Capitol Hill Blue Forums Political Issues Constitutional Issues Taiwanese entitled to US constitutional rights

Have you read the court documents?? It is all explained in there. http://www.taiwanbasic.com/insular/lin-excerpts.htm

As it is obvious that that you have not read the court documents, nor have you read the 20 some links on http://www.civil-taiwan.org/usca.htm#links . . . . . I will not make any sort of detailed reply here, because I cannot summarize all of that data in a few dozen paragraphs. I suggest that you read and study the court documents and all of the links. Your reasoning is confused, to say the least. Our case in not based on General Order No. 1, it is based on the SFPT. The administrative authority of the "principal occupying Power" over the territorial cessions in the treaty does not end with the coming into force of the SFPT. Read the links.

So apparently you have no argument tc. If all you can do is point to the library to support any claim then any claim can be verified by merely pointing to a general body of knowledge. You have failed again to make your point or prove with any veracity that your claim is valid.

Thanks. One of the problems, up to now, with getting my news from electronic media instead of the local newspaper is the loss of the funny papers. Problem solved.

There is no “SFPT”. There is a Treaty of Peace with Japan, which was established largely through a conference held in San Francisco, California, USA. I presume this is the reference you meant to suggest? Your position would be easier to follow if citations were to the official documents.

As to the relevance of that treaty to your argument, the connection is extraordinarily flimsy.

The word “Taiwan” appears nowhere in that treaty.

The word “Formosa” appears once in that treaty, to wit: “Japan renounces all right, title and claim to Formosa and the Pescadores.” Article 2 (b).

The word “China” appears twice:
Article 10: “Japan renounces all special rights and interests in China”
Article 21: “China shall be entitled to the benefits of Articles 10 and 14(a)2"

As for your reliance on the notion of the United States of America having some special connection to Formosa/Taiwan/Republic of China, the phrase “principal occupying power” appears exactly once in the treaty you mistakenly refer to as SFPT.

Article 23 (a): stipulating that ratification occurs when ratification documents “have been deposited by Japan and by a majority, including the United States of America as the principal occupying Power” (emphasis added)

No provision is made for continued application of that power; indeed the Treaty of Peace operates to end the war and eliminate the need for a “principal occupying power”. Thus the words "treaty" and "peace".

Given that the Treaty makes no pretense of applying to Formosa/Taiwan/Republic of China beyond noting that Japan renounces all rights, titles, and claims against it or any other portion of China, your suggestion that the Treaty of Peace with Japan (TPJ) establishes some ongoing and significant relationship between United States forces and Formosa/Taiwan/Republic of China is specious on its face.

Your suggestion that a treaty of peace perpetuated a state war is specious in its entirety.

Further, China, the Republic of China, the Peoples Republic of China, Formosa, nor Taiwan are signatories to the Treaty of Peace with Japan.

It is well established in U.S. and international law that a party must first have standing before any element of said party’s claims may be heard.

The Constitution of the United States of America, Article III, Section 2 establishes the bases for standing in the Federal Courts. One might find standing under the clause within this section related to treaties.

However, since there is no nexus between the Treaty of Peace with Japan and any entity claiming to operate on behalf of the peoples of China, Formosa, Taiwan, or any other connected, loosely or tightly, entity, there can be no claim of standing based on the Treaty.

You previously disavowed the importance of the Order no. One which defeats any notion of standing under the clause dealing with “Ambassadors, other public Minsters and Consuls”. But if you wish to revise your assertion in order to base a claim for standing on this provision, please see my earlier comments regarding the explicit terms of the Order: to wit, that Japan surrendered to China, not the United States, as regards any occupation of Formosa/Taiwan/Republic of China. No Ambassador, Minister, or Consul of the United States was involved in that surrender beyond the drafting of the Order.

Since you fail to establish standing, there is no need to pursue the many, many links in your various postings. They are irrelevant; lost to a lack of standing.

The World Court may offer you some opportunity to establish standing, though a cursory review of its standing requirements would not offer me much hope were I you.

But please do visit the Hague at your first opportunity.

