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Clearly, the terminology of "Taiwan governing authorities" was created under US law by the passage of the Taiwan Relations Act in 1979. Therefore, it is the responsibility of US officials to provide the necessary oversight and supervision in enforcing the use of this terminology in the dealings between all organizations, public and private, and all individuals, in the USA and Taiwan.
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Does the content of the Taiwan Relations Act (TRA) serve to authorize the establishment of a ROC Ministry of National Defense in Taiwan and its implementation of mandatory military conscription policies over the local populace? Based on a quick reading, it appears that the TRA does not recognize the nomenclature of “Republic of China” after Jan. 1, 1979. Or is such an interpretation in error?
The TRA uses the terminology of governing authorities on Taiwan, or simply “Taiwan governing authorities.” But, in fact, is this terminology of “Taiwan governing authorities” just a euphemism or some kind of alternative nomenclature or substitute nomenclature for “Republic of China”?
To answer this question, let’s look at the situation of a young Taiwan male who receives a military conscription notice. Let’s imagine that for various personal reasons, he does not want to serve in the military, hence he refuses to be drafted.
Our question: Will he be considered in violation of the criminal code and military service system laws of the “Taiwan governing authorities?” The answer is “No,” because there is no organization in Taiwan which operates under the title of “Taiwan governing authorities” and has any such laws.
However, this Taiwan male will be in violation of the criminal code and military service system laws of the Republic of China. He will be prosecuted as being in violation of the ROC criminal law if he refuses to serve in the ROC military.
Of course, many other examples could be given. Any Taiwan person who owns real estate and absolutely refuses to pay Taiwanese land and building taxes will also find himself/herself in an uncomfortable position. At some point, he/she may find that that the real estate is being seized by the government.
After the real estate is sold during an official government auction, the outstanding taxes will be deducted from the amount received.
Importantly, the land and building taxes in question are not being assessed under the authority of the “Taiwan governing authorities.” Those taxes are assessed under the authority of the Republic of China, which has established a legal framework in Taiwan based on its own Constitution.
The "Republic of China" Constitution currently in use in Taiwan was promulgated on January 1, 1947, when the Chinese Nationalist Party (KMT) still ruled China. It came into force on December 25, 1947. It was brought over from Mainland China by the KMT during the Chinese Civil War period of the late 1940's. During this period of time, Taiwan was under military occupation, and had not been incorporated into China’s national territory.
In the Taiwan newspapers, reports are frequently given about local citizens who are complaining that the government has conducted many types of illegal activities in Taiwan in the past, and should now make full restitution. One common category of complaints concerns private land which was seized in previous decades, and for which compensation has never been paid. However, all lawsuits concerning these issues are conducted in the courts of the “Republic of China,” because those are the only courts in existence in Taiwan.
Unfortunately, however, when dealing with such issues, the burden of documentary proof which the local Taiwan plaintiffs are asked to produce is often insurmountable. At the same time, the complications which the ROC judges can delve into and bring forward in investigating such lawsuits are seemingly endless. While some people might suppose that the handling of such lawsuits by the separately-constituted courts of the “Taiwan governing authorities” might be more fair and objective, in fact there are no such courts which could adjudicate such cases.
Hence, the idea that “Taiwan governing authorities” is actually some kind of alternative nomenclature or substitute nomenclature for “Republic of China” is incorrect. In Taiwan at present, in reality an organization calling itself “Taiwan governing authorities” has not yet been formed. Why is this? It is because the US officials are not following the spirit and the letter of the Taiwan Relations Act in their dealings with Taiwan. Clearly, the terminology of "Taiwan governing authorities" was created under US law by the passage of the Taiwan Relations Act in 1979. Therefore, it is the responsibility of US officials to provide the necessary oversight and supervision in enforcing the use of this terminology in the dealings between all organizations, public and private, and all individuals, in the USA and Taiwan. Are US officials doing this? That is an interesting question.
Here is one case study. In response to the COVID-19 epidemic, Vaccination Records began to be issued in Taiwan in 2021 for persons needing to travel overseas. The issuing agency for these Vaccination Records is “Centers for Disease Control, Ministry of Health and Welfare, Republic of China (Taiwan).” When travelling internationally, such records are easily confused with those issued by the authorities in the People’s Republic of China. Most importantly, US government officials should be notifying their Taiwan counterparts in the Ministry of Health and Welfare that the wording of “Republic of China” should not appear on such records when being presented to United States agencies, organizations, etc. as proof of vaccinations received. Have US government officials done this? The answer is No, thus clearly indicating that these US government officials are not adhering to the Taiwan Relations Act.
Most people have heard of the "One China Policy" of the United States. Most people have also heard US government officials continually stress that the People’s Republic of China is recognized as the “the sole legitimate government of China.” It would appear to follow directly that in any interaction with US organizations, either public or private, or with US individuals, the PRC should enjoy exclusive use of the word "China" in any and all official paperwork, documentation, labeling, etc. Such a conclusion is reinforced by noting that under the TRA, the United States does not recognize the nomenclature of "Republic of China" after Jan. 1, 1979.
For US citizens who want to invest in Taiwan, and don’t want to violate their government’s “One China Policy,” of course their preference is to deal with a local Taiwan government organization operating under the auspices of the “Taiwan governing authorities.” However, upon searching for the appropriate office to handle their investment application, they are directed to the Investment Commission, Ministry of Economic Affairs (MOEA). According to the history of this organization, as published on its website, the MOEA is part of the Executive Yuan, Republic of China, and was founded in 1937.
