林誌升即將上訴美國最高法院，確定舊金山和約『誰對台灣執行主權？』

來源: 米台曰3844 於 2009-04-12 23:14:03 [] [舊帖] [給我悄悄話] 閱讀數 : (22399 bytes)
本帖於 2011-01-08 08:16:39 時間, 由超管 論壇管理 編輯

站上美國最高法院
◎ 林誌升

美國最高法院自十九世紀中期至二十世紀，有關占領或買賣領土官司，有三十二個判例，這次「林誌升等控美政府案」，高院於二○○九年四月七日判決∶「維持聯邦地方法院的判決，原告（上訴人）九十天內可以上訴最高法院，這是高度政治問題。」毫無意外，誠如「城仲模研究智庫」事先判斷，本案勢必會在美國最高法院作最後定奪。

高院在判決文中說明∶「基於美國與中國六十多年來多變化的關係，台灣居民被困於如同地獄般的政治環境，台灣沒有一般國際所承認的政府，所以台灣人的『地位』不確定，這點，已經影響他們的日常生活。」

判決文又說∶「要確認原告之『國籍』，勢必將本院（高院）帶至美國行政部門六十餘年來，未曾答覆的議題，那就是『誰對台灣執行主權？』高院不能做出判斷，因為，這涉及政治問題。」

高院承認，原告所解釋舊金山和約的內容，是有根據的，也許是正確的，但是，「台灣主權」狀況，才是處理原告所「主張」事項的前提，高院沒有多少選擇，能讓美國行政單位拋棄多年來的「主張」。

城仲模教授將以「訴訟召集人」身分，召集國際公法學者討論，並將赴美國最高法院，與辯護律師替台灣主權問題辯護！詳情請看∶http://taiwancivilgovernment.ning.com/。

