Taoyuan Court issued decision(s) in late June 2022. Among the pieces of evidence assembled by the court, the AIT submitted an official letter saying that "United States Military Government" in Taiwan does not exist.
The US Executive Branch has ignored the content of the SFPT for seventy years.
If we reference the SFPT, what important conclusions can we gain which would directly affect the human rights of the Taiwan people here in the 21st century?
* There is no legal basis for the establishment and maintenance of an ROC government structure in Taiwan.
This one fact has very wide implication for the historical and current governance of the ROC over Taiwan.
In particular, in Taiwan, the legitimacy of the use of the ROC Constitution, criminal code, civil code, etc. in Taiwan are all called into question.
* the legitimacy of military conscription policies over the Taiwan people is called into question,
* the legitimacy for the issuance of ID cards or passports to Taiwan people under the authority of a so-called Republic of China.
* the legitimacy of the ROC government's ownership rights to any land, buildings, etc.
The SFPT did not transfer the sovereignty of Taiwan to China. As quoted in the Sheng v. Rogers decision of ____________ _______ , the US State Dept. clarified:
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ROC's non-legitimacy in Taiwan . . . . . . issues
military conscription policies over the local populace
recognition of local persons as ROC citizens and issuance of ID cards & passports
operations of police dept.s, Taiwan Garrison Command, etc. throughout the island
the legitimacy of the exercise of the power of eminent domain, and other seizure of local land or other property
the restrictions of travel rights of the local populace
organization of local courts under ROC Constitution
Have US Executive Branch officials enforced these facets of the ROC's non-legitimacy? No.
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USA's legitimacy in Taiwan . . . . . . issues
US military officials have full rights to the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of Taiwan, including the territorial waters.
Have US Executive Branch officials enforced these facets of the USMG's legitimacy? No.
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Several US constitutional provisions are relevant to this discussion.
See comments in my original rwh.midway inquiry email to Risenhoover about this topic.
https://www.taiwanbasic.com/ebooks/trel ... claration/
-
Ignoring the SFPT
Re: Ignoring the SFPT
After the handover of Taiwan from Japan to the Republic of China on 25 October 1945, the United States established its consulate in Taipei on 4 April 1946. In 1948, it was upgraded to a consulate-general as the Consulate of the United States.
The Republic of China moved its central government to Taiwan effective Dec. 10, 1949. The American Consulate in Taipei was upgraded to an embassy in 1953, and therefore the Ambassador to China maintained residence at Taipei, Taiwan. until relations were severed in 1979.
The establishment of a US Embassy in Taiwan did not mean that the USA recognized Taiwan as a part of China. In support of this, reference is made to the US State Dept.'s Czyzak Memorandum (Feb. 3, 1961), which held that the sovereignty of Taiwan had not been transferred to the ROC. Such a statement by US State Dept. officials is in exact conformance to the content of the SFPT. The SFPT is part of international law.
The Republic of China moved its central government to Taiwan effective Dec. 10, 1949. The American Consulate in Taipei was upgraded to an embassy in 1953, and therefore the Ambassador to China maintained residence at Taipei, Taiwan. until relations were severed in 1979.
The establishment of a US Embassy in Taiwan did not mean that the USA recognized Taiwan as a part of China. In support of this, reference is made to the US State Dept.'s Czyzak Memorandum (Feb. 3, 1961), which held that the sovereignty of Taiwan had not been transferred to the ROC. Such a statement by US State Dept. officials is in exact conformance to the content of the SFPT. The SFPT is part of international law.
Re: Ignoring the SFPT
NEWS
[late June, 2022] Leading figures of the Taiwan Civil Government, a local human rights advocacy group founded in 2008, were charged with fraud and violation of numerous ROC statutes by the Taoyuan District Court. The judges were unhappy that the central "narrative" of the group was that the ROC does not exercise sovereignty over Taiwan, and that since the end of WWII Taiwan has remained under the jurisdiction of the US military authorities. A letter from the American Institute in Taiwan (AIT) was one of the pieces of evidence assembled by the judges. While not questioning the ROC central government's contention that it exercises sovereignty over Taiwan, or the legality of promulgating an ROC Constitution in occupied Taiwan territory in 1947, the letter did deny any exercise of jurisdiction over Taiwan by the United States Military Government (USMG).
