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

My "reading" (as you call it) or "interpretation" corresponds to all Executive Branch statements since 1952. (That is the period which is main focus of the lawsuit's attention.)

As a simple example of this, I fully recognize that Taiwan is not an independent sovereign nation, and indeed that has been the consistent viewpoint of the US Executive Branch. The fact that the ROC is merely a government-in-exile is also stated in many State Dept. documents of the early 1950s.

And yet, on this website, many many posters continue to claim that Taiwan is sovereign and independent, or that the ROC on Taiwan holds such a status, . . . . . need anything more be said? Their "analysis" clearly doesn't make the grade. They haven't even gotten out of the starting blocks for discussing the entire issue of the legal rights which Taiwanese persons should be entitled to under international law, and under US constitutional law.

Moreover, the issue of Taiwan/ROC's sovereignty is a "political question," and not something that will be debated by any US Court. The myriad arguments of many posters on this issue are therefore totally irrelevant. The US courts are not interested in what you think, they are only interested in the Executive Branch determinations on the political questions. I fully accept all of those Executive Branch determinations.

Mine is a consistent analysis which not only provides a comprehensive framework for discussing the legal rights of the native population of Taiwan, but also for the other areas under USMG jurisdiction as per Article 4(b) of the treaty. This framework also works equally well in dissecting the legal rights of the inhabitants of territorial cessions in the Spanish American Peace Treaty cessions, Mexican American Peace Treaty cessions, etc. -- it is therefore valid across time, both vertically and horizontally. Moreover, my analysis corresponds to the stipulations in the Hague Conventions, Geneva Conventions, and US Army Field Manuals.

Previously, in this and related threads, various posters have advanced the following arguments --
(1) The Treaty of Taipei recognized the transfer of sovereignty of Taiwan to the Republic of China,
(2) China is not affected by the SFPT, because no representative "signed" it,
(3) The abrogation or cancellation of the 1895 Treaty of Shimonoseki resulted in the "return" of Taiwan to China, etc., etc.

However, all of these "interpretations" are incorrect, based on the criteria given above. Most importantly, these involve political questions upon which the US Executive Branch has already made clear statements and pronouncements. These items will not be debated in a US Court, but the US Executive Branch viewpoint will be given full weight.

So, we have the following --
(1) Did the Treaty of Taipei recognize the transfer of sovereignty of Taiwan to the Republic of China? No, the treaty fully recognizes the arrangements of the SFPT, and no such transfer was made.
(2) Can we say that China is not affected by the SFPT, because no representative "signed" it? Such an argument is illogical. Taiwan was sovereign Japanese territory until April 28, 1952, and China gained no rights to Taiwan under the SFPT. Therefore, if we do want to say that China is unaffected by the SFPT, we still have to fully realize that Taiwan is not Chinese territory.
(3) Did the abrogation or cancellation of the 1895 Treaty of Shimonoseki result in the "return" of Taiwan to China? No such interpretation is possible under international law.

In summary, Taiwan remains as an overseas territory under the jurisdiction of the principal occupying Power of the SFPT -- the United States of America. Native Taiwanese people are therefore entitled to basic rights under US laws and the US Constitution.

You grossly misunderstand the structure of the government of the United States. The employees of the Executive Branch of our government during any particular administration say many, many things about many, many topics.

None of those things that they say have any force of law.

The law of the United States is comprised of: The Constitution of the United States, as amended;
the statutes of the United States, as passed by Congress and either approved by the President or passed over his veto;
the opinions of the United States Supreme Court.

Some would add the opinions of the Courts of Appeals, but those opinions have force of law only within the Appellate District and there is no Court of Appeals for Taiwan so there are no Court of Appeals decisions affecting any matter on that island.

It is very difficult to have a meaningful discussion with you because your stated basis for your opinion shifts from one post to the next. One day it is the Order no. One, the next day it is the Treaty of Peace with Japan which you erroneously call the SFPT, now it is the statements of the Executive Branch of the United States Government.

Please pick one and stick with it.

Although it makes no difference.

Your interpretation of the the Order no. One is wrong.
Your interpretation of the Treaty of Peace with Japan which you erroneously call the SFPT is wrong.
Your assertions of a basis in the Constitution are wrong.
Your suggestion that the comments of John Foster Dulles or some other employee of the U.S. Government has force of law is very sadly misinformed and wrong.

