Taiwan Status: From Grotius to WTO 台灣地位:從格勞秀斯到世貿組織

(註:Grotius 格勞秀斯為國際法之祖)

http://www.geocities.com/taiwanstatus/taiwanstatus

Forget the Alien Tort Claims Act! You have “undefined” civil rights found under the Taiwan Relations Act. This website breaks down these issues of the plenary powers doctrine for placing the key elements of TRA, Shanghai Communiqués, and the San Francisco Peace Treaty into one continuous movement of thought. You have “undefined” civil rights and its development spans over the last 100 years. These inalienable rights are real and should not be forsaken…the right of liberty means a TRA passport under SFPT ‘Taiwan nationality’.

(Kent v. Dulles, Gonzales v. Williams, Goldwater v. Carter)


The debate over the American policy on the Taiwan Question is complex, but it has a remarkable consistency for over 50 years. If one examines this consistency, then by the coalescent argumentation of factors, one finds a central thread. This website is a major synthesis of the San Francisco Peace Treaty, Shanghai Communiques, Taiwan Relations Act, and the Six Assurances. It is a closer examination of this Taiwan policy within the context of civil affairs administration, which is originated by the SFPT and Laws of War. The so-called “One China” policy of the Shanghai Communiques is a byproduct of the plenary powers for the conduct of foreign policy and civil affairs administration of any separate customs territory. However, the narrower foreign policy formulations are very incomplete without the comprehensive examination under the plenary powers doctrine. The Taiwan Question is undetermined at this time, and it is the goal of the civil affairs aspects of the One China policy to facilitate a peaceful and final political status. This is exactly how the Taiwan cession under SFPT administrative authority ultimately goes from undetermined status to being the separate customs territory in the WTO. How this WTO objective has been done is a very fascinating process of foreign policy and civil affairs administration. Such plenary powers of US Military Government and an exiled proxy will reveal how an undetermined cession of conquest, as codified by Hugo Grotius’ On Laws of War and Peace in 1625, comes to be the Chinese-Taipei of a WTO separate customs territory. When one finishes reading this website, the noted American policy pieces or framework will form a solid historical explanation of the last 50 years which really started in 1625. It is started even earlier with the basic civil rights of Magna Carta in 1215 and North American colonial charters in 1620. The plenary powers doctrine is the constitutional conduct of the foreign policy, laws of war, conquest of new territory, a governing of aboriginals, exclusions of aliens, naturalization of aliens, plus acquisitions of new territory and/or administration of any separate customs territory. The plenary powers doctrine has a very long history of basic civil rights on a collision course with a political question of One China. Which will prevail?

The flow chart will demonstrate the distinctions between administrative authority of belligerent occupation as martial law or military government. The application of any martial law under the US Constitution could mean the concurrent legal presence of belligerent occupation. However, such martial law would necessitate the presence of insurgents on metropolitan territory and must be recognized with the international law rights of belligerents. This form of martial law is unusual but was the legal case in the Civil War. In comparison with martial law, administrative authority by US Military Government (USMG) reveals the start of belligerent occupation for overseas territory. Any cession by conquest from belligerent occupation by USMG can be used for any colonial status of the Insular Cases of 1900. Under the legal principle of conquest, the acquisition of USMG dominion over a ceded territory is achievable under international public law. Classic colonialism originates in this fashion and ceded territory conquered by belligerent occupation can continue as formal colonial rule but under administrative authority of Imperialist Empires. Occupation, however, does not mean administrative authority will ultimately lead to colonial outcomes. Such is the official process of the taking of an overseas territory to become a colony in the classic sense of it. That noted administrative authority of the US Military Government experiencing any such cession by conquest is the constitutional birth of unincorporated territory. However, this judicial doctrine is also applicable to “undetermined” cessions by conquest that were also trust territories. Such was ceded but formal colonial possession was denied under conquest. Such situations required self-determination before any formal acquisition of territorial sovereignty despite the official presence of administrative authority over a trust territory. Administrative authority is a powerful legal concept surrounded by colonial mythology and confusion. Understand the nature of administrative authority and the applicability of a constitutional judicial doctrine called unincorporated territory to both the colonies and undetermined cessions, and you will fully understand the plenary powers doctrine for a Taiwan cession by conquest. Trust territories have their predecessors called mandated territories. Consider such along with the earlier American prototyping of non-colonial cessions derived of their 1898 Cuban experiment. It is best classified as “undetermined self-governing dominion” under the dominion of USMG.

