Tuesday, May 05, 2009
For Students of International Law and Political Science: A Great Legal Opinion and a Case that Reminds Us that World Politics is About Power
EDITOR'S NOTE: Some of the most interesting and informative writing is in the public domain--more specifically, in the written opinions of great American judges. The "article" below--abridged with apologies in advance to United States Court of Appeals Judge Janice Rogers Brown--is but one example of the genre. The actual opinion can be found here.
Here's the background: China regards Taiwan, a thriving, self-ruled democracy, as a renegade province and is committed to reunifying with the island, even through the use of force. In fact, China has adopted a law that authorizes use of force if Taiwan makes any moves toward formalizing its de facto independence.
It turns out, however, that Taiwan's sovereignty is in question in terms of international law. Moreover, an argument can be made (click here, here, and here) that the United States is the legal sovereign. At the end of World War II, the Japanese forces on Taiwan surrendered to the U.S. military, and in the 1954 San Francisco Peace Treaty, Japan renounced all claims to Taiwan. However, the treaty did not otherwise specify Taiwan's status. Seeing an opportunity, some Taiwanese filed a court case in which they asked the U.S. State Department to be ordered to issue them U.S. passports and to be recognized as "U.S. nationals."
On April 7, the District of Columbia Circuit Court ruled that the Political Question doctrine prevented the Court from deciding the issue. Judge Brown wrote the opinion, which, as stated above, appears below in abridged form. China Confidential readers are encouraged to read the entire opinion.
Opinion for the Court filed by Circuit Judge BROWN.
America and China’s tumultuous relationship over the past sixty years has trapped the inhabitants of Taiwan in political purgatory. During this time the people on Taiwan have lived without any uniformly recognized government. In practical terms, this means they have uncertain status in the world community which infects the population’s day-to-day lives....
At the end of the Sino-Japanese War, in 1895, China relinquished the island of Taiwan (then Formosa) to Japan. Treaty of Shimonoseki, China-Japan, art. 2(b), April 17, 1895, 181 Consol. TS 217. After its defeat in World War II, Japan surrendered sovereignty over Taiwan to the Allied forces in 1945. See 91 CONG. REC. S8348–49 (1945) (Text of Japanese Order). Specifically, General Douglas MacArthur ordered the Japanese commanders within China and Taiwan to surrender to Generalissimo Chiang Kai-shek, leader of the Chinese Nationalist Party, The Chinese Revolution of 1949, In 1949, China’s civil war—a battle between Chinese nationalists and communists—ended; mainland China fell to the communists and became the People’s Republic of China (“P.R.C.”), forcing Chiang Kai-shek to flee to Taiwan and re-establish the Republic of China (“R.O.C.”) in exile.
On September 8, 1951, Japan signed the San Francisco Peace Treaty (“SFPT”) and officially renounced “all right, title and claim to Formosa and the Pescadores.” Treaty of Peace with Japan, art. 2(b), Sept. 8, 1951, 3 U.S.T. 3169, 136 U.N.T.S. 45. The SFPT does not declare which government exercises sovereignty over Taiwan. It does generally identify the United States as “the principal occupying Power,” but does not indicate over what.
In 1954, the United States recognized the R.O.C. as the government of China, acknowledged its control over Taiwan, and promised support in the event of a large-scale conflict with the P.R.C. Mutual Defense Treaty Between the United States of America and the Republic of China, U.S.-R.O.C., Dec. 2, 1954, 6 U.S.T. 433; The Taiwan Strait Crises: 1954–55 and 1958. The ensuing decades, however, brought improved diplomatic relations with the P.R.C. and the United States’ posture on Taiwan’s sovereign changed. Starting in 1972, the United States recognized that the P.R.C. considered Taiwan a part of China and specifically declined to challenge that position. See DEP’T ST. BULL., Mar. 20, 1972, at 435, 437– 38 (setting forth the text of Joint Communiqué by U.S. and P.R.C., the “Shanghai Communiqué,” issued on February 27, 1972). In 1979, President Carter recognized the P.R.C. as the sole government of China and simultaneously withdrew recognition from the R.O.C. See DEP’T ST. BULL., January 1, 1979 (setting forth the text of Joint Communiqué on the Establishment of Diplomatic Relations Between the U.S. and P.R.C., issued on December 15, 1978); see also Goldwater v. Carter, 617 F.2d 697, 700 (D.C. Cir.), vacated, 444 U.S. 996 (1979).