Before discussing the late June 2022 decision(s) in any greater detail, let us first review the fundamentals of the Taiwan - USA relationship.
= = = = = = = = = = = = = = = = =
(Used) In regard to the disposition of Taiwan, the San Francisco Peace Treaty (SFPT) is the highest ranking document of international law, and US law, in the era after the close of hostilities in WWII.
Many people skim over the content of the SFPT, but fail to notice the significance of Article 4(b).
Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.
What does this Article mean?
In order to discuss this Article more coherently, let's review the situation of Tampico, Mexico, during the Mexican American War, as outlined above.
(used) On April 24, 1846, American forces were attacked near the Rio Grande, in Texas. On May 13, the U.S. Congress declared war against Mexico.
The Mexican American War
During the course of the war, which lasted a little over two years, the United States military troops conducted actions against locations in Mexico both on land and by sea. Below we will discuss two situations of United States Military Government (USMG) jurisdiction over Mexican territory, in order to illustrate some important aspects of the customary laws of warfare.
Tampico, Mexico
In late October, 1846, under onslaught by the U.S. navy warships, Mexican forces in the port city of Tampico determined that their situation was indefensible, and abandoned the city.
On November 14, U.S. troops captured the city without a fight. The U.S. flag was raised. In this way the military occupation of Tampico, Mexico began.
Tampico, Mexico
Captured: Nov. 14, 1846
Tampico, Mexico
USMG begins: Nov. 14, 1846
In early to mid 1847, an import export company in the United States became involved in a dispute with a US customs officials regarding the customs duties to be paid on imported merchandise from Tampico. The company officials claimed that Tampico was not a "foreign port" under the relevant laws regarding the collection of import duties.
This case was argued at several levels of the U.S. court system, eventually reaching the Supreme Court.
After a thorough dissection of all relevant legal principles, the decision of the Justices held that after Tampico was subdued, it was still uniformly treated as an enemy's country. In other words, it remained a foreign port, even though the U.S. flag was flying. Indeed, after the conclusion of the treaty of peace, Tampico was promptly restored to the possession of the Mexican authorities. Under the laws and usages of war, during the period of its subjugation it was not proper for the United States to regard it as a part of U.S. domestic territory, or to give to it any form of civil government, or to extend to it our laws.
The capture of the city did not mean that there was a transfer of the territorial sovereignty to the country of the arriving military forces. After capture, and during the period of military occupation, Tampico would be best classified as an independent customs territory under USMG on Mexican soil. The military forces of the occupying army were neither entitled to seize public or private property in the city, nor to promulgate an entirely new code of laws. Nor could they undertake a mass naturalization of the local inhabitants. The occupiers were required to follow the rules of usufruct
usufruct -- (1) the right to the use and enjoyment of another's property and its profits, (2) the right to use and enjoy the profits and advantages of something belonging to another as long as the property is not damaged or altered in any way.
What many civilian scholars overlook is that the direct result of conquest is to obtain jurisdiction over the territory in question. If we can discuss a "principle of conquest" in the post-Napoleonic world, it is _______________ ____________________ _____________________ .
As confirmed in the US Supreme Court case of Ex Parte Milligan (1866), the jurisdiction of US military forces over Tampico is called "United States Military Government" (USMG). Hence, territory occupied by the United States is under USMG jurisdiction, and conversely territory under USMG jurisdiction is, at the most basic level, occupied territory of the United States.
The historical and legal record clearly shows that after being conquered by US military forces, Tampico, Mexico, automatically entered into the legal status of "occupied territory of the United States." (Note: In the post-Napoleonic world, there is no doctrine of immediate annexation of the territory as a result of the end of hostilities.)
