ANNOTATIONS to Article 4
PART 1: Article 4(b) of the SFPT specifies that, in relation to the SFPT Article 2 and Article 3 territories, the dispositions of property of Japan and Japanese nationals is subject to the determination of the United States Military Government (USMG).
Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. (Reference: U.S. Supreme Court, Ex parte Milligan, 71 U.S. 2 (1866).) In other words, military government is the government of occupied territory. Hence, Article 4(b) is confirming that SFPT Article 2(b) "Formosa and the Pescadores" (aka Taiwan), and Article 3 the "Ryukyu Island Group" are both occupied territory. Moreover, both are under the jurisdiction of USMG.
ANNOTATIONS to Article 23
PART 1: Article 23(a) confirms that under the geographic scope of the treaty, the United States of America is the principal occupying power of all territories which remain under military occupation (aka "civil affairs administration of USMG") after the peace treaty has come into force. The territories as specified in Articles 2 and 3 of the treaty have been separated from the "motherland" of Japan, therefore as explained in the ANNOTATIONS to Article 4(b) above, the military governments exercising jurisdiction over these areas do not end with the coming into force of the peace treaty. More detailed explanations regarding this principle can be found in specific U.S. Supreme Court cases, beginning with Cross v. Harrison, 57 U.S. 164 (1853), and with reaffirmation in Dooley v. U.S., 182 U.S. 222 (1901), Santaigo v. Nogueras, 214 U.S. 260 (1909), etc.
PART 2: In our series of three Flowcharts, the concepts regarding "conquest/liberation," "military government," "military occupation," etc. form an important part of the laws of occupation, which are included in the internationally recognized laws of war.
Anyone familiar with these legal concepts will recognize that the SFPT must designate "the (principal) occupying power" in order to ascertain which country bears the final responsibility for the military occupation of the areas specified in Articles 2 and 3. Of particular concern to us are Article 2(b) "Formosa and the Pescadores" (aka Taiwan), and Article 3 the "Ryukyu Island Group." Article 23(a) confirms the United States of America as the principal occupying power.
AUTHORITY EXERCISED BY THE ROC OVER TAIWAN
As early as late April 1971, a US Dept. of State spokesman stated that: "We regard the Republic of China as exercising legitimate authority over Taiwan and the Pescadores by virtue of the fact that ROC forces had accepted the surrender of Formosa on behalf of the victorious allies."
Up to the present era, this statement has been repeated by US Dept. of State officials on various occasions.
However, there is no precedent in the customary laws of warfare which can give credence to the assertion that the troops accepting the surrender can obtain any special "rights or privileges" thereby. Indeed, neither the Geneva nor Hague Conventions contain any such specifications. Hence, we can only conclude that many US government officials lack any accurate knowledge about "laws of war" issues.
