Tikka and Colombia

An immense explosion shattered the stillness of the night, and the USS Maine, anchored in the harbor at Havana, Cuba, began to list heavily to port. It was February 15, 1898, and the calamitous series of events which would lead to the declaration of war against Spain on April 22 were only just beginning.

But here let us imagine that the entire development of the Spanish American War had spread to a much wider geographic area, including most of Mexico and additional Central American areas, Colombia, and also many islands in the Caribbean includingCuba, Puerto Rico, and Tikka. There were many “theatres” involved in this war, each with its own “Supreme Commander,” in addition to one “Supreme Commander of the Allied Forces” (SCAF). Moreover, in this thought experiment, we will imagine that Tikka shared a somewhat similar history to Jamaica, but had not been conquered by the British in 1655, and had remained under Spanish sovereignty.

It will also be useful for us to stipulate that Colombia itself had been involved in a civil war for many years, but after joining the USA-led coalition to fight in the Spanish American War, its domestic situation had calmed down to a great degree. Although the war involved in a coalition of military troops, it so happened that the liberation of Cuba, Puerto Rico, and Tikka was conducted exclusively by US military airborne and naval forces. Notably, after these three engagements, the US military commanders had moved on to other battles in the Caribbean Theatre.

The Presidents of the United States and Colombia were in frequent social contact, and their wives were the closest of friends. Not unexpectedly, the wartime collaboration between the two countries was quitehighly developed. The US military commanders hadcooperated with Republic of Colombia troops to conduct many successful operations in Central America, and troop morale in both countries was high. with the full support of Republic of Colombia troops, the top US military commander straightforwardly designated the Supreme Commander of Allied Forces in the Colombian Theatreto accept the surrender of Spanish troops on the island of Tikka. A so-called General Order no. 1 was issued by SCAF which contained instructions as follows:

The senior Spanish commanders and all ground, sea, air and auxiliary forces within Colombia (excluding Panama), Tikka, and Mexico south of 26 north latitude shall surrender to Generalissimo Alvaro Chavez de Santos. .

(( Xx The senior Japanese commanders and all ground, sea, air and auxiliary forces within China (excluding Manchuria), Formosa and French Indo-China north of 16 north latitude shall surrender to Generalissimo Chiang Kai-shek. ))

Although the surrender ceremonies are arguably being held on behalf of the coalition forces (aka “the Allies”), the ensuing military occupation of Tikka is being conducted on behalf of the United States. This is because in relation to Tikka, the United States is the “conqueror” and will be the “principal occupying power.” The top US military commander has delegated the administrative authority for the military occupation of Tikka to Colombia. In legal terms this is simply an “agency” arrangement between nations.

Misconstrued Agency Arrangements and Further Political Complications

In our thought experiment it also happens that Tikka contained a large group of Colombian immigrants, and scholars had determined that Tikka was currently connected to Colombia by an almost entirely indiscernible fully-sunken underwater land-bridge, and that in some other curious and semi-meaningful fashionTikka was closely related to Colombian certain historical, geographical, and political ways.

Indeed, during the early days of the war the leaders of the United States, Colombia, and several other countries had held a meeting in Caracas, Venezuela, and issued a press communiquéregarding their views of the wartime situation. Later known as the Caracas Declaration, it contained some important wording as follows;

The Great Allies are fighting this war to restrain and punish the aggression of Spain. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Spain shall be stripped of all the islands in the Caribbean Sea and neighboring areas which she has seized or occupied since the Spanish explorers came to the area in 1519, and that all the territories Spain has stolen from the Colombians, such as Panama, Costa Rica, and Tikka, shall be restored to the Republic of Colombia.

Colombia is a unitary republic and in the Spanish language its provinces are called "departments." For many years, Colombian officials had been discussing the addition of Tikka as a new “department” of Colombia, and after the international meeting in Caracas, Venezuela, the planning for the addition of Tikka to the national territory moved ahead at an even brisker pace.

With the urging of Colombian officials, the terms and conditions of the document drafted in Caracas were also later included in a summaryreport issued to the press after a meeting of the leaders of coalition forces in Pensacola, Florida, USA, and later known as the Pensacola Proclamation:

The terms of the Caracas Declaration shall be carried out and Spanish sovereignty shall be limited to the Iberian Peninsula and the Balearic Islands, Canary Islands, Arousa, and such minor islands as we determine.

After a long period of intense battles involving the armies, navies, and air forces, of between Spain and different members of the coalition forces, Spain agreed to a cessation of hostilities, and Spain signed an “Instrument of Surrender” on Sept. 2, 1898. Nearly a week later, Spain later promulgated an “Act of Surrender,”effective Sept. 9, 1898. This included some important stipulations as follows:

The Queen of Spain, the Spanish government and the Spanish Imperial General Headquarters, having recognized the complete military defeat of the Spanish military forces by the Allied forces and having surrendered unconditionally to the Supreme Commander for the Allied Forces, having directed by his General Order no.1 that the senior commanders and all ground, sea, air and auxiliary forces within Colombia (excluding Panama), Tikka, and Mexico south of 26 north latitude shall surrender to Generalissimo Alvaro Chavez de Santos.