Many more examples of territory coming under USMG jurisdiction can be found when overviewing the history of the Mexican American War, and other wars. For example, in the Spanish American War, the conquest/liberation of the Philippines, Guam, Puerto Rico, and Cuba also resulted in these areas coming under USMG jurisdiction. During WWII in the Pacific, after the Battle of Okinawa, Japanese troops surrendered, and the Ryukyu Island group came under USMG jurisdiction.
REALITY CHECK: The three situations of Cuba, the Ryukyu islands, and Taiwan are similar in many ways, although most civilian scholars don't notice the similarities. In each case, although the territory was separated from its "mother country" according to the terms of the peace treaty, a careful legal analysis of its legal status showed that it was neither an independent entity, nor part of another country. In other words, it remained in an "interim status" under the military government of the (principal) occupying power.
Going back to the content of SFPT Article 4(b) above, it is authorizing the future "final disposition" of the Article 2 territory of "Formosa and the Pescadores" (aka Taiwan), and the Article 3 territory of the Ryukyu islands to be determined by USMG. But, what is the legal status of these territories under the treaty? Above, we have just discussed the Ryukyu island group (i.e. Article 3), where USMG jurisdiction automatically extended over these islands after conquest by US military forces.
So, what about Taiwan? The historical record also shows that over 96% of military attacks against targets in (Japanese) Taiwan during the WWII were conducted by US military forces. (Admittedly, it is hard to find this fact written in any history books, but it is common knowledge among the members of the older generation in Taiwan.) Such an analysis means that Taiwan is, at the most basic level, also occupied territory of the United States. In other words, Taiwan is under USMG jurisdiction.
Most civilians read through the SFPT and see that in Article 2(b) Japan renounced its sovereignty over Taiwan, but no "receiving country" was specified. They conclude that such an arrangement is very unclear. According to Article 3, they see that the Ryukyu island group was separated from Japan, but again no final disposition of these islands was made. They also criticize that this is very unclear. Hence, they conclude that the SFPT is of little relevance in discussing the post-WWII disposition of Taiwan, "because it contains unclear specifications." US Executive Branch officials have long held to such an analysis. Hence, in any discussion of Taiwan's international legal position, they only stress the Four Elements of the One China Policy, the Taiwan Relations Act, the Three Joint Communiques, and the Six Assurances. The Senate-ratified SFPT is totally ignored.
Such a criticism of the unclearness of the SFPT is incorrect. The Article 4(b) specifications are a confirmation that Taiwan and the Ryukyu island group are under USMG jurisdiction. In other words, both areas are under US military occupation.
Should we be surprised by this conclusion? Not really. In Nov. 1950 . . . . . . . . . . . . . . . [UN story]
After this overview of the historical and legal record, we can clearly see that the SFPT has specified that both the Ryukyu islands and Taiwan are under the jurisdiction of USMG. Has this jurisdiction ended? Importantly, we find no wording in One China Policy, the Taiwan Relations Act, the Three Joint Communiques, the Six Assurances, or any Executive Orders, or Presidential Proclamations from the era of Commander in Chief Harry Truman to the present day to say that USMG in Taiwan is being terminated.
= = = = = = = = = = = =
(used) In judicial decisions of the ROC’s Taoyuan District Court of late June 2022, leading figures of the Taiwan Civil Government, a local human rights advocacy group founded in 2008, were charged with fraud and violation of both the ROC’s Organized Crime Prevention Act and the Money Laundering Control Act. Ms. Julian Lin, often regarded as the public face of the advocacy group, was sentenced to nineteen years in prison and a fine of NT$2 million (US$67,540). Three of her associates received sentences ranging from 10 months to 2.5 years, and fines ranging from NT$100,000 to NT$400,000. Several others were found not guilty. The rulings can be appealed.