（作者為「控美政府案」代表人）


上訴( 高等 )法院判決文 (英文)
http://pacer.cadc.uscourts.gov/common/opinions/200904/08-5078-1174554.pdf
>
> United States Court of Appeals
> FOR THE DISTRICT OF COLUMBIA CIRCUIT
> Argued February 5, 2009 Decided April 7, 2009
> No. 08-5078
> ROGER C.S. LIN, ET AL.,
> APPELLANTS
> v.
> UNITED STATES OF AMERICA,
> APPELLEE
> Appeal from the United States District Court
> for the District of Columbia
> (No. 1:06-cv-01825)
> Charles H. Camp argued the cause and filed the briefs for
> appellants.
> Melissa N. Patterson, Attorney, U.S. Department of Justice,
> argued the cause for appellee. With her on the brief were
> Gregory G. Katsas, Assistant Attorney General, Jeffrey A.
> Taylor, U.S. Attorney, and Mark B. Stern, Attorney. R. Craig
> Lawrence, Assistant U.S. Attorney, entered an appearance.
> Before: HENDERSON, BROWN, and GRIFFITH, Circuit
> Judges.
> 2
> Opinion for the Court filed by Circuit Judge BROWN.
> BROWN, Cir! cu! it Judge: 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. This pervasive ambiguity has driven
> Appellants to try to concretely define their national identity and
> personal rights.
> Initially, the individual Appellants sought modest relief:
> they wanted passports. More specifically, they wanted
> internationally recognized passports. Now, however, Appellants
> seek much more. They want to be U.S. nationals with all related
> rights and privileges, including U.S. passports. Determining
> Appellants’ nationality would require us to trespass into a
> controversial area ! of! U.S. foreign policy in order to resolve a
> question the Executive Branch intentionally left unanswered for
> over sixty years: who exercises sovereignty over Taiwan. This
> we cannot do. Because the political question doctrine bars
> consideration of Appellants’ claims, the district court had no
> choice but to dismiss Appellants’ complaint for lack of subject
> matter jurisdiction. Accordingly, we affirm.
> I
> 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. S8348ˉ49 (1945) (Text of Japanese
> Order). Specifically, General Douglas MacArthur ordered the
> 3
> Japanese commanders within China and Taiwa! n ! to surrender to
> Generalissimo Chiang Kai-shek, id., leader of the Chinese
> Nationalist Party, The Chinese Revolution of 1949,
> http://www.state.gov/r/pa/ho/time/ cwr/88312.htm (last visited
> March 4, 2009). 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. Id.
> 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! a! s “the principal occupying Power,” but does not indicate
> over what. Id. at art. 23(a).
> 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: 1954ˉ55 and 1958,
> http://www.state.gov/r/pa/ho/time/lw/88751.htm (last visited
> March 4, 2009). 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? C> 38 (setting forth the text of Joint Communiqu233; by U.S. and
> P.R.C., the “Shanghai Communiqu233;,” issued on February 27,
> 1972). In 1979, President Carter recognized the P.R.C. as the
> 4
> 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 Communiqu233; 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 h! el! p 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 T! ai! wan 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
> 5
> Taiwan. CRS Issue Brief IB98034, Taiwan: Recent
> Developments and U.S. Policy Choices, by Kerry B. Dumbaugh,
> Foreign Affairs, Defense, and Trade Division, January 24, 2006.
> In 2006, Appellants, residents of Taiwan and members of
> the Taiwan Nation Party, attempted multiple times to submit
> applications for U.S. passports to the AIT for processing. The
> AIT refused to accept the applications and, ultimately, prevented
> Appellants from delivering further submissions. Appe! ll! ants
> filed a complaint in the district court seeking essentially two
> declarations: (1) the AIT’s refusal to process the individual
> Appellants’ passport applications wrongfully deprived them of
> their status as U.S. nationals and attendant rights; and
> (2) Appellants are U.S. nationals entitled to all associated rights,
> particularly those flowing from the First, Fifth, Eighth, and
> Fourteenth Amendments. Am. Compl. 18ˉ19. The district
> court dismissed the case for lack of subject matter jurisdiction
> under the political question doctrine. On appeal, Appellants
> admit Taiwan does not currently have a recognized sovereign,
> but argue that until it does, the SFPT established the United
> States as Taiwan’s “principal occupying power,” effectively
> giving the United States temporary de jure sovereignty.
> According to Appellants, no subsequent treaty or law abrogates
> ! th! is aspect of the SFPT. When permanent sovereignty is
> ultimately decided, they concede the United States’ supposed de
> jure sovereignty will cease; but, in the meantime, Appellants
> consider themselves non-citizen U.S. nationals.
> II
> We review the district court’s dismissal of Appellants’
> claims de novo. Piersall v. Winter, 435 F.3d 319, 321 (D.C. Cir.
> 2006). Under the political question doctrine, a court must
> decline jurisdiction if there exists “a textually demonstrable
> constitutional commitment of the issue to a coordinate political
> 6
> department.” Baker v. Carr, 369 U.S. 186, 217 (1962).
