INA 101 (a)(30)

The term "passport" means any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country.

PART 1: The Validity of ROC Passports under US law

Some US Executive Branch officials have publicly stated that "competent authority" as used in INA 101 (a) (30) means an official who is duly authorized to issue passports by the government of the country of issuance. Without a doubt, certain officials in Ministry of Foreign Affairs in Taiwan have been given due authorization by the Republic of China (ROC) government hierarchy to issue passports. However, the legal basis for such an authorization appears to be totally lacking.

The primary reason for this is that a classification of "ROC citizen" for native Taiwanese people is incorrect. This is explained as follows:

• Qing China ceded Taiwan to Japan in the 1895 Treaty of Shimonoseki. The validity of this was fully recognized in the 1922 Washington Naval Treaty, where "Formosa and the Pescadores" were classified as an insular area of Japan.
• After Pearl Harbor, the United States Congress declared war against the Empire of Japan, which included Taiwan. Following the events of early August 1945, the Japanese Emperor announced his intention to surrender, and the surrender ceremonies were held Sept. 2, 1945, on the USS Missouri, anchored in Tokyo Bay. In Taiwan, the Japanese surrender ceremonies were held on Oct. 25, 1945, thus marking the beginning of the military occupation.
• Under international law, the military occupation of Taiwan beginning in late Oct. 1945 could not affect the nationality of native Taiwanese persons, who in fact remained as Japanese nationals until their nationality was cancelled by the Japanese courts in the early 1950s.

PART 2: Nationality Recognition for Taiwan People

Based on a study of relevant legal principles, for the Taiwanese people to be bona fide ROC citizens, two conditions would need to be met:

First, the post-war treaty would have to award sovereignty of Taiwan to the ROC.

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. Details are provided below:

• In the San Francisco Peace Treaty (SFPT) of April 28, 1952, Japan renounced all right, claim, and title to Taiwan, but the Republic of China was not designated as the "receiving country."
• Moreover, 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 regards to the alleged incorporation of Taiwan into Chinese territory, there is no resolution of the National Assembly on record.
• The ROC Nationality Law was originally promulgated in February 1929, when Taiwan was a part of Japan. It was revised in February 2000, however there were no Articles addressing the mass naturalization of Taiwanese persons as ROC citizens.
• Article 26 of the SFPT serves to authorize the drafting of a peace treaty between the ROC and Japan. Article 10 he Sino-Japanese Peace Treaty (Treaty of Taipei) of August 5, 1952 specifies:

  "For the purpose of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendants who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores) . . . . . . "

• With reference to the above, it is easy to see that the conditions of Article 10 of the Sino-Japanese Peace Treaty in regards to "in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan . . . . " have yet to be fulfilled.

See Additional Commentary regarding Article 10 of the Sino-Japanese Peace Treaty, written by Ng, Yuzin Chiautong, published by  World United Formosans for Independence, Tokyo (1972)

PART 3: Brief Comments on Passport Issuing Authority

Taiwan (Formosa and the Pescadores) is self-governing dominion under Taiwan Relations Act, but, there is no passport issuing authority. Hence, it can be maintained that under US law the Taiwan governing authorities are counterfeiting "Republic of China passports."

In other words, the ROC Ministry of Foreign Affairs is not recognized under either the SFPT or the Taiwan Relations Act (a US domestic law) to issue passports for native Taiwanese persons, in the areas of "Formosa and the Pescadores."

As defined in INA 101 (a) (30), the ROC Ministry of Foreign affairs cannot be construed as the competent authority for issuing passports to these persons.

The false claims of "citizenship of the Republic of China" for native Taiwanese persons holding ROC passports should make those passports illegal under US law.

As an overseas territory under the jurisdiction of USMG, the issuance of "passports," "certificates of identity," etc. for native Taiwanese people must be specifically authorized by the US Executive Branch.

PART 4: The Taiwan Relations Act and its Limitations

The Taiwan Relations Act (TRA), enacted in 1979, was designed to manage U.S.-Taiwan relations after the United States officially shifted diplomatic recognition from the Republic of China (ROC) to the People's Republic of China (PRC) on December 31, 1978. The TRA establishes a framework for non-official relations, allowing the U.S. to maintain commercial, cultural, and other exchanges with Taiwan despite the absence of formal diplomatic ties. However, it’s important to underscore that the TRA does not confer statehood upon Taiwan, nor does it recognize the ROC as a sovereign entity.

The country codes adopted by the International Civil Aviation Organization (ICAO), used in machine-readable passports, do not contain item designations for either the country or the nationality of Republic of China. In this respect, the appropriateness of ICAO rules is reinforced by examining the Taiwan Relations Act and the post-war San Francisco Peace Treaty.

A critical point in understanding the limitations of the TRA lies in its legislative intent. The TRA explicitly allows for continued relations with Taiwan but is clear that it does so under the framework of U.S. policy, which no longer recognizes the ROC as the legitimate government of China. Thus, any authority granted to Taiwan under this act is limited to the scope of unofficial relations and does not equate to the formal recognition required to legitimize acts of sovereignty, such as issuing passports.

