從開羅經舊金山開往住民自決的列車

(Ajin 開口)

幾十年來台派運動有兩個不長進的特徵：

1.     台派運動除了一直莫名其妙地高喊獨立之外，理論層次的探討一直拘限在1952的SFPT，原地踏步在台澎地位未定的階段，卻不知該隨著時間，應該將SFPT延伸到TRA＋三公報與現狀掛勾，既可以與華府爭論，也可以拿到國際作為台派立場的法理根據。

2.     台派不但沒有將台澎地位未定的特殊性與目前的選舉制度作連接，使其成為增進選票的靈丹，反而讓台澎地位與任何選舉是風牛馬不相關的兩回事，甚至有時變成票房毒藥。選舉既然無關台澎地位，如何說要靠選舉要來解決台澎的前途呢？

就這樣，台澎地位，台澎選舉，好像頭追著尾，尾追著頭，團團轉。一個台灣前途決議文內一句話，由2300萬人民決定，寫完了此話後，交差了，問題可以放進倉儲保險箱內，等必要時再來翻看。如此路徑走了至少20年了！

早從舊椰子樹下，九番十次地呼喊，台派切切不要再喊獨立，因為目前該切割的母體是啥？既無母體，何來獨立之需？

然而，俺算命仙也在街口賣叫，「住民自決」，卻沒有人鳥。只要從SFPT出發，經TRA＋三公報，作連貫推理所得到最自然的結論，也是如今可以讓台派走出客觀局限泥沼的唯一途徑，就是：「住民自決」這塊，除此無他。

雖然台澎的住民自決是最終唯一可走的路，但目前根本甭談，先從金門馬祖住民自決開始即可。只要金門馬祖住民自決一拋出，要歸北京或歸台澎，或自己管理，整罐蟲就倒出來了。更何況這完全不違反山姆大帝所限制的現狀，一切都是在山姆大帝定義的現狀下進行。

若有任何網友與台派的，大老，老大，或高幹們有所接觸，告訴他們，這是剩下的唯一法寶，甚至可以牽一髮動全身。

趁現在，如淡江大學戰略所教授黃介政所說：「就像三隻狗都去同一個地方尿尿宣示領域，尿完了還是要各自回家的。」 土龍呈現毫無辦法將他邦趕走離開，也無法消除他人地盤。加上凱道那隻不去鬧尿，卻還一直高唱的開羅宣言的荒繆解讀時，此刻是最佳時機了。

反正俺多年來也練成狂吠火車的高超功夫，如今繼續吠是為了讓台派能趕上這往正確方向行駛的列車。

http://www.taipeitimes.com/News/editorials/archives/2013/12/08/2003578529/1

Cairo Declaration has limitations

By Gerrit van der Wees

Dec. 1 marked the 70th anniversary of the Cairo Declaration, that was issued after the November 1943 summit by then-US president Franklin Roosevelt, then-British prime minister Winston Churchill and Chiang Kai-shek (蔣介石).

The commemoration gave rise to a conference in Taipei titled “The Cairo Declaration 70th anniversary exhibition and international symposium,” and prompted a number of statements and declarations by officials from China and Taiwan, including President Ma Ying-jeou (馬英九).

Many of these commentaries tried to imply that the Cairo Declaration was a legal basis for the “return” of Taiwan — then referred to as Formosa — to Chiang’s Chinese Nationalist Party (KMT), while People’s Republic of China (PRC) spokesmen attempted to use the document to justify China’s claim to Taiwan, and engaged in some Japan-bashing along the way.

Therefore, it is necessary to clearly understand the nature and the legal status of the Cairo Declaration: what it is, and what it is not.

First, it was a “declaration of intent” by the allied leaders. It has no legal status beyond being a press release at the end of the meeting, and in the archives of the US Department of State, it is classified as such. Also, it was not signed by the leaders present, and does not have executive agreement or treaty status.

It was nevertheless an important document, as it signified the intentions of the allied leaders after the war. It was also referred to in the Potsdam Declaration of Aug. 1, 1945, when then-US president Harry Truman, Churchill and then-Soviet leader Joseph Stalin agreed: “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine” (Annex II, article B.8).

However, what actually happened is quite different from the “intent” of both Cairo and Potsdam. One month later, on Sept. 2, 1945, US general Douglas McArthur issued General Order No. 1, designed to formalize the surrender of Japanese troops, and it was decided, inter alia, that the Japanese troops on Formosa would surrender to Chiang, who would temporarily occupy the island on behalf of the Allied forces.

Following McArthur’s instructions, then-Japanese governor-general Rikichi Ando signed the surrender document with Republic of China (ROC) general Chen Yi (陳儀) in Taipei on Oct. 25, 1945. However, as subsequent statements by the US from 1945 through 1952 clearly indicated, this did not in any way, implicitly or explicitly, signify a transfer of sovereignty. That was an issue which would be dealt with in a formal peace treaty.

This peace treaty came seven years later, in the form of the San Francisco Peace Treaty of 1951-1952, in which Japan formally ceded sovereignty over Taiwan and the Pescadores. However, it was not decided to whom this sovereignty was ceded.

We may recall that this was the time during which many countries in Asia and Africa gained their independence, and it was certainly the intention of those who signed the San Francisco Peace Treaty that the views of the Taiwanese needed to be taken into account.

