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.



United States Court for Berlin               March 14, 1979               Summary

      US v. Tiede


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
    United States Court  

Article 2
    Personnel

Article 3
    Jurisdiction

Article 4
    Process

Article 5
    Review of Decisions

Article 6
    Cases Removed or Transferred from German Courts

Article 7
    Repeals and Transitional Provisions

Article 8
    Effective Date and Area of Applicability
    Done at Bad Godesberg, on April 28, 1955.

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 quot;Taiwan governing authorities under the San Francisco Peace Treaty's Article 2(b) cession of Formosa and the Pescadores. 


2. The analysis in Part III of the US v. Tiede decision may be properly delineated as follows:  

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.  


3. The current status of Taiwan and West Berlin both arose from a variety of developments during and following WWII.   A chart may be drawn to clarify the exact relationship of (historical) West Berlin and (present day) Taiwan to the United States of America, so that the similarities may be noted.  

Application of US Constitution in Overseas Territories, Additional Analysis       (PDF)


The US v. Tiede decision is available here:
http://webcast-law.uchicago.edu/tribunals/usvtiede.html


Also see the introduction to the Movie:



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