Chapter 3 – Three Territorial Cessions

Three Territorial Cessions 


Background Information for Discussing the

1952 SFPT Cession of Taiwan


(1) The Territorial Cession of California

 California and Taiwan are on opposite sides of the Pacific Ocean.  The distance from San Francisco, Calif. to Taipei, Taiwan, is 6452 miles (10382 km.)  In trying to explain the legal status of Taiwan, few if any researchers examine the history of California.  This is a serious oversight, because there are many useful points of reference.   

Most importantly, an overview of the history of California allows us to examine the basic nature of military occupation, and in particular how military occupation relates to peace treaty cessions. 

In the realm of international law, the concept of “military occupation” is primarily an outgrowth of the Napoleonic Wars. In other words, in most areas of the world, in the period before the early 1800’s, armies of a country which conquered other territory simply annexed that territory.  The conqueror was the annexor.

 In the post-Napoleonic world, these norms began to change. Notably, in the practice of the United States, the difference between “military occupation” and “annexation” was recognized very early on, even during the Revolutionary War period. 

According to these new (generally post-Napoleonic) customary norms of warfare, the conqueror was merely the occupying power. In other words, it was the conqueror who had both “the right and the obligation to undertake military occupation of conquered territory.”  In consideration that the military occupation of a particular area could be delegated to other country’s troops, the most correct specification would be to say that: The conqueror is the (principal) occupying power. 

As a codification of these customary norms, the definition of military occupation was carefully stipulated in the Hague Conventions of 1907, as follows: “Territory is considered occupied when it is actually placed under the authority of the hostile army.”  The term “hostile army” is taken here to mean “foreign military forces.” 

Hence, in relation to the military occupation of a particular area, three elements must be discussed: (1) Who is the (principal) occupying power? (2) When did the military occupation begin? (3) When did the military occupation end? 

An overview of the history of California in the Mexican American War period is useful for seeing how these questions are answered. 

The Mexican American War and California 

The Mexican territory of California came under the authority of the hostile army (i.e. US military forces) as of Jan. 13, 1847.  This provides a convenient date for establishing the beginning of the US military occupation of California territory. Military occupation is conducted under military government, and so United States Military Government jurisdiction over California territory has begun as of this date. 

California was sovereign Mexican territory until the coming into force of the  Mexican American Peace Treaty (Treaty of Guadalupe Hidalgo) on July 4, 1848. According to the terms of Article 5 of the Treaty, California territory was ceded to the USA by Mexico. 

In Cross v. Harrison, 57 US 164 (1853), the US Supreme Court confirmed that the military government of the (principal) occupying power did not end with the coming into force of the peace treaty but continued until legally supplanted. 

Civil government in California began on Dec. 20, 1849.  This civil government supplanted United States Military Government jurisdiction over the territory. 

We can construct a timeline for the military occupation of California as follows. 

Jan. 13, 1847:    This date marks the beginning of the belligerent occupation and thus the beginning of USMG jurisdiction over the territory.

July 4, 1848     This date marks the coming into force of the peace treaty, and the beginning of the “friendly occupation.” (“Friendly occupation is also called “the civil affairs administration of a military government”)

Dec. 20, 1849    This date marks the end of the military occupation.  The end of USMG jurisdiction was announced by the US Commander in Chief. This USMG jurisdiction was supplanted by a (locally formed) civil government for the territory.  As of this date, California is a territory of the USA with its own civil government.  

 


Background Information for Discussing the

1952 SFPT Cession of Taiwan


(2) The Territorial Cession of Puerto Rico

 After we fully understand the major details of the territorial cession of California as a result of the Mexican-American War, we can move on to the situation of Puerto Rico after the Spanish American War. 

In Puerto Rico, the United States was the conqueror and therefore will be the (principal) occupying power. The military occupation of Puerto Rico began with the surrender of Spanish troops, and the date given in many sources is Aug. 12, 1898. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Puerto Rico territory has begun as of this date. 

Puerto Rico was sovereign Spanish territory until the coming into force of the Spanish American Peace Treaty on April 11, 1899. According to the terms of Article 2 of the Treaty, Puerto Rico was ceded to the USA by Spain.

 Article 2: Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones.  

Later, civil government in Puerto Rico began on May 1, 1900, thus supplanting United States Military Government jurisdiction over the island. 

We can construct a timeline for the military occupation of Puerto Rico as follows.

 Aug. 12, 1898:   This is the beginning of the belligerent occupation and the beginning of USMG jurisdiction over the territory.

April 11, 1899    This date marks the coming into force of the peace treaty, and beginning of the “friendly occupation.” (“Friendly occupation is also called “the civil affairs administration of a military government”)

May 1, 1900     This is the end of the military occupation.  The end of USMG jurisdiction was announced by the US Commander in Chief. This USMG jurisdiction was supplanted by a (locally formed) civil government for the territory.  As of this date, Puerto Rico is an overseas territory of the USA with its own civil government.

 


Background Information for Discussing the

1952 SFPT Cession of Taiwan


(3) The Territorial Cession of Cuba

 Next we can move on to the situation of Cuba after the Spanish American War. 

For Cuba, the United States was the conqueror and therefore will be the (principal) occupying power. The military occupation of Cuba began with the surrender of Spanish troops, and the date given in most sources is July 17, 1898. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Cuba territory has begun as of this date.

 Cuba was sovereign Spanish territory until the coming into force of the Spanish American Peace Treaty on April 11, 1899.  According to the terms of Article 1 of the Treaty, Spain ceded Cuba but no “receiving country” was specified. 

Article 1: Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.

 Later, civil government in Cuba began on May 20, 1902, under the name of the Republic of Cuba, thus supplanting United States Military Government in the island.

 Note: Among civilians, in regard to territorial cessions after war, there is often much confusion about the significance of the period from the coming into force of the peace treaty until the supplanting of the military government of the (principal) occupying power. From the previously given examples of California and Puerto Rico, it should be clear that this is still regarded as being within the period of “military occupation.”  Significantly, the wording of Article 1 of the Spanish American Peace Treaty (Treaty of Paris) of April 11, 1899, strongly appears to confirm this.  In fact, Cuba was not occupied by the United States after the coming into force of the peace treaty.  Cuba had been belligerently occupied since July 17, 1898. 

We can construct a timeline for the military occupation of Cuba as follows. 

July 17, 1898:   This is the beginning of the belligerent occupation and the beginning of USMG jurisdiction over the territory.

April 11, 1899   This date marks the coming into force of the peace treaty, and the beginning of the “friendly occupation.” (“Friendly occupation is also called “the civil affairs administration of a military government”)

May 20, 1902    This is the end of the military occupation.  The end of USMG jurisdiction was announced by the US Commander in Chief. This USMG jurisdiction was supplanted by a (locally formed) civil government for the territory.  The Republic of Cuba has gained its independence as of this date.

 

Summary 

We can clearly see that for the territorial cessions of California, Puerto Rico, and Cuba, each was held under the jurisdiction of USMG until final determination of their political status.  

In the present day, many persons often refer to “occupied territory” as having an undetermined status.  This is especially true for a limbo cession in a peace treaty.

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