Notes on Lin Appellate Brief – Revised Draft 3
June 17, 2008
Taipei, Taiwan (GMT +08:00)
General Comments
1-a) When the word “mainland” is used to refer to the 48 contiguous states of the
USA, it should be specifically specified as “U.S. mainland” in order to avoid
confusion with mainland China.
I believe this correction to “U.S. mainland” is needed in three places (or more).
1-b) References to a US Army Manual in this brief all appear to come from FM 27-10,
hence the correct abbreviation should be “FM 27-10” (and not just “US Army
Manual” or something similar …. ) after all there are other US Army Manuals which
we may want to refer to in the future
1-c) “Taiwan” is frequently misused in the international press and many scholarly
reports as being synonymous with “ROC,” but in fact the two are separate entities.
This needs to be clarified in several places in the present brief.
1-d) Many scholarly reports and research papers continually stress that Taiwan
meets all relevant criteria under the Montevideo Convention for “statehood.” We
believe that a clarification is in order, but obviously not much space is available in the
present brief. Hence we suggest adding some comments to paragraph 71 which will
clarify the true nature of the “territory,” “population,” etc.
1-e) Again in this brief we find no mention of United States Military Government
jurisdiction over Taiwan.
We suggest adding this (at the minimum) to paragraph
62.
1-f) You mention in para. 67 that “Pursuant to Article 73, the United States has placed
the final decision on Taiwan’s status in the hands of the Taiwanese themselves … ”
but wouldn’t “has placed” be better rendered as “is obligated to place”
??
After all, the Three Joint PRC-USA Communiques were completed without any input
from the native Taiwanese people at all !!!
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Possible grammar or wording problems, suggestions, etc.
2-a) In para. 3 “General Chiang” is mentioned, but perhaps shouldn’t this be
standardized to “Generalissimo Chiang”
??
2-b) In para. 26 there is mention of a Kung Kuan Airfield …. however in the Footnote
#60 this is spelled differently. Is this a problem?
(I regret that we have no data
here on this Airfield or its historical status …… )
2-c) In para. 66 you use the term “treaty regime” ….. but we are not exactly sure what
this means.
2-d) In para. 73 you have “Appellants do not seek to enjoy the full panoply of United
States law.” Would this wording be better as “Appellants do not seek to enjoy the
full panoply of rights under United States law.”
(You may decide which wording
is best.)
2-e) In para. 11, you have “In an August 1950 addressed …. “ and we believe this
should be “In an August 1950 letter addressed …. “
Notes on sources and sourcing
3-a) Para. 3 is asking for sources regarding the Oct. 25, 1945 surrender ceremonies
and US assistance, etc.
We would suggest:
See generally Chapters 3 and 4 of Formosa Betrayed, by George H. Kerr,
Houghton Mifflin Co., Boston, Mass. (1965), republished Taiwan Publishing Co.,
Irvine, Calif. (1992).
available at http://www.romanization.com/books/formosabetrayed/index.html
Suggested additional clarifications which could be added.
4-a) In para. 5, you mention permanent allegiance.
define the concept of “permanent” –
Wouldn’t it be a good idea to
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See INA 101 (a) (31): The term "permanent" means a relationship of continuing or
lasting nature, as distinguished from temporary, but a relationship may be
permanent even though it is one that may be dissolved eventually at the instance
either of the United States or of the individual, in accordance with law.
4-b) In para. 7 you mention the Philippine Independence Act of 1934. This could be
footnoted –
The Philippine Independence Act (Tydings-McDuffie Act) available at
http://www.taiwanbasic.com/treaties/tydingsmcduffie.htm
4-c) In para. 11, might you want to mention President Truman’s additional statement
of June 27, 1950?? It mentions Formosa.
http://encarta.msn.com/sidebar_761594739/Truman's_Korean_War_Statement.html
4-d) In para. 16 you have “for a Japanese cession of Taiwan to China” but we find
this somewhat confusing. We suggest better phrasing as “for a Japanese cession of
Taiwan directly to China”
4-e) Also at the end of para. 16, you might add a sentence or two --SFPT Article 25 specifically provided that the Treaty did "not confer any rights,
titles or benefits on any State which [was] not an Allied Power [as defined in
Article 23(a),]" subject to certain narrow exceptions set forth in Article 21.
Accordingly, China, a non-party, did not receive "any right, titles or benefits" under
the SFPT except as specifically provided in Article 21. Specifically, China, a
non-party, was not entitled to any benefits under Article 2(b) dealing with the
territory of Taiwan.