Under laws of war, administrative authority is the divine right of kings to wage war and to govern the conquered territory. It is the combined civil powers and military powers for both belligerent occupation and colonial governing. The civil powers of administrative authority are the legislative, executive, and judicial powers as exercised by caveat of the Crown. The military powers are for “Commander-in-Chief”. Colonial practices have seen their legislative colonies evolve like British Legislative Councils for the Crown colonies. It is far more enlightened local power-sharing arrangements of legislative administrative authority by the Crown and its superior parliament after original conquest. Otherwise, any administrative authority is a monopoly of the constitutional processes of the conquering power for either belligerent occupation or colonial purposes. There is this noted elasticity of administrative authority like with legislative colonies, and there is also agency of it. That is administrative authority is transferable to proxies like rebels in the territory or to other federal agencies besides the military branch. This is very critical to understand, as it was Hugo Grotius whom first originated this international law of agency for “fiefdoms”. And from the feudalistic roots comes the supremacy of the Crown over these fiefdoms under administrative authority. If the US Military Government wears the Crown of international public law for the constitutional purposes of its administration authority over fiefdoms during belligerent occupation, then there is some very major significance to any status of principle occupational authority. There is a the legal subordination of any Allied troops, or its co-belligerents, when coming under the legal supreme command of the Crown for invasions and occupations under the Laws of War.

The most power country will have command over the troops of its supporting countries, or co-belligerents.

Flowchart of Administrative Authority


On October 25, 1945, there is the official establishment of belligerent occupation of Formosa as Japanese territory. [i] The territory was enemy territory in 1945, and thus a Japanese dependency. The island had been ceded in the 1895 Treaty of Shimonoseki.[ii]

The “theft” of Formosa was not a fraudulent transfer because cession by conquest was done in accordance with the Laws of War. The law-making treaties, or Laws of War, will govern the peace negotiations and drafting of peace treaties. John A. Foster on behalf of the Qing Chinese wrote the Treaty of Shimonoseki. The outright theft of Formosa is a legally questionable assertion in comparison with the Japanese proxy-occupation of Manchukuo and annexation of the Mandate Territories. The 1945 Japanese surrender of the Formosan territory to the ROC did not facilitate the return to China under the Laws of War. The San Francisco Peace Treaty that was drafted by John Foster Dulles does not recognize the Retrocession Day in 1945[iii]. Dulles was the grandson of John A. Foster. Both of these gentlemen are former American Secretaries of State and any facilitation of transfers of Formosa is not “theft” of the 1943 Cairo Declarations.[1] Instead, there is the use of the civil affairs administration by the SFPT to facilitate the return of Taiwan to China[iv]. For the USMG liberation of enemy territory of the Potsdam Agreement, the problem of history is which China?

Under the Laws of War, if either China can establish a claim of cession by conquest, then the Taiwan Question is finalized. Conquest means the acquisition of territory by force of arms and the finalization of this possession by peace treaty. In light of the peace treaties of 1895 and 1952, the resolution of the Taiwan Question is not resolved by Retrocession Day, 1945, or by the successor government argument under the 1978 Laws of Treaties on Succession. The invisible hand that still prevents the outright use of force to resolve the Taiwan Question is the US Military Government. The US Congress ratified the SFPT on April 28, 1952, as the principle occupational authority of Japan and her dependencies. On the Senate ratification, the SFPT also came into international legal effect. The Taiwan treaty status is undetermined for the governments of One China, so there is the legal civil affairs administration on an interim and provisional basis. The US Military Government of SFPT is still holding the sovereignty of Formosa during this indefinite period. Since a 1950 Truman Statement, the USA has not allowed the Taiwan Question to be determined by force.

Does the USA have any grand designs on Formosa? The Truman Statement of June 1950 is very clear on the Truman corollary for the ROC on Taiwan:

The attack upon Korea makes it plain beyond all doubt that communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war. It has defied the orders of the Security Council of the United Nations issued to preserve international peace and security. In these circumstances the occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to United States forces performing their lawful and necessary functions in that area.

