2002/04/16
Jeff Geer
Taiwan Nationality & Customary Laws
Not so "Chinese"...
Being falsely labeled as having "Chinese
nationality" is a racial
discrimination
of their treaty rights under the SFPT.
Under the customary laws of warfare, any cession placed into an interim status
of a peace treaty has been given an "interim nationality" until the final
determination of their treaty status. That is the "Taiwan nationality" and
their allegiance is to the island of Taiwan. The Taiwan Question is about the
final status of SFPT, not the interim status. As long as it is highly consistent
with the Shanghai Communiques and Taiwan Relations Act, customary law is binding
upon the US government and Taiwan as long as the interim status of SFPT
persists.
The American interests in Formosa and the customary
laws of war is historic and few may realize just how extensive it has
been. Originally, Commodore Perry indicated an enduring American interest
in the Formosan island during the 1800's and prophesized that one
day, the American pioneers living there would petition for the admittance
into the Union like the "Republic of Hawaii". In 1895, John Dulles
was hired by the Qing Chinese to negotiate the surrender of Formosa to Japan in
accordance with the customary laws of warfare. He actually wrote the text of the
Treaty of Shimonoseki. In accordance with customary law, the "interim
nationality" of Taiwan status existed for two years before the Taiwan
nationality became Japanese subjects in Article 5:
http://www.taiwandocuments.org/shimonoseki01.htm
Article 5
The inhabitants of the territories
ceded to Japan who wish to take up their residence outside the ceded districts
shall be at liberty to sell their real property and retire. For this purpose a
period of two years from the date of the exchange of ratifications of the
present Act shall be granted. At the expiration of that period those of the
inhabitants who shall not have left such territories shall, at the option of
Japan, deemed to be Japanese subjects.
Later on October 25, 1945, Lt. George Kerr created
the Allied joint-occupation of Formosa upon the Japanese surrender.
While the ROC "annexed" Taiwan in the Chinese version, the official English
version has a "joint-occupation" clause which Kerr inserted in order to bring
the Japanese surrender into full compliance with the customary laws of
war. When the 'occupation' of Taiwan ended on April 28, 1952, Taiwan
cession was placed into the interim status of the Laws of War. The Taiwan
Question is not yet finalized because of the role of John Dulles Foster whom
actually wrote the SFPT. Again, it was the American interests
in Taiwan cession coming under the customary laws of warfare which created
the Taiwan nationality during the interim period.
One might call this a "grand fathering" of Taiwan
nationality as John Foster Dulles was the grandson of John Foster.
In 1972, the Taiwan nationality again emerged as
Commander-in-Chief Nixon had the Japanese abrogate the bilateral Treaty of
Taipei under the continuing supreme authority of SFPT:
http://www.taiwandocuments.org/taipei01.htm
Article 10
For the purposes of the
present Treaty, nationals of the Republic of China shall be deemed to include
all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the
Pescadores) and their descendents who are of the Chinese nationality in
accordance with the laws and regulations which have been or may hereafter be
enforced by the Republic of China in Taiwan (Formosa) and Penghu (the
Pescadores); and juridical persons of the Republic of China shall be deemed to
include all those registered under the laws and regulations which have been or
may hereafter be enforced by the Republic of China in Taiwan (Formosa) and
Penghu (the Pescadores).
While the Shanghai Communiques have recognized the
PRC as the lawful government of China, it has not returned the island of Taiwan.
Under SFPT, the ROC are the military governors of Taiwan or
"administering authorities". Such was authorized by the USA in SFPT by
Para. 354 of FM 27-10 Laws of Land Warfare:
http://www.adtdl.army.mil/cgi-bin/atdl.dll/fm/27-10/toc.htm
354. Friendly Territory Subject to Civil Affairs Administration
Distinguished
Civil affairs administration is that form of administration established in
friendly territory whereby a foreign government pursuant to an agreement,
expressed or implied, with the government of the area concerned, may exercise
certain authority normally the function of the local government.
Such administration is often established in areas which are freed from enemy
occupation. It is normally required when the government of the area concerned is
unable or unwilling to assume full responsibility for its administration.
Territory subject to civil affairs administration is not considered to be
occupied.
If circumstances have precluded the conclusion of a civil affairs agreement
with the lawful government of allied territory recovered from enemy occupation
or of other territory liberated from the enemy, military government may be
established in the area as a provisional and interim measure (see par.
12b and c).
A civil affairs agreement should, however, be concluded with the lawful
government at the earliest possible opportunity.
The ROC on Taiwan is the interim and provisional
"military government" of SFPT. The PRC is the lawful government of China.
The Taiwan Question is between them under the Shanghai Communiques, but the
"interim status" of SFPT is between the "Taiwan nationals" and the USA under the
customary laws of war.
This is not a political union but effectively SFPT
interim status is an insular affair of the USA, not an internal affair of China.
Under the SFPT, there is the legal existence of Taiwan nationality during this
indefinite interim.
That is because of the continuing American interests
in Formosan cessions under the customary laws of war since 1895. In 1898,
the peace treaty issues of "undefined" civil rights of interim status were
also determined according to customary laws of war:
http://www.yale.edu/lawweb/avalon/diplomacy/spain/sp1898.htm#art9
"The civil rights and political status of the native inhabitants of the
territories hereby ceded to the United States shall be determined by the
Congress."
The interim status issue of "Post-Occupational Cuba" was determined in the
Insular Cases of 1900, if legally under the supreme command of the US Military
Government:
http://www.taipeitimes.com/news/2001/02/28/story/0000075546
http://www.taiwandocuments.org/tra01.htm#3301
- (c) Human rights
Nothing contained
in this chapter shall contravene the interest of the United States in human
rights, especially with respect to the human rights of all the approximately
eighteen million inhabitants of Taiwan. The preservation and enhancement of the
human rights of all the people on Taiwan are hereby reaffirmed as objectives of
the United States.
For 100 years, the American interests in Taiwan cessions have
been the legal guardians of Taiwan nationality and that interest is now
fully intertwined with the customary laws of warfare. The "human
rights" of TRA are actually about the "undefined" civil rights of an interim
status under SFPT which even the ROC itself could never have successfully
contravened under the Laws of War. The Congress lawfully reserved this
SFPT issue of "civil rights" to itself during the interim status of
Taiwan nationality. The binding fact is these basic rights are judicially
defined by the US Supreme Court for the last 100 years. Think of the legal
footprints in sands of time...you were truly never alone in those darkest
hours. The American interest in Taiwan has been enduring. There is a
legitimate Taiwan nationality during the interim status of SFPT and it is
intertwined with the civil rights issues of customary law. The framework
of TRA and Shanghai Communiques are highly consistent with customary law and
SFPT interim status.
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