Supreme Commander for the Allied Powers General Order No. 1, Sept. 2, 1945, J. C. S. 1467/2



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--- Supreme Commander for the Allied Powers General Order No. 1, Sept. 2, 1945, J.C.S. 1467/2.
--- issued General Order No. 1 ordering the “senior Japanese commanders and all ground, sea, air and auxiliary forces within . . . Formosa” to “surrender to Generalissimo Chiang Kai-shek.”
delegation of US administrative authority and Grotius, put in intro before discussion of six FM 27-10 paragraphs
--- General Douglas MacArthur stated at a congressional hearing in May 1951, “legalistically Formosa is still a part of the Empire of Japan.”1
--- In the aftermath of the SFPT, the governments of the leading allies interpreted the SFPT to mean that no state acquired sovereignty over Taiwan and title to its territory. For example, United States Secretary of State John Foster Dulles told the Senate in December 1954, “[the] technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese peace treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese peace treaty, nor is it determined by the peace treaty which was concluded between the [ROC] and Japan.”2 Likewise, British Foreign Secretary Anthony Eden told the British House of Commons, “under the Peace Treaty of April, 1952, Japan formally renounced all right, title and claim to Formosa and the Pescadores; but again this did not operate as a transfer to Chinese sovereignty, whether to the [PRC] or to the [ROC]. Formosa and the Pescadores are therefore, in the view of Her Majesty’s Government, territory the de jure sovereignty over which is uncertain or undermined.”3 Similarly, in 1964, President Georges Pompidou (then premier) stated that “Formosa (Taiwan) was detached from Japan, but it was not attached to anyone” under the SFPT.4 Thus the leading allies were in consensus that China did not acquire sovereignty over Taiwan or title to its territory pursuant to the SFPT.
Most importantly, the United States does not recognize Taiwan as a state. Pursuant to the Taiwan Relations Act of 1979, which embodies the United States congressional policy towards Taiwan, the United States does not maintain inter-state relations with Taiwan.5 Instead, “the people of the United States” maintain “commercial, cultural, and other relations” with “the people of Taiwan.”6 Section 3301 of the Taiwan Relations Act reflects the United States’ position that “the future of Taiwan” is still not “determined.”7


  1. ---- In July 1982, the United States gave “Six Assurances” to the Taiwan authorities, including that the “United States would not alter the terms of the Taiwan Relations Act[,]” “would not alter its position about the sovereignty of Taiwan[,]” and “would not formally recognize Chinese sovereignty over Taiwan.”8

  2. On October 25, 2004, United States Secretary of State Colin Powell confirmed the United States’ continuing policy towards Taiwan. He stated, “Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy.”9

- - - Also discuss sovereignty held in trust - - -


--- i) The nature of occupied territory is discussed in Winthrop's opus, as quoted in Madsen v. Kinsella, 343 U.S. 341 (1952):

In speaking of the nature of military government, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (second edition, 1920 reprint), says on page 800: "Military government . . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist . . . .


--- i) However, the leaders of the Allies may have failed to consider military jurisdiction under the US Constitution. In the concurring opinion by Justices White, Shiras, and McKenna in Downes v. Bidwell, 182 U.S. 244 (1901), it was stated:

It cannot be denied that under the rule clearly settled in Neely v. Henkel, 180 U.S. 109 , ante, 302, 21 Sup. Ct. Rep. 302, the sovereignty of the United States may be extended over foreign territory to remain paramount until, in the discretion of the political department of the government of the United States, it be relinquished.

-- i) Regarding the nature of sovereignty held in trust, in the concurring opinion by Justices White, Shiras, and McKenna in Downes v. Bidwell, 182 U.S. 244 (1901), it was stated:

It cannot, it is submitted, be questioned that, under this provision of the treaty, as long as the occupation of the United States lasts, the benign sovereignty of the United States extends over and dominates the island of Cuba.... Considering the provisions of this treaty, and reviewing the pledges of this government extraneous to that instrument, by which the sovereignty of Cuba is to be held by the United States for the benefit of the people of Cuba and for their account, to be relinquished to them when the conditions justify its accomplishment, this court unanimously held in Neely v. Henkel, 180 U.S. 109, ante, 302, 21 Sup. Ct. Rep. 302, that Cuba was not incorporated into the United States, and was a foreign country.
-- ii) Regarding the nature of sovereignty held in trust, also see Military Government and Martial Law by William E. Birkhimer, 3rd edition (1914), Section 74 on page 49, which discusses the case of Neely v. Henkel, 180 U.S. 109 (1901) --

The relation of the United States to Cuba, resulting from the war of 1898, came up for review before the Supreme Court. An American who in Cuba was charged with crime had been arrested within one of the States of the Union, and it was held that he was subject to extradition. The court remarked that, as between the United States and all foreign nations, the former held Cuba as conquered territory; as between the United States and Cuba, the latter was held by military power in trust for the Cuban people, to be delivered over on the establishment of a stable government. It was a military occupation.


The reference to the content of the Treaty of Taipei herein given is not intended to place the issue of “diplomatic relations between other countries” before the Court. Rather, in reference to the SFPT, the Court need only take note of two considerations:

--- (1) Under Article 2(b) of the SFPT (effective April 28, 1952) Japan renounced “all right, title and claim to Formosa and the Pescadores.” Obviously, after this date Japan could no longer make any further disposition of these areas, and notably the Treaty of Taipei only came into effect on August 5, 1952. Moreover, (2) the Treaty of Taipei is a subsidiary treaty under the provisions of SFPT Article 26, and its provisions cannot exceed those of the SFPT.