We, the Spanish Commanders of all Spanish forces and auxiliaries in the areas named above, also recognizing the complete military defeat of the Spanish military forces by the Allied forces, hereby surrender unconditionally all of the forces under our command to Generalissimo Alvaro Chavez de Santos. All the Spanish forces hereby surrendered will cease hostilities and will remain at the stations they now occupy. They are now non-combatant troops and in due course will be demobilized.

With malicious intent, when the Colombian troops arrived in Tikka to conduct the surrender ceremonies and begin their administration of the island, they straightforwardlyraised the Colombian flag and claimed the island for the Republic of Colombia, saying that the “transfer of sovereignty” was a fait accompli. The date of this momentous happening was October 25, 1898. The Colombian military officials in Tikka announced that this date would be forever known as “Tikka Retrocession Day.”

REALITY CHECK: General Order no. 1 (promulgated by SCAF) and the Act of Surrender (promulgated by Spain) authorized the surrender of Spanish forces, not Spanish territories. General Order no. 1 and the Act of Surrender were military directives, establishing procedures for demobilizing Spanish forces. They were not meant to settle political issues. The assignment of members of the Allied coalition to disarm Spanish forces in certain areas in no way implied the members' permanent possession of those areas.
The Act of Surrender authorized the surrender of Spanish forces to Alvaro Chavez de Santos as Supreme Commander of Allied Forces in the Colombian Theatre, not to the National Government of the Republic of Colombia. This is clear from the content of paragraph 1 of the Act.
REALITY CHECK: In fact, the legal significance of the surrender of local troops is not something which the Republic of Colombia officials can interpret according to their own preference. Under the customary laws of warfare of the post-Napoleonic period, territory is considered occupied when it is actually placed under the authority of the hostile army. (The word “hostile” is used in the senses of [1] of or relating to an enemy, [2] having an intimidating, antagonistic, or offensive nature.) Hence, the only valid interpretation of the legal significance of the surrender ceremonies on Oct. 25, 1898, is to say that they mark the beginning of the military occupation. Furthermore, international law states that “military occupation does not transfer sovereignty.”
An important question which immediately arises is “Who is the legal occupier?”Since all military attacks against Spanish installations in Tikka were conducted by the United States, we must recognize that the United States liberated Tikka. The USA is therefore the legal occupier, and its military occupation of the island will be conducted under the authority of a federal agency, the United States Military Government. ((xx Military occupation is an exercise of the rights of sovereignty, and the United States, as the principal occupying power, is acting as trustee to hold the sovereignty of Tikka, during this interim status period.))
The nature and functioning of United States Military Government (USMG) in overseas areas, and esoteric topics such as the legal ramifications of the delegation of administrative authority for the military occupation of particular territoriesto coalition troops are not well understood by ordinary civilians. Hence, at this point in late October 1898, to most average citizens in the United States and other countries, it appears that Colombia has annexed Tikka. This impression is at total odds with the legal reality however.

The Republic of Colombia authorities issue a military order on January 12, 1899, stipulating that all native Tikka people have "regained" their status as ROC nationals. The basis for this military order is of course the announcement of “Tikka Retrocession Day,” on Oct. 25, 1898.

REALITY CHECK: Under international law, Tikka is occupied territory. Any action taken by the Colombian officials with the aim of accomplishing the annexation of Tikka to Colombian national territory, such as the announcement of “Tikka Retrocession Day,”is a war crime. Additionally, the instituting of procedures for the mass naturalization of the local populace in occupied territory is another war crime.

Although the United States and other coalition partners offer some low-key diplomatic protests regarding the announced mass naturalization of native Tikkan people as “Republic of Colombia citizens,” no further or follow-up actions are taken. In truth, as the “conqueror” and therefore the principal occupying power of Tikka, , United States military officers should have gone to Tikka and demanded that the officers in charge, under penalty of death, immediately rescind the announcements of Tikka Retrocession Day and the mass naturalization of native Tikkan people. The serious nature of Colombia’s repeated violations of the customary laws of warfare should not be ignored.

With the close of hostilities in the Spanish American War, relations between different factions in the Colombian society reach a boiling point, and civil war begins again with vigor. Intent on supporting its troops which are still engaged in battles in Colombia proper, the Colombian officials in Tikka institute mandatory military conscription policies over the local Tikkan populace.

