The Law of Occupation
Overview
In relation to the military occupation of a particular area, we are faced with three central questions, (which all must be answered based on the customary laws of warfare):
- When does the military occupation begin?
- Who is "the occupying power"?
- When did the military occupation end?
In order to sort out the answers to these questions, we have to do a thorough overview the customary laws regarding military occupation. Surprisingly, even a thorough overview of the Hague and Geneva Conventions fails to uncover any sort of exacting and precise methodology for determining the answers to these questions.
We can do a brief overview of what information is available.
In the HR, we can look at SECTION III: MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE
Art. 42. 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.
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This HR 42 is quoted in US Army Field Manual, FM 27-10, para. 351, as being the definition of "military occupation," as well as being some sort of gauge for marking the point in time when the military occupation begins.
In regard to when the military occupation ends, in the GC we can look at Part 1. GENERAL PROVISIONS
Art. 6. The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
Protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention.
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This GC 6 is also quoted in FM 27-10, para. 361.
Is this a good definition? Merely looking at the situation of Northern Cyprus, which came under military occupation by Turkish troops in 1974, and continues under military occupation even up to the present day, clearly shows that this GC 6 type of definition is not helpful in clearly defining the facts of the matter. Notably, Northern Cyprus declared its independence in 1984 under the name of the "Turkish Republic of Northern Cyprus." Is that valid or not? Certainly, the specifications of GC 6 are not helpful in sorting out the details of the matter. (At the present time, there is only one country in the world that recognizes the legitimacy of the "Turkish Republic of Northern Cyprus," and that is Turkey.)
After reviewing a large number of military occupation situations in the modern era, and with particular attention to territorial cession issues, numerous essays and commentaries by the Taiwan Civil Government provide the necessary points of reference to clarify the answers to the above mentioned three questions. In addition, these essays and commentaries provide valuable information in regard to what is going on (legally speaking) during the period of military occupation, and how the peace treaty specifications must be understood in regard to the disposition of the territory.
Nevertheless, our particular concern at the present moment is Taiwan (aka "Formosa and the Pescadores"). In relation to the military occupation of Taiwan after the close of fighting in WWII in the Pacific, we are faced with three central questions:
- When did the military occupation of Taiwan begin?
- Who is "the occupying power," as spoken of in the customary laws of warfare?
- When did the military occupation of Taiwan end?
We can answer these questions fairly straightforwardly as follows:
 The beginning of military occupation in Taiwan can conveniently be designated as the date on which the Japanese troops surrendered. That date was Oct. 25, 1945.
The occupying power is the United States.
The military occupation of Taiwan has not yet ended.
The following paragraphs of FM 27-10 are of reference in understanding the true nature of military occupation:
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.)
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Paragraph 351 has already been discussed above.
352. Invasion Distinguished
a. Nature of Invasion. If resistance is offered, the state of invasion within any portion of a belligerent's territory corresponds with the period of resistance. If the invasion is unresisted, the state of invasion lasts only until the invader has taken firm control of the
area with the intention of holding it. Invasion is not necessarily occupation, although occupation is normally preceded by invasion and may frequently coincide with it. An invader may attack with naval or air forces or its troops may push rapidly through a large portion of enemy territory without
establishing that effective control which is essential to the status of occupation. Small raiding parties or flying columns, reconnaissance detachments or patrols moving through an area cannot be said to occupy it. Occupation, on the other hand, is invasion plus taking firm possession of enemy territory for the purpose of holding it.
b. Application of Law of Occupation. The rules set forth in this chapter apply of their own force only to belligerently occupied areas, but they should, as a matter of policy, be observed as far as possible in areas through which troops are passing and even on the battlefield.
353. Subjugation or Conquest Distinguished
Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty
of the occupied territory is not vested in the occupying power. Occupation is essentially provisional.
On the other hand, subjugation or conquest implies a transfer of sovereignty, which generally takes the form of annexation
and is normally effected by a treaty of peace. When sovereignty passes, belligerent occupation, as such, of course ceases, although the territory
may and usually does, for a period at least, continue to be governed through military agencies.
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Here is paragraph 353 rewritten for the Taiwan status.
353. Subjugation or Conquest Distinguished
Belligerent occupation in a foreign war, being based upon the possession of enemy territory (Taiwan as Japanese territory under
belligerent occupation during the period of 1945-52), necessarily implies that the sovereignty of the occupied territory is not vested
in the occupying power (USMG of metropolitan Japan and USMG of the Japanese dependency of Taiwan). Occupation is essentially
provisional.
