Statement of Historical & Legal Rationale for U.S. Responsibility for the Defense of Taiwan
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We proffer the following declarations in the name of
The People of Taiwan
PART 1: THE LEGAL UNDERPINNINGS OF THE UNITED STATES - TAIWAN RELATIONSHIP
A. Military jurisdiction under the US Constitution
Recalling that the delegates to the United States' 1787 Constitutional Convention in Philadelphia were all intimately familiar with English law, and indeed Blackstone's Commentaries on the Laws of England are a standard reference for investigating the intent and scope of applicability of many clauses in the United States Constitution. In speaking of "territory," 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.
Recognizing that as early as 1828, US Supreme Court Chief Justice Marshall offered this penetrating analysis in the famous American Insurance Company case:
"The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."
And cognizant of the fact that in the 1872 case of United States v. Huckabee, the Court speaking through Mr. Justice Clifford, said:
"Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined .... "
And .... Downes v. Bidwell, fundamental rights for people and territory . . . . and common defense
Exparte Milligan
Reid v. Covert
B. The Customary Laws of Warfare
C. The SFPT
treated as a lost treaty, violation of faithful execution, supremacy clause, etc.
Based on military jurisdiction under US Constitution, and customary laws of warfare, we would expect the SFPT to
Hence, fully referencing the legal logic in Blackstone's Commentaries in addition to the three Supreme Court cases mentioned above, we can come to the preliminary conclusion that
1. "Conquered territory" is a legal status of territory, which may lay claim to certain rights under the US Constitution, and be discussed on its own,
2. The conqueror has jurisdiction over conquered territory, although in the modern day, immediate "annexation" is not allowed. The Convention respecting the Laws and Customs of War on Land (Hague IV, 1907) contained explicit provisions concerning the protection of civilians and their property in occupied territories.
3. In the modern day, conquered territory is immediately subject to military occupation.
PART 2: AN HISTORICAL OVERVIEW OF TAIWAN IN THE 19TH AND 20TH CENTURIES
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Recalling that after the Second Sino-Japanese War, Qing China ceded "Formosa and the Pescadores" to Japan in 1895 in the Treaty of Shimonoseki. In the Washington Naval Treaty of 1922, the United States recognized Taiwan as an insular area of Japan, thus confirming the validity of this territorial cession to Japan.
Recalling that after the Japanese attack on Pearl Harbor, the United States declared war on Japan on December 8, 1941. Chiang Kai-shek's Republic of China then declared war on Japan on December 9, 1941.
Recalling that according to the Cairo Declaration of Dec. 1, 1943, and the Potsdam Proclamation of July 26, 1945, the the leading Allies expressed the intention to "return" Taiwan to China after WWII.
Bearing in mind that the U.S. Dept. of the Army compiled a major portion of the Laws of Land Warfare (aka "Laws of War") recognized by the United States into U.S. Army Field Manual FM 27-10, first edition published October 1, 1940.
Recognizing that over 98% of military attacks on Japanese Taiwan in the WWII in the Pacific period were conducted by U.S. military forces, and therefore the United States is the "conqueror."
Being aware of the fact that the U.S. Supreme Court has ruled that the conqueror . . . . . ., and that therefore the conqueror is the legal occupier.
Cognizant of the fact that after the atomic bombings of Japan in early August 1945, the Japanese Emperor agreed to an unconditional surrender.
Recalling that General Douglas MacArthur issued General Order No. 1 on Sept. 2, 1945. For Taiwan, General MacArthur directed that -- The senior Japanese commanders and all ground, sea, air and auxiliary forces within China (excluding Manchuria), Formosa and French Indo-China north of 16 north latitude shall surrender to Generalissimo Chiang Kai-shek.
Cognizant of the fact that in relation to Taiwan, the content of General Order No. 1 was strictly limited to the disposition of Japanese military personnel, and no instructions regarding the disposition of the Japanese territory of Taiwan were included.
Being aware of the fact that ROC military commanders and troops were transported to Taiwan by United States ships and aircraft in October 1945. Accordingly, the era of the ROC in Taiwan began in Oct. 1945 with the full assistance and tutelage of the United States.
Recalling with incredulity that for Taiwan, the majority of U.S. and ROC officials considered the date of the Japanese surrender ceremonies in Taiwan, October 25, 1945, as the "End of the War," when in fact it was merely the "End of Hostilities."
A. With reference to One China Policy
B. With reference to Taiwan Relations Act
C. With reference to Three Joint Comm.
Hence, fully referencing the legal logic in the above clauses and the Supreme Court cases mentioned above, we can come to the further conclusion that
1. Taiwan is conquered territory of the United States, and therefore
2. the United States has jurisdiction over Taiwan as a "default status,"
3. The fact that in the SFPT, Japan renounced its sovereignty over Taiwan but no receiving country was specified, must be understood within this framework.
In consideration that the SFPT does not give China (ROC or PRC) any rights over Taiwan, hence Taiwan must be understood to be occupied territory of the USA, alternatively a quasi-trusteeship or provisional trusteeship.
