The fantasy in the complex riddle of the "Taiwan question" is that the "Republic of China" (ROC) is holding Taiwan's territorial sovereignty. In fact, an argument can be made that as a result of the Pacific War, the United States acquired Taiwan under the principle of conquest.
The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves ……
Myriad scholars and researchers have pondered the true meaning of these convoluted phrases in the Shanghai Communique of 1972. In fact, the real intention of this phraseology is to put the non-sovereign entity of Taiwan on a "flight path" for a future unification with the PRC.
Taiwan's March 2006 decision to eliminate its "Reunification
Council" shows a strong desire to deviate from this pre-determined
"flight path," and hence is a matter of grave concern to the US
Executive Branch, especially the Oval Office and the Dept. of
State. Contrastingly, many members of Congress support
Taiwan's decision to eliminate its Reunification Council and to proceed
along a more democratic path for its future development.
Although the US President and the Congress are frequently 180 degrees
apart in their views on how to deal with Taiwan, at the present time
the US President is using his plenary power over foreign affairs to
deal with the "Taiwan question," and so he controls US policy on this
issue.
The members of Congress have not yet comprehended that the decision to put Taiwan on a "flight path" for unification with the PRC is a deprivation of the US Constitution's Fifth Amendment "due process protections" to the Taiwanese people. That is something that the Congress should be sorely concerned about.
What are due process protections? A fundamental requirement of due process is "the opportunity to be heard." It is an opportunity which must be granted at a meaningful time and in a meaningful manner. Were the Taiwanese people consulted during the drafting of the Shanghai Communique? The answer is No.
US Constitutional Protections for the Taiwanese
Are the Taiwanese people entitled to US Constitutional protections? They certainly are. During the period of WWII in the Pacific, Taiwan was acquired by the United States based under the principle of conquest.
In the post-war Senate-ratified San Francisco Peace Treaty
(SFPT), Japan renounced the territorial sovereignty of Taiwan, but no
recipient nation was designated. Hence, Taiwan has remained under
the jurisdiction of the United States (the "conqueror" and the
"principal occupying power") up to the present day. The civil
rights and political status of the inhabitants of Taiwan are a subject
over which the US Congress has legislative authority, but so far no
Congressmen have woken up to this fact.
This is further explained as follows. The 1901 US Supreme Court
case of Downes v. Bidwell confirmed previous Supreme Court
rulings on the subject to say that, "The power to make acquisitions of
territory by conquest, by treaty, and by cession is an incident of
national sovereignty."
All military attacks against Taiwan during the WWII period were made by US military forces, so it is clear that as a result of the Pacific War the United States has acquired Taiwan under the principle of conquest. The disposition of Taiwan must be conducted according to the laws of war.
Up until the coming into effect of the SFPT on April 28, 1952,
the Commander-in-Chief dealt with the Taiwan question based on his war
powers over occupied territory. Military occupation is conducted
under "military government," and as "the occupying power" as spoken of
in the laws of war, the United States delegated the military occupation
of Taiwan to the Chinese Nationalists.
In the SFPT, Japan gave up all rights to the territorial sovereignty of
Taiwan, but no recipient was named. Hence, the United States'
acquirement of Taiwan was confirmed, but Taiwan remains subject to the
President's war powers under United States Military
Government.
The constitutional basis for this methodology is easily verified by reading Blackstone's Commentaries on the Laws of England, which was an important reference used at the US Constitutional Convention in Philadelphia in 1787. All of the territories Blackstone lists as dominions are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on.
To apply Blackstone's reasoning to the United States, we need merely substitute "federal government" for "Crown," and the meaning becomes clear.
US Congressional Authority over Taiwan
Importantly, for acquired territory, "Congress shall have
powers to dispose of and make all needful rules and regulations . . . .
. " in accordance with the territorial clause of the US Constitution
(Article 4, Section 3, Clause 2). In the history of territorial
acquisitions by the United States, the civil rights and political
status of native persons therein have always been deemed to be subject
to determination by the US Congress.
