Flowchart Analysis of the Transfer of Sovereignty and the Road to Self-Autonomy

Major References   

(1)   Vattel’s “The Law of Nations?  (published 1758)





(2)   Grotius   “On the Law of War and Peace"   (published 1625)  






(3) Military Government and Martial Law, by William E. Birkhimer, 3rd edition, 1914


Judge Advocates Association, National Bar Association Dedicated to Military and Veterans Law

Uniform Code of Military Justice (UCMJ)


(4) The Law of Land Warfare, US Army Field Manual 27-10, US Department of the Army, (1st edition, October 1, 1940)


The US Supreme Court has stated that FM 27-10 contains the laws of war recognized by the United States.  

FM 27-10 has been periodically updated.


(5) The doctrine of “unincorporated territory?arises from a concurring opinion of Supreme Court Justice Edward Douglass White
in Downes v. Bidwell (1901).

(6) San Francisco Peace Treaty, September 8, 1951 (signed); April 28, 1952 (entered into force)   


    Treaty of Paris, December 10, 1898  (signed); February 6, 1899 (entered into force)   


     Treaty of Taipei, April 28, 1952 (signed); August 5, 1952 (entered into force)


(7) FM 27-10, paragraph 358:  Occupation does not transfer sovereignty. 

      International Committee of the Red Cross (ICRC) Report:  Occupation does not imply sovereignty over a territory.

      Frequently Asked Questions on Occupation (FAQ)

(8) US Supreme Court cases  

Ex parte Milligan (1866)



                    The Insular Cases total twenty-three cases in number, covering the period of 1901 to 1922.  Some of the most important are:

Downes v. Bidwell (1901) 


  Neely v. Henkel (1901)    


  DeLima v. Bidwell (1901)


  Fourteen Diamond Rings v. United States (1901)


        Dorr v. United States (1904)


        Pearcy v. Stranahan (1907)


        Balzac v. Porto Rico (1922)


The vitality of the Insular Cases has been questioned by some Justices.  In particular, note Reid v. Covert, 354 U.S. 1, 14 (1957) (the plurality opinion) and  Torres v. Puerto Rico, 442 U.S. 465, 474, 475 (1979) (the concurring opinion of four Justices), but there is no doubt the Supreme Court adheres to it.  See United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Harris v. Rosario, 446 U.S. 651 (1980), and the developing case-law which continues to use the Insular Cases as the proper analysis.  The basic principle -- that territories ruled by the U.S. are constitutionally distinct from the U.S. itself -- has not changed.


(9) FM 27-10, paragraph 12:  Military Government and Martial Law Distinguished

In the practice of the United States, military government is the form of administration which may be established and maintained for the government of areas of the following types that have been subjected to military occupation:

a. Enemy territory.

b. Allied territory recovered from enemy occupation, when that territory has not been made the subject of a civil affairs agreement .

c. Other territory liberated from the enemy, such as neutral territory and areas unlawfully incorporated by the enemy into its own territory, when that territory has not been made the subject of a civil affairs agreement.

d. Domestic territory recovered from rebels treated as belligerents.

Although military government is an accepted concept in the law of the United States, the limits placed upon its exercise are prescribed by the international law of belligerent occupation. Other countries exercise jurisdiction in occupied areas through types of administration analogous to military government even though they may be designated by other names.


In the United States, martial law is the temporary government of the civil population of domestic territory through the military forces, without the authority of written law, as necessity may require. The most prominent distinction between military government, as that term is used herein, and martial law is that the former is generally exercised in the territory of, or territory formerly occupied by, a hostile belligerent and is subject to restraints imposed by the international law of belligerent occupation, while the latter is invoked only in domestic territory, the local government and inhabitants of which are not treated or recognized as belligerents, and is governed solely by the domestic law of the United States.


So far as the United States forces are concerned, military government and martial law are exercised by the military commander under the direction of the President, as Commander in Chief of the Armed Forces.  

(10) FM 27-10, paragraph 13:  Military Jurisdiction

Military jurisdiction is of two kinds: first, that which is conferred by that branch of a country's municipal law which regulates its military establishment; second, that which is derived from international law, including the law of war.

In the Army of the United States, military jurisdiction is exercised through the following military tribunals:

a. Courts-martial.

b. Military commissions.

c. Provost courts.

d. Other military tribunals.


While general courts-martial have concurrent jurisdiction with military commissions, provost courts, and other types of military tribunals to try any offender who by the law of war is subject to trial by military tribunals (UCMJ, art. 18), it has generally been held that military commissions and similar tribunals have no jurisdiction of such purely military offenses specified in the Uniform Code of Military Justice as are expressly made punishable by sentence of court-martial (except where the military commission is also given express statutory authority over the offense (UCMJ, arts. 104, 106). In practice, offenders who are not subject to the Uniform Code of Military Justice but who by the law of war are subject to trial by military tribunals, are tried by military commissions, provost courts, or other forms of military tribunals.


In areas occupied by United States forces, military jurisdiction over individuals, other than members of the Armed Forces, who are charged with violating legislation or orders of the occupant is usually exercised by military government courts. Although sometimes designated by other names, these tribunals are actually military commissions. They sit in and for the occupied area and thus exercise their jurisdiction on a territorial basis.


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