Accordingly I have ordered the 7th Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. The 7th Fleet will see that this is done. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.

http://www.trumanlibrary.org/trumanpapers/pppus/1950/173.htm
http://www.trumanlibrary.org/whistlestop/study_collections/korea/la...



According to a Truman letter of August 27, 1950, there is no such intention of grand designs. Instead the American military and foreign policy is for the neutralization of the Taiwan Question. American neutralization was achieved by the supreme command of the USMG and the 7th Fleet sailing into the Formosa Straits. For intrigues of corollary, there are also the declassified CIA documents from 1948 on “Xian Incident, Part II” plans for the military coup against Chiang Kai-shek after the 2-28 Incident. The role of USMG is legally essential for the Laws of War use of SFPT judicial administrative authority and the war crimes committed during USMG and ROC belligerent occupation of the Japanese enemy territory of Formosa. That is before it became as friendly territory under SFPT. Under their use of US military force and its related law, it is impossible to acquire the sovereignty of Taiwan with US Military Government being the passive holders of the 1952 cession by conquest. Under Article 6 of the 1955 US-ROC Mutual Defense Treaty, anyone attacking Taiwan would trigger an armed response from the Americans. And the same neutralization continues under the Taiwan Relations Act. But where does domestic legislation get the authority of international law?

It is derived from the plenary powers of the Congress under the San Francisco Peace Treaty. When the principle occupational authority detached the dependencies from Japan, they became the masters of cession by conquest. Again, they had no grand designs of American Empire. It is reminiscent of the USMG conquest of West Berlin under an American dominion to deny any annexation by the East Germans under the Bonn Conventions of 1955. Such was occupation under conquest. The Taiwan Question is not belligerent occupation, but a civil affairs administration by USMG and its exiled proxy for Art. 6 of MDT or TRA. This is the administrative authority over a cession by conquest pending a final resolution of the Taiwan Question. As the USA has no grand designs of Empire, the irony is the USMG is a tool of American Empire. The 150-year history of USMG development is fascinating under their colonial laws of American Empire and constitutional evolutions shaped by the American experience of manifest destiny. Recalling how in 1950 Truman stated the USA has renounced grand designs on Formosa, it must be remembered that the Taiwan Question was not always this way under manifest destiny of Commodore Perry.

There were three US Naval survey of Formosa under the principle of discovery. That is the Commodore Perry expeditions discovered and claimed the sovereignty of Formosa in 1852, 1853, and 1854. Under the concept of discovery, the aboriginals are not treated as equals of the laws of war. The Chinese settlers on Formosa were recognized as equals but discovery meant the American imperialists could set aside the Chinese claims of the few settlements on Formosa. After the British discovery of aboriginal lands in North America in 1620, the Jamestown settlement required a subsequent colonial occupation for maintenance of dominion by the Crown. Otherwise, any recognized colonialists of other sovereigns could then establish dominion over un-reclaimed aboriginal lands on behalf of their monarchs or countries at the expense of the British claims. With the murder of US sailors by aboriginals in 1861, the US Navy landed on Formosa to extract their revenge.

Of course, the looming US Civil War would distract the grand designs of any US Military Government on Formosa. With the Meiji Reformation then occurring in Japan and the American Wild West in turmoil after the Civil War, the cowboys lost their claims of manifest destiny to the samurai. The manifest destiny of USMG had come to a close by 1880 when the Japanese acknowledged the Qing Chinese claims to Formosa in exchange for compensation of the murder of Japanese shipwrecked sailors killed by aboriginals. From 1852-1880, there is un-reclaimed territory by China. By 1895, there is a Chinese cession by conquest to Japan with the Americans playing a silent but major role. The plenary powers of the Americans are lurking for the role of USMG in the next century.