4-f) In para. 19, we suggest “simultaneously established” be changed to
“simultaneously confirmed”
( … after all the status of “principal occupying Power” arises from the fact of
conquest of the areas under the geographic scope of the treaty. )
4-g) At the end of para. 20, we suggest you add our Eisenhower quote –
President Dwight D. Eisenhower wrote a book called Mandate for Change
1953-1956. That was published by Doubleday & Co., New York, in 1963. On
page 461, President Eisenhower clearly states: "The Japanese peace treaty of 1951
ended Japanese sovereignty over the islands but did not formally cede them to
‘China,’ either Communist or Nationalist."
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4-h) In para. 35 you appear looking for information on the offshore islands incident(s).
This might be a good reference –
http://www.state.gov/r/pa/ho/time/lw/88751.htm
4-i) In para. 36 regarding settlement of the Taiwan question by the Chinese
themselves. Well, at present the native Taiwanese regard the “Chinese” as spoken of
here as the Chiang Kai-shek regime and his followers who came to Taiwan in the
1945 to early 1950s period ……
In the past ten or fifteen years there has been a
growing sense of Taiwan national identity as distinct from “Chinese identity” …..
Maybe you could add this footnote
A report published in the Asian Wall Street Journal on March 1, 2004, said a poll conducted by
National Chengchi University in June 2003 showed that 41.5 percent of respondents identified
only as Taiwanese, up from 17.3 percent when the university conducted its first such poll 11 years
earlier.
See summary at
http://www.taipeitimes.com/News/taiwan/archives/2004/03/02/2003100824
4-j) At the end of para. 37, we believe you should add the data from the CRS report of
July 2007 –
Office/Agency: Congressional Research Service
title: China/Taiwan: Evolution of the "One China" Policy
date: July 9, 2007
[ In the Summary at the beginning of that report the following points were made -- ]
quote:
(1) The United States did not explicitly state the sovereign status of Taiwan in the three
US-PRC Joint Communiques of 1972, 1979, and 1982.
(2) The United States "acknowledged" the "One China" position of both sides of the
Taiwan Strait.
(3) US policy has not recognized the PRC's sovereignty over Taiwan;
(4) US policy has not recognized Taiwan as a sovereign country; and
(5) US policy has considered Taiwan's status as undetermined.
(source: CRS Report for Congress, July 9, 2007 -- China/Taiwan: Evolution of the "One
China" Policy)
4-k) In para. 38, we believe your usage of the term “Taiwan” should be changed to
“ROC on Taiwan”
4-l) In para. 42,
you have “more States than does Taiwan currently.” Should be
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changed to ““more States than does the ROC on Taiwan currently.”
(… after all, diplomatic relations are conducted in the name of the ROC, not in the
name of Taiwan)
4-m) After para. 46, we believe you should add Dennis Wilder’s remarks.
Office/Agency: National Security Council
title: An Issue Undecided
date: August 30, 2007
quote: "Taiwan, or the Republic of China, is not at this point a state in the
international community. The position of the United States government is that the
ROC -- Republic of China -- is an issue undecided, and it has been left undecided, as
you know, for many, many years."
(source: Comments by Dennis Wilder, National Security Council (NSC) Senior
Director for Asian Affairs available at
http://www.whitehouse.gov/news/releases/2007/08/20070830-2.html)
4-n) In para. 47 you state that we applied on multiple occasions. However, our
official statement is that the group of native Taiwanese applicants organized by Dr.
Roger Lin issued the Declaration of the Taiwan Status and proceeded to AIT Taipei to
apply on March 29, 2006. See http://www.taiwanadvice.com/declare.htm
We had about 60 or so people who were the lead group, but many more persons with
their application materials were waiting nearby.
4-o) The ICCPR is mentioned in para. 40 and 81.
Might it be significant to note that the Universal Declaration of Human Rights
(December 10, 1948) contains the following provisions:
Article 13.
(2) Everyone has the right to leave any country, including his own, and to return
to his country.
Article 15.
(1) Everyone has the right to a nationality.
4-p) We suggest adding a clause to para. 62 to explain the jurisdiction of
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USMG –
Article 4(b) of the treaty explains the applicability of the Article 23(a) provision by
stating that -Japan recognizes the validity of dispositions of property of Japan and
Japanese nationals made by or pursuant to directives of the United States
Military Government in any of the areas referred to in Articles 2 and 3.
