Assuring a More Democratic Future for Taiwan under the US Constitution
by Roger C. S. Lin & Richard W. Hartzell | View comments |
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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.
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The United States needs to recognize Taiwan as an independent, sovereign country, regardless of consequences with China.
Comment by Tom | May 23, 2006
The Taiwanese people could also petition for statehood. This would be a radical step, but it certainly would put a crimp in the current situation. After all, China could not call Taiwan part of its territory when the island was part of the USA.
Just a thought
Comment by Steven Laib | May 24, 2006
The United States needs to make up it's mind on this issue. First, we decided that we were against communism, and supported Taiwan as the officially recognized nation of China after Chiang Kai-Shek's Chinese nationals were forced off the mainland by the soviet-backed red Chinese. Then we decided that communist mainland China was the officially recognized nation of China, and proceeded to suspend support for Taiwan and eventually give Most Favored Nation trading status to communist mainland China. So which is it? Do we favor communism, or capitalism? Freedom or tyranny? Obviously our decision has been made, but if the United States had any political conscience whatsoever, we would recognize Taiwan's sovereignty and support them in the international arena.
Comment by Patrick Mulligan | May 25, 2006
To totally solve Taiwan issue (A letter to US dept. of States)
Dear Madam Secretary,
The US government has been oblivious to the survival of the Taiwanese people and playing Taiwan as wager in working its global military strategy for more than 60 years. It adopted a vague policy that has suffocated the Taiwanese people for decades, siding with the so-called "one-China policy" wordplay to manipulate the Taiwanese people. Being cornered in this prolonged ploy, the frustrated Taiwanese people have been enduring China's constant threats and abusive sniping from across the strait with no sign of stopping.
The US, due to its delinquent and muddled post-war handling of Taiwan after World War II, has alienated Taiwan from the international community for more than 60 years. This abandonment has brought upon Taiwan incessant political turmoil and societal chaos. While the US has been benefiting financially from the enormous amount of Taiwanese military expenditure for years, Taiwan is being pushed onto a path leading to the fate of being taken over by the barbaric China.
The US has been promoting democracy and freedom worldwide and thus receiving praises from people around the world for upholding justice and playing the role of a world cop in keeping world order. However, this respectful American profile of justice has hardly been present in the US government's dealing of the Taiwan issue.' The Taiwanese people have been fed up with the ambiguous US policy and gradually losing faith in the US. People have started to question whether the founding spirit and the values safeguarded by the US constitution are in jeopardy. I personally think the US needs to take action, without further delay, on the Taiwan issue to maintain the integrity and dignity of the US in facing the world. Confronted with increasing military threats from China, the internal political
affairs in Taiwan have been tremendously crippled and in disarray. The Taiwanese people are facing an unprecedented tension in recent years. Since last year, Taiwan Defense Alliance has been advocating for a movement to "Let Taiwan Position Back to History Beginning", asking the US government to face the Taiwan issue up front and proceed with immediate intervention to restore justice to the Taiwanese people with no more deceit. This alliance asserts that the 23,000,000 Taiwanese people should have the same basic human rights as people in the US and Iraq.
Taiwan Defense Alliance has scheduled to lead a group of Taiwanese people to apply for the US passport on the ground that the US constitution grants the Taiwanese people this right. I think the simplest way for the US to handle the Taiwan issue is to accept these people's applications. This is the most straightforward and peaceful solution. This action will handily relieve Taiwan from the China-centered political oppression and establish a government in accordance with justice and the interest of the Taiwanese people as well as the US.
The US government should take this suggestion into serious consideration. Thank you.
Sincerely
Argent shaw
March 16,2006
Comment by argent | May 31, 2006
Tell me, America, what the status quo of Taiwan Strait is?
By Argent
Chen Shui-bian, the President of the exiled government of Republic of China, announced the intention to abolish the State Unification Conference and State Unification Guiding Principles at this lunar New Year gathering. The statement stirred up quite a little dust. Domestically, the pro-China force of KMT clan predictably ran their routine of attacks. State department also issued the worn-out "one-China policy" lingoes in a very timely fashion, objecting to Taiwan's changing the "status quo" one-sidedly.
We have been fooled and manipulated by the American government as an international orphan for sixty years, and it's still faithfully playing the old trick on Taiwan, one of the most loyal friends, telling Taiwan not to change the status quo; but never define status quo clearly. How does Taiwan maintain the status quo? Taiwanese people are getting sick and tired of it now. Please tell Taiwanese why should Taiwan need to follow America's every whim in its domestic and international affairs? Then tell Taiwan what "maintaining the status quo" is!
Since Taiwan is "not" a sovereign state, why does America want Taiwan to purchase weapons to protect itself? According to the Taiwan Relations Act passed by the American congress, it's America's responsibility to protect Taiwan. Why should Taiwan spend astronomical amount of money to purchase weapons from America? What do you want us to talk China about? The one and only goal China has been devouring Taiwan. How in the world Taiwan could negotiate with China to achieve a peaceful resolution? Is America real dumb or just playing dumb? If the most repressive government of China is so easy to talk to, why doesn't America go telling them that America still holds Taiwan's sovereignty? America does not have the gut to claim its rights, instead forcing Taiwan to talk to China about a peaceful unification. How in the world a democratic country and a communist government can discuss the unification under the communism regime? Is America such a retarded species?
What is the status quo of Taiwan Strait? The status quo is changing every day, which day's status quo are you referring to? In reality the change of the status quo is accelerating to danger Taiwan's survival with China's increasing threat from all fronts, but America says Taiwan can't change the status quo; the irony is the status quo just can't be kept with China's stepping up its threat. If Taiwan doesn't adopt some structural changes, the future of Taiwan is doomed. Shouldn't America know better?
What's your plan to help 23 million Taiwanese moves on and to where? Why America never made it clear to the people of Taiwan? How could you treat an old ally like this? How could an old ally not losing faith in you? Where is the old faithful of human right you so proudly advocate over time? Or 23 million Taiwanese don't deserve the human right you are so seemingly concerned with every chance you get?
Taiwan can't stay silent silence while waiting to be slaughtered by the repressive China, Taiwan needs to protest to America's contempt and handling of the people in Taiwan. The basic right of Taiwanese has been deprived by America since it never stopped the ROC government's brutal ruling after WWII. Taiwanese are now asking America to stop playing with the unreal, absurd one-China policy which has been a tired old trick that will not work any more. America owes Taiwan a fair and justice treatment. America took over Taiwan from Japan, it was entitled to enjoy certain privileges yet, don't forget it also bore the obligation of helping Taiwan to build its own nation per international law.
Playing the same old game is tiring and it will not work all the time. It's time to put out new sensible direction and goal. America needs to declare the sovereignty of Taiwan, even annex Taiwan as part of America, or America needs to give the sovereignty back to the people of Taiwan and help establishing a normal new country. Only the due process is done right, will Taiwan and America both benefit. Justice is done this way with a legal, complete ending of this unsolved problem after World War II.
Translated by realtaiwan
Comment by argent | May 31, 2006
No more fooling us, please! My friend!
First of all, we would like to express our gratitude for your timely support of our President Chen’s (the president of Taiwan) recent ceasing of the so-called “National Unification Council” and “Guidelines for National Unification”. The Taiwanese public is exhilarated about the US government’s sympathetic understanding and keen assistance, which have tremendously restored our trust and appreciation in the United States.
However, the Taiwanese problem remains. Your government has been neglecting the basic human rights of 23,000,000 Taiwanese people for too long. It has been more than 60 years since your government adhered to an ambiguous Taiwan policy that has been suffocating the Taiwanese people. Your “one-China” policy has nearly pushed and is still driving the democratic Taiwan to fall a prey to the communist China. Have you ever seriously considered the fate of the Taiwanese people?
At the end of World War II, you supported a dictator Chiang Kai-Shek (CKS) to occupy and rule Taiwan without any consultation with the Taiwanese people. As a result, this occupation was disastrous to the Taiwanese people. Where were you when hundreds of thousands of Taiwanese people were being murdered by thugs led by CKS? And even after the massacre during the occupation, your government has not only failed to take any remedial steps to return justice to the Taiwanese people but also continued to allow the dictator CKS to brutalize the Taiwanese people.
As crimes being committed by the CKS and his followers in Taiwan, including their claiming ownership of Taiwan, have you ever tried to intervene in any way? Should the persecution of the Taiwanese people ever be taken seriously? Are you aware that you are also responsible for the Taiwan situation? Have you ever reflected on the errors you have made in the past? If your answers to these questions were positive, the way you have been dealing with the Taiwan situation would have been more prudent and responsible.
As the across-Taiwan strait relation worsened, you asked for a bilateral dialogue between Taiwan and China. Have you not witnessed how frequently our President Chen sent out good will only to be retorted by humiliating insults and threats from China? It is not Taiwan that is not willing to talk. It is China, in insisting Taiwan to subordinate its sovereignty to China, that is not holding its end in the talk. In order to satisfy China’s terms, there is nothing Taiwan can do but to surrender to it. How does this add up and is this what the USA likes to see?
As a research reported by Roger Lin and Richard Hartzell ( http://www.taiwanadvice.com/ )
pointed out, according to the regulation of US constitution, Taiwan Relations Act, and San Francisco Peace Treaty, Taiwan is unincorporated territory of the US. Is this true? If not, why has the US been meddling in Taiwan’s internal affairs? If so, why has the US government never made clear this fact to the world? Why have you been hiding this fact from the Taiwanese people and ignoring your duty in protecting Taiwan while asking Taiwan to buy weapons from you? How is this in alignment with the American people’s sense of justice?
We strongly urge the US government, in facing up to your duty, to immediately revoke the illegitimate China-centric ruling structure, which remained to oppress Taiwan, and resume the USMG operation in Taiwan to assist the Taiwanese people to establish a legitimate Taiwan-centric governmental structure, and to cease Taiwan’s 60 year long misfortune of being exiled as an unrecognized nation.
Comment by argent | May 31, 2006