FROM:Peter C. Hansen with Comments Added by Hartzell-Lin

MEMORANDUM

DATE:April 1, 2008 ----- (with comments added April 8, 2008)

TO:Charles Camp

FROM:Peter C. Hansen with comments added by Hartzell-Lin

SUBJECT:Review of Lin v. United States at Commencement of Appeals Process

Pursuant to our agreement of March 27, 2008, I have undertaken a review of Lin v. United States as the appeals process begins in the case before the D.C. Circuit. I have done this with an eye to suggesting possible additional avenues for argument under international law. In order for me to undertake this review, you have provided me with the following materials:

(1)Plaintiffs’ amended complaint (“AC”) of March 19, 2007;

(2)Defendant’s motion to dismiss (“MTD”) of April 5, 2007;

(3)Plaintiffs’ memorandum of points and authorities in opposition to Defendant’s motion to dismiss (“PAO”) of April 19, 2007;

(4)Defendant’s reply to Plaintiffs’ opposition to Defendant’s motion to dismiss (“RPO”) of April 30, 2007; and

(5)Memorandum opinion and order by District Court Judge Collyer (“MO”) of March 18, 2008.

My review of the case is based on these specific case materials and certain scholarly and legal materials which I have consulted, and which are cited below where appropriate.

Summary of Review

The District Court appears, in dismissing the case pursuant to Baker, to have harbored a deep concern that an acknowledgement of U.S. “de jure sovereignty” over Taiwan would constitute a prescriptive status determination for Taiwan, or at a minimum thrust the U.S. into the role of claimant of sovereignty over Taiwan, in opposition to the People’s Republic of China (“PRC”). To avoid the possibility of the Circuit Court contracting a similar fear, it may be useful for Plaintiffs to put forward in its brief a step-by-step review of the nature of U.S. sovereignty over Taiwan, so that its limited origins and scope can be better appreciated by those judges who are not familiar with the relevant rules of international law.

The following sections divide the sovereignty issue into two parts, namely “negative sovereignty” and “positive sovereignty.” The former seeks to establish that Taiwan has not been subject to any non-U.S. sovereignty since 1952. The latter sets out the grounds for a limited, treaty-based sovereignty by the U.S. over Taiwan, and discusses some of the implications of this sovereignty for Plaintiffs’ INA claims.

Analysis of “Negative Sovereignty” Issues

To prepare the Circuit Court for a nuanced sovereignty argument, it will be important to direct the Circuit Court away from Defendant’s historical obfuscations and Baker-related arguments. One way Plaintiffs can do so is to focus on two core points: (1) the “principal occupying power” role of the U.S. has never been formally abrogated; and (2) the U.S. has never formally recognized a successor to Japan’s sovereignty over Taiwan.

1. A possible approach to the documentary evidence on appeal

To ensure that the Circuit Court’s attention is focused on the durability of the U.S. role as “primary occupying power” on Taiwan, it may be useful for Plaintiffs to focus exclusively on the terms of the San Francisco Peace Treaty (“SFPT”). This document alone suffices to establish the two critical points which Plaintiffs need to have accepted in order to succeed. First, under Article 2(b), Japan renounced all title to Taiwan. Second, Article 23(a) designated the U.S. the “principal occupying Power” (sic) over the territories covered by the treaty, including Taiwan (AC, paras. 2-3). Two documents that received significant District Court attention, and which may be characterized as secondary supports going forward, areGeneral MacArthur’s General Order No. 1 and the Japan-Republic of China (“ROC”) Treaty (RPO pp. 2-3; MO, pp. 2-3). Neither document is necessary to establish the two core “negative sovereignty” points mentioned above.

(H-L #1) Hartzell-Lin comments: It is best to use the terminology of “principal occupying power” exclusively, since this is stated in the SFPT Article 23a.

When Japan renounced all right, title, and claim over Taiwan, we view that as a territorial cession. Explanation:

In their broad original senses, the verb "cede" and the noun "cession" are used to denote the "surrendering of possession of," "relinquishment of sovereignty over," "renouncing of all right, title and claim to," etc.

In regard to all military occupation issues, it is important to remember that Taiwan was a territorial cession under the SFPT. This is different from the situations of Iraq, Afghanistan, West Berlin, etc. as these areas were not territorial cessions.

