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SPEAKING FREELY
Taiwanese should seek US Constitutional
rights
By Richard W Hartzell
Speaking Freely is an Asia Times Online feature that allows guest writers to have
their say.
Please click here if you are interested in
contributing.
TAIPEI - We can construct a simple model of modern Taiwan history which will
help us better understand the status quo as viewed by the United States
government.
We must begin at the close of World War II, after the dropping of atomic bombs
on Japan. There is the necessity of handling the surrender of Japanese troops
and the military occupation of each locale. Over such a broad geographic area,
it will be necessary to determine the "principal occupying power" to deal with
these issues. In General Order No 1 of September 2, 1945, General Douglas
Macarthur, whom in today's terminology we would call "leader of the coalition
forces", directed the military troops under his command to handle all related
details. A law of war analysis shows that Macarthur is acting in his position
as head of the United States Military Government (USMG), in issuing this
general order.
The representatives of Chiang Kai-shek (CKS) were directed to accept the
surrender of Japanese forces in "Formosa and the Pescadores" (hereinafter
referred to as "Taiwan"). When CKS' representatives finally did get to Taipei,
Taiwan, and accept the Japanese surrender, they immediately claimed that day of
October 25, 1945, as "Taiwan Retrocession Day", and stated that Taiwan was
returned to the Republic of China based on the Cairo Declaration, the Potsdam
Proclamation, and the terms of the Japanese surrender documents signed on the
USS Missouri.
Even though many scholars have argued about the legal validity of such actions
for decades, in fact no argument is necessary. According to the Hague
Conventions, and accompanying Hague Regulations of 1907, "territory is
considered occupied when it is actually placed under the authority of the
hostile army". This, along with the fact that "occupation does not transfer
sovereignty", are accepted principles of the law of war, and its subset: the
law of occupation.
Although the Chinese history books state that CKS' representatives came to
Taiwan on their own initiative, in fact they were exercising delegated
administrative authority for the occupation under USMG. According to the
fiduciary relationship established under the law of occupation, USMG holds the
sovereignty of the area in trust in its position as "principal occupying
power." October 25, 1945, clearly marks the beginning of the period of
belligerent occupation.
Post-World War II legal issues for Taiwan
In this type of scenario, after the surrender of Japanese troops in Taiwan, we
have several legal issues to deal with:
The determination of the "lawful government" of Taiwan;
The end of US military government in Taiwan;
The transfer of sovereignty to the "lawful government" of the area.
In the post-war peace treaty, we would normally expect to see explicit
provisions for the handling of the occupied territory. However, in the San
Francisco Peace Treaty (SFPT), which came into effect on April 28, 1952,
Article 2b only states: "Japan renounces all right, title and claim to Formosa
and the Pescadores." No specification was made about to which government these
areas were ceded.
Taiwan President Chen Shui-bian and his advisors today interpret this clause to
mean that the sovereignty of Taiwan has been returned to the Taiwanese people,
however, under the law of war such an analysis is incorrect. The cession of
territory is from "government" to "government". Hence, a more coherent analysis
of SFPT Article 2b would hold that the "lawful government" of Taiwan had not
yet been determined as of April, 1952. In such a situation, military occupation
continues, but we call this "friendly occupation", or more properly "the civil
affairs administration of a military government".
Since Taiwan was not ceded to the Republic of China in the SFPT, it remains
under the administrative authority of the principal occupying power, which is
the US, as per Article 23. This is further clarified by Article 4b, which
states: "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."
If the lawful government of Taiwan was undetermined as of April, 1952, when was
it determined? In over-viewing all relevant documentation, we find the Shanghai
Communique of 1972, which stated there is only one China, and the People's
Republic of China is the sole legitimate government of China. In that
communique, the US also reaffirmed its interest in a peaceful settlement of the
Taiwan question by the Chinese themselves.
Shanghai Communique leaves unification to be negotiated
The relevant clauses of this 1972 communique conveniently serve the purpose of
a civil affairs agreement under the law of occupation to arrange the transfer
of territory to the "lawful government" of the area. No timetable was
specified, hence the determination of the exact date for this expected
"unification" has been left up to negotiations between officials on both sides
of the Strait. Here in 2004, it is clear that the PRC officials would like to
see quicker action on this matter, while the Taiwanese officials would prefer
that any actions toward unification be put off further into the future.
