PART 3: THE RIGHT TO ACQUIRE TERRITORY AND THE EFFECT OF TREATIES
By article 2, 2, of the Constitution, the President is given
power, 'by and with the advice and consent of the Senate,
to make treaties, provided two thirds of the senators
present concur;' and by article 6, 'this Constitution and
the laws [182 U.S. 1, 195] of the United States which
shall be made in pursuance thereof, and all treaties
made or which shall be made under the authority of the
United States, shall be the supre me law of the land.' It
will be observed that no distinction is made as to the
question of supremacy between laws and treaties,
except that both are controlled by the Constitution. A
law requires the assent of both houses of Congress, and,
except in certain specified cases, the signature of the
President. A treaty is negotiated and made by the
President, with the concurrence of two thirds of the
senators present, but each of them is the supreme law of
the land.
As was said by Chief Justice Marshall in United States v.
The Peggy, 1 Cranch, 103, 110, 2 L. ed. 49, 51: 'Where
a treaty is the law of the land, and as such affects the
rights of parties litigating in court, that treaty as much
binds those rights, and is as much to be regarded by the
court, as an act of Congress.' And in Foster v. Neilson, 2
Pet. 253, 314, 7 L. ed. 415, 435, he repeated this in
substance: 'Our Constitution declares a treaty to be the
law of the land. It is, consequently, to be regarded in
courts of justice as equivalent to an act of the legislature,
whenever it operates of itself without the aid of any
legislative provision.' So in Whitney v. Robertson, 124
U.S. 190 , 31 L. ed. 386, 8 Sup. Ct. Rep. 456: 'By the
Constitution a treaty is placed on the same footing, and
made of like obligation, with an act of legislation. Both
are declared by that instrument to be the supreme law of
the land, and no superior efficacy is given to either over
the other. . . . . . .
One of the ordinary incidents of a treaty is the cession of
territory. It is not too much to say it is the rule, rather
than the exception, that a treaty of peace, following
upon a war, provides for a cession of territory to the
victorious party. It was said by Chief Justice Marshall in
American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542,
7 L. ed. 242, 255; 'The Constitution confers absolutely
upon the government [182 U.S. 1, 196] of the Union the
powers of making war and of making treaties;
consequently that government possesses the power of
acquiring territory, either by conquest or by treaty.'
It follows from this that by the ratification of the treaty
of Paris the island [of Porto Rico] became territory of the
United States, although not an organized territory in the
technical sense of the word.
But whatever be the source of this power, its
uninterrupted exercise by Congress for a century, and
the repeated declarations of this court, have settled the
law that the right to acquire territory involves the right
to govern and dispose of it. That was stated by Chief
Justice Taney in the Dred Scott Case.
In the more recent case of National Bank v. Yankton
County, 101 U.S. 129 , 25 L. ed. 1046, it was said by Mr.
Chief Justice Waite that Congress 'has full and complete
legislative authority over the people of the territories
and all the departments of the territorial governments.
It may do for the territories what the people, under the
Constitution of the United States, may do for the states.'
Indeed, it is scarcely too much to say that there has not
been a session of Congress since the territory of
Louisiana was purchased, that that body has not enacted
legislation based upon the assumed authority to govern
and control the territories. It is an authority which arises,
not necessarily from the territorial clause of the
Constitution, but from the necessities of the case, and
from the inability of the states to act upon the [182 U.S.
1, 197] subject. Under this power Congress may deal
with territory acquired by treaty; may administer its
government as it does that of the District o f Columbia; it
may organize a local territorial government; it may
admit it as a state upon an equality with other states; it
may sell its public lands to individual citizens, or may
donate them as homesteads to actual settlers. In short,
when once acquired by treaty, it belongs to the United
States, and is subject to the disposition of Congress.
