Nationality Determination under US law for
Native Taiwanese Persons born in Taiwan



with special reference to the situation of Cuba
after the Spanish American War



Section 99. NATIONALITY DETERMINATION UNDER US LAW FOR NATIVE TAIWANESE PERSONS BORN IN TAIWAN, WITH REFERENCE TO UNITED STATES GOVERNMENT GEOGRAPHIC JURISDICTION

Part 1. Geographic Jurisdiction

1. The geographic jurisdiction of the United States government is very limited and well defined. US government geographic jurisdiction is limited to those places where the United States is the sovereign.

2. The territorial clause of the US Constitution (Art. 4, Sec. 3, Clause 2) states: The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States...

3. All territory under the control of the federal government is considered part of the "United States" for purposes of law. In Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945), the Supreme Court held that the term "United States" can have three different meanings, in different contexts.
"The term 'United States' may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States extends, or it may be the collective name of the states which are united by and under the Constitution."

4. This means that the "United States" is composed of any area or region over which the federal government has jurisdiction.

Part 2. Territorial Acquisitions as the Result of War

1. In terms of territorial acquisitions as the result of war, most laymen only consider territory ceded to the USA, and now under civil government operations sanctioned by the US Congress, as having been "acquired." (The commentary in 7 FAM 1121.1 also employs this overly simplified view.) In fact, this is merely what may be described as TYPE A.

2. Actually, the acquirement of territory under the territorial clause in the US Constitution is much broader in scope. In Downes v. Bidwell, 182 U.S. 244 (1901), the Supreme Court referred to its earlier finding that:
"The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." Also in American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511, 7 L. ed. 242, (1828).

3. With a full consideration of military jurisdiction under the principle of conquest, we can examine three deeper levels beyond TYPE A.


Chart #1: Types of US Territorial Acquisitions as the Result of War
Type Description US territorial status insular law status
Type A Territory which was ceded in the peace treaty, with the designation of the USA as the receiving country, and now with civil government operations (authorized by the US Congress) in effect unincorporated territory TYPE 1 Insular Area, (acquired under the principle of conquest)
Type B Territory which was ceded in the peace treaty, with the designation of the USA as the receiving country, but which is still being held under USMG, because although the United States is the (principal) occupying power, no civil government operations (authorized by the US Congress) have yet come into effect unincorporated territory under USMG TYPE 1 Insular Area, (acquired under the principle of conquest)
Type C Territory which was ceded in the peace treaty, without the designation of any receiving country, and which is still being held under USMG, because the United States is the (principal) occupying power, and USMG has not yet been legally supplanted unincorporated territory under USMG TYPE 1 Insular Area, (acquired under the principle of conquest)
Type D Territory which is under belligerent occupation by US military forces   (Note 1)   (N/A)
N/A is used to indicate Not Applicable.

Note 1: For a US military occupation of Tamaulipas State, in Mexico, the territorial status would be "independent customs territory under USMG on Mexican soil." For a US military occupation of Cote D'Azur, in France, the territorial status would be "independent customs territory under USMG on French soil," etc.

4. The disposition of territory acquired under the principle of conquest and held under military occupation must be conducted according to the laws of war. The Hague Conventions of 1907 specify that "territory is considered occupied when it is actually placed under the authority of the hostile army." (See FM 27-10, paragraph 351.) The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." In Ex Parte Milligan, 71 U.S. 2 (1866), the US Supreme Court held that "The Constitution itself provides for military government as well as for civil government." Moreover, the Court held that military government is " . . . to be 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."

5. In Church of Jesus Christ of L. D. S. v. United States136 U.S. 1 (1890), the Supreme Court held that: "The power to acquire territory, other than the territory northwest of the Ohio River (which belonged to the United States at the adoption of the Constitution), is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty, and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty."

Part 3. The End of the Military Government of the (Principal) Occupying Power

1. 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. This is easily seen by looking back at the Spanish - American War cessions of Puerto Rico, the Philippines, Guam, and Cuba. In each island group, the period of military occupation was followed by a formal announcement by the US government of the end of "United States Military Government" (USMG) in these areas. The earliest date was May 1, 1900, when USMG in Puerto Rico ended, and civil government operations authorized by the US Congress began, under the provisions of the Foraker Act.

2. Comparative data for the end of USMG in the Philippines was July 4, 1901; the end of USMG in Cuba was May 20, 1902; and the end of USMG in Guam is usually stated as July 1, 1950.

3. In each case, USMG was supplanted by civil government operations. In the situations of Puerto Rico, Guam, and the Philippines, the civil government operations were authorized by the US Congress. In the situation of Cuba, the United States government was not opposed to Cuban independence, and the civil government operations of the Republic of Cuba began on May 20, 1902. On this date, USMG in Cuba ended by proclamation of President Theodore Roosevelt.

