"Sovereign,” like “love,” means anything you want it to mean; it’s a word in the dictionary between “sober” and “sozzled.” - Robert A. Heinlein Who owns Taiwan? China certainly wants to annex Taiwan, but has no legal title to it. For most of us Taiwan belongs to the 23 million people who live on it, but there is another group of people with a most interesting legal theory. Essentially, they argue that since Taiwan was occupied jointly by the US and the Chiang Kai-shek government, under the authority of the wartime allies, Taiwan is a US trust territory, an unincorporated territory of the United States.
This theory of Taiwan's sovereignty is being promoted by Dr. Roger Lin, and by longtime expat Richard Hartzell, who has been in Taiwan so long I think he should probably have squatter's rights to the island. Hartzell has written at length on it in several commentaries on in Taipei Times. Lin and Hartzell have some essays in PPT format here. Hartzell's position is laid out in a long editorials in the Taipei Times here:
By late 1949, with a civil war raging in China, additional military forces and government officials of the ROC fled to Taiwan. As of early 1950, the ROC government in Taiwan was "wearing two hats" -- it was a subordinate occupying power (beginning Oct. 25, 1945), exercising effective territorial control over Taiwan, and at the same time it was a government-in-exile -- beginning in December 1949.
Decisions regarding the transfer of Taiwan's sovereignty were to be made in the post-war peace treaty. Hence, in early 1950 the ROC was clearly not in possession of the sovereignty of Taiwan. Statements made in the 1943 Cairo Declaration and 1945 Potsdam Proclamation were "expressions of intent" made before the close of the war, but the final determination of Taiwan's status would be made under the San Francisco Peace Treaty (SFPT) signed Sept. 8, 1951.
On April 28, 1952, the SFPT came into force. Japan renounced sovereignty of Taiwan in Article 2b. However, no receiving country was specified. This is a "limbo cession." The US is confirmed as the principal occupying power in Article 23.
Final disposition of Taiwan was to be according to the directives of the USMG, as per Article 4b: Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to the directives of the USMG in any of the areas referred to in Articles 2 and 3.
In English, the word property includes "the right of ownership or title." With regard to territorial cessions, this includes "sovereignty."
As we know, the ROC was the legal government of China as referred to in World War II. However, the ROC failed to maintain its legal position when it fled to Taiwan in late 1949. As of late April 1952, with the coming into force of the SFPT, the ROC was not the legally recognized government of Taiwan; it was merely a subordinate occupying power and government in exile.
The fallout from Hartzell's argument is potent: all Taiwanese should hold US passports. The reader is invited to imagine that Chinese reaction should the US government actually advocate the position that it has territorial rights over Taiwan.
Recently, Dr. Lin sued in US court to get the US government to recognize its alleged obligations. A reader notified me that on March 23 the court denied the government's motion to dismiss.
UPDATE: I got corrected in the comment below:
"A reader notified me that on March 23 the court denied the government's motion to dismiss."
This is very misleading. The government filed a motion to dismiss their complaint pointing out numerous legal problems with their complaint. Instead of disputing the government's arguments, they ask the government to give them a second chance by filing an amended complaint. The government agreed to their request.
In essence, they agree their complaint is defective, so the court said there was no point in deciding the motion if the government is giving them a second chance. The court said the motion is moot.
This is not a victory as Messrs. Lin and Hartzell try to claim, but simply a second chance to see if they can state a legally recognized claim. My guess is that the governmet will file another motion to dismiss their amended complaint.
Next time, they may not be so lucky. Don't be misled. It is all spin with no substance. This is no victory.
[Taiwan] [Taiwan Independence] [democracy] [China]
"A reader notified me that on March 23 the court denied the government's motion to dismiss."
ReplyDeleteThis is very misleading. The government filed a motion to dismiss their complaint pointing out numerous legal problems with their complaint. Instead of disputing the government's arguments, they ask the government to give them a second chance by filing an amended complaint. The government agreed to their request.
