Roger Lin et. al v. United States of America
What are the legally manageable criteria
for adjudicating this case?
In order to understand the legally manageable criteria for adjudicating this case, it is necessary to examine the basic nature of military occupation, and in particular how military occupation relates to peace treaty cessions.
In the realm of internationally law, the concept of "military occupation" is primarily an outgrowth of the Napoleonic Wars. In other words, in most areas of the world, in the period before the early 1800's, armies of a country which conquered territory simply annexed the territory. The conqueror was the annexor.
In the post-Napoleonic world, these norms began to change. Certainly, in the practice of the United States, the difference between "military occupation" and "annexation" was recognized very early on, even during the Revolutionary War period.
According to these new customary norms of warfare, the conqueror was merely the occupying power. In consideration that the military occupation of a particular area could be delegated to other country's troops, the most correct wording is to say that: The conqueror is the (principal) occupying power.
As a codification of these customary norms, the definition of military occupation was more carefully codified in the Hague Conventions of 1907, which state that: "Territory is considered occupied when it is actually placed under the authority of the hostile army."
Hence, in relation to the military occupation of a particular area, three elements must be discussed: (1) Who is the (principal) occupying power? (2) When did the military occupation begin? (3) When did the military occupation end?
An overview of the history of California in the Mexican American War period is useful for seeing how these questions are answered.
The Mexican territory of California was under the authority of the hostile army (i.e. US military forces) as of Jan. 13, 1847, thus providing a convenient date for the beginning of the US military occupation of California territory. Military occupation is conducted under military government, and so United States Military Government jurisdiction over California territory has begun as of this date.
The Mexican American Peace Treaty (Treaty of Guadalupe Hidalgo) came into effect on July 4, 1848. According to the terms of Article 5 of the Treaty, California territory was ceded to the USA by Mexico.
In Cross v. Harrison, 57 US 164 (1853), the US Supreme Court confirmed that the military government of the (principal) occupying power did not end with the coming into force of the peace treaty but continued until legally supplanted.
Civil government in California began on Dec. 20, 1849, thus supplanting United States Military Government in the territory.
A similar structure was seen in Puerto Rico. The United States was the conqueror and the (principal) occupying power. The military occupation of Puerto Rico began with the surrender of Spanish troops, and the date given in many sources is Aug. 12, 1898. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Puerto Rico territory has begun as of this date.
The Spanish American Peace Treaty came into effect on April 11, 1899. According to the terms of Article 2 of the Treaty, Puerto Rico was ceded to the USA by Spain.
Later, civil government in Puerto Rico began on May 1, 1900, thus supplanting United States Military Government in the island.
A similar structure was seen in Cuba. The United States was the conqueror and the (principal) occupying power. The military occupation of Puerto Rico began with the surrender of Spanish troops, and the date given in many sources is July 17, 1898. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Cuba territory has begun as of this date.
The Spanish American Peace Treaty (Treaty of Paris) came into effect on April 11, 1899. According to the terms of Article 1 of the Treaty, Spain ceded Cuba but no "receiving country" was specified.
Later, civil government in Cuba began on May 20, 1902, under the name of the Republic of Cuba, thus supplanting United States Military Government in the island.
See Article 1 of Spanish American Peace Treaty
Article 1: Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its 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, for the protection of life and property.
(Note: the wording of Article 1 of the Spanish American Peace Treaty (Treaty of Paris) of April 11, 1899, shows that the period of time from the coming into force of the peace treaty until the beginning of civil government operations is also called "military occupation." In fact, Cuba had been belligerently occupied since July 17, 1898.)
Also note the following quotation
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)
As a summary of three elements necessary to discuss the military occupation of an area which later becomes a territorial cession, the following important points are revealed --
(1) Q: Who is the (principal) occupying power?
A: The conqueror is the (principal) occupying power.
(2) Q: When did the military occupation begin?
A: A rather undisputed date for the beginning of the military occupation of the area is when the local troops surrender.
(3) Q: When did the military occupation end?
A: The criteria for determining that the military occupation of an area has ended may be stated simply as: "The military occupation of an area has ended when the military government of the (principal) occupying power has relinquished its authority to the lawful civil government of the area." Or in more specific terms: "Military occupation has ended when the military government of the principal occupying power has been supplanted by a civil government fully recognized by the national (or 'federal') government of the (principal) occupying power."
