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The Taiwan Relations Act is law. A relevant clause was inserted by Senator Helms in his official capacity and in light of the TRA oversight powers of SFPT administrative authority controlled by the treaty clauses and international organization clauses. It is critical to grasp the juncture of the Shanghai Communiques with the TRA clauses here:
(d) Membership in international financial institutions and other international organizations Nothing in this chapter may be construed as a basis for supporting the exclusion or expulsion of Taiwan from continued membership in any international financial institution or any other international organization.
Source: Taiwan Relations Act, United States Code Title 22 Chapter 48 Sections 3301 - 3316, Enacted 10 April 1979
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Despite the continuation of the ROC in some organizations, the USA does not even presently support the Taiwan cession in any international organization requiring (of those joining or acceding to membership) to have dejure sovereign status.
Taiwan was only able to join the WTO with US support. At the same time, support for Taiwan's application for WHO as an observer status also mandated by US law, (although more properly Taiwan should be admitted to the WHO as an Associate Member under the USA). Again, US law requires no support of Taiwan as a sovereign entity but treats it as sub-sovereign with separate membership in international organizations. In practice, self-governing dominion status is operational in international organizations for Taiwan, so this analysis exactly dovetails with everything stated so far in Hartzell's overview and commentary.
Creation of a separate customs territory applies to all cession categories of unincorporated territory as set out by the Downes v. Bidwell ruling. The US Constitution has no conflicts with this SFPT issue of Taiwan cession as a self-governing dominion of military government under the Insular Cases. The fiscal authority is also separated from the US Treasury:
The WTO status of the Taiwan cession as a separate customs territory held under dominion by the United States Military Government can be directly derived from the judicial precedent in Downes v. Bidwell. That insular case issue was fully satisfied by the military powers and derivative legal instruments and policies for holding such as a dejure self-governing dominion of military government, therefore it directly follows that the Taiwan cession is qualified as unincorporated territory and has the unalienable basic (or "undefined") civil rights protections thereof.
The case also involves the broader question whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories. The Constitution itself does not answer the question. Its solution must be found in the nature of the government created by that instrument, in the opinion of its contemporaries, in the practical construction put upon it by Congress, and in the decisions of this court.
Source: Downes v. Bidwell, (1901)
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There is too much common confusion about the status of Union territory and territory newly acquired by peace treaty:
The question of the legal relations between the states and the newly acquired territories first became the subject of public discussion in connection with the purchase of Louisiana in 1803. This purchase arose primarily from the fixed policy of Spain to exclude all foreign commerce from the Mississippi. This restriction became intolerable to the large number of immigrants who were leaving the eastern states to settle in the fertile valley [182 U.S. 244, 252] of that river and its tributaries. After several futile attempts to secure the free navigation of that river by treaty, advantage was taken of the exhaustion of Spain in her war with France, and a provision inserted in the treaty of October 27, 1795, by which the Mississippi river was opened to the commerce of the United States. 8 Stat. at L. 138, 140, art. 4. In October, 1800, by the secret treaty of San Ildefonso, Spain retroceded to France the territory of Louisiana. This treaty created such a ferment in this country that James Monroe was sent as minister extraordinary with discretionary powers to co-operate with Livingston, then minister to France, in the purchase of New Orleans, for which Congress appropriated $2,000,000. To the surprise of the negotiators, Bonaparte invited them to make an offer for the whole of Louisiana at a price finally fixed at $15,000,000.
Source: Downes v. Bidwell, (1901)
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Retrocession of Louisiana from Spain to France was the first American experience with the incorporation of newly acquired territories by treaty cession:
Owing to a new war between England and France being upon the point of breaking out, there was need for haste in the negotiations, and Mr. Livingston took the responsibility of disobeying his instructions, and, probably owing to the insistence of Bonaparte, consented to the 3d article of the treaty, which provided that 'the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.' [8 Stat. at L. 202.] This evidently committed the government to the ultimate, but not to the immediate, admission of Louisiana as a state, and postponed its incorporation into the Union to the pleasure of Congress.
Source: Downes v. Bidwell, (1901)
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A notable issue of peace treaty cessions is that the US Constitution forbids any direct dealings with foreign states by its territories in the Union or federal areas. Any cession with political status of a US possession or as a dependent territory are not allowed to conduct their own foreign affairs.
This case may be considered as establishing the principle that, in dealing with foreign sovereignties, the term 'United States' has a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal government, wherever located. In its treaties and conventions with foreign nations this government is a unit. This is so, not because the territories comprised a part of the government established by the people of the states in their Constitution, but because the Federal government is the only authorized organ of the territories, as well as of the states, in their foreign relations. By art. 1, 10, of the Constitution, 'no state shall enter into any treaty, alliance, or confederation, . . . [or] enter into any agreement or compact with another state, or with a foreign power.' It would be absurd to hold that the territories, which are much less independent than the states, and are under the direct control and tutelage of the general government, possess a power in this particular which is thus expressly forbidden to the states.