Absent that, I renew my suggestion that you appeal to the people in the next national election for a validation of your claims by the people directly affected.

My question, tc, was what rights you think are applicable. I have read the pleadings. I was trying to personalize the thread with respect to your personal thoughts rather than simply regurgitating the briefs. This is, in part, because you have been somewhat dismissive of other people's grasp of "international law" and "the Constitution." I would like to know your opinion, unless, of course, these are your pleadings.

Wrong Track to International Recognition

Many advocates for "Taiwan Independence" continue to believe that drafting a new constitution, or striving for change via the local ballotbox, or making yearly applications to the United Nations, etc. will help Taiwan on the road to normalization and boost international recognition for the Taiwanese republic. However, the burning issue of non-recognition of Taiwan is the diplomatic centerpiece of the Shanghai Communique and “One China Policy," which remains the political bane of Taiwan supporters, even though that Policy is 100% correct.

The legal reality is that the Republic of China (ROC) is nothing more than a (1) subordinate occupying power beginning Oct. 25,1945, (2) a Chinese government-in-exile beginning mid-December 1949. Thus, the ROC on Taiwan has been merely a putative state of the Chinese Nationalist Party (KMT) since 1949. If we comprehend the status of the ROC in this manner, then we can see how international non-recognition factors into the Taiwan dilemma.

But how can anyone support the ROC on Taiwan as a proxy for the Taiwanese republic? Obvioulsy, the ROC is not the legitimate government of Taiwan, and the ROC Constitution is not the true organic law of the "Taiwan cession." Treating the ROC as the legitimate government of Taiwan results in a political conflict of interest and does not allow for the impartial prosecution of the KMT for war crimes under the San Francisco Peace Treaty (SFPT). This co-opts the pan-greens and cannot be supported in the interest of bringing justice to the Taiwanese people.

We must hold the KMT accountable for the atrocities of 1947 and later years, and its stolen assets must be brought under the treaty’s judicial process of redress by establishment of the appropriate US military commissions. The pursuit of justice under the SFPT can lead to the legal extinction of the exiled ROC on Taiwan without disrupting the current “One China” status quo.

Popular sovereignty is an overextension of the ROC putative state and entirely ignores the SFPT. (As General MacArthur stated in a US Congressional Hearing on May 4, 1951: " . . . . legalistically Formosa is still a part of the Empire of Japan." The ROC was not invited to sign the SFPT because it had already become a government-in-exile.) The notion of Taiwan Retrocession Day on Oct. 25, 1945 is totally fraudulent, and there has never been any transfer of the title of Taiwan territory to the ROC in the 20th or 21st centuries.

Territorial sovereignty for Taiwan can only derived from a treaty, or via negotiations with the "principal occupying Power" of the SFPT -- the United States of America. The organic law of Taiwan’s cession must be drafted in accordance with US military government regulations and US constitutional principles that can legally transform the “Taiwan governing authorities” (as spoken of in the Taiwan Relations Act) from the ROC martial law era into a true “Taiwan civil government” in the current post-1952 period.

By closely following the customary law precedent and regulations for peace treaties (such as the SFPT) and supporting the rule of law, we could ultimately see the KMT held fully accountable for its actions. Japanese decolonialization is an ongoing process and it remains incomplete, but removing the ROC governing apparatus is a perk of the SFPT’s redress. This of course would be one step forward in the "beginning of the end" of the illusion that Taiwan is somehow "Chinese territory."

Also see -- Military Jurisdiction under the US Constitution
http://www.taiwankey.net/dc/milgovex.htm#miljurcn

Well, now, we're making progress. The real objective is finally on the table. Or is it? Assuming it is:

Bolshevik revolution of 1917
French revolution of 1789
U.S.A. revolution of 1776

I don't recall that the U.S. courts were called upon to fight those battles for those folks seeking recognition of their rights to self-determination!

Given the terms and conditions of the Order no. One and the Treaty of Peace with Japan, there is no legal basis for the United States courts to intervene in the local affairs of Formosa/Taiwan/Republic of China to effect a revolution for that populace. Seems to me y'all are going to have to band together and do it yourselves.

