Even before taking the Oath of Office, Barack Obama has actively solicited ideas and suggestions not only from the American public, but indeed from the world community. This is praiseworthy. Since many native Taiwanese people feel that their human rights have deteriorated under the Presidency of Ma Ying-jeou, of course they have posted many articles on the internet and emailed Mr. Obama's transition team urging the new President to do more to support Taiwan.

In previous news releases and policy statements, Mr. Obama's advisors and new Cabinet members have all stated that they will follow the existing framework for the USA - Taiwan - China (PRC) relationship, which includes three major components: (1) the One China Policy, (2) the Taiwan Relations Act, and (3) the Three Joint USA-PRC Communiques. Within this framework, the US Executive Branch has announced on many occasions that neither (a) Taiwan nor (b) the Republic of China are "states" in the international community.

Many native Taiwanese people object to the One China Policy of the US Executive Branch, and see this as one reason for their inability to obtain any sort of meaningful voice in the international community. Many forums and gatherings have been held in recent months to urge the United States to pay more attention to Taiwanese human rights issues. However, we believe that a comprehensive solution to Taiwan's human rights problems can only be achieved by going back to the international legal fundamentals. In this respect, the first item of importance is to fully clarify the exact "connection" between Taiwan and the United States.


The USA-Taiwan relationship and the lost treaty of San Francisco

Curiously enough, in the continuing debate on the proper scope of the USA-Taiwan relationship, there is one document that has somehow completely disappeared from the discussion. It has been relegated to the status of a "lost treaty," even though it remains in force up to the present day.

Taiwan had originally been ceded to Japan in 1895. Japanese forces in Taiwan surrendered on Oct. 25, 1945. The surrender ceremonies themselves have significance in that they mark the beginning of the military occupation of Taiwan, and indeed the Republic of China (ROC) military troops conducted these ceremonies on behalf of the Allies. Nevertheless the ensuing military occupation of Taiwan was conducted on behalf of the "conqueror" and "principal occupying power." (The fact that the ROC moved its central government to Taiwan in December 1949 provides additional complications.)

In the San Francisco Peace Treaty (SFPT), Japan renounced all right, title and claim to the island group. Under international law, Japan could no longer claim sovereignty over Taiwan after the peace treaty came into effect on April 28, 1952.

What were the arrangements for the final disposition of Taiwan? Unfortunately, most civilian scholars say that there is no answer to that question. The SFPT did not specifically state to which country the sovereignty of Taiwan was being transferred. Indeed, the US State Dept. informed the Senate in 1970 that "As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution."

However, a consideration of (1) military jurisdiction under the US Constitution and (2) the internationally recognized laws of war provides a clear answer. If the peace treaty did not specify any "receiving country" for the Taiwan cession, we have to look back to fundamentals and clarify an additional point: "Who is the principal occupying power?"

* According to the precedent firmly established in the Mexican American War cessions and the Spanish American War cessions, the military government of the (principal) occupying power will have jurisdiction over all territorial cessions in the peace treaty until a fully recognized "civil government" for each area is established. More specifically, it may be stated that (for a territorial cession in a peace treaty after war): The military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until "legally supplanted" by a recognized civil government.

Any claims of territorial sovereignty over Taiwan have to be based on the possession of "territorial title." Clearly, the ROC was not awarded that title in the SFPT. However the United States is confirmed as the principal occupying power in Article 23(a), and United States Military Government (USMG) jurisdiction over Taiwan is confirmed by Article 4(b). Importantly, the Senate-ratified SFPT is part of the "supreme law of the land," (Reference: US Constitution, Art. VI) and its specifications are binding on all US government departments!!

* In order to understand military jurisdiction under the SFPT more clearly, it is instructive to consider the situation of the Article 3 territories, the Ryukyu island group. These areas were under the jurisdiction of the USMG until that jurisdiction was ended by a formal agreement between the United States and Japan. According to the historical record, the end of USMG jurisdiction occurred on May 15, 1972, (supplanted by Japanese civil government) and this was fully announced by the President of the United States and Prime Minister of Japan. Contrastingly, from 1952 to today, there has been no announcement of the end of USMG jurisdiction over Taiwan.

With this new knowledge at our disposal, many questions arise. Under US law and the Senate-ratified SFPT, how can ROC passports be considered as valid travel documents for entry into the US fifty states and five pre-existing insular areas? More to the point, how can the ROC's "Ministry of Foreign Affairs" be considered as the competent authority to issue passports to native Taiwanese persons? (Reference: 8 USC 1101 (a)(30)). Taiwan was not awarded to the ROC in the SFPT, hence there is no legal basis for considering native Taiwanese people to be ROC citizens! Also, we know that under the Taiwan Relations Act, the nomenclature of the "Republic of China" is not recognized after Jan. 1, 1979!!

After examining the historical record and the content of the SFPT, it can be held that the ROC is merely exercising delegated administrative authority for the military occupation of Taiwan. (Moreover, there has been no change in this status to date!) As of mid-December 1949 the ROC has already become a government in exile! As for Taiwan, according to the SFPT (signed by 48 countries) its international legal position is clearly "overseas territory under the jurisdiction of the USA."


Constitutional Rights in Overseas Territories under US Jurisdiction

Recently there have been several court cases regarding the human rights of detainees held in the Naval Base in Guantanamo Bay, Cuba. Both the US and Cuban governments agree that Cuba has "ultimate sovereignty" over Guantanamo, but at present the US military exercises all power and jurisdiction over the Naval Base. The US Supreme Court has held that such foreign-nationality detainees do indeed have some US Constitutional rights.

In a similar line of reasoning, the native Taiwanese people should be entitled to certain fundamental rights under the US Constitution, based on the fact that when Japan renounced all right, title, and claim to Taiwan in the 1952 SFPT, without naming a "receiving country," the United States was designated as the "principal occupying power."

Of course, most important to the Taiwanese people is the fact that if neither (a) Taiwan nor (b) the Republic of China are "states" in the international community, then "Republic of China" is not an internationally recognized nationality, and Taiwanese people are essentially stateless. (Not surprisingly, the US District Court, District of Columbia, issued a statement to this effect in a ruling on March 18, 2008.) Among other fundamental rights, the liberty of the Fifth Amendment includes the right to travel, and the right to travel includes the right to obtain some form of US passport.

A group of native Taiwanese are currently pursuing this line of legal argument in the US Court of Appeals. For more information on this case, and further background details, see http://www.civil-taiwan.org/press.htm     email: rgroup.tw@gmail.com

We believe that that a comprehensive solution to Taiwan's human rights problems can only be achieved when Taiwan's status as an overseas territory of the USA is fully recognized. We look forward to President Obama's early attention to this matter.