Source: DeLIMA v. BIDWELL, 182 U.S. 1 (1901)
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Commentary: Retrocession of Louisiana from Spain to France
and the subsequent sale to the USA was the first American
experience with the incorporation of new territories acquired
by treaty cession. Up to the present day, there is much
common confusion about the comparative status of Union
territory and new territory acquired by peace treaty. Some
background information is provided as follows:
The question of the legal relations between the states and the
newly acquired territories first became the subject of public
discussion in connection with the purchase of Louisiana in
1803. This purchase arose primarily from the fixed policy of
Spain to exclude all foreign commerce from the Mississippi.
This restriction became intolerable to the large number of
immigrants who were leaving the eastern states to settle in
the fertile valley [182 U.S. 244, 252] of that river and its
tributaries. After several futile attempts to secure the free
navigation of that river by treaty, advantage was taken of the
exhaustion of Spain in her war with France, and a provision
inserted in the treaty of October 27, 1795, by which the
Mississippi river was opened to the commerce of the United
States. 8 Stat. at L. 138, 140, art. 4. In October, 1800, by the
secret treaty of San Ildefonso, Spain retroceded to France the
territory of Louisiana. This treaty created such a ferment in
this country that James Monroe was sent as minister
extraordinary with discretionary powers to co-operate with
Livingston, then minister to France, in the purchase of New
Orleans, for which Congress appropriated $2,000,000. To the
surprise of the negotiators, Bonaparte invited them to make
an offer for the whole of Louisiana at a price finally fixed at
$15,000,000.
Owing to a new war between England and France being upon
the point of breaking out, there was need for haste in the
negotiations, and Mr. Livingston took the responsibility of
disobeying his instructions, and, probably owing to the
insistence of Bonaparte, consented to the 3rd article of the
treaty, which provided that 'the inhabitants of the ceded
territory shall be incorporated in the Union of the United States,
and admitted as soon as possible, according to the principles
of the Federal Constitution, to the enjoyment of all the rights,
advantages, and immunities of citizens of the United States;
and in the meantime they shall be maintained and protected in
the free enjoyment of their liberty, property, and the religion
which they profess.' [8 Stat. at L. 202.] This evidently
committed the government to the ultimate, but not to the
immediate, admission of Louisiana as a state, and postponed
its incorporation into the Union to the pleasure of Congress.
We are also of opinion that the power to acquire territory by
treaty implies, not only the power to govern such territory, but
to prescribe upon what terms the United States will receive its
inhabitants, and what their status shall be in what Chief
Justice Marshall termed the 'American empire.' There seems
to be no middle ground between this position and the doctrine
that if their inhabitants do not become, immediately upon
annexation, citizens of the United States, their children
thereafter born, whether savages or civilized, are such, and
entitled to all the rights, privileges and immunities of citizens.
If such be their status, the consequences will be extremely
serious. Indeed, it is doubtful if Congress would ever assent to
the annexation of territory upon the condition that its
inhabitants, however foreign they may be to our habits,
traditions, and modes [182 U.S. 244, 280] of life, shall become
at once citizens of the United States. In all its treaties hitherto
the treaty-making power has made special provision for this
subject; in the cases of Louisiana and Florida, by stipulating
that 'the inhabitants shall be incorporated into the Union of the
United States and admitted as soon as possible . . . to the
enjoyment of all the rights, advantages, and immunities of
citizens of the United States;'. . . . . and in the case of Porto
Rico and the Philippines, 'that the civil rights and political
status of the native inhabitants . . . shall be determined by
Congress.' In all these cases there is an implied denial of the
right of the inhabitants to American citizenship until Congress
by further action shall signify its assent thereto.
Source: DOWNES v. BIDWELL, 182 U.S. 244 (1901)
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It is true that as between Spain and the United States -- indeed,
as between the United States and all foreign nations -- Cuba,
upon the cessation of hostilities with Spain and after the treaty
of Paris, was to be treated as if it were conquered territory. But
as between the United States and Cuba that island is territory
held in trust for the inhabitants of Cuba, to whom it rightfully
belongs, and to whose exclusive control it will be surrendered
when a stable government shall have been established by
their voluntary action.
