Chapter 11 – A Correct Determination Regarding the Nationality and Allegiance of Native Taiwanese People

Chapter 11 – A Correct Determination Regarding the Nationality and Allegiance of Native Taiwanese People

PART 1:  NATIONALITY AND ALLEGIANCE

Nationality may be defined as “the status of belonging to a particular nation, whether by birth, origin, or naturalization.”  A related concept is allegiance, which may be defined as “the obligation of support and loyalty to one’s nation or sovereign.”

Nationality: Although native Taiwanese people are currently classified as citizens of the Republic of China (ROC), and hold passports and identification documents of the ROC, it can be argued that there is no legal basis for such a classification. 

Obviously, the first point of reference in making such an argument is to say that the 1952 San Francisco Peace Treaty (SFPT), the 1979 Taiwan Relations Act (TRA), and the 1996 US Executive Order 13014 have not recognized the ROC’s Ministry of Foreign Affairs as having the legal authority to issue passports to native Taiwanese persons in the area of Formosa and the Pescadores (aka “Taiwan”). 

The United States recognized the ROC as the de-jure sovereign of “China” up through Dec. 31, 1978, however there are no US or international legal documents, or US policy statements, which have ever recognized either (1) the forcible incorporation of Taiwan into ROC national territory, or (2) the ROC as being the de-jure sovereign of Taiwan.  In fact, a 1959 D.C. Circuit court case specifically quoted US Dept. of State officials as denying that the ROC exercised sovereignty over Taiwan.  (See Addendum.)

Looking at the historical record in Taiwan, although there were some proclamations made in the Fall of 1945, the most commonly quoted reference for the “legal basis” of native Taiwanese persons as having ROC nationality is a January 12, 1946, order issued by the ROC military authorities. However, that order was never ratified by the Legislative Yuan, nor made into a law.

Importantly, as “belligerent occupation” of Taiwan began on October 25, 1945, with the surrender of Japanese troops, and only ended with the coming into force of the San Francisco Peace Treaty (SFPT) on April 28, 1952, such an order is prohibited. More specifically, the imposition of mass-naturalization procedures over the civilian population in occupied Taiwan territory is a violation of international law — the customary laws of warfare.

Indeed, in the March 18, 2008, District Court decision in Roger Lin et al. v. USA, the court held that the native Taiwanese plaintiffs “have essentially been persons without a state for almost 60 years.”

Note: It is easily observed that the government departments of the ROC in Taiwan have the printing presses, paper manufacturing facilities, photography equipment, and other machinery necessary to physically produce ROC passports.  However, the authors feel that the US State Dept. determination under INA 101(a)(30) that the ROC is a “competent authority” to issue passports to native Taiwanese persons is absurd.  As outlined above, neither the SFPT, TRA, nor any Executive Orders issued by the US Commander in Chief offer any possible legal rationale whereby it can be established that the ROC has any such passport issuing authority. 

Allegiance: In regard to allegiance, the previously discussed Chart of “Notable Historical Events in the Recent History of Taiwan and the ROC” in Chapter 2 should be studied carefully.   Legally speaking, none of the historical events listed on this chart have resulted in the native Taiwanese people owing allegiance to the ROC. 

Therefore, the questions arise as to how to make a correct determination of the nationality and allegiance of native Taiwanese people.

As a starting point, it is informative to study the issue of allegiance from the viewpoint of US law and international law.  Unfortunately, the US INA is silent as to the conditions or means by which one comes to “owe permanent allegiance” to the USA.   This INA omission was recognized in Fernandez v. Keisler, 502 F.3d 337, 348 (4th Cir. 2007) and Dragenice v. Gonzales, 470 F.3d 183, 187 (4th Cir. 2006). 

However, several decisions of the US Supreme Court do provide some guidance in this area.  The following quotation is from Fleming v. Page, 50 US 603 (1850):

The duty of allegiance is reciprocal to the duty of protection. When, therefore, a nation is unable to protect a portion of its territory from the superior force of an enemy, it loses its claim to the allegiance of those whom it fails to protect, and the conquered inhabitants pass under a temporary allegiance to the conqueror, and are bound by such laws, and such only, as he may choose to impose. The sovereignty of the nation which is thus unable to protect its territory is displaced, and that of the successful conqueror is substituted in its stead.

The jurisdiction of the conqueror is complete. He may change the form of government and the laws at his pleasure, and may exercise every attribute of sovereignty.

The above discussion of temporary allegiance in Fleming v. Page is relevant to Taiwan, because all military attacks against Taiwan in the WWII period were conducted by US military forces.  The United States is the “conqueror.”

Moreover, the argument can easily be advanced that it is possible to make a direct transition from the “temporary allegiance” spoken of in occupied territories to the “permanent allegiance” as spoken of in the INA.