These parameters apply equally well to the territorial cessions of California, Puerto Rico, Cuba, Philippines, Guam, etc., all of which were acquired under the principle of conquest.
Taiwan
Applying this legal analysis to Taiwan reveals the following facts.
The United States was the conqueror and the (principal) occupying power. The military occupation of Taiwan began with the surrender of Japanese troops on Oct. 25, 1945. Military occupation is conducted under military government, and so United States Military Government jurisdiction over Taiwan territory has begun as of this date.
The United States has delegated the administration of the military occupation of Taiwan to the Chinese Nationalists under Chiang Kai-shek. This is a principal-agent relationship.
The San Francisco Peace Treaty came into effect on April 28, 1952. According to the terms of Article 2b of the Treaty, Japan ceded Taiwan but no "receiving country" was specified.
In the period of April 28, 1952, to the present, no civil government operations recognized by the principal occupying power (i.e. the United States) in Taiwan, which would serve to supplant United States Military Government in the island, have begun.
To put it another way, if USMG jurisdiction over Taiwan had already ceased, then the political branches of the United States government would either (a) recognize the geographic area of Taiwan as an independent sovereign nation (under some particular nomenclature), or (b) would recognize Taiwan as part of another independent sovereign nation.
Under Article 4b of the SFPT, it is clear that USMG has jurisdiction over the "title" to Taiwan territory, since "title" is included in the concept of "property." Hence, as of the coming into force of the SFPT, (and arguably beginning in Oct. 1945), USMG jurisdiction over Taiwan is active. Additionally, the presence of this jurisdiction is fully definable from a legal perspective. The criteria for defining this jurisdiction are manageable.
Article 4b: Japan recognizes the validity of dispositions of property of Japan and Japanese 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.
In order to disprove this argument, the defendants must show that USMG jurisdiction over Taiwan has ended in the period of April 28, 1952, to the present.
The Plaintiff's viewpoint that Taiwan is "occupied territory of the United States" is further reinforced by examining the actions of the US government political branches in their treatment of Taiwan over the past 50 or more years.
Specifically, the traditional view of the US political branches was that the status of Taiwan was undetermined. The fact that Mr. Kissinger decided to change this description to "between the ROC and the PRC" in 1972 is well documented.
* The "undetermined" view is often traced back to the June 27, 1950, statement of President Truman.
* It is important to recognize that this "undetermined" analysis can be examined on multiple levels. Among the most important of these are to recognize that: (1) Oct. 25, 1945, did not signify the annexation of Taiwan by China, but was merely the beginning of the military occupation thereof (2) military occupation is a "transitional period," which may be described as a period of "interim political status." Territory under military occupation has not reached a "final political status."
Then, after the SFPT came into effect, since the majority of members of the press, research organizations, etc. have no understanding of the basic nature of military occupation, the fact that Japan ceded Taiwan without specifying a receiving country was incomprehensible to most persons.
In fact, this formulation, which is very similar to the formulation for Cuba in the Spanish American Peace Treaty, merely indicates that the military occupation of Taiwan continues until it can be legally supplanted at some future date.
Speaking of this "April 11, 1899, to May 20, 1902" transitional period, the US Supreme Court held in DeLima v. Bidwell, 182 US 1 (1901), that "Cuba is under the dominion of the United States." The nationality of the native persons therein is thus provided by Boyd v. Nebraska ex rel Thayer, 143 U.S. 135 (1892) where the Court specified that: "The nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided." This determination was confirmed again in Gonzales v. Williams, 192 U.S. 1 (1904).
To put this in the simplest way possible, the situations of California after the Mexican American War, and of Puerto Rico, Guam, Philippines, and Cuba after the Spanish American War clearly show that "the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted."
Hence, when considering the meaning of Article 2b of the SFPT, where a territorial cession of Taiwan by Japan is specified, the question of "Who is the principal occupying power?" must be asked. The answer is in Article 23a, and this is confirmed by the specifications of Article 4b.
Article 2b: Japan renounces all right, title and claim to Formosa and the Pescadores.
Hence, the determination of who holds the sovereignty over Taiwan can be directly derived from an examination of the situation of Cuba, as stated in two US Supreme Court cases from 1901.
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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