RE: the occupying power
The terminology of the occupying power is used with only some minor variations in all relevant conventions and treaties which dictate international norms regarding the disposition of persons and property in areas under military occupation. For example, while Geneva Conventions generally refer to the occupying power, the Hague Conventions often speak of the occupying state. Importantly, this term is given in the singular.
[[ As an aside, we therefore think it improper for there to be a “determination” that there are two occupying powers in Iraq. Among other problems, such a “determination” has resulted in much confusion about where the responsibility for the actions of the Coalition Provisional Authority lies. ]] The SFPT formulation of a “principal occupying power,” with all other occupiers being (by inference) “subordinate occupying powers,”therefore forming the relationship of “principal” to “agent,” is a much better methodology, and conforms to the specifications of the Hague and Geneva Conventions.
Importantly, the (principal) occupying power has a fiduciary duty over occupied territory. See

In terms of the “negative sovereignty” aspect, Mr. Hartzell has compiled a large amount of data, with many references to declassified documents from NARA. Please see –

2. Addressing Defendant’s historical interpretation

Plaintiffs’ task of establishing a sovereign link between the U.S. and Taiwan cannot be directly achieved by rebutting Defendant’s interpretation of historical U.S.-Taiwanese relations. Nevertheless, Plaintiffs can use a brief refutation of Defendant’s interpretation as a means not only of supporting the above-mentioned two core points, but also of demonstrating that Defendant, rather than Plaintiffs, runs afoul of Baker.

Defendant makes two cardinal errors in this area by: (1) claiming that “prior to 1979, it was the policy of the United States that the ROC included Taiwan” (MTD, pp. 3-4);[1] and (2) implying that Taiwan retained some sovereignty after 1978 by emphasizing, inter alia, President Carter’s express continuation in force of “[e]xisting international agreements and arrangements” between the U.S. and “Taiwan” (MTD, pp. 4-6, emphasis added by Defendant).[2] Fortunately, both of Defendant’s contentions contradict express U.S. policies of the period as to the unsettled question of territorial sovereignty over the island (see AC, para. 49; PAO, pp. 2-3; discussion of Cheng Fu Sheng, PAO, p. 15).

Plaintiffs may wish to emphasize here that: (1) neither the ROC nor any other State or government has obtained U.S.-recognized sovereignty over Taiwan, as is made clear by consistent U.S. policy statements; (2) Plantiffs’ arguments in this area seek merely to demonstrate the continued U.S. role as “primary occupying power” from 1952 to the present; and (3) no determination of Taiwan’s status is sought by Plaintiffs except with respect to the narrow issue of defining the scope of the existing U.S. treaty role there.

(H-L #2) Hartzell-Lin comments: The decision in Madsen v. Kinsella, 343 U.S. 341 (1952) quotes from Military Law and Precedents to say that: "Military government …. is an exercise of sovereignty …." The significance of Article 4b of the SFPT is explained more fully below.

Analysis of “Positive Sovereignty” Issues

Having attempted to dispose of Baker-related concerns by narrowing the “negative sovereignty” analysis down to the straightforward matter of affirming the U.S. treaty role on Taiwan, Plaintiffs will now face the more difficult question of establishing the nature and extent of U.S. sovereignty on Taiwan arising from its “primary occupying power” role under the SFPT. To do so, arguments based on international legal principles are required in order to establish that a certain level of sovereignty exists upon which a federal law argument in favor of Plaintiffs’ INA claims can be based.[3]

(H-L #3) Hartzell-Lin comments: Mr. Hansen’s exposition is excellent. Let us offer some further discussion of the general nature of US administrative authority over Taiwan based on the treaty. It is important to recognize the “corresponding duality” of certain clauses in the SFPT, in particular (Firstly) Articles 2b and 21, and then (Secondly) Articles 4b and 23a. Mr. Hansen’s analysis should be expanded to recognize the importance of these four Articles. This is explained as follows:

Articles 2b and 21:Article 2b specifies Japan’s renunciation of all right, title, and claim to Taiwan without the specification of a “receiving country,” then Article 21 confirms that Formosa and the Pescadores cannot be considered a benefit that China receives from the treaty. General Order No. 1 did direct Chiang Kai-shek to accept the surrender of Japanese troops in Taiwan, and those surrender ceremonies were held Oct. 25, 1945, but none of the Allies recognized any transfer of the sovereignty of Taiwan to China on that date. Under international law, the completion of the surrender ceremonies can only be interpreted as the beginning of the military occupation of Taiwan.

[[ Note: Neither the Hague nor Geneva Conventions place any special emphasis on “the troops which accept the surrender.” Hartzell-Lin stress that: over and above the legal criteria necessary for establishing when the military occupation began, and when it ended (if indeed it has ended), a determination of “the occupying power” is most important. ]]

Reference is made to the Commentaries on International Humanitarian Law by the International Committee of the Red Cross (ICRC), which contains the following specifications –

…the occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied Power of neither its statehood nor its sovereignty; it merely interferes with its power to exercise its rights.

Consequently occupation as a result of war, while representing actual possession to all appearances, cannot imply any right whatsoever to dispose of territory. As long as hostilities continue the Occupying Power cannot therefore annex the occupied territory, even if it occupies the whole of the territory concerned. A decision on that point can only be reached in the peace treaty. That is a universally recognized rule which is endorsed by jurists and confirmed by numerous rulings of international and national courts. (bold italics added)

Source:

…while a situation of occupation may in fact prevent a government from exercising sovereignty over part or all of its territory, this does not confer sovereign rights on the occupant. Occupation is by definition a temporary situation that interferes with, but does not diminish or terminate, the sovereign rights of the people under occupation.