Armed revolutionary factions roam the streets and alleys of Colombia’s major cities, and finally there is a coup d’etat in the capital city of Bagota. Most of the high ranking Colombian government officials and military officers fleefor their lives. Some go to other locations in South America and overseas, but many go to Tikka.

Acting swiftly to establish its legitimacy, the new government in Colombia proper renames itselfas the “People’s Republic of Colombia”, and promulgates a new constitution. The remnants of the old Colombian government announce the formal transfer of their central government to Tikka and the establishment of a provisional capital in Kingston, all the while continuing to claim that they are the legitimate government of Colombia.

The local Tikkans are a proud and industrious people. Their island has been taken over by Colombian officials. They regard this Colombian government which began administration of the island on Oct. 25, 1898 as “foreign invaders,” but the Colombians stress that they are a legitimate government for Tikka, and while continuing to use the old Colombian constitution, flying the old Colombian flag, using the old Colombian national seal, etc. they steadfastly maintain that they possess the sovereignty of the island. When Tikkans take to the streets to protest, they are rounded up, charged with “sedition,” given swift trials by military courts, and shot. The United States government states that such summary executions are “unfortunate.”

REALITY CHECK: The old Colombian government’s legal status in Tikka can be clearly defined by noting that it fulfills the dual roles of a “proxy occupying force” and a “government in exile.” This Republic of Colombian government exercises “effective territorial control” over Tikka, but does not have sovereignty. (( xx Legally speaking, the sovereignty is being held in trust by the “principal occupying power,” which is the United States, but this is unbeknown to those without expertise in military law matters. ))

THE PEACE TREATY

In our thought experiment, the international gathering for the signing of the post war peace treaty is finally held in Santo Domingo, Dominican Republic, some six years later. It contains many Articles. In Article 2(b) Spain renounces its sovereign rights over Tikka.

Spain renounces all right, title and claim to Tikka.

However, no “receiving country” for this territorial cession is specified. In territorial cession law we can call this a“limbo cession.”Unfortunately, due to differences of opinion as to whether the old government of Colombia or the new government of Colombia is the true representative of the Colombian people, neither is invited to sign the treaty.

In Article 3, various specifications are made for certain Caribbean islands to be placed under the trusteeship of an important international organization which promotes peace and security,with the United States as the sole administering authority.

In Article 4(b) of the Santo Domingo Peace Treaty, the following specifications for the operations of the United States Military Government (USMG) are given:

Spain recognizes the validity of dispositions of property of Spain and Spanish nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3.

A further Article clarifiesthat the United States is the “principal occupying power.”

To those international legal scholars with a “military mindset,”including in depth knowledge of the functioning of USMG in overseas areas under military occupation, the true situation in Tikkais quite clear from a casual reading of the post war peace treaty. For those international legal scholars with a “civilian mindset,” its disposition of Tikka would be entirely incomprehensible. They would claim that the international legal position of Tikka is impossible to define.

REALITY CHECK: Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. Under the United States form of government, in regard to the functioning of military government in any particular occupied territory, the military chain of command is headquartered in the Pentagon, and the President is the Commander in Chief.
(( xx For Puerto Rico and Cuba in the Spanish American War period, the United States was the (principal) occupying power. (A) United States Military Government (USMG) in Puerto Rico began on August 12, 1898, with the surrender of Spanish troops. In Downes v. Bidwell, 182 U.S. 244 (1901), the US Supreme Court held that after the “Treaty of Paris”came into effect on April 11, 1899, Puerto Rico was unincorporated territory. However, the Foraker Act (also called the “Organic Act of 1900”), providing a civil government for Puerto Rico, and supplanting USMG, only came into effect on May 1, 1900. Hence, from April 11, 1899, until May 1, 1900, Puerto Rico was “unincorporated territory under USMG.” (B) United States Military Government in Cuba began on July 17, 1898, with the surrender of Spanish troops. From the coming into force of the peace treaty on April 11, 1899, to May 20, 1902, Cuba was “unincorporated territory under USMG.” (C.) ))
In the current thought experiment, although the administrative authority for the military occupation was delegated to the Colombians, legally speaking US military government in Tikka(USMG-TI) began on October 25, 1898, with the surrender of Spanish troops. Hence, from the coming into effect of the post war peace treaty, up until the present day, Tikka is a “quasi-trusteeship under USMG.” The US flag should be flying.
An important point of military law should be noticed, namely that “military government continues until legally supplanted.” In other words, the military government of the (principal) occupying power does not end with the coming into effect of the peace treaty. This has been reaffirmed by the US Supreme Court on many occasions.

According to Article 26 of the Santo Domingo Peace Treaty, Spain may make separate treaty arrangements with any non-signatory. Accordingly, a “Treaty of Kingston” is completed between the government of “Republic of Colombia in Tikka” and Spain, and comes into force on Aug. 5, 1904.