of: Who is the occupying power? The occupying power is the "conqueror." All military attacks against Taiwan in the WWII period were conducted by US military forces. The ROC did not participate. (Nor was Taiwan inside the "China Theatre.") As clarified in the San Francisco Peace Treaty, the United States is the "principal occupying Power," and United States Military Government jurisdiction over Taiwan is active.

Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.

Dr. Lin's case concerns itself with the correct nationality determination for native Taiwanese people after the coming into force of the SFPT on April 28, 1952. There is no way under international law, or under US constitutional law, that native Taiwanese people can be correctly classified as "ROC citizens," "ROC nationals," or anything similar. This incorrect nationality classification is the source of the great majority of problems which the native Taiwanese people are facing in the present era.

Q4) Unrelated to the above scenario, but only in regards to US domestic law - what makes you think that the residents of Taiwan are US citizens?
A4) No, Dr. Lin's case argues that they are US nationals. Importantly, US courts have not interpreted the INA clause defining "outlying possessions of the United States" equals American Samoa and Swain's Island as being all-inclusive. The Dept. of State Foreign Affairs Manuals also make this clear. For details on how to arrive at a determination of "US nationality" for native Taiwanese people, see -- http://www.taiwankey.net/dc/applyp6.htm

Ok, I think I understand your position better.



Article 2(b) simply states that Japan renounces claim over Taiwan. Article 21 states that China is entitled to the benefits of Article 10 (which is a renouncement and abrogation of a bunch of other claims that it had in China from 1901) and Article 14(a)2 simply states that the Allied Powers had the right to take property, rights, and interests either owned by Japan or controlled by Japan.

Taiwan wasn't part of the claims from China in 1901 (the Treaty of Shimonoseki being signed several decades earlier), so Article 10 is not relevant here. If Taiwan was part of such claims, Article 10 simply restates Article 2(b) - that Japan renounces the claim over Taiwan.

Article 14(a)2 confirms the ability (and the fact of) the USMG assisting the ROC in taking control of Taiwan from Japan and giving it back to Taiwan. And Article 21 confirms China's entitlement to benefit from that fact.



Based on Article 14(a)2 and Article 10 of the SFPT, one can draw the conclusion that the SFPT allows for the transfer of sovereignty of Taiwan to be taken from Japan by the USMG and handed over to China. However, since the Treaty of Taipei stated that all previous treaties (such as the Treaty of Shimonoseki) were considered null and void, it is not necessary to state that the sovereignty of Taiwan was explicitly transfered to the ROC - or even to China - as Japan revokes its own claim of sovereignty.

Article 26 further complicates this matter as it implies, that if the Treaty of Taipei was subordinate to the SFPT, then it is not possible for Japan to explicitly grant sovereignty to China on its own. If it were to attempt to so do, Article 26 would hold Japan to give soverignty over to the Allied Powers as well. Therefore, Japan would have had to explicitly handed over the soverignty to an Allied Power who in turn would have given it back to China in a separate treaty.

However, since Japan renounced all claims as null and void, including the claim of having soverignty over Taiwan, this issue does not arise (as the revocation of a claim is not a grant).



This is the key issue here. As far as I know, this would have been unprecedented (although your comments below - stating the definition of the invalidation of a treaty - suggest that you have knowledge of it being otherwise). Since I personally do not know of any treaties in the last 200 years being similar invalidated, and I do not know of any international tribunals ruling on this specific matter, I can not meet your requirement of evidence as stated.

However, I do not think the matter can rest there. There is a third possibility to provide evidence of the Treaty of Shimonoseki being considered retroactively invalidated - the behavior of the Allied Powers (namely the USMG and the US's executive branch), Japan, and China (be it the PRC or the ROC) at this time and later.

The US has made it clear that it has never claimed soverignty over Taiwan (as explicitly stated in a letter posted in the original thread that this was split off of). Japan has explicitly renounced soverignty in the SPFT and the Treaty of Taipei. While it is true that both the PRC and the ROC contest soverignty over Taiwan, the current Taiwan doctrine of special non-state to non-state relations ( http://en.wikipedia.org/wiki/Special_no ... _relations ) makes it clear that there is only a single soverign state (or nation-state if you prefer) and that they are both part of that state.

This means that the PRC and the ROC position is the same, in the sense that they currently agree that China is soverign over Taiwan.

The US does not claim to hold soverignty over Taiwan. Japan does not claim to hold soverignty over Taiwan. China does claim to hold soverignty over Taiwan.

Furthermore, in that letter, the US made it clear that they have never recognized the PRC's claim of soverignty over Taiwan. Neither do they recognize that Taiwan is an independent soverign country. In light of the Special non-state to non-state relations between the PRC and the ROC, the simplest interpretation of this is that the US recognizes the claim of China over Taiwan but does not recognize that PRC is explictly the voice (or at least the sole voice) of this China.