Source: Downes v. Bidwell, (1901)
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We are also of opinion that the power to acquire territory by treaty implies, not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the 'American empire.' There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges and immunities of citizens. If such be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes [182 U.S. 244, 280] of life, shall become at once citizens of the United States. In all its treaties hitherto the treaty-making power has made special provision for this subject; in the cases of Louisiana and Florida, by stipulating that 'the inhabitants shall be incorporated into the Union of the United States and admitted as soon as possible . . . to the enjoyment of all the rights, advantages, and immunities of citizens of the United States;' in the case of Mexico, that they should 'be incorporated into the Union, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States;' in the case of Alaska, that the inhabitants who remained three years, 'with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights,' etc; and in the case of Porto Rico and the Philippines, 'that the civil rights and political status of the native inhabitants . . . shall be determined by Congress.' In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.
Source: Downes v. Bidwell, (1901)
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There is no automatic conveying of American citizenship upon the inhabitants of newly acquired cessions. Their legal interim nationality of their territorial status is defined by the customary law of war until their permanent status as a state in the Union. Their road to American citizenship is based upon many assessments of their suitability to our system of government. For example, the US citizenship of Puerto Rico is by collective naturalization of Congress. The citizenship of Saipan nationals is by Presidential proclamation. The non-voting nationality of American Samoa is by a legal clause in INA definitions. The US nationality of Filipinos was officially terminated by exclusion outside the Rules of Chargeability in their organic act as a self-governing dominion. The US federal government is a democratic government of the people of the Union and is accountable to them only. The annexation issues of overseas territory not contiguous to the lower 48 states presented new issues and so the doctrine of unincorporated territory was created to replace the previously automatic political status of an incorporated territory conferred by treaty provision status of past French cessions like Louisiana. The new default of any territory obtained by treaty cession was "unincorporated territory," which is now also called "insular status."
It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.
We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are in- [182 U.S. 244, 283] dispensable to a free government. Of the latter class are the rights to citizenship, to suffrage (Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627 ), and to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals.
Whatever may be finally decided by the American people as to the status of these islands and their inhabitants,-- whether they shall be introduced into the sisterhood of states or be permitted to form independent governments,-- it does not follow that in the meantime, a waiting that decision, the people are in the matter of personal rights unprotected by the provisions of our Constitution and subject to the merely arbitrary control of Congress. Even if regarded as aliens, they are entitled under the principles of the Constitution to be protected in life, liberty, and property. This has been frequently held by this court in respect to the Chinese, even when aliens, not possessed of the political rights of citizens of the United States. Yick Wo v. Hopkins, 118 U.S. 356 , 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Fong Yue Ting v. United States, 149 U.S. 698 , 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Lem Moon Sing, 158 U.S. 538, 547 , 39 S. L. ed. 1082, 1085, 15 Sup. Ct. Rep. 962; Wong Wing v. United States, 163 U.S. 228 , 41 L. ed. 140, 16 Sup. Ct. Rep. 977. We do not desire, however, to anticipate the difficulties which would naturally arise in this connection, but merely to disclaim any intention to hold that the inhabitants of these territories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no rights which it is bound to respect.
Source: Downes v. Bidwell (1901)
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Incidentally I have heretofore pointed out that the arguments of expediency pressed with so much earnestness and ability concern the legislative, and not the judicial, department of the government. But it may be observed that, even if the disastrous consequences which are foreshadowed as arising from conceding that the government of the United States may hold property without incorporation were to tempt me to depart from what seems to me to be the plain line of judicial duty, reason admonishes me that so doing would not serve to prevent the grave evils which it is insisted must come, but, on the contrary, would only render them more dangerous. This must be the result, since, as already said, it seems to me it is not open to serious dispute that the military arm of the government of the United States may hold and occupy conquered territory without incorporation for such length of time as may seem appropriate to Congress in the exercise of its discretion. The denial of the right of the civil power to do so would not, therefore, prevent the holding of territory by the United States if it was deemed best by the political department of the government, but would simply necessitate that it should be exercised by the military instead of by the civil power.
And to me it further seems apparent that another and more disastrous result than that just stated would follow as a consequence of an attempt to cause judicial judgment to invade the domain of legislative discretion. Quite recently one of the stipulations contained in the treaty with Spain which is now under consideration came under review by this court. By the provision in question Spain relinquished 'all claim of sovereignty [182 U.S. 244, 343] over and title to Cuba.' It was further provided in the treaty as follows:
'And as the island is upon the evacuation by Spain to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, and for the protection of life and property.'
