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Open Letter to Congressman Richard Pombo Chairman, Committee on Resources, House of Representatives Dear Mr. Chairman, At the present time, the United States has many types of overseas territories which are collectively referred to as "the insular areas." All of these areas now have civil governments which handle their affairs, and this is a fact which is so commonly recognized as to scarcely need mention. Indeed, when people refer to US insular areas in the present era, they are referring to areas under "civil government," established by some organic act. However, what many members of the Congress have apparently forgotten is that in the earliest recognition of this concept, all US insular areas were under United States Military Government. We need this recognition before we can discuss the true relationship between Taiwan and the United States. BACKGROUND In US Supreme Court case of Fleming v. Page (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.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 (1901) introduced the concept of "unincorporated territory" into the United States legal lexicon. 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." 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. (The issue of whether there is a "recipient" for the territorial cession in the peace treaty is a separate consideration.) Hence, the earliest recognition of US insular areas included four: Puerto Rico, the Philippines, Guam, and Cuba -- all of which were under United States Military Government. According to the historical record, civil government authorized 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. Cuba became independent on May 20, 1902, but the other three territories continued as US unincorporated territories, each with a civil government in place as of the date indicated. Later the Philippines became independent on July 4, 1946. CONCLUSION: Under US law, the earliest formulation of a "US insular area" as recognized by the US Supreme Court is the category of "unincorporated territory under USMG." THE "REPUBLIC OF CHINA" ON TAIWAN That the Republic of China on Taiwan is a "government-in-exile" has been noted by many researchers. However, based on the above analysis, it is also important to see that the territory of "Formosa and the Pescadores" qualifies as an insular area of the United States. As stated above, beginning in 1898, the three fundamental criteria for the recognition of a 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. Formosa and the Pescadores had been ceded to Japan in the 1895 Treaty of Shimonoseki. Under international law, there is no doubt that Japan had possession of the sovereignty of these areas after 1895. The US Congress declared war against Japan on December 8, 1941. During the course of the Pacific war, all military attacks against Japanese Formosa and the Pescadores, and indeed against the four main Japanese islands, were conducted by United States military forces. (The historical record shows that bombing raids against targets in Taiwan began in earnest on October 12, 1944.) At no time did the Republic of China military forces participate in these attacks. During the course of the Pacific War, in relation to Taiwan, the United States is the "conqueror," hence (in this post-Napoleonic era) the United States is "the occupying power." This can be re-confirmed as follows: On September 2, 1945, General Douglas MacArthur issued General Order No. 1, which described procedures for the surrender ceremonies and military occupation of over twenty areas. After a thorough reading of General Order No. 1, we need to ask one important question: "Who is the occupying power?" The only possible answer is: "It is the United States." (This fact is also fully confirmed by Article 23 of the post-war San Francisco Peace Treaty, where the terminology of "the principal occupying power" is used.) Important legal relationships for the disposition of Taiwan do indeed arise from all these facts. LOGICAL FALLACIES But, as many people know, it was Chiang Kai-shek, leader of the Republic of China (ROC) military forces, who was directed by General Douglas MacArthur to go to Taiwan and accept the surrender of Japanese troops. These surrender ceremonies were held on October 25, 1945. Most historical commentators have assumed that the holding of the surrender ceremonies had enormous significance in determining the legal rights of the ROC over Taiwan. Unfortunately, these researchers have been lead astray by the logic that "the Allies won the war, and the ROC was one of the Allies" or "the ROC military forces accepted the Japanese surrender on behalf of the Allies," or "the Japanese surrendered to the ROC military forces," etc. In fact, the customary laws of warfare (as codified in the Hague and Geneva Conventions) do not place particular stress on "which troops were victorious in the war¡¨, "which troops surrendered to whom¡¨, or "what country has proclaimed their intention to annex what particular territory." The key issue in determining legal relationships is a determination of "Who is the occupying power." In the post-Napoleonic era, that goes back to a determination of "Who is the conqueror." Those acting on behalf of the occupying power (such as the ROC) are simply fulfilling the role of "agent." If we are fully aware of the above facts, sorting out the international legal situation of Taiwan in the post-WWII era is a straightforward proposition. Indeed, we have done so above. As of April 28, 1952, with the coming into force of the Senate-ratified San Francisco Peace Treaty, Taiwan is "unincorporated territory under USMG" - an insular area of the United States. THE TRUMAN STATEMENT On June 27, 1950, President Truman said: "The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations." When the