Trusteeships & quasi-Trusteeships

The United Nations Charter of Oct. 24, 1945, established the Trusteeship Council as one of the main organs of the United Nations, and assigned to it the task of supervising the administration of Trust Territories placed under the International Trusteeship System. A trusteeship is commonly defined as a territory whose administration has been entrusted to another country by the United Nations, under the authority of an individual trusteeship agreement. The council was established on the premise that colonial territories taken from countries defeated in war should not be annexed by the victorious powers but should be administered by a trust territory under international supervision; with the intent of leading them to self-government or independence at some future date.

Historically, there were eleven trust territories under the administration of the UN Trusteeship Council.

Under Chapter XII of the UN Charter, the United Nations established the International Trusteeship System for the supervision of Trust Territories placed under it by individual agreements with the States administering them.

Trusteeship agreements were concluded between the United Nations and each administering authority. These trusteeship agreements were:

• Approved by resolutions
• Transmitted in documents of General Assembly, Security Council and the Trusteeship Council
• Published in the UN Treaty Series

It is worthy of note that no UN Trusteeship agreements were concluded after 1950. Not surprisingly, Taiwan is not listed in UN-Table 1, because it was never under a UN trusteeship arrangement. In other words, the UN never concluded any trusteeship agreement for Taiwan.

Additionally, the Ryukyu island group is not listed in UN-Table 1, because it was never under a UN trusteeship arrangement. In other words, the UN never concluded any trusteeship agreement for the Ryukyu island group.

Importantly, in Article 3 of the San Francisco Peace Treaty (SFPT) of April 28, 1952, the signatories expressed the intention to place the Ryukyu island group under the UN trusteeship system. However, no such arrangement was ever finalized. As a result, according to the specifications in the second half of SFPT Article 3, the United States held retained "the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters."

The UN Trusteeship Council suspended its operation on Nov. 1, 1994, and although under the United Nations Charter it continues to exist on paper, its future role and even existence remains uncertain.

From the US perspective, the US Constitution has a territorial clause (Art. 4, Sec. 3, Cl. 2) but no trusteeship clause. Nevertheless, the US Supreme Court has recognized the existence of trusteeship type arrangements over certain territory which has come under US military government (FN: #1) jurisdiction.

Historically, the first example which should be noted is Cuba. After the Spanish-American War ended, Spain ceded Cuba in the peace treaty, but did not designate a recipient country. According to the content of the peace treaty, Cuba remained under the military jurisdiction of the United States, more technically described as interim status under the law of occupation, hence the (final) legal status of Cuba was undetermined. Articles 1 and 9 of the peace treaty provided the relevant specifications.

In the case of Neely v. Henkel 180 U.S. 109 (Jan. 14, 1901), the Justices held that --

The US Supreme Court again confirmed the validity of this legal formulation in Downes v. Bidwell 182 U.S. 244 (May 27, 1901), Pearcy v. Stranahan 205 US 257 (April 8, 1907), and other cases.

William E. Birkhimer(FN: #2), US Army brigadier general and lawyer, gave a detailed summary of the concept of occupied territory being held in trust in one of the books he authored.

He also wrote about the decision in the Supreme Court case of Neely v. Henkel, 180 U.S. 109 (1901).

Summary: With the coming into force of the peace treaty, while remaining under US military jurisdiction, Cuba was still foreign territory from the United States’ perspective, but was then territory held in trust for the inhabitants of Cuba. With reference to the judgment of the US Supreme Court, in the absence of a formal trusteeship agreement, the compilers of this website believe that Cuba (from April 11, 1899 to May 20, 1902) is best described as a

The authoritative comments on this webpage provide us with the basic formulation and structure of a de facto US overseas quasi-trusteeship under US law.

A more comprehensive analysis of the situation of occupied Cuba, beginning with the coming into force of the April 11, 1899 peace treaty, and by extrapolation the situation of occupied Taiwan, beginning with the coming into force of the April 28, 1952 peace treaty, can be given by examining the subject of fiduciary relationships. (FN: #1)

Reference is made to President McKinley's 3rd Annual Message, (Dec. 5, 1899) --

The above legal and historical commentary in regard to Cuba after the close of hostilities in the Spanish-American War, clearly illustrates that a fiduciary relationship arises under the law of occupation (FN: #2) with the (principal) occupying power as the trustee, the occupied territory as trust corpus, and, the future citizens of the territory as beneficiaries, dependent of course upon the territory attaining a "final legal/political status." This formulation was recognized by the US Supreme Court.

In other words, in relation to territory, a fiduciary relationship is not "ownership" in the typical sense that that term is used, but more of a "quasi-trusteeship." The (principal) occupying power has disposition rights over the territory, but those rights do not include "annexation."

For Cuba beginning April 11, 1899, this is construed as USA/USMG as trustee, Cuba territory as the trust corpus, and the future citizens of the Republic of Cuba (being governed by their own Cuba Civil Government) as beneficiaries.

