In Trust of USMG

By Jeffrey Geer

The Harvard Asia Quarterly (Fall 2004) has recently published "Understanding the San Francisco Peace Treaty's Disposition of Formosa and the Pescadores" by Richard Hartzell. The lengthy article asserts the US constitutional connection of international public law (SFPT) to municipal law (Taiwan Relations Act) with regards to the insular status of Taiwan cession under the Insular Cases of 1900. The SFPT interim obligation of the US Military Government (USMG) is part of a civil affairs agreement (eg. 1972 Shanghai Communique or executive agreement) that was signed with the PRC under Laws of War for the "non-hostile relations between belligerents" (eg. 1954 Korean War Armistice, 1962 Declaration of Neutrality of Laos) in the absence of diplomatic relations. Please see the Hartzell citation of FM 27-10 Laws of Land Warfare, Par. 354, as civil affairs regulations are the administrative law of USMG, a federal agency under SFPT. This civil affair regulation is USMG authorization of the civil affairs administration of any liberated territory on temporary and provisional basis by the agents of USMG if acting under SFPT like the Chinese insurgents on Taiwan cession. In Recognition of Governments in International Law: With Particular Reference to Governments In Exile, Stefan Talmon has uniquely cited the 1945 civil affairs agreement with the formerly United Nations-recognized exiled French government for the civil administration of French North Africa under the supreme authority of General Eisenhower. Normally, USMG will sign their civil affairs agreements to avoid any legal condition of belligerent occupation for any liberated territory, but it is not so extraordinary for formerly United Nations recognized, governments-in-exile to also conduct the civil affairs administration of a "separate customs territory" that was liberated under the paramount authority of USMG. Or even was a former enemy territory ceded by the SFPT. Such is Grotian agency.

The Grotian law of agency is described by Hugo Grotius' On Laws of War and Peace (1625). Grotian agency is for both domestic federal agencies (1901) or co-belligerents of USMG. The co-belligerent is an ally or insurgency under paramount authority of USMG during war or hostilities, and this Grotian agency is found in FM 41-10 Civil Affairs Operations (1993) for civil administration of enemy and friendly territory. For acquisition of sovereignty under the international legal principle of conquest, the administrative authority of USMG originates with belligerent occupation of an enemy territory. Administrative authority is the civil and military power to govern a territory under Law of Occupation. The civil powers are the executive, legislative, and judicial powers plus the military powers combined into administrative authority and this is exercised by a right of kings under international law to conquer and govern territory. Civil administration is a term often used to denote the legal exercise of civil powers of administrative authority by various countries in the American drafting of documents. Despite the implied civilian aspects of it, civil administration or administrative authority does not require civilians to be the governors of territory. It is a legal form of martial law (Law of Recognition) for occupied territory or insular areas under USMG (FM 27-10, Par. 12). As a federal government agency of a constitutional republic, USMG legally wears the king’s crown under international law of war in the US constitutional exercises of administrative authority derived from the law of occupation. This USMG exercise is a major concentration of power by the executive branch without any separation of powers really occurring within administrative authority. Judicial administrative authority really means the local colonial/territorial courts or military commissions (Par. 13) are executive branch functionaries, not even a legal part of the Supreme Court and lower courts under the US Constitution. Separation of powers occurs at a higher level upon any appeal to a federal district court of US Constitution Art. 3 judicial branch. Unless officially incorporated into the distant motherland, administrative authority very often continues as the sole legal mechanism for the territorial governance of a colony after surrender of sovereignty by another country.