Downes v. Bidwell also confirmed that "fundamental
constitutional rights" apply in all US overseas territories. The
Fifth Amendment protections to life, liberty, property, and due process
of law are fundamental rights under the US Constitution.
The ROC and the One China Policy
Many people claim that the ROC in Taiwan is unfairly restricted from participating in international organizations because of the internationally accepted "One China Policy." Numerous highly-paid political commentators are quick to point out that the "One China Policy" is a fantasy, since Taiwan is a growing and developing democracy.
However, "One China" is not a fantasy. The only fantasy in the complex riddle of the "Taiwan question" is that the "Republic of China" (ROC) is holding Taiwan's "territorial sovereignty."
Again, this is easily analyzed from the viewpoint of military jurisdiction under the US Constitution. After liberating Taiwan in the Pacific War, the United States delegated the military occupation of Taiwan to the Chiang Kai-shek (the Chinese nationalists). In the post-war San Francisco Peace Treaty, the territorial sovereignty was not awarded to the ROC. So in fact, Taiwan territory is still subject to the jurisdiction of the United States. The SFPT clearly specifies that the United States is the "principal occupying power." For a territorial cession, the military government of the principal occupying power does not end with the coming into effect of the peace treaty.
After considering these facts, it is clear that the One China Policy as espoused by the United States is correct, but China is China and Taiwan is Taiwan. The ROC on Taiwan is merely a subordinate occupying power (beginning October 25, 1945) and a government in exile (beginning December 1949).
In other words, the ROC is not the legitimate government of Taiwan. This is the real reason why the US government refused President Chen's request for transit rights through the mainland US cities of San Francisco and New York during his early May 2006 trip to Paraguay and Costa Rica. As more and more people in Taiwan have begun to complain to the Commander-in-Chief and the US Dept. of State in the last six months, the officials of the Executive Branch are choosing to distance themselves from the rebel ROC regime in every way possible.
The USA-Taiwan-China Relationship
The People's Republic of China often boasts that it is the sole legitimate government of China, and as the successor government to the ROC, it has ownership of Taiwan territory. However, this argument quickly evaporates when we realize that the ROC does not own the "territorial sovereignty" of Taiwan. This was forcefully clarified by former Secretary Powell on October 25, 2004 in a press conference in Beijing, when he said, "Taiwan does not enjoy sovereignty as a nation."
Commentators in the international media have yet to begin to discuss all of these legal complexities surrounding the USA-Taiwan-China relationship. Meanwhile, the record shows that the US Executive Branch has trampled on the constitutional rights of the native Taiwanese people for over fifty years in the name of political expediency, and continues to do so here in 2006.
According to the Taiwan Relations Act, the terminology of "Republic of China" is not recognized under US law after January 1, 1979. Since Taiwan has never been officially incorporated into the territory of the Republic of China, strong arguments can be made that the mass naturalization of native Taiwanese persons as "Republic of China citizens" in January 1946 is without legal basis, in fact it is a war crime perpetrated by the Chiang Kai-shek regime.
Clearly, the best way for the Taiwanese people to insure that they can continue to develop along the democratic path is to get the handling of the "Taiwan question" out of the Executive Branch, and into the US Congress. Under the territorial clause of the Constitution, the members of Congress do indeed have jurisdiction over the civil rights and political status of native persons in Taiwan. That means that the members of the US Congress can give the Taiwanese people what they really want – authorization to call a Constitutional Convention and draft a new Taiwan Constitution under United States administrative authority.
Dr. Roger C. S. Lin and Richard W. Hartzell are researchers in international treaty law and the laws of war. Dr Lin has a Ph.D. in international law from Meijo University in Nagoya, Japan. Mr. Hartzell has a B.S. in Economics from the Wharton School, Univ. of Penn., Philadelphia, Penn. They both reside in Taiwan.
rgroup.tw@gmail.com