of territorial cession
by Richard W. Hartzell and Roger C. S. Lin
[Line Drawing #1]
This line drawing is described as follows: On the line there are three dots, labeled A, B, and C respectively. On the right end of the line is a diamond shape, labeled D.
We can use this simple line drawing to discuss territorial cessions which are the result of war.
Point A represents acquirement of the territory by conquest, or "cession by conquest." In other words, historically speaking most countries traditionally recognized that overrunning another country's territory with military forces was directly equivalent to "annexation." However, in the post-Napoleonic period this came to be re-defined as merely "military occupation." As we now recognize, there are different stages of "military occupation," and Point A marks the beginning of the "belligerent occupation" of the entire territory. Military government is in effect.
This customary norm of international law was more precisely codified in the Hague Conventions of 1907, which stipulated that "the occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."
Territory is considered occupied when it is actually placed under the authority of the hostile army. In layman's terms, Point A often corresponds to the point in time when local military troops surrender.
Point B represents "cession by treaty." In the post-Napoleonic period "cession by conquest" must be confirmed with a "cession by treaty" in order to make a valid determination of what the status of the territory should be.
Point C marks the end of the military government of the "(principal) occupying power." Military government must be supplanted by some other legal arrangement for local government in order for the territory to reach a "final (political) status."
Area D marks the onset of a "final status" after going through the period of military occupation. Alternatively, this is called the final status under the law of occupation.
The following diagram provides a convenient summary for the territorial cessions of Puerto Rico, the Philippines, Guam, Cuba, and Taiwan.
|Point A||Point B||Point C||Area D|
|Puerto Rico||1898.08.12||1899.04.11||1900.05.01||unincorporated territory of USA|
|Philippines||1898.08.14||1899.04.11||1901.07.04||unincorporated territory of USA|
|Guam||1898.06.21||1899.04.11||1950.07.01||unincorporated territory of USA|
|Cuba||1898.07.17||1899.04.11||1902.05.20||Republic of Cuba|
Referring back to Line Drawing #1, the significance of the periods of time from Point A to Point B, from Point B to Point C, and from Point A to Point C are given as follows:
Point A to Point B marks the period of "belligerent occupation." During this period, in the case of Puerto Rico, the Philippines, Guam, and Cuba, the international position of each was an "independent customs territory under USMG on Spanish soil." For Taiwan, it was an "independent customs territory under USMG on Japanese soil."
Point B to Point C marks the period of "friendly occupation," or what in today's terminology we would call the "civil affairs administration of a military government." During this period, in the case of Puerto Rico, the Philippines, Guam, Cuba, and Taiwan, the international position of each was/is "unincorporated territory under USMG."
Point A to Point C is called the "interim status" under the law of occupation. The conquering power has a right to displace the preexisting authority, and to assume to such extent as may be deemed proper the exercise by itself of all the powers and functions of government. The local populace passes under a "temporary allegiance" to the conqueror.
Area D is the "final status" under the law of occupation. In a general way, the rule may be stated that final status is achieved when the (principal) occupying power's military government has relinquished the occupied territory to the "lawful government of the area."
Notes: Line Drawings for comparative examples of (1) territorial cessions during peacetime, and (2) military occupation where there is no resulting territorial cession in a post-war peace treaty, would be different.
Analysis for Taiwan
Examination of the ABCD Chart provides a structured analysis for the situations of Puerto Rico, the Philippines, Guam, Cuba, and Taiwan. All five of these territorial cessions follow exactly the same pattern.
In the San Francisco Peace Treaty (SFPT) of April 28, 1952, Japan renounced all claims of sovereignty over Taiwan, but no receiving country was specified. An examination of all relevant US government announcements, proclamations, treaties, laws, etc. regarding Taiwan from the period of late April, 1952, to the present, finds no record of a definitive statement of the end of United States Military Government authority over Taiwan. In other words, no civil government operations recognized by the US Commander in Chief or the US Congress have yet begun in Taiwan from late April 1952 to the present. On the ABCD Chart, Taiwan remains somewhere between Point B and Point C, in "interim status" under the law of occupation. Taiwan is "unincorporated territory under USMG."
As such, Taiwan is a TYPE 1 Insular Area of the United States. After the coming into effect of the relevant peace treaty, US insular law applies to Puerto Rico, the Philippines, Guam, Cuba, and Taiwan, because they are inside the principle of "cession by conquest" which was confirmed by "cession by treaty."
