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Flowchart Analysis of the Transfer of Sovereignty and the Road to Self-Autonomy Major
References
(1)
Vattel’s
“The Law of Nations? (published
1758)
http://www.constitution.org/vattel/vattel_cmt.htm
http://www.constitution.org/vattel/vattel.htm http://www.schillerinstitute.org/fid_97-01/971_vattel.html (2)
Grotius
“On the Law of War and Peace"
(published
1625)
http://www.geocities.com/Athens/Thebes/8098/
http://www.geocities.com/Athens/Thebes/8098/book1final.htm
http://www.geocities.com/Athens/Thebes/8098/book2final.htm
http://www.geocities.com/Athens/Thebes/8098/book3final.htm (3) Military Government and Martial Law, by William E. Birkhimer, 3rd edition, 1914
(4)
The
Law of Land Warfare,
US Army Field Manual 27-10,
US
Department of the Army,
(1st
edition, October 1, 1940 http://faculty.ed.umuc.edu/%7Enstanton/FM27-10.htm 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
(6) San Francisco Peace Treaty, September 8, 1951 (signed); April 28, 1952 (entered into force) http://www.taiwandocuments.org/sanfrancisco01.htm
http://www.yale.edu/lawweb/avalon/diplomacy/spain/sp1898.htm Treaty of Taipei, April 28, 1952 (signed); August 5, 1952 (entered into force) http://www.taiwandocuments.org/taipei01.htm
(7) FM 27-10, paragraph
358: 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) http://www.law.uchicago.edu/tribunals/milligan.html
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) http://laws.findlaw.com/us/182/244.html
Fourteen Diamond Rings v. United States (1901)
Dorr v. United States (1904)
Balzac v. Porto Rico (1922) (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. |