351. Military Occupation
Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised. (HR, art. 42.)
Comments on paragraph 351 in relation to the Taiwan status issue:
On Oct. 25, 1945, the Japanese Surrender Ceremonies in the Japanese area called "Formosa and the Pescadores" (aka Taiwan) were conducted based on the directions contained in General Douglas MacArthur's General Order No. 1 of Sept. 2, 1945. While the surrender ceremonies were held on behalf of the Allies, the ensuing military occupation of Taiwan was conducted on behalf of "the conqueror" and "the principal occupying power," which is the United States. This October date marked the official starting date of the belligerent occupation.
The Republic of China (ROC) authorities have waged a constant war of words for over 50 years, in their contraventions of the Laws of Occupation for stating (in 1945 and thereafter) that they were "annexing" Taiwan while still legally acting under the supreme authority of the United States Military Government (USMG). Under the customary laws of warfare, such annexation is impossible. A definition may be provided as follows:
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.
In Taiwan, under the government of the ROC, such an annexation has always been called "retrocession". In other words, the ROC authorities maintain that Taiwan was retroceded to the ROC on October 25, 1945. The PRC claims itself as the legitimate successor to the ROC, and hence maintains that Taiwan is a part of the PRC. The role of the United States as the principal occupying power is totally ignored.
However, paragraph 351, which is taken directly from the Annex to Hague Convention No. IV, of October 18, 1907, embodying the "Regulations Respecting the Laws and Customs of War on Land," tells us that there was no retrocession.
That the surrender ceremonies do not result in any transfer of territorial sovereignty may be further verified by examining the situations of other territories mentioned in the April 28, 1952, San Francisco Peace Treaty (SFPT). In particular, the circumstances of Korea clearly show that the disposition of territory does not take effect automatically at the signing of an instrument of surrender and new arrangements are later required to effectuate it. This was the situation with the surrender of Japan after the close of hostilities in WWII, even though Japan's actual control of the Korean Peninsula did not continue past that date. It was only under the provisions of the SFPT that Japan later formally recognized the independence of Korea.
Importantly, under the customary laws of warfare there are no rationale whereby a distinction between "military occupation" and "annexation" can be legally achieved on the date of the surrender of local military troops. Nor can "annexation" be implemented simultaneously based on criteria which fall under the broad general categories of "postliminium" or "irredentism."
The San Francisco Peace Treaty
Nevertheless, Chinese scholars frequently raise further objections in regard to the post war peace treaty. It is widely known that neither the Republic of China nor the People's Republic of China were signatories to the SFPT. Many scholars maintain that "If you don't sign it, then you cannot be affected by it." Then they point to the international law principle of "uti possidetis" to claim that since the ROC was under control of Taiwan in April 1952, and no other "receiving country" was designated in the SFPT, then of course Taiwan belongs to the ROC.
However, this analysis is invalid on many counts:
Based on the above criteria, upon the coming into force of the SFPT the doctrine of "uti possidetis" cannot be invoked by "China," however "China" may be defined.
- It is true that in the SFPT, Japan ceded "Formosa and the Pescadores," however according to Article 2(b), the ROC was not the recipient of this territorial cession.
- Article 25 of the SFPT clearly states that the treaty shall not confer any rights, titles or benefits on any non-signatory State, however an exception is provided for "China."
- Article 21 of the SFPT then clearly stipulates the benefits to which "China" is entitled under the treaty, however "Formosa and the Pescadores" are not included.
- Taiwan had been ceded to Japan in 1895, and since its founding in 1912 the ROC had never held legal possession of "Formosa and the Pescadores" at any time before the coming into effect of the SFPT.
- Article 2 of the Sino-Japanese Peace Treaty ("Treaty of Taipei"), signed by the ROC, fully recognizes and confirms the disposition of Taiwan as specified in the SFPT.
- Under the customary laws of warfare, Oct. 25, 1945, only marks the beginning of the military occupation of Taiwan, and there could be no transfer of sovereignty on that date.
FM 27-10 The Law of Land Warfare
Dept. of the Army
revised July 15, 1976
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