Category Status quo
Sub-Category Taiwan Strait
Question Can the status quo in the Taiwan Strait be defined with reference to the US Constitution?
Answer Yes, and indeed much information on this subject has been collected.

Returning to the vantage point of the 1940s and 1950s, we must recognize that at the most fundamental level, Taiwan is territory conquered by the United States of America, and no further disposition was made in the post-war peace treaty. Consequently, the United States fulfills the role of principal occupying power.

Based on these conditions, the following points are notable: 1. As defined under the US Constitution and numerous Supreme Court cases, by virtue of living in a territory subject to US jurisdiction, the Taiwanese people

  • have fundamental rights under United States laws, including the US Constitution,

  • are entitled to be protected under the "common defense" umbrella of Article 1, Sec. 8, whereby Congress has authorized the US Dept. of Defense to assume full responsibility for the "national defense" needs of all states and territories subject to US jurisdiction,

  • have the Fifth Amendment right and Fourteenth Amendment right against deprivation of life, liberty, or property, without due process of law,

  • have the Eighth Amendment right against cruel and unusual punishment, including deprivation of citizenship, being "stateless," and/or conscription into service in a Chinese rebel army,

  • have the Fourteenth Amendment right of equal protection of the laws, etc.

  • may not be deprived of the Fifth Amendment right to travel (including the right to apply for a US passport) without due process of law, which requires a notice and a hearing.

2. According to the SFPT, the TRA, and the "One China Policy," and with reference to the definition of "passport" provided in the Immigration and Naturalization Act of the United States, as specified in INA 101(a)(30), there is no way that the Republic of China's Ministry of Foreign Affairs can be construed as the competent authority for issuing passports to native Taiwanese persons in Taiwan.

  • Specifically, there are no international legal documents which can prove that Taiwan has ever been incorporated into the territory of the ROC or the PRC,

  • Under international law and US constitutional law, there is no legal basis for classifying native Taiwanese persons as ROC citizens,

  • According to the US Dept. of State's Foreign Affairs Manuals, native Taiwanese persons should be classified as "US non-citizen nationals."

3. Despite the remarkable progress in democratic development which the ROC on Taiwan has made during the past fifteen or more years, international law does not recognize any actions, procedures, or other methodology whereby a "government-in-exile" can become established as the legal government of its current locality of residence, and therefore

  • At present, the operations of the government in exile "Republic of China" on Taiwan are blocking the Taiwanese people's enjoyment of fundamental rights under the US Constitution,

  • the Commander-in-chief should issue an Executive Order to terminate the principal - agent relationship between the United States and the ROC, and implement direct USMG jurisdiction over Taiwan without delay,

  • all ROC military conscription activities should be cancelled,

  • the remnants of the ROC regime should retreat to the Kinmen and Mazu island groups, which in the present era remain as sovereign ROC territory,

  • the ROC flag should not be flown over Taiwan.

4. Taiwan is the sixth major insular area of the United States, after Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands. While at present the five pre-existing insular areas all have civil governments established by some organic act, today Taiwan remains under the jurisdiction of USMG. A thorough reorganization of the Taiwan government is therefore necessary.

  • the Commander-in-chief should appoint a US citizen (civilian) High Commissioner of the Taiwan cession at an early date,

  • in regard to important initial duties, the High Commissioner should organize a Governing Council for Taiwan under the auspices of the US High Commission, and promulgate an organizational chart for the new Taiwan government under US administrative authority,

  • the High Commissioner should also submit a draft version of an organization law for the "United States Court of Taiwan" (an Article 2 Court under the US Constitution) to the Commander-in-chief for approval before promulgation.

5. Not being an independent sovereign nation, Taiwan cannot be admitted to the United Nations. Those members of the House and the Senate who have voiced support for Taiwan's admission to the United Nations should quickly re-evaluate their premises. The members of the US Congress

  • should insist that the Secretary of State issue a timetable in regard to stopping the acceptance of "ROC passports" as valid travel documents for native Taiwanese persons entering the fifty states or five pre-existing major insular areas,

  • should demand that the Commander-in-chief authorize the raising of the US flag in Taiwan,

  • should draft legislation to rectify the name of "Formosa and the Pescadores" to Taiwan, similar to the provisions specified for Guam in 48 USC 1421, as authorized by the territorial clause of the US Constitution,

  • should demand that the Department of Defense assume full responsibility for the "national defense" needs of Taiwan, and that all arms sales to the "Taiwan governing authorities" be stopped, as authorized by the common defense clause of the US Constitution,

  • should draft legislation for the US federal government to assume responsibility for all refugee and asylum matters regarding Taiwan,

  • should coordinate with the "Taiwan governing authorities" and then draft legislation to adjust the nomenclature of the "issuing authority" for the New Taiwan dollar (NT$), in order to bring it in conformity with the coinage, weights, and measures clause of the US Constitution,

  • should assist the Taiwanese people in announcing a design competition for a new territorial flag, and beginning preparations for the calling of a constitutional convention under US administrative authority.

Further References and Links
Taiwan's Legal Status: Taiwan's Legal Status: An Overview of the San Francisco Peace Treaty

Areas Conquered by U.S. Military Forces and therefore under USMG Jurisdiction -- with later "new disposition" by peace treaty