Thu, Apr 23, 2009 - Page 8 News List


A look at the Insular Cases

Joshua Tin (田台仁) has struck gold in his recent commentary on legal divisions of the jurisdiction of Taiwan (“Taiwanese right to determine jurisdiction,” April 19, page 8).

The [US Supreme Court’s] Insular Cases are based upon the judicial explanation that the US federal government represents the people of the US who reside in the 50 states. These cases determined that the “people of an island” fall under a separate jurisdiction from the federal government that represents the people of the US. The people of an insular area are described as, for example, “citizens of Puerto Rico,” according to the Foraker Act, or “citizens of the Philippines,” according to the Tydings-McDuffie Act.

This description was one of the original distinguishing hallmarks of the Taiwan Relations Act (TRA) that caused me to research it deeper. Tin is correct in saying the “people on Taiwan” are not subject to the jurisdiction of the People’s Republic of China, and he adds that the people of Taiwan are not Chinese despite there being “Chinese on either side of the Taiwan Strait,” according to the Shanghai Communique.

He is fully describing the customary law of interim status which is tied to the legal jurisdiction of the cession. The interim legal status of the “people on Taiwan” can be detached from their legal jurisdiction, much like that of the people of Puerto Rico, who were collectively naturalized by a legislative statute enacted by the US Congress. Today, people born in Puerto Rico are US citizens by statutory operation of collective naturalization, not on the basis of 14th Amendment jus soli.

Under the naturalization powers of the 14th Amendment, the people of Taiwan can be granted US citizenship. Right now, they are excluded from the mainland jurisdiction of the US Customs Territory and they are citizens of Formosa under the San Francisco Peace Treaty.

If we closely examine the American Samoan laws, the “people of Samoa” can also exclude US citizens, but only if they are not descendent from Samoan lineage. In other words, the “people of Taiwan” [should be able to] collectively naturalize under a US Immigration and Naturalization Act statute, but under Taiwanese law, US citizens not in possession of residency permits or those who are not lineal descendants of [people on the] Taiwan Family Census Register can be excluded from the island immigration jurisdiction of Taiwan (just like in American Samoa).

The body politic of the island forms the government representing them under the Insular Cases, just like the people of the US form the body politic of the federal government. This is where political power resides in each jurisdiction. From the perspective of the Insular Cases, the phrases “people of America” and “people of Taiwan” have a deeper meaning and constitutional significance in terms of the San Francisco Peace Treaty and TRA, which defines the relationship of two jurisdictions. The TRA applies to Taiwan and Penghu under San Francisco Peace Treaty Article 2(b), but not to the offshore islands occupied by the Republic of China. The real political power of the Taiwanese body politic resides with the people of the jurisdiction.

Tin should note that the “separate customs territory” [that has arisen from] the San Francisco Peace Treaty jurisdiction is not part of the US Customs Territory. Under the Uniform Tariff Clause of the US Constitution, the USMG [United States Military Government] creates a separate customs territory because of the Law of Occupation acting to divide the island from the US Customs Territory. Under US domestic law, the international Law of Occupation creates this separate customs territory because of the USMG (Fleming v. Page).

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