This change in policy prompted Congress to pass the Taiwan Relations Act of 1979 (“TRA”), 22 U.S.C. § 3301 et seq., in order to spell out the United States’ new, unofficial relationship with “the people on Taiwan.” See id. § 3301 (“[T]he Congress finds that the enactment of this Act is necessary to help maintain peace, security, and stability in the Western Pacific; and . . . authoriz[e] the continuation of commercial, cultural, and other relations between the people of the United States and the people on Taiwan.”). The TRA established the American Institute in Taiwan (“AIT”) as the unofficial U.S. representative for relations with Taiwan. Id. § 3305. The AIT, inter alia, “processes visa applications from foreign nationals and provides travel-related services for Americans.” United States ex rel. Wood v. Am. Inst. in Taiwan, 286 F.3d 526, 529 (D.C. Cir. 2002). There is no indication the Congress or the Executive gave the AIT any responsibility for processing passport applications for the people on Taiwan.
The TRA also outlined the United States’ “expectation that the future of Taiwan will be determined by peaceful means” and its intention “to provide Taiwan with arms of a defensive character.” Id. § 3301(b); see also id. § 3302 (describing the provision of defense articles and services to Taiwan). Despite the executive renunciation of ties with the R.O.C., Congress pledged to maintain relations with the people on Taiwan and supply the government with weapons. Id. Thus began decades of “strategic ambiguity” with respect to sovereignty over Taiwan....
Identifying Taiwan’s sovereign is an antecedent question to Appellants’ claims. This leaves the Court with few options. We could jettison the United States’ long-standing foreign policy regarding Taiwan—that of strategic ambiguity—in favor of declaring a sovereign. But that seems imprudent. Since no war powers have been delegated to the judiciary, judicial modesty as well as doctrine cautions us to abjure so provocative a course....
We will never know [who is Taiwan's sovereign], because the political question doctrine forbids us from commencing that analysis. We do not dictate to the Executive what governments serve as the supreme political authorities of foreign lands, Jones, 137 U.S. at 212; this rule applies a fortiori to determinations of U.S. sovereignty....
Even if we concluded (which we do not) that Boumediene abrogated sub silentio the political question doctrine as it relates to de facto sovereignty, no valid argument can be made that it did so in relation to determining de jure sovereignty, which is at issue here....
Addressing Appellants’ claims would require identification of Taiwan’s sovereign. The Executive Branch has deliberately remained silent on this issue and we cannot intrude on its decision....From Creeping Independence to Reunification
Michael Goldfarb, online editor of The Weekly Standard, has written a brilliant analysis of current cross-Strait diplomacy. An excerpt appears below:The backdrop ... is China's massive military modernization program. According to Taiwanese intelligence estimates, the decades-long shift in the balance of power in the Taiwan Strait will reach a tipping point by the end of the year. The Chinese now have more than 1,300 surface to surface missiles pointed at Taiwan and a sophisticated air defense system capable of targeting and striking at aircraft as soon as they take off from their bases in Taiwan.
Officially, both the DPP and the KMT agree on the need to maintain the status quo, but the massive arsenal arrayed against Taiwan has changed facts on the ground and helped create a sense of inevitability to reunification. Closer economic ties may only increase China's ability to influence the political debate in Taiwan, as cross-strait trade and investment leave Taiwanese industries vulnerable to any rise in tensions. And as tourism from the mainland increases, another sector of the Taiwanese economy may well become dependent on Beijing's good will.