By 1898, the Americans have begun their expansion into the Pacific with the Spanish-American War. This was the first constitutional test of the plenary powers for overseas territory. The USMG had only been used to incorporate territory that was contiguous to the United States in the territorial expansion westward. With the start of the Civil War, the challenge of USMG was to hold the Union together while still controlling western incorporated territory like Nevada and Utah. The success of the Confederacy was a big blow to the USMG under the Laws of Occupation, so there was a constitutional alteration of the administrative authority uses of the USMG and Laws of Occupation. For the Union territory under the rebel control, the recognition of these insurgents under the Laws of Occupation was deemed a constitutional form of martial law. In fact, this was meant to cloak the domestic applicability of the Laws of Occupation to these rebels in order to thwart the extension of diplomatic relations by the Europeans. That is the Lincoln administration was able to use the Laws of Neutrality to prevent the diplomatic recognition of Southern insurgents seceding from the Union. As a form of foreign intervention, the Union would see such acts of diplomatic recognition as tantamount to acts of belligerency. Any attempted extension of diplomatic recognition would break diplomatic relations with the Union and create an official state of war between it and the Europeans. Thus a US Civil War would become more than a domestic affair, if neutrality was broken by the Europeans. On the other hand, the recognition of the insurgents meant the Confederacy negotiations of peace would subsequently force the Union to recognize the Confederacy under the Laws of War. Thus the metropolitan territory or Union states would be free to separate from the US Constitution under the Laws of War. In the event of such a prospect, the USMG had established an “experimental” government over the half of Tennessee loyal to the Union. This form of martial law by USMG was more than domestic in form, it was meant to preserve the split area for the Northern States under the Laws of Occupation. The use of judicial administrative authority saw the use of military commissions in lieu of civilian courts. Judicial administrative authority is Art. 2 exercise of judicial authority by the executive branch under military powers of the Commander-in-Chief. Such is martial law today, but the practice is still used for any non-metropolitan territory under conquest or an occupation of USMG; or other civilian agency like the State Department or Interior Department.

It was a clever maneuver that permanently would alter the constitutional meanings of USMG for the occupation of southern states under its administrative authority. By 1898, the overseas expansion of USMG was again in full swing, and USMG would thus also become the constitutional origination of any separate customs territory for the Uniform Tariffs Clause. The plenary powers doctrine is the constitutional conduct of the foreign policy, laws of war, conquest of new territory, a governing of aboriginals, exclusions of aliens, naturalization of aliens, and acquisition of new territory or administration of any separate customs territory. In 1814, the British occupied the American area of Castine, Maine, during the War of 1812. They operated the Port of Castine and collected their own import tariffs. Under the Uniform Tariff Clauses, the Laws of Occupation had facilitated a separate customs territory. During the Spanish-American War, the USMG would occupy the Port of Tamipico, Mexico. Under conquest and the Laws of Occupation, the USMG collected the import tariffs of this separate customs territory on the Gulf of Mexico. Despite being under the conquest of USMG, the Uniform Tariff Clause did not extend to this overseas territory. The USMG withdrew from this overseas territory upon the cession of the New Mexico Territory (i.e. Utah, Nevada, California) or such contiguous territory. This is the distinction of incorporated territory and origination of separate customs territory by the USMG for the plenary powers doctrine. USMG allowed the Laws of War, as part of the supreme law of the US Constitution, to make a constitutional distinction of metropolitan territory from non-metropolitan territory.

From the 1803 Louisiana Purchase until 1898 Spanish-American War, the practice of USMG was to incorporate the new territory into the US Constitution as metropolitan territory. That doctrine of incorporation was the full force of the Bill of Rights and the Uniform Tariffs Clause. By 1898, American Empire was moving overseas to Cuba, the Philippines, Puerto Rico, and Guam. These separate customs territories under USMG led to the judicial doctrine of unincorporated territory. The fallacy of casual assumption is the judicial doctrine of unincorporated territory is itself the constitutional definitions of political status. There is false assumption of the plenary powers doctrine automatically conferring the status of becoming metropolitan territory. Such is not a judicial decision.

The political question doctrine reserves the determination of political status to the plenary powers of the Congress for occupied territory that is already legally subject to the USMG administrative authority of the Executive branch or the War Department. Under the Laws of War and principle of conquest, the USMG establishes administrative authority over the separate customs territory. The cession by conquest in a peace treaty means the plenary powers of Senate ratification are constitutionally secured by the plenary powers doctrine.

