Tsai Ing-wen, the Democratic Progressive Party candidate for president of the Republic of China in-exile, is in the United States on a visit to build momentum for her campaign. The DPP nominee is considered the front-runner in Taiwan with the Kuomintang in disarray after eight years of rule by Ma Ying-jeou. Tsai’s visit coincides with the ROC response, filed May 28, to a federal lawsuit on the sovereignty of Taiwan. Tsai should pay attention to the case because the United States does not support her view of Taiwan’s international status.
In 2012, when Tsai lost to Ma in her first bid for ROC president, she was criticized for her statements that the Republic of China and Taiwan were the same. Since then Tsai has courted but avoided the Taiwanese independence movement and has advocated continuation of the status quo leaving Taiwan in political limbo. The island of 23 million people is claimed by both the People’s Republic of China and the exiled ROC while the United States promotes “strategic ambiguity” for the former Japanese territory.
However, a lawsuit filed in the District of Columbia District Court, Roger Lin v. Republic of China v. United States of America, is pending that may bring clarity out of confusion. The case, based on the law of agency, argues that the 1946 Nationality Act of the ROC illegally abolished Japanese nationality for the residents of the island, formerly known as Formosa. Both the ROC and USA oppose the lawsuit and filed similar motions to dismiss on a variety of procedural grounds.
While the outcome of the case is yet to be decided, the brief of the United States makes clear that Washington policy makers do not share Tsai’s view that the ROC equals Taiwan. Tsai may be too busy attending fundraisers to study the case but a review of the United States response to the lawsuit may help inform Tsai that the status quo is not what she thought it was.
Matthew Josephson, at the Department of Justice, is litigating the case and says there has been no specific injury to the Taiwanese plaintiffs. “But a general interest in obtaining a different international status for Taiwan and defining Taiwan’s identity is not a personal injury particular to these Plaintiffs. Instead, these alleged injuries are shared by millions of people who live on Taiwan.”
“Plaintiffs cannot establish that the United States caused their nationality injury through the 1946 decrees because the United States did not issue those decrees,” wrote Josephson ignoring the post-World War II occupied status of Taiwan. The United States imposed ROC troops on Formosa in October 1945 to process surrendering Japanese soldiers.
“Regardless of the nature of the United States’ relationship with the Republic of China in 1946 when the nationality decrees were issued, neither the Court nor the United States possesses authority today to restore Plaintiff’s alleged Japanese nationality or to resolve Plaintiff’s nationality.” Josephson claims too much time has elapsed since the decrees were issued to do anything about them.
Contradicting Tsai Ing-wen’s campaign theme that the ROC equals Taiwan, the United States brief is clear. “The Executive and Legislative Branches…have obviously and intentionally not recognized any power as sovereign over Taiwan.”
Josephson makes quick work of the 1951 San Francisco Peace Treaty that named the United States as the “principal occupying power” of Formosa: “The San Francisco Peace Treaty likewise provides no judicially manageable standards for resolving this case. While federal courts have the “authority to construe treaties and executive agreements, the SFPT cannot be interpreted in any manner that would resolve sovereignty over Taiwan or Plaintiff’s nationality.”
The Justice Department does not offer a solution to the “Taiwan question” but is blunt that the answer is not the Republic of China. If Tsai Ing-wen wants history to record her as leading a nation rather than just winning an election, Tsai needs to abandon the status quo and embrace Taiwanese independence.