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.

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(1.) civil government: [in the practice of the United States] (a) administrative authority conducted by civilian officials in a government of territory (or a state) under constitutional powers of the US Congress, (b) a government as distinguished from “military government.”

(2.) military government: the form of administration by which an occupying power exercises governmental authority over occupied territory.

Note: Military government continues until legally supplanted.

(3.) 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.

(4.) the occupying power: [as spoken of in the customary laws of warfare] (a) the conqueror.

Notes: (i) 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. (ii) When the administrative authority for the military occupation of particular areas is delegated to other troops, a “principal — agent” relationship is in effect. (iii) As a definition, it may be said that the principal occupying power exercises military government jurisdiction over territory acquired under the principle of conquest.

(5.) cede: (a) to surrender possession of, especially by treaty, (b) to transfer of control of or sovereignty over specific property or territory, especially by treaty, (c) to surrender or give up something such as land, rights, or power, (d) [noun] cession

Notes: (i) 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. (ii) Before the receiving country’s civil government begins operations, the territory remains under the jurisdiction of the principal occupying power and in “interim status.” (iii) 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.

(6.) limbo cession: a territorial cession with no “receiving country” indicated.

(7.) escheat: (a) reversion of property to the state in the absence of legal heirs or claimants, (b) property that has reverted to the state when no legal heirs or claimants exist.

Notes: 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.

(8.) 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.

(a) 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

(b) 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.”

(9.) 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.

(10.) property: (a) something, as land and assets, legally possessed, (b) a piece of real estate, (c) something tangible or intangible to which its owner has legal title, (d) the right of ownership; title.

(11.) 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.

(12.) dispositive treaty: a treaty which has stipulations relating to the disposition of property. Importantly, in regard to a territorial cession, international law holds that once the obligations of territorial cession have been fulfilled, the relevant clause of the treaty itself ceases to exist. Hence, the act of territorial cession is not affected by later cancellation, abrogation, or nullification of the treaty.

(13.) government in exile: (a) a temporary government moved to or formed in a foreign land by exiles who hope to rule when their country is liberated, (b) a government established outside of its territorial base, (c) 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.

(14.) native Taiwanese people: natural persons who meet the following criteria: (a) 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 (b) currently having Household Registration in the areas of Formosa and the Pescadores.

(15.) custom: a long established tradition or usage that becomes customary law if it is (a) consistently and regularly observed and (b) recognized by those states observing it as a practice that they must obligingly follow.

(16.) 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.

(17.) organic law: (a) 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; (b) 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.

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

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

(20.) crimes against international law: serious violations of international law including crimes against humanity, crimes against peace, and war crimes.

(21.) body politic: (a) a politically organized body of people under a single government, (b) 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”.

(22.) metropolitan Japan: the four main Japanese islands

(23.) 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.

(24.) 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.”

(25.) 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.

Relevant Dates
	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

International Law Doctrines

International Law Doctrines of Possible Relevance to the Taiwan Status Issue

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

Comments: Technically speaking, "irredentism" is a doctrine from the sphere of identity politics, cultural & ethnic studies, and political geography. It is not a legal doctrine per se, and hence carries little or no weight in discussing legal claims on territory.

(2.) 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.

Comments: The transfer of the title of territory by treaty is an internationally recognized valid method for transmission and reassignment of "ownership." Regardless of the future outbreak of war between the affected parties, or the military occupation of each other's countries, international law does not recognize any claim to "retroactive reversion of title" to previously ceded territory, and the doctrine of "postliminium" cannot be invoked under such circumstances.

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

Comments: Certain countries with a long history have obtained title to their lands based on "prescription." However, Taiwan was a territorial cession in Article 2b of the San Francisco Peace Treaty (SFPT), hence there must be a clear transfer of territorial title in order to be recognized as valid. The doctrine of "prescription" cannot be invoked under such conditions. This analysis is fully confirmed when we recognize that October 25, 1945, was the beginning of the military occupation of Taiwan, and international law specifies that "military occupation does not transfer sovereignty."

"De facto control" does not constitute ownership as we can clearly see from US military occupation of Iraq and Afghanistan. Such military occupation does not mean that the US has possession of the de jure sovereignty over these lands.

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

Comments: Taiwan was Japanese territory up until April 28, 1952. There is no basis under international law to say that by 1949 Taiwan had already become "terra sine domino," and was thus subject to casual annexation by any other country such as the ROC.

(5.) terra nullius: [spoken of unpopulated territory] uninhabited islands or lands, abandoned lands, etc. which are not being used for the advantage of human beings.

Comments: In late 1945, Taiwan had a population of approximately six million, and could certainly not be claimed under the doctrine of "terra nullius."

(6.) 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.")

Comments: This principle is not applicable to a discussion of Taiwan's international legal status after WWII because (a) the Republic of China was not a party to the SFPT, in which Japan ceded Taiwan, (b) October 25, 1945, only marks the beginning of the military occupation of Taiwan, and the Republic of China (founded in 1912) had never held legal possession of "Formosa and the Pescadores" at any time before the coming into effect of the peace treaty. (c) Furthermore, Article 21 of the SFPT clearly stipulates the benefits to which "China" is entitled under the treaty, and "Formosa and the Pescadores" are not included.

(7.) popular sovereignty: the doctrine that the state is created by and subject to the will of the people, who are the source of all political power.

Comments: The sovereignty as spoken of in any discussion of the disposition of Taiwan in the post-WWII period is "territorial sovereignty", which is the right of a government to exclusively exercise its powers within a particular territory. As such, "territorial sovereignty" must be based on having "territorial title" in regard to matters of territorial cession, no instances have been found in the post-Napoleonic period where "the people" (in some anonymous fashion) were deemed to hold the "territorial title" to any areas. Rather, "territorial title" is held by a government. This clarification is very important for discussing the details of Taiwan's international legal position.

(8.) principle of conquest: a principle which specifies and explains the rules regarding the acquirement, administration, and disposition of territory conquered by military forces.

Comments: In the post-Napoleonic era, in regard to territory which has been conquered by military forces, the "principle of conquest" includes the following aspects:

• Territory may be acquired as a result of conquest by military forces, and the "conqueror" is the (principal) occupying power,
• The administration and disposition of such territory must be conducted according to the laws of war, which include the laws of military occupation,
• The territory is under military occupation, and military occupation does not transfer sovereignty,
  • Military occupation is conducted under military government,
  • Military government continues until legally supplanted by a recognized "civil government" for the area,
  • Military occupation is period of "interim (political) status."
• If there is to be a transfer of territorial sovereignty (aka "territorial cession"), then the full specifications must be given in a formal peace treaty.