In the situations of Puerto Rico, the Philippines, Guam, Cuba, and Taiwan, the following criteria are met: (1) the United States is the conqueror, (2) the United States is the (principal) occupying power, (3) the territory was indeed ceded in the peace treaty.
For Taiwan, it is important to clarify that while this interim status condition under SFPT persists there is no "Taiwan Republic," nor any "One China, One Taiwan," nor "Two Chinas," nor a "divided Chinese nation." This is because Taiwan has not yet reached a "final (political) status."
Therefore, as long as the final (political) status of the Taiwan cession is undetermined as noted in the Truman Statement of June 27, 1950 and legally affirmed by SFPT, it is protected by basic civil rights as a treaty cession under the Taiwan Relations Act.
In summary, under the provisions of the SFPT, United States Military Government authority over Taiwan is still active in the present day, and the allegiance of native Taiwanese persons is to the United States of America.
Question and Answer
Q1: What is the relationship of this ABCD Chart with the military occupation of metropolitan Japan? of Iraq?
A1: Japan and Iraq were not territorial cessions. For areas which are not territorial cessions, the space between Point B and Point C is reduced to zero.
Q2: Does US insular law apply to areas where the USA currently has troops stationed?
A2: Persons in the modern era are perhaps more familiar with the military occupations of Afghanistan and Iraq, as well as the general post WWII military occupation of Germany, with Berlin in particular. However, US insular law does not apply to any of these areas because they are not territorial cessions.
Q3: Does US insular law apply to the Louisiana cession of 1803?
A3: No. US insular law is a development which has arisen from the Spanish American War cessions. The Treaty of Paris, after the Spanish American War, came into effect on April 11, 1899.
Q4: Does this ABCD Chart apply to the Florida cession of 1819? The Gadsden cession of 1853? The Alaska cession of 1867?
A4: No. Those were so-called "peacetime cessions." The ABCD Chart applies to territorial cessions which are the result of, or directly related to, the conduct of war.
Q5: Does this ABCD Chart apply to the California cession which was a result of the Mexican American War?
A5: Yes, the California cession was the result of war, and can be discussed in relation to this ABCD Chart. For California, the relevant dates are --
Point A: 1847.01.13Q6: What is the difference between "incorporated territory" and "unincorporated territory"?
A6: In a general way it can be stated that "incorporated territory" is 100% on its way to statehood. Later, the doctrine of "unincorporated territory" was introduced to deal with non-contiguous territory which has a different social, political, and cultural background, and is not necessarily on its way to statehood. Importantly, so-called "unincorporated territory" only exists in relation to legal developments post-1898.
Q7: If the United States delegated the military occupation of Taiwan to the Chinese Nationalist under CKS, then what is to prevent that arrangement from continuing in the present era?
A7: The continued existence of the "Republic of China" in Taiwan is blocking the Taiwanese people's enjoyment of "fundamental rights" under the US Constitution. This is explained as follows:
In the Insular Cases the US Supreme Court held that even without any actions by the US Congress, "fundamental rights" under the US Constitution apply in all unincorporated territories. However, with no action by the US Commander in Chief, what we have seen in Taiwan from late April 1952 to the present is something completely different.
Specifically, the Taiwanese people have been forced to accept ROC citizenship without any internationally recognized legal basis, and males are subject to military conscription in violation of the Geneva Conventions. The Taiwanese people are living under the ROC Constitution, and in their daily lives they are singing the ROC national anthem, raising the ROC flag, and recognizing an ROC national father. The ROC on Taiwan is a non-state, but the ROC constitutional structure in force specifies that insurrection or rebellion against the ROC is punishable by death or lengthy imprisonment!!
Hence, as of late Spring, 1952, in order to conform to the provisions of the Senate-ratified SFPT, and to support and defend the Constitution of the United States against all enemies, foreign and domestic, the US Commander in Chief must issue an Executive Order for the Republic of China government on Taiwan to disband or move away. The US government must help the Taiwanese people organize a temporary government (with a new President, Vice-President, and other top officials), and begin preparations for the calling of a Constitutional Convention.
In summary, it can be argued that under the SFPT, Taiwan is under the exclusive jurisdiction of the United States. The decision to delegate that jurisdiction (in any way, shape, or form) to the Republic of China military forces is not directly authorized by the SFPT. To the extent that the delegation of jurisdiction for the military occupation of Taiwan is blocking the native Taiwanese persons' enjoyment of fundamental rights under the US Constitution, it must be regarded as void.
