An Overview of Important New Research on Taiwan's International Legal Position -
Liu to Royce
TO: Representative Edward Royce
305 N. Harbor Blvd. Suite 300
Fullerton, Calif. 92832
FROM: Thomas T. Liu
3XX Bostonian Dr.
Los Alamitos, CA 90720
Occupation: formerly in aerospace industry, now retired
Date: December 22, 2005
Dear Congressman Royce,
Recent research into the military and legal history of WWII in the Pacific strongly suggests that "Formosa and the Pescadores" (i.e. "Taiwan") may have a much closer legal relationship to the United States than any members of Congress have previously realized.
At the present time, the US Congress has an active Taiwan Caucus, and I believe it is important for them to look into this matter more carefully. According to my friends in Taiwan, since May of 2005, a large number of articles have been written in the (Chinese language) Taiwan Daily News about the true nature of Taiwan's legal status . The authors of these articles have concluded that Taiwan's relationship to the United States is the same as that of Puerto Rico, the Philippines, Guam, and Cuba, in the Treaty of Paris (April 11, 1899), after the Spanish American War.
As you may be aware, the US Supreme Court ruled that those four island groups were "unincorporated territory," and in fact all four were under United States Military Government for more than a year, even after the peace treaty came into effect. In modern terminology, these were all "insular areas of the United States." Hence it can be shown that today, Taiwan's correct international legal position is also the same, an ""insular area of the United States."
This surprising conclusion is discussed a three page attachment.
I wonder if you could pass this information on to the House Committee on Resources, and ask that they research it more fully? As you know, that Committee is in charge of Insular Affairs.
It is my hope that that Committee could launch an investigation into the true facts of Taiwan's international legal position, now that this new research has become available.
Thank you and best wishes for the Holidays.
-- Attachment --
An Overview of Important New Research on Taiwan's International Legal Position
Not all members of the Congress may be aware that all military attacks on (Japanese) "Formosa and the Pescadores" during the December 8, 1941 to August 15, 1945 period were conducted by United States military forces. A close reading of General Douglas MacArthur's General Order No. 1 of September 2, 1945, strongly indicates that the United States is the "principal occupying power" of these Pacific Ocean areas and environs, and indeed this is fully confirmed by Article 23 of the post-war "San Francisco Peace Treaty," of April 28, 1952.
Considering such historical facts, it is clear that upon the surrender of Japanese troops, the United States "acquired" Taiwan under the principle of conquest.
Looking more carefully at the Senate ratified "San Francisco Peace Treaty," Japan renounced the sovereignty of Taiwan in Article 2b, but no country was named as recipient. Significantly, Article 21 the treaty clarifies that China is not the beneficiary of the territory of "Taiwan." The United States is confirmed as the "principal occupying power" in Article 23, and the United States Military Government has final disposition rights over the territory of Taiwan as per Article 4b. As we know, the US Commander in Chief is the head of the military arm of the US government.
Looking back at the Spanish-American War cessions of Puerto Rico, the Philippines, Guam, and Cuba, the period of military occupation was followed by a formal announcement by the US government of the end of "United States Military Government" (USMG) in these areas. The earliest date was May 1, 1900, when USMG in Puerto Rico ended, and civil government operations authorized by the US Congress began.
Comparative data for the end of USMG in the Philippines was July 4, 1901; the end of USMG in Cuba was May 20, 1902; and the end of USMG in Guam is usually stated as July 1, 1950.
The situation of Taiwan is somewhat complicated by the fact that the United States (as "the principal occupying power") has delegated the administrative authority for the military occupation of Taiwan to the Chinese Nationalists. Under international law, this is merely "Grotian agency," which is the law of agency as applied to dealings between nations.
However, with no end of USMG in Taiwan having ever been announced by the United States government, it appears that even today Taiwan remains under USMG administrative authority.
This means that Taiwan has been acquired by the United States in the same fashion as Puerto Rico, the Philippines, Guam, and Cuba were acquired during of the Spanish-American War, under the principle of conquest. As you may recall, upon the coming into force of the April 11, 1899, Treaty of Paris, and indeed for over a year thereafter, all of these four areas were under United States Military Government!
In Downes v. Bidwell, the US Supreme Court confirmed that upon relinquishment of Spanish sovereignty in the peace treaty, these four island groups became "unincorporated territories" under US law. Indeed, in the present era these are what we would refer to as "Type 1 Insular Areas."
A selection of important quotes from the Downes v. Bidwell ruling is available at
http://www.taiwanadvice.com/downesqu2.htm An examination of all relevant legal and historical documents strongly suggests that at the present time, under the terms of the Senate-ratified San Francisco Peace Treaty, Taiwan remains under USMG administrative authority, and has not yet reached a "final (political) status." Under such a framework, Taiwan qualifies as an insular area of the United States, and the Taiwanese people should be enjoying fundamental rights under the US Constitution.
This conclusion does not violate the "One China Policy" which is strongly espoused by the State Department and the White House. In fact, under this legal clarification, it is clear that the so-called "Republic of China on Taiwan" is merely a subordinate occupying power (beginning Oct. 25, 1945) and a government in exile (beginning December 1949). Hence, in the world today there are not "Two Chinas."
In order to assure that Taiwan continues to flourish along the democratic path, with freedom, dignity, and human rights for all, I would hope that the House Committee on Resources could investigate this matter more thoroughly. A US citizen and long-time resident of Taiwan, Mr. Richard W. Hartzell, has delved into this topic in a very serious fashion over the past five years. A number of his English language essays are available on the internet at www.taiwanadvice.com/. To my knowledge, the Chairman of the House Committee on Resources requested a full report on the Application of the US Constitution to Insular Areas in 1997. It would be most suitable if a similar investigation could be launched into the true legal status of Taiwan.
Under the terms of the Senate ratified San Francisco Peace Treaty, it is hard to understand why the Republic of China (ROC) government is still being allowed to "operate" in Taiwan, if indeed, as Mr. Hartzell's extensive research strongly suggests, the ROC is clearly blocking the Taiwanese people's enjoyment of fundamental rights under the US Constitution. Such fundamental rights would certainly include life, liberty, property, and due process of law under the Fifth Amendment.
In summary, this is an issue of US Constitutional law which urgently needs the attention of the House Committee on Resources.
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