It cannot, it is submitted, be questioned that, under this provision of the treaty, as long as the occupation of the United States lasts, the benign sovereignty of the United States extends over and dominates the island of Cuba. Likewise, it is not, it seems to me, questionable that the period when that sovereignty is to cease is to be determined by the legislative department of the government of the United States in the exercise of the great duties imposed upon it, and with the sense of the responsibility which it owes to the people of the United States, and the high respect which it of course feels for all the moral obligations by which the government of the United States may, either expressly or impliedly, be bound. Considering the provisions of this treaty, and reviewing the pledges of this government extraneous to that instrument, by which the sovereignty of Cuba is to be held by the United States for the benefit of the people of Cuba and for their account, to be relinquished to them when the conditions justify its accomplishment, this court unanimously held in Neely v. Henkel, 180 U.S. 109 , ante, 302, 21 Sup. Ct. Rep. 302, that Cuba was not incorporated into the United States, and was a foreign country. It follows from this decision that it is lawful for the United States to take possession of and hold in the exercise of its sovereign power a particular territory, without incorporating it into the United States, if there be obligations of honor and good faith which, although not expressed in the treaty, nevertheless sacredly bind the United States to terminate the dominion and control when, in its political discretion, the situation is ripe to enable it to do so. Conceding, then, for the purpose of the argument, it to be true that it would be a violation of duty under the Constitution for the legislative department, in the exercise of its discretion, to accept a cession of and permanently hold territory which is not [182 U.S. 244, 344] intended to be incorporated, the presumption necessarily must be that that department, which within its lawful sphere is but the expression of the political conscience of the people of the United States, will be faithful to its duty under the Constitution, and therefore, when the unfitness of particular territory for incorporation is demonstrated, the occupation will terminate. I cannot conceive how it can be held that pledges made to an alien people can be treated as more sacred than is that great pledge given by every member of every department of the government of the United States to support and defend the Constitution.
But if it can be supposed -- which, of course, I do not think to be conceivable -- that the judiciary would be authorized to draw to itself by an act of usurpation purely political functions, upon the theory that if such wrong is not committed a greater harm will arise, because the other departments of the government will forget their duty to the Constitution and wantonly transcend its limitations, I am further admonished that any judicial action in this case which would be predicated upon such an unwarranted conception would be absolutely unavailing. It cannot be denied that under the rule clearly settled in Neely v. Henkel, 180 U.S. 109 , ante, 302, 21 Sup. Ct. Rep. 302, the sovereignty of the United States may be extended over foreign territory to remain paramount until, in the discretion of the political department of the government of the United States, it be relinquished. This method, then, of dealing with foreign territory, would in any event be available. Thus, the enthralling of the treaty-making power, which would result from holding that no territory could be acquired by treaty of cession without immediate incorporation, would only result in compelling a resort to the subterfuge of relinquishment of sovereignty, and thus indirection would take the place of directness of action,-a course which would be incompatible with the dignity and honor of the government.
Source: Downes v. Bidwell, (1901)
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There is no relinquishment of sovereignty if incorporation does not occur and neither by the military powers holding foreign territory such does not mysteriously render the treaty-making clause ineffective. Self-governing dominions have their autonomy for such treaty-making powers like their British counterparts of that era but it is a treaty status question of the benign dominion that these delegated treaty-making powers can be ultimately exercised or become a source of juridical impedance when seeking any American support in joining international organizations. This insular status can occur within the military power or the civil powers of administrative authority. The current political status of the Taiwan cession is not an internal affair of China, it is an insular affair of the TRA and SFPT. The final status is part of the Shanghai Communiques and is standard operating procedures in Paragraphs 353 and 354 of (US Army Field Manual) FM 27-10 for finalization of such insular status within the military powers.
Those rules which regulated the declaration of war and the conduct of war are comprehended under the term Jus Feciale. Some modern writers give to the term a wider signification; and others limit it more closely. Osenbrueggen (De Jure Belli et Pacis Romanorum, p. 20 Lips. 1836) defines the Jus Feciale to be that which prescribed the formulae, solemnities and ceremonial observed in the declaring, carrying on, and terminating a war, and in the matter of treaties. The Romans often used the expression Jus Gentium in a sense which nearly corresponds to the modern phrase Law of Nations, or, as some call it, International Law (Livy, ii.14, vi.1, quod legatus in Gallos, ad quos missus erat, contra jus gentium pugnasset; xxxviii.48; Sallust. Jug. 22). The term Jus Belli (Cic. de Leg. ii.14) is used in the same sense.
Source: www.taiwanadvice.com/history/jus.htm
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There is far too much confusion not only of the concept of unincorporated territory but of the concept of jus feciale. It is within the above citation that the constitutional role of the High Commissioner is defined. For those military powers of SFPT, it is a matter of the civilian control over the (military) civil affairs of Taiwan cession including issues of civil rights and treaty-making powers of self-governing dominions. It is not a usurpation of the foreign affairs powers of the Dept. of State, but a constitutional firewall between the military and foreign affairs powers of the US Constitution for the SFPT cession of Taiwan. The Dept. of State is never to be an executive agency of administrative authority under separation of powers of the constitutional customary practices. Past customary practice has demonstrated no one should have allowed Kissinger to reign supreme over the cessions in SFPT without the added consent of the High Commissioner. Because of SFPT Article 2 differences versus Article 3 cessions under the US High Commissioner, the people of Taiwan have seen their basic US Constitutional rights trampled by officials of the Dept. of State for the last 30 years in the name of political expediency. George Kerr even attempted to step into the High Commissioner void of Article 2, but the results were less than should be constitutionally expected of those concerned at the Dept. of State at any point during the last 50 years and especially in the last 20 years of TRA. Thus the appointment of a High Commissioner of the Taiwan cession is an important line of defense for a constitutional right of TRA enhancement for unincorporated territory.