On the other hand, subjugation or conquest (international law principle of conquest which is confirmed by peace treaty)
implies a transfer of sovereignty, which generally takes the form of annexation and is normally effected by a treaty of peace (SFPT effects
the full transfer of plenum dominium). When sovereignty passes (peace treaty cession for territory acquired under the legal principle
of conquest), belligerent occupation (US military occupation of enemy territory), as such, of course ceases, although the
(SFPT-ceded Taiwan) territory may and usually does, for an (interim but indefinite) period at least, continue to be
governed through military agencies (USMG in SFPT).
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354. Friendly Territory Subject to Civil Affairs Administration Distinguished
Civil affairs administration is that form of administration established in friendly territory whereby a foreign government pursuant to an agreement, expressed or implied, with the government of the area concerned, may exercise certain authority normally the function of the local government.
Such administration is often established in areas which are freed from enemy occupation. It is normally required when the government of the area concerned is unable or unwilling to assume full
responsibility for its administration. Territory subject to civil affairs administration is not considered to be occupied.
If circumstances have precluded the conclusion of a civil affairs agreement with the lawful government of allied territory recovered from enemy occupation or of other territory liberated from the enemy, military government may be established in the area as a provisional and interim measure (see para. 12 b & c).
A civil affairs agreement should, however, be concluded with the lawful government at the earliest possible opportunity.
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Here is paragraph 354 rewritten for the Taiwan status.
354. Friendly Territory Subject to Civil Affairs Administration Distinguished
Civil affairs administration is that form of administration established in friendly territory (after peace treaty conversion
from enemy territory via full transfer of plenum dominium in SFPT) whereby a foreign government (US Military Government
tentatively disclaiming but not officially relinquishing any plenum dominium) pursuant to a (Shanghai Communique as an
executive) agreement, expressed or implied, with the (PRC) government of the (Taiwan) area concerned,
may (allow the the ROC administrative authorities (aka "Chinese rebels") on Taiwan to) exercise certain (SFPT
administrative) authority normally the function of the local government.
Such administration is often established in (Taiwan) areas which are freed from enemy (sovereignty and/or)
occupation (by SFPT cession from Japan). It is normally required when the (PRC) government of the (Taiwan)
area concerned is unable or unwilling to assume full responsibility for its (SFPT) administration (until a final political
status can be achieved). (Taiwan) Territory subject to civil affairs administration (of US Military Government)
is not considered to be (belligerently) occupied. (After treaty cession, it is friendly territory and not a legal condition of
belligerent occupation of enemy territory).
If circumstances have precluded the conclusion of a civil affairs agreement with the lawful government of allied territory recovered from
enemy occupation or of other territory liberated from the (Japanese) enemy, (US/ROC) military government may be
established in the (Taiwan) area as a provisional and interim measure (see para. 12 b & c). A
(Shanghai Communique and a PRC-ROC bilateral) civil affairs agreement should, however, be concluded with the (intended)
(PRC) lawful government at the earliest possible opportunity.
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355. Occupation as Question of Fact
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.
356. Effectiveness of Occupation
It follows from the definition that belligerent occupation
must be both actual and effective, that is, the organized resistance must have been overcome and the force in possession must have taken measures
to establish its authority. It is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority
felt within the occupied district. It is immaterial whether the authority of the occupant is maintained by fixed garrisons or flying columns, whether
by small or large forces, so long as the occupation is effective. The number of troops necessary to maintain effective occupation will depend on various
considerations such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors. The mere existence of a fort or defended area within the occupied district, provided the fort or defended area is under attack, does not render the occupation of the remainder of the district ineffective. Similarly, the mere existence of local resistance groups does not render the occupation ineffective.
357. Proclamation of Occupation
In a strict legal sense no proclamation of military
occupation is necessary. However, on account of the special relations established between the inhabitants of the occupied territory and the occupant by virtue
of the presence of the occupying forces, the fact of military occupation, with the extent of territory affected, should be made known. The practice
of the United States is to make this fact known by proclamation.
358. 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 GC, art. 47; para. 365 herein.)
359. Oath of Allegiance Forbidden
It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power. (HR, art. 45.)
360. Maintenance of Occupation
Occupation, to be effective, must be maintained.