Importantly, the trustee has an obligation to ensure that the beneficiaries are aware of the existence of this relationship.

After carefully examining all relevant historical and legal data, comparing the fundamental attributes and similarities, and researching the common characteristics of these three geographic areas, during the periods indicated, the compilers of this website have chosen to call each of them by the nomenclature of --

Two tables of data are presented below.

After recognizing the true legal status of Cuba, the Ryukyus, and Taiwan, during the periods indicated, it is clear that each fully qualifies to be included directly under the scope of the US Constitution’s common defense clause (Art. I, sec. 8, cl. 1).

For more information on a correct interpretation of the United State's role in Taiwan's defense, see -- Exploring the Subject of the "Defense Responsibility" for Taiwan

• "Quasi" means "seemingly" and is therefore indicative of having features that are similar to another thing while at the same time not being completely comparable or analogous.
  Examples:   (a) After his sister got sick, she subjected herself to a quasi-religious healing ritual performed by a travelling minister. (b) My father was a professional mountain guide for twenty-six years, and he treats our home like a quasi-base camp.
• "Quasi" is often used in describing various items or phenomena and carries the meaning of somehow bearing a strong resemblance, while at the same time still not being fully equivalent.
  Examples:   (a) Two parents enrolled their daughter in a private school where the styling of the students' school uniforms was quasi-military. (b) Several students from our boy scout troop were selected to attend a leadership course. On the first day, the instructor explained the difference between a request and a quasi-command.
• "Quasi" is often used to mean "it does not exist, but we will pretend it does." Thus a "quasi-contract"can arise when the parties did not make an actual contract, but we pretend they did in the interest of fairness and justice.
  Examples:   (a) An elderly gentleman ordered some food items online, providing his mailing address and making full payment in advance. The delivery company delivered the package to the wrong address, and the recipient consumed the items. The elderly person found a lawyer to take this case to court, and the judge recognized the existence of a quasi-contract between the elderly gentleman and the recipient, ruling that the recipient must pay back the full value of the items. (b) The two children agreed to trade Batman dolls by signing their names on a quasi-contract written in crayon on the back of a paper shopping bag.

• In many communities in Florida, the Home Owner’s Association (HOA) discharges a quasi judicial function in relation to the regulation of its own affairs.
• By 1805, Muhammad Ali had succeeded in establishing himself as quasi independent ruler of Egypt.
• King Quinton left his kingdom to the daughters the Queen bore him, and their quasi legitimacy was recognized by the government, parliament, and the voting public.

The situation of Cuba as a result of the Spanish American War and Taiwan as a result of WWII have a great many parallels. For details, please go to PART 4, above, and overview the information given in Q-Table 1 and Q-Table 2.

Charles E. Magoon (FN: #1), Division of US Insular Affairs, offered the following comprehensive analysis of the correct interpretation of the April 11, 1899, Spanish-American Peace Treaty, wherein Cuba was completely separated from Spain, but no "receiving country" was designated, and with consideration that the United States was the (principal) occupying power.

A careful examination of Mr. Magoon's remarks yields many insights for discussing the SFPT's disposition of Taiwan.

This trusteeship type arrangement ended when the United States recognized that Cuba and the Ryukyu island group were ready to enter a final political/legal status with a fully functioning civil government. (FN: #1)

In practice, the transfer of territorial title (FN: #2) of both Cuba and the Ryukyu island group did not involve any action of the US Congress.

• CUBA: the transfer of territorial title was accomplished when Commander in Chief Theodore Roosevelt issued a formal pronouncement of the termination of United States Military Government jurisdiction over Cuba effective May 20, 1902. On this date, the United States recognized Cuba as an independent sovereign nation.
• RYUKYU ISLAND GROUP: the transfer of territorial title was accomplished when Commander in Chief Richard Nixon issued a formal pronouncement of the termination of United States Military Government jurisdiction over the Ryukyu island group effective May 15, 1972. On this date, the United States recognized this island group as belonging to Japan and forming the Okinawa Prefecture.
• TAIWAN: from 1952 to the present, there has been no announcement by any US Commander in Chief about the termination of US military government jurisdiction. Moreover, the legal status of Taiwan is most frequently described as undetermined or unsettled. In other words, Taiwan is neither recognized as an independent sovereign nation nor as part of any other independent sovereign nation. Such facts amount to very strong evidence that Taiwan is still under USMG jurisdiction.

Under the authority of the arrangements made in the post-war peace treaty, a US High Commissioner was appointed for Cuba.

Additionally, a US High Commissioner was appointed for the Ryukyu islands.

Comparing this to the situation in Taiwan, it is important to note that military government jurisdiction over both the Ryukyu island group and Taiwan is authorized by the SFPT. Therefore, the appointment of a US High Commissioner for Taiwan, and the making of all other arrangements for Taiwan similar to those carried out in the Ryukyu island group are fully authorized.

• According to the precedent established in the Ryukyus, the US military government in Cuba would have been referred to as the US Civil Administration of Cuba (USCAC).
• According to the precedent established in the Ryukyus, the US military government in Taiwan would be referred to as US Civil Administration of Taiwan (USCAT).

The fact of the USMG jurisdiction in Taiwan should be fully clarified at the earliest possible date. The first step would be to appoint a US High Commissioner for Taiwan.

After overviewing the information presented above, the following AXIOMS can be derived.

The interlude under the jurisdiction of the military government of "the occupying power" is a transitional period. However, since the term "transitional" has many other uses in English, we can avoid confusion by referring to this as a period of "interim status."

The evolution of the concept of military occupation must be understood. From the second half of the 1700's onwards, international law came to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in his opus The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars in the 1800's.

A general summary can be made by saying that in the pre-Napoleonic era, in most parts of the world, the "conqueror" merely annexed the territory, and was recognized as the "annexor."

In the post-Napoleonic world, these customary norms began to change, and international law said that the "conqueror" could only be regarded as "the occupying power." This was more formally codified in the Hague Conventions of 1907.

Moreover, it is important to recognize that (1) legal relationships arise based on a determination of who the "conqueror" is, (2) the military occupation of any area can be delegated to co-belligerents (i.e. "allies" or "coalition troops"), (3) the holding of the surrender ceremonies only serves as a convenient time-marker for determining the beginning of the military occupation, (in other words, the fact that certain military troops accepted the surrender of other military troops is not particularly significant from the standpoint of discussing the local people's "rights" and "obligations.")

Reference is made to The International Law of Occupation by Eyal Benvenisti (Oxford University Press, 2012): He clarified the nature of military occupation as "the effective control of a power (be it one or more States or an international organization, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory."

The laws of war state that "military occupation does not transfer sovereignty." But where does the sovereignty of an occupied area go? Does it disappear?

The 1979 US-PRC Joint Communique switched diplomatic recognition from Taipei to Beijing. In this Joint Communique, as in the 1972 Communique, the United States recognized the Government of the People’s Republic of China as the sole legal government of China, acknowledging the Chinese position that there is but one China and Taiwan is part of China. The United States also stated that it does not challenge that position.

Many readers are of course very familiar with these pronouncements. After the brief review offered above, the editors of this webpage suggest that it is time for a short quiz. The reader should pick the correct answer.

Many people, including those who have done significant research into the USA – PRC – ROC triangular relationship, will say that the correct answer is (A).

In fact, the correct answer is (B). Importantly, there is a large quantity of evidence which supports the assertion that the correct answer is (B).

In order to gain more in-depth comprehension of the USA – PRC relationship, it is important to understand the diplomatic double-speak in the communiques, statements, policy declarations, as well as all the other pronouncements issued by the US Dept. of State and the PRC Ministry of Foreign Affairs. A careful collection of evidence, and a study of historical conditions surrounding these pronouncements, as well as the actual conditions prevailing on the ground, must be thoroughly researcherd, in order to uncover various deliberate obfustications made by the government officials. Such study is always helpful in gaining deeper insight into the different degrees of truth which lie behind all of the diplomatic double-speak, and understanding how principle and practice are different.

We have collected many statements, announcements, and commentary from authoritative sources, and are presenting a selection of them here.

We can do a more complete overview of the diplomatic double-speak in the Three Joint Communiques.

The analysis presented above is further reinforced by various laws which have been passed by the US Congress.

• On March 11, 2022, US President Joe Biden signed into law a sweeping US$1.5 trillion spending bill, which includes a ban on the use of any maps by the US Executive Branch agencies that "inaccurately" depict Taiwan as part of China.

To put this in plain language, the US government is saying that Taiwan is not a part of China, and therefore any maps used by the US Executive Branch cannot indicate otherwise.

So, it is unquestionable that the Taiwan Relations Act (TRA) treats Taiwan as a separate entity from the PRC controlled mainland China area.

What about the so-called Taiwan sovereignty question? Since the early 1970s, the US position regarding sovereignty over Taiwan has remained steady and consistent with its "One China Policy": ideally, both sides of the Taiwan Strait should mutually and peacefully agree to a resolution of this issue.

At the same time, the United States doesn’t agree with Beijing’s claim to holding sovereignty over Taiwan, nor does it agree with Taipei that the ROC is an independent, sovereign state.

There are many articles in respected law journals that can back up the above analysis. In particular, see the Fordham Law Journal, excerpted at -- The United States acknowledges that . . .

In conclusion, the United States is Taiwan’s strongest partner despite not officially giving it diplomatic recognition, having broken off relations with Taiwan in 1979 for diplomatic ties with China. The United States'' official position is that it follows a "One China" policy in which it acknowledges but does not endorse Beijing’s claims that Taiwan is part of China.

Of course, the truth of the matter is that US Executive Branch officials have a totally inadequate knowledge of the laws of war and the historical and legal precedent regarding the disposition of territory in a peace treaty where no "receiving country" has been specified but the United States is serving in the role of the legal occupier.