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(D.C. Cir. 1963), cert. den. 375 U.S. 833 (at least where actual allegiance to the PRC was not shown). The reasoning appears to be that the concept of “subject national, or citizen" must involve allegiance to a legitimate national authority. To imply such a status for the PRC would contravene the executive policy to withhold de jure recognition.

Thus, the inability to deport aliens to countries not recognized de jure, at least in the case of a divided country, may be due not only to the lack of channels of communication but also an unwillingness to deal with the unrecognized foreign government. In a case decided after the establishment of the Liaison Offices in Peking and Washington, a person born on the China mainland was held not to be a citizen of the PRC. The Department of State said in response to an inquiry from the court:

Normally, the United States does not deport aliens to countries with whose governments we do not have diplomatic relations. At the present time, with respect to persons who come from mainland China and claim to be citizens of the People's Republic of China and not the Republic of China, we believe there is no appropriate government with which we have relations for the purpose of directing a request pursuant to section

1253A. Cheng v.INS, 521 F.2d 1351, 1353 (3d Cir. 1975). While this is a second priority case, the same reasoning might also be applied to the first priority.

If the first two priorities fail, the statute permits deportation to any of six categories of "countries” to which the alien has some ties such as the country where he was born or from where he entered the United States, or to any other country willing to accept him. For purposes of the third priority, "country" generally refers to a geographical area rather than a political entity.

After withdrawal of recognition, there would be no problem of communication with the Taiwan authorities, even under the “Japanese formula." A problem would arise, however, if Taiwan were not considered a "country" for deportation purposes because it is not recognized de jure following the reasoning of Cheng v. INS. One solution would be to have a statement by the executive branch that treating Taiwan as a "country" for this purpose contravenes no executive policy. The courts might also be urged to treat de jure and de facto recognized countries alike, unless there is an express executive or congressional policy to the contrary.

Miscellaneous Matters.--Several procedural obstacles would arise if there were no American diplomatic or consular officers in Taiwan. Visas are generally issued at the consulate where the alien resides, 119 posing difficulties for immigrants from Taiwan. Similarly, passports issued outside the United States are handled by diplomatic or consular officers. Both of these requirements could be waived. 120

In 8 U.S.C. 1253(h) the attorney general is permitted to withhold deportation at his discretion for reasons of foreign policy or “to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion.” Fear of per

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119 8 U.S.C. 1202(c); 22 C.F.R. 42.110, 42.117. 41.110.
180 22 U.S.C. 211(a). 8 U.S.C. 1182(c) ; 22 C.F.R. 41.114, 41.6; 8 C.F.R. 212.1.

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secution in one part of the country is not sufficient if the alien would be safe in another part; e.g., Lavdas v. Holland, 235 F. 2d 955 (3d. Cir. 1956) (one island in Greece). If Taiwan were treated as a part of China, it might be that a person would have to be persecuted in both places before this exception would apply.

The admission on parole of certain refugees on an emergency basis pending regularization of their status is permitted in 8 U.S.Č. 1153 (a) (7). Under this program, an alien must make application in a nonCommunist "country," and satisfy an American immigration officer that the alien has fled from a Communist area because of persecution; in addition, the alien cannot be a “national of the country” where the application is being made. If Taiwan were treated as a part of China, then it would appear that a person fleeing persecution by the PRC could not apply for parole from Taiwan.

A number of Taiwan businessmen now enter the United States under 8 U.S.C. 1101(a) (15) (E) as traders or investors operating pursuant to the Treaty of Friendship, Commerce, and Navigation between the United States and the ROC. If this treaty lapses upon

pses upon withdrawal of recognition, then no other persons can enter via this channel, and treaty traders and investors presently in the United States may have to return to Taiwan.

V. TREATIES (AND EXECUTIVE AGREEMENTS) Treaties in Force (1976) lists fifty-nine treaties and executive agreements (together with amendments) between the United States and the ROC. While all are technically in force, many in fact have little or no operational consequences at present. Several treaties concern political relations between the two countries during the earlier part of the century.121 Others deal with economic and military relations in World War II and the early 1950s.122 There are also agreements concerning loans and transfers of naval vessels to Taiwan,123 and construction of various communications and defense facilities on Taiwan,124

some of these provide for American ownership or eventual return of the items concerned. Other agreements deal with matters that are in the process of being phased out, including the status of forces agreement 125 and the Military Assistance Advisory Group.126 There are also a number

a of expired agricultural commodities agreements.127

121 Treaty looking to the advancement of the cause of general peace (1915), Treaty Series (TS) 619, 619A ; Treaty of arbitration (1932), TS 857 ; Treaty for the relinquishment of extra-territorial rights in China (1943), TS 984.