In case the occupant evacuates the district or is driven out by the enemy, the occupation ceases. It does not cease, however, if the occupant, after
establishing its authority, moves forward against the enemy, leaving a smaller force to administer the affairs of the district. Nor does the existence
of a rebellion or the activity of guerrilla or para-military units of itself cause the occupation to cease, provided the occupant could at any time
it desired assume physical control of any part of the territory. If, however, the power of the occupant is effectively displaced for any length of time,
its position towards the inhabitants is the same as before occupation.
361. Termination of Occupation
The law of belligerent occupation generally ceases
to be applicable under the conditions set forth in paragraphs 353 and 360. However, with respect to the provisions
of GC alone, Article 6 of that Convention provides:
In the case of occupied territory, the application of the present Convention shall cease one year after the general close
of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises
the functions of government in such territory, by the provisions of the following Articles of the present Convention; 1-12, 27,
29-34, 47, 49, 51, 52, 53, 59,
61-77, 143.
Protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue
to benefit by the present Convention. (GC, art. 6, 3d and 4th pars.)
362. Necessity for Military Government
Military government is the form of administration
by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or
inability of the legitimate government to exercise its functions on account of the military occupation, or the undesirability of allowing it to do
so. (See para. 12, which discusses military government, and para. 354, dealing with civil affairs administration.)
363. 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. (HR, art. 43.)
364. Occupation Costs
The economy of an occupied country can only be required
to bear the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be expected to bear.
365. 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. (GC, art. 47.)
366. Local Governments Under Duress and Puppet Governments
The restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupant are nonetheless its acts.
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Comments on paragraph 366 in relation to the Taiwan status issue
367. Functions of Government
a. Paramount Authority of Occupant. The functions of the hostile government--whether of a general, provincial, or local character--continue only to the extent they are sanctioned by the occupant.
b. Functions of Local Government. The occupant may, while retaining its paramount authority, permit the government of
the country to perform some or all of its normal functions. It may, for example, call upon the local authorities to administer designated rear
areas, subject to the guidance and direction of the occupying power. Such action is consistent with the status of occupation, so long as there exists
the firm possession and the purpose to maintain paramount authority.
368. Nature of Government
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.
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Fiduciary Relationships, (Part A)
Many civilians are confused by the nature of fiduciary relationships. The following quotations can be of help in explaining and illustrating this more clearly.
1. In the Treaty of Paris after the Spanish American War, Spain ceded the sovereignty of Cuba, but it was not given to any other country. The United States was the (principal) occupying power. Hence, as summarized above, the situation of Cuba after the Spanish American War provides good comparative analysis for Taiwan.
1b. Article 1 of the treaty provided that: "Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is upon the evacuation by Spain to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, and for the protection of life and property."
2. In their concurring opinion in Downes v. Bidwell, 182 U.S. 244 (1901), Justices White, Shiras, and McKenna stated:
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It cannot, it is submitted, be questioned that, under this provision of the treaty, as long as the occupation of the United States lasts, the benign sovereignty of the United States extends over and dominates the island of Cuba.... Considering the provisions of this treaty, and reviewing the pledges of this government extraneous to that instrument, by which the sovereignty of Cuba is to be held by the United States for the benefit of the people of Cuba and for their account, to be relinquished to them when the conditions justify its accomplishment, this court unanimously held in Neely v. Henkel, 180 U.S. 109, ante, 302, 21 Sup. Ct. Rep. 302, that Cuba was not incorporated into the United States, and was a foreign country.
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[bold-italics added]
Justice Gray in a concurring opinion stated:
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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).
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3. In a similar situation to Cuba after April 11, 1899, Taiwan is "foreign territory under the dominion of the United States." The Taiwan Relations Act does not treat Taiwan as a sovereign independent nation, but rather as a "sub-sovereign foreign state equivalent." The TRA contains a "foreign state equivalency" clause.
REFERENCE: Taiwan Relations Act [22 USC 3303 (b)]:
Application of United States laws in specific and enumerated areas
The application of subsection (a) of this section shall include, but shall not be limited to, the following:
(1) Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.
(2) Whenever authorized by or pursuant to the laws of the United States to conduct or carry out programs, transactions, or other relations with respect to foreign countries, nations, states, governments, or similar entities, the President or any agency of the United States Government is authorized to conduct and carry out, in accordance with section 3305 of this title, such programs, transactions, and other relations with respect to Taiwan (including, but not limited to, the performance of services for the United States through contracts with commercial entities on Taiwan), in accordance with the applicable laws of the United States.