The judges did not specifically rule on the central contention of those charged that “Taiwan is still legally under US military jurisdiction based on the terms of the San Francisco Peace Treaty (SFPT) which came into force at the end of World War II.” However, among the pieces of evidence assembled by the court, an official letter from the American Institute in Taiwan (AIT) stated that "the exercise of jurisdiction over Taiwan by the United States Military Government does not exist.”
Below, the compilers of this website hereby offer their views on these rulings of Taoyuan District Court.
In early July 2022, numerous people wrote to AIT in attempt to verify this information, but the wording of their letter was much more based on US constitutional law. There inquiry was:
"According to the SFPT Article 4(b)
Failure to implement . . . .
Oaths of Office . . . .
(used) Again, this comes back to the most fundamental problem in the US State Dept. and other Executive Branch agencies. For over 70 years, these officials have ignored the Senate-ratified SFPT. In regard to Taiwan in particular, they have failed to implement its specifications.
Of course, this amounts to multiple violations of the US Constitution. In particular . . . . . . .
So, we are wondering, why doesn't the US Senate hold Hearings on this issue?
If the failure of Executive Branch officials to implement the content of the Senate-ratified SFPT are not enough, then consider the following actions which these Executive Branch officials allowed the Rep. of China regime to implement in US occupied Taiwan, in direct violation of the internationally recognized laws of war:
* Announcement of Taiwan Retrocession Day
* Mass naturalization of native Taiwan people as ROC citizens
* Confiscation of public and private property
* Military trials of civilians
* Promulgation of a new Constitution
* Enforcement of a new criminal code
* Implementation of mandatory military conscription policies
* abuse and maltreatment of persons in police custody
* trafficking of women and children
* repression of the linguistic and cultural rights of minorities
etc.
Over and above these, the US Supreme Court has ruled that the populace in areas coming under United States' jurisdiction are entitled to certain "fundamental rights under the Constitution." Among these are . . . . . .
[late June, 2022] Leading figures of the Taiwan Civil Government, a local human rights advocacy group founded in 2008, were charged with fraud and violation of numerous ROC statutes by the Taoyuan District Court. The judges were unhappy that the central "narrative" of the group was that the ROC does not exercise sovereignty over Taiwan, and that since the end of WWII Taiwan has remained under the jurisdiction of the US military authorities. A letter from the American Institute in Taiwan (AIT) was one of the pieces of evidence assembled by the judges. While not questioning the ROC central government's contention that it exercises sovereignty over Taiwan, or the legality of promulgating an ROC Constitution in occupied Taiwan territory in 1947, the letter did deny any exercise of jurisdiction over Taiwan by the United States Military Government (USMG).
Before discussing the late June 2022 decision(s) in any greater detail, let us first review the fundamentals of the Taiwan - USA relationship.
= = = = = = = = = = = = = = = = =
(Used) In regard to the disposition of Taiwan, the San Francisco Peace Treaty (SFPT) is the highest ranking document of international law, and US law, in the era after the close of hostilities in WWII.
Many people skim over the content of the SFPT, but fail to notice the significance of Article 4(b).
Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.
What does this Article mean?
In order to discuss this Article more coherently, let's review the situation of Tampico, Mexico, during the Mexican American War, as outlined above.
(used) On April 24, 1846, American forces were attacked near the Rio Grande, in Texas. On May 13, the U.S. Congress declared war against Mexico.
The Mexican American War
During the course of the war, which lasted a little over two years, the United States military troops conducted actions against locations in Mexico both on land and by sea. Below we will discuss two situations of United States Military Government (USMG) jurisdiction over Mexican territory, in order to illustrate some important aspects of the customary laws of warfare.
Tampico, Mexico
In late October, 1846, under onslaught by the U.S. navy warships, Mexican forces in the port city of Tampico determined that their situation was indefensible, and abandoned the city.
On November 14, U.S. troops captured the city without a fight. The U.S. flag was raised. In this way the military occupation of Tampico, Mexico began.
