So, here’s something interesting. Did you know there are some who argue there’s a legal basis that Taiwan (not generally internationally recognized as a sovereign state unto itself) might be under US sovereignty?
Right: The Eastern US headquarters of the Chinese Nationalist Party (KMT), on Mott St. in New York’s Chinatown, flying both the Republic of China & US flags. Photo my own.
A couple of weeks ago, we had a fantastically thought-provoking conference here at UCSB on identity, entitled “Shape Shifters: Journeys Across Terrains of Race and Identity.” I attempted to draft a blog post about all the many many thoughts this conference made me think, but I fell down a rabbit hole of the incredible complexity of this topic, which can be so fraught with personal struggles and controversy and so forth, and so I had to just give up on that. But, still, I am going through my handwritten notes of the conference to enter them into the computer, so that I’ll have it in a more legible and organized form, and so that if there’s anything in there along the lines of books or articles I should check out, or ideas I should blog about, or should enter into the Samurai-Archives Wiki or something, they’ll get done, rather than just sleeping forever more in one of the countless notebooks strewn across my life.
One such thingy came out of a talk by Prof. Dan Shao of U. Illinois (Urbana-Champaign). Prof. Dan’s paper was, more broadly, about how nationality/citizenship was regarded in Taiwan under the Qing, then under the Japanese, then under the Republic of China, and how the various political shifts affected the people there. In short, the Qing implemented in 1909 (just two years before they fell) China’s first modern nationality law – the first time Chinese nationality was officially defined. It was along ethnic/ancestry lines – a jus sanguinis logic: essentially, if your father was Chinese (or if your father was stateless or unknown and your mother was Chinese), then you were Chinese. Everyone in Taiwan who didn’t flee to the mainland when the Japanese took over became Japanese imperial subjects, and then in 1945, the vast majority of them filed applications with the Republic of China (or was it the People’s Republic?) to (re)gain Chinese citizenship. Today, as I touched upon in a post last year, there are considerable debates about whether residents of Taiwan consider themselves “Chinese” or not – but this is more of a social identity, not a legal one.
Returning to the point of this post, in the process of discussing this broader topic, Prof. Dan briefly mentioned something very interesting. Since the United Nations no longer recognizes Taiwan as a sovereign state – and since a great many countries similarly do not officially recognize Taiwan – this makes international recognition of Taiwanese (i.e. Republic of China) citizenship or nationality quite complicated. I gather that a lot of countries sort of play both sides on this, hosting Taiwanese “Economic and Cultural Offices” which are not officially recognized as consulates/embassies, and accepting Taiwanese passports as legal travel documents in a sort of exception, all while officially declaring they do not recognize Taiwan as a sovereign state. I also recently saw a fellowship application for which only residents of certain countries were eligible, with an asterisk adding in Taiwan and Palestine. But what happens when a country that doesn’t officially recognize Taiwan apprehends and seeks to extradite or deport Taiwanese criminals? In 2011, what happened was that the Philippines deported some 14 Taiwanese criminals not to Taiwan, but to Communist China. I wonder what other incidents there have been.
What’s even more interesting, and which finally really does bring us to the titular topic of this post, is that there are groups which claim that Taiwan is legally (de jure) under US sovereignty. And there are people who, on this basis, have actually filed lawsuits in US courts, seeking rights & protections under the US Constitution. Here is the plaintiffs’ argument, as I understand it: whereas the treaties which ended WWII specified that Japan cede sovereignty over Taiwan, and whereas it was not stated who sovereignty was ceded to, and whereas the United States was the occupying power, and whereas no official document in international law officially ever ended that occupation, therefore Taiwan is still under US sovereignty, and thus US responsibility.
Yet, despite the fact that all of this was based quite clearly in the language of international treaties and formal instruments of international law, the US courts stated in their decision that this was not a legal matter, but a political one. Prof. Dan explained that since international law (apparently?) doesn’t have much (or any) legal basis for establishing or recognizing the legitimacy of a state – including in particular when that legitimacy begins or ends, such as when international law recognizes the Qing Dynasty as ending and the Republic of China beginning, or, more controversially, when the People’s Republic begins, and whether the Republic of China ever ended – this is why it can be declared by the courts to be a political issue and not a legal one.
I began this blog post with the intention of simply sharing that much, and just sort of saying “isn’t that wacky?” and moving on, and hoping that maybe someone who knows better might write in the Comments to fill me in on further details about this. But, as I write it, I begin to think about and to question the whole notion.
Just about every territorial dispute in the world is based in legal arguments, based on Treaties, Hague Conventions, or other official documents of international law. The argument that the Hawaiian Kingdom still exists, under illegal occupation, is a legal argument, based in Treaties with other countries officially recognizing Hawaiʻi as a sovereign state, the lack of a Treaty with the US ceding sovereignty or territory, and US federal law which does not provide for Congress to have the power to unilaterally claim whatever territory it wishes. There are also those who argue that Japan’s abolition of the sovereign Kingdom of Ryukyu was illegal, under the Treaty of Vienna. So, pardon me for my ignorance, I am in no way a legal expert (or an expert in modern/contemporary international politics), so I fully accept that I may simply be totally mistaken about this, but, when it’s based in treaties and so forth, how is it not a legal issue?
The United Nations Declaration of Human Rights states in Article 15 that “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” The 1930 Hague Convention on Nationality contradicts this somewhat, saying that states have the power to refuse renunciations, and the power to determine who is and is not a national of that state. Contradictory though it may be, both are legal documents (right?) – and even if they’re not, nationality is a legal status with very real and severe legal significance. So, it seems to me, it’s a little bit crazy to think that all of this is merely a political matter, with no legal basis.
In any case, Taiwan might, legally, be under US sovereignty. How about that?