Issuing passports is inherently a sovereign function, typically exercised by recognized governments over their citizens. Given that the U.S. does not recognize the ROC as a sovereign state, the TRA cannot logically serve as a foundation for the ROC’s Ministry of Foreign Affairs to issue valid passports to the people of Taiwan under U.S. immigration law. Moreover, the U.S. State Department’s recognition of ROC-issued passports as legally valid under INA 101(a)(30) seems to contradict the broader U.S. policy of non-recognition. This creates an inconsistency, as accepting ROC passports implies recognition of the ROC's sovereign act, which stands in direct opposition to the diplomatic position the U.S. has maintained since 1979.

The TRA was not designed to confer any form of sovereignty upon Taiwan or to create a legal framework in which the ROC could operate as a recognized government. Rather, it was a tool for preserving functional relations without official recognition. By recognizing the validity of ROC passports, the U.S. appears to conflate practical necessity with legal legitimacy, allowing Taiwan's status to remain ambiguous. In doing so, it potentially undermines the very intent of the TRA, which is to maintain unofficial relations without conferring sovereign rights. This contradiction is at the heart of the ROC's inability to be considered the "competent authority" under U.S. law for issuing passports.

In sum, the TRA was designed to facilitate practical relations but did not confer any form of recognition that would allow the ROC to exercise sovereign functions like passport issuance. The reliance on TRA as a basis for passport validity runs contrary to its legislative intent and raises fundamental legal contradictions regarding Taiwan’s status under U.S. law.

PART 5: Addressing Counterarguments and the International Acceptance of ROC Passports

One of the most common counterarguments to the assertion that the ROC Ministry of Foreign Affairs cannot be considered the "competent authority" under U.S. law for issuing passports to people in Taiwan is the widespread international acceptance of ROC passports. Many countries, including the United States, allow individuals holding ROC passports to travel, work, and reside within their territories. On a practical level, this broad acceptance creates the impression that the ROC’s passport issuance is a legitimate exercise of sovereignty. However, it is crucial to distinguish between practical acceptance and legal recognition under the specific context of U.S. immigration law and international law.

The international community’s acceptance of ROC passports primarily stems from pragmatic considerations. Many countries, including the U.S., engage in various forms of unofficial relations with Taiwan, and the use of ROC passports allows for a simplified way of processing travel, trade, and immigration. The issuance of these passports enables Taiwanese citizens to engage with the world and participate in global mobility. Nonetheless, the practical acceptance of these documents does not equate to legal recognition of the ROC’s sovereignty, especially in cases where the issuing authority is in question.

From the perspective of U.S. immigration law, particularly the Immigration and Nationality Act (INA), the legality of passport issuance hinges on the concept of "competent authority," as outlined in INA 101(a)(30). While countries may accept ROC passports for practical reasons, U.S. law demands that passports be issued by an authority recognized as sovereign over the relevant population. Since the U.S. ceased recognizing the ROC as the legitimate government of China in 1979 and does not formally recognize Taiwan as a sovereign state, the ROC’s Ministry of Foreign Affairs lacks the standing to be considered a "competent authority" for passport issuance.

This distinction between practical use and legal legitimacy is important. The global acceptance of ROC passports may reflect a need for functionality in international relations, but it does not override the legal analysis of competent authority under U.S. law. Even if ROC passports are widely accepted for travel purposes, they are still issued by a government that is not recognized as sovereign by the United States. Therefore, from a legal standpoint, the issuance of these passports falls short of the standards set by the INA.

In other words, the fact that many countries accept the use of ROC passports by Taiwan residents does not change the legal conclusion that the ROC lacks the authority to issue such documents under U.S. law. As with many aspects of international diplomacy, there is a difference between what is pragmatically accepted and what is legally valid. In this case, while the ROC’s passports are accepted for convenience and practical interaction, their issuance is not consistent with the U.S. legal framework, which prioritizes the recognition of competent authorities within the scope of immigration law.

In conclusion, the international use of ROC passports, though practical, does not constitute legal validation of their issuance under U.S. immigration law. Acceptance by other countries is driven by convenience, but it does not override the legal requirements for competent authority as defined by the INA. The ROC’s Ministry of Foreign Affairs, given the U.S.’s non-recognition of its sovereignty, remains an entity without the legal standing to issue passports in compliance with U.S. law.

PART 6: The Legal Basis for Counterfeiting Claims Regarding ROC Passports

The argument that the ROC Ministry of Foreign Affairs is effectively counterfeiting passports issued to Taiwanese citizens stems from the core premise that the ROC lacks sovereign authority over Taiwan under both international law and U.S. domestic law. The following legal arguments could support this claim:

1. Sovereignty and Legitimate Passport Issuance

Under international law, passports are a symbol of state sovereignty, serving as documentation that the bearer is a citizen of the issuing nation. The issuance of passports is an act that can only be carried out by a recognized government with jurisdiction over its citizens. Since the U.S. no longer recognizes the ROC as the legal government of China (as of 1979) and has never formally recognized its sovereignty over Taiwan, the ROC’s Ministry of Foreign Affairs lacks the requisite legal authority to issue passports to people in Taiwan.