Source: NEELY v. HENKEL, 180 U.S. 109 (1901)
also quoted in DOWNES v. BIDWELL, 182 U.S. 244 (1901)
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PART 4: CONSTITUTIONAL RIGHTS OF THE INHABITANTS OF ACQUIRED TERRITORY
It is obvious that in the annexation of outlying and distant
possessions grave questions will arise from differences of
race, habits, laws, and customs of the people, and from
differences of soil, climate, and production, which may require
action on the part of Congress that would be quite
unnecessary in the annexation of contiguous territory
inhabited only by people of the same race, or by scattered
bodies of native Indians.
We suggest, without intending to decide, that there may be a
distinction between certain natural rights enforced in the
Constitution by prohibitions against interference with them,
and what may be termed artificial or remedial rights which are
peculiar to our own system of jurisprudence. Of the former
class are the rights to one's own religious opinions and to a
public expression of them, or, as sometimes said, to worship
God according to the dictates of one's own conscience; the
right to personal liberty and individual property; to freedom of
speech and of the press; to free access to courts of justice, to
due process of law, and to an equal protection of the laws; to
immunities from unreasonable searches and seizures, as well
as cruel and unusual punishments; and to such other
immunities as are [182 U.S. 244, 283] indispensable to a free
government. Of the latter class are the rights to citizenship, to
suffrage (Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627 ),
and to the particular methods of procedure pointed out in the
Constitution, which are peculiar to Anglo -Saxon jurisprudence,
and some of which have already been held by the states to be
unnecessary to the proper protection of individuals.
Whatever may be finally decided by the American people as to
the status of these islands and their inhabitants,-- whether
they shall be introduced into the sisterhood of states or be
permitted to form independent governments,-- it does not
follow that in the meantime, a waiting that decision, the people
are in the matter of personal rights unprotected by the
provisions of our Constitution and subject to the merely
arbitrary control of Congress. Even if regarded as aliens, they
are entitled under the principles of the Constitution to be
protected in life, liberty, and property. This has been
frequently held by this court in respect to the Chinese, even
when aliens, not possessed of the political rights of citizens of
the United States. Yick Wo v. Hopkins, 118 U.S. 356 , 30 L. ed.
220, 6 Sup. Ct. Rep. 1064; Fong Yue Ting v. United States,
149 U.S. 698 , 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Lem Moon
Sing, 158 U.S. 538, 547 , 39 S. L. ed. 1082, 1085, 15 Sup. Ct.
Rep. 962; Wong Wing v. United States, 163 U.S. 228 , 41 L. ed.
140, 16 Sup. Ct. Rep. 977. We do not desire, however, to
anticipate the difficulties which would naturally arise in this
connection, but merely to disclaim any intention to hold that
the inhabitants of these territories are subject to an
unrestrained power on the part of Congress to deal with them
upon the theory that they have no rights which it is bound to
respect.
Source: DOWNES v. BIDWELL, 182 U.S. 244 (1901)
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PART 5: REFERENCE FOR THE TAIWAN STATUS ISSUE
Commentary: In Downes v. Bidwell (1901), a cession treated
as foreign territory under US dominion has self-governing
dominion issues of treaty-making powers which are handled
separately by the foreign territory itself. For example, the
WTO membership status for the foreign territory like Taiwan
cession is a good start, and is in complete alignment with this
principle.
This separate customs territory of SFPT cession is not a
status of an independent country. The separate WTO trade
status would be expected to be most commonly seen in regard
to US possessions, trust territories, or any self-governing
dominions. The foreign territory of the Taiwan cession is
treated as separate customs territory, or a foreign state
equivalent, but it is still a sub-sovereign by facts of cession.
The Taiwan cession is held under the benign dominion of the
US Military Government in SFPT. As a condition of having its
sovereignty held in trust, it is a TRA status equivalency of a
trust territory in Article 3 of SFPT. The notion of Taiwan being
annexed or politically part of the PRC was flat out rejected by
Senator Helms' legislation on the WTO ascension of Taiwan.
(2) the United States should be prepared to aggressively counter any effort by any
WTO member, upon the approval of the General Council of the WTO of the terms and
conditions of the accession of the People's Republic of China to the WTO, to block
the accession of Taiwan to the WTO.
