IR-student

曾經贈與房地產給兒子，他當時12歲。現在他二十幾歲。畢竟這個房地產是父母早年賺錢購買的，而父母在有生之年不贊成兒子另外給予處分 (例如抵押給別人、過戶給女朋友等等)。到底父母和兒子應該可以簽甚麼樣的契約來處理此類問題？ (註：由於涉及複雜的稅務問題，暫時不打算談到「信託」)。

I have heard that there are many regulations and conventions governing the conduct of military personnel in occupied territories.

So, I am wondering if the mass naturalization of civilians in occupied territory is forbidden?

In other words, Country C's military forces are in Country M conducting a military occupation. Then, Country C's military commanders issue an order authorizing the mass naturalization of Country M's civilians as nationals of Country C ........... Is that allowed?

If not, what are the specific legal references? Thanks.

Declaration of the Taiwan Status

http://www.taiwanadvice.com/declare.htm

Can anyone offer a comprehensive rebuttal to the legal rationale on this webpage?

According to the information posted, Taiwan is an overseas territory of the USA. Taiwan does not belong to China.

One of my friends is doing research on Taiwan's international status for his Ph.D. dissertation, and his professor wants him to offer comments on this Declaration.

According to what my friend has found out, the US Executive Branch has never recognized the forcible incorporation of Taiwan into Chinese territory. Neither the 1952 San Francisco Peace Treaty nor the Treaty of Taipei have any specific provisions which award the sovereignty of Taiwan to China.

Hence, there is some sound legal logic in saying that Taiwan is still under the jurisdiction of the military arm of the US government.

As I know, this declaration is now the subject of a lawsuit in Washington D.C., where the appellants/plaintiffs are applying for US passports, based entirely on their status as "native Taiwanese people." That lawsuit is Roger Lin v. United States of America.

According to Lin's analysis, the status of the Republic of China is (1) a subordinate occupying power, (beginning Oct. 25, 1945), and (2) a government in exile, (beginning mid-December 1949.) The United States of America is the principal occupying power.

Or if anyone can point me to authoritative commentary which can prove that Taiwan belongs to China that would be very helpful for my friend's research. His inquiries with the representative offices of the People's Republic of China and the Republic of China in Washington D.C. have affirmed that Taiwan belongs to China, however the staff there were very short on specific legal details.

Recently I have heard a lot of discussion of the post-war peace treaties of 1952 which made disposition of "Formosa and the Pescadores" (aka "Taiwan"). The first one, the San Francisco Peace Treaty, did not award the sovereignty of Taiwan to China. However, some people say that the second one, the Treaty of Taipei, (aka "Sino-Japanese Peace Treaty") did award the sovereignty of Taiwan to China.

According to my reading of both treaties, it seems very unclear indeed.

Where can I find some authoritative commentary on these matters? Are there any authoritative interpretations that have been published?

In particular, I was thinking that the US State Dept. may have made some pronouncements, and I wonder if anyone has this data.

I also note that the San Francisco Peace Treaty came into force on April 28, 1952, but the Treaty of Taipei only came into force on Aug. 5, 1952. Hence, after Japan gave up Taiwan in the earlier treaty, (without naming a "receiving country") it seems difficult for me to accept that it could then award Taiwan to China in the second treaty. However, I am wondering if anyone can come up with some objective analysis.

On the internet, I have been reading about some of the new research regarding "military jurisdiction under the US constitution" and "the laws of war." This research is really uncovering a lot of the gaps in traditional international law studies.

It is also possible to make sovereignty determinations for all sorts of Pacific islands based on this research. Hence, I am wondering if there are currently any US territories (in the Pacific Ocean area most likely) which are currently under the jurisdiction of China?

Does anyone know when these territories will be returned to direct US jurisidiction?

The name of the government in Taiwan is "Republic of China" (ROC), and it has tried to gain admission to the United Nations for a total of 15 times as of Sept. 2007. Although various appellations were used, but it has always been refused for admittance.

Granted, on casual observation, the ROC appears to have the "defined territory" necessary to be classified as a state in the international community, but upon closer inspection this may actually be a case of "mistaken identity." A visiting lecturer in our history dept. says that internationally speaking, there are no legal documents which can show that the ownership (or "territorial sovereignty") of Taiwan territory has ever been transferred to the Republic of China.