122 Agreement concerning the United States relief assistance to the Chinese people (1947), TIAS 1674 ; Agreement relating to duty-free entry of relief goods (1948), TIAS 2749, 3151. Agreement relating to claims resulting from activities of United States military forces in China (1948), TIAS 1776; Agreement relating to the presence of the United States armed forces in China (1947), TIAS 1715. Agreement relating to the furnishing certain materials to China for the defense of Taiwan (1951), TIAS 2293; Agreement relating to assurances required by the Mutual Security Act of 1951 (1951), TIAS 2604. Preliminary agreement regarding principles applied to mutual aid in the prosecution of the war against aggression (1942), 56 Stat. 1494 ; Agreement under Section 3(c) of Lend-Lease Act (1946), TIAS 1746 ; Agreement on the disposition of lend lease supplies in inventory or procure. ment in the United States (1946), TIAS 1533.

123 TIAS 2979 (and amendments); TIAS 4180 (and amendments) ; TIAS 4274 ; TIAS 4676 : TIAS 4828 ; TIAS 6283; TIAS 6623.

124 Agreements were signed to construct defense facilities, TIAS 3713, a scatter wave radio facility, TIAS 5175 ; a communications facility, TIAS 5176; and a scatter wave control facility. TIAS 5177.

126 TIAS 5986.

128 TIAS 2712. See also TIAS 3571 (and amendments) and TIAS 4312 (disposal of sur plus military material).

127 TIAS 5010, 5151, 5219, 5589, 5717, 5718, 6395 (all with amendments).

Another group of agreements concern routine or relatively routine matters such as postal service,128 free entry privileges for personal articles of consular officers,129 and length of validity and fees for nonimmigrant visas.130 Still others deal with various kinds of scientific and educational cooperation.131

This leaves only a small number of treaties and agreements that are still operational and concern relatively important matters. The Mutual Defense Treaty 132 was discused earlier. The Treaty of Friendship, Commerce, and Navigation 133 established the framework for political and commercial relations between the two parties, and is the basis for a broad range of private rights enjoyed by nationals of each party. This treaty was signed in 1946, but an exchange of notes in 1950 limited its operation to the territory actually under the control of the Taiwan government.134 Similarly the air transport agreement signed in 1946 established routes between the China mainland and the United States. The agreement was later amended to suspend the operation of these routes and to establish new routes to and from Taiwan.135

According to 42 U.S.C. 2153 an agreement for cooperation concerning civil uses of atomic energy must be signed before nuclear materials are transferred to another government. Such an agreement was signed with Taiwan in 1972.136 It contains guarantees by Taiwan not to use the materials for military purposes and not to transfer any material or restricted technical data to unauthorized persons or “beyond the jurisdiction of the government of the ROC. Various safeguards are specified in this agreement and in a companion trilateral agreement among the United States, Taiwan, and the International Atomic Energy Agency.137 The bilateral agreement is in force for thirty years, with no provision for earlier denunciation. The trilateral agreement terminates upon termination of the bilateral agreement or unilateral termination by one party on six months notice (except that it remains effective with respect to special fissionable materials). Under these agreements, Taiwan has begun a major program of building nuclear-powered electric generating plants.

There are two agreements setting up "voluntary” textile quotas for Taiwan exports to the Unitd States. 138 These are part of the Arrangement Regarding International Trade and Textiles concluded in Geneva on December 20, 1973. Although not a party to the arrangement, Taiwan has agreed to abide by its provisions. Quota agreements tend to be of short duration (these two expire in December, 1977) with periodic renewals.

128 Agreement for the exchange of international money orders (1957), TIAS 3995, Parcel post convention (1916), 39 Stat. 1665 ; Agreement for exchange of insured parcel post (1957), TIAS 3941.

129 6 Bevans 727. 130 TIAS 3539.

131 Agreement on technological advancement in connection with water resources, land utilization, and various fields of irrigated agriculture (1972), TIAS 7374 ; Agreement for financing certain educational and cultural exchange programs (1964), TIAS 5572; Agree. ment relating to the establishment and operation in Taipei of a United States Navy Medical Research Unit (1955), TIAS 3493; Agreement concerning the status of the American Embassy School of Chinese Language and Area Studies at Taichung and its personnel and of Chinese Embassy personnel studying in the Washington area (1969), TIAS 6759 ; Agreement relating to cooperation in science and technology (1969), TIAS 6639; Arrangement for the direct exchange of certain information regarding the traffic in narcotic drugs (1947), 6 Bevans 797.

132 TIAS 3178. 133 TIAS 1871.

134 The texts of the notes are unavailable, but the substance is mentioned in a footnote to the Treaty of Friendship, Commerce, and Navigation in Treaties in Force. For some unexplained reason that may or may not be significant, that footnote is not included in the 1975 and 1976 editions of Treaties in Force.

135 TIAS 1609, 6773.

138 TIAS 7364, 7834 ; see also, Agreement providing for a grant for the acquisition of nuclear research and training equipment and materials (1959), TIAS 4371.