Tampico, Mexico
Captured: Nov. 14, 1846
Tampico, Mexico
USMG begins: Nov. 14, 1846
In early to mid 1847, an import export company in the United States became involved in a dispute with a US customs officials regarding the customs duties to be paid on imported merchandise from Tampico. The company officials claimed that Tampico was not a "foreign port" under the relevant laws regarding the collection of import duties.
This case was argued at several levels of the U.S. court system, eventually reaching the Supreme Court.
After a thorough dissection of all relevant legal principles, the decision of the Justices held that after Tampico was subdued, it was still uniformly treated as an enemy's country. In other words, it remained a foreign port, even though the U.S. flag was flying. Indeed, after the conclusion of the treaty of peace, Tampico was promptly restored to the possession of the Mexican authorities. Under the laws and usages of war, during the period of its subjugation it was not proper for the United States to regard it as a part of U.S. domestic territory, or to give to it any form of civil government, or to extend to it our laws.
The capture of the city did not mean that there was a transfer of the territorial sovereignty to the country of the arriving military forces. After capture, and during the period of military occupation, Tampico would be best classified as an independent customs territory under USMG on Mexican soil. The military forces of the occupying army were neither entitled to seize public or private property in the city, nor to promulgate an entirely new code of laws. Nor could they undertake a mass naturalization of the local inhabitants. The occupiers were required to follow the rules of usufruct
usufruct -- (1) the right to the use and enjoyment of another's property and its profits, (2) the right to use and enjoy the profits and advantages of something belonging to another as long as the property is not damaged or altered in any way.
What many civilian scholars overlook is that the direct result of conquest is to obtain jurisdiction over the territory in question. If we can discuss a "principle of conquest" in the post-Napoleonic world, it is _______________ ____________________ _____________________ .
As confirmed in the US Supreme Court case of Ex Parte Milligan (1866), the jurisdiction of US military forces over Tampico is called "United States Military Government" (USMG). Hence, territory occupied by the United States is under USMG jurisdiction, and conversely territory under USMG jurisdiction is, at the most basic level, occupied territory of the United States.
The historical and legal record clearly shows that after being conquered by US military forces, Tampico, Mexico, automatically entered into the legal status of "occupied territory of the United States." (Note: In the post-Napoleonic world, there is no doctrine of immediate annexation of the territory as a result of the end of hostilities.)
Many more examples of territory coming under USMG jurisdiction can be found when overviewing the history of the Mexican American War, and other wars. For example, in the Spanish American War, the conquest/liberation of the Philippines, Guam, Puerto Rico, and Cuba also resulted in these areas coming under USMG jurisdiction. During WWII in the Pacific, after the Battle of Okinawa, Japanese troops surrendered, and the Ryukyu Island group came under USMG jurisdiction.
REALITY CHECK: The three situations of Cuba, the Ryukyu islands, and Taiwan are similar in many ways, although most civilian scholars don't notice the similarities. In each case, although the territory was separated from its "mother country" according to the terms of the peace treaty, a careful legal analysis of its legal status showed that it was neither an independent entity, nor part of another country. In other words, it remained in an "interim status" under the military government of the (principal) occupying power.
Going back to the content of SFPT Article 4(b) above, it is authorizing the future "final disposition" of the Article 2 territory of "Formosa and the Pescadores" (aka Taiwan), and the Article 3 territory of the Ryukyu islands to be determined by USMG. But, what is the legal status of these territories under the treaty? Above, we have just discussed the Ryukyu island group (i.e. Article 3), where USMG jurisdiction automatically extended over these islands after conquest by US military forces.
So, what about Taiwan? The historical record also shows that over 96% of military attacks against targets in (Japanese) Taiwan during the WWII were conducted by US military forces. (Admittedly, it is hard to find this fact written in any history books, but it is common knowledge among the members of the older generation in Taiwan.) Such an analysis means that Taiwan is, at the most basic level, also occupied territory of the United States. In other words, Taiwan is under USMG jurisdiction.