Your suggestion above that this is a political question is particularly problematic for you as the Supreme Court and its subordinate courts avoid political questions like UN officials avoid Taipei!

There is no language in any document that indicates that Taiwan ever has been under the jurisdiction of the United States. The only special right accorded to the "principal occupying power" was a special voting privilege in the ratification process for the Treaty for Peace with Japan which you erroneously call the SFPT.

We have a saying in the American version of English, "you are barking up the wrong tree". You, sir, are barking in the wrong forest!

This statement is particularly illustrative of the misguided nature of your analysis and your conclusions:


The employees of the Executive Branch often make comments about political questions. Those comments, however, have impact ONLY in the political arena. They have no force of law. The do not bind other employees of the same administration to agree with or follow them. They most certainly do not bind Congress or the courts in any matter pending before those two bodies. For example, the Vice President of the United States has stated that the United States government may sieze any person it deems an enemy combatant, transport that person anywhere in the world, interrogate that person without regard for the Geneva Convention, hold that person indefinitely while denying that person the right to legal representation, and withhold from that person all evidence that may exist against that person. Those statements have the same force of law as the statements you have referenced. None whatsoever.

Most of what Mr. Cheyney has said on this subject already has been rejected by the courts and what little remains has a very good chance of being rejected as these cases make their way through our courts.

I do not know if you are unaware of these developments or if you believe the statements you cite regarding Formosa/Taiwan/ROC are somehow different from the statements of Mr. Cheyney noted above. In either event, your assertion that this latter group of comments has any force of law is simply wrong.

Secondly, you assert that these pronouncements are political questions and that they will not be debated in a US Court. Then why on earth do you seek to have these matters debated in US Courts? The circle of your argument creates nausea because of the rapid spinning about which upsets the equilibrium which leads to this nausea. It is a simple physical response to spinning about rapidly and incessantly.

Third, you suggest that the statements that are political questions that will not be debated in a US Court will be given full weight! With all due respect, who in the sam hill will give them any weight at all, due or otherwise, if not the Courts? And if you believe that any court in the US will give these statements any weight whatever, much less full weight, without full and excruciating debate, then you simply do not understand how the US legal system works.

Friends, friends, please! I'm seeing a lot of comments here that are directed at one another rather than the subject of the debate. Perhaps everyone has had their say and it is time to "agree to disagree". It is not time to disparage one another - that time never comes on our board.

Let's back off, okay?

If I log a post that says "2 plus 2 is 475" and you post a reply that says, "no, it isn't. You're wrong."; how is that disparging?

Please provide the relevant references or documentation for this statement. I cannot follow your logic. Please provide the relevant references or documentation for this statement. I cannot follow your logic.

The United States experience in California, Puerto Rico, Guam, the Philippines, Cuba, etc. all attest to the fact that the military occupation does not end with the coming into force of the peace treaty. It takes a gross misreading of international law to assert otherwise, but if you have the data to prove such an assertion, please provide it.

Just for clarification, do the US Courts rule on International Law? Is this body of laws even admissible in US Courts?

In simplest terms, "International" Law is a fancy term for custom; in general, it can only be enforced through prosecution in some nation's court system.

Pseudo-international courts like the ICJ can rule on (but not enforce) an action brought by one nation against another, but in this particular case, the US court system is the proper venue -- assuming TC's legal justification is correct, of course.

so the list of nations whose people may sue in the U.S. courts becomes very, very long. Japan. Phillipines. France. Germany. Italy. Tunisia. Libya. Luxembourg. Belgium. Netherlands. Finland. Norway. Denmark. Cuba. Panama. I probably missed a few.

All are nations that were at some point in their histories occupied by the military forces of the United States or another nation operating in concert with military forces of the United States.

Cool. We can shut down our military forces and just conquer all these nations by judicial fiat!!

Thank You, RT. I think all of us sympathize with the plight of Taiwan and wish for the very best possible outcome for them. My own opinion(which counts for nothing) is that the people of Taiwan need to seize the bull by the horns and make this happen for themselves. If this court case is a part of seizing those horns then they of course have my best wishes. Win or lose it is probably one step of many in achieving international recognition.