Sheng v. Rogers
Main Topic of Adjudication: LEGAL STATUS OF TAIWAN
In 1952 several citizens of the Republic of China, and carrying passports identifying them to be of Chinese nationality, traveled to the United States to receive military training with the US Air Force. After completing their training, they overstayed their visas in the United States. Some years later, their whereabouts in the United States were determined, and the US Immigration and Naturalization Service (INS), according to law, issued warrants for their deportation. Deportation to mainland China was regarded as impossible due to its control by the Communist regime, hence the US government’s position was that it intended to deport these men to Formosa.
The plaintiffs thereupon brought this lawsuit against the US Immigration and Naturalization Service, and its superior agency, stating that that their deportation to Formosa would be contrary to law.
In the United States, the places to which an alien may be deported are expressly and specifically defined by statute. The provisions now in effect are contained in 8 USC 1253, (as amended June 27, 1952) which enumerates eight possibilities as places of deportation. Each possibility, however, is expressly stated to be a country. Among them is the country from which the alien last entered the United States; the country in which is located the foreign port at which he embarked for the United States; the country in which he was born; the country in which his place of birth is situated when deportation is ordered; any country in which he resided for some time prior to entering the United States; the country which had sovereignty over his birthplace at the time of his birth, etc. It should be emphasized, however, that in each instance the place to which deportation may be ordered is a country and not a particular location.
Since the plaintiffs are natives and citizens of the Republic of China, their deportation would be properly made to the Republic of China. The question then arises whether Formosa is part of the Republic of China. If it is, they may lawfully be deported to Formosa.
It is fundamental that such questions as whether a foreign country or a foreign government should be formally recognized; whether a particular nation has sovereignty over a specified area; and what are the boundaries of a foreign country, are problems that are not to be solved by the courts, but are political matters (or so-called "political questions") that are to be decided by the executive and legislative departments of the Government. On such topics the President and the Secretary of State speak for the United States, and the courts are obligated to follow their pronouncements.
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US Supreme Court reference:
The conduct of our foreign relations is committed by the Constitution to the executive and legislative -- the political -- departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision. Who is the sovereign de jure or de facto of a foreign territory is a political question the determination of which by the political departments of the government conclusively binds the judges.
US Supreme Court, Oetjen v. Central Leather Co.,
246 U.S. 297 (1918) |
The judges therefore felt it necessary, therefore, to ascertain and be guided by the determination of the Department of State (DOS) on the question of whether Formosa is a part of the Republic of China. Undoubtedly, the officials at DOS are aware of all facets of this subject, and have much detailed knowledge; both from the standpoint of US law, and international law as well. Therefore, in the process of collecting all evidence relevant to deciding this case, this court found it advisable to undertake a detailed consultation with DOS.
Quote from the decision
A Department of State Bulletin, Vol. XXXIX, No. 1017, dated December 22, 1958, which constitutes an official expression of the foreign policy of the United States, contains the following discussion of the problem in which we are interested (pp. 1005 and 1009):
'Since the middle of the 17th century and up to 1895 Formosa was a part of the Chinese Empire. In 1895 under the Treaty of Shimonoseki China ceded Formosa to Japan. In the Cairo conference in November 1943 the United States, United Kingdom, and China declared it was their 'purpose' that Manchuria, Formosa, and the Pescadores 'shall be restored to the Republic of China'. Thereafter in August 1945 in the Potsdam conference the United States, United Kingdom, and China declared that 'the terms of the Cairo Declaration shall be carried out.' This Potsdam declaration was subsequently adhered to by the U.S.S.R. On Sept. 2, 1945, the Japanese Government, in the instrument of surrender, accepted the provisions of the declaration. The Supreme Allied Commander for the Allied Powers then issued Directive No. 1 under which the Japanese Imperial Headquarters issued General Order No. 1 requiring Japanese commanders in Formosa to surrender to Generalissimo Chiang Kai-shek of the Republic of China. Since September 1945 the United States and the other Allied Powers have accepted the exercise of Chinese authority over the island. In article 2 of the Japanese Peace Treaty, which entered into force April 28, 1952, Japan renounced all 'right, title and claim' to Formosa. Neither this agreement nor any other agreement thereafter has purported to transfer the sovereignty of Formosa to China.'