The ballot box can be a very powerful tool if used by folks who are properly informed about the birth of nations and who also are supported by at least a majority of the people within the boundaries of the "nation" they seek to lead to the promised land of freedom.

Last census I can find shows that the "indigenous" peoples of Formosa/Taiwan/Republic of China still occupy a majority of the populace of that "nation" and that the votes being cast by the non-indigenous population pale in comparison to the number that could be cast by the larger population.

If your problem is that you don't know how to organize and effect an election to demonstrate the will of the people, then your appeal would be to the United Nations High Commission on Refugees for assistance in that regard.

Ponderer may have more information on the topic than do I but I am unaware of any legal authority vested in the courts of the United States of America that would allow said courts, up to and including the Supreme Court, to direct an election of self-determination on an island that is outside the jurisdiction of the United States, as Formosa/Taiwan/Republic of China clearly is.

Since the surrender to the good Generalissimo, the fate of the island and the populace thereon has been in the hands of China. Nothing in the Treaty for Peace with Japan provides any basis for a unilateral change to that state of affairs; indeed nothing in the treaty establishes any basis for any of the signatories thereto to intervene into the affairs of governance of that place.

The Treaty of Peace with Japan does direct any future disputes to the United Nations.

Sorry, TaiwanCapsule, but your arguments are a capsule we cannot swallow.

I remain a bit concerned that the capsule you propose is in fact a poisonous pill; an attempt to get the United States to meddle in the affairs of Formosa/Taiwan/Republic of China so the Peoples Republic of China can spring to the defense of its province and send its own armies and plenipotenriaries to occupy the landmass.

I cannot imagine any entity of the Unites States doing anything to advance the possibility of that eventuality. Far better that the indigenous people appeal to the UN in an effort to establish themselves as refugees of the China Civil War and ask the UN to set up a national election of self-determination.

You may want to contact the Carter Center for assistance if you decide your effectiveness at the ballot box is too limited. Such a non-governmental organization (NGO) would be far more likely to be of assistance than any of the individual signatories to the United Nations Charter.

To this specific point, a separate response. It is true that the state of affairs for Formosa/Taiwan/Republic of China is exacerbated by the reality that the political and military elements that took over governance of the place at the time of the surrender of Japan is the same set of political and military elements that subsequently lost the China Civil War.

That fact, however, gives strength, rather than weakening, the argument in favor of Refugee status before the High Commission. To the extent that you can convince anyone that Formosa/Taiwan is a separate national entity (which it has not been for centuries) then the ensuing reality that said nation is occupied by the losers of a civil war would give great weight to a determination that the indigenous peoples are refugees of a war that they neither invited nor encouraged and that the United Nations should take over the island and shepherd those people to their own election of self-determination.

Before taking that precipitous action, however, it would seem prudent to look at the likely economic realities of the new nation that would emerge. Sometimes one should be careful about what one wishes for.

This thread has drifted back into the territory previously occupied by the other thread. The argument continues to be supported by conclusory statements, rather than substantiation. E.g., "The legal reality is that the Republic of China (ROC) is nothing more than a (1) subordinate occupying power beginning Oct. 25,1945, (2) a Chinese government-in-exile beginning mid-December 1949." - that is one theory, and one not supported by international law, and is inconsistent with the theory that U.S. Constitutional law is applicable; "Obvioulsy, the ROC is not the legitimate government of Taiwan, and the ROC Constitution is not the true organic law of the "Taiwan cession." " Apparently obvious only to true believers.

None of this, however, addresses what constitutional rights residents of Taiwan - of whatever heritage - have gained under this analysis. Even if the United States had territorial ambitions over Taiwan, it has never exercised any such authority, it has not been incorporated into the territory of the United States and this represents a novel application of both international and domestic United States law. Certainly the majority of Taiwanese would be shocked to suddenly have a new entity seek to assert jurisdiction over them. I believe that Logan's approach is right:

Leave it up to the local population to determine their governmental structure, keeping in mind the realpolitik implications such choices might have. Good luck at the ballot box.