The claim of soverignty is an active claim. Japan must have continously stated that it had soverignty of Taiwan in international affairs to be recogized as such. It did so until the end of WWII, when it was required by treaty (SPFT and Treaty of Taipei) to stop actively claiming this and consider that claim null and void.

As a side note:

From http://asmrb.pbwiki.com/TooB+Currency+1900 :


The ratio of $20.67 USD to 27.8 Kuping tael shows that one Kuping tael was equal to approximately $0.75 USD.

So in 1900, those 200,000,000 Kuping tael were worth $150,000,000.00

I was not able to determine how much a Kuping tael is worth today. However, assuming the use of USD as a measure of worth over time is valid, it would be worth $3,820,798,525.80 today and $258,538,083.54 in 1940.



If (and only if) the Treaty of Shimonoseki was considered invalidated - then the SFPT superceeds the Japanese claim in Article XIX.



What counts is not a draft, but the first final completed version of the ROC constitution at the time it was adopted and given the full force of law.

In international law, this is overriden by the SPFT and the Treaty of Taipei. Whether or not the ROC's consititution and actual practice of governing are consistent is a matter that is internal to the ROC and doesn't affect international recogniztion of the ROC's, or China's, soverignty over Taiwan; or lack thereof.



Chairman Mao did not speak for the ROC.

Even if he did, this statement only signifies that Taiwan was controlled by Japan and that Chairman Mao thought Taiwan should be removed from Japanese control. It is not necessarily a recognition of Japense soverignty over Taiwan per se.

In any case, that statement by itself can not be seen as having force of law either domestically or in international law. It's simply a comment made by a political leader that can be withdrawn later, or simply ignored by later policies - which (assuming your interpretation is correct) is clearly the case, as the PRC later claimed to have soverignty over Taiwan over the ROC's claim.



Conceeded - the ROC never had soverignty transfered to the USMG. Either one held it or the other did. As to why the USMG never held soverignty, I refer to my comments from the above sections.



Conceeded, with the same caveat as above.



The USMG conducted the actual military attacks, but it was the ROC flag that was raised. And it was the ROC that occupied Taiwan after Japan had been forced out. Thus, the USMG acted on the ROC's behalf (as it was allowed to do, as later confirmed by SFPT Article 21) and the ROC was the actual occupying power.



US constitutional law only provides for classification as US citizens or aliens. The U.S.C. also provides for status as US national non citizens. Stating that provisions for ROC citizen status or ROC national status are absent from the US constitution is quite like stating that the constitution of New Zealand has no provision for specifying US citizenship status.

As for international law, if the ROC was, prior to the takeover by the PRC, the government of China - and at this time, the ROC either held soverignty over Taiwan or occupied it - then international law agrees that the ROC can do this.

In any case, international law states that citizenship is left to the matters of a soverign state to define. And in addition, that other states do not have the right to interfere with such classification. If China is a soverign state, and China allows the ROC to define its own citizenship laws, then international law does not all for a nullification of this.



That clause is self-evident as being all-inclusive. Importantly, the status of the US Trust Territory of the Pacific Islands is important here - now independent, they were never considered as US nationals but only as citizens of the Trust Territory. If the Trust Territory - once acknowledged as being under US administration - did not confer US national status, how can Taiwan - which is further away as it is not even acknowledged by the US and is under de-facto ROC administration - confer US national status?

The web page you cite states that Taiwan residents have rights under the US constitution, but also that Taiwan is under US military occupation. US citizens who are inducted into the US military are not under the US constitution while on active duty, so it is not clear to me why a US militarily occupied territory would fall under the US constitution. Also, the web page erroroneously states that the right to hold a passport is in the US constitution. This right is actually part of the U.S.C and is amendable by an act of Congress.

And here is the link to the post for the letter (first post by Ga-ma):

http://formosa.com/taiwan/viewtopic.php ... ff1bca8de2

On a side note, I am wondering if you know of any documents where it is explicitly stated that the soverignty of Taiwan has been transfered to, or belongs to, the US or the USMG. Or if you know of any documents where the ROC/PRC explicitly acknowledges Japanese soverignty (and not just occupation/control/administration) over Taiwan. Or if you know of any documents Post WWII from any of the Allied Powers which states that Japan once had soverignty over Taiwan.

Preferably, such documents would have "United States"/"Allied Powers"/"Supreme Commander of the Allied Powers", "Japan", "Taiwan"/"Formosa"/"Taipei", and "soverignty" all within the same paragraph (at least).



In any case, the Cairo Declaration and the Potsdam Declaration make it clear that the original intent was to give control of Taiwan back to China. Importantly, these Declarations do not mention Japanese soverignty over Taiwan - only that Japan occupied Taiwan.

While these may not have force of law, since they are issued after 1922 they are a clear refutation from the Allied Powers of Japan having gained soverignty over Taiwan.



