Resolving the Political Status of Taiwan
through the US Court system

Technically speaking, it is not possible to deal with "political issues" through the judiciary. However, the courts can look at civil rights issues, and once these are carefully delineated, it may be much easier to understand the parameters of all related political questions.

In order to obtain better civil rights protections for the Taiwanese people, we need to determine the true status of Taiwan under international law. The United States, and indeed many world nations, have traditionally maintained a policy of strategic ambiguity on this issue, however we can discover the true facts of the matter by looking at the historical and legal record.

Taiwan, including the Pescadores, was ceded by China (then under the Qing Dynasty) to Japan in 1895. With regard to the beginning of the Pacific war in December 1941, the following facts are important:
  • Contrary to the claims of some historians, Taiwan was not part of the China Theatre during the war.
  • All military attacks against Taiwan during the war were conducted by United States military forces.
  • Taiwan was de jure part of Japanese territory up until late April 1952.
After the events of August 1945, the Japanese Emperor announced his acceptance of the terms of an unconditional surrender. Japanese troops in Taiwan surrendered on Oct. 25, 1945, thus marking the beginning of the belligerent occupation of "Formosa and the Pescadores." Although the surrender ceremonies in Taiwan were held on behalf of the Allies, the ensuing military occupation on Taiwan was conducted on behalf of the "conqueror" and "principal occupying power" -- the United States of America.

After losing the Chinese civil war in 1949, the ROC government fled in exile to Taiwan, an area it was holding under military occupation on behalf of the principal occupying power. The People's Republic of China (PRC) was established on the mainland on October 1, 1949, and hence became the legal successor government to the ROC in the mainland areas.

In the April 28, 1952, San Francisco Peace Treaty, Japan renounced all right, title, and claim to Formosa and the Pescadores. However, no receiving country was named for this territorial cession. Hence, Taiwan has remained under the jurisdiction of the principal occupying power as an interim status condition.

Based on this simple legal and historical analysis, and with reference to the decisions in the Insular Cases of the US Supreme Court, the Taiwanese people, by virtue of living in a territory subject to the jurisdiction of the United States, should be entitled to enjoy fundamental rights under US laws, including the US Constitution. It should therefore be possible to file a Complaint for Declaratory Relief in the appropriate US Court to obtain these rights.

In this way, the controversy regarding the political status of Taiwan can be resolved as well.

A Complaint was filed in late October 2006. The United States government has until late mid-January 2007 to reply. Full details on the content of this Complaint, along with relevant historical and legal background information, are given below.


   filed Oct. 24, 2006, in Washington, D.C.

Summary: Complaint for Declaratory Relief (.htm)



1. The One China Policy and Taiwan's Identity Crisis

2. ABCD Chart   of territorial cession

3. The Territorial Cessions of Puerto Rico, the Philippines, Guam, Cuba, & Taiwan

4. Are Taiwanese Persons ROC Citizens? -- In Search of a Legal Basis for ROC Citizenship

5. Background Information and Statement of Purpose

6. Letters and Commentary

7. Taiwanese should seek US Constitutional rights

8. Statement of Historical and Legal Evidence for US Nationality Status provided in accompaniment with Application for US nationality non-citizen PASSPORT by native Taiwanese person born in Taiwan

9. US Insular Law Considerations on the Origin and Classification of "Aliens"

10. Understanding the San Francisco Peace Treaty's Disposition of Formosa and the Pescadores (pdf)   Harvard Asia Quarterly, Fall 2004

11. Three Insular Cases and the Taiwan status

12. Important Quotations from Downes v. Bidwell

13. On the Subjects of "Conquest" and "Dominion"

14. Unincorporated Territory under the United States Military Government

15. The Law of Occupation   Background Information

16. FM 27-10  The Law of Land Warfare    Chapter 6: OCCUPATION   para. 366

17. Territorial Cession after War and the End of Military Government

18. Our inquiry to the US government -- What are you doing?

19. Does Taiwan Meet the Criteria to Qualify as an "Overseas Territory of the United States"?

20. Why Isn't the US Flag Flying Over Taiwan?

21. A new recognition of the United States of America

Taiwan Nation Party
Taipei, Taiwan
Taiwan Defense Alliance
Taichung, Taiwan

For more information, contact:
Chinese & Japanese language spokesperson:
Dr. Roger C. S. Lin
Gaoxiong, Taiwan

Roger C. S. Lin's Chinese website

English language spokesperson:
Richard W. Hartzell
Taipei, Taiwan