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Fiduciary Relationships, (Part B)
Fiduciary Relationships as discussed in President McKinley's 3rd Annual Message, (Dec. 5, 1899)
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The withdrawal of the authority of Spain from the island of Cuba was effected by the 1st of January, so that the full re-establishment of peace found the relinquished territory held by us in trust for the inhabitants, maintaining, under the direction of the Executive, such government and control therein as should conserve public order, restore the productive conditions of peace so long disturbed by the instability and disorder which prevailed for the greater part of the preceding three decades, and build up that tranquil development of the domestic state whereby alone can be realized the high purpose, as proclaimed in the joint resolution adopted by the Congress on the 19th of April, 1898, by which the United States disclaimed any disposition or intention to exercise sovereignty, jurisdiction, or control over Cuba, except for the pacification thereof, and asserted its determination when that was accomplished to leave the government and control of the island to its people. The pledge contained in this
resolution is of the highest honorable obligation and must be sacredly kept.
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Note: Two facts must be remembered -- (1) the United States was not opposed to Cuban independence, (2) the United States did indeed exercise sovereignty over Cuba from the date of the surrender of Spanish troops in Cuba (July 17, 1898), past the date when the Treaty of Paris came into effect (April 11, 1899), up until the end of USMG and the proclamation of the Republic of Cuba on May 20, 1902.
Fiduciary Relationships, (Part C)
The concept of occupied territory being held in trust is further clarified on page 44 of
Military Government and Martial Law by William E. Birkhimer, 3rd edition (1914), Chapter VI "Effect of Occupation on Local Administration," Section 63 "Instance occupation of Cuba" --
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The position of the United States military authorities in Cuba, before the Spanish authorities abandoned the island in 1899, was one of military occupation, pure and simple; after that event, it was military occupation of a particular kind, namely, wherein the dominant military power exercised authority over the island as trustee for a Cuban nation not yet in existence, but the creation of which was promised and which was to have the assistance of the United States in establishing itself.
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Also see Section 74 on page 49, which discusses the case of Neely v. Henkel, 180 U.S. 109 (1901) --
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The relation of the United States to Cuba, resulting from the war of 1898, came up for review before the Supreme Court. An American who in Cuba was charged with crime had been arrested within one of the States of the Union, and it was held that he was subject to extradition. The court remarked that, as between the United States and all foreign nations, the former held Cuba as conquered territory; as between the United States and Cuba, the latter was held by military power in trust for the Cuban people, to be delivered over on the establishment of a stable government. It was a military occupation.
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Fiduciary Relationships, (Part D)
Fiduciary Relationships and Indian Affairs in the USA
Federal law gives the Secretary of the Interior and the Commissioner for Indian Affairs [now the Assistant Secretary of Interior for Indian Affairs] broad powers over all Indian affairs and all matters arising out of Indian relations. This includes veto power over all tribal contracts. Although the Navajo Nation has an elected council, set up under non-traditional Anglo guidelines, virtually every significant action of this council must receive BIA approval before it can become law or acted upon by the tribe. That approval process is often unnecessarily protracted and obstructionist.
After years of agitation and demands by indigenous governments, some changes have been realized in this relationship, resulting in relatively greater control of decisions on Indian reservations. Nevertheless, the federal government continues to insist that it, and not native peoples, is the ultimate arbiter of the degree of sovereignty exercised by indigenous nations. The importance of the exercise of U.S. control in India affairs becomes increasingly clear when one understands the considerable natural resource reserves found within the territories of indigenous nations -- many of which are considered strategic by the United States. In this respect, native peoples of the U.S. experience similar economic invasions and controls as other indigenous peoples -- be they the Yanomamis of Brazil, the Crees of Alberta, or the Penans of Sarawak. States consistently claim that it is their prerogative to exploit indigenous natural resources for the "national security," and such matters are purely
domestic in nature, beyond the scope of international scrutiny or rebuke.