The Permanent Allegiance of Native Taiwanese Persons

An analysis of the “permanent allegiance” of native Taiwanese persons must begin with a discussion of the customary laws of warfare.  Upon the surrender of Japanese troops, Taiwan’s international legal position is “independent customs territory under USMG on Japanese soil,” and the local populace passes under a “temporary allegiance” to the conqueror, who in the post-Napoleonic era will be the principal occupying power.

If calculated from the coming into effect of the SFPT in 1952 to the present day, the native Taiwanese persons have already owed allegiance to the United States for over fifty years. Clearly this relationship meets the dictionary definition of “permanent” which is simply “continuing or enduring without fundamental or marked change.”

In a similar fashion, the INA merely defines “permanent” as a relationship of continuing or lasting nature.”  See INA 101 (a) (31):

The term “permanent” means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.

Clearly, native Taiwanese persons living in Taiwan have “permanent ties” to Taiwan, as evidenced by payment of taxes, ownership of property, and the presence of family. These persons have a permanent dwelling place (or “domicile”) in Taiwan to which they, when absent, intend to return.

Based on the above INA definitions, native Taiwanese persons do qualify as owing permanent allegiance to the United States.

In conclusion, regardless of how one evaluates the complications of the period of belligerent occupation beginning Oct. 25, 1945, it is 100% clear that upon the coming into force of the SFPT on April 28, 1952, and up to the present day, the allegiance of native Taiwanese persons is to the United States of America.  Hence, it is the US Dept. of State which must serve as the “competent authority” for issuing ID documentation to native Taiwanese persons. 

It is recommended that the Dept. of State should first recognize a “Taiwan Civil Government” (TCG) in Taipei, and then coordinate with this organization to issue “Taiwan Cession” passports to native Taiwanese persons.  Taiwan is occupied territory of the USA, and these native Taiwanese persons would be correctly classified as “Island Citizens of the Taiwan Cession.”

In Taiwan, USMG is the protecting power.  Hence, an alternative explanation of the legal basis for the issuance of Taiwan Cession passports is given by Article 4 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Aug. 12, 1949), which defines “protected persons” –

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
 

PART 2:  THE NATIONALITY & ALLEGIANCE OF NATIVE PEOPLE IN TERRITORY ACQUIRED UNDER THE PRINCIPLE OF CONQUEST

1. In Gonzales v. Williams, 192 US 1 (1904), the Supreme Court confirmed its earlier finding that: “. . . the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided … ” (Boyd v. Nebraska ex rel. Thayer, 143 US 135 (1892)).

2. In US v. Wong Kim Ark, 169 US 649 (1898), it was held that: “To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, … It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.”

Liberty, Travel, and Passports

3. According to the precedent in Dorr v. United States, 195 US 138, 147 (1904), under the US Constitution there is the concept of “fundamental rights,” and these may be described as “inherent although unexpressed principles which are the basis of all free government . . . . ”

(A) In an authoritative 1997 report compiled by the United States General Accounting Office, it was stated that “These fundamental rights appear to correspond roughly to the ‘natural rights’ earlier described by Justice White in a concurring opinion in Downes v. Bidwell, 182 US 244 (1901). ”
(B) Passports and the right to travel are fundamental rights which are included in the “liberty” of the Fifth Amendment.

4. In Anglo-Saxon law the right to travel was emerging at least as early as the Magna Carta (June 15, 1215). Three human rights enumerated in the Constitution of 1787 included (1) Freedom of Debate, (2) Freedom of Movement, (3) Prohibition of Bills of Attainder, and show how deeply engrained in American history this freedom of movement is.

(A) The United States of America was granted independence from Great Britain based on the provisions of the Treaty of Paris, which came into force on Jan. 14, 1784.
(B) The present Constitution of the United States came into force on Mar. 4, 1789.

5. Freedom of movement across frontiers in either direction, and inside frontiers as well, is a part of the American heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in the American scheme of values. See Crandall v. Nevada, 6 Wall. 35, 44 (1868); Williams v. Fears, 179 US 270, 274 (1900); Edwards v. California, 314 US 160 (1941). “Our nation,” wrote Chafee, “has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” See Three Human Rights in the Constitution of 1787, by Zechariah Chafee, Jr., Univ. of Kansas Press, Lawrence, Kansas, 1956, p. 197.  

(A) In Bolling v. Sharpe, 347 US 497 (1948) at 499 -500, the Supreme Court stated that: “Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”

6. In 1856 Congress enacted what remains today as the basic US passport statute. Prior to that time various federal officials, state and local officials, and notaries public had undertaken to issue either certificates of citizenship or other documents in the nature of letters of introduction to foreign officials requesting treatment according to the usages of international law. By the Act of August 18, 1856, 11 Stat. 52, 60-61, 22 USC 211a, Congress put an end to those practices. This provision, as codified by the Act of July 3, 1926, 44 Stat., Part 2, 887, reads, “The Secretary of State may grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.”