Perhaps this is the real problem. The ROC is in Taiwan, but it does not have legal title to Taiwan territory. Hence, it cannot enter the UN ..... no matter what "name" is used.

Or does anyone have some insights into this matter? Rebuttals? Comments?

After examining a number of 20th century legal documents, the following facts become clear:

1) The Allies did not recognize any transfer of the sovereignty of Taiwan to "China" upon the Oct. 25, 1945 Japanese surrender ceremonies.

2) As of 1895, Taiwan was sovereign Japanese territory until ceded in the San Francisco Peace Treaty (SFPT) on April 28, 1952.

3) Considering that Japan ceded Taiwan in the SFPT, the Treaty of Taipei (Aug. 5, 1952) cannot be interpreted to say that Japan ceded Taiwan to "China."

4) The ROC Constitution Article 4 specifies a full procedure for the acquisition of new territory. For Taiwan, this procedure has never been completed.

5) The announced mass-naturalization of native Taiwanese persons as ROC citizens in Jan. 1946, before the peace treaty was even drafted, is totally without legal basis.

Moreover, the conditions of Article 10 of the Sino-Japanese Peace Treaty in regard to recognition of "nationals of the ROC" have yet to be fulfilled.

It is often heard that the status of Taiwan is undetermined. But if we consider Taiwan as a "territory" then it must have a "territorial title." Then, technically speaking, if that is "undetermined," the meaning could be that it has no true owners now ..... but this territorial title is being held in "escrow" (or in a type of "quasi-trusteeship") at the present time.

I am wondering if there is any detailed and exhaustive analysis of this type of reasoning on the internet anywhere? Or is there some research report I can download?

In the post-war peace treaty, Japan renounced all right, claim, and title to Taiwan, but no "receiving country" was indicated.

So, with reference to the treaty or other documents, perhaps it can be determined that Taiwan's "territorial title" is currently being held in escrow.

*** DEFINITION *** held in escrow:

something held by a third person for delivery to a given party upon the fulfillment of some condition

When researching the USA-China relationship, in regard to the drafting of the Japanese Peace Treaty, I found some US State Dept. documents of Jan. 16, 1951 which said that: "The Chinese Ambassador informed Mr. Dulles on December 19, [1950] that his Government was in general accord with the U.S. treaty views. He said that it accepted the security provisions contmplated and establishment of a U.S. trusteeship over the Ryukyu and Bonin Islands. The Chinese Government was prepared to make no reparations claims provided all other nations did the same. It was the Ambassador's understanding that even though the future disposition of Formosa was left unsettled Japan would renounce its title to Formosa in the treaty."

So .... I was wondering who this Chinese Ambassador was who agreed to the fact that the "future disposition of Formosa was left unsettled."

The Japanese Peace Treaty ("San Francisco Peace Treaty") was later ratified by the US Senate and came into force on April 28, 1952.

My associates and I are researching the "nationality claims" of certain disfranchised individuals.

Our research has led us into consideration of nationality claims based on the laws of war status of territories under US control. This is quite a difficult topic to delve into.

Hence, in a nutshell, our Research Topic is "the justiciability of nationality claims based on the laws of war status of territories under US control." (In other words, can such claims be handled by a US Court.)

A contact in Bangkok now informs us that there was a US Court case "United States v. Ushi Shiroma" which said that jurisdiction over nationality claims based on the laws of war status of territories under US control are clearly justiciable questions ..... He is under the impression that this case is from the US District Court for Hawaii.

Where can we obtain a copy of this case on the internet? And/or where can we obtain more information about our research topic?

In the news, I often read about military occupation issues. Sometimes I see the subject of "military government" mentioned. So, I am wondering, what is the relationship between military occupation and military government?

When does military occupation begin and when does military government begin? When (or via what criteria) do they end?

We often hear that the Formosa Association for Public Affairs (FAPA) in the USA is very energetic in promoting Taiwan's application to join the United Nations.

Some of my friends are thinking of volunteering to work for this organization. What documents are necessary for Taiwan to submit along with its application so that it can get admitted to the UN right away? Has Taiwan submitted those documents already, or not??

Or, is a UN bid for Taiwan really possible?

One of my friends is working on a homework assignment where he has to advance the logic of something "very unusual" and "surprising." Since there are many articles on the internet now discussing the fact that Taiwan's true international legal position is that it is "an overseas territory of the United States," I am thinking that he could use this as his topic.