Given that the legal authority to issue passports arises from a recognized sovereign's relationship to its citizens, the ROC’s continued issuance of passports without such recognition renders the act legally questionable. From a U.S. legal perspective, this could be construed as "counterfeiting" because the ROC is asserting a sovereign power that it does not possess under recognized legal frameworks.

2. Counterfeiting Defined in U.S. Law

Under U.S. law, counterfeiting generally refers to the unauthorized creation or issuance of a document that purports to have official status. In the context of passports, U.S. law criminalizes the unauthorized or fraudulent production of such documents. For instance, 18 U.S.C. § 1543 specifically addresses the falsification or forgery of passports, making it a federal offense to falsely make or counterfeit a passport issued by or under the authority of the United States. This statute targets any act that involves producing, altering, or using a counterfeit passport with the intent to defraud, punishable by significant fines and imprisonment.

Additionally, 18 U.S.C. § 1028 addresses broader issues of fraud and related activity in connection with identification documents, authentication features, and information. This statute criminalizes the production, transfer, possession, or use of false identification documents, including those that are counterfeit, fictitious, or altered. The law covers not just passports but a wide range of identification documents that serve to verify an individual’s identity or status. Under 18 U.S.C. § 1028, the fraudulent or unauthorized creation or use of such identification documents is considered a serious federal offense, particularly when used to facilitate unlawful activities, mislead authorities, or evade legal responsibilities.

While these statutes are directly applicable to U.S. documents, their principles can be analogously applied to the context of ROC passports. The ROC lacks recognized sovereignty over Taiwan and thus has no legal standing to issue passports for native Taiwanese citizens under U.S. law. As a result, ROC-issued passports could be viewed as unauthorized or fraudulent under U.S. legal principles, akin to counterfeiting as defined under 18 U.S.C. § 1543 and § 1028.

These ROC passports, despite being widely accepted for practical reasons, fundamentally lack the legal legitimacy required by U.S. law to be recognized as valid identification documents issued by a competent authority. The issuance of such passports involves creating an identification document that purports to be official but lacks the necessary sovereign backing, potentially placing them within the scope of fraudulent or counterfeit documents as contemplated by U.S. statutes.

Furthermore, under 18 U.S.C. § 1028, the possession or use of ROC passports could theoretically be construed as possession or use of a document intended to misrepresent identity or nationality, especially in contexts where legal recognition and authorization of the issuing body are central. This raises critical questions about the legal status of ROC passports and the implications of their use under U.S. law.

3. Violation of U.S. Immigration and Nationality Act (INA) Provisions

As discussed in previous sections, INA 101(a)(30) specifies that a passport must be issued by a "competent authority." Since the ROC’s Ministry of Foreign Affairs does not meet the definition of a competent authority under U.S. law, any passports it issues could be considered illegitimate. The issuance of passports without the required legal authority could therefore be interpreted as producing documents that falsely purport to carry the weight of sovereign authority, violating the legal framework established by U.S. immigration law.

4. Lack of Treaty-Based Authorization

As established, no post-WWII treaty, including the San Francisco Peace Treaty (SFPT) or the Treaty of Taipei, conferred sovereignty over Taiwan to the ROC. The absence of a legal transfer of sovereignty means that the ROC lacks the authority to naturalize the native population of Taiwan or issue legal passports to them. Without a recognized legal basis, the passports issued by the ROC Ministry of Foreign Affairs could be considered unauthorized and fraudulent under the principles of international law, thus falling into the category of counterfeit documentation.

5. International Law and the Status of Occupied Territories

Under the principles of international law, particularly those enshrined in the Hague Conventions and subsequent legal frameworks governing military occupation, the occupying power (which in this case should most properly be recognized as the United States under the SFPT) is responsible for issuing identity documents and controlling legal status, not the entity acting as the administrative government. The ROC’s Ministry of Foreign Affairs, acting without legal jurisdiction over Taiwan, may be seen as unlawfully assuming the sovereign function of passport issuance, thus furthering the argument of counterfeiting.

6. Potential Violations of U.S. Domestic and International Law

The issuance of ROC passports by an unrecognized government also raises concerns about the legal validity of such documents in the context of U.S. law. U.S. courts have consistently upheld that only a recognized government can issue passports. In light of this, the continued issuance of passports by the ROC Ministry of Foreign Affairs could be seen as an unlawful act that undermines the framework of international law and U.S. domestic law regarding the issuance and recognition of sovereign documents.

Conclusion: The Case for Counterfeiting

In summary, the legal basis for claiming that the ROC Ministry of Foreign Affairs is counterfeiting passports rests on the fact that it lacks both international and U.S. recognition as a sovereign entity with jurisdiction over Taiwan. Issuing passports without the necessary legal authority, whether under international law or U.S. immigration law, could be considered an act of counterfeiting. The practical acceptance of these passports by various countries does not legitimize the ROC’s authority to issue them, and the U.S. State Department’s recognition of their validity contradicts the legal framework of competent authority under INA 101(a)(30). Therefore, from a legal standpoint, ROC passports may be viewed as unauthorized and, in essence, counterfeit documents.