> “[D]ecision-making in the fields of foreign policy and national
> security is textually committed to the political branches of
> government.” Schneider v. Kissinger, 412 F.3d 190, 194 (D.C.
> Cir. 2005). Because deciding sovereignty is a political task,
> Appellants’! c! ase is nonjusticiable. Jones v. United States, 137
> U.S. 202, 212 (1890) (“Who is the sovereign, de jure or de
> facto, of a territory, is not a judicial, but a political[] question . .
> . .”); Baker, 369 U.S. at 212 (“[R]ecognition of foreign
> governments so strongly defies judicial treatment that without
> executive recognition a foreign state has been called ‘a republic
> of whose existence we know nothing . . . .”).
> Appellants argue this is a straightforward question of treaty
> and statutory interpretation and well within the Article III
> powers of the court. It is and it isn’t. The political question
> doctrine deprives federal courts of jurisdiction, based on
> prudential concerns, over cases which would normally fall
> within their purview. National Treasury Employees Union v.
> United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). We do not
> disagree with Appellants’ ass! er! tion that we could resolve this
> case through treaty analysis and statutory construction, see
> Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S.
> 221, 230 (1986) (“[T]he courts have the authority to construe
> treaties and executive agreements, and it goes without saying
> that interpreting congressional legislation is a recurring and
> accepted task for the federal courts.”); we merely decline to do
> so as this case presents a political question which strips us of
> jurisdiction to undertake that otherwise familiar task. See
> Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir.
> 2006) (“We need not quarrel with the plaintiffs’ assertion that
> certain claims for torture may be adjudicated in the federal
> courts as provided in the TVPA. We simply observe that such a
> claim, like any other, may not be heard if it presents a political
> question.”).
> 7
>! O! nce the Executive determines Taiwan’s sovereign, we can
> decide Appellants’ resulting status and concomitant rights
> expeditiously. Baker, 369 U.S. at 212 (“[T]he judiciary
> ordinarily follows the executive as to which nation has
> sovereignty over disputed territory, once sovereignty over an
> area is politically determined and declared, courts may examine
> the resulting status and decide independently whether a statute
> applies to that area.”). But for many years—indeed, as
> Appellants admit, since the signing of the SFPT itself—the
> Executive has gone out of its way to avoid making that
> determination, creating an information deficit for determining
> the status of the people on Taiwan. Appellants insist they do not
> ask the court to determine Taiwan’s sovereign; however,
> without knowing Appellants’ status, we cannot delineate
> Appellants’ resultant rights.
> Ide! nt! ifying 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.
> Appellants attempt to side-step this fatal hurdle by asserting
> that, for the limited purpose of determining their status and
> rights under U.S. law, the issue of sovereignty is already
> decided under the SFPT. According to them, as the “principal
> occupying power” under the treaty, the United States retains
> temporary de jure sovereignty over Taiwan. Consequently,
> Appellants urge us to remember recognizing that the
> determination of sovereign! ty! over an area is a political question
> “does not debar courts from examining the status resulting from
> prior action.” Vermilya-Brown Co. v. Connell, 335 U.S. 377,
> 8
> 380 (1948). True enough. However, under the interpretation of
> the political departments to whom we must defer in such
> matters, Pearcy v. Stranahan, 205 U.S. 257, 265 (1907)
> (deferring to “the interpretation which the political departments
> have put upon [a] treaty” when resolving a question of
> sovereignty), it remains unknown whether, by failing to
> designate a sovereign but listing the United States as the
> “principal occupying power,” the SFPT created any kind of
> sovereignty in the first place. Therefore, the “prior action” on
> which Appellants rely is not only an open question, but is in fact
> the same question Appellants insist they do not require this
> Court to answer: who is Taiwan’s sov! er! eign? Appellants may
> even be correct; careful analysis of the SFPT might lead us to
> conclude the United States has temporary sovereignty. But we
> will never know, 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.
> Appellants query how the political question doctrine can
> bar their claims in light of the Supreme Court’s recent decision
> in Boumediene v. Bush, 128 S. Ct. 2229 (2008). They observe:
> If the United States Supreme Court can, during open
> hostilities, consider and rule on issues involving Congress,
> the Executive Branch and the United States Constitution in
> respect of the handling of alleged enemy aliens directly
> threate! ni! ng the United States mainland, surely the
> interpretation of the SFPT and its legal effects upon
> Appellants under U.S. laws are properly within the courts’