In essence, they agree their complaint is defective, so the court said there was no point in deciding the motion if the government is giving them a second chance. The court said the motion is moot.
This is not a victory as Messrs. Lin and Hartzell try to claim, but simply a second chance to see if they can state a legally recognized claim. My guess is that the governmet will file another motion to dismiss their amended complaint.
Next time, they may not be so lucky. Don't be misled. It is all spin with no substance. This is no victory.
The judge dismissed the U.S.'s motion to dismiss as "moot" as Lin and Hartzell voluntarily agreed to amend their complaint following reviewing the U.S' motion to dismiss. In this case, the motion to dismiss became "moot" because the motion to dismiss was targeted against the original complaint and Lin and Hartzell filed an amended complaint which superseded the original complaint. The first paragraph of the amended complaint so states. Specifically, the opening paragraph states:
ReplyDelete"Pursuant to Federal Rule of Civil Procedure 15(a) and with the written consent of Defendant United States of America ("Defendant"), Plaintiffs ... hereby file this Amended Complaint for Declaratory Judgment and allege as follows:" [emphasis added]
Thus, the judge's order was not based on the merits. Any publicity that tries to portray this order as any type of victory is false and misleading. Lin and Hartzell are trying to take adavantage of unsuspecting Taiwan nationals lack of understanding of the U.S. legal system and poor English language skills by spinning this order as a victory in order to raise funds. Undoubtedly, the U.S. will file another motion to dismiss as the amended complaint did not cure the defects in the original complaint. And since Lin and Hartzell voluntarily agreed to amend their complaint, after having been provided insight into the deficiencies of their original complaint via the U.S.'s motion to dismiss, and failed to do so, the judge is more likely to dismiss the complaint without leave to amend - which will terminate the case.
Examination of the details of the territorial cessions of Louisiana, in 1803, Florida in 1821, California in 1848, Alaska in 1867, Guam and Puerto Rico in 1899, the Virgin Islands in 1917, etc. all show that the territorial sovereignty of an area is held by a "government" it is not held by the "people." (In Taiwan, many so-called scholars constantly try to confuse the doctrines of "territorial sovereignty" and "popular sovereignty", so it is necessary to make this clarification at the outset.)
ReplyDeleteHence, according to what our Alliance members have studied of the history, after April 1952 it is clear that Japan is not holding the territorial sovereignty of Taiwan, and neither is the ROC nor the PRC. Conversely, there is a viable argument under international law and US constitutional law (as presented by Roger Lin in his courtcase) to say that the territorial sovereignty (i.e. "territorial title") to Taiwan is being held by the United States Military Government (USMG).
In light of all the other factors, it appears that Roger Lin's assertion is the only one that makes sense.
We have had some email contact with Dr. Lin, and he provided this URL for further reference -- http://www.taiwankey.net/dc/milgovex.htm
"there is a viable argument under international law and US constitutional law (as presented by Roger Lin in his courtcase) to say that the territorial sovereignty (i.e. "territorial title") to Taiwan is being held by the United States Military Government (USMG)."
ReplyDeleteMessrs. Lin and Hartzell are adamant that their view of international and US constitutional law is correct. Others disagree with them.
Soon, a US federal court will decide whose view is correct. Meanwhile, as anonymous (the second one) says: "Any publicity that tries to portray this order as any type of victory is false and misleading."
Let's stop the spin and await the court decision on this matter.
As expected, the US Government filed a motion to dismiss the amended complaint on the grounds that there is no legal basis for the claims. This time, the government asks the court not to give them any more chances to amend or change their complaint if they fail.
ReplyDeleteNow, Messrs. Lin and Hartell must come up with real legal reasons to support their claim that the US owns Taiwan. If they fail, they can appeal, but ultimately, they must come up with legal reasons to justify their claims. If not, it's the end of the line for them.