What makes the economic condition of indigenous peoples in the U.S. somewhat unique is the judicially-created "trust relationship" that requires the U.S. to hold native lands and resources for the benefit of indigenous nations. ..... [S]ome legally enforceable rights for indigenous peoples do exist if the U.S. breaches its fiduciary obligation to them. Even more interesting is the fact that the United States is a fiduciary under two trust obligations: one to the indigenous people it has colonized and how now live within territory claimed by the U.S., and one to the peoples of the Pacific Trust Territory, whose territories were placed in trust by the United Nations, with the U.S. as trustee. A significant difference between these two trust arrangements is that the peoples of the Pacific Trust Territory did possess the absolute right to exercise self-determination when and if they choose to do so. No such right currently exists under international law for indigenous nations within the U.S., and the main difference in the attachment of international rights and status has to do with geographical separation from the colonizing power.
Also see --
BARBARA BANKS, Plaintiff v. AMERICAN SAMOA GOVERNMENT, Defendant
High Court of American Samoa, Trial Division, CA No.129-85, May 7, 1987:
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6. Cf. Morton v. Mancari, 417 U.S. 535 (1974), upholding the constitutionality of an "Indian preference" statute for employment in the Bureau of Indian Affairs, which is charged with administration of Indian reservations and related programs. The purpose of these preferences, as variously expressed in the legislative history, has been to give Indians a greater participation in their own self-government, to further the Government's trust obligation toward the Indian tribes, and to reduce the negative effect of having non-Indians administer matters that affect tribal life. Id. at 541-42 (footnotes omitted). The Indian preference, like the American Samoan preference, "is granted to Indians, not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives are governed by the BIA in a unique fashion." Id. at 554. The Court characterized it as "political rather than racial in nature." Id. at 553 n.24. The constitutional justification for this special political arrangement
was found in the fact that the United States, by acquiring control over the Indians in the exercise of the war and treaty powers, had thereby undertaken a trust obligation to them. Id. at 552. Implicit in this trust obligation was the power, ad perhaps the duty, to employ Indians wherever possible in positions related to their own governance.
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Fiduciary Relationships, (Part E)
Fiduciary Relationships and the Situation of Kosovo (which are relevant to a discussion of Taiwan):
The basic concept of trustee-occupant in international law dovetails nicely with the powers of a trustee under the common law and under civil law analogies.
 Within this analytical framework, Kosovo itself -- or the property comprising Kosovo -- is the res that the United Nations holds in trust. The Federal Republic of Yugoslavia's agreement to UN Security Resolution 1244 is akin to placing Kosovo in trust voluntarily. A trustee has the power to transfer trust property, even when a transfer cuts off reversionary interests, as long as the trustee exercises the power consistently with the terms of the trust and its purpose.
The United Nations, as trustee, has fiduciary duties to the beneficiary -- the peoples of Kosovo.
Under trust law, it is not necessary that the beneficiary be known at the creation of the trust.
The beneficiary must be ascertainable when the trust is created, but that includes a beneficiary who is not yet ascertained or in existence at the time the trust is created.
The identity of the beneficiary/reversioner is an open question accompanied by a duty in the trustee to resolve the question, much like when a court holds property in trust until it can determine the property's rightful owner.
Sovereignty is never held in suspense
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Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure [299 U.S. 304, 317] without a supreme will somewhere. Sovereignty is never held in suspense.
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-- quoted from United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936)
http://laws.findlaw.com/us/299/304.html
Note: There is much discussion in Taiwan and in overseas Taiwanese communities in regard to
the Montevideo Convention. In the view of many people, the ROC on Taiwan meets that Convention's criteria for
statehood of (a) permanent population, (b) defined territory, (c) government, and (d) the ability to conduct foreign
relations. Hence, in their view, it is totally unreasonable to deny Taiwan a seat in the United Nations.
However, all of these armchair experts overlook that facts that Oct. 25, 1945 is only the beginning of the military
occupation of Taiwan, and international law specifies that "Military occupation does not transfer sovereignty." The
territorial title of "Formosa and the Pescadores" has never been transferred to the Republic of China or the Taiwan
governing authorities. Therefore, at the most basic level, the ROC on Taiwan cannot be considered to have the ownership of
"Formosa & the Pescadores" (aka Taiwan) because it is not in possession of the territorial title to these areas.
Importantly however, there is no doctrine under international law whereby the territorial title (or territorial sovereignty)
of such a populated area as Taiwan can disappear. Hence, if the ROC or the Taiwan governing authorities do not have it, then some
other government, somewhere in the world must have it. From the perpective of the laws of war, it can be maintained that the principal
occupying power of the San Francisco Peace Treaty is currently holding Taiwan's territorial sovereignty.
