The Montevideo Convention and Military Occupation 

Scenarios 4 to 6

Scenario 4.

Hypothetical situation -- a summary: Brazil was a co-belligerent with the United States in the Spanish American War, and was delegated the occupation of Cuba. Ignoring the law of occupation, it annexed Cuba. 

Details: Suppose that Brazil had been a co-belligerent with the United States in the Spanish American War, and the administrative authority for the occupation of Cuba had been delegated to Brazil. The Brazilian representatives told the principal occupying power that it would take full charge of the surrender ceremonies of July 1898 as well. Unfortunately, when the Brazilian representatives accepted the surrender of the Spanish troops, they immediately raised the Brazilian flag, and announced that Cuba was being annexed as a new province of Brazil. 

Note 1: It is important to understand that the legal structure remains the same even though the Brazilian representatives accepted the surrender of the enemy troops. The Spanish American War involved many areas of the Caribbean. Since Brazil is exercising delegated administrative authority for the occupation of Cuba, it is a "junior partner in the occupation." Hence, Brazil has two statuses at this point: 1. It is the legally recognized government (i.e. "juridical person") of Brazil. 2. It is a junior partner in the occupation of Cuba. These two statuses should not be considered one and the same. 

Note 2: With the Brazilian flag flying over Cuba, many casual observers will assume that Cuba has been fully annexed as a new state of Brazil. Clearly, in this scenario the Brazilian military has not taken into account the wishes of the Cuban people, while additionally violating the international law precept that "military occupation does not transfer sovereignty," so we can conclude that Cuba is being governed illegally. Under such a scenario, Cuba obviously does not attain independence at any point of B1 to B8, and Point C (i.e. "final status") will probably not be reached without high powered diplomatic intervention.

Scenario 5.

Hypothetical situation - a summary: The Philippine Army attacks the island of Borneo without provocation, seizing the tiny country of Brunei..  An international peace conference is held, and the peace treaty specifies that the Philippine Island of Palawan is ceded to Brunei in perpetuity as war reparations.  Years later, well-armed local Indonesian insurgents overthrow the Indonesian government in a military coup, imprison the government officials, and then invade the southern Philippines. The United States enters the war. After the surrender of Indonesian troops, the occupation of Palawan Island is delegated to Malaysia. Ignoring the law of occupation, it annexes Palawan. The government of Malaysia falls in a revolution, and the original government leaders flee to Palawan.

Details: Suppose that disaffected elements of the Philippine Army have launched an adventurous foray into northern Borneo, inflicting much damage and seizing the tiny country of Brunei. A peace conference is held in the Japanese city of Yamaguchi, and for war reparations the Treaty of Yamaguchi specifies that the island of Palawan is ceded to Brunei in perpetuity and full sovereignty. 

Some 25 years later, well-armed rebel groups from Indonesia overthrow the Indonesian government, and then expand their influence by invading the southern Philippines, while making sporadic attacks against costal towns in eastern and western Malaysia, as well as southern Thailand. ASEAN asks for United States assistance in the expanding conflict, and the US enters this Indo-Philippine War. Malaysia joins as a co-belligerent with the United States in battles throughout the Southeast Asian region. After the termination of hostilities, the administrative authority for the occupation of Palawan Island is delegated to Malaysia. 

When the Malaysian representatives accept the surrender of the Indonesian troops in Palawan, they immediately raise the Malaysian flag, and announce that Palawan Island is being annexed as a new state of Malaysia. This creates a diplomatic problem for the other ASEAN member nations and the United States. A large Indonesian community is already established in Palawan, and hope the island can be ceded to Indonesia, but Philippine nationalists demand it be returned to the Philippines. Brunei offers to give up the sovereignty of Palawan in exchange for oil exploration rights in the southern Philippines. 

However, in the next few years there is a revolution in Malaysia, and a new government is founded. The government officials and military officers of the original "Republic of Malaysia" all flee to Palawan Island, all the while still claiming to be the legitimate government of Malaysia. Indeed, this "Republic of Malaysia" still maintains formal diplomatic relations with many countries. In the terms of the Seattle Peace Treaty, Brunei renounces sovereignty over Palawan, but the "new owner" is not specified. 

Some 25 years later the United States breaks relations with the Republic of Malaysia on Palawan Island, the Congress passes a "Palawan Relations Act" (PRA), and formal diplomatic relations are established with the New Malaysian Federation (NMF). An detailed overview of this situation via the flowchart analysis for the transfer of sovereignty is given herewith. 

The Republic of Malaysia on Palawan Island

 (a imaginary case-study done in the hypothetical year of 2105)

Flowchart Analysis of the Transfer of Sovereignty

and the Road to Self-Autonomy

BASED ON THE LAW OF NATIONS  

  Point A 

  Point B1 

  Point B2 

  Point B3 

  Point B4 

  Point B5 

  Point B6 

  Point B7 

  Point B8 

  Point C 

Confirmation of Autonomy

According to the Montevideo Convention, the Republic of Malaysia in Palawan is an independent sovereign state. However, a number of contradictions immediately arise. From the point of view of democratic development, of course we see that the wishes of the Palawan people have not been taken into account. Moreover, the principle that "military occupation does not transfer sovereignty" has been violated.

Under the four criteria of the Montevideo Convention, Article 1, many international legal scholars will argue that the Republic of Malaysia is indeed an independent sovereign state, and is acting in accordance with legal principles. Other scholars, and indeed many local residents, will conclude that the Republic of Malaysia has imposed an illegal government on Palawan. 

Refering to the Flowchart Analysis presented above, it is seen that Palawan should be flying the USA flag, and the Palawan people should be carrying "US national non-citizen" passports, as well as enjoying fundamental rights under the US Constitution. This confirms the analysis that the Republic of Malaysia has imposed an illegal government on Palawan.

The author maintains that under such a hypothetical scenario, the correct formulation is to say that the Republic of Malaysia in Palawan is a "foreign state equivalent" under international law, and not an independent sovereign state. This foreign state equivalency status is a simple way of looking at its true position as unincorporated territory under USMG.  

In any event, as noted at the beginning of this website, the current formulation of the Montevideo Convention, Article 1, is inadequate to correctly delineate such complex situations arising under military occupation.  

The true facts of the Palawan status are as follows:

Conclusