on the law of occupation

by Richard W. Hartzell    

A very good framework for discussing the situation of Taiwan after the close of military operations in the Pacific in WWII is provided by studying the situations of Puerto Rico, Guam, the Philippines, and Cuba in the Spanish American War period. An overview of the military history of that era leads us directly into a discussion of the Modern Concepts of the Laws of War.

After overviewing all of this historical and legal information, and in order to discuss the relationship between military occupation and the specifications of the peace treaty in more detail, it is helpful to present a number of Axioms.

(Of course, these Axioms must be understood within the framework of the customary laws of warfare.)

Military Occupation and Military Government
Military occupation is conducted under military government.
Explanatory Notes: Military government is the form of administration by which an occupying power exercises government authority over occupied territory.

The interlude under the jurisdiction of the military government of "the occupying power" is a transitional period. However, since the term "transitional" has many other uses in English, we can avoid confusion by referring to this as a period of "interim status."

Political Status
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.
Explanatory Notes: The status of the territory can also be described as "undetermined," or as an "independent customs area."

The evolution of the concept of military occupation must be understood. From the second half of the 1700's onwards, international law came to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in his opus The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars in the 1800's.

A general summary can be made by saying that in the pre-Napoleonic era, in most parts of the world, the "conqueror" merely annexed the territory, and was recognized as the "annexor."

In the post-Napoleonic world, these customary norms began to change, and international law said that the "conqueror" could only be regarded as "the occupying power." This was more formally codified in the Hague Conventions of 1907.

Moreover, it is important to recognize that (1) legal relationships arise based on a determination of who the "conqueror" is, (2) the military occupation of any area can be delegated to co-belligerents (i.e. "allies" or "coalition troops"), (3) the holding of the surrender ceremonies only serves as a convenient time-marker for determining the beginning of the military occupation, (in other words, the fact that certain military troops accepted the surrender of other military troops is not particularly significant from the standpoint of discussing the local people's "rights" and "obligations.")

The Principal Occupying Power, (specification 1)
The terminology of "the occupying power" as spoken of in the customary laws of warfare 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.
Explanatory Notes: When the administrative authority for the military occupation of particular areas is delegated to other troops, a "principal -- agent" relationship is in effect. (See Footnote I)
Footnote I: The law of agency is based on the Latin maxim "Qui facit per alium, facit per se," which means "he who acts through another is deemed in law to do it himself." Hugo Grotius discussed agency in his treatise On the Law of War and Peace, written in 1625. Agency between nations is often called "Grotian agency."

The Principal Occupying Power, (specification 2)
The conqueror is the principal occupying power.
Explanatory Notes: In regard to the geographic scope covered by a particular peace treaty, the principal occupying power can be assigned via specifications of the treaty, or it can be determined based on the historical data.

The laws of war state that "military occupation does not transfer sovereignty." But where does the sovereignty of an occupied area go? Does it disappear?

Quasi-trusteeship of Sovereignty
The sovereignty of an area under military occupation is held by the principal occupying power in the form of a fiduciary relationship during the period of interim status.
Explanatory Notes: This is not "ownership" in the typical sense that that term is used, but more of a "quasi-trusteeship." In other words, the principal occupying power has disposition rights over the territory, but those rights do not include "annexation." A fiduciary relationship arises under the law of occupation with the principal occupying power as the trustee, and the occupied territory as trust corpus, and the future citizens of the territory (when it has achieved "final status") as beneficiaries. (See Footnotes II, III, IV, and V)
Footnote II: This axiom applies equally well to four types of territory.
   [a] for territory which is not a territorial cession in a peace treaty, such as "metropolitan Japan" in the 1952 SFPT,
   [b] for a territory ceded in a peace treaty, with a designated recipient, such as "Puerto Rico" in the 1899 Treaty of Paris,
   [c] for a territory ceded in a peace treaty, but without a designated recipient, (i.e. "limbo cession"), such as Taiwan or the Kurile islands in the 1952 SFPT,
   [d] for territory within the geographic scope of a peace treaty, but which is not specifically mentioned (i.e. is "undemarcated territory"), such as the Dokdo Island group in the 1952 SFPT.
Footnote III: Military occupation is an exercise in the rights of sovereignty. The occupying power is regarded as administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the occupied territory.
Footnote IV: The principal occupying power holds the "title" to the territory during the period of interim status.
Footnote V: The determination of territorial boundaries is the responsibility/obligation of the principal occupying power, as it arises from having "disposition rights" over the territory.

Military Occupation Does Not Equal Annexation
The invoking of various "legal" or "quasi-legal" doctrines in the prelude to, beginning of, or at any time during the continuation of the military occupation does not legitimatize an annexation of the territory.
Explanatory Notes: (A) In the post Napoleonic period, transfer of territorial sovereignty is accomplished by treaty. Other "legal" or "quasi-legal" rationale (See Footnote VI), in and of themselves, do not accomplish transfer of territorial sovereignty. (B) Furthermore, outside the specifications of the peace treaty, such rationale cannot serve as valid justification for annexation of the territory by an occupying power. (C) Any actions of an occupying power can be evaluated from the perspective of whether or not they are leading to a "prospective" or "impending" annexation of the territory, and if so, such actions are illegal.
Footnote VI: Often cited rationale/justification for annexation are: pre-existing announcement(s) of the intent to expropriate the territory, the doctrines of uti possidetis, postliminium, prescription, terra sine domino [or terra nullius], irredentism, etc., or various historic, geographic, and/or geological evidence. [See Glossary]

End of Military Occupation
Military government continues until legally supplanted. In other words, military occupation ends when the military government of the principal occupying power is legally supplanted by a recognized "civil government" for the area.
Explanatory Notes: (A) The stipulations of GC 6 regarding the end of military occupation must be understood within this context. (B) The fact that this so-called "recognized 'civil government' " may itself be deemed a "provisional," "transitional," "interim," etc. civil government does not affect the application of this Axiom. (C) However, the movement of population via immigration into, and emigration out of, the occupied territory would invalidate the application of this Axiom. (See Footnote VII)
Footnote VII: With a "civil government" in place, there are numerous possibilities. (1) Is this territory now an independent sovereign nation? (2) Is this territory now part of another independent sovereign nation? If the principal occupying power maintains (and can legally justify) that the answer to either of these questions is "yes," then the military occupation has ended.

