Taiwan: Sovereignty on trial
Written byDavid Reid
A recent case heard in the US Court of Appeals is based on the claim the US is the legal occupying power of Taiwan. Michael Turton dismissed the case as “a crank lawsuit”. Taiwan Echo believes the case is important. Also on the topic of sovereignty, Talk Taiwan discusses a recent Liberty Times opinion piece and says the ROC should leave Taiwan.
Written byDavid Reid
Top World Stories
Cancel this reply
2 comments
I am very familiar with the issue, have for a few years been debating with the proponents of the theories that the US has sovereignty over Taiwan, and firmly believe that only the 23 million inhabitants of Taiwan have a sovereignty right over the territory.
Turton is right about the case being a crank lawsuit. For the information of Roger C. S. Lin, Richard W. Hartzell and company, the United States is not going to be forced by your theories through its Judicial Branch, on supra-Constitutional grounds, to exert authority over a Pacific island that currently has de facto independence. That would be wrong for the people of Taiwan as well as by the U.S. Constitution, which makes treaties and territorial issues the prerogative of primarily Legislative Branch of our government.
According to an article titled “Territories of the United States” on the web site http://legal-dictionary.thefreedictionary.com/ the U.S. Constitution does not state exactly how the United States may acquire land. Instead, the Constitution essentially delegates the power to decide the matter to Congress. Article IV, Section 3, Clause 1, of the Constitution provides that “New States may be admitted by the Congress into this Union; but no new State shall be formed … by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” The same section of the Constitution gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
Whether the current government of Taiwan is acting in the interests of the 23 million inhabitants of the island(s) is another question and a matter to be decided by the people of Taiwan through the democratic process, the next chance being later this year in the Legislative Yuan elections. Personally, I think they should throw all the KMT bums out, but that’s just my opinion.
Mr. T. Bradberry makes five interesting comments:
(1) “I firmly believe that only the 23 million inhabitants of Taiwan have a sovereignty right over the territory.” (2) [as per the] U.S. Constitution, . . . . treaties and territorial issues [are] the prerogative of primarily Legislative Branch of our government.” (3) the U.S. Constitution does not state exactly how the United States may acquire land. Instead, the Constitution essentially delegates the power to decide the matter to Congress. (4) . . . “New States may be admitted by the Congress into this Union; . . . . ” (5) Congress [has] the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
As regards #1, this is a common point of confusion even among many pro-Taiwan groups in the USA, such as the Formosa Association for Public Affairs (FAPA). Neither international law nor US Constitutional law recognize the people as having “territorial sovereignty.” The “territorial sovereignty” spoken of in this sense is a concept in the realm of territorial cession law. In contrast, “popular sovereignty” (which means that the people have the right to elect their own representatives, to institute impeachments, to run for public office, etc.) is something else entirely. Customary state practice in the post-Napoleonic era shows very clearly that territorial cession is an action between governments. When Sec. of State Powell said that “Taiwan does not enjoy sovereignty as a nation,” he certainly wasn’t talking about “popular sovereignty,” he was talking about territorial sovereignty.
For #2, it is true that treaties are made by the Legislative Branch of the US government, and then they are interpreted by the courts. If Mr. Bradberry would care to read the Senate-ratified San Francisco Peace Treaty, he might note that Japan renounced all claims over Taiwan, but the Republic of China was not designated as the “receiving country.” Hence, instead of complaining that the One China Policy is an out-dated notion from an earlier cold-war era, it would be much better for the pro-Taiwan groups in the USA to stress that under US law, the “Republic of China” is not the legal government of Taiwan, and the US government should allow the native Taiwanese people to form their own civil government. (It should be noted that the SFPT did not leave Taiwan as terra nullius, rather the USA was designated as the principal occupying power in Article 23(a). See more details in Dr. Roger Lin’s article in the Taipei Times of Feb. 11, 2008, “Determining Taiwan’s Status” — http://www.taipeitimes.com/News/editorials/archives/2009/02/11/2003435824
Regarding item #3, Mr. Bradberry’s statement is incorrect. There are numerous Supreme Court cases which explain this aspect, in other words which explain “what the Constitution means” in regard to how territory can be acquired. Dr. Lin and his associate wrote these details as a “Declaration of the Taiwan Status” in 2006 — http://www.taiwanadvice.com/declare.htm Would Mr. T. Bradberry care to write a rebuttal?? (To date Dr. Lin has not heard from any interested parties who can claim to be able to write a competent rebuttal to this “Declaration.” )
Also it must be remembered that “Taiwan” is something of an illegitimate child in the international community, hence US Executive Branch denials of holding ownership over Taiwan must be taken with a grain of salt. Most important are the historical and legal reality, including the fact that all military attacks against Taiwan in the WWII period were conducted by US military forces, thus confirming “acquirement” under the principle of conquest.
For #4, no one is arguing that Taiwan is going to become a “state” in the Union. There is a difference between a “state” and an overseas territory.
As regards #5, US Congressional authority over “territories,” the question arises: “What if Congress fails to act?” The aswer to this question was given in the Insular Cases of the US Supreme Court. The judges held that “fundamental constitutional rights” apply in all overseas territories under the jurisdiction of the USA, even without any action by the Congress. This is exactly what Dr. Roger Lin is arguing in his court case, that native Taiwanese people are entitled to the fundamental rights of life, liberty, property, and due process of law of the Fifth Amendment. The US Supreme Court has held that the right to travel, and the right to hold a passport are part of “liberty”, so Dr. Lin is on very firm ground there.
In summary, Dr. Lin’s lawsuit is a very carefully thought-out legal strategy, and all Taiwanese people should give this lawsuit their full support.
Dr. Lin fully recognizes that (A) Taiwan cannot enter the United Nations, and anyone who promotes such an agenda is a true snake-oil salesman, (B) the United States is not going to drop the One China Policy, because the PRC is the sole legitimate government of China, however at the same time it must be noted that the US Executive Branch has never recognized the forcible incorporation of Taiwan into Chinese territory, (and this again shows that the ROC is not the legitimate government of Taiwan, (C) the ROC on Taiwan at the most basic level is a subordinate occupying power (beginning Oct. 25, 1945, and a government in exile (beginning mid December 1949). There has been no change in these statuses to date.
Dr. Lin is continually amazed that pro-Taiwan groups in the United States (such as FAPA) continue to support the ROC, and continue to stress the need to work within the legal framework of this government in exile in order to obtain more human rights protections for native Taiwanese people. This is clearly not the answer to Taiwan’s current problems. The Taiwan status issue is a legal matter, not a political one. All interested parties are invited to read Dr. Lin’s court documents for further information, see – http://www.civil-taiwan.org/usca.htm