'In giving the historical background of Formosa it has been pointed out that at Cairo the Allies stated it was their purpose to restore Formosa to Chinese sovereignty and at the end of the war the Republic of China received the surrender of Japanese forces in Formosa. It has also been pointed out that under the Japanese Peace Treaty Japan renounced all right, title, and claim to Formosa. However, neither in that treaty nor in any other treaty has there been any definitive cession to China of Formosa. The situation is, then, one where the Allied Powers still have to come to some agreement or treaty with respect to the status of Formosa.' (Emphasis supplied.)
From the foregoing official pronouncements of the Department of State, it appears that the United States recognizes the Government of the Republic of China as the legal government of China; that the provisional capital of the Republic of China has been at Taipei, Taiwan (Formosa) since December 1949; that the Government of the Republic of China exercises authority over the island; that the sovereignty of Formosa has not been transferred to China; and that Formosa is not a part of China as a country, at least not as yet, and not until and unless appropriate treaties are hereafter entered into. Formosa may be said to be a territory or an area occupied and administered by the Government of the Republic of China, but is not officially recognized as being a part of the Republic of China. Expressions of the State Department are drawn with care and circumspection to refrain from such recognition.
[Sheng v. Rogers, D.C. Circuit, Oct. 6, 1959]
Conclusion of the Court (Summary):Under existing US law, deportation may be effected only to a specific "country," and in the current case before the court this would be the Republic of China. However, DOS has offered substantial evidence to prove that that Formosa has never been legally incorporated into the Republic of China, and consequently Formosa is not a part of the Republic of China’s national territory. The inescapable conclusion for this Court is that the plaintiffs may not be deported to Formosa.
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Epilogue
In regard to making a determination of whether Taiwan (aka "Formosa and the Pescadores") should be treated as a country under US law, the decision made in this court case was later superceded by certain provisions in the Taiwan Relations Act, effective January 1, 1979.
However, the fact remains that no actions completed, pronouncements made, or documents issued from the 1940s to the present have resulted in "Formosa and the Pescadores" being legally incorporated into the Republic of China, and becoming a part of the Republic of China’s national territory.
Such an analysis clearly shows that
Any supposed cancellation of the 1895 Shimonoseki Treaty (before April 1952)
China’s Declaration of War against Japan, Dec. 9, 1941
Cairo Declaration, Dec. 1, 1943
Potsdam Proclamation, July 26, 1945
General Order No. 1, Sept. 2, 1945
Japanese surrender documents, Sept. 2, 1945
Japanese surrender ceremonies in Taipei, Oct. 25, 1945
San Francisco Peace Treaty (SFPT), April 28, 1952
Treaty of Taipei, Aug. 5, 1952
did not result in a transfer of the territorial sovereignty of Taiwan (aka "Formosa and the Pescadores") to the Republic of China.
Many China friendly scholars like to make the assertion that the Taiwan question is an internal affair of China, however a thorough reading of the findings in the Sheng v. Rogers decision shows that this is not true.
Many Chinese scholars also like to assert that the 1895 Treaty of Shimonoseki was declared null and void by Article 4 of the Treaty of Taipei (Aug. 5, 1952). Hence (in their reasoning) there was no cession of Taiwan to Japan, and Taiwan has belonged to China continuously.
Article 4
It is recognised that all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of the war.
However, this view is mistaken. The correct principle is stated as follows: Under international law, when a treaty is nullified, canceled, invalidated, etc. the only clauses which are affected are "active clauses." Since the Qing Dynasty cession of Taiwan to Japan was already completed in 1895 via the specifications of Article 2 of that Treaty, this Article 2 is no longer an "active clause." Therefore at any future date, it is no longer subject to retroactive cancellation.