4. Many US Supreme Court cases confirm the rule that military government continues until legally supplanted. For example, in Dooley v. U.S., 182 U.S. 222 (1901), the Justices held that:
" . . . We have no doubt, however, that, from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty and until further action by Congress. Reference: Cross v. Harrison, (1853) 16 How. 182, 14 L. ed. 896. At the same time, while the right to administer the government continued, the conclusion of the treaty of peace and the cession of the island to the United States were not without their significance."


Section 100. NATIONALITY DETERMINATION UNDER US LAW FOR NATIVE TAIWANESE PERSONS BORN IN TAIWAN, WITH REFERENCE TO THE COMPARATIVE EXAMPLE OF CUBA AFTER THE SPANISH AMERICAN WAR

Part 1. A comparison of the situation of Cuba after the Spanish American War and Taiwan after WWII is informative for discussing allegiance, nationality, and related issues.

1. Conflict between the military forces of Spain and the United States was reported on Feb. 15, 1898. After diplomatic negotiations proved unsuccessful, the US Congress declared war against Spain on April 22. All military attacks on (Spanish) Cuba during the April to July 1898 period were conducted by United States military forces. According to the historical record, Spanish troops in Cuba surrendered on July 17, 1898.

2. Hence, in relation to Cuba, the United States was the "conqueror." Under the customary laws of warfare of the post-Napoleonic period, the United States will be the (principal) occupying power.
Article 1 of the Treaty of Paris (April 11, 1899) specifies:
Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.

3. What if such a situation had occurred today? If we look at the circumstances of Cuba from the vantage point of 2010-11, the question arises: "Who is the competent authority to issue ID documentation (including passports) of any kind to native Cuban persons after April 11, 1899?" United States Military Government in Cuba has begun as of July 17, 1898, with the surrender of Spanish troops. Spanish sovereignty over the island has ended with the coming into force of the Treaty of Paris on April 11, 1899. Although the United States is not opposed to Cuban independence, under international law, the Republic of Cuba has not yet been founded.

4. In fact, the answer to this question must be provided by the customary laws of warfare. Upon the surrender of Spanish troops, Cuba's international legal position is "independent customs territory under USMG on Spanish soil," and the local populace passes under an "allegiance" to the conqueror, which in the post-Napoleonic era will be the (principal) occupying power.

5. After the relinquishment of Spanish sovereignty over Cuba in the peace treaty, Cuba's international legal position is elevated to that of "unincorporated territory under USMG." It is TYPE C on the Chart of "Types of US Territorial Acquisitions as the Result of War." Hence, from the period of April 11, 1899, to May 20, 1902, the native inhabitants of Cuba must be correctly classified as non-citizen US nationals, (or "wards of the USA," or "protected persons,") and their identification documents and travel documents must be issued under the authority of the United States.

6. Such an analysis is confirmed by reference to US Supreme Court rulings. Speaking of this "April 11, 1899, to May 20, 1902" transitional period, the US Supreme Court held in DeLima v. Bidwell 182 US 1 (1901), that "Cuba is under the dominion of the United States." The nationality of the native persons therein is thus provided by Boyd v. Nebraska ex rel Thayer, 143 U.S. 135 (1892) where the Court specified that: "The nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided." This determination was confirmed again in Gonzales v. Williams, 192 U.S. 1 (1904).

Part 2. More Detailed Comparisons for Cuba and Taiwan

1. How does such a legal framework relate to Taiwan? First, it is necessary to examine the post war peace treaties very carefully. The military occupation of Cuba by the United States is fully specified in Article 1 of the Treaty of Paris. The wording is interesting, because it shows that the period of time (1) after the coming into force of the peace treaty and (2) before the end of United States Military Government in Cuba, is also called "occupation." In present day terminology, for a territorial cession, the period of time beginning from the surrender of local troops and ending with the coming into effect of the peace treaty would be called "belligerent occupation," and the period of time from the coming into effect of the peace treaty to the end of the military government of the (principal) occupying power would be called "friendly occupation" or "the civil affairs administration of a military government."

2. In fact, similar specifications to those for Cuba have been made for Taiwan in the San Francisco Peace Treaty. The following chart provides a convenient summary.


Chart #2: Peace Treaty Specifications for Cuba and Taiwan
Item Treaty of Paris specifications for Cuba SFPT specifications for Taiwan
United States is the (principal) occupying power Article 1 Article 23
Original "owner" did indeed cede the territory Article 1 Article 2(b)
No "receiving country" was specified (i.e. "limbo cession") Article 1 Article 2(b)
USMG has disposition rights over the territory Article 1 Article 4(b)
Military government is present, and military occupation is a reality Article 1 Article 4(b) and the Hague Conventions (1907)


3. Based on the provisions of the SFPT and the decision in DeLima v. Bidwell 182 US 1 (1901), "Taiwan is under the dominion of the United States." Taiwan is TYPE C on the Chart of "Types of US Territorial Acquisitions as the Result of War." The nationality of native persons in Taiwan is thus provided by Boyd v. Nebraska ex rel Thayer, 143 U.S. 135 (1892) where the Supreme Court specified that: "The nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass . . . . "

4. This is amplified by the legal analysis in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), where the US Supreme Court held that: "To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, . . . It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered."

