TRA of Japan Taimocracy翻譯

催生日本版〈台灣關係法〉 TRA of Japan    Taimocracy翻譯

〈台灣關係法〉(TRA)成立至今正好40週年，各界為此舉辦一系列研討會。研討途徑不外涉及歷史、國際關係兩大類。歷史途徑主要探討：當年發生什麼事？還有什麼機密未被知曉？而國際關係途徑則為：之後大環境有巨大改變，要如何因應將發生的事情？

Many forums have been held for the 40th anniversary of Taiwan Relations Act (TRA).  The focuses of the forums are mainly history and international relations approaches.  The history approach discussed what happened then, as well as what secrets yet to be discovered.  The international approach concerns the environment has changed since 1979, how should we respond to?

無論何種途徑，大家都忘了問：為什麼？最關鍵疑問是：為何斷絕外交關係的結果，是一部國內法？為何美國有權制訂TRA？其他國家有沒有此權力？

Either way, people seem forgot to ask “WHY.”  The critical question is that why a break of diplomatic tie led to a U.S. municipal law been drafted?  What the U.S. has the authority to pass TRA?  Is there any other country has a similar power to do so?

〈台灣關係法〉是太平洋戰爭的遺緒。當年同盟國(UN)為調度資源共同作戰，各國同意讓渡部分主權權利出來，並「欣然將首位給予美國」（邱吉爾語）。此一以美國為首的協同架構，持續到太平洋戰爭結束與〈舊金山對日和約〉的制訂、執行。

TRA, in short, is the regime managing the issue of Taiwan originated from the Pacific War.  The member states, which joined the Declaration by United Nations agreed in 1942 that they transferred some sovereign rights to the United Nations in order to fight against the Axis and allocated resources for common war.  "We gladly accorded the first place to the United States," Winston Churchill wrote in Chapter 35 of his famous book “The Second World War.”  The great alliance, which was led by the U.S., lasted from the break-up of the Pacific War to the draft, the conclusion and the practices of the Treaty of Peace with Japan.

由於美國負肩負和約中「主要佔領國」（首位）的義務，對未解決的領土如台灣等，具有主導與監督之責。進一步說，各國既讓渡了部分主權權利給美國（總統），他帶領盟國的權力便因此與美國憲法產生關連。美國總統任命的美軍指揮官即為總統在海外的代理人，從而戰區與佔領地治理也在美國總統與憲法的適用範圍下。

Bearing the obligation as the Principal Occupying Power, or the Supreme status, of the Treaty of Peace of Japan, the U.S. holds the dominant and supervisory power over the undetermined territories in the West Pacific area such as Taiwan among others.  And exactly because the fact that the UN members have transferred part of the sovereign rights to the U.S., the power of the U.S. President to lead the alliance is under the jurisdiction of the U.S. Constitution.  The U.S. President “shall be Commander in Chief of the Army and Navy of the United States,” and “shall appoint…all other Officers of the United States,” under the Constitution.  All military and naval officers of the U.S. are the agents of the President, including the Supreme Commander of the Allies, and the occupied territories that under the rule of SCAP/GHQ and others are subject to the U.S. President.

細看〈台灣關係法〉，其適用對象不僅包括台澎的領土、人民、政府，更涵蓋「西太平洋地區」與人民；不僅如此，先前因斷交而終止的〈中美協防條約〉，也同樣關切「西太平洋地區」。太平洋戰區與西太平洋，以及〈協防條約〉與〈台灣關係法〉的轉換與接續，完整體現美國近八十年的盟國責任。美國劃定台海「戴維斯線」(Davis Line)的權力，也源自於此。

The jurisdiction of TRA is not only including the territory, the people and the government of Taiwan; it further extends to the West Pacific area and the people.  Due to the break of the diplomatic tie between the ROC and the U.S., the termination of the Mutual Defense Treaty, which concerned the same West Pacific area and the people, we realize that the Pacific Theater and West Pacific area, as well as the Mutual Defense Treaty and TRA establish a pair of regimes that continues the U.S. the alliance obligation for nearly eight decades.  The power of the U.S. to draw the Davis Line in 1955 originated from the same power.

從2014年起，部分日本有志之士便推動〈台灣關係法〉。但日本是戰敗國，無戰勝國主權權利的讓渡，如何有權訂立日本版〈台灣關係法〉？

Some Japanese elites have promoted the legislation of Japanese Taiwan Relations Act since 2014.  However, the question remains the same: how Japan has the power to draft the municipal law referring to Taiwan, since she was the defeated in the Pacific War.

答案是：日本雖在1946年4月20日的〈第677號聯合國最高指令〉(SCAPIN-677)中將對台灣的行政權分離出來，且在〈舊金山對日和約〉中表達放棄台澎「一切權利、權利名義與要求」(all right, title and claim)，而不得食言(estoppel)；卻因受讓對象（給某一國、或完成政治重建後的台灣合法治理當局）遲遲未定，使其放棄領土的手續無法完成。在等待合法對象出現前，日本須以「前主權者」的身分，透過握有台澎「剩餘主權」(residual sovereignty)的法理，以實力維持台澎地位不被片面改變。因此，日本防衛指針中「周邊有事」的範圍自始即包括台灣（雖然剛開始不言名），甚至擴及南海。

The answer is simple.  For Japan was excluded Formosa and the Pescadores from the governmental and administrative jurisdiction in SCAPIN-677 on January 20th, 1946, and has renounced “all right, title and claim to Formosa and the Pescadores" in the Treaty of Peace, she cannot break the solemn oath, the practice of estoppels.  Nevertheless, the fact that there has no legitimate object, a specific state, or the Governing Authorities of Taiwan which has completed the political reconstruction, Japan can transfer, the legal procedure is pending.  In waiting for the legitimate object, Japan still holds the residual sovereignty of Formosa and the Pescadores (Taiwan).  She must keep the uti possidetis de jure, as you possess legally, of Taiwan intact, by the hard power as well as soft, whatever it is necessary.  This is the reason why Taiwan was within the jurisdiction of the Guidelines for Japan-U.S. Defense Cooperation ever since it has been drafted.

基於〈舊金山對日和約〉的和約義務，日本是世界上二個有權制定〈台灣關係法〉的國家之一。沒想到吧！

It is beyond the imagination of most people that Japan is one of the two countries which have the authority to draft the Taiwan Relations Act, according to the obligation of the peace treaty.