The Montevideo Convention and Military Occupation 

Scenarios 4 to 6


Scenario 4.

Hypothetical situation -- a summary: Brazil was a co-belligerent with the United States in the Spanish American War, and was delegated the occupation of Cuba. Ignoring the law of occupation, it annexed Cuba. 

Details: Suppose that Brazil had been a co-belligerent with the United States in the Spanish American War, and the administrative authority for the occupation of Cuba had been delegated to Brazil. The Brazilian representatives told the principal occupying power that it would take full charge of the surrender ceremonies of July 1898 as well. Unfortunately, when the Brazilian representatives accepted the surrender of the Spanish troops, they immediately raised the Brazilian flag, and announced that Cuba was being annexed as a new province of Brazil. 

Note 1: It is important to understand that the legal structure remains the same even though the Brazilian representatives accepted the surrender of the enemy troops. The Spanish American War involved many areas of the Caribbean. Since Brazil is exercising delegated administrative authority for the occupation of Cuba, it is a "junior partner in the occupation." Hence, Brazil has two statuses at this point: 1. It is the legally recognized government (i.e. "juridical person") of Brazil. 2. It is a junior partner in the occupation of Cuba. These two statuses should not be considered one and the same. 

Note 2: With the Brazilian flag flying over Cuba, many casual observers will assume that Cuba has been fully annexed as a new state of Brazil. Clearly, in this scenario the Brazilian military has not taken into account the wishes of the Cuban people, while additionally violating the international law precept that "military occupation does not transfer sovereignty," so we can conclude that Cuba is being governed illegally. Under such a scenario, Cuba obviously does not attain independence at any point of B1 to B8, and Point C (i.e. "final status") will probably not be reached without high powered diplomatic intervention.

Belligerent Occupation

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. 


Scenario 5.

Hypothetical situation - a summary: The Philippine Army attacks the island of Borneo without provocation, seizing the tiny country of Brunei..  An international peace conference is held, and the peace treaty specifies that the Philippine Island of Palawan is ceded to Brunei in perpetuity as war reparations.  Years later, well-armed local Indonesian insurgents overthrow the Indonesian government in a military coup, imprison the government officials, and then invade the southern Philippines. The United States enters the war. After the surrender of Indonesian troops, the occupation of Palawan Island is delegated to Malaysia. Ignoring the law of occupation, it annexes Palawan. The government of Malaysia falls in a revolution, and the original government leaders flee to Palawan.

Details: Suppose that disaffected elements of the Philippine Army have launched an adventurous foray into northern Borneo, inflicting much damage and seizing the tiny country of Brunei. A peace conference is held in the Japanese city of Yamaguchi, and for war reparations the Treaty of Yamaguchi specifies that the island of Palawan is ceded to Brunei in perpetuity and full sovereignty. 

Some 25 years later, well-armed rebel groups from Indonesia overthrow the Indonesian government, and then expand their influence by invading the southern Philippines, while making sporadic attacks against costal towns in eastern and western Malaysia, as well as southern Thailand. ASEAN asks for United States assistance in the expanding conflict, and the US enters this Indo-Philippine War. Malaysia joins as a co-belligerent with the United States in battles throughout the Southeast Asian region. After the termination of hostilities, the administrative authority for the occupation of Palawan Island is delegated to Malaysia. 

When the Malaysian representatives accept the surrender of the Indonesian troops in Palawan, they immediately raise the Malaysian flag, and announce that Palawan Island is being annexed as a new state of Malaysia. This creates a diplomatic problem for the other ASEAN member nations and the United States. A large Indonesian community is already established in Palawan, and hope the island can be ceded to Indonesia, but Philippine nationalists demand it be returned to the Philippines. Brunei offers to give up the sovereignty of Palawan in exchange for oil exploration rights in the southern Philippines. 

However, in the next few years there is a revolution in Malaysia, and a new government is founded. The government officials and military officers of the original "Republic of Malaysia" all flee to Palawan Island, all the while still claiming to be the legitimate government of Malaysia. Indeed, this "Republic of Malaysia" still maintains formal diplomatic relations with many countries. In the terms of the Seattle Peace Treaty, Brunei renounces sovereignty over Palawan, but the "new owner" is not specified. 

Some 25 years later the United States breaks relations with the Republic of Malaysia on Palawan Island, the Congress passes a "Palawan Relations Act" (PRA), and formal diplomatic relations are established with the New Malaysian Federation (NMF). An detailed overview of this situation via the flowchart analysis for the transfer of sovereignty is given herewith. 