At some point in the future, when the Taiwan and PRC officials do come to the
negotiating table, it can be expected that Taiwan will have to agree to the
"one country, two systems" model. When the two sides finally unify, the US
administrative authority over Taiwan will be supplanted, and the transfer of
Taiwan's sovereignty to the PRC (ie "the lawful government of the area") will
be completed with the agreement of the Taiwanese themselves. At that point the
US will offer its blessings.
By using law of war principles to construct this simple model of modern Taiwan
history, we can review various US actions over the past 50 years and we find
them in perfect agreement with this model's parameters. In addition to the
Shanghai Communique's specifications mentioned above, the diplomatic break with
the Republic of China (ROC) on Taiwan in late 1978, the promulgation of the
Taiwan Relations Act, President Reagan's Six Assurances, President Clinton's
Three Nos, and the current pronouncements of the Bush administration on the
Taiwan question all dovetail nicely.
The ROC on Taiwan currently has (a) permanent population, (b) defined
territory, (c) government, and (d) the capacity to enter into relations with
other states [international legal standards by which nationhood is adjudged],
yet it is not considered a "sovereign nation" by the United Nations. In other
words, the world community does not consider that the "sovereignty" of Taiwan
is held by the Taiwan governing authorities. Considering that the PRC does not
currently exercise any administrative authority over Taiwan, this model also
gives us an answer to the perplexing question of where Taiwan's sovereignty
currently is.
Are there are "two equal governments" on each side of the strait, as the
Taiwanese officials claim? Or is the ROC on Taiwan merely a
"government-in-exile"? What is the proper format for Taiwan to apply for
membership in the World Health Organization? Will Taiwan's bids to join the UN
be successful? We can evaluate all of these topics with this model (based on
law of war principles).
1952 treaty giving US authority over Taiwan still valid
In summary, under the terms of the San Francisco Peace Treaty of 1952, the US's
administrative authority over Taiwan is still active, even here in 21st
century. However, as of 1972, the US has placed Taiwan on a "flight path" for
eventual unification with the PRC. This defines the status quo from the US
perspective. Based on this realization, an evaluation of what the White House
or the State Department mean when they dissuade either Taiwan or the PRC to
undertake any "unilateral moves to change the status quo" is easy.
The PRC must hold to the preconditions of not using force or coercion, and
Taiwan should not deviate from the "flight path" which was previously
determined for it.
In the Insular Cases of the early 1900s, the US Supreme Court developed the
idea that, without any action by the Congress, "fundamental rights" under the
US Constitution are available in all areas under the jurisdiction of the US,
but that other rights apply only when extended to such areas by law. As
recently as 1990, in United States vs Verdugo-Urquidez, it was reaffirmed that,
"It is not open to us in light of the Insular Cases to endorse the view that
every constitutional provision applies wherever the United States Government
exercises its power."
Question: What would be the reaction of Washington if the Taiwanese, being
under US administrative authority during this period of interim status under
the law of occupation, demand their "fundamental rights" under the US
Constitution?
The US Constitution grants Fifth Amendment rights to life, liberty, property,
and due process that are certainly considered "fundamental". In addition, there
is the US Constitution's basic Article 1 stipulation that the US Congress will
provide for the "common defense". The Congress established the War Department
in 1789, and this was reorganized as the Department of Defense in 1949.
Afghanis and Iraqis who are held by US authorities know enough to ask for their
US Constitutional rights. When will the Taiwanese start asking for theirs?
Richard W Hartzell is a researcher into the laws of war, a columnist and
writer who has lived in Taipei for nearly 30 years and is fluent in Mandarin.
His interests include differing Chinese and Western cultural norms, the Chinese
language, the US-Taiwan-PRC legal relationship, military law, laws of
occupation, international treaty law, Chinese and international law,
territorial cession law, US insular law, US Constitutional law and US Supreme
Court cases. He can be reached at taiwanmidway@hotmail.com.
(Copyright 2004 Richard W Hartzell)
Speaking Freely is an Asia Times Online feature that allows guest writers to have
their say.
Please click here if you are interested in
contributing.
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