While the executive branch has a near monopoly on the conduct of foreign policy and the military powers, the Congress gains federal territorial jurisdiction over incorporated and unincorporated territories. Both are constitutionally excluded from the Union territory.

The Federal government is the democratic government of the Union but is not composed of the people in these territories. Incorporated territory is metropolitan territory for the Bill of Rights, but it is not represented in the Congress until admitted into the Union. The Congress does the specific legislative act of incorporation but the peace treaty cession of any territory is unincorporated territory until such enumeration. This act is part of the legislative branch role in the political question doctrine. However, the Congress has the habitual problem of not exercising their plenary powers. The USMG or another agency of the executive branch will conduct the administrative authority over the cession. Under the political question doctrine, the political departments must first exercise their plenary powers to define the political status. The judicial doctrine of un-incorporated territory does not convey the political status of the plenary powers. If the political departments have power over any separate customs territory that has been originated under USMG, the judicial branch does have a doctrinal jurisdiction of the plenary powers by conquest under the Laws of War. The judiciary is charged with the protection of basic civil rights under the plenary powers doctrine, and political expediency by the political branches is an open invitation for judicial branch review of such actions. It is not for the judiciary to determine the political questions, but it is for them to protect against the abuses of these especially weaker separate customs territories under USMG. Such a non-metropolitan territory is not represented in the political branches.

The undetermined status of non-metropolitan territory under conquest does not confer the political status of a dependent territory, US possession, or outlying possession. Anyone purporting such as truth is too ignorant of the Rules of Chargeability under the TRA and the plenary powers doctrine. They should be very careful and read 7 FAM 1121.4-3, the Tydings-McDuffie Act of 1934, the Panama Canal Act of 1977, and even the 1934 Act of Westminister for British Dominions. The plenary power doctrine involves the powers of exclusion and naturalization of aliens originated in any separate customs territory. There is no automatic right of “US Nationality” but there is a question of undefined political status under the customary law of war. As an island national of undetermined territorial status and being under the customary laws of interim and provisional government by administrative authorities, there is the question of Taiwan nationality. This political interim status question of customary law is not outlying possession nationality of the US Immigration Act of 1952. There is a major question if the ROC exiled government can even continue their ROC Nationality in the bilateral Treaty of Taipei Art. 10. Such is further subjected to the SFPT Art. 26 allowing for the USMG abrogation of any bilateral peace treaties with the ROC exiled government and Japan. Such island nationality is the US Trust Territory Passport or Filipino Commonwealth Passport issued under the Rules of Chargeability because of statutory exclusion by the plenary powers. Please see 7 FAM 1121.4-3 for more directive guidance under the plenary powers doctrine of exclusion and interim nationality in absence of statutory naturalization. Under the TRA clause for “American Citizen Services”, the 7 Foreign Affairs Manuals series are the statutory scope of consular services. This is almost identical to a specific clause under Tydings-McDuffy Act. The operations of international law by SFPT are based upon the customary laws of war and plenary powers doctrine.

Customary law of war is the automatic operation of international law in cases of no specific modifications by treaty. Customary law is the “common law” of treaties. If one does not comprehend this fact of unwritten law, then one must clearly understand that British common law is the historic legal framing of the US Constitution for things like the Second Amendment and right to bear arms. Customary law will operate in a similar fashion and is also the domestic law of ratified treaties. An example of customary law of war is for the local native inhabitants to gain the temporary nationality of their territory or cession upon ratification of a peace treaty. That is the customary law provides for a legal or a temporary solution until their new masters can determine the political status of these new people ceded under their administrative authority. Art 5 of the Qing-Japanese 1895 Treaty of Shimonoseki is an excellent example of a two-year legal provision defining the duration of customary law for an “interim status” as Taiwan nationals under Japan. It is recognized that after the Japanese surrender on April 28, 1952, the local island residents or people of Taiwan with habitual residency were no longer Japanese nationals. The major issue of SFPT administrative authority is Art. 26 authority for “bilateral treaties” which modified the customary law for “interim nationality”. Under Art. 10 of bilateral Treaty of Taipei, the local island residents gain the nationality of the ROC Nationality Laws. However, the political status of the Taiwan cession is not finalized under SFPT.