 

The Republic of Malaysia on Palawan Island

 (a imaginary case-study done in the hypothetical year of 2105)

Flowchart Analysis of the Transfer of Sovereignty

and the Road to Self-Autonomy

BASED ON THE LAW OF NATIONS  

  Indo-Philippine War Ends

 

Surrender by Indonesian Forces on Palawan: October 25, 2045  

(Cession by Conquest.)  

Beginning of Belligerent Occupation

As junior partners in the occupation of territories in the Asian theatre, Republic of Malaysia (ROM) military forces accept surrender of Indonesian forces in Palawan. United States Military Government (USMG) is the principal occupying power.  

US Supreme Court, Ex
parte Milligan (1866) defines the authority for the establishment of USMG.

This step has been completed.

Palawan qualifies as an "independent customs territory"

  Point A 

Seattle Peace Treaty, September 8, 2051  

Article 2b

Brunei renounces all right, title and claim to  Palawan Island.

 

Article 4b 

Brunei recognizes the validity of dispositions of property of Brunei and Brunei 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. 

 

Article 23 

. . . . . including the United States of America as the principal occupying Power, . . . . .

 

(US Senate ratification: April 28, 2052)

(Cession by Treaty.)  The Seattle Peace Treaty is the highest ranking international agreement regarding  the disposition of the "ownership" of the territorial cession of Palawan.  

name: Palawan cession


This Insular Law (Colonial) status is also called “Interim Status.” 

 

According to the Insular Cases of the US Supreme Court, where USMG is the principal occupational authority, cession by treaty is “US unincorporated territory” by default.

 

The Seattle Peace Treaty and FM 27-10 define “island citizens” and USA citizens. All others, including NMF nationals, are aliens.

This step has been completed.

Palawan qualifies as "unincorporated territory under USMG" and
a "foreign state equivalent"

  Point B1 

 

Beginning of Friendly Occupation, April 28, 2052.

Civil Affairs Administration of a Military Government, which is USMG.

This step has been completed.

  Point B2 

 

Appointment of US Nationality Military Governor or civilian High Commissioner. 

The US nationality Military Governor or civilian High Commissioner oversees the Civil Affairs Administration.

This step has not been completed.

  Point B3 

 

Adoption of a flag and flag etiquette by “island citizens”.

The flag in use on Palawan is the flag of the ROM,  and was brought over from the Malaysia during the Malaysian Civil War period. Hence no flag which serves as a symbol of the autonomous area currently exists.

This step has not been completed.

  Point B4 

 

Constitutional Convention by ”island citizens”.  

Constitution promulgated.

 

The Constitution currently in use in Palawan was promulgated on December 25, 2047, by the Republic of Malaysia in Kuala Lumpur, and designed for use in Malaysia. Hence, no organic law for Palawan currently exists.

This step has not been completed.

Palawan fits the description of  "unorganized territory"

  Point B5 

 

Election of President by “island citizens”.  

Election of Representatives (Legislature) by “island citizens”.  

Executive Branch organized by representatives of the “island citizens”.  

Judiciary organized by representatives of the “island citizens”.

 

Popular elections for President and Legislators in Palawan were first held in the early 2090's.

This step has been completed.

  Point B6 

 

Scenario Formulation for Autonomy

(1) Commonwealth, FAS, etc. of the United States

(2) Republic of Palawan

(3) Self Autonomous Region of the New Malaysian Federation

(4) etc.

All options are open for future finalization of status are open. 

This step has been completed.

  Point B7 

 

Choice of Scenario Formulation or Goal of Final Status

SAR of the New Malaysian Federation.

 

In the Sarawak Communique, the President of the United States, the Secretary of State, and the NMF authorities determined that Palawan is to be a part of the New Malaysian Federation (NMF). 

This step has been completed, but not yet implemented.

Palawan's current status-quo remains as an "undetermined cession"

  Point B8 

 

End of USMG occupation by proclamation. 

Military government continues until legally supplanted. In the case of Palawan, no record of such a proclamation can be found.

This step has not been completed.

  Point C 


Confirmation of Autonomy

variable   determination  
 defined territory   Yes   
 permanent population   Yes   
 government   Yes   
 independence for action,  capacity to enter into relations with other states   Yes   



According to the Montevideo Convention, the Republic of Malaysia in Palawan is an independent sovereign state. However, a number of contradictions immediately arise. From the point of view of democratic development, of course we see that the wishes of the Palawan people have not been taken into account. Moreover, the principle that "military occupation does not transfer sovereignty" has been violated.

Under the four criteria of the Montevideo Convention, Article 1, many international legal scholars will argue that the Republic of Malaysia is indeed an independent sovereign state, and is acting in accordance with legal principles. Other scholars, and indeed many local residents, will conclude that the Republic of Malaysia has imposed an illegal government on Palawan. 

