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