Source: Accession of Taiwan to the World Trade Organization, Public
Law 106-286, Enacted 10 October 2000
http://www.taiwandocuments.org/pl106-286.htm
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The Taiwan Relations Act is a US domestic law. A relevant
clause was inserted by Senator Helms in his official capacity
and in light of the TRA oversight powers of SFPT
administrative authority controlled by the TRA treaty clauses
and international organization clauses. It is critical to grasp
the juncture of the three USA-PRC bilateral communiques
with the TRA clauses here:
(d) Membership in international financial institutions and
other international organizations
Nothing in this chapter may be construed as a basis for
supporting the exclusion or expulsion of Taiwan from
continued membership in any international financial
institution or any other internati onal organization.
Source: Taiwan Relations Act, United States Code Title 22 Chapter 48 Sections 3301 - 3316, Enacted 10 April 1979
http://www.ait.org.tw/en/about_ait/tra/
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Despite the continuation of the ROC in some organizations,
the USA does not even presently support the Taiwan cession
in any international organization requiring (of those joining
or acceding to membership) to have dejure sovereign status.
US law requires no support of Taiwan as a sovereign entity
but treats it as sub-sovereign with separate membership in
international organizations.
Creation of a separate customs territory applies to all cession
categories of unincorporated territory as set out by the
Downes v. Bidwell (1901) ruling. The US Constitution has no
conflicts with this SFPT issue of Taiwan cession as a
self-governing dominion of military government under the
Insular Cases. The fiscal authority is also separated from the
US Treasury.
The WTO status of the Taiwan cession as a separate customs
territory held under dominion by the administrative authority
of US Military Government can be directly derived from the
judicial precedent in Downes v. Bidwell (1901). That insular
case issue was fully satisfied by the military powers and
derivative legal instruments and policies for holding such a
dejure self-governing dominion under military government,
therefore it directly follows that the Taiwan cession is
qualified as unincorporated territory and that the Taiwanese
people have the unalienable basic (or "undefined") civil rights
protections thereof.
Attempting to evade these Constitutional issues, the three
USA-PRC bilateral communiques have seen the USA establish
a One China Policy which peacefully seeks to "return" this
SPFT Article 2b cession to the PRC, (not the ROC), as the
recognized lawful government of the area. In fact, the PRC is
not presently even exercising any effective form of SFPT powers
nor legally does it have the current supreme authority of the
USA.
Reference is made to the Congressional Record from 1952,
during the SFPT ratification hearings.
It was decided that when the treaty was ratified, Japan, of
her own free will and acting under her own sovereignty,
would determine which of the governments of China she
would recognize, and the make her own separate treaty
with that government. She is now making a separate
treaty with Nationalist China, and is determining with
Nationalist China the question of the amount of reparations,
if any, she will concede. Japan has stated very definitely,
as the Senator from Alabama has just pointed out, that she
is not going to deal with Communist China. Communist
China is in no way, shape, or manner to get anything under
this treaty. She has nothing to do with it. A new treaty
would have to be negotiated before Communist China
could have anything to do with this matter.
Source: Congressional Record -- Senate,
March 20, 1952, Volume 98 -- part 2, page 2573, 82nd Congress, Second Session,
Statement by Senator Smith, from New Jersey
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PART 6: THE TERMINATION OF MILITARY GOVERNMENT
Incidentally I have heretofore pointed out that the arguments
of expediency pressed with so much earnestness and ability
concern the legislative, and not the judicial, department of the
government. But it may be observed that, even if the
disastrous consequences which are foreshadowed as arising
from conceding that the government of the United States may
hold property without incorporation were to tempt me to depart
from what seems to me to be the plain line of judicial duty,
reason admonishes me that so doing would not serve to
prevent the grave evils which it is insisted must come, but, on
the contrary, would only render them more dangerous. This
must be the result, since, as already said, it seems to me it is
not open to serious dispute that the military arm of the
government of the United States may hold and occupy
conquered territory without incorporation for such length of
time as may seem appropriate to Congress in the exercise of
its discretio n. The denial of the right of the civil power to do so
would not, therefore, prevent the holding of territory by the
United States if it was deemed best by the political department
of the government, but would simply necessitate that it should
be exercised by the military instead of by the civil power.