Refering to the Flowchart Analysis presented above, it is seen that Palawan should be flying the USA flag, and the Palawan people should be carrying "US national non-citizen" passports, as well as enjoying fundamental rights under the US Constitution. This confirms the analysis that the Republic of Malaysia has imposed an illegal government on Palawan.

The author maintains that under such a hypothetical scenario, the correct formulation is to say that the Republic of Malaysia in Palawan is a "foreign state equivalent" under international law, and not an independent sovereign state. This foreign state equivalency status is a simple way of looking at its true position as unincorporated territory under USMG.  

In any event, as noted at the beginning of this website, the current formulation of the Montevideo Convention, Article 1, is inadequate to correctly delineate such complex situations arising under military occupation.  

The true facts of the Palawan status are as follows:

Conclusion as of April 28, 2105
  Name: Palawan Cession
  International Law Determination: Unincorporated territory under USMG
  Cession Day: April 28
  Nationality of Populace: Island Citizens (may also be called "domestic aliens" or "PRA aliens" from the US perspective)
  Status: Interim Status (US unincorporated territory)
  Allegiance of Island Citizens during Interim Status: USA
  Flag of the Interim Status: Flag of the USA
  National Anthem of the Final Status: "Star Spangled Banner" or "God Bless America"
  Romanization (orthography): abc's
  Weights & Measures: Metric System
  Constitution: USA Constitution ("fundamental rights")
  Income Tax Liability: to Palawan governing authorities (no USA Federal Income Tax Liability)
  

Stability Index (100 year timeline): Medium Stability

Expected date to achieve final status: 2152 




Scenario 6. 

Hypothetical situation - a summary: This scenario adds additional political intrigue to Scenario 5. Before the end of the Indo-Philippine War, Malaysia participates in several international conferences at which it is announced that Palawan is actually a long lost part of Malaysia. 

Details: Starting with Scenario 5, it may be further supposed that the Malaysian government, along with representatives of a number of Middle Eastern governments, held an international conference in a major world city early in the Indo-Philippine War. A formal announcement is made at the end of the Conference, and among other things it is claimed that Palawan Island was historically part of Malaysia, and it is imperative that it be returned to Malaysia at an early date. If this conference were held at Istanbul, this announcement, which is in fact just a press release, might conveniently be called the "Istanbul Declaration." 

Later on, near the end of the Indo-Philippine War, another international conference may be held. If this conference were held at Zurich, this announcement, which is in fact just a press release, might conveniently be called the "Zurich Proclamation." Among other things it will stress that "the terms of the Istanbul Declaration shall be carried out." 

More weight can be added if a sentence in the surrender documents can be added to the effect that the Indonesian government promises that it will faithfully fulfill the obligations laid down in the Zurich Proclamation.

Legally speaking, such declarations and proclamations don't affect the legal reality of the situation at all, since the final arrangements for the transfer of Palawan sovereignty must be specified in a peace treaty.  However, these maneuverings will certainly confuse and confound the casual observer who does not have a double Ph.D. in territorial cession law and the law of war. 

Preceding forward with the necessary historical revisions into order to implement this political agenda, the Malaysian school textbooks will be revised to stress that Palawan Island is an inalienable part of Malaysia. A sample textbook entry is provided herewith.

All the facts and laws about Palawan prove that Palawan is an inalienable part of Malaysian territory. History shows that Indonesia launched an all-out war of aggression against the Philippines. The Malaysian government issued the Proclamation of Malaysia's Declaration of War Against Indonesia, in accordance with the consensus reached by the ASEAN states, announcing to the world that all treaties, agreements and contracts concerning Malaysian, Indonesian, and Philippine relations had been abrogated, and that Malaysia would recover Palawan. The Istanbul Declaration was issued by a group of leading world governments, stipulating that Indonesia should return to Malaysia all the territories it had stolen in ages past. The Zurich Proclamation, assented to by a group of leading world governments, stipulated that "The terms of the Istanbul Declaration shall be carried out." At the close of the Indo-Philippine War, Indonesia declared surrender and promised in its instrument of surrender that it would faithfully fulfill the obligations laid down in the Zurich Proclamation. On October 25, 2045, the Malaysian government recovered Palawan Island and all subsidiary islands nearby, resuming the exercise of sovereignty over Palawan Province.

This has turned the illegal annexation of Palawan into a very complicated political affair, with layers upon layers of carefully elaborated pseudo-legally binding decrees and assertions, the totality of which will completely confuse most observers, including international legal experts at leading universities. In fact, the correct legal analysis of this Scenario is no different from that of Scenario 5.