Invasion and occupation of territory cannot be disguised as proxy-occupation. In 1931, Japan invaded Manchuria and set up a puppet-state called Manchukuo. While the Japanese had effective control of Chinese territory, the sovereignty of it could not be relinguished by a process of proxy-occupation. FM 27-10, Par. 366). The Japanese failed to gain the surrender of Chinese sovereignty under a peace treaty. So official or dejure sovereignty remained with the Chinese government and the Manchurian proxies were agents of Japan. The Germans attempted to utilize Vichy France to govern by proxy the southern two-thirds of France while only officially occupying Paris and the northern third of France. The Republic of Hawaii was established in 1899 after American expatriates conspired and later removed the Hawaiian monarchy with direct assistance of the US Military. While the Kingdom of Hawaii ceased to exist, the Hawaiian republic was established by independent actors. When they tried to join with the USA right after the formation of their republic, it was the US President who rejected their application in order to establish a three year cooling off period. The international community was given ample time to raise objections to the “puppet-state” and proxy-occupation by the USA. The cooling off period established a legal arms length distance between the USA and these proxies. However, the muted voices of global objections were not sufficiently raised, and the Republic of Hawaii was later annexed by the USA a few years after little diplomatic fallout. The events of 1949 would have been proxy-occupation if the SFPT had not been signed by Japan, and USMG had not taken steps to facilitate the ROC on Taiwan. While the technicality of cession but no receiving country avoided a condition of proxy-occupation, it created a legal condition of insular area. This differed from the occupation of West Berlin from 1945-91 because it remained belligerent occupation (albeit a passive occupation by the USA) allowing the West Germans to conduct civil administration of the American Sector (US v. Tiede, 1979). The Truman Statement of 1950 disavows any grand designs on Taiwan, and the USA made great diplomatic attempts to neutralize the Taiwan Straits and to legally avoid invasion of Chinese territory (Kinmen and Matsu), the USA remains the key sponsoring state of the exiled Chinese government on Taiwan. It is ultimately most responsible for the heinous acts perpetrated under USMG in 1947 including the White Terror. It is a crime of war to deny right of the Occupied territory, and it is constitutional crime to deny civil rights of insular areas after the SFPT cession and the Insular Cases of 1900 (Downes v. Bidwell). The USA has painted itself into a legal corner because of SFPT and Insular Cases, and it cannot hide behind a strategic ambiguity of their foreign policy powers under the US Constitution.

 During the occupation of Formosa (1945-52), the sovereignty of Japan was displaced by USMG as the principle occupational authority. However, all the native inhabitants of Formosa and the Pescadores were still Japanese nationals until the 1952 cession by peace treaty when Japan lost this specific dependent territory. Occupation of modern Japan ceased in September 1951 but administrative authority of USMG occupation for Art. 2(b) cessions continued until April 28, 1952. Administrative authority still continues even after the cession by peace treaty, but the Japanese sovereignty is terminated, and it will pass to the next country taking over the formerly occupied territory. Colonies are often created by this treaty process of transfer and the next receiving country frequently just continues to use its administrative authority to so govern these formerly occupied territories. If USMG is a signatory or legal party, then cession by peace treaty creates an insular area under the Insular Cases of 1900. The former US trust territories were legal creatures of SFPT administrative authority but the international legal principle of conquest was temporarily disabled by the UN Charter insertion of the right of self-determination into the scheme. Today, the US Commonwealth of the Northern Mariana Islands (CNMI) remains a legal creature of the continuing SFPT administrative authority, but CNMI sovereignty was legally transferred to the USA in 1986; but only after their 1976 referendum of self-determination. There was a temporary period of SFPT administrative authority (1952-86) when CNMI sovereignty was truly held in trust by the USA. Because the United Nations lacks international legal personality, the CNMI was part of the US Trust Territory (TTPI) under international supervision by the UN Trusteeship Council. Before the global advent of "trust territories" in the 20th century, American legal practices introduced the temporary condition of a treaty cession held in trust and such directly applied to Cuba from 1898-1902 . Because of a Chinese exiled government seated in the UN Security Council and the ROC on Taiwan after 1949, the USMG applied an alternative method of "quasi-trusteeship" under SFPT Art. 2(b) following the 1950 Truman Statement. The "ROC on Taiwan" is a legal creature of USMG administrative authority under SFPT.