(A) According to the precedent in Kent v. Dulles, 357 US 116 (1958), and subsequent INS-USCIS interpretations, the right to travel is a part of the “liberty” of which a citizen, or other person owing allegiance to the United States, cannot be deprived without due process of law under the Fifth Amendment.
(B) The difficulty is that while the power of the Dept. of State (DOS) over the issuance of passports is expressed in broad terms, it was apparently long exercised quite narrowly. The cases of refusal of passports generally fell into three categories.

* First, questions pertinent to the citizenship of the applicant and his/her allegiance to the United States had to be resolved by the Secretary of State, for the command of Congress was that “No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.” 32 Stat. 386, 22 USC 212.
* Second, was the question whether the applicant was participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States. See 3 Moore, Digest of International Law (1906), 512; 3 Hackworth, Digest of International Law (1942), 268; 2 Hyde, International Law (2nd rev. ed.), 401, as quoted in Kent v. Dulles, 357 US 116 (1958). 
* Third, was the question of significant delays in Executive Branch or Congressional authorization. 

7. Hence, the broad power of the Secretary of State under 22 USC 211a to issue passports, which has long been considered “discretionary,” has been construed generally to authorize the refusal (or non-issuance) of a passport only when

(i) the applicant is not a citizen, national, or other person owing allegiance to the United States, or
(ii) the applicant is/was engaging in criminal or unlawful conduct, or
(iii) relevant USMG and DOS inter-agency management of passport matters has been significantly delayed, and the US Congress has failed to take any remedial action.

8. Specifically, for areas under military jurisdiction after peace treaty cession, when coordination between USMG and DOS regarding the issuance of passports has been delayed for a significant period of time, and the US Congress has also failed to pass any legislation regarding civil rights and political status of the native inhabitants, the civil government of the territory concerned should be authorized to assume jurisdiction over passport issuance.

9. A “Taiwan Civil Government” should be recognized by the Dept. of State, and this organization should issue a preliminary draft of “Issuance Guidelines and Qualification Criteria for Taiwan Cession Passports.”  After approval by the Dept. of State, the TCG should be given full authority to issue Taiwan Cession passports on this basis.  

 

Addendum

Sheng v. Rogers  (D.C. Circuit, Oct. 6, 1959)

Subject: Legal Status of Taiwan

Quote

A Department of State Bulletin, Vol. XXXIX, No. 1017, dated December 22, 1958, which constitutes an official expression of the foreign policy of the United States, contains the following discussion of the problem in which we are interested (pp. 1005 and 1009):

‘Since the middle of the 17th century and up to 1895 Formosa was a part of the Chinese Empire. In 1895 under the Treaty of Shimonoseki China ceded Formosa to Japan. In the Cairo conference in November 1943 the United States, United Kingdom, and China declared it was their ‘purpose’ that Manchuria, Formosa, and the Pescadores ’shall be restored to the Republic of China’. Thereafter in August 1945 in the Potsdam conference the United States, United Kingdom, and China declared that ‘the terms of the Cairo Declaration shall be carried out.’ This Potsdam declaration was subsequently adhered to by the USSR On September 2, 1945, the Japanese Government, in the instrument of surrender, accepted the provisions of the declaration. The Supreme Allied Commander for the Allied Powers then issued Directive No. 1 under which the Japanese Imperial Headquarters issued General Order No. 1 requiring Japanese commanders in Formosa to surrender to Generalissimo Chiang Kai-shek of the Republic of China. Since September 1945 the United States and the other Allied Powers have accepted the exercise of Chinese authority over the island. In article 2 of the Japanese Peace Treaty, which entered into force April 28, 1952, Japan renounced all ‘right, title and claim’ to Formosa. Neither this agreement nor any other agreement thereafter has purported to transfer the sovereignty of Formosa to China.’

‘In giving the historical background of Formosa it has been pointed out that at Cairo the Allies stated it was their purpose to restore Formosa to Chinese sovereignty and at the end of the war the Republic of China received the surrender of Japanese forces in Formosa. It has also been pointed out that under the Japanese Peace Treaty Japan renounced all right, title, and claim to Formosa. However, neither in that treaty nor in any other treaty has there been any definitive cession to China of Formosa. The situation is, then, one where the Allied Powers still have to come to some agreement or treaty with respect to the status of Formosa.’ (Emphasis supplied.)

From the foregoing official pronouncements of the Department of State, it appears that the United States recognizes the Government of the Republic of China as the legal government of China; that the provisional capital of the Republic of China has been at Taipei, Taiwan (Formosa) since December 1949; that the Government of the Republic of China exercises authority over the island; that the sovereignty of Formosa has not been transferred to China; and that Formosa is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into. Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China. Expressions of the State Department are drawn with care and circumspection to refrain from such recognition.

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