> purview.
> Appellants’ Br. 28. At first blush, it is difficult to challenge
> Appellants’ reasoning. In truth, one can understand the
> 9
> perception that the Court in Boumediene went far beyond its
> historically limited role with respect to national security and
> foreign policy. See Schneider, 412 F.3d at 195 (Article III
> “provides no authority for policymaking in the realm of foreign
> relations or provision of national security. . . . [D]ecisionmaking
> in the areas of foreign policy and national security is
> textually committed to the political branches.”). Under
> precedent both de jure and de facto sovereignty are political
> questions—indeed, archetypal political questions. Oetjen v.
> Central Leather Co! .,! 246 U.S. 297, 302 (1918). Still, to read
> Boumediene as Appellants suggest would call into question the
> continuing viability of the entire political question doctrine. We
> do not read Boumediene so broadly, particularly as the majority
> merely held it had authority to review enemy detentions under
> the Suspension Clause in those cases where de facto sovereignty
> is “uncontested.” Boumediene, 128 S. Ct. at 2247, 2252ˉ53,
> 2262.
> 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. The majority in Boumediene explained, “to hold that
> the present cases turn on the political question doctrine, we
> would be required first to accept the Government’s premise that&! gt; de jure sovereignty is the touchstone of habeas corpus
> jurisdiction,” and then rejected that premise as “unfounded.”
> Boumediene, 128 S. Ct. at 2253. As counsel for the Government
> aptly put it at oral argument, the gravamen of the Court’s
> decision centered not on the de jure reach of the Constitution,
> but on the limitations that adhere to the United States’ actual
> exercise of power over non-citizens detained in a foreign
> territory. Appellants do not assert, nor could they, that the
> United States exercises actual control over the people on
> 10
> Taiwan. Thus, to the extent relevant in this case, Boumediene
> left the political question doctrine intact.
> Finally, Appellants attempt to analogize the United States’
> former relationship with the Philippines, after Spain ceded the
> Philippine Islands to the United States in 1898, to its current
> relationship with! T! aiwan. The comparison is inapposite.
> Congress, not a court, declared the Filipino population was
> “entitled to the protection of the United States” based on the
> United States’ sovereignty over the Philippines. See Rabang v.
> Boyd, 353 U.S. 427, 429 (1957). Later, Congress acknowledged
> “the final and complete withdrawal of American sovereignty
> over the Philippine Islands” and stripped the Filipino people of
> their non-citizen national status. Id. at 429ˉ30. Therefore,
> unlike here, courts confronting claims involving the rights
> enjoyed by Filipinos had no need to determine sovereignty over
> the Philippine Islands.
> Appellants argue that, as in the Philippines, the people on
> Taiwan owe the United States “permanent allegiance” and,
> consequently, meet the definition of U.S. nationals. See 8
> U.S.C. § 1101(a)(22) (“The term ‘national of the United States’
> m! ea! ns . . . a person who, though not a citizen of the United
> States, owes permanent allegiance to the United States.”). We
> join the majority of our colleagues and conclude manifestations
> of “permanent allegiance” do not, by themselves, render a
> person a U.S. national. See Marquez-Almanzar v. INS, 418 F.3d
> 210, 218ˉ19 (2d Cir. 2005) (holding “one cannot qualify as a
> U.S. national under 8 U.S.C. § 1101(a)(22)(B) by a
> manifestation of ‘permanent allegiance’ to the United
> States. . . . [T]he road to U.S. nationality runs through
> provisions detailed elsewhere in the Code, see 8 U.S.C. §§
> 1401ˉ58, and those provisions indicate that the only ‘noncitizen
> nationals’ currently recognized by our law are persons
> deemed to be so under 8 U.S.C. § 1408.”); see also Abou11
> Haidar v. Gonzales, 437 F.3d 206, 207 (1st Cir. 2006) (“The
> overwhelming majority of circuit cou! rt! s to consider the question
> have concluded that one can become a ‘national’ of the United
> States only by birth or by naturalization under the process set by
> Congress.”); Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280,
> 1285ˉ87 (11th Cir. 2005); Salim v. Ashcroft, 350 F.3d 307, 309ˉ
> 10 (3d Cir. 2003); Perdomo-Padilla v. Ashcroft, 333 F.3d 964,
> 972 (9th Cir. 2003). Moreover, Congress precisely defined a
> non-citizen national as, inter alia, a person “born in an outlying
> possession of the United States on or after the date of formal
> acquisition of such possession.” 8 U.S.C. § 1408. The term
> “outlying possessions of the United States” means American
> Samoa and Swains Island. Id. § 1101(a)(29). The definition
> does not include Taiwan. Id. Thus, attitudes of permanent
> allegiance do not help Appellants.
> III
> 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. Therefore, as the district court correctly concluded,
> consideration of Appellants’ claims is barred by the political
> question doctrine. Accordingly, we affirm.
> So ordered.

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