In the situation of a "civil government" which is functioning under the principal occupying power, military occupation has not ended, and the territory is still in "interim status." Hence, having not yet reached a "final (political) status," the territory is neither an independent sovereign nation nor a part of another independent sovereign nation. Such a classification has given rise to the doctrine of "unincorporated territory."

Peace Treaty, (specification 1)
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.
Explanatory Notes: (A) It should be recognized that at the point of cession, the territory is actually being ceded to the military government of the principal occupying power. (B) Before the receiving country's civil government begins operations, the territory remains under the jurisdiction of the principal occupying power and in "interim status." (C) Without the appropriate specifications in a treaty, there is no authorization for any "country" to establish civil government in the territory.

Peace Treaty, (specification 2)
In regard to a territorial cession or undemarcated territory in a peace treaty, the military government of the principal occupying power does not end with the coming into force of the treaty, but continues until supplanted by a recognized "civil government" for the area.
Explanatory Notes: This so-called "recognized 'civil government' " should not be confused with (i) a "civil affairs administration" of the military government of the principal occupying power, (ii) a "provisional" or "transitional" civil government which is established by the local populace and operates under the military government of the principal occupying power

[AXIOM 10]
Peace Treaty, (specification 3)
In regard to a limbo cession or undemarcated territory in a peace treaty, the principal occupying power can conclude a civil affairs agreement with another nation to make arrangements for a future intended final disposition.
Explanatory Notes: With the obvious exception of the principal occupying power, the other nation(s) involved in civil affairs agreement(s) are not restricted to those who are parties to the peace treaty.


co-belligerents: allies.

conquest: (1) The act or process of conquering. (2) Something, such as territory, acquired by conquering.     [ Note: The disposition of territory acquired under the principle of conquest must be conducted according to the laws of war. ]

conquer: (1) to acquire by force of arms, win in war, (2) to overcome by force, subdue, (3) to gain, win, or obtain by effort, (4) to gain a victory over, surmount, master, overcome, (5) to be victorious, gain the victory.

debellatio: complete subjugation of a belligerent nation usually involving loss of sovereignty.     [ Note: the term debellatio refers to a conquered people who are dissolved, leaving no one to assert their rights as a people. ]

expropriate: to dispossess (someone) of ownership, (2) to take (something) from another's possession for one's own use.

fiduciary relationship: the relationship between a trustee, beneficiaries, and property held in trust.

irredentism: claiming a right to territories belonging to another state on the grounds of common ethnicity and/or prior historical possession, actual or alleged.

limbo cession: a territorial cession in a peace treaty which is without the specification of a "receiving country."

metropolitan: (1) of, relating to, or constituting the home territory of an imperial or colonial state, (2) of, relating to, or characteristic of a major city or urbanized area.

postliminium: the right by virtue of which persons and things taken by an enemy in war are restored to their former state when coming again under the power of the nation to which they belonged.

prescription: (1) the process of acquiring title to property by reason of uninterrupted possession of specified duration, (2) acquisition of ownership or other real rights in movables or immovables by continuous, uninterrupted, peaceable, public, and unequivocal possession for a period of time.

protected person:
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 Aug. 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. See para. 247.

proxy occupation: a military occupation where the occupying power directs a co-belligerent to undertake the occupation of a particular area, as a substitute for the occupying power handling the occupation of that area directly.

terra sine domino: [spoken of populated territory] "land without master," land with no central government, abandoned territory.

terra nullius: [spoken of unpopulated territory] uninhabited islands or lands.

undemarcated territory: territory lying within the geographic scope of a peace treaty, but which (1) lies in disputed border areas, and/or (2) is not specifically designated as belonging to one country or another.

unfetter: to set free from restrictions, control, limitations, restraint, or containment.

unincorporated territory: (1) an area over which the US Constitution has not been expressly and fully extended by the Congress within the meaning of Article IV, Section 3 of the US Constitution, (2) insular law term for interim cessions and their basic constitutional rights under peace treaty; nexus of international and domestic laws.

usufructuary: one who has the right and use another's property and obtain its benefits, as long as the property is not damaged or altered in any way.

uti possidetis: a principle that recognizes a peace treaty between parties as vesting each with the territory and property under its control unless otherwise stipulated. (Latin: uti possidetis, ita possideatis -- "as you possess, so may you continue to possess.")

war: a sustained struggle of a scale and duration that threatens the existence of the government of a state or an equivalent juridical person and that is waged between groups of forces that are armed, wear a distinctive insignia, and are subject to military discipline under a responsible command.

More definitions
        Taiwan status: Glossary

Overview and Background Information

  Further information on these Axioms is provided in the accompanying The Law of Occupation, Background Information webpage.

HR: Annex to Hague Convention No. IV, 18 October 1907, embodying the Regulations Respecting the Laws and Customs of War on Land

GC: Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949