2001/8/15 WED　Jeffrey Geer
TSEA by the Backdoor

The following links are broad outlines of a serious immigration status 
related to Taiwan under the San Francisco Peace Treaty.  Under the Taiwan 
Relations Act, Taiwan is treated as a foreign state equivalent under the 
Immigration and Nationality Act.  Since TRA expressly forbids diplomatic 
relations with Taiwan, these equivalents of foreign state are 
"self-governing dominion, mandate territories, or trust territories" as 
specifically defined under under the INA. Taiwan is not a country under the 
Montevideo Convention but it does have a "dejure" status of 'defacto 
independence'.

With this in mind, the Insular Cases of 1900 provide for 'treaty rights' of 
ceded territories (and inhabitants) coming under the administrative 
authority of the US Military Government.  These are basic constitutional 
rights which are inalienable rights of "life, liberty, and property" (5th 
Amendment) and basic "equal protections" under the 14th Amendment (jus 
soli).  Basically under treaty cession, Taiwan is a "foreign territory with 
its sovereignty held in the trust of the US government for benefit of the 
island inhabitants until an establishment of stable government upon their 
voluntary action." (Neely v. Hankel)


This will explain in more detail in the links but the Taiwanese and others 
are looking at this immigration law matter as a potential loss of US 
Nationality due to the "One China" policy.  Taiwan nationals are not 
imperial subjects of Beijing under the SFPT and TRA. British common law is 
the basis of interpreting the US Constitution and the issues of "alligience 
and protection" are the defining characteristics of determining US 
Nationality (non-citizen) status.  A peace treaty creates an involuntary 
allegiance of the island inhabitants to the new sovereign and the military 
protections of Taiwanese nationals by the US Commander-in-Chief under the 
TRA are indisputable.  Two previous bilateral treaties on this Taiwan issue 
were terminated in 1978/79. They were the US-ROC Mutual Defense Treaty and 
the bilateral ROC-Japan Treaty of Peace. The TRA became the new defense 
authority over Taiwan, and given the termination of the bilateral ROC-Japan 
peace treaty, the multilateral SFPT becomes the defaulting status of Taiwan 
cession under International Law. Article 4 places the finalization of status 
for ceded areas in Article 2 (Formosa) to be under the US Military 
Government. Japan is obligated to recognize this fact under the terms of 
their surrender.  Because the TRA is a domestic law protecting Taiwan and 
defining its insular relationship with the USA under SFPT, the US 
Constitution becomes supreme law of the land along with the SFPT as the law 
of nations.