The Digest of International Law (1963) by Marjorie Whiteman (Office of the Legal Advisor, US State Dept.) has ample citations for the inter-connectivity of international law and municipal law (domestic law). More recent examples include the Panama Canal Act which was a part of the implementation of the Panama Canal Treaty of 1977. (Until the 1999 handover to Panama, the insular area specifically covered by the Panama Canal Act also shared Title 22 Foreign Affairs of the US Code with the Taiwan Relations Act.) Another example of inter-connectivity is a direct legal relationship of the 1898 Treaty of Paris and any subsequent domestic legislation like an organic act. The old Tydings-McDuffie Act has numerous yardsticks to measure the Taiwan Relations Act in order to determine if it is a "virtual organic act" of SFPT. The former US Trust Territory of the Pacific Islands (TTPI) also had the unique case of Okinawa cession for the residual sovereignty of Japan after 1952, and the civil administration of it by a successor military agency to USMG after SFPT (FM 27-10, Par. 354). US Civil Administration of the Ryukyu Islands (USCAR) was officially organized by President Eisenhower under a 1957 Executive Order for the civil affairs administration of Okinawa cession from 1952-72 by a military agency. The use of "civil administration" refers to the administrative authority in SFPT while "civil affairs administration" refers to civil administration by USMG or USCAR in legal accordance with civil affairs regulations for normal situations of military occupation and related civil affairs activities. Executive Order 10713 included the USCAR uses of "dual courts" or US Military Commissions for occupational governments under the civil affairs regulations. However, this post-occupation situation was a civil affairs administration of friendly territory because of SFPT cession of Okinawa that concluded with a later reversion to Japan in 1972 (Nixon-Sato Communique of 1969). As a part of the TTPI, the Okinawa cession held a referendum on self-determination as part of the legal organization of any US trust territory under the UN Charter. The TTPI differs from other forms of insular areas but was preceded by the Cuban cession of 1898 Treaty of Paris (as held in trust by USMG in Neely v. Henkel and Teller Resolution).

The Insular Cases most applicable to the Taiwan interim status are Downes v. Bidwell and Neely v. Henkel; especially for determining the insular law applicability of the US judicial doctrine of unincorporated territory (Art. 9, Treaty of Paris). There are a number of yardsticks of "US self-governing dominion" found in Tydings-McDuffie Act that are shared with the TRA (eg. INA 202(b) Rules of Chargeability and exclusion as "aliens" of insular areas; US Consular office to issue visas to the US mainland; notary authorizations and US Citizen Services; US domestic law relationship to peace treaty cession). This is the interim framework of the 1934 organic act for that US Commonwealth Constitution. No two forms of organized and unorganized territory are identical in the history of the US Insular Cases. These TRA "treaty-making powers" under the TRA treaty clauses and international organization clauses reflect the clear opportunity to exercise the commercial treaty-making powers (WTO; or US-ROC Treaty of Friendship, Commerce, and Navigation for bilateral trade and intellectual property rights) but the Taiwan governing authorities cannot unilaterally change their political status in SFPT, a political treaty. The treaty-making powers of a Chinese exiled government are limited if it is not the government in control of the Asian mainland territory of the Chinese state. But these limited treaty-making powers under legal circumstances of civil affairs administration by a formerly recognized exiled government historically resembles the sui generis status of British Dominions under Crown administrative authority of the 1927 Statute of Westminister. The British Dominions were able to exercise commercial treaty-making powers for their own separate customs territories but could not exercise political treaty-making powers until reaching their juridical maturations after WWII. The gradual evolutionary status of the UK Crown Colony of Hong Kong and its WTO accension in 1986 into a virtual "British Dominion" after 1997 reversion to China has been expounded upon in One Country, Two International Legal Personalities: The Case of Hong Kong by Roda Mushkat. Ms. Mushkat is the former Chairwoman of the Law Department at Hong Kong University. As the legal creature of 1898 Treaty of Paris administrative authority, the US Commonwealth of the Philippines achieved juridical maturation in 1946 when it was replaced by a Filipino republic, separate from the American republic. Three separate republics in free-association were formed from the TTPI after 1986, and the Cuban cession created a separate republic after the 1902 Platt Amendment for a Cuban protecturate. To date, there has been nothing like international legal personality for any insular law creatures of administrative authority in the American experience. Past and current insular areas with international legal personalities have been separate republics and not creatures of administrative authority, but like the sui generis case of Hong Kong, there have been foreign state equivalents subject to US administrative authority like the Cuban cession under Neely v. Henkel, US Commonwealth of the Philippines or the US Trust Territory. Such insular areas were excluded from being treated as dependent territories like Puerto Rico, CNMI, Guam, or a UK Crown Colony. These "excluded areas" were subject to administrative authority of USMG and were ceded by peace treaty into a situation of quasi-trusteeship.

