Footnotes:
1. In regard to military occupation issues, US Supreme Court decisions and concepts from FM 27-10 “The Law of Land Warfare,” where noted, are intended to clarify certain elements which can be regarded as acceptable international practice.
Paragraphs from FM 27-10 which are relevant to the Axioms derived in this paper and to the development of the narrative content of the M.I. War example are: 1 to 10, 12, 13, 351 to 360, 362 to 382, and 393 to 448.
2. Agency between nations is often called “Grotian agency.”
3. Historically, different terminology has often been seen, such as "the occupant", "the occupying state", "the occupying forces", "the occupying army", "the occupying power", etc. (Of note is that these terms are commonly given in the singular.) In the present day, "the occupying power" is preferred.
4. It is important to recognize the broad original senses of the verb "cede" and the noun "cession," which are used to denote the "surrendering of possession of," "relinquishment of sovereignty over," "renouncing of all right, title and claim to," etc.
5. In respect to the geographic area covered by the peace treaty, “hostilities” are regarded as continuing up to the date when the peace treaty comes into force. This is regardless of any “cease-fire” which may be in effect.
6. This law was known as the Foraker Act.
7. Beginning on April 11, 1899, the time period up to May 1, 1900, (in Puerto Rico), up to May 20, 1902 (in Cuba), and up to July 4, 1901 (in the Philippines) may be termed “friendly occupation” or the “civil affairs administration of a military government.” The territorial status under the US Constitution is “unincorporated territory under USMG.” The doctrine of “unincorporated territory” arises from the decision in Downes v. Bidwell, 182 US 244 (1901).
8. See Dooley v. US, 182 US 222 (1901); DeLima v. Bidwell ,182 US 1 (1901); and Santaigo v. Nogueras, 214 US 260 (1909).
9. Presumably, this new government would initiate the procedures for calling a constitutional convention at some future date.
10. At some day in the future, perhaps sixty years from now, the consensus of the world may change, and it may be practicable to unfetter the sovereignty of the island to this local government. At that time, Janipatra would achieve full independence.
11. Janipatra was not ceded to Malaysia in the peace treaty. Hence, under international law, there is no authorization for the Malaysian Parliament to pass the relevant legislation to provide for the establishment of “civil government” in the territory. However, this does not preclude the Janipatrans forming their own “civil government” (of a “provisional” or “transitional” nature) under FMMG and thereby obtaining a large degree of autonomy over their own affairs. Indeed this would be one acceptable form of “self-determination” for the territory even when the world community is not disposed toward Janipatran independence.
12. The statement that Thailand is to be considered the lawful government of Janipatra does not necessarily have to be stated “directly” in this Pattaya Communique, but can be stated in a very round-about and indirect fashion.
13. Due to the separation of powers doctrine, it is most likely that the King’s actions in this regard are not subject to review by the Malaysian Judiciary or the Malaysian Parliament.
14. The statement that Australia is to be considered the lawful government of Janipatra does not necessarily have to be stated “directly” in this Canberra Communique, but can be stated in a very round-about and indirect fashion.
15. Often cited rationale/justification for annexation are: pre-existing announcement(s) of the intent to expropriate the territory, the doctrines of uti possidetis, postliminium, prescription, terra sine domino [or terra nullius], irredentism, etc., or various historic, geographic, and/or geological evidence.
16. Technically speaking, it should also be noted that the Cordoba Declaration, Porto Alegre Proclamation, and Indonesian Surrender documents are not related to the drafting of the post-war peace treaty, and therefore do not fall within the scope of the “rules of interpretation” specified in the Vienna Convention on the Law of Treaties (as entered into force Jan. 27, 1980) Art. 31 para. 2 to 3, or Art. 32.
17. Although some political analysts with no background in international humanitarian law are confused about the true situation in Janipatra, the following three factors are proof that FMMG administrative authority over Janipatra is still active: (1) The Ministry of Foreign Affairs Malaysia maintains that “Janipatra is not a sovereign nation,” (2) The status of Janipatra is said to be “undetermined,” (3) The head of state of Malaysia has concluded an Angor Wat Communique, which has put Janipatra on a “flight-path” for eventual unification with the PKC.
18. As a summation of the RGC’s legal position, it has effective territorial control over Janipatra, but this is not equivalent to possessing sovereignty.
19. With a “civil government” in place, there are numerous possibilities. (1) Is this territory now an independent sovereign nation? (2) Is this territory now part of another independent sovereign nation? If the p.o.p. maintains (and can legally justify) that the answer to either of these questions is “yes,” then the military occupation has ended.
In the situation of a “civil government” which is functioning under the p.o.p., 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.”
20. The findings in the Am. Ins. Co. case of 1828 have been continually reaffirmed in other US Supreme Court cases. See City of New Orleans v. New York Mail S S Co., 87 U.S. 387 (1874); Jones v. U.S., 137 US 202 (1890); Boyd v. State of Nebraska ex rel. Thayer, 143 US 135 (1892); U.S. v. Wong Kim Ark, 169 US 649 (1898); Dorr v. U.S., 195 US 138 (1904); MaCleod v. U.S., 229 US 416 (1913).
21. See SFPT Article 4b.
22. In the English language, the word “property” includes the concept of “title”
23. In the United States, provisions for such a determination have been specified in all treaties from the 1803 Louisiana cession to the present, and can thus be cited as the customary law of treaties.
24. Overall references for the history, geography, and politics discussed in the following five-part overview are Encyclopædia Britannica 2006. Encyclopædia Britannica Premium Service, http://www.britannica.com/ and U.S. Dept. of State Background Notes http://www.state.gov/r/pa/ei/bgn/. (accessed Aug. 28, 2006)
25. See SFPT Article 25.
26. This is similar to the situations of Puerto Rico, Cuba, and the Philippines after the Spanish American War. See Footnote 7.
27. This classification arises directly from US Dept. of State Foreign Affairs Manuals and the United States code. In particular, see 7 FAM 1111.3, 7 FAM 1121.1, 7 FAM 1121.2-2, 7 FAM 1121.4-3, and 8 USC 1408.
28. Kinmen – alternate spellings: Jinmen; Chinmen; Quemoy.
29. Mazu – alternate spelling: Matsu.
30. The first sentence of 48 USC 1421a is -- “Guam is declared to be an unincorporated territory of the United States and the capital and seat of government thereof shall be located at the city of Agana, Guam.”
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