A hard fought battle is raging in the District of Columbia U.S. District Court over the legal status of Taiwan between residents of the Pacific island and the Justice Department. Roger Lin, the Taiwan Nation Party, and others are plaintiffs in a lawsuit, Lin, et. al. vs United States of America, 06-1825, seeking a judicial declaration that the residents of Taiwan are U. S. "nationals" like the residents of American Samoa.
The Justice Department has filed a motion to dismiss the lawsuit, filed in October 2006, as a political issue beyond the scope of the judiciary. Meanwhile, the Taiwan plaintiffs are pressing for discovery to make their case. Already the plaintiffs have assembled an impressive legal history of the island that does much to explain the murky status as a non-nation.
Twenty-four countries recognize the independence of Taiwan; however, the United States does not. Caught up in the cold war and post-World War II tension between communist China and the Republic of China, the U.S. allowed refugees to settle and govern themselves on Taiwan, formerly known as Formosa, as a government-in-exile.
Japan had long controlled Formosa and surrounding smaller islands since the Sino-Japanese War in 1895 but lost the island group to the United States when it was defeated in World War II. Although the United States was the occupying military power under international law, the Chinese Nationalists were permitted to act as U.S. agents in the actual surrender of Japanese soldiers in 1945.
On June 27, 1950, with the outbreak of the Korean War, President Truman reiterated U.S. military responsibility over Formosa while the Nationalist Chinese government-in-exile continued the claim it was the legal government of mainland China. Truman called Taiwan's legal status "undetermined."
On April 28, 1952, Japan formally ceded Formosa and surrounding islands to the United States in the Treaty of San Francisco. The U.S. has never ceded its possession to any other nation and has not relinquished its ownership to the current Taiwanese government creating the current unsettled legal status of the island group.
On August 5, 1952, Japan formally entered into a peace treaty with the Republic of China with the Treaty of Taipei but did not cede the island to the Taiwanese government.
In December 1954, Secretary of State John Foster Dulles testified before the Senate that, "technical sovereignty over Formosa and the Pescadores has never been settled."
On February 8, 1955, with adoption of a mutual defense treaty with the Republic of China the Senate Committee on Foreign Relations issued a statement that the mutual defense treaty for Taiwan did not alter the pre-existing status. "It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies."
The closest the status of Taiwan has ever come to the full attention of the American public was during the 1960 presidential debate between Kennedy and Nixon when they squabbled over the islands of Qumoy and Matsu, then in the news because of Chinese military maneuvers.
Because of the cold war, the United Nations continued to recognize the Republic of China as the legitimate government of mainland China. After that recognition was dropped in October 1971, the U.N. declined to recognize the Republic of China as the government of Taiwan and the delegation was expelled. The United Nations has since refused to recognize Taiwan as an independent nation fourteen times.
In January 1979, the Taiwan Relations Act was made law by Congress to protect and promote commercial ties with "the people of Taiwan" but did not recognize the government of Taiwan as an independent nation.
In July 1982, the United States gave "Six Assurances" to the Taiwanese government that it would not alter its position on the sovereignty of Taiwan and China.
On October 25, 2004, Secretary of State Colin Powell stated, "Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy."
Lin and his co-plaintiffs are now arguing that they deserve to enjoy the protections of the Constitution as do other "nationals" in U.S. oversees territories.
The Justice Department has responded, "For plaintiffs to prevail in this action this Court would have to declare the United States sovereign over Taiwan."
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