51. While temporarily ignoring the complexities of the period of belligerent occupation from Oct. 25, 1945, to April 28, 1952, when Taiwan was still under de jure Japanese sovereignty, nevertheless from the point of view of military jurisdiction under the Constitution, it is clear that from April 28, 1952 to the present, according to the provisions of the SFPT, Taiwan has been an occupied territory of the United States, “the principal occupying Power.” Currently, Taiwan is an occupied territory of the United States, and Taiwan’s statehood status is disputed and uncertain. Neither the SFPT nor the Treaty of Taipei nor any other subsequent legal instruments changed the status of Taiwan.


possible additional footnotes for this paragraph (or perhaps some other place in the amended complaint):

i) The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." See Ex Parte Milligan, 71 U.S. 2 (1866).


ii) As of the coming into force of the SFPT, United States Military Government jurisdiction is indeed confirmed as being active over Taiwan as per the specifications of SFPT Article 4(b).

iii) “Military government continues until legally supplanted” is the CUSTOMARY NORM as stated in Birkhimer, p. 26.

--- iv) In comparison to the situation of the Ryukyu islands, which are an Article 3 territory in the SFPT, and over which United States Military Government jurisdiction ended by formal announcement on May 15, 1972, whereupon a fully functioning civil government for the Ryukyu islands under Japanese sovereignty was recognized by the United States, there has been no similar pronouncement of the end of USMG jurisdiction over Taiwan.

Under the Taiwan Relations Act, the nomenclature of “Republic of China” is not recognized after Jan. 1, 1979.

(1) the Republic of China nomenclature is not recognized as the legal name of “Taiwan.” The following US State Dept. and CIA references are notable:

Short-form name: Taiwan

Long-form name: (no long-form name)

excerpted from Independent States in the World

available at http://www.state.gov/s/inr/rls/4250.htm
Country name

conventional long form: none

conventional short form: Taiwan

excerpted from CIA World Factbook

available at https://www.cia.gov/cia/publications/factbook/geos/tw.html
The following might also be cited:
--- With no clear legal basis to include Taiwan in its definition of "national territory," and no international treaty references which can be found, the ROC is definitely not the competent authority to issue ID documentation (including ID cards, drivers' licenses, passports, etc.) of any kind to native Taiwanese persons. Such an interpretation must be recognized by all US government agencies under the terms of the SFPT. As defined in INA 101(a)(30) [see 8 USC 1101 (a)(30) ] the Republic of China's Ministry of Foreign Affairs cannot be construed as the competent authority for issuing passports native persons in the areas of Formosa and the Pescadores.
Also add chart about status of Taiwan under USMG jurisdiction

** eliminate Finally, an in-depth analysis of relevant historical and legal data will be presented in the form of a definitive “determination of nationality” for the Taiwanese people under international law and US constitutional law. **

Agreement of 1968

http://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/docs/19680405.T1E.html

June 26, 1968

Conclusion: Over 95% of all the supposed “contradictions” in the triangular relationship between the US, the ROC on Taiwan, and PRC in mainland China, can be explained by using the formulation provided above. Concisely stated, this formulation has the following parameters: Taiwan is occupied territory. The United States is the principal occupying power (which is “the occupying power” as spoken of in the Hague and Geneva Conventions). When the ROC fled to occupied Taiwan in late 1949, it became a government in exile, although continuing to exercise delegated administrative authority for the military occupation. Hence the ROC has “effective territorial control” over Taiwan, but not sovereignty. Since the ROC on Taiwan is a non-sovereign nation, the US Executive Branch does not support its applications to join the United Nations.

References:
Taiwan Relations Act, 22 U.S.C. §§ 3301-3316 (2006).
Immigration and Nationality Act, 8 U.S.C. § 1101-1778 (2006).
Notes:
Should put references of leading Allies (to the significance of Oct. 25, 1945 etc.) into main part of article.
Also put analysis from this webpage into main part of this article

http://www.taiwankey.net/dc/rcitizen6.htm



According to the precedent in Kent v. Dulles, 357 U.S. 116 (1958), the right to travel is a part of the "liberty" of which a citizen, or other person owing allegiance to the United States, cannot be deprived without due process of law under the Fifth Amendment. The right to travel includes the right to obtain a passport.


1 See Statement by General Douglas MacArthur, N.Y. Times, May 5, 1951, at A7; see also Y. Frank Chiang, One-China Policy and Taiwan, 28 Fordham Int’l L.J. 1, 16, n.72 (2004).


2 See Statement by Secretary John Foster Dulles, Dep’t St. Bull., Dec. 1954, at 896; see also Y. Frank Chiang, One-China Policy and Taiwan, 28 Fordham Int’l L.J. 1, 36, n.164 (Dec. 2004); Lung-chu Chen and W.M. Reisman, Who Owns Taiwan: A Search for International Title, 81 Yale L.J. 599, 644 (1972).


3 See Statement by Secretary Anthony Eden, 536 Parl. Deb., H.C., 5th ser., 1955, at 159; see also Y. Frank Chiang, One-China Policy and Taiwan, 28 Fordham Int’l L.J. 1, 36, n.167 (2004).


4 See Statement by President Georges Pompidou, N.Y. Times, Apr. 24, 1964, at 4, col. 4; see also Lung-chu Chen and W.M. Reisman, Who Owns Taiwan: A Search for International Title, 81 Yale L.J. 599, 645 (1972).


5 Taiwan Relations Act, 22 U.S.C. §§ 3301-3316 (2006).


6 Taiwan Relations Act, 22 U.S.C. § 3301 (2006).


7 Taiwan Relations Act, 22 U.S.C. § 3301 (2006).


8 The “Six Assurances to Taiwan,” available at http://www.taiwandocuments.org/assurances.htm.


9 See Statement by Secretary Colin Powell, available at http://usinfo.state.gov/eap/Archive/2004/Oct/26-277540.html.




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