And to me it further seems apparent that another and more
disastrous result than that just stated would follow as a
consequence of an attempt to cause judicial judgment to
invade the domain of legislative di scretion. Quite recently one
of the stipulations contained in the treaty with Spain which is
now under consideration came under review by this court. By
the provision in question Spain relinquished 'all claim of
sovereignty [182 U.S. 244, 343] over and title to Cuba.' It was
further provided in the treaty as follows:
'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.'
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. Likewise, it is
not, it seems to me, questionable that the period when that
sovereignty is to cease is to be determined by the legislative
department of the government of the United States in the
exercise of the great duties imposed upon it, and with the
sense of the responsibility which it owes to the people of the
United States, and the high respect which it of course feels for
all the moral obligations by which the government of the
United States may, either expressly or impliedly, be bound.
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. It follows from this decision that it is lawful for
the United States to take possession of and hold in the
exercise of its sovereign power a particular territory, without
incorporating it into the United States, if there be obligations
of honor and good faith which, although not expressed in the
treaty, nevertheless sacredly bind the United States to
terminate the dominion and control when, in its political
discretion, the situation is ripe to enable it to do so. Conceding,
then, for the purpose of the argument, it to be true that it would
be a violation of duty under the Constitution for the legislative
department, in the exercise of its discretion, to accept a
cession of and permanently hold territory which is not [182 U.S.
244, 344] intended to be incorporated, the presumption
necessarily must be that that department, which within its
lawful sphere is but the expression of the political conscience
of the people of the United States, will be faithful to its duty
under the Constitution, and therefore, when the unfitness of
particular territory for incorporation is demonstrated, the
occupation will terminate. I cannot conceive how it can be held
that pledges made to an alien people can be treated as more
sacred than is that great pledge given by every member of
every department of the government of the United States to
support and defend the Constitution.
But if it can be supposed -- which, of course, I do not think to
be conceivable -- that the judiciary would be authorized to
draw to itself by an act of usurpation purely political functions,
upon the theory that if such wrong is not committed a greater
harm will arise, because the other departments of the
government will forget their duty to the Constitution and
wantonly transcend its limitations, I am further admonished
that any judicial action in this case which would be predicated
upon such an unwarranted conception would be absolutely
unavailing. It cannot be denied that under the rule clearly
settled in Neely v. Henkel, 180 U.S. 109 , ante, 302, 21 Sup.
Ct. Rep. 302, the sovereignty of the United States may be
extended over foreign territory to remain paramount until, in
the discretion of the political department of the government of
the United States, it be relinquished. This method, then, of
dealing with foreign territory, would in any event be available.
Thus, the enthralling of the treaty-making power, which would
result from holding that no territory could be acquired by treaty
of cessio n without immediate incorporation, would only result
in compelling a resort to the subterfuge of relinquishment of
sovereignty, and thus indirection would take the place of
directness of action, --a course which would be incompatible
with the dignity and honor of the government.
Source: DOWNES v. BIDWELL, 182 U.S. 244 (1901)
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Commentary: The taking of firm possession of the Taiwan area is
pertinent as was done on October 25, 1945 establishing a starting date
of belligerent occupation. Here in the beginning of the 21st century, the Taiwan Question has been
the centerpiece of the US-China policy for over 30 years since the
Shanghai Communique and it has remained unresolved since the 1952
SFPT cession. 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 established
for Taiwan by the USA remains in force until legally supplanted.
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
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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
San Francisco Peace Treaty on April 28, 1952, the interim status of
Taiwan was already completely defined, and Taiwan should have been
flying the USA flag.
Belligerent occupation does not transfer sovereignty, but a peace treaty
cession does. Following such a final end of belligerent occupation by
treaty, the laws of occupation will still legally continue for any limbo
cession cases like Taiwan (as specified in the SFPT) or Cuba (as
specified in the Treaty of Paris).
