Court Asked to Settle the Question of Taiwan
Plaintiffs Argue that Taiwan is a U.S. Territory
Nov 28, 2008
Dr. Roger C.S. Lin and others recently filed an appeal in the United States Court of Appeals for the District of Columbia Circuit that is intended to settle the question of the legal status of Taiwan and its relationship with the United States. The plaintiffs are from Taiwan and had applied for U.S. passports by claiming that the U.S. is the de-facto occupying power of Taiwan and they are “non-citizen nationals” of the U.S. who enjoy certain rights under the U.S. Constitution. Their passport applications were denied, and the United States District Court for the District of Columbia had refused to hear their case because it consisted of a “Political Question” and involved U.S. foreign policy.
Taiwan
There was a civil war in the Republic of China shortly after the end of WWII. Chinese communist forces took control from the officially recognized government in 1949, and the president, General Chiang Kai-shek, along with his supporters fled to Taiwan to reorganize and plan their return to the mainland. One and a half million Chinese citizens later left the mainland for Taiwan after Mao Zedong and the communists took complete control of the country. In 1971 Chiang Kai-shek and his government lost control of the Chinese United Nations seat, and later in 1979 the U.S. withdrew its recognition of the former Republic of China. The status of Taiwan and its inhabitants has remained in a political and legal limbo ever since.
The appellants explain their position from the following historical perspective. After the end of WWII, the Republic of China was invested with authority over Taiwan as an agent for the Allied Powers. This arrangement was created by the United States in General Order No. 1 of Sept. 2, 1945. The appellants contend that this authority on behalf of the Allied Powers remains in effect today because General Order No. 1 was never formally repealed. Nothing in the post-war San Francisco Peace Treaty or in any other treaty executed by or between the Republic of China and the other Allied Powers has altered this administrative arrangement. They further argue that this means the U.S. is and remains the “principal occupying power” of Taiwan. Therefore, as inhabitants of a U.S. occupied territory, Taiwanese people enjoy certain rights under the U.S. constitution as “non-citizen nationals”.
United States Policy
According to the U.S. State Department, the United States is committed to a “One China” policy based on three “Joint Statements” and the Taiwan Relations Act. The U.S. does not support independence for Taiwan or unilateral moves that would change the status quo as it is currently defined. China is asked not to use force or the threat of the use of force against Taiwan. On the other hand, Taiwan is asked to be restrained in managing all aspects of their relations with China. Both sides are expected not to issue statements or engage in actions that would unilaterally alter Taiwan’s status. The U.S. also engages in the sale of defensive military equipment to Taiwan in accordance with the Taiwan Relations Act; and retains the right to act against any use of force or other form of coercion against Taiwan.
Political Question
Some observers consider the legal argument being presented by the appellants as fundamentally flawed and ill conceived. Nonetheless, they believe that if the case is heard in a U.S. court, regardless of the final ruling, the procedure would include the formulation of a legal definition for the territorial status of Taiwan and the citizenship status of its inhabitants. The political implications could include a restructuring of U.S. involvement in the relationship between China and Taiwan; and a change to the “One China” policy as it currently exists. They suggest that this is the real motive behind pursuing this case rather than an actual desire for U.S. passports and recognition of Taiwan as a U.S. territory.
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