post war peace treaty with Japan came into effect, did it solve the problem of the Taiwan status? Although Japan renounced the sovereignty of Taiwan, but no recipient country was named. Many people would claim that the Taiwan status was still undetermined. Indeed this is true, but we must note the following. ( A ) The beginning of belligerent occupation and beginning of USMG in Taiwan were on October 25, 1945.The Hague Conventions of 1907 specify that "territory is considered occupied when it is actually placed under the authority of the hostile army." The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." Military occupation is a transitional period, or a period of "interim (political) status." On June 27, 1950, Taiwan was under belligerent occupation. President Truman's statement was true at that time. What about today? In fact, up to 2006 there has been (1) no end of the United States Military Government in Taiwan announced by the US government, and (2) no other US authorized civil government operations which have taken effect to supplant USMG in Taiwan. Hence, we can reach only one conclusion. Taiwan has not yet reached a "final political status," even in the present era. Based on the provisions of the Senate-ratified San Francisco Peace Treaty, the US Constitution, the Taiwan Relations Act, and the insular cases of the US Supreme Court -- Taiwan remains under the administrative authority of the United States Military Government. Taiwan is not an independent sovereign nation. A full clarification of the status quo is not a unilateral change of the status quo. CURIOUS EVENTS Over the past forty or fifty years, Taiwan's status in the international community has always puzzled researchers. Among the curious events which have occurred are the following: (1) In 1945, Chiang Kai-shek's ROC military forces were directed to accept the surrender of Japanese troops in Taiwan by General Douglas MacArthur. However, after the surrender date of October 25, many world nations still maintained that "Taiwan has not yet been returned to China." The Chinese had different opinions of course. (2) Even up to 1950, the ROC was recognized by the world community as "the legal government of China." Yet, it was not even invited to the post-war peace treaty ceremonies. In the peace treaty, Japan renounced the sovereignty of Taiwan without designating any other country as "recipient." (3) In 1971, the ROC was expelled from the United Nations even though it enjoyed wide diplomatic support at the time. (4) In 1972, the United States adopted a "One China Policy" which recognized the Peoples Republic of China as the sole legitimate government of China. The existence of the ROC on Taiwan was seemingly completely ignored. (5) In December 1978, President Carter announced the decision to break relations with the ROC on Taiwan. This decision was met with surprise in many quarters. (6) After the break in diplomatic relations with the ROC on Taiwan, the United States Congress immediately passed a Taiwan Relations Act to preserve and promote extensive, close, and friendly commercial, cultural, and other relations between the people of the United States and the people on Taiwan. The drafting of this legal document is unique in the history of the United States. (7) Since the early 1970's, US government policy toward Taiwan has been characterized as "strategic ambiguity," and the status of Taiwan has been held to be "undetermined." (8) Even in the eyes of some well-known legal scholars, Taiwan appears to fully meet the conditions for "statehood" in Article 1 of the Montevideo Convention of 1934. Yet as of September 2005, Taiwan has been denied admission to the United Nations for thirteen years in a row. (9) Taiwan was admitted to the World Trade Organization as a separate customs territory, and not as a sovereign nation. However, Taiwan has repeatedly been denied admission to the World Health Organization. (10) In June 1998, President Clinton said that "we don't support independence for Taiwan; or two Chinas; or one Taiwan, one China. And we don't believe that Taiwan should be a member in any organization for which statehood is a requirement." Importantly, a thorough understanding of the analysis presented previously in this letter shows that these "curious events" are easily explained. As confirmed by the Truman Statement and the San Francisco Peace Treaty, the United States government has never recognized the forcible incorporation of Taiwan into China. FUNDAMENTAL CONSTITUTIONAL RIGHTS In the Insular Cases (beginning 1901) the US Supreme Court held that even without any actions by the US Congress, "fundamental rights" under the US Constitution apply in all unincorporated territories. Among other protections, the guarantees of life, liberty, property, and due process of law under the Fifth Amendment are considered "fundamental rights." Hence, we must ask a question of the US Congress: By allowing the "Republic of China" to continue fulfilling the role of a subordinate occupying power and a government in exile, and not recognizing Taiwan as an insular area of the United States, have the Taiwanese people been denied their fundamental US constitutional rights? This is certainly a topic worthy of further investigation. In 1997, the Chairman of the Committee on Resources asked the General Counsel of the US General Accounting Office to prepare a report on the Application of the US Constitution to the US Insular Areas. The final report was 75 pages. Should a similar report be prepared regarding the status of Taiwan, in order to clarify what rights the Taiwanese people are entitled to under the US Constitution? On behalf of the Taiwanese people, we request your urgent attention to this matter. Sincerely, Dr. Roger C.S. Lin & Richard W. Hartzell Taipei, Taiwan February 28, 2006 website: http://www.taiwanadvice.com/ |