Sovereignty is not a "plant" which may wither away to nothing and then be reborn. Sovereignty is always there. In other
words, since two major components of sovereignty (a) permanent population and (b) defined territory are still present, Taiwan's
sovereignty cannot have disappeared. Hence, the key issue for the Taiwanese people is to locate that sovereignty. If indeed this
sovereignty is being held by USMG, then the Taiwanese people can demand their fundamental rights under the US Constitution.
See Taiwanese should seek US Constitutional rights
The Force of Treaties under US Law
The Supremacy Clause of the U.S. Constitution (Article VI) provides that treaties, no less than acts of Congress or the Constitution itself, are "the Supreme Law of the Land."
Regarding customary international law, the U.S. Supreme Court proclaimed nearly a century ago: "International law is part of our law."
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of eivilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U.S. 113, 163 , 164 S., 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.
Wheaton places among the principal sourees international law 'text -- writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.' As to these he forcibly observes: 'Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are gen- [175 U.S. 677, 701] erally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.' Wheaton, International Law ( 8th ed.), 15.
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See The Paquete Habana, 175 U.S. 677, 700 (1900)
For how courts decide whether a principle has become part of customary international law, see, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ?102(2), 103(2) (1986) [hereinafter "RESTATEMENT"]; Cynthia R.L. Fairweather, Obstacles to Enforcing International Human Rights Law in Domestic Courts, 4 U.C. DAVIS J. INT' L L. & POL' Y 119, 124-27 (1998). For a list of norms considered to be customary international law, see RESTATEMENT, supra, 702.
See Restatement of the Law, Third, Foreign Relations Law of the United States
Additional References from FM 27-10
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12. Military Government and Martial Law Distinguished
In the practice of the United States, military government
is the form of administration which may be established and maintained for
the government of areas of the following types that have been subjected
to military occupation:
a. Enemy territory.
b. Allied territory recovered
from enemy occupation, when that territory has not been made the subject
of a civil affairs agreement (see para. 354).
c. Other territory liberated
from the enemy, such as neutral territory and areas unlawfully incorporated
by the enemy into its own territory, when that territory has not been made
the subject of a civil affairs agreement.
d. Domestic territory recovered from rebels treated as belligerents.
Although military government is an accepted concept
in the law of the United States, the limits placed upon its exercise are
prescribed by the international law of belligerent occupation. Other countries
exercise jurisdiction in occupied areas through types of administration
analogous to military government even though they may be designated by
other names.
In the United States, martial law is the temporary
government of the civil population of domestic territory through the military
forces, without the authority of written law, as necessity may require.
The most prominent distinction between military government, as that term
is used herein, and martial law is that the former is generally exercised
in the territory of, or territory formerly occupied by, a hostile belligerent
and is subject to restraints imposed by the international law of belligerent
occupation, while the latter is invoked only in domestic territory, the
local government and inhabitants of which are not treated or recognized
as belligerents, and is governed solely by the domestic law of the United
States.
So far as the United States forces are concerned,
military government and martial law are exercised by the military commander
under the direction of the President, as Commander in Chief of the Armed
Forces.
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56. Devastation
The measure of permissible devastation is found in
the strict necessities of war. Devastation as an end in itself or as a
separate measure of war is not sanctioned by the law of war. There must
be some reasonably close connection between the destruction of property
and the overcoming of the enemy's army. Thus the rule requiring respect
for private property is not violated through damage resulting from operations,
movements, or combat activity of the army; that is, real estate may be
used for marches, camp sites, construction of field fortifications, etc.
Buildings may be destroyed for sanitary purposes or used for shelter for
troops, the wounded and sick and vehicles and for reconnaissance, cover,
and defense. Fences, woods, crops, buildings, etc., may be demolished,
cut down, and removed to clear a field of fire, to clear the ground for
landing fields, or to furnish building materials or fuel if imperatively
needed for the army. (See GC, art. 53; para. 393b; herein, concerning
the permissible extent of destruction in occupied areas.)
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247. Definition of Protected Persons
a. Treaty Provision.
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.
Nationals of a State which is not bound by
the Convention are not protected by it. Nationals of a neutral State who
find themselves in the territory of a belligerent State, and nationals
of a co-belligerent State, shall not be regarded as protected persons while
the State of which they are nationals has normal diplomatic representation
in the State in whose hands they are.
The provisions of Part II are, however, wider
in application, as defined in Article 13.