Fifty years ago the Chinese could only fire artillery shells and make threats in response to any provocation by -Taiwan. In a few more years mainland China will be able to stop tourists, cut air links, and seize Taiwanese investments if Taiwan defies the Communist party. China will be able to devastate the Taiwanese economy. And if that fails to bring Taipei in line, Beijing can credibly threaten to take the island by force....
Click here to read the entire essay.Monday, May 04, 2009
Hoping to Realign with Islamist Iran, US Pressuring Israel to Withdraw to Pre-1967 'Auschwitz Borders'
Regarding the so-called Middle East peace process--code for pressuring Israel to withdraw to indefensible borders--The New York Times reports:The leader of the militant Palestinian group Hamas said Monday that its fighters had stopped firing rockets at Israel for now. He also reached out in a limited way to the Obama administration and others in the West, saying the movement was seeking a state only in the areas Israel won in 1967.
Regarding the coming collapse of Pakistan, The Times reports:President Obama is pouring more than 20,000 new troops into Afghanistan this year for a fighting season that the United States military has called a make-or-break test of the allied campaign in Afghanistan.
But if Taliban strategists have their way, those forces will face a stiff challenge, not least because of one distinct Taliban advantage: the border between Afghanistan and Pakistan barely exists for the Taliban, who are counting on the fact that American forces cannot reach them in their sanctuaries in Pakistan.
Regarding Syria, Haaretz reports:Syria continues to transfer advanced weaponry to Hezbollah while working toward bettering its relations with the United States, Israeli security sources say.
The Syrian aid to Hezbollah is interpreted as an attempt to ensure that the militant Lebanese group is sufficiently armed for a possible confrontation with Israel.
Syria's intentions, according to the analysis, is to provide Hezbollah with sufficient advanced arms to raise its strength and capabilities to a level beyond what the group had prior to the Second Lebanon War in July 2006. Such capabilities would allow Hezbollah to embark on an offensive that would force Israel to fight on a second front in case of a regional conflagration, but allow Syria to prevent any fighting along the Golan Heights.
Here's what's really happening:
1. Pakistan is in danger of collapsing; and its nuclear arsenal is not secure, contrary to assurances by the Bush and Obama administrations. The Obama administration's attempts to downplay the crisis--stooges are already spreading the lie that the conquering Taliban are not necessarily aligned with Al Qaeda, not really internationally inclined, etc.--will not succeed in masking the danger. China Confidential analysts believe the corrupt and inefficient Pakistani regime could be overthrown by July 4--just in time for U.S. Independence Day and North Korea's next nuclear bomb test. Talk about a long, hot summer....
2. The U.S. is banking on Iran and its proxies, Hamas and Hezbollah, and ally, Syria, (a) to pacify Afghanistan, which is also on the verge of falling to the Taliban and Al Qaeda, and (b) to counter Pakistan. Appeasement of Iran--the official term is "engagement"--is well underway. Washington and Tehran are cooperating and coordinating diplomatic moves to condition public opinion. The cancelation of Iranian President Mahmoud Ahmadinejad's Latin American trip is an example; in anticipation of a new relationship with the U.S., the Iranians have decided to temporarily avoid embarrassing Obama by refraining from parading across America's traditional sphere of influence. [EDITOR'S NOTE: But Iran is pressing on other fronts--literally. For the first time since the U.S. invasion of Iraq, the mullahocracy has launched air strikes against Iraqi villages. Click here for the story. Iran now regards Shiite-ruled Iraq as an Iranian satrap, and it is increasingly likely to use its military to project power instead of relying on Shiite militias and terrorists.]
3. The U.S. is prepared to live with (but not approve of) a nuclear-armed, Islamist Iran, or an Islamist Iran on the nuclear threshold--i.e. a country that has the capability of making nuclear weapons but supposedly stops short of crossing the so-called red line.