This is an operation of civil affairs administration by USMG under Art. 4(b), which put the former Japanese nationals under the ROC exiled government on Taiwan cession. This was a USMG practice of civil affairs operations with French nationals residing in the UK whom served with British in WWII being subject to a bilateral agreement with the Free French and not the Vichy French in effective control of southern France. (Talmon, p. 332).

As noted, the modification of customary law was conducted by USMG and civil affairs regulations. Under the SFPT Art. 26, these provisions of SFPT will supersede any other bilateral treaties like the exiled ROC. On February 28, 1972, the USMG signed a civil affairs agreement with the PRC as ‘belligerents’ lacking diplomatic relations for purposes of the Saigon Administration and ROC on Taiwan cession. That is Kissenger facilitated a modification of customary law for the political status of SFPT Art. 26 and superceded bilateral Teaty of Taipei Art. 10. While the USMG had no diplomatic relations with the PRC, the reversion of Okinawa cession to residual Japanese sovereignty under USMG sole administrative authority of Art. 3 was simultaneous to the Japan abrogation of the bilateral treaty with Taipei and establishment of diplomatic relations with Beijing. For the Taiwan Question, the SFPT was still a condition of peace which the USMG could cause to occur by pulling the strings of SFPT between Japan, Taiwan cession, and a 2-28 civil affairs agreement signed with Beijing. It caused a civil affairs agreement that left the people of Taiwan without any political status and the subsequent agreements after Carter derecognition of the exiled ROC by USMG in 1978. With the abrogation of a bilateral treaty, Art. 10 has been suspended and the masters of SFPT administrative authority have left the separate customs territory of Taiwan cession without any legal political status under customary law. The finalization of the Taiwan Question is not formalized. The 2-28-1972 military directives to Japan might be an executive agreement but then this executive action lacked any diplomatic recognition by USMG under SFPT. It is military in the conduct of plenary powers doctrine. In the continuing absence of political status of One China, are the people of Taiwan originated from a separate customs territory? Or just from a country of “One China”?

The administrative authority of USMG is transferable by the Law of Agency. In the evolution of the plenary powers doctrine, the Laws of War originated from the divine rights of kings to wage war. That is the conquest of new territory includes the right to govern it under the Laws of Occupation. It is from these Laws of Nations that the colonial practices of administrative authority first emerged by the Imperialist Powers of European Christendom. It became particularly noticeable with the overseas expansion under conquest. For the American Empire, the law of agency was the supreme law of the Constitution. However, could that governing agency of the Commander-in-Chief become transferable by the War Department to other civilian agencies of the Executive Branch?

The Bureau of Insular Affairs was originally established in the War Department in 1898. It was the civil administration of the separate customs territories by USMG and after the Spanish cession in the 1898 Treaty of Paris; the Congress gained their plenary powers to determine the political status of these separate customs territories. Would they become a state or independent? Being the first major overseas cessions, the constitutional question of metropolitan and non-metropolitan territory had to be comprehensive and judicially determined before Congress could ultimately exercise their plenary powers without any constitutional impediments. It was determined that a separate customs territory could be held as non-metropolitan territory under the doctrine of unincorporated territory. Thus the administrative authority of USMG could be transferred by the War Department to the Interior Department or State Department. By 1902, the Bureau of Insular Affairs was thus transferred to the Interior Department. However, the War Department did not lose the power of colonial administrative authority. Such was just retained as the civil affairs administration by USMG. For purposes of the SFPT, the treaty usage of the USMG is a constitutional factor of the principle occupational authority. Under laws of war, not only can the Hugo Grotius’ law of agency be shared with other executive branches, it can be shared with co-belligerents like Allies or governments-in-exile. From the USMG civil affairs administration of World War II, the practice of civil affairs agreements had unique twist of placing certain troublesome exile governments under the supreme command of General Eisenhower. The USMG case of the Free French and De Gaulle is perhaps the most notable for the Allied liberation of the Vichy French-controlled overseas territory.

