Chapter 4 – Additional Details and Summaries Regarding the Territorial Cession Examples

Background Information for Discussing the

1952 SFPT Cession of Taiwan

Additional Details and Summaries Regarding the Territorial Cession Examples of California, Puerto Rico, and Cuba

The book Military Government and Martial Law, by William E. Birkhimer, Kansas City, Missouri, Franklin Hudson Publishing Co., third edition, revised (1914), (hereinafter “Birkhimer”); the US Army Field Manual FM 27-10 The Law of Land Warfare (first edition: Oct. 1940, latest update: July 1976); and numerous US Supreme Court cases are often used as references for discussing military occupation issues.

The following excerpts can serve to clarify various questions which may have arisen in our overviews of the military occupation of California, Puerto Rico, and Guam.

Military Government 

Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.  (See FM 27-10, para. 362)

MILITARY GOVERNMENT is exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress — (See Ex Parte Milligan, 71 US 2 (1866))

In speaking of the nature of military government, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (second edition, 1920 reprint), says on page 800: “Military government . . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist . . . . . The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part suspended and others substituted in their stead — in the discretion of the governing authority.” (See Madsen v. Kinsella, 343 US 341 (1952))

The Right to Institute Military Governments

The US Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments. (See Birkhimer, p. 21)

 Notes: Military Government includes civil administration of military government for interim cessions, which is commonly composed of both civil and military components. Technically speaking, military government is used as an interim and provisional government of undetermined cessions, and especially for “foreign territory” under control by conquest; and while it is not martial law but it can be indefinite; hence the some persons regard military government as the international law equivalent of “martial law.”

The administration of occupied territory is conducted under military government. There does not have to be a formal announcement of the beginning of “military government,” nor is there any requirement of a specific number of people to be in place, or “on site” before military government can be said to have commenced.

No proclamation of the part of the victorious commander is necessary to the lawful inauguration and enforcement of military government. That government results from the fact that the former sovereignty is ousted, and the opposing army how has control. {22}Yet the issuing such proclamation is useful as publishing to all living in the district occupied those rules of conduct which will govern the conqueror in the exercise of his authority. Wellington, indeed, as previously mentioned, said that the commander is bound to lay down distinctly the rules according to which his will is to be carried out. But the laws of war do not imperatively require this, and in very many instances it is not done. When it is not, the mere fact that the country is militarily occupied by the enemy is deemed sufficient notification to all concerned that the regular has been supplanted by a military government.

Reference: {22} Instructions for Armies in the Field, Gi O. 100, A.G. 0., 1863.

(See Birkhimer, p. 25 – 26)

 . . . . . The doctrine upon this subject is thus summed up by Halleck in his work on International Law (vol. 2, page 444): ‘The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conqueror for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world and confirmed by the writings of publicists and decisions of courts, — in fine, from the law of nations. . . . The municipal laws of a conquered territory or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror . . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones.’ (See Dooley v. U S, 182 US 222 (1901))

The Nature of Military GovernmentÂ

Military Government is that which is established by a commander over occupied enemy territory. To entitle it to recognition it is necessary that the authority of the State to which the territory permanently belongs should have ceased there to be exercised. (See Birkhimer, p. 16)

The erection of such governments over the persons and territory of a public enemy is an act of war; is in fact the exercise of hostilities without the use of unnecessary force. It derives its authority from the customs of war, and not the municipal law. It is a mode of retaining a conquest, of exercising supervision over an unfriendly population, and of subjecting malcontent non-combatants to the will of a superior force, so as to prevent them from engaging in hostilities, or inciting insurrections or breaches of the peace, or from giving aid and comfort to the enemy. (See Birkhimer, p. 21)

It is immaterial whether the government over an enemy’s territory consists in a military or civil or mixed administration. Its character is the same and the source of its authority the same. It is a government imposed by force, and the legality of its acts is determined by the law of war. (See FM 27-10, para. 368)

Military government continues till legally supplanted

New Mexico was not only conquered, but remained thereafter under the dominion of the United States. The provisional government established therein ordained laws and adopted a judicial system suited to the needs of the country. The Supreme Court of the United States held that these laws and this system legally might remain in force after the termination of the war and until modified either by the direct legislation of Congress or by the territorial government established by its authority. We have had the same experiences in Cuba, Porto Rico, and the Philippines. (See Birkhimer, p. 26)

Duty to Restore and Maintain Public Order

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. (See FM 27-10, para. 363, quoting from HR, art. 43.)