4. Israel is expendable as far as Obama is concerned, although White House Jewish advisers will never admit this. The Obama administration is betraying Israel the way the Carter administration--its inspiration in foreign policy matters--betrayed the Shah of Iran in a craven attempt to curry favor with the Ayatollah Khomeini and his Islamist henchmen and hordes.
5. The Hamas truce offer is a put-up job, coordinated with the U.S.--Jimmy Carter discussed the idea with the exiled Hamas leader in Syria on two occassions--and deliberately timed to put maximum pressure on Israel ahead of Obama's meetings with Israel's President Shimon Peres (a figurehead) and Prime Minister Benjamin Netanyahu. The Israeli leaders will be given an ultimatum: withdraw to the pre-1967 "Auschwitz borders" (as Israel's late Foreign Minister Abba Eban referred to the armistice lines that preceded the defensive Six-Day War) and go along with a Hamas-ruled or -dominated Palestinian state sandwiched between Israel and the predominantly Palestinian Kingdom of Jordan, or lose U.S. support--i.e. risk a cut-off of military aid and U.S. acquiescence to a fully nuclear Iran.
6. History repeats itself.
(A) The U.S. is attempting to appease imperialist, Islamist Iran the way Britain and France tried to appease imperialist, Nazi Germany. European appeasement of Germany failed to preserve the peace and instead made war--on Germany's terms--inevitable. U.S. appeasement of Iran will fail to preserve the peace and instead make war--on Iran's terms--inevitable.
(B) American Jews are again letting down their endangered overseas brothers and sisters. In the run-up to World War II and the Holocaust, prominent and ordinary American Jews were afraid to speak out against Nazi persecution of German Jews out of fear of domestic anti-Semitism--i.e. the concern that powerful, pro-Nazi and pro-fascist groups in the U.S. would intensify their propaganda campaign accusing "the Jews" of conspiring to push the country into the war. In the run-up to the coming conflict with nuclear-arming Iran--which aims to destroy Israel and drive the U.S. out of the Middle East for once and all--U.S. Jews, slavishly bound to the Democratic Party, enthralled by Obama, afraid of seeming out of step and out of sync, fearful of being attacked by the Left, appear to be turning their backs on the Jewish State.
POSTSCRIPT: The current Commander-in-Chief of the Iranian Army, Ataollah Salehi, boasts it will only take 11 days to "wipe Israel out of existence"--without nuclear arms. Click hereor click below to screen the May 3 video. Bear in mind that the Iranian Army, which includes Iran's ground forces as well as the Navy and the Air Force, is considered more "moderate" than the Revolutionary Guard, which is in charge of the regime's nuclear installations, missile facilities, chemical and biological warfare programs--and Hezbollah.Investors Pitching P&A Fund to Chinese Director
China Confidential has learned that a group of high net-worth Hong Kong and mainland Chinese investors are in talks with an internationally acclaimed Chinese film director about creating a Prints and Advertising (P&A) fund for theatrically released feature films.
The venture would fund P&A on select, lower-budget pictures with potentially strong international appeal in order to promote a limited theatrical release in the United States--40-50 screens, initially. The "platform" distribution strategy would be followed by a wider release for successfully released films. U.S. distribution usually adds significant commercial value to a film, even in light of the growing relative importance of the overseas market.
P&A financing is generally considered less risky than investing in the development and/or production of motion pictures because investors or lenders can typically (a) cherry-pick pictures that have already been made, and (b) negotiate last-in-first-out repayment terms and accelerated revenue sharing or gross profit participation positions.
A Tokyo Stock Exchange-listed Japanese company is also reported to be considering a P&A play in the U.S. market, where a whole host of already produced films (as President Obama might put it) are, at least for the time being, finding it extremely difficult, if not impossible, to land distribution deals.
Tuesday, 5 May 2009
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