These limbo 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. 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. Otherwise, the federal government
is supreme in the area until it is legally supplanted.
The supreme authority of the USA displaced the Japanese sovereignty
upon cession, but the US disclaimed any intention of possession of the
Taiwan cession and unwisely allowed the ROC to continue indefinitely
during the limbo cession period. The striking similarity between
Taiwan's situation and the world in 1898 under the administration of
President William McKinley cannot help but be noticed. The Teller
and Platt Amendments are noteworthy in this respect.
Teller and Platt Amendments
In April 1898 Senator Henry M. Teller (Colorado) proposed an
amendment to the U.S. declaration of war against Spain which
proclaimed that the United States would not establish permanent
control over Cuba. It stated that the United States "hereby
disclaims any disposition of intention to exercise sovereignty,
jurisdiction, or control ove r said island except for pacification
thereof, and asserts its determination, when that is accomplished,
to leave the government and control of the island to its people." The
Senate passed the amendment on April 19. True to the letter of the
Teller Amendment, after Spanish troops left the island in 1898, the
United States occupied Cuba until May 20, 1902.
The Teller Amendment was succeeded by the Platt Amendment
introduced by Senator Orville Platt (R-Connecticut) in February
1901. It allowed the United States "the right to intervene for the
preservation of Cuban independence, the maintenance of a
government adequate for the protection of life, property, and
individual liberty..." The Platt Amendment was finally abrogated on
May 29, 1934.
Conquest and Military Occupation
There is no relinquishment of sovereignty if incorporation
does not occur within any particular time frame, nor is the
treaty-making clause mysteriously rendered ineffective.
Self-governing dominions have their autonomy for such
treaty-making powers like their British counterparts of an
earlier era. However, it is a treaty status question of the
benign dominion that these delegated treaty-making powers
can be ultimately exercised or become a source of juridical
impedance when seeking any American support in joining
international organizations. This insular status can occur
within the military power or the civil powers of administrative
authority.
Just as military occupation does not transfer sovereignty and forbids oaths of allegiance to the
hostile power (See para. 359 of US Army Field Manual FM 27-10),
a ratified peace treaty coming into legal effect has the power of international law to change
the previously temporary situation by the principle of conquest for the legal acquisition of the territorial
sovereignty. In the case of West Berlin, the hostile or belligerent occupation of Germany was ended in
1950 by the Tripartite Powers (USA, UK, France). However, there were no final dispositions of German territory
until the 1955 Bonn Convention which ended the military occupation and established the West German nation.
West Berlin, notably, was excluded from any disposition by the Bonn Conventions and so "interim"
acquisition of German sovereignty was acquired under the principle of conquest for the supreme authority of
the USA.
In US v. Tiede , the legal basis
for the establishment of the US Court of Berlin in 1979
originated with the temporary acquisition of German
sovereignty under the principle of "cession by conquest." This
was just transitory displacement of German sovereignty
under the Laws of War by the USA. Similar to the
circumstances described in Neely v. Henkel (1901), the
territorial sovereignty of Taiwan was acquired under the
conquest principle with a cession by peace treaty into the
supreme authority of the USMG. For the Laws of War,
supreme authority is equated with the sovereignty or
dominion of the paramount occupational authority coming
above other Allied Powers whom are merely just "junior
partners."
At the most basic level, military occupation is defined as a
condition in which territory is under the effective control of a
foreign armed force. Military occupation presupposes a
hostile invasion, attack, etc., 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.
The Insular Cases don't apply to West Berlin because it was
belligerent occupation which is only temporary acquisition of
sovereignty under cession by conquest, with no concluding
"cession by treaty."
Current Political Status of Taiwan
The current political status of the Taiwan cession is not an
internal affair of China, it is an insular affair of the 1952 SFPT and
1979 TRA. Arrangement for the final status has been made by the
US Commander in Chief in the 1972 Shanghai Communique
and is standard operating procedures in paragraphs 353 and
354 of (US Army Field Manual) FM 27-10 for finalization of
such insular status within the military powers.
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