5. Currently, Taiwan is in a transitional period, or period of "interim status," being held by the military government of the principal occupying power under SFPT. It is important to clarify that while this interim status condition under SFPT persists there is no "Taiwan Republic", nor any "One China, One Taiwan", nor "Two Chinas," nor "a divided Chinese nation." This is because Taiwan has not yet reached a "final (political) status."

6. Therefore, as long as the final (political) status of the Taiwan cession is undetermined as noted in the Truman Statement of June 27, 1950 and legally affirmed by SFPT, it is protected by basic civil rights as a treaty cession under the Taiwan Relations Act.

Part 3. A Competent Authority for Issuing ID Documentation

1. The above analysis may be restated as follows. For Taiwan, "Who is the competent authority to issue ID documentation (including passports) of any kind to native Taiwanese persons after April 28, 1952?" United States Military Government in Taiwan has begun as of Oct. 25, 1945, with the surrender of Japanese troops. Japanese sovereignty over the island has ended with the coming into force of the SFPT on April 28, 1952. So, who is in charge?

2. In fact, the answer to this question must be provided by the customary laws of warfare. Upon the surrender of Japanese troops, Taiwan's international legal position is "independent customs territory under USMG on Japanese soil," and the local populace passes under a "temporary allegiance" to the conqueror, who in the post-Napoleonic era will be the principal occupying power. Hence, regardless of how one evaluates the complications of the period of belligerent occupation, it is 100% clear that upon the coming into force of the SFPT, and up to the present day, the allegiance of native Taiwanese persons is to the United States of America. Under 8 USC 1101 (a)(30) , it is the US Dept. of State which is the "competent authority" for issuing ID documentation to native Taiwanese persons.

3. Under Taiwan's qualification as a TYPE 1 US insular area, this "temporary allegiance" under the law of occupation gives rise to the immigration law status referred to as "permanent allegiance" or non-citizen national status, (or "wards of the USA status," or "protected persons status.")   [FN #7]

Part 4. Sub-sovereign Foreign State Equivalent

1. In the 1898 Treaty of Paris, Spain ceded the sovereignty of Cuba, but it was not given to any other country. The United States was the (principal) occupying power. Hence, as summarized above, the situation of Cuba after the Spanish American War provides good comparative analysis for Taiwan.

2. In their concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901), Justices White, Shiras, and McKenna stated: "It cannot, it is submitted, be questioned that, under this provision of the treaty, as long as the occupation of the United States lasts, the benign sovereignty of the United States extends over and dominates the island of Cuba.... Considering the provisions of this treaty, and reviewing the pledges of this government extraneous to that instrument, by which the sovereignty of Cuba is to be held by the United States for the benefit of the people of Cuba and for their account, to be relinquished to them when the conditions justify its accomplishment, this court unanimously held in Neely v. Henkel, 180 U.S. 109, ante, 302, 21 Sup. Ct. Rep. 302, that Cuba was not incorporated into the United States, and was a foreign country." [bold-italics added]
  1. Justice Gray in a concurring opinion stated: "So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory, in the sense of the revenue laws; but those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress. Such was the unanimous opinion of this Court, as declared by Chief Justice Taney in Fleming v. Page, (1850)."
3. In a similar situation to Cuba after April 11, 1899, Taiwan is "foreign territory under the dominion of the United States." The Taiwan Relations Act does not treat Taiwan as a sovereign independent nation, but rather as a "sub-sovereign foreign state equivalent." The TRA contains a "foreign state equivalency" clause.
REFERENCE: Taiwan Relations Act [22 USC 3303 (b)]:
Application of United States laws in specific and enumerated areas
  The application of subsection (a) of this section shall include, but shall not be limited to, the following:
  (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 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 3305 of this title, such programs, transactions, and other relations with respect to Taiwan (including, but not limited to, the performance of services for the United States through contracts with commercial entities on Taiwan), in accordance with the applicable laws of the United States.


Section 101. NATIONALITY DETERMINATION UNDER US LAW FOR NATIVE TAIWANESE PERSONS BORN IN TAIWAN, WITH REFERENCE TO THEIR "PERMANENT ALLEGIANCE"

Part 1. Permanent Allegiance

1. If calculated from the coming into effect of the SFPT in 1952 to the present day, the native Taiwanese persons have already owed allegiance to the United States for over fifty years. Clearly this relationship meets the dictionary definition of "permanent" which is simply "continuing or enduring without fundamental or marked change."