Effectively remaining under the international legal personality of the American republic because of the legal continuity of US administrative authority was a major juridical impairment of these foreign state equivalents until the subsequent legal formation of their own separate juridical identities. As a Crown Colony in WTO, Hong Kong was a creature of British administrative authority and as it was non-metropolitian territory, it was legally separated from the metropolitan territory of the British Isles. After the 1997 handover to China, Hong Kong SAR was reclassified as a special autonomous region of Chinese metropolitan territory. This PRC incorporation of Hong Kong into China proper remains a major impediment to the future formation of international legal personality, despite the foreign state equivalency of other non-metropolitan areas under administrative authority of other countries. Portugal first began to incorporate overseas territory into its metropolitan territory in 1566 including full Portuguese citizenship, but this status was deemed cloaked colonialism when India invaded Goa in 1961. In the 1975 case of East Timor, the 1997 Portuguese Constitution held the dejure sovereignty of the territory (Art. 293 granted right of self-determination) but then its territory was still effectively controlled by Indonesian occupation until 1999. This unique legal condition of split sovereignty (dejure sovereignty versus effective control) is a dirty trick of the Law of Recognition utilized for impeding the international legal personality. Recognition of any government-in-exile is a foreign policy instrument of the sponsoring state often for promotion of foreign policy objectives of the sponsoring or "recognizing state." Despite the US and international recognition of the CCP belligerents during the Chinese Civil War, their use of an international public law tactic of split sovereignty and juridical impairment was fundamental in the US recognition (e.g. sponsoring state) of the ROC exiled government in lieu of the PRC until the 1979 Shanghai Communique. Under Art. 292 of the Portuguese Constitution, the 1999 handover of Macau was based upon a split sovereignty model of "Chinese territory under Portuguese administration." Self-determination was not granted in 1997 by the UK nor in 1999 by Portugal because of PRC objections. The rights of Chinese inhabitants of these SARs were passed over solely because of their own ethnicity and Chinese chauvinism of the PRC. The USMG is holding the dejure sovereignty of Taiwan cession in trust of SFPT while effective control of Taiwan is still exercised by the exiled ROC on Taiwan. In SFPT terminology, the Chinese exiled government on Taiwan cession are conducting the civil affairs administration of a (liberated) separate customs territory under the paramount authority of USMG. In light of the One China policy of the US-PRC "civil affairs agreement" (1972 Shanghai Communique) of SFPT becoming the bilateral diplomatic formula to ending a legal condition of war in 1979 Shanghai Communique, the legal formation of any international legal personality by an "exiled government on Taiwan separate customs territory" is metaphorically like being blocked by two mountains of USA and PRC. The two former "belligerents" using non-hostile relations of the Laws of War ended their official state of belligerency between themselves and used their "One China" formula of SFPT as the central basis of establishing diplomatic relations. The futility of Montevideo Games by the Taiwan independence movement lies in it forgets contravening a recognition formula potentially means a legal breaking of US-PRC diplomatic relations and returning to non-hostile relations between belligerents. In the legal absence of their diplomatic relations, there are still relations between belligerents under those Laws of War which are also the law-making treaties controlling the international legal framework of the SFPT. The trilateral relationship seesaws between proponents of One China policy and supporters of the TRA but the policy cycle of infatuation and disgust with Sino-American relations is modulated by the legal triad of SFPT, civil affairs agreement, and municipal law.