(emphasis added)
4-q) Obviously we are very close to our 14,000 word limit. But, at the current end of
para. 69 (or some other appropriate place) we wonder if it is suitable to briefly note
that -There are additional arguments under relevant Supreme Court cases dealing with
conquest, dominion, and military occupation issues which can also be advanced to
show that the United States exercises de jure sovereignty over Taiwan in its
position as “principal occupying Power.”
4-r) At the end of para. 70, might it be appropriate to note the exception that –
Under the current ROC Nationality Law in effect in Taiwan however, while those
persons who are deemed to have ROC nationality since birth may obtain additional
foreign nationalities, U.S. citizens and other foreigners (of “non-Chinese ancestry”)
who apply for naturalization in the non-sovereign ROC must first produce proof of
formal renunciation of previous citizenship.
4-s) In para. 71 you have “The United States sensibly put these refugee
officials to work erecting an administration for the island.” We would hope to
change this to something a bit more drastic, such as –
The United States put these refugee officials to work erecting an administration for
the island, while unfortunately overlooking the facts that the announcements of (1)
“Taiwan Retrocession Day” on Oct. 25, 1945, (2) the mass naturalization of native
Taiwanese persons as “ROC citizens” on Jan. 12, 1946, (3) and the implementation of
mandatory military conscription policies over Taiwanese males in the early 1950s
were all serious violations of the customary laws of warfare for dealing with occupied
territory. Such customary laws had been codified in the Hague Conventions of 1907
and later in the Geneva Conventions of 1949.
4-t) In para. 72 you have “This happy condition does, however, give democratic
legitimacy to the United States’ longstanding policy of allowing the Taiwanese
freely to choose their final status themselves.”
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In the eyes of the Taiwanese people however, the ROC is a foreign
regime which has next to no international legal legitimacy!!! In
order for your logic to work, it appears that you need to add this
sentence –
The next step would be for the Taiwanese people to organize their own civil
government.
4-u) In para. 73 you also mention the Taiwanese people getting better or more
comprehensive treatment from AIT. However, such a “proposal” or “desire” does
not appear to correspond with the range of activities which AIT is entitled to
undertake according to the provisions of the TRA. Hence, might it be better to note
that for an occupied territory such as Taiwan the normal procedure under US law
would be to establish a US High Commission ……….. and the local people would
then be able to be treated properly under such a framework.
4-v) In para. 75 you compare the situation of Taiwan to the Philippines from (more
exactly) April 11, 1899 to July 4, 1946. However, some might say that the
comparison is more closely done to the period of April 11, 1899, to July 4, 1901 ……
(See my chart http://www.taiwankey.net/dc/milgovchart1.htm ) This is because
Taiwan does not yet have a “civil government” recognized by the United States.
(Indeed, under US law the ROC has never been given the status of recognized civil
government for Taiwan ….. ) The Philippines had no civil government (recognized
by the USA) before July 4, 1901, so that is the point which could be made.
Might
you mention this “logic” in an additional footnote or something ……….. ??
4-w) “Among these are the rights to life, liberty, and property.” Shouldn’t “due
process of law” be added ??
Then, as regards “cruel and unusual punishment” ….
can you mention the fact that since the early 1950s Taiwanese males have been forced
to serve in rebel Chinese (ROC) military forces without any legal basis whatsovever??
Additional Footnote problems
5-a) In footnote 96, the two URLs needed are from Ch. 6 and Ch. 5 of FM 27-10
http://www.globalsecurity.org/military/library/policy/army/fm/27-10/Ch6.htm#p381
http://www.globalsecurity.org/military/library/policy/army/fm/27-10/Ch5.htm#p274
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5-b) Also, in footnote 96, United States Army Manual (“Manual”) should be
changed to United States Army Manual (“FM 27-10”)
5-c) In footnote 136 you could add –
For Army regulations regarding Puppet Governments see FM 27-10, para. 366 available at
http://www.globalsecurity.org/military/library/policy/army/fm/27-10/Ch6.htm#p366
5-d) In footnote 126, the site of US Army Manual FM 27-10 is
http://www.globalsecurity.org/military/library/policy/army/fm/27-10/index.html
5-e) In footnote 140 your wording “See the Army Manual” should be changed to “See
FM 27-10”
Additionally, the URL should refer to para. 355 and not 365, so it should be
http://www.globalsecurity.org/military/library/policy/army/fm/27-10/Ch6.htm#p355
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