Who Owns Taiwan?

A remarkable law case earlier this year in the United States was recently dismissed by the Supreme Court. I thought that I would draw my one demented reader's attention to it. In doing so, I should note for the equivalent people who sometimes read in East Asia that I mean no offence to anyone in doing so.

The case concerned the formal status of Taiwan. Japanese claims to the island were renounced in the treaty of San Francisco. The United States, in World War Two, essentially drove them out. The remains of the Kuo MinTang--Chiang Kia Shek's Nationalist Chinese--claimed the island as part of the Republic of China, and then moved there when Mao established the People's Republic. The ROC developed a military presence via which it governed after 1945, at one point suppressing an uprising in 1947 with some 30,000 casualties.

The US, in theory, moved out, though in 1955 it established a unified military command with Taiwan which was maintained until 1979. The United States has a very heavy presence in surrounding waters, and in clandestine bases. At one point during the Indo-China Wars, had as many as ten thousand CIA advisers on the island. In 2003, the US still had a large Signals Intelligence base there.

The official US position on Taiwan is that it is part of China, that mainland China is China, but that the United States has no position on who is sovereign over both. However, it has tended to put itself between the ROC and the PRC militarily at different times.

Hence the lawsuit. Roger Lin and another, who will be important in a moment, recently argued before the US Court of Appeal that, since there was no ROC government on Taiwan when the US liberated it from the Japanese, the USA owned Taiwan. It was absurd, they suggested, that a US military government should be seen as acting on behalf of a government that did not then exist and which was not based there, any more than the US occupation of Germany was really done in the name of the Weimar Republic.

Yet the United States does say that anyone in a possession of the United States is entitled to national, but not citizenship, rights. Taiwan, occupied by the US and liberated by it, could be seen as a possession of it; if its independence is still guaranteed by the US, the court could have taken a line on it.

That argument makes some sense, as nutty points that ought to be left to moots often do. It led to a new chain of legal logic, however.

Since there is a category of non-citizen US national which was last recognised before 1957 in the Phillippines, as a person under the control or authority of the US, and since this was recently upheld in the recent Boumedienne case involving the Bush administration, it followed that Taiwanese people could in theory apply for US passports. So Lin and others did. They were turned down.

That was sufficient to get the case into a Federal Court of Appeal. I was very interested in the final judgment there, which refused to have anything to do with the case on the basis that the court should not interfere in American foreign policy regardless of any rights involved, especially if the foreign policy was in appearance deliberately ambiguous. Lin took the case to the Supreme Court, which last month affirmed that it would have nothing to do with reopening it.

What if the Court had? The US economy in the nineteen nineties became one in which the standard of living that Americans in theory enjoyed was based on three premises. One was cheap oil; another was cheap credit; and a third was cheap immigrant labour. Together, these more or less constituted the pillars of globalism. In the twenty-first century, this false miracle of productivity and endogenous technological growth began to slow.

It was kept from complete collapse by a huge and uncounted reserve army of immigrants working below the minimum wages, and Americans were kept from confronting the reality of what happened to pensions and to companies guaranteeing pensions, and to asset values, after economic decline by the hidden contributions of those immigrants. In the meantime, the US used its apparent new wealth to fight wars rather than rebuild itself.

Now that game is up and the swelling US unemployment figures should be supplemented by all those in the country illegally without gainful employment, or for that matter all those who were part of the US economy and under its direction and control now unemployed.

What if Iraqis, Afghanis, Taiwanese, Cubanos, Mexicanos, and various Latinos had actually been made American citizens last month by the extension of a Taiwan doctrine? It's a mind game, but could have happened. They would have had access to US national rights by virtue of being in a possession of the US or simply by being in the US.

I can see a number of previous supreme courts having accepted the argument; it is a measure of how (properly) conservative the court has become that this one dismissed it as the equivalent of a mind game.

A mind game to me, anyway. The situation for Roger Lin is more serious. His lawsuit attracted very unfavourable publicity back in Taiwan. He is potentially up for the death penalty for treason, and many of his former supporters are backing away.

I think ultimately that Taiwan is going to have to accomodate with China because business investors and the situation suggest that this is all that it can do, but I would not be surprised at some future occupation that advanced the assimilation. After the failed Phillippine colonial experiment, and after Hawaii, could the US ever really have added another Asian state?


Taiwan Defense said…
Some of the points raised in Martin's commentary are incorrect.

(1) "The official US position on Taiwan is that it is part of China, that mainland China is China, ... " Comments: This is incorrect. The United States has never recognized the forcible incorporation of Taiwan into Chinese territory.

See -- http://www.taiwanbasic.com/nstatus/nstatus.htm#taiwanc

(2) The ROC developed a military presence via which it governed after 1945, .... The US, in theory, moved out, though in 1955 it established a unified military command with Taiwan which was maintained until 1979. Comments: I don't think you have researched the subject of territorial cessions in peace treaties after war. The post-WWII peace treaty actually states that the United States Military Government has disposition rights over Taiwan. Hence, it is not correct to say that the United States moved out. It is more correct to note that the Republic of China is merely acting as an "agent" for the USA in the military occupation of Taiwan.

See -- http://www.taiwanadvice.com/prcutai3.htm
Martin Meenagh said…
(1) That's not what I wrote, or indeed contradictory to it; The US recognises China as an entity but distinguishes between the People's republic and the Republic

(2) The British parliament never recognised the independence of the United States, formally, and Acts written for the Americans are in theory still in force. One would have to be mad to believe that this legal fact bears any relationship to truth; and, similarly, the idea that the USA had disposition rights between 1945 and 1949, or 1954, and retains them still, is the sort of delusional thinking that lawyers sometimes work themselves into.

(3) I think that you are on safer ground when you say that the relationship between the United States and Taiwan's government has hitherto been extremely close.

It is, however, much in the interest of the United States to keep things ambiguous. This was recognised as part of policy by the relevant Court of Appeal and the Supreme Court, which is why they treated this lawsuit with slightly more seriousness than last year's 'hadron collider' lawsuit--and why it interested me.

Very best wishes to you, and I am grateful for the comment and for the links.