Persons protected by the Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of August 12, 1949, or by the Geneva Convention for
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea of August 12, 1949, or by the Geneva Convention
relative to the Treatment of Prisoners of War of August 12, 1949, shall
not be considered as protected persons within the meaning of the present
Convention. (GC, art. 4.)
b. Interpretation. Subject to qualifications
set forth in para. 248, those protected by GC
also include all persons who have engaged in hostile or belligerent conduct
but who are not entitled to treatment as prisoners of war.
c. Wider Scope of Certain Articles. Part
II, GC (sec. II
of this chapter), has a broader scope than the rest of GC. (See
GC, art. 13; para. 252 herein.)
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248. Derogations
a. Domestic and Occupied Territory.
Where, in the territory of a Party to the conflict,
the latter is satisfied that an individual protected person is definitely
suspected of or engaged in activities hostile to the security of the State,
such individual person shall not be entitled to claim such rights and privileges
under the present Convention as would, if exercised in the favour of such
individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected
person is detained as a spy or saboteur, or as a person under definite
suspicion of activity hostile to the security of the Occupying Power, such
person shall, in those cases where absolute military security so requires,
be regarded as having forfeited rights of communication under the present
Convention.
In each case such persons shall nevertheless
be treated with humanity, and in ease of trial, shall not be deprived of
the rights of fair and regular trial prescribed by the present Convention.
They shall also be granted the full rights and privileges of a protected
person under the present Convention at the earliest date consistent with
the security of the State or Occupying Power, as the case may be. (GC,
art. 5.) (See also
para. 73.)
b. Other Area. Where, in territories other
than those mentioned in a above, a Party to the conflict is satisfied
that an individual protected person is definitely suspected of or engaged
in activities hostile to the security of the State, such individual person
is similarly not entitled to claim such rights and privileges under GC
as would, if exercised in favor of such individual person, be prejudicial
to the security of such State.
c. Acts Punishable. The foregoing provisions
impliedly recognize the power of a Party to the conflict to impose the
death penalty and lesser punishments on spies, saboteurs, and other persons
not entitled to be treated as prisoners of war, except to the extent that
that power has been limited or taken away by Article 68, GC
(para. 438).
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252. Field of Application
a. Treaty Provision.
The provisions of Part II cover the whole of
the populations of the countries in conflict, without any adverse distinction
based, in particular, on race, nationality, religion or political opinion,
and are intended to alleviate the sufferings caused by war. (GC
art. 13.)
b. The State and Its Own Nationals. The
provisions mentioned in a concern not only the relations between a given
nation and aliens but also the relations between a nation and its own nationals,
and also apply to neutral inhabitants of the countries in conflict.
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266. General
Protected persons are entitled, in all circumstances, to respect for their persons,
their honour, their family rights, their religious convictions and practices, and
their manners and customs. They shall at all times be humanely treated, and
shall be protected especially against all acts of violence or threats thereof
and against insults and public curiosity.
Women shall be especially protected against any attack on their honour,
in particular against rape, enforced prostitution, or any form of indecent assault.
Without prejudice to the provisions relating to their state of health, age
and sex, all protected persons shall be treated with the same consideration by the
Party to the conflict in whose power they are, without any adverse distinction based,
in particular, on race, religion or political opinion.
However, the Parties to the conflict may take
such measures of control and security in regard to protected persons as
may be necessary as a result of the war. (GC, art, 27.)
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350. Supervision
Representatives or delegates of the Protecting Powers shall have permission to
go to all places where protected persons are, particularly to places of internment
detention and work.
They shall have access to all premises occupied
by protected persons and shall be able to interview the latter without
witnesses, personally or through an interpreter.
Such visits may not be prohibited except for
reasons of imperative military necessity, and then only as an exceptional
and temporary measure. Their duration and frequency shall not be restricted.
Such representatives and delegates shall have full liberty to select
the places they wish to visit. The Detaining or Occupying Power, the Protecting
Power and, when occasion arises, the Power of origin of the persons to be visited,
may agree that compatriots of the internees shall be permitted to participate in the visits.
The delegates of the International Committee of the Red Cross shall also
enjoy the above prerogatives. The appointment of such delegates shall be submitted
to the approval of the Power governing the territories where they will carry out their
duties. (GC, art. 143.)