So again, one is confronted with the reality that in Taiwan there is no organization called “Taiwan governing authorities,” there is only the Republic of China. Additionally, there is a Republic of China Constitution which provides the basic legal framework on which the members of the Legislative Yuan continually make a wide variety of additional laws which are signed by the ROC President and enforced in the areas of “Formosa and the Pescadores.”
US President Jimmy Carter announced the break in diplomatic relations with the Republic of China regime in Taiwan effective Dec. 31, 1978, and the establishment of formal diplomatic relations with the People's Republic of China as of Jan. 1, 1979.
The U.S. Congress quickly began work on drafting a law
The nomenclature of "Republic of China Relations Act" was specifically not selected; instead the new law was named the Taiwan Relations Act, commonly abbreviated as TRA. After signing by President Carter, this new law came into force (retroactively) on Jan. 1, 1979.
This law contains 18 sections. A careful review of this law shows that in four separate places, the following phraseology is used -
President Carter apparently came to the realization that it was time to end the legal fiction that the Republic of China was the legal government of China, when in fact the ROC central government was headquartered in Taiwan, which is a territory with a legal status of “undetermined,” (and not part of the national territory of the Republic of China).
Unfortunately, during that era, and even in later eras, and up to the current day, neither the US President, Executive Branch officials, nor congresspersons who deal with the TRA appear to understand that the simple logic that the legal status of the ROC regime in Taiwan, at the most basic level, is “proxy occupying forces.” This must be due to the fact that officials in these positions typically have no knowledge of the laws of war of the post-Napoleonic period.
Then, in the 1990s and into the 21st century, various people began to advance the concept that the terminology of “Taiwan governing authorities” in the TRA simply refers to the Republic of China.
However, an examination of the legislative history of the TRA, as well as the content of the law itself, quickly shows that such an assertion is completely false.
Section 15 of the Taiwan Relations Act provides a definition of the word “Taiwan” –
A close reading of this definition confirms that in regard to the “governing authorities on Taiwan” the terminology of “Republic of China” is only applicable to the period before January 1, 1979. After this date, the “Republic of China” nomenclature should not be used.
Such an interpretation goes back to the legislative history of this Act in the US Congress. From the outset, there was broad Republican and Democratic consensus that it be named the “Taiwan Relations Act.” Indeed, not a single Congressperson urged the addition of a stipulation that this Act should have a formally recognized alternate nomenclature of "Republic of China Relations Act."
However, beginning in 1979, and extending up to the present day, when US Executive Branch officials and members of Congress visit Taiwan, it is never heard that they have asked to visit the offices of the “Taiwan governing authorities.” According to newspaper reports, during their visits to Taiwan the daily schedules of these US officials are full of meetings and banquets with officials from all levels of the government agencies of the Republic of China. In the places where these US executive branch officials and members of Congress meet together in Taiwan, it is often seen that the flag of the Republic of China, the national emblem, and the portrait of the National Father of the Republic of China are prominently displayed.
From a practical standpoint, as long-term US passport holding residents of Taiwan can confirm, it is possible to visit hundreds of government offices in Taiwan, but it will still be highly difficult (actually “impossible” would be the more accurate term) to find any office which claims that it is operating under the authority of a so-called “Taiwan governing authorities.”
Contrastingly, it is quickly noticed that all government offices in Taiwan operate under the announced authority of a Republic of China. Indeed, the ROC in Taiwan currently enforces its own constitution, civil law, administrative law, a nationality law, criminal law, laws regarding the registration of profit-making enterprises, commercial activities, the payment of taxes, etc. In Taiwan, the violation of many of these laws is subject to criminal penalties. This entire legal framework is explicitly stated to be under the authority of the “Republic of China,” and indeed the President, Vice-President, Premier, and other officials who serve in the ROC government in Taiwan must take an oath of loyalty to the ROC. It is easy to search on the internet and find images of the ROC flag, but no separately designed flag which represents the “Taiwan governing authorities” will be found.
In summary, the “Taiwan governing authorities” should not be regarded as synonymous with the “Republic of China.” US Senators, Congresspersons, and Executive Branch officials should wake up to the reality of this situation.
In a similar fashion, after examining the Taiwan Flowchart, most people should be able to understand that “Taiwan” should not be regarded as a synonym for the “Republic of China.” This is for the simple reason that according to the laws of the Republic of China, Taiwan has never been incorporated into the national territory of the ROC.
It is not hard to see that from 1979 to the present, US Dept. of State officials have never followed the spirit and the letter of the Taiwan Relations Act, which clearly forbids the use of the term “Republic of China” on any and all official documents and documentation (broadly construed) from Taiwan which come in contact with US officialdom in the course of the daily activities conducted in official US government agencies.
It is certainly true that the human rights of the local people in Taiwan are continually being violated by being forced to live under the Constitution and legal structure of a country which does not hold the territorial sovereignty of their homeland (Taiwan), and which is in fact a “foreign regime,” and which issues passports and ID cards in the name of the non-existent country of the Republic of China.
The fact that this issue is totally outside the line of sight of US Senators and Congresspersons is amazing. Perhaps the editors of this website should make the humble suggestion that US Senators and Congresspersons should urge the non-sovereign Republic of China quasi-government to hold a design competition for a new Taiwan passport and Taiwan flag.
Additionally, it is notable that in the Selective Draft Law Cases, the US Supreme Court ruled that "military conscription" policies must be based on national sovereignty. Since US government officials have continually stated that the ROC/Taiwan is a non-sovereign entity, this should mean that military conscription in Taiwan, under the authority of a Republic of China legal framework, is illegal. All US government officials should take note of this fact.
Someday in the future, whether local “self defense forces” might be legally organized under the authority of USCAT is a separate consideration.