137 TIAS 7228.
138 TIAS 7821, 8033.

Finally, there is an agreement for relief from double taxation on earnings from operation of ships and aircraft,139 an Overseas Private Investment Corporation-related agreement on guarantees for projects in Taiwan proposed by nationals of the United States, 140 and a series of agreements relating to the considerable sums of American owned Taiwan currency accumulated through various earlier military and economic assistance programs. 141

It should be noted that all the treaties of continuing importance are limited by either their terms, subsequent amendment, or clear implication to apply only to the territory actually controlled by the government on Taiwan.

Earlier sections of this study have discussed the effects on treaties and other international agreements if, after withdrawal of recognition, Taiwan were regarded as either a political subdivision of the PRC or a new sovereign state. It is less certain what the effects would be if Taiwan were regarded as the de facto recognized government of an entity having international personality. Again, international law does not give clear guidance.

One possibility is that after withdrawal of de jure recognition, all treaties and agreements would lapse since one of the signatories, the ROC, would no longer "exist.” This result may not be desirable for the United States, since the preservation of some obligations—such as those concerning textile quotas, civil aviation, or safeguards for nuclear materials-is certainly in our interest. The termination of such treaties also would upset many economic and other relations with Taiwan.

A second possibility is that treaties applying only to territory actually controlled by Taiwan would remain in force even after withdrawal of de jure recognition. The question is complicated by the fact that, although there are some treaties the United States would wish to preserve, there may be others which for reasons of policy the United States would wish to terminate-e.g., the Mutual Defense Treaty. Are there means of keeping the former and removing the latter?

One distinction sometimes applied in international law is between treaty obligations that are political and those that are non-political or technical. It may be argued that political treaties would be nullified by withdrawal of recognition, since that is a political act intended to alter political relations. The Mutual Defense Treaty, a thoroughly political matter, would therefore be terminated, but other (non


139 TIAS 7282.
149 TTAS 2657. 5509.

141 Economic aid agreement (1948), TIAS 1837, 1923, 3077, 5888: Agreement establishing a joint commission on rural reconstruction in China (1948), TIAS 1848, 1975 ; Agreement concerning disposition of the New Taiwan dollars generated as a consequence of aid furnished to China (1965), TIAS 5782, 6451, 6906: Agreement regarding the ownership and use of local currency repayments made by China through the Development Loan Fund (1958), TIAS 4162 ; Agreement relating to the deposit by China of 10 percent of the value of grant military assistance and excess defense articles furnished by the United States (1972), TIAS 7325.

political) obligations concerning ongoing matters of trade, investments, and cultural relations could be continued.

This distinction presents several problems. First, the hard-to-draw line between political and non-political matters is, in the end, a fairly arbitrary one. Is an agreement to supply Taiwan with nuclear materials for the generation of electricity an economic or a political matter? What about an Export-Import Bank loan to build a plant that produces military-related materials? The principal problem arises not with respect to the Mutual Defense Treaty, but with the Treaty of Friendship, Commerce, and Navigation which is the basis for many economic and cultural ties and which also specifies a definite political relationship. If this treaty lapses because of its political character, then economic and cultural relationships would be severely disrupted. If this treaty does not lapse despite its political character, then as a legal matter why should the Mutual Defense Treaty be treated differently?

A different distinction might be used that selectively removes only the Mutual Defense Treaty; namely, between military and non-military obligations. There is no clear international law precedent for such a distinction, but then the entire situation is quite unprecedented.

Perhaps the most straightforward approach would be to argue that the legal consequences of withdrawing de jure recognition are unclear, with respect both to the status of Taiwan itself and to the question of whether pre-existing treaties remain in effect. International law does not require that treaties affecting only the territory controlled by the Taiwan authorities must lapse. On the contrary, there is strong support for protecting on-going relations, especially those involving commercial affairs and private rights. At this point, rather than try to impose legal precision on a basically ambiguous situation, the United States could state which treaties—perhaps all—it considered still to be in force. Alternatively, the United States could state that as a matter of law, all treaties remain in force, but then terminate any specific treaty in the manner prescribed by its terms.

It should be noted that methods other than treaty relations could be used to attain the same substantive results. Rather than a textile quota agreement, arrangements similiar to those limiting Japanese steel exports to the United States in 1972 could be employed.

Finally, civil aviation may present some special problems. The Civil Aeronautics Board is required to act "consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be enforced between the United States with any foreign country." 142 The United States is a member of the Chicago Convention which requires that no scheduled international air service may operate without the prior consent of that state." 143 If Taiwan were regarded as a part of the PRC, it might be necessary to obtain the PRC's consent to land in Taipei. Moreover, any future treaties signed with the PRC might affect, either directly or by implication, present landing rights in Taipei. The PRC has replaced Taiwan in the International Civil Aviation Organization, although Taiwan continues to adhere to international technical requirements.

10 49 U.S.C. 1502. 163 84 United Nations Treaty Series 89.

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