Army Field Manual 27-10, the LAW of LAND WARFARE

--- Army Field Manual 27-10, THE LAW OF LAND WARFARE

--- Chapter 6 OCCUPATION

--- Section I. GENERAL

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. This was after the close of fighting in the war.[1] 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 date of Oct. 25, 1945, 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[2] 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).[3] Under the customary laws of warfare, such annexation is impossible.

Author George Kerr noted that as early as 1943:

Prominent officers in the State Department assumed (with much justification) that the outstanding issues affecting Sino-American relations in Asia could not be solved until China achieved unity under a strong central government, whatever political complexion that government might have. Arguing from this, they held that no central government could survive which failed to recover Formosa. Nationalist and Communist Party propaganda alike held that it was a "lost province," stolen by the Japanese. They conveniently forgot that China had ceded Formosa to Japan in 1895 "in perpetuity," and that only a postwar treaty of peace could effect a legal retrocession.[4]

In Taiwan, under the government of the ROC, the announced annexation has always been called “retrocession¨. In other words, the ROC authorities maintain that Taiwan was retroceded to the ROC on Oct. 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 Oct. 18, 1907, embodying the “Regulations Respecting the Laws and Customs of War on Land,” tells us that there was no retrocession.

Additionally, the case of Korea clearly shows 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 in the case of the surrender of Japan after 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.

Most important is to realize that 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[5] or irredentism[6].

Nevertheless, further objections are often raised in regard to the 1952 SFPT. 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[7] 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: (1) 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. (2) 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.” (3) 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. (4) 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. (5) 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. Based on these criteria, upon the coming into force of the SFPT the doctrine of “uti possidetis” cannot be invoked by “China,” however “China” may be defined.

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.

Comments on paragraph 352 in relation to the Taiwan status issue:

The invasion and taking firm possession of the Taiwan area is pertinent as was done on Oct. 25, 1945 establishing a starting date of belligerent occupation. Here in the first decade of the 21st century, the Taiwan status question has remained unresolved since the 1952 SFPT cession, and it has been the centerpiece of the US-China policy for over 30 years since the 1972 Shanghai Communique.[8] Even the 1950 Truman Statement has reflected this continuing intention to not relinquish the administrative authority of the Taiwan area until a final resolution is reached. It is the "West Berlin" of the Far East in many respects. It is differentiated from West Berlin by the legal fact of a territorial cession in SFPT. This cession legally extends the occupation and the military government[9] established for Taiwan by the USA remains in force until legally supplanted.[10]

1950 Truman Statement

"The occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to the United States forces performing their lawful and necessary functions in that area. Accordingly, I have ordered the Seventh Fleet to prevent any attack on Formosa. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations."

-- US President Harry S. Truman, June 27, 1950

Over the past 50 years, most people have failed to grasp the significance of what President Truman said in these remarks, especially when viewed in light of subsequent events. By adding the missing word in the third sentence it will become clear –

The determination of the future final status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.

In other words, after “cession by treaty”, i.e. the coming into force of the SFPT on April 28, 1952, the interim status (i.e “non-final political status”)[11] of Taiwan was already completely defined.

The interim status from that time up to the present day can be definitively delineated as follows:

Name: Taiwan cession (or more simply “Taiwan”)

Cession Day: April 28

Organized Territory: No[12]

Insular Area of the USA: Yes[13]

Status: Interim status under the laws of occupation

Flag of the interim status: Flag of the USA

Allegiance of Island Citizens during the interim status: USA

National Anthem of the interim status: "Star Spangled Banner" [14]

US Constitutional protections -- as an overseas area under the jurisdiction of the United States, the local populace is entitled to fundamental rights under the US Constitution

Sovereignty during the interim status -- the sovereignty of Taiwan is being held in trust by the principal occupying power, in a similar situation to that of Cuba after the coming into force of the Treaty of Paris on April 11, 1899. See Neely v. Henkel 180 US 109 (1901), Downes v. Bidwell 182 U.S. 244 (1901),[15] the TRA,[16] and Birkhimer.[17]

Territorial classification during the interim status -- "unincorporated territory under USMG" [18]

Military Government -- United States Military government is present, and military occupation is a reality.[19]

Taxes -- as an independent customs territory, the Taiwanese people do not have US federal income tax liability.[20]

Defense -- according to the "common defense" stipulation of Article 1, Sec. 8 of the US Constitution, "national defense" matters for Taiwan are the responsibility of the DOD in the Pentagon.

Allegiance of Island Citizens during the interim status: USA

Passports -- the “competent authority” for issuing passports to native Taiwanese persons during the interim status must be recognized as the US Dept. of State[21]

Nationality of native Taiwanese persons -- US national non-citizens, (aka “island citizens” of the Taiwan cession)[22]

There is a direct correspondence here to the situation of occupied Cuba in the 1898 to 1902 period. Anyone with knowledge of Cuban history can verify that the flag which flew over Cuba during the US military occupation of that island was the flag of the occupying power, as spoken of in the customary laws of warfare. That flag was the star spangled banner. During that period, before May 20, 1902, Cuba was in interim status under the laws of occupation.

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.

Comments on paragraph 353 in relation to the Taiwan status issue:

In the US form of government, ratified treaties are supreme law after the US Constitution. They are superior to other laws except the Constitution itself. In the case of SFPT, the cession of Taiwan is supreme law of the land and the constitutionality of the Taiwan cession being held under the laws of occupation is directly based upon a number of Supreme Court cases called “the Insular Cases.” The treaty transformation of the territory is from that of “independent customs territory” under belligerent occupation to “unincorporated territory under USMG” for any ceded territory. It is not an "extra-territoriality" in the sovereign sense where the territorial sovereignty of the enemy country has been displaced for purposes of a belligerent occupation.

Belligerent Occupation does not transfer sovereignty, but a peace treaty cession does. Following such a final end of belligerent occupation by the specifications of territorial cession in a peace treaty, the military government of the principal occupying power will continue until legally supplanted.[23] As was seen in the situation of the Spanish American War cessions, in each case USMG was supplanted by a civil government structure fully recognized by the US government.[24]

These Spanish American War cessions were "foreign in a domestic sense" because these self-governing dominions are not treated as dependent areas or US possessions, and the military government established during their interim period is only a provisional government imposed by force. However, at the same time, the US Supreme Court has held that fundamental US constitutional rights apply in all overseas US territories, and “unincorporated territory under USMG” (before the establishment of a recognized civil government in a territory) is one of the territorial categories which exist.

If a territory is destined to join the Union of States, then it is incorporated by Congress and will join the 50 other states at the appropriate time the federal territory is settled and the population is sufficient for that step. That was the situation in regard to California, Utah, Nevada, etc. after the Mexican American War. Otherwise, the federal government is supreme in the area until it is legally supplanted.