The Occupying Power

The terminology of “the occupying power” as spoken of in the laws of war is most properly rendered as “the principal occupying power,” or alternatively as “the (principal) occupying power.” This is because the law of agency is always available.

Notes: When the administrative authority for the military occupation of particular areas is delegated to other troops, a “principal — agent” relationship is in effect.

The conqueror is the (principal) occupying power. This is the clear precedent as established in Calif., Utah, Nevada, Puerto Rico, Guam, the Philippines, Cuba, etc.

The right to thus occupy an enemy’s country and temporarily provide for its government has been recognized by previous action of the executive authority, and sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, and to that end may collect taxes and duties to support the military authority and carry on operations incident to the occupation. (See MacLeod v. U S, 229 US 416 (1913))

Occupation Does Not Transfer Sovereignty 

Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these. rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force.

It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress. (See FM 27-10, para. 358, explaining GC, art. 47: included as para. 365 in FM 27-10.)

The Existence of Military Occupation (Military Government) is not a Political Question

Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.  (See FM 27-10, para. 355)

Notes: In relation to Taiwan, the “hostile invasion” was aerial bombardment by US military forces.

In Chapter 2 of Formosa Betrayed, author George H. Kerr indicates the beginning of such US aerial bombardment as Thanksgiving Day 1943, and gives further information on bombing raids throughout 1944. In Chapter 2 of Untying the Knot, author Richard Bush also states that US airplanes had begun bombing targets on Taiwan in November 1943.

The Political Status of Occupied Territory

Military occupation is period of “interim (political) status.” The occupied territory is said to be “in interim status under the law of occupation.” Since the territory has not reached a final (political) status, it is a sub-sovereign entity.

The status of the territory can also be described as “undetermined,” or as an “independent customs area.”

The Significance of the Specification of a “Receiving Country” for a Territorial Cession in a Peace Treaty

The designation of a “receiving country” for a territorial cession in a peace treaty means that the Legislative Branch of the “receiving country” is authorized to pass legislation to establish civil government in the territory.

Occupied Territory is “Foreign Territory”

So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the conquered territory domestic territory, in the sense of the revenue laws; but those laws concerning “foreign countries” remain applicable to the conquered territory until changed by Congress. Such was the unanimous opinion of this court, as declared by Chief Justice Taney in Fleming v. Page, (1850) 9 How. 603, 617, 13 L. ed. 276, 281. (See Downes v. Bidwell, 182 US 244 (1901))

From a belligerent point of view, therefore, the theatre of military government is necessarily foreign territory. (See Birkhimer, p. 1)

Military government foreign territory — The erection of such governments over the persons and territory of a public enemy is an act of war; is in fact the exercise of hostilities without the use of unnecessary force. It derives its authority from the customs of war, and not the municipal law. (See Birkhimer, p. 21)

Important consequences, occupied territory regarded as foreign — Important consequences result from the rule that territory under military government is considered foreign. (See Birkhimer, p. 43)

The Distinction between Military Government and Martial Law

Military jurisdiction is treated in the following pages in its two branches of Military Government and Martial Law. The former is exercised over enemy territory; the latter over loyal territory of the State enforcing it.

Moreover, military government may be exercised not only during the time that war is flagrant, but down to the period when it comports with the policy of the dominant power to establish civil jurisdiction.

. . . The distinction is important. Military government is thus placed within the domain of international law, its rules the laws of war, while martial law is within the cognizance of municipal law. (See Birkhimer, p. 1)

Inviolability of Rights

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory. (See FM 27-10, para. 365, quoting from GC, art. 47.)

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