The British delegate stated: “In due course, a solution must be found in accord with the purposes and principles of the Charter of the United Nations.”

The Egyptian delegate stated: “The reason behind not specifying the recipient is to afford the opportunity to take into consideration the principle of self-determination and the expressed desire of the inhabitants of Taiwan.”

The French delegate stated: “Taiwan’s legal status must be determined one of these days, taking the wishes of the Formosan population into consideration.”

However, the harsh reality was that during the “temporary occupation” of 1945-1952, Chiang’s regime had started to harshly repress the local population (the 228 Massacre of 1947), and in 1949, the Nationalists had had to flee China to escape the communist onslaught. The following decades thus saw very little possibility to take the wishes of the Formosan population into account. On the contrary, Taiwan suffered under 38 years of martial law.

During the following decades, Chiang’s pretense of representing China of course became increasingly untenable, which led to the ouster of his representatives from the UN in 1971, and the break of relations with the US in 1979.

Taiwan’s transition to democracy during the late 1980s and early 1990s provided the first opportunity for Taiwanese to voice their views on their future. The main conclusions are that they want to remain a free and democratic nation, and that they want to join the international community as a full and equal member.

To return to the arguments laid out in the beginning of this essay: Trying to use the Cairo Declaration to either imply it was a “legal” basis for Chiang’s occupation of Taiwan, or to claim that it justifies the PRC’s claim to Taiwan simply does not hold water. The historical facts prove otherwise.

Gerrit van der Wees is editor of Taiwan Communique, based in Washington

Comments  by Jeff Gear

This is a sound assessment of the SFPT and self-determination of Taiwan territory.  The facts and statements are correct in historical and legal contexts.  The primary research target is the 1971-79 period.  The Kissinger realpolitik creation of One China policy involved art 4, SFPT (USMG), Shanghai Communique of 1972 (US-PRC), Japan-China Communique of 1972 for the Japanese abrogation of the bilateral Treaty of Taipei (art 10, ROC nationality deemed for Taiwanese) in 1972.  The geopolitical events of 1972 are USA, PRC, and Japan.  The ROC was the juridical victim of the conspiracy of One China policy.  

The 1979 major events involved the Carter derecognition of the ROC exiled government and termination of the US-ROC Mutual Defense Treaty.  There was the Japan-PRC Communique of 1978 that was wrapped up in the successor state argument of the Vienna Convention on Treaties (e.g. law of treaties) but this theory has largely remained more academic in practice.

In 1983, the Goldwater v Carter ruling did not challenge any political questions of the treaty-making powers for termination of the MDT under the plenary powers doctrine.  Thus the Taiwan Relations Act was the replacement of the MDT (e.g. the congressional regulation of foreign commerce with a separate customs territory of Taiwan) under the Foreign Commerce Clause.

The plenary powers doctrine was born in Gibbons v Ogden (1824) and US v Curtis-Wright Export Corp (1936) was the last major landmark ruling on the plenary powers doctrine for the conduct of foreign policy and foreign commerce.  The 1972 imperial presidency of the Nixon administration is not beyond the reach of the legislative branch under the American separation of powers.  Goldwater v Carter has never reviewed anything for actions taken by the executive branch for treaty-making powers of the Commander-in-Chief.  

In short, TRA modified SFPT in the "last-in-time" rule for the Chinese Exclusion Case (art 5,1868 Burlingame Treaty/Chinese Exclusion Act).  The inherent powers of foreign affairs is rooted in the Burlingame Treaty from Kagama v. US (Indian Law).  This first case would lead to US v Fong Ting (Immigration Law) and subsequently then resulting in US v Curtis Wright Export Corp (export of military aircraft to the insurgents in Bolivia).  The "human rights" of islanders are undefined civil rights for Taiwanese and the liberal legal standards of overall control or effective overall control would become the missing link for inalienable rights of Taiwan islanders under SFPT/TRA.  Thus your art 73, UN Charter non-selfgoverning territory of Taiwan really leads to the SFPT/TRA self-determination under the plenary powers doctrine. 

No MDT is required.  Inalienable rights do require new liberal standards beyond the effective control/actual control standards under SFPT.   Overall control and overall effective control are the more liberal standards of international law but these two standards are not domestic law of the SFPT/TRA.  These two standards are the trend in Europe, and the ICC has adopted quite liberal standards, too.  The Charles Taylor Jr. conviction of torture occurred under US federal criminal torture law.  The Liberian leadership supported a rebel insurgency in the neighboring state, and Junior was convicted in the United States by civilian federal court.  The ROC is like Liberia for quasi-colonial relations with the United States, and torture would be the inalienable right of the Convention Against Torture.  

The legislative history of the TRA human rights policy is predicated on painless torture standards of the Fourth Geneva Convention.  USMG has the due process right of art 4(b), SFPT.  USMG has due process by US military commission for a US Court for Taiwan (US v Tiede, 1979).

 This also means the civilian exercises of the military powers for due process in lieu of the federal torture criminal law.  The grey area between US citizen and enemy alien has the "friendly alien of friendly territory" for Taiwan nationals and the Taiwan territory.  There is no more Japanese nationality in 1952.  That is lost and gone forever but there is "interim status" of Lin v US for political purgatory.