Conclusions

The Recognition of Native Taiwanese People as "ROC Citizens" is in Error

1.  For native Taiwanese persons to be bona fide ROC citizens, two conditions would need to be met. First, the SFPT would have to award the territorial sovereignty of Taiwan to the ROC and second, there would have to be a law passed regarding these mass-naturalization procedures, after the peace treaty came into effect on April 28, 1952. In fact, neither of these two conditions has been met.

2.  Notably, Article 4 of the ROC Constitution specifies that "The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly." In regard to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.

3.  Moreover, international law specifies that "military occupation does not transfer sovereignty." The proclamation of "Taiwan Retrocession Day" on Oct. 25, 1945, thus indicating a clear intention and objective to annex Taiwan territory, is a serious violation of the laws of war recognized by the United States.

4.  The mass naturalization of native Taiwanese inhabitants as ROC citizens in Jan. 1946, and the imposition of mandatory military conscription over the native Taiwanese inhabitants by the ROC regime in 1949 are further serious violations of the laws of war as recognized by the United States.

5.  For definitive commentary on the laws of war, please refer to US Army Field Manual FM 27-10 The Laws of Land Warfare.

Historical Comparisons

6.  The situation of Cuba after the Spanish American War is in many respects very similar to that of Taiwan. Direct comparisons may be made between the treaty specifications regarding the disposition of Cuba under the terms of the Treaty of Paris (April 11, 1899), and Taiwan under the San Francisco Peace Treaty (April 28, 1952). See Chart.

7.  It may be argued that US Insular law principles apply to Cuba, from April 11, 1899 to May 20, 1902, and Taiwan, from April 28, 1952 to today, because they are both "inside" the principle of cession by conquest which was confirmed by cession by treaty.

8.  Although Cuba territory was certainly foreign during this period, in DeLima v. Bidwell 182 U.S. 1 (1901), the US Supreme Court held that "Cuba is under the dominion of the United States."

9.  The concept of "dominion" was discussed in United States v. State of California, 332 U.S. 19 (1947). The judges held that:

To speak of 'dominion' carries precisely those overtones in the law which relate to property and not to political authority. Dominion, from the Roman concept dominium, was concerned with property and ownership, [332 U.S. 19 , 44] as against imperium, which related to political sovereignty . . . . . .

United States Conquest of Taiwan

10.  As stated above, during the course of the Pacific war, all military attacks against (Japanese) Formosa and the Pescadores were conducted by United States military forces. Therefore, in regard to making a legal determination of the correct nationality of native Taiwanese people, some insight is gained from Boyd v. State of Nebraska ex rel. Thayer, 143 U.S. 135 (1892) where the judges held that:

Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal, or otherwise, as may be provided. [143 U.S. 135, 163]

11.  The judges in the case of Roger Lin et al. v. United States of America did not agree that the native Taiwanese people should be classified as "US national non-citizens." However, at the minimum, the native Taiwanese people strongly desire to have travel documents issued by a sovereign state. This would be an acceptable compromise to fulfilling the requirements of Article 15 of the Universal Declaration of Human Rights, which says that everyone has the right to a nationality.

Further Reference

Many people now assert that native Taiwanese people who want to travel internationally should be able to apply for travel documents issued by a sovereign state. This is certainly worthy of further study.