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Recognizing that the Taiwan question is an issue left over from WWII in the Pacific,
There are three commonly mentioned possibilities for which country must handle the defensive responsibility for Taiwan
1. Japan (owner of Taiwan's territorial sovereignty in the WWII period, and until the SFPT came into force April 28, 1952)
2. Republic of China (currently administering Taiwan territory, and frequently proclaiming that it holds the territorial sovereignty of Taiwan)
3. United States (the conqueror of Taiwan territory during the WWII period.
Defensive Responsibility for Taiwan based on US policy statements, laws, etc.
A. With reference to One China Policy
B. With reference to Taiwan Relations Act
C. With reference to Three Joint Comm.
D. With reference to US Constitution
E. With reference to SFPT
F. With reference to Customary Laws of Warfare
= = = = perhaps extraneous for "common defense" argument = = = = =
Recalling with exasperation and resentment that on October 25, 1945, officials of the Chiang Kai-shek "Republic of China" regime announced "Taiwan Retrocession Day," asserting that the territorial sovereignty of Taiwan had been transferred to China on this date.
Being aware that such an "annexation announcement" was a serious violation of the laws of war as recognized by the United States, in regard to the handling of occupied territory.
Deeply deploring the fact that no U.S. officials, military or civilian, took any concrete actions to have the Chiang Kai-shek regime rescind this annexation announcement.
Recalling with further exasperation and resentment that on January 12, 1946, officials of the Chiang Kai-shek "Republic of China" regime announced the mass-naturalization of native Taiwan people as "Republic of China" citizens.
Being aware that such a "mass naturalization announcement" was a serious violation of the laws of war as recognized by the United States, in regard to treatment of the civilian population in occupied territory.
Deeply deploring the fact that no U.S. officials, military or civilian, took any concrete actions to have the Chiang Kai-shek regime rescind this mass-naturalization announcement.
Recalling with even greater exasperation and resentment that on December 25, 1947, officials of the Chiang Kai-shek "Republic of China" regime established an entirely new code of laws for Taiwan, with the promulgation of the Republic of China Constitution.
Being aware that the establishment of such a new code of laws was a serious violation of the laws of war as recognized by the United States, in regard to handling occupied territory.
Deeply deploring the fact that no U.S. officials, military or civilian, took any concrete actions to have the Chiang Kai-shek regime rescind this act of promulgating an ROC Constitution.
Cognizant of the fact that according to customary international precedent and the post-war San Francisco Peace Treaty (SFPT), Taiwan was sovereign Japanese territory until Japan renounced all right, title, and claim in that treaty which came into force on April 28, 1952.
Concluding that when the Republic of China moved its central government to the city of Taipei in occupied Taiwan on December 12, 1949, it was moving outside of China's national territory and immediately became a government in exile.
Fully aware of the fact that the Allies concurred that the SFPT did not award the territorial sovereignty of Taiwan to China. Nor the Treaty of Taipei.,, See --
https://www.taiwanbasic.com/historical/scomment.htm and https://www.taiwanbasic.com/twmodhiae.htm
Recognizing the legal reality that in regard to the disposition of Taiwan territory in the post-1940s era, the SFPT is the highest ranking document of international law, and of U.S. law. Its specifications are neither superceded by 1979 Taiwan Relations Act nor by the Joint USA-PRC Communiques of 1972, 1979, or 1982.
Deeply disturbed by the fact that the SFPT clearly places both the Ryukyu Islands and Taiwan under the jurisdiction of a U.S. federal agency -- the United States Military Government.
In FM 27-10, military government is defined as .....
Deeply deploring the fact that no U.S. officials, military or civilian, took any concrete actions to enforce this Article of the SFPT, and place Taiwan under direct USMG administration. Thus amounting to a gross violation of the U.S. Constitution's "treaty clause " " and enforcement clause " "
Recognizing the legal reality that for the Ryukyu Island group, the SFPT specifies that "Japan will concur in any proposal of the United States to the United Nations to place [these areas] under its trusteeship system, with the United States as the sole administering authority."
Being aware of the fact that without elevation to the status of UN trusteeship, Taiwan remains as a quasi-trusteeship under USMG.
In proof of this fact, recognizing that (eight items ..... trusteeship practice).
Default nomenclature for territory under "military government" is occupied territory. Military occupation of Taiwan has not ended.
Military government continues until legally supplanted.
Recalling that according to the terms of the 1972 Shanghai Communique, President Nixon adopted a One China Policy, recognizing the People's Republic of China as the sole legitimate government of China. Further Communiques between the PRC and the USA were concluded in 1979 and 1982.
Recalling that the Taiwan Relations Act was passed by the US Congress in 1979 -- To help maintain peace, security, and stability in the Western Pacific and to promote the foreign policy of the United States by authorizing the continuation of commercial, cultural, and other relations between the people of the United States and the people on Taiwan, and for other purposes.
