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Taiwan and Occupied West Berlin An
overview of the Polish aircraft hijacking case which was tried by the US Court
for Berlin is helpful in understanding the nature of United States’
administrative authority in overseas territories.
In fact, the precise relationship between Taiwan and the USA, as well as
the correct determination of Taiwan's position in the international
community, may be
directly derived from this ruling. US
v. Tiede
Summary
United States Court for Berlin, March
14, 1979 Introduction:
*
Herbert J. Stern, United States Judge for the District of New Jersey, sitting as
United States Judge for Berlin by appointment of the United States Ambassador to
the Federal Republic of Germany. This is a criminal proceeding arising out of the alleged diversion of a Polish aircraft by the defendants from its scheduled landing in East Berlin to a forced landing in West Berlin. United States authorities exercised jurisdiction over this matter and convened this Court. The special nature of this Court and the unusual position taken by the United States Attorney for Berlin require an extensive account and analysis of the history of the occupation of Berlin, the jurisdictional basis of this Court, and the limitations, if any, on the Secretary of State and the American authorities who govern the 1.2 million people who reside in the American sector of Berlin. The Court holds that the United States Constitution applies to these proceedings and that defendants charged with criminal offenses before the United States Court for Berlin have constitutional rights, including the right to a trial by jury.
Organization
of the decision:
I. FACTUAL BACKGROUND
II. HISTORICAL BACKGROUND A.
Overview of the Allied Occupation of Germany since World War II. 1.
The Occupation of Germany. 2.
The Occupation of Greater Berlin. B.
The Exercise of Judicial Authority Under the Occupation. 1.The
Occupation Courts in Germany. 2.
The United States Court for Berlin.
III. APPLICATION OF THE UNITED STATES CONSTITUTION TO THESE PROCEEDINGS It
is appropriate to visualize a hierarchy of types of United States involvement in
the governance of overseas territories. For incorporated territories, which are
in many cases territories on their way toward full statehood, the full panoply
of Constitutional rights is applicable. Next there are those territories, as yet
unincorporated, which are guarantees most or all Constitutional safeguards by
virtue of act of Congress. Then there are unincorporated territories now
governed by the King [v. Morton, 520 F.2d 1140] doctrine, where the
constitutionality of Congressional failure to extend the provisions of the Bill
of Rights is determined on the basis of a factual inquiry into the feasibility
of applying the Bill of Rights at least as to American citizens. In all of these
territories, the United States exercises sovereignty.... The
very last in the hierarchy of types of United States governing authority
overseas is United States occupation and control pursuant to conquest. In such a
situation international law prescribes the limits of the occupant's power.
Occupation does not displace the sovereignty of the occupied state, though for
the time being the occupant may exercise supreme governing authority. Nor
does occupation effect any annexation or incorporation of the occupied
territory into the territory or political structure of the occupant, and the
occupant's constitution and laws do not extend of their own force to the
occupied territory.
IV. THE REQUIREMENTS OF THE CONSTITUTION IN THESE PROCEEDINGS
A.
The Question Presented B.
The Extraterritorial Application of American Law C.
The Fundamental Nature of the Right to Trial by Jury D.
The Significance of the Nature of the Tribunal E.
Use of Jury Trials in Previous United States Occupation Courts F.
Constitutional Rights Afforded to Aliens APPENDIX Office
of the U.S. High Commissioner for Germany Berlin
Element, United States Sector Law
No. 46, United States Court for Berlin The
United States High Commissioner enacts as follows: Article 1
JAMES B. CONANT United
States High Commissioner for Germany Conclusions
for the Taiwan status issue: 1.
The paragraphs on incorporated territory doctrine in US v Tiede and the King v.
Morton doctrine for "enhancements" of rights are clearly applicable
where the US Congress has not fully legislated for the full Bill of Rights in
any such unincorporated territories. Hence it can be argued that King v.
Morton (US Court of Appeals, DC Circuit, 1975) directly controls the "Congressional enhancements" of those
promised human rights of the American interests of the Taiwan
Relations Act. Additionally, the
legal analysis of the 1898 US-Spain Treaty of Peace and related issues in
Gonzalez v. Williams (US Supreme Court, 1904) may be cited as customary law
precedent for the undefined civil rights of cessions. This will further clarify
the true nature of the legal relationship between the USA government and the
“Taiwan governing authorities” under the San Francisco Peace Treaty’s
Article 2b cession of Formosa and the Pescadores. It
is appropriate to visualize a hierarchy of types of United States involvement in
the governance of overseas territories. (1)
Incorporated Territories For
incorporated territories, which are in many cases territories on their way
toward full statehood, the full panoply of Constitutional rights is applicable. (2)
Unincorporated Territories which have been the subject of Congressional
legislation Next
there are those territories, as yet unincorporated, which are guarantees most or
all Constitutional safeguards by virtue of act of Congress. (3)
Unincorporated
Territories which have not been the subject of Congressional legislation Then
there are unincorporated territories now governed by the King?v.
Morton, 520 F.2d 1140?doctrine,
where the constitutionality of Congressional failure to extend the provisions of
the Bill of Rights is determined on the basis of a factual inquiry into the
feasibility of applying the Bill of Rights at least as to American citizens. In
all of these territories, the United States exercises sovereignty… (4)
Areas under the control of the United States Military Government The
very last in the hierarchy of types of United States governing authority
overseas is United States occupation and control pursuant to conquest. In such a
situation international law prescribes the limits of the occupied state, though
for the time being the occupant may exercise supreme governing authority. Nor
does occupation effect any annexation or incorporation of the occupied territory
into the territory or political structure of the occupant, and the occupant’s
constitution and laws do not extend of their own force to the occupied
territory. Application
of US Constitution in Overseas Territories, Additional Analysis
Also see "Judgement in Berlin" (movie introduction) |
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