The United States Supreme Court has now been asked to answer the longstanding 'Taiwan question' that has haunted U.S. foreign policy since World War II. In April, the District of Columbia U.S. Court of Appeals declared Taiwan to be in a state of "political purgatory" and urged President Barack Obama to act "expeditiously" to resolve the matter.
The appellate court declined to interpret the San Francisco Peace Treaty that governs Taiwan saying the issue was a "political matter" outside the scope of the court's authority. President Obama has been silent on Roger Lin, et al vs. United States, which seeks U.S. protection while the formal international legal status of Taiwan is resolved.
The petition for writ of certiorari to the Supreme Court was filed late Monday by Charles Camp, a Washington, D.C. attorney specializing in international law. Roger Lin and his co-plaintiffs are seeking recognition of U.S. responsibility to the people of Taiwan for self-determination.
After centuries of colonial occupation the residents of Formosa, as the island was commonly called during World War II, looked to the United States for self-determination of their national status. Instead of a vote on the future government, President Harry Truman had the U.S. Navy land Republic of China troops ashore on October 25, 1945--and they never departed leaving Taiwan caught in a Cold War time trap with an unresolved national status.
The petition to the Supreme Court details the history and law that led to the Roger Lin lawsuit and appeal.
"On April 28, 1952, the San Francisco Peace Treaty, signed on September 8, 1951, entered into force for the United States, and remains in force today."
"Japan renounced all "right, title and claim" to Taiwan, and simultaneously established the United States as Taiwan's "Principal occupying power."
"Subsequent agreements and treaties have not abrogated the San Francisco Peace Treaty."
"The United States in 1950-51 took several actions evidencing dominance over Taiwan, including: (1) making unannounced military overflights, (2) denying ROC requests for permission to conduct air bombardments from, and independent high sea ship searches around Taiwan, and (3) undertaking extensive military training, reorganizing and propaganda assistance to the ROC."
"In September 1951, at the end of the peace negotiations between the Allies and Japan, the United States publicly stated….No one can say that at some future unpredictable dates a return to China would necessarily serve the best interests of the inhabitants, whose welfare under the Charter of the United Nations, is paramount."
"The Court of Appeal's application of the political question doctrine was inconsistent with its obligations under the Constitution to "say what the law is," and threatens the entire system of checks and balances."
"Questions involving the determination of fundamental Constitutional rights are the province of the Judicial Branch--and not the Political Branches--as the Court made abundantly clear in Boumediene v. Bush."
"This Court further held in Boumediene, that….'even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants "guaranties of certain fundamental personal rights declared in the Constitution….This century-old doctrine informs our analysis in the present matter.'"
"Surely the political questions doctrine does not trump the Constitutionally mandated obligation of courts to interpret treaties and determine the existence of Constitutional rights."
"Petitioners are not asking the court to determine who has or will have ultimate sovereignty over Taiwan. Rather, Petitioners ask the Court to examine and interpret the San Francisco Peace Treaty and, based upon that examination and interpretation, determine Petitioner's legal and Constitutional rights."
"All military attacks against Taiwan in WWII were conduct by U.S. military forces. This Court, which has always vigorously guarded the very principles upon which this Nation was founded, has ruled that the responsibility of the United States over a conquered territory commences from the moment of formal acquisition of the territory (e.g., at the conclusion of a peace treaty)."
"Given the fact that Petitioners are stateless (in violation of International Law) and that Taiwan as a non-state is ineligible to seek a declaration of its rights under the San Francisco Peace Treaty from the International Court of Justice, this Court is the only court in the world competent--and Constitutionally mandated--to interpret the San Francisco Peace Treaty to determine whether Petitioners have fundamental Constitutional rights."
"This case has been widely characterized as being the most important case in the history of Taiwan--and needless to add, the most important case in the lives of Petitioners and all native inhabitants living in Taiwan."
Source: Michael Richardson - Boston Progressive Examiner
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