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說帖 Proposal for US government
Re: 說帖 Proposal for US government
We need to examine the authority for military conscription in Taiwan, which will be referenced to
local Constitution, establishment of local central government, government branches, government ministries, Ministry of National Defense, nationality of local populace,
U.S. Court determinations, U.S. Constitution, international law, U.S. law
Note: No legal basis in SFPT, Three Joint Comm., or TRA
Selective Service cases
In Reid v. Covert, 351 U.S. 487 (1956), Justice Black in a plurality opinion of the US Supreme Court asserted that wherever the United States acts it must do so only "in accordance with all the limitation imposed by the Constitution . . . . Constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home."
local Constitution, establishment of local central government, government branches, government ministries, Ministry of National Defense, nationality of local populace,
U.S. Court determinations, U.S. Constitution, international law, U.S. law
Note: No legal basis in SFPT, Three Joint Comm., or TRA
Selective Service cases
In Reid v. Covert, 351 U.S. 487 (1956), Justice Black in a plurality opinion of the US Supreme Court asserted that wherever the United States acts it must do so only "in accordance with all the limitation imposed by the Constitution . . . . Constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home."
Re: 說帖 Proposal for US government
Noting that at the 1787 Constitutional Convention in Philadelphia
REFERENCES
=== Reference: RASUL et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al. 542 U.S. 466 (2004) ===
. . . all of the territories Blackstone lists as dominions, are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on....
(Notes: The delegates to the 1787 Constitutional Convention in Philadelphia were all intimately familiar with English law, and indeed Blackstone's Commentaries on the Laws of England are a standard reference for investigating the intent and scope of applicability of many clauses in the United States Constitution. The above reference is to Book 1, Sec. 4, pages 93 - 106. For further analysis see Tucker, St. George, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, 5 volumes, Philadelphia, 1803.)
=== Reference: UNITED STATES V. STATE OF CALIFORNIA , 332 U.S. 19 (1947) ===
To speak of 'dominion' carries precisely those overtones in the law which relate to property and not to political authority. Dominion, from the Roman concept dominium, was concerned with property and ownership, [332 U.S. 19 , 44] as against imperium, which related to political sovereignty.
Fundamental Rights
https://www.civil-taiwan.org/brights-over.htm
Fundamental Rights and Common Defense
https://www.google.com/search?q=fundame ... e&ie=UTF-8
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From the second half of the eighteenth century onwards, international law came to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in his opus The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars (circa 1820).
Sir William Blackstone, in his treatise Commentaries on the Laws of England, originally published 1765 - 1769 by the Clarendon Press at Oxford, also gave emphasis to this legal formulation.
**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.
** Indeed, as early as 1828, US Supreme Court Chief Justice Marshall offered this penetrating analysis in the famous American Insurance Company case:
"The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."
** And more explicitly, in the 1872 case of United States v. Huckabee, the Court speaking through Mr. Justice Clifford, said:
"Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined .... "
Invasion and annexation later ceased to be recognized by international law and were no longer accepted as a means of territorial acquisition. The Convention respecting the Laws and Customs of War on Land (Hague IV, 1907) contained explicit provisions concerning the protection of civilians and their property in occupied territories.
-- * -- * --* -- * --
REFERENCES
=== Reference: RASUL et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al. 542 U.S. 466 (2004) ===
. . . all of the territories Blackstone lists as dominions, are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on....
(Notes: The delegates to the 1787 Constitutional Convention in Philadelphia were all intimately familiar with English law, and indeed Blackstone's Commentaries on the Laws of England are a standard reference for investigating the intent and scope of applicability of many clauses in the United States Constitution. The above reference is to Book 1, Sec. 4, pages 93 - 106. For further analysis see Tucker, St. George, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, 5 volumes, Philadelphia, 1803.)
=== Reference: UNITED STATES V. STATE OF CALIFORNIA , 332 U.S. 19 (1947) ===
To speak of 'dominion' carries precisely those overtones in the law which relate to property and not to political authority. Dominion, from the Roman concept dominium, was concerned with property and ownership, [332 U.S. 19 , 44] as against imperium, which related to political sovereignty.
Fundamental Rights
https://www.civil-taiwan.org/brights-over.htm
Fundamental Rights and Common Defense
https://www.google.com/search?q=fundame ... e&ie=UTF-8
-- * -- * --* -- * --
From the second half of the eighteenth century onwards, international law came to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in his opus The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars (circa 1820).
Sir William Blackstone, in his treatise Commentaries on the Laws of England, originally published 1765 - 1769 by the Clarendon Press at Oxford, also gave emphasis to this legal formulation.
**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.
** Indeed, as early as 1828, US Supreme Court Chief Justice Marshall offered this penetrating analysis in the famous American Insurance Company case:
"The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."
** And more explicitly, in the 1872 case of United States v. Huckabee, the Court speaking through Mr. Justice Clifford, said:
"Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined .... "
Invasion and annexation later ceased to be recognized by international law and were no longer accepted as a means of territorial acquisition. The Convention respecting the Laws and Customs of War on Land (Hague IV, 1907) contained explicit provisions concerning the protection of civilians and their property in occupied territories.
-- * -- * --* -- * --
Re: 說帖 Proposal for US government
"Intention" is not relevant here in the 21st century