A thorough review of hundreds of international treaties in the post-Napoleonic period have failed to uncover any examples which do not follow this principle.
While this Sheng v. Rogers court case did not make any ruling on what "political entity" is holding Taiwan’s sovereignty, it did definitely determine that the Republic of China is not holding Taiwan’s sovereignty. Such a determination establishes an important legal precedent for dealing with any and all issues in relation to a discussion of the legal status of the Republic of China.
REPUBLIC OF CHINA NATIONALITY
As most people know, the passport and ID card held by each Taiwan person identifies the holder as having Republic of China nationality. This appears to be quite contradictory however, since this Sheng v. Rogers court case determined that Formosa had never been incorporated into the national territory of the Republic of China, and was not a part of the ROC’s national territory.
Unfortunately however, in regard to the period of the 1950s, the decision in this court case did not undertake any further investigation, and attempt to offer a legally-justifiable interpretation regarding what nationality documents the native Taiwan people should be holding.
Moving on to the early 1970s the United States adopted a One China Policy, and signed a Joint Communique with the PRC. The Taiwan Relations Act came into force on Jan. 1, 1979, and later a Second Communique was issued. Certainly, if examined from the period of the early 1980s to the present, it is even more true that a "Republic of China nationality" designation does not exist under US law.
In order to challenge this "Republic of China nationality" designation, some lawsuits regarding Taiwan's status, (or "certain aspects of that status") have been brought before the US courts in the 21st century.
Discussing, overviewing, and dissecting these lawsuits, the commentary in many Taiwan discussion groups has generally focused on the US Court of Appeals decisions which held that the issues raised were political and not legal. Several commentators pointed out that:
legalistic discussions often end up being discussions of futility since "the powers in charge" in the US will ignore them.
However, this type of analysis is not 100% correct. The court cases launched by parties in Taiwan were arguing about the "nationality" issue. The District Court(s) and the US Court of Appeals came to the conclusion that in order to adjudicate such subject matter, they would need to first determine the sovereign of Taiwan.
The judges recognized that foreign policy decisions were up to the President. That corresponds with the determination of the judges in the Sheng v. Rogers decision (D.C. Circuit, Oct. 6, 1959).
The US President, normally in conjunction with Dept. of State officials, would have to decide who the sovereign of Taiwan is. To date here in the 21st century, however, the US President and Dept. of State officials have not done that. So we are left with the conclusion that the foreign policy issues are "political questions." The US courts don’t want to touch political questions, because the judges view that as a violation of the separation of powers (executive, legislative, judicial) under the US Constitution.
However, this doesn’t mean that US government officials cannot touch political questions.
What it means is that the US courts don’t want to touch political questions. The members of the Congress and the Senate can discuss and deal with political questions. The officials of the Executive Branch can discuss and deal with political questions. This is because the Legislative Branch and the Executive Branch are the political branches.
Typically, Taiwan groups, associations, and other organizations prefer to go through the US courts because of the financial issues involved. By and large, overseas persons who want to deal with the Congressional Branch or the Executive Branch do not have the necessary deep pockets to do effective lobbying.
Hopefully, some concerned Taiwan people or groups can make their own contacts with important members of the US Legislative Branch and the Executive Branch and reach some new consensus on this nationality issue. Additionally, a determination needs to be made regarding the correct issuing authority for Taiwan ID cards and Taiwan passports. The information and analysis provided in the Taiwan Flowchart may be of excellent reference value for all related discussions.
[English version] https://www.twdefense.info/trust3/shengv.html
[Chinese version] https://www.twdefense.info/trust3/shengvch.html
Application of Laws; International Agreements
Section. 4.
1. Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with such respect to Taiwan.
2. Whenever authorized by or pursuant to the laws of the United States to conduct or carry out programs, transactions, or other relations with respect to foreign countries, nations, states, governments, or similar entities, the President or any agency of the United States Government is authorized to conduct and carry out, in accordance with section 6 of this Act, such programs, transactions, and other relations with respect to Taiwan in accordance with the applicable laws of the United States.