Additionally, Supreme Commander of the Allied Powers General Order no. 1 states that Japan forces in Taiwan must surrender to Chiang Kai-shek. This makes it explicit that it was the ROC, and not the USMG, who had been granted authority over Taiwan. The power of the SCAP to issue this order is confirmed by Article 2(b) of the SFPT.

Furthermore, Article 22 of the SFPT states that if there is a dispute related to the treaty that can not be settled by other means, the International Court of Justice must handle it. If the US were to claim that Taiwan was its territory, and the ROC disputed this, the ICJ and not the US Court of Appeals (or even the US Supreme Court) would thus be the place where the dispute would be settled.

In fact, as the US does not make such a claim (based on the letter linked to above), and the ROC does, so there is no dispute between them to settle. If the US ever did have such a claim, it allowed the ROC's claim to supercede it by refusing to adjucate the claim in the ICJ. (Although this would be complicated by the fact that the ROC would first have to ratify the SFPT and then deposite the general declaration to the Registrar of the Court.)



Additionally, even if a US court ruled that Taiwan counted as an outlying possession, it is still possible for Congress to pass an Act amending the law stating that Taiwan is not an outlying possession and that Taiwan residents are not US nationals. Furthermore, the Act can state that this is retroactive, effectively reversing the court's ruling and preventing Taiwan from ever having been considered an outlying possession of the US.

If the US court does rule as such, and Congress then passes an Act as such, what will your response, or next step, be?

Lots of Ifs. The US occupied Japan who unconditionally surrendered. But the US gave Japan back to its people and laid no claim to it. IT gave back Okinawa. It has never been seen to desire ownership of Taiwan.

The US prefers its position on Taiwan to be ambiguous and prefers this ambiguity as an advantage in light of current affairs.

So far the US has only stated that TAiwan is not an independent country. And that Taiwan's fate should be determined by its residents.

I think the US position is pretty clear, in spite of the smoke screen.

1. The US recognizes that the current government of Taiwan is in control of the island.
2. The US recognizes that China lays claim to the island. But it doesnt refute it or promote it.
3. The US recognizes that the citizens of Taiwan are not in favor of being administered by the PRC.
4. The US holds the position that each side should not provoke the other side and that the only solution should be an amicable one. Amicable to both sides.
5. The US holds its own cards on the matter close to its chest and wishes not to define further its present or future position.

Well thats tommys take on the situation Not ratified by any treaties that were henceforth unratified or made null and void in any way , shape, word or form in shimonoseki, san francisco or taipei or anywhere else. Based upon no known fact or factless fact or an appearance of fact.

I think that you are trying to say that the US could have had some "secret agreement" to return Taiwan to the ROC. However, an examination of the historical and legal record fails to reveal any such agreement, "secret" or otherwise.

Dept. of State (DOS) documentation from the early 1950s is very clear in stating that the SFPT did not result in Taiwan being returned to China. President Eisenhower also confirmed this --

Office/Agency: Written Works of Dwight D. Eisenhower
subject: comments on the Japanese Peace Treaty
date: 1963
quote: The Japanese peace treaty of 1951 ended Japanese sovereignty over the islands but did not formally cede them to "China," either Communist or Nationalist.
(source: Mandate for Change 1953-1956, by Dwight D. Eisenhower, published in 1963 by Doubleday & Co., New York, page 461.)

Your elaborate explanations of the treaties are interesting, but such explanations remain largely theoretical. Dr. Lin's legal team has the DOS documentation and other references (from legal journals, etc.) to conclusively back up their interpretations. They have thousands of pages of data from the National Archives and Records Administration and other sources.

If you want further information, and more detailed legal rationale regarding the various points you have raised, please read the court documents from Nov. 3rd and Dec. 17th, 2008, which are lengthy and detailed. http://www.civil-taiwan.org/usca.htm

I don't follow your logic.

The treaty confirms that the United States was the occupying power. As I stated before, the "conqueror" is the occupying power. The ROC is merely acting as agent for the United States in the military occupation of Taiwan.

Neither the Hague nor the Geneva Conventions accord any special status to "the troops that accept the surrender."

Well, if you have friends in the ROC government, perhaps you can ask them to initiate such a suit. Dr. Lin has already chosen to work through the US federal judiciary.

We regard Taiwan as something very similiar to an illegitimate child. When the "father" doesn't admit to the existence of this child, you go to court. That is what we are doing. A Senate-ratified treaty is the supreme law of the land.

I cannot understand why you are arguing on this point. As stated above, US courts have not interpreted the INA clause defining "outlying possessions of the United States" equals American Samoa and Swain's Island as being all-inclusive. The Dept. of State Foreign Affairs Manuals also make this clear.

The US Supreme Court has ruled that the right to travel, and the right to hold a passport, is part of the "liberty" of the Fifth Amendment.


Dr. Lin is only arguing that native Taiwanese residents are US nationals, he is not asking the court to make any decision regarding whether or not Taiwan is an outlying possession of the USA. Dr. Lin is sticking very close to the "civil rights" aspects of this entire problem.