The Montevideo Convention and Military Occupation

Proposed Solution to the Inadequacy of the Montevideo Convention, Article 1 

The author hereby offers the following solution to some of the problems mentioned above, all of which arise from the inadequacy of the Montevideo Convention, Article 1, in its present form.

It is seen that we are often confused in many circumstances, and the reason is because the details we gather from a cursory observation and assume to be true do not match the precise legal reality

So, first, in the formulation of the Montevideo Convention, Article 1, we need to consider both defacto and dejure elements. In order to do this, the current four criteria should be expanded to eight. 

Second, some comments on "prescription" must be made. What is PRESCRIPTION?

Prescription  is the manner of acquiring property by a long, honest, and uninterrupted possession or use during a lengthy period, where all previous claimants are unknown, or have totally abandoned the area.   The possession must have been long, continued, peaceable, and without lawful interruption, or as stated in Latin: possessio longa, continua, et pacifica, nec sit ligitima interruptio. Typically, countries which claim possession of their own territory via prescription can trace their property rights back before the time of legal memory, and/or to a point where ownership is asserted where no previous property rights were ever formally established. 

The modern concept of "statehood" arose in the first half of the 1800's. As such, it is fair to say that he days of prescription are over. 

At the present time, in dealing with the formation of new states on pre-existing territory, there needs to be a formal procedure for the transfer of ownership. More precisely, since "statehood" in the modern sense is recognized as a "person of international law," there must be a recognition of the coming into being of the "juridical person". Hence, a ninth criteria, "the transfer or formation of the juridical person" must be added to complete the analysis.

The author has immodestly chosen the nomenclature of the Hartzellian extrapolation to designate the expansion of the Montevideo Convention, Article 1, from four elements into nine. 

Of the five scenarios presented above, Scenario 5 is the most complex. Scenario 6 merely adds additional layers of political maneuvering to Scenario 5. 

The author hereby adds the Hartzellian extrapolation to arrive at the following analysis at of Scenario 5 at Point B7.


Confirmation of Autonomy
  variable   defacto   dejure
 defined territory   Yes   Yes
 permanent population   Yes   Yes
 government   Yes   Yes
 independence for action, capacity to enter into relations with other states   Yes   No
Transfer or formation of juridical person: No

Some readers may be perplexed by the determination of the "independence for action, capacity to enter into relations with the other states" variable on the dejure side as being No. However, this follows directly from the fact that the Republic of Malaysia (ROM) government is exercising delegated administrative authority for the occupation. The foreign relations of this geographical area, i.e. Palawan, are most properly the concern of the principal occupying power. In this example, the principal occupying power is the United States Military Government (USMG). 

From the point of view of the US State Department, the Republic of Malaysia on Palawan Island represents a major diplomatic mess. In this hypothetical example, the new government in Malaysia is called the New Malaysian Federation (NMF). After the revolution, when the NMF is founded in Malaysia, the United States will of course want to establish diplomatic relations, but it will be burdened by the fact that it officially recognizes the ROM, which has now fled to Palawan Island and is effectively a government in exile. (Of course, the ROM officials all vehemently deny this fact, and vociferously maintain that they are the legal government of Malaysia, while at the same time claiming that their national territory has "shrunk.") After so many years, it will be difficult for the USMG to reassert its proper position in Palawan without a great loss of face to the ROM officials, hence the USMG may just walk away from the occupation. In other words the end of military government will never be announced. 

In order to deal with this diplomatic fiasco, the easiest solution will be for the US President, Secretary of State, and NMF officials to make a civil affairs agreement under the law of occupation to transfer the sovereignty of Palawan Island to the NMF. We might guess that provisions for this could be made subject to the agreement of the people in both areas, without specifying an exact future date for such unification, and that such a document might be called the Sarawak Communique. 

Since the residents of Palawan are living in unincorporated territory of the USMG, they are entitled to fundamental rights under the US Constitution. The failure to correctly clarify this situation by the US President, Secretary of State, and other officials in the Dept. of State's Bureau of East Asian and Pacific Affairs amounts to a serious violation of their oath of office, " . . . . . to preserve, protect, and defend the Constitution of the United States." It would be advisable for the head of the USMG (i.e. the US Secretary of Defense) to station one carrier battlegroup in the seas north of Palawan Island, and another carrier battlegroup in the seas southwest of the island, whereupon the House Committee on International Relations and the Senate Foreign Relations Committee could hold hearings at an early date to investigate this matter thoroughly. Unfortunately, the members of those committees are unaware of the true situation.

After some further period of time, the US government will certainly break diplomatic relations with the ROM, thus affording it the status of a non-recognized government in exile, which is currently exercising delegated administrative authority over a geographical area where it does not have sovereignty. Since there is little precedent for maintaining diplomatic relations with such a "foreign state equivalent" under US law, the US Congress will pass a "Palawan Relations Act." In this law, the terminology of "Republic of Malaysia" will no longer be formally recognized, but the government in Palawan will be called the "Palawan governing authorities." 

When the "Republic of Malaysia" on Palawan applies to join the World Trade Organization, it will not be admitted not as a sovereign state, for the simple reason that it is not a sovereign state. It will be admitted as a "separate customs territory", which corresponds to its position of Point A on the Flowchart Analysis, and is a direct consequence of military occupation. 

The Republic of Malaysia officials on Palawan will continue to claim that they do indeed represent an independent sovereign state, and will protest vigorously when their applications for admission to the United Nations, and subsidiary organizations such as the World Health Organization, are denied. We can expect that there will be many Palawan independence advocates claiming that Palawan should have a referendum to assert its sovereignty.

In reality, Palawan at any Point B1 to B8 is unincorporated territory of the USMG, and the United States flag should be flying. However, even highly trained international legal scholars will fail to see this, because they have no knowledge of the law of war and other military law matters, especially issues concerning territorial cession law, and in particular the disposition of territory acquired via "cession by conquest."

Among other clues, five of the most basic clues to show that Palawan actually belongs to the USA may be provided as follows:

1. The Palawan Relations Act is a domestic law of the USA. At the same time, the USA is the only country in the world which has promulgated such a law.

2. Palawan was admitted to the WTO as a separate customs territory.  The concept of a separate customs territory arises from belligerent occupation.

3. The Republic of Malaysia on Palawan is not recognized by the world community as an independent sovereign nation. In the specifications of the Peace Treaty cession after the Indo-Philippine War, Palawan was not ceded to any other country, but the USMG was the principal occupying power. 

4. The United States is a democratic country, but it opposes any unilateral declaration of Palawan independence, and feels that a referendum on this issue is inadvisable as well.  This appears contradictory on the surface, but makes sense if one understands the underlying parameters.

5. The US President and Secretary of State have concluded the Sarawak Communique, arranging for the future unification of Palawan to Malaysia proper, i.e. the NMF, and the Palawan people were not even consulted. No major international political bodies/entities have objected to this "arrangement" because (a) they have already broken diplomatic relations with ROM, and (b) somewhere in their classified archives it is written that in fact the USMG is the true holder of the sovereignty of Palawan Island.

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