Most civilians read through the SFPT and see that in Article 2(b) Japan renounced its sovereignty over Taiwan, but no "receiving country" was specified. They conclude that such an arrangement is very unclear. According to Article 3, they see that the Ryukyu island group was separated from Japan, but again no final disposition of these islands was made. They also criticize that this is very unclear. Hence, they conclude that the SFPT is of little relevance in discussing the post-WWII disposition of Taiwan, "because it contains unclear specifications." US Executive Branch officials have long held to such an analysis. Hence, in any discussion of Taiwan's international legal position, they only stress the Four Elements of the One China Policy, the Taiwan Relations Act, the Three Joint Communiques, and the Six Assurances. The Senate-ratified SFPT is totally ignored.
Such a criticism of the unclearness of the SFPT is incorrect. The Article 4(b) specifications are a confirmation that Taiwan and the Ryukyu island group are under USMG jurisdiction. In other words, both areas are under US military occupation.
Should we be surprised by this conclusion? Not really. In Nov. 1950 . . . . . . . . . . . . . . . [UN story]
After this overview of the historical and legal record, we can clearly see that the SFPT has specified that both the Ryukyu islands and Taiwan are under the jurisdiction of USMG. Has this jurisdiction ended? Importantly, we find no wording in One China Policy, the Taiwan Relations Act, the Three Joint Communiques, the Six Assurances, or any Executive Orders, or Presidential Proclamations from the era of Commander in Chief Harry Truman to the present day to say that USMG in Taiwan is being terminated.
= = = = = = = = = = = =
(used) In judicial decisions of the ROC’s Taoyuan District Court of late June 2022, leading figures of the Taiwan Civil Government, a local human rights advocacy group founded in 2008, were charged with fraud and violation of both the ROC’s Organized Crime Prevention Act and the Money Laundering Control Act. Ms. Julian Lin, often regarded as the public face of the advocacy group, was sentenced to nineteen years in prison and a fine of NT$2 million (US$67,540). Three of her associates received sentences ranging from 10 months to 2.5 years, and fines ranging from NT$100,000 to NT$400,000. Several others were found not guilty. The rulings can be appealed.
The judges did not specifically rule on the central contention of those charged that “Taiwan is still legally under US military jurisdiction based on the terms of the San Francisco Peace Treaty (SFPT) which came into force at the end of World War II.” However, among the pieces of evidence assembled by the court, an official letter from the American Institute in Taiwan (AIT) stated that "the exercise of jurisdiction over Taiwan by the United States Military Government does not exist.”
Below, the compilers of this website hereby offer their views on these rulings of Taoyuan District Court.
In early July 2022, numerous people wrote to AIT in attempt to verify this information, but the wording of their letter was much more based on US constitutional law. There inquiry was:
"According to the SFPT Article 4(b)
Failure to implement . . . .
Oaths of Office . . . .
(used) Again, this comes back to the most fundamental problem in the US State Dept. and other Executive Branch agencies. For over 70 years, these officials have ignored the Senate-ratified SFPT. In regard to Taiwan in particular, they have failed to implement its specifications.
Of course, this amounts to multiple violations of the US Constitution. In particular . . . . . . .
So, we are wondering, why doesn't the US Senate hold Hearings on this issue?
If the failure of Executive Branch officials to implement the content of the Senate-ratified SFPT are not enough, then consider the following actions which these Executive Branch officials allowed the Rep. of China regime to implement in US occupied Taiwan, in direct violation of the internationally recognized laws of war:
* Announcement of Taiwan Retrocession Day
* Mass naturalization of native Taiwan people as ROC citizens
* Confiscation of public and private property
* Military trials of civilians
* Promulgation of a new Constitution
* Enforcement of a new criminal code
* Implementation of mandatory military conscription policies
* abuse and maltreatment of persons in police custody
* trafficking of women and children
* repression of the linguistic and cultural rights of minorities
etc.
Over and above these, the US Supreme Court has ruled that the populace in areas coming under United States' jurisdiction are entitled to certain "fundamental rights under the Constitution." Among these are . . . . . .