Unfortunately, I don't have all the details on this agenda. Most importantly, I don't have the "step by step" logic to make this into a coherent argument.

It is obvious that Taiwan is not Chinese territory, since there are no international legal documents which can prove that the territorial sovereignty of Taiwan was ever transferred to China in the WWII period. However, the rationale that the United States is actually holding Taiwan's sovereignty is a bit harder to prove. (According to what I read on the web, such an analysis is derived directly from the post-war San Francisco Peace Treaty.)

It's becoming increasingly difficult to maintain peace in the Taiwan Strait, as both the Republic of China (ROC) and People's Republic of China (PRC) are claiming sovereignty over Taiwan.

Interestingly, the PRC says that the ROC had sovereignty over Taiwan until 1949, whereupon (with the founding of the PRC on Oct. 1, 1949) it became the successor government to the ROC.

But where is any legal documentation to show that the ROC has had sovereignty over Taiwan? Any ideas?

Over a period of weeks, a professional researcher friend searched in the library, academic databases, and on the internet. She could find absolutely no definitive proof that the ROC has sovereignty over the areas of Formosa & the Pescadores (aka Taiwan).

She mentioned that a common point of confusion is to say that "the territorial sovereignty of these areas was transferred to the ROC when Japanese troops surrendered on Oct. 25, 1945." However, international law does not support such an interpretation.

The newspapers are reporting that the US government will not be changing its One China Policy now or in the future.

This is a crucial issue (according to some observers), because both Taiwan and the USA will have Presidential elections in 2008.

The Taiwanese always say that they are unfairly restricted by the "One China Policy." But what does the "One China Policy" have to do with Taiwan?

Perhaps someone can clear up the confusion.

From my viewpoint, it seems that Taiwan is continually asserting its international identity as simply "Taiwan". Also, I read in a history book that China ceded Taiwan to Japan in 1895.

In the study of international law, occasionally one runs across treaty specifications for the cession of territory where no receiving country is specified. These areas are often called "limbo cessions."

I am wondering what the rule is for determining the sovereignty of such limbo cessions?

I have been studying political science in university, and over the past few years I have heard more and more people talk about "popular sovereignty." So, I am wondering how this relates to "territorial sovereignty."

In particular, I am curious to know if the PEOPLE of any particular country can actually be construed to own the "territorial sovereignty" of the country? Or is "territorial sovereignty" always owned by the government?

I have been checking on the internet about this question, but I really can't find much information. I would be interested in any logical viewpoints which anyone can present. If authoritative sources can be provided, that would be great too.

According to some Chinese language news reports from the southern city of Gaoxiong/Kaohsiung which a friend of mine in Taiwan has emailed to me, a group of Taiwanese people have filed suit in federal court in Washington D.C. against the US government, claiming that Taiwan is an overseas territory of the USA, and that the Taiwanese people are therefore entitled to various fundamental rights under US laws.

I am not exactly sure of the details of the case, but the Chinese news articles say it relies heavily on international legal documents such as the San Francisco Peace Treaty of 1952.

As I will be involved in a research project about Taiwan in the near future, and have to submit an outline of my research proposal by mid-December, it would be most desirable if I could obtain full details about this case. I would also like to obtain a copy of the documents filed with the court and other supporting historical and legal information.

Any assistance would be appreciated.

Historical details: (1) By the Treaty of Berlin of 1899, the United Kingdom and Germany renounced in favor of the United States all their rights and claims over the eastern islands of Samoa. This treaty went into effect on February 16, 1900. (2) On April 17, 1900, the matai (chiefs) of Tutuila formally ceded the islands of Tutuila and Aunu'u to the United States. (3) On July 16, 1904, the king and matai of Manu'a ceded the islands of Ta'u, Ofu, Olosega, and Rose Atoll to the United States. (4) Congress formally ratified the 1900 and 1904 deeds of cession retroactively in 1929. (5) Swains Island became part of American Samoa by joint resolution of Congress in 1925. ( Source: http://www.doi.gov/oia/Islandpages/asgpage.htm )

The above appears to list five sets of legal documents regarding the cession of "Eastern Samoa" to the USA. As we know, this area is now known as American Samoa.

Does anyone know where I can find the full text of some or all of these legal documents online?