Q8: There is no mention of "temporary allegiance" in the INA. If the Taiwanese people owe "temporary allegiance" to the United States under the law of occupation, how does this correspond to what INA would recognize as "permanent allegiance"?
A8: If calculated from the coming into effect of the SFPT in 1952 to the present day, the native Taiwanese persons have already owed allegiance to the United States for over fifty years. Clearly this relationship meets the dictionary definition of "permanent" which is simply "continuing or enduring without fundamental or marked change."
In a similar fashion, the Immigration and Nationality Act (INA) merely defines "permanent" as "a relationship of continuing or lasting nature." See 8 USC 1101 (a) (31):
The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.A "national of the United States" is defined in 8 USC 1101 (a) (22):
The term "national of the United States" means: (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.Clearly, native Taiwanese persons living in Taiwan have "permanent ties" to Taiwan, as evidenced by payment of taxes, ownership of property, and the presence of family. These persons have a permanent dwelling place (or "domicile") in Taiwan to which they, when absent, intend to return.
Based on the above INA definitions, native Taiwanese persons do qualify as owing permanent allegiance to the United States.
Q9: Was Taiwan ever under any sort of United Nations trusteeship arrangement?
Q10: Do the Hague Conventions or the Geneva Conventions make any special reference to "the military troops that accept the surrender," or any similar term?
A10: No. Many civilians mistakenly assume that numerous important legal relationships arise from a consideration of what military troops accept the surrender, but the Hague Conventions and Geneva Conventions have so such specifications whatsoever.
In fact, it is the determination of "the occupying power" which gives rise to many important legal relationships.
For Taiwan, it can be held that the ROC troops under Chiang Kai-shek (CKS) accepted the surrender of Japanese troops in Taiwan on behalf of the Allies. However, most importantly, the ensuing military occupation of Taiwan is being conducted upon behalf of the "conqueror" and "principal occupying power," and that is the United States.
Q11: The surrender ceremony for Japanese troops in Taiwan was conducted on Oct. 25, 1945. However, the Geneva Conventions of 1949, obviously, were not promulgated until many years after this Oct. 1945 event. Hence, what is the rationale for quoting the Geneva Conventions in discussing the Taiwan status issue?
A11: This is an excellent question. The issue that must be continually kept in mind here is that we are speaking of the customary laws of warfare. In relation to violations of these customary laws (i.e. "war crimes") by the ROC officials, the three major issues we are looking at are:
the announcement of "Taiwan Retrocession Day" on Oct. 25, 1945,
In fact, these can all be derived from the Hague Regulations of 1907, with particular reference to HR 23, HR 42, and HR 45. In FM 27-10 these are paragraphs 32, 351, and 359.
In other words, the territory comes under the authority of the hostile army, and that is military occupation, it is not annexation. Consequently, there are no legal grounds for changing the nationality of the local populace, nor can they be conscripted into the army of the occupying forces.
Q12: In regard to the subject of "delegated administrative authority" for the military occupation of a particular area, does FM 27-10 have any mention of this type of arrangement at all?
A12: Arguably yes. Two relevant quotations would be paragraphs 284 and 366.
Q13: What is the definition of "Protected Persons"? In relation to Taiwan, who is the "Protecting Power"?
A13: A Protected Person is any individual legally able to invoke the Laws of War for their protection, which in general includes two main groups (1) "enemy nationals" within the national territory of each of the parties to the conflict and (2) "the whole population" of occupied territories (excluding nationals of the occupying power), but more specifically also includes stateless persons, refugees, POWs, criminal detainees, non-repatriated persons, neutral aliens, nationals of Allied Powers without diplomatic relations, etc. Refer to 12 August 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 4: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."
Normally, a protected person must be a national of a signatory country in order to invoke the GC protections but extensions can be provided through relationships with co-belligerents.
Under the Geneva Conventions, the USMG is the Protecting Power of the putative state on the Taiwan cession. Protected persons are entitled to protection of the Protecting Power IF the diplomatic relations don't exist any longer between co-belligerents.
Q14: Are the "laws of war" also referred to by other names?
A14: Yes. Most commonly seen alternative nomenclature are "international humanitarian law" and "the law of armed conflict."