Source:

Thus, Taiwan was Japanese sovereign territory until the coming into force of the SFPT on April 28, 1952.

Articles 4b and 23a: Article 23a specifies that the United States of America is the “principal occupying power” (over all areas under the geographic scope of the treaty.) But how is this specification to be understood? It is important to recognize that military occupation is conducted under military government. Article 4b specifies that theUnited States Military Government has jurisdiction rights and disposition rights over all Article 2 and 3 territories.

(The actual wording of Article 4bconfuses most civilians. However, an examination of the definition(s) of military government, the concept of military government, and the functioning of United States Military Government in conquered territory shows that the above is an accurate explanation of the meaning of Article 4b.)

Important Concept:The US Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments.

Some definitions of military government and descriptions of its functioning are provided as follows:

Ex Parte Milligan, 71 U.S. 2 (1866)

MILITARY GOVERNMENT is exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress;

Macleod v. U.S, 229 U.S. 416 (1913)

"The right to thus occupy an enemy's country and temporarily provide for its government has been recognized by previous action of the executive authority, and sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, and to that end may collect taxes and duties to support the military authority and carry on operations incident to the occupation."

Dooley v. U.S., 182 U.S. 222 (1901)

. . . . The doctrine upon this subject is thus summed up by Halleck in his work on International Law (vol. 2, page 444):"The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conqueror for authority to establish a government for the territory of the enemy in his possession, during its [182 U.S. 222, 231] military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world and confirmed by the writings of publicists and decisions of courts,- in fine, from the law of nations. . . . The municipal laws of a conquered territory or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones."

Birkhimer, p. 16

Military Government is that which is established by a commander over occupied enemy territory. To entitle it to recognition it is necessary that the authority of the State to which the territory permanently belongs should have ceased there to be exercised.

Birkhimer, p. 21

The erection of such governments over the persons and territory of a public enemy is an act of war; is in fact the exercise of hostilities without the use of unnecessary force. It derives its authority from the customs of war, and not the municipal law. It is a mode of retaining a conquest, of exercising supervision over an unfriendly population, and of subjecting malcontent non-combatants to the will of a superior force, so as to prevent them from engaging in hostilities, or inciting insurrections or breaches of the peace, or from giving aid and comfort to the enemy.

Birkhimer, p. 25 - 26

No proclamation of the part of the victorious commander is necessary to the lawful inauguration and enforcement of military government. That government results from the fact that the former sovereignty is ousted, and the opposing army how has control.

Birkhimer, p. 26

Military government continues till legally supplanted

New Mexico was not only conquered, but remained thereafter under the dominion of the United States. The provisional government established therein ordained laws and adopted a judicial system suited to the needs of the country. The Supreme Court of the United States held that these laws and this system legally might remain in force after the termination of the war and until modified either by the direct legislation of Congress or by the territorial government established by its authority. We have had the same experiences in Cuba, Porto Rico, and the Philippines.

[[ Note: At the most basic level, the terminology of "legally supplanted" is interpreted to mean "legally supplanted by a civil government fully recognized by the national (or "federal") government of the principal occupying power." This is exactly what happened in the situation of the Article 3 territories of the Ryukyus. For a comparison of the Ryukyus with Taiwan, see ]]

Birkhimer, p. 1

Moreover, military government may be exercised not only during the time that war is flagrant, but down to the period when it comports with the policy of the dominant power to establish civil jurisdiction.

[[ Note: To view this from another angle –For a territorial cession after war, the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted.

We believe that this rationale can be cited as part of the “customary laws of warfare.” It is established precedent. For details, see -- Territorial Cession after War and the End of Military Government ]]

[[ Note: At this juncture we can discuss the significance of the designation of a "receiving country" for a territorial cession in a peace treaty. This is explained as follows: The designation of a "receiving country" serves to authorize the Legislature of that country to pass legislation to establish civil government for the territory. Importantly however, before the beginning of civil government operations, the territory remains under the administrative authority of the (principal) occupying power.

More explicitly, it should be noted that after the coming into force of the Treaty of Paris, the four areas of Puerto Rico, the Philippines, Guam, and Cuba are all in exactly the same relationship to the United States. In other words, they are all under United States Military Government. This is despite the fact that Puerto Rico, the Philippines, and Guam were ceded to the United States, and Cubawas not. Cuba was a "limbo cession." ]]

[[ Note: Also see CHART regarding --

Areas Conquered by US military forces and therefore under USMG jurisdiction, with later "new disposition" by peace treaty at ]]

Winthrop's opus, as quoted in the US Supreme Court case of Madsen v. Kinsella, 343 U.S. 341 (1952):

In speaking of the nature of military government, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (second edition, 1920 reprint), says on page 800: "Military government . . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist . . . . The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part suspended and others substituted in their stead -- in the discretion of the governing authority."