The bilateral peace treaty clause in SFPT Art. 23 is perhaps the first origins of the TRA commercial treaty-making powers. The bilateral Treaty of Taipei (Art. 10) was SFPT modification of the customary law of interim status for island inhabitants as found in Art. 9, Treaty of Paris of 1898 and Art. 5, Treaty of Shimonoseki of 1895. That 1952 bilateral peace treaty was abrogated by the Japanese in 1972. However, this Japanese abrogation of Treaty of Taipei (Art. 10) was done under SFPT Art. 4(b) military directive by USMG for Art. 2(b) cessions of Formosa and the Pescadores. The SFPT abrogation by US Military Government is part of a civil affairs agreement (e.g. 1972 Shanghai Communique) of SFPT that was signed with the PRC under Laws of War for the "non-hostile relations between belligerents". The 1979 abrogation of the US-ROC Mutual Defense Treaty (Art. 6, effective control by ROC under USMG), was part of the treaty-making power issue in Goldwater v. Carter, 1979. The US Supreme Court did not review any actions taken by the Commander-in-Chief with respects to Taiwan cession under SFPT administrative authority and these treaty-making powers are still open to judicial review under the political question doctrine. Under the US Constitution, the US Customs Territory is the 50 states described by the "uniform tariff clause" but the law of occupation created "separate customs territories" by USMG that were separated from the "uniform tariff clause" (Downes v. Bidwell). Thus so was created "separate customs territories under USMG" for constitutionally defining unincorporated territory upon peace treaty cession. Following WTO membership in 2001, the "independent or autonomous separate customs territory" of Taiwan is still under USMG. International public law is very interconnected for the WTO or Laws of War.

Under Art. 9, Treaty of Paris, are "undefined" civil rights of Cuban natives (1898-1902) applicable to the "undefined" human rights clause of the Taiwan Relations Act?

Is there any form of insular status of Taiwan cession under the San Francisco Peace Treaty?

The political futures of One China or a Taiwan republic after SFPT interim status are not predetermined by the US Supreme Court's Insular Cases of 1900 and American insular affairs conceptualizations of any unincorporated territory. Ultimately, judicial doctrine bolsters the arguments by many for Taiwanese self-determination while also protecting them against the further denial of civil rights for the last 50 years. This ironclad protection against wannabe Kissengers and machpolitiks comes in the form of "undefined" civil rights protections of 1900 which are still inalienably applicable to Taiwan cession under interim status of SFPT administrative authority. Meanwhile, Taiwan interim status continues to act like any British Dominions for WTO or WHA membership before achieving international legal personality or reunification. Free exercise of the decolonialization right of self-determination has proven thus far too difficult because it amounts to unilaterally altering the status of Taiwan outside of the statusquo boundaries of One China policy. The sociology of racial discrimination in the denial of civil rights to Formosa native inhabitants by American policy makers is not explored by the legal researchers but strategic ambiguity has no moral justification for the denial of such rights to the people of Taiwan under SFPT, One China, TRA, and Downes v. Bidwell. Even landmark court cases over a hundred years old took a very dim view of racial prejudice when it defined the basic civil rights for native inhabitants under Art. 9, Treaty of Paris. The people of Taiwan are secure in the knowledge that they have civil rights and it is feasible and desirable to remove the exiled Chinese government from the legal equation of SFPT interim status, if done within the insular affairs framework of TRA (organic law) and One China policy (civil affairs agreement). In light of the anti-successionist law recently passed by the PRC, the inter-connectivity of it with the Laws of War bodes poorly for Taiwan cession in the absence of SFPT legal solutions. The PRC did not sign SFPT, but USMG did. In who do you trust?