2. In a similar fashion, the Immigration and Nationality Act (INA) merely defines "permanent" as a relationship of continuing or lasting nature." See 8 USC 1101 (a) (31): The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.

A "national of the United States" is defined in 8 USC 1101 (a) (22): The term "national of the United States" means: (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

3. Clearly, native Taiwanese persons living in Taiwan have "permanent ties" to Taiwan, as evidenced by payment of taxes, ownership of property, and the presence of family. These persons have a permanent dwelling place (or "domicile") in Taiwan to which they, when absent, intend to return.

4. Based on the above INA definitions, native Taiwanese persons do qualify as owing permanent allegiance to the United States.

5. For a definition of the "United States" relevant to the subject of "Allegiance," see Code of Federal Regulations, Title 22--Foreign Relations, Chapter I--Department of State, SubChapter F--Nationality and Passports, Part 51--Passports
Sec. 51.1 Definitions:

  • United States means the continental United States, the State of Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, the Canal Zone, American Samoa, Guam and any other islands or territory over which the United States exercises jurisdiction.
  • Department means the Department of State of the United States of America.
  • Secretary means the Secretary of State.
  • National means a citizen of the United States or a noncitizen owing permanent allegiance to the United States.
    •


General Notes and Footnotes:

FN #1: In Article 2 of the Sino-Japanese Peace Treaty of Aug. 5, 1952, it is recognized that in the SFPT Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores). Obviously, if Japan did not possess all such right, title, and claim after 1895, and up to the coming into force of the SFPT in 1952, the signatories of the treaty would not be agreeing to such a renunciation, and Article 2 would be meaningless.

FN #2: In particular, see On the Law of War and Peace, Book 2, Chapter XI, Sec. XII: "We are obliged to confirm the engagements made by others, acting in our name, if it is evident that they had special, or general instructions from us to do so. And in granting a commission with full powers to any one, it may so happen that we are bound by the conduct of that agent, even if he exceed the secret instructions which he has received. For he acts upon that ostensible authority, by which we are bound to ratify whatever he does, although we may have bound him to do nothing but according to his private instructions."

FN #3: In the present document, the verb "cede," and the noun "cession" are used in their broad original senses to denote the "surrendering of possession of," "relinquishment of sovereignty over," "renouncing of all right, title and claim to," etc.

FN #4: The significance of the designation of a "receiving country" for a territorial cession in a peace treaty 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 Cuba was not. Cuba was a "limbo cession."

   Hence in regard to the criteria for the designation of a TYPE 1 Insular Area of the United States (Insular Areas Acquired by Conquest), it is not necessary that the United States be designated as the "receiving country" for the territorial cession in the peace treaty, but only that the following three conditions be met: (1) conquest by US military forces, (2) the United States as "the (principal) occupying power," and (3) territorial cession in the peace treaty.

FN #5: A fundamental requirement of due process is "the opportunity to be heard." See Grannis v. Ordean, 234 U.S. 385, 394 (1914). It is an opportunity which must be granted at a meaningful time and in a meaningful manner.

FN #6: It is noted that no unincorporated territories of the United States have initiated their own mandatory military conscription policies, as such policies would be in violation of their status under the federal dominion. At the present time, Taiwanese males are subject to mandatory military conscription under the authority of the subordinate occupying power and government in exile "Republic of China." The imposition of these mandatory military conscription policies and related travel restrictions over the male Taiwanese populace beginning in the early 1950's are a denial of "liberty" under the US Constitution, and in direct violation of the Geneva Conventions. This is because any activity prohibited for the principal occupying power is certainly prohibited for a subordinate occupying power. See --
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, (1949.08.12), Article 51 and as codified in FM 27-10, paragraph 418:
The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted ... In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character.
   In Application of Yamashita, 327 U.S. 1 (1946), the US Supreme Court held that "FM 27-10 (1940), . . . states the principal offenses under the laws of war recognized by the United States."

FN #7: The standard US Supreme Court references for the doctrine of "temporary allegiance" under the law of occupation are United States v. Rice (1819) and Fleming v. Page (1850). The first involved the British occupation of Castine, Maine, during the War of 1812. The second involved the US occupation of the port of Tampico, in the State of Tamaulipas, Mexico, during the Mexican - American War. However, both were during periods of belligerent occupation, and were not followed by territorial cession in the peace treaty.

   In contrast, Taiwan is currently under a civil affairs administration of United States Military Government, which is after peace treaty cession. As a result of the peace treaty cession, under US Constitutional law, Taiwan has been elevated to the position of "unincorporated territory under USMG," and the allegiance of native Taiwanese persons has been raised to a more permanent condition.

Additional Webpages of Interest

    Protected Persons

    Competent Authority under INA

    Three Dates