Definitions of Important Terminology and Concepts Related to Territorial Cessions in a Peace Treaty
It is very important to have a full understanding of the following terminology and concepts before entering into a discussion of the San Francisco Peace Treaty’s disposition of Taiwan.
(A.) civil government: [in the practice of the United States] (1) administrative authority conducted by civilian officials in a government of territory (or a state) under constitutional powers of the US Congress, (2) a government as distinguished from “military government.”
(B.) military government: the form of administration by which an occupying power exercises governmental authority over occupied territory.
Note: Military government continues until legally supplanted.
(C.) military occupation: a condition in which territory is under the effective control of foreign armed forces.
Note: Territory is considered occupied when it is actually placed under the authority of foreign armed forces.
(D.) the occupying power: [as spoken of in the customary laws of warfare] (1) the conqueror.
Notes: (1) 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.
(2) When the administrative authority for the military occupation of particular areas is delegated to other troops, a “principal — agent” relationship is in effect.
(3) As a definition, it may be said that the principal occupying power exercises military government jurisdiction over territory acquired under the principle of conquest.
(E.) cede: (1) to surrender possession of, especially by treaty, (2) to transfer of control of or sovereignty over specific property or territory, especially by treaty, (3) to surrender or give up something such as land, rights, or power, (4) [noun] cession
Notes: (1) In a peace treaty after war, 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.
(2) Before the receiving country’s civil government begins operations, the territory remains under the jurisdiction of the principal occupying power and in “interim status.”
(3) Without the appropriate specifications in a treaty, there is no authorization for any “country” to establish civil government in the territory, and military government (of the principal occupying power) continues until legally supplanted.
(F.) limbo cession: a territorial cession with no “receiving country” indicated.
(G.) escheat: (1) reversion of property to the state in the absence of legal heirs or claimants, (2) property that has reverted to the state when no legal heirs or claimants exist.
Note: for a the situation of a “limbo cession” as specified in a peace treaty after war, the title to the territory escheats to the principal occupying power as an interim status condition.
(H.) interim status: The “interim political status” of conquered territory during the period of military occupation.
The interim status of the four Spanish American War cessions (Puerto Rico, Philippines, Guam, and Cuba) is given as follows.
(1) Stage 1: from the beginning of the belligerent occupation to the coming into force of the April 11, 1899 peace treaty:
Puerto Rico: independent customs territory under USMG on Spanish soil
Philippines: independent customs territory under USMG on Spanish soil
Guam: independent customs territory under USMG on Spanish soil
Cuba: independent customs territory under USMG on Spanish soil
(2) Stage 2: from the coming into force of the April 11, 1899 peace treaty until the end of USMG jurisdiction, (which was announced by the US Commander in Chief)
Puerto Rico: unincorporated territory under USMG
Philippines: unincorporated territory under USMG
Guam: unincorporated territory under USMG
Cuba: unincorporated territory under USMG
It should be noted however that territories in Stage 2 of interim status do maintain many of the characteristics of an “independent customs territory.”
(I.) final status: The “final political status” of conquered territory after the end of military occupation.
The final status of the four Spanish American War cessions (Puerto Rico, Philippines, Guam, and Cuba), effective after the end of USMG jurisdiction, is given as follows.
Puerto Rico: unincorporated territory
Philippines: unincorporated territory
Guam: unincorporated territory
Cuba: Republic of Cuba
With the end of USMG jurisdiction in these four territorial cessions, each has its own fully functioning civil government. For Puerto Rico, the Philippines, and Guam, which were ceded to the USA, the local civil government is based on an “organic law” promulgated by the US Congress. For Cuba, which was a limbo cession, the local people have come together to form their own government. This government was recognized by the US Commander in Chief (who has the right to speak for USMG) as a legitimate civil government for Cuba.
(J.) property: (1) something, as land and assets, legally possessed, (2) a piece of real estate, (3) something tangible or intangible to which its owner has legal title, (4) the right of ownership; title.
(K.) receiving country: [for a territorial cession in a peace treaty] the country to which the territorial sovereignty of the indicated territory is being transferred, (effective as per the entering into force of the treaty), and which therefore is authorized to establish “civil government” in the territory.
(L.) government in exile: (1) a temporary government moved to or formed in a foreign land by exiles who hope to rule when their country is liberated, (2) a government established outside of its territorial base, (3) a political group that claims to be a country’s legitimate government, but for various reasons is unable to exercise its legal power, and instead resides in a foreign country or foreign territory. Governments in exile usually operate under the assumption that they will one day return to their native country and regain power,
(M.) native Taiwanese people: natural persons who meet the following criteria: (1) being born of a mother and/or father who, as of Oct. 25, 1945, was/were considered native to the areas of “Formosa and the Pescadores,” including their descendants up to the present, and (2) currently having Household Registration in the areas of Formosa and the Pescadores.
(N.) effective territorial control: [in regard to situations of military occupation] the jurisdiction over territory exercised by military personnel who are not nationals/citizens of the “conqueror” (i.e. principal occupying power).
Note: Generally speaking, “effective territorial control” often represents a de-facto situation of territorial jurisdiction. However, in regard to what country exercises “sovereignty” over the territory, this de-facto situation may be different from a de-jure determination based on legal considerations.
(O.) organic law: (1) constitution (or charter) which organizes the juridical person called a state or country; like Articles of Incorporation for a corporation to become a legal person or juridical person; (2) the body of laws (as in a constitution or charter) that form the original foundation of a government; or one of the laws that make up such a body of laws.
(P.) HR: Annex to Hague Convention No. IV, 18 October 1907, embodying the Regulations Respecting the Laws and Customs of War on Land
(Q.) GC: Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949
(R.) body politic: (1) a politically organized body of people under a single government, (2) a number of individuals spoken of collectively, usually as united by political ties, or organized for a political purpose, and generally with overtones of a “collective whole or totality”.
(S.) metropolitan Japan: the four main Japanese islands
(T.) beginning of WWII in the Pacific: From the point of view of the USA, WWII in the Pacific began with the Congressional Declaration of War on Dec. 8, 1941.
(U.) end of WWII in the Pacific: The end of WWII in the Pacific is most properly designated as the date when the post-war peace treaty came into effect, i.e. April 28, 1952. The Japanese surrender does not mark the end of the war, rather it is merely the “close of hostilities.”
(V.) treaty dates: (a) after the Mexican American War, the Treaty of Guadalupe Hidalgo entered into force on July 4, 1848, (b) after the Spanish American War, the Treaty of Paris entered into force on April 11, 1899, (c) after WWII in the Pacific, the SFPT entered into force on April 28, 1952.
The following Chart gives the dates for the military occupation of Puerto Rico, the Philippines, Guam, and Cuba. Point A is the beginning of the belligerent occupation Point B is the coming into force of the peace treaty, and Point C is the end of US military government jurisdiction.
|Point A||Point B||Point C|
|Puerto Rico||Aug. 12, 1898||April 11, 1899||May 1, 1900|
|Philippines||Aug. 14, 1898||April 11, 1899||July 4, 1901|
|Guam||June 21, 1898||April 11, 1899||July 1, 1950|
|Cuba||July 17, 1898||April 11, 1899||May 20, 1902|