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374. Immunity of Occupation Personnel From Local Law
Military and civilian personnel of the occupying forces and occupation administration and persons
accompanying them are not subject to the local law or to the jurisdiction of the local courts
of the occupied territory unless expressly made subject thereto by a competent
officer of the occupying forces or occupation administration. The occupant
should see to it that an appropriate system of substantive law applies
to such persons and that tribunals are in existence to deal with civil
litigation to which they are parties and with offenses committed by them.
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382. Deportations, Transfers, Evacuations
Individual or mass forcible transfers, as well as deportations of protected
persons from occupied territory to the territory of the Occupying Power or to that
of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake
total or partial evacuation of a given area if the security of the population
or imperative military reasons so demand. Such evacuations may not involve
the displacement of protected persons outside the bounds of the occupied
territory except when for material reasons it is impossible to avoid such
displacement. Persons thus evacuated shall be transferred back to their
homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers
or evacuations shall ensure, to the greatest practicable extent, that proper
accommodation is provided to receive the protected persons, that the removals
are effected in satisfactory conditions of hygiene, health, safety and
nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any
transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain protected
persons in an area particularly exposed to the dangers of war unless the
security of the population or imperative military reasons so demand.
The Occupying Power shall not deport or transfer parts of its own
civilian population into the territory it occupies. (GC, art. 49.)
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388. Collective Relief
If the whole or part of the population of an occupied
territory is inadequately supplied, the Occupying Power shall agree to
relief schemes on behalf of the said population, and shall facilitate them
by all the means at its disposal.
Such schemes, which may be undertaken either by States or by
impartial humanitarian organizations such as the International
Committee of the Red Cross, shall consist, in particular, of the provision
of consignments of foodstuffs, medical supplies and clothing.
All Contracting Parties shall permit the free
passage of these consignments and shall guarantee their protection.
A Power granting free passage to consignments on their way to territory
occupied by an adverse Party to the conflict shall, however, have the right to
search the consignments, to regulate their passage according to prescribed times
and routes, and to be reasonably satisfied through the Protecting Power that these
consignments are to be used for the relief of the needy population and are not to
be used for the benefit of the Occupying Power. (GC, art. 59.)
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393. Destruction and Seizure of Property
a. Prohibition.
It is especially forbidden to destroy or seize the enemy's property,
unless such destruction or seizure be imperatively demanded by the necessities
of war. (HR, art. 23 (g))
b. Occupying Power.
Any destruction by the Occupying Power of real or personal property
belonging individually or collectively to private persons, or to the State, or
to other public authorities or to social or cooperative organizations, is prohibited,
except where such destruction is rendered absolutely necessary by military
operations. (GC, art. 53.)
c. General Devastation. See paragraph 56.
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418. Labor of Protected Persons
The Occupying Power may not compel protected persons to serve in its
armed or auxiliary forces. No pressure or propaganda which aims at
securing voluntary enlistment is permitted.
The Occupying Power may not compel protected persons to work unless they are
over eighteen years of age, and then only on work which is necessary either for the needs
of the army of occupation, or for the public utility services, or for the
feeding, sheltering, clothing, transportation or health of the population
of the occupied country. Protected persons may not be compelled to undertake
any work which would involve them in the obligation of taking part in military
operations. The Occupying Power may not compel protected persons to employ
forcible means to ensure the security of the installations where they are
performing compulsory labour.
The work shall be carried out only in the occupied territory where
the persons whose services have been requisitioned are. Every such person shall,
so far as possible, be kept in his usual place of employment. Workers shall be
paid a fair wage and the work shall be proportionate to their physical and
intellectual capacities. The legislation in force in the occupied country
concerning working conditions, and safeguards as regards, in particular,
such matters as wages, hours of work, equipment, preliminary training and
compensation for occupational accidents and diseases, shall be applicable
to the protected persons assigned to the work referred to in this Article.
In no case shall requisition of labour lead to a mobilization of workers
in an organization of a military or semi-military character. (GC, art. 51.)
(See also HR, art. 23 (h), 2nd sentence, para. 32 herein.)
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421. Protection of Workers
No contract, agreement or regulation shall impair the right of any worker,
whether voluntary or not and wherever he may be, to apply to the representatives
of the Protecting Power in order to request the said Power's intervention.
All measures aiming at creating unemployment or at restricting the
opportunities offered to workers in an occupied territory; in order to induce
them to work for the Occupying Power, are prohibited. (GC, art. 52.)
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