February 5, 1:59 PM
by Michael Richardson, Boston Progressive Examiner
A standing room only crowd filled the courtroom in the District of Columbia U.S. Court of Appeals where a three-judge panel heard arguments on interpretation of the 1952 San Francisco Peace Treaty that officially ended World War II with Japan.
The case, Roger C. S. Lin, et al v. United States seeks a declaration of rights under the peace treaty, which transferred the island of Formosa to United States military control. There is presently a three-way tug of war over the future of Taiwan, as the island is presently known.
Communist China wants "reunification" despite never controlling the prosperous island. Then there is the Republic of China, which the U.S. allowed to be a caretaker government-in-exile when the Communist revolution of 1949 swept mainland China, which wants to be independent. Finally, the plaintiffs in the lawsuit and others are seeking recognition of U.S. territorial control under the 1952 treaty.
Attorney Charles Camp argued for the plaintiffs and was questioned by the three judges. Camp reports that the substantive issues of the case were well understood by the court.
"When the Government lawyer was asked whether any document had ever changed that provision of the treaty [regarding U.S. military occupation], the Government said no. When asked by one of the judges whether the Executive branch could unilaterally change the provision in the treaty making the U.S. the principal occupier of Taiwan, the Government lawyer hesitated and the judge then answered the question himself. He said the Executive branch cannot unilaterally change the language of a treaty."
At one point in the hearing, the Justice Department asserted the 1952 treaty was "irrelevant" leaving the judges stunned at the lack of a substantive response. One of the judges wondered if the U.S. was trying to "walk away" from its treaty obligations.
The main thrust of the government case was that it was a political decision and not a legal one. However, the Justice Dept. attorneys did not cite a single case that would deprive the Court of Appeals from interpreting rights under treaties.
A win by plaintiffs would put them in a similar situation with the residents of American Samoa where the island inhabitants are considered U.S. nationals but not citizens. Plaintiffs are seeking use of U.S. passports and other legal protections that would come with territorial status.
A judicial declaration of rights under the treaty would end the arms build-up and ease tensions between Taiwan and China. Last week the United States allowed Raytheon Corporation to sell $154 million worth of Patriot missiles to Taiwan. President Obama's new National Intelligence director Dennis Blair is expected to urge more missile sales if the unresolved status quo is maintained.
No date for a decision by the Court of Appeals has been announced.