The civil affairs agreement signed with the Free French saw the transfer of administrative authority under the paramount authority of USMG for the liberation of Northern French Africa in 1943. Under the laws of recognition with an exiled government, the USMG civil affairs administration of any liberated territory is conducted under conquest. It is very common for the USMG to obtain permission from the sovereign government for the provisional and interim administration of their liberated territory, not vice versa. In these noted circumstances of the Free French, the exiled government was placed into a position of a colonial self-governing dominion under the plenary powers of the USMG. Their own governing authority was derived from the plenary powers of their civil affairs administration under USMG. That is they exercised the executive, legislative, and judicial powers of USMG by their civil affairs administration; or transferability of administrative authority under conquest of USMG. These practices of self-governing dominion are central to the treaty-making powers and other “quasi-juridical status” of exiled governments and British self-governing dominions.

The plenary powers are allocated to the military governor, governor-general, or high commissioner by the agency of administrative authority. That is the civil powers of executive, legislative, and judicial plus the military powers. The exercise of a governing agent is derived from the right of kings to wage war and govern territory under conquest of the Laws of Nations. That is one individual has the absolute powers of war, and there is no separation of powers for administrative authority. Such are primarily a fiefdom of the US executive domain including Article II judges of the US Constitution. That means the judicial administrative authority is an executive branch functionary, not separated by Article III judicial branch powers. The US Court of Berlin was a military commission of the Laws of War. The common law court of war is the constitutional basis of executing the judicial functions of administrative authority. The due process or judicial procedures of the Article III judicial branch might structure the operations, but it is not an Article III court.

Under these plenary powers, the legislative administrative authority is the “organic law” if the Congress does not create any organic act. Under the military governor or agent, a local government might enact a constitution but it is not an organized territory if there is no Organic Act. Congress never authorized the American Samoan Constitution but the legislative judicial authority of the Interior Department duly authorized their organized government. This is a significant issue of the ROC Constitution on the Taiwan Question.

Under the administrative authority of the SFPT, the exiled government was allowed to be the agents of plenary powers. By the military descriptions of FM 42-10 Civil Affairs Operations, Chapter 4 describes the civil affairs administration and any such subsequent authorizations of enemy territory or friendly territory becoming ultimately subject to the “legislative, executive, and judicial” of military governors or proxies. The nomenclature of commonwealth suggests the Congressional authorization of an Organic Act under the plenary powers. It does not bestow a political or legal definition of dependent territory or self-governing dominion.

The first American self-governing dominion of USMG was the Cuban Question of 1898. The unfurling tentacles of the plenary powers doctrine were extending themselves into the quasi-trust territory of USMG and the Cuban self-governing dominion from 1898-1902. The Cuban experience was then repeated with the Wilsonian notions of Mandate Territories and inspirational inputs of Jan Smuts of the Union of South Africa in 1919 and the aftermath of the League of Nations. The heirs of Empire adopted the Anglo-American practices of plenary powers with enlightened if not utopian schemes for grandiose modification of these quasi-dominions until the determinations of their final status. The Tydings-McDuffie Act of 1934 is a kissing cousin of the Taiwan Relations Act for handling the plenary powers doctrine and self-governing dominion of the Commonwealth of the Philippines. That is these self-governing dominions are a “foreign territory” beyond the domestic borders of the Rules of Chargeability for any metropolitan territory. Their inhabitants are residents of their island and are seen as the aliens of friendly territory under administrative authority. Despite being a foreign territory, these territorial aliens are still originated from their separate customs territory, but not a foreign country. When those plenary powers are terminated, their juridical impairments will cease. Of course, the British parliament authorized the 1934 Act of Westminister under their plenary powers for their self-governing dominions. It is an accepted practice of international public law to view these self-governing dominions as creatures of British plenary powers to be treated as equal juridical persons or foreign countries. The Anglo tradition of Governor-General and High Commissioner had been a major part of the USMG administration of the Cuban Question and were continued for the USMG civil affairs administration of Europe and Asia-Pacific territories. From 1952-72, the US Civil Administration of the Rkyuku Islands (USCAR) is the most historically intriguing undetermined self-governing dominion situation of SFPT administrative authority that is most reminiscent of those Free French in Northern Africa. These provisional and interim circumstances of the civil affairs administration of Free China on the Formosan cession are these SFPT administrative authorities under USMG. With the concept of SFPT and USMG clearly understood, the plenary power doctrine is kept constitutional and further expounded by the civil affairs agreements called the Shanghai Communiques. It is these recognition formulas of the Laws of Recognition that also coincides with the civil affairs administration of the Taiwan Question. As the derivatives of the Potsdam Agreement of 1945, the civil affairs administration by an exiled government of any liberated territory is bound by the civil affairs agreement made by the USMG with the PRC (See FM 27-10, Par. 354). It is also how the Taiwan Relations Act, as domestic legislation of the plenary powers of SFPT, comes into provisional civil affairs administrations of Taiwan by the USMG and exiled proxies even after the 1979 termination of the Mutual Defense Treaty. The political branches have always answered the political question of SFPT even if on a provisional and interim basis. The Art. III judicial branch, however, must now answer the SFPT question of civil rights within their doctrine of unincorporated territory. After all, the Taiwan Question in SFPT is a separate customs territory of the WTO. Political expediency of the plenary powers doctrine just cannot be allowed to undermine the civil affairs administration and the basic civil rights granted by USMG.

In the words of radio commentator Paul Harvey, “And now, you know the rest of the story.”

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該討論的回覆

[1] The 1943 Cairo Declaration was a preliminary statement of the 1945 Potsdam Agreement. FM 27-10
in Par. 354 was expressly written for the USMG liberation of the Allied and Enemy Territory of the 1945 Potsdam Agreement. Please see Recognition of Governments in International Law: With Particular Reference to Governments in Exile, Book by Stefan Talmon; Oxford University, 1998. Talmon leaves the ROC on the Taiwan cession frozen in 1956 as an exiled government, but FM 27-10, reissued in 1956, also provides for the civil affairs administration of the liberated enemy territory under the Potsdam Agreement. This FM is still legally in effect and a 1945 updated version was noted in military commission case law of 1945 for a Japanese General under territorial jurisdiction of a self-governing dominion of the Tyding-McDuffy Act of 1934 and 1898 Treaty of Paris. The exiled ROC has a valid belligerent status of insurgents under civil affairs agreement of the 1972 Shanghai Communiqué, which was signed by the US-PRC belligerents under the Laws of War, SFPT, and 1953 Korean Armistice. There were no diplomatic relations between the US-PRC and US-ROC diplomatic relations were merely on exiled government basis in 1971. Talmon expertly expounds upon the USMG diplomatic uses of the civil affairs agreements, liberated territory, and USMG supreme command over any exiled governments especially originated during WWII. The only weakness of the British scholar is his in familiarity with the American military legal practices and colonial issues of the USMG after a peace treaty. It is a peculiar twist of American civil affairs practices to put troublesome exiled governments like De Gaulle and the Free French under the US Commanding General in any liberated areas which are overseas. In SFPT, the official treaty use of USMG is not entirely meaningless, and it is in fact a major constitutional issue for the Americans and joint administrative authority. State practices and customary laws are obscure topics to American academia and even rather perplexing to the envious British colonial sentimentalists. Plenary powers takes on a major role of undetermined self-governing dominion with an exiled government operating under a civil affairs agreement. Juridical impairments and delegation of the treaty-making powers creates a “quasi-state” whom is using the SFPT executive, legislative, and judicial powers of USMG. Such plenary powers distinctions are the military colonial powers of the constitutional powers in US Constitution Art. II executive branch powers but are differentiated from a US dependency or British Crown colony like Hong Kong. The WTO role of USMG is the SFPT pathway into a separate customs territory of a One China policy. Such executive agreements are civil affairs agreements of FM 27-10. Par. 354 as duly authorized under SFPT.



[i] Formosa Betrayed, George Kerr, 1965. http://www.faoa.org/journal/asia1201.html

[ii] Treaty of Shimonoseki, 1895, http://www.taiwandocuments.org

[iii] San Francisco Peace Treaty, 1952. http://www.taiwandocuments.org

[iv] Field Manual 27-10 Laws of Land Warfare, US Army, 1956, Par. 354. http://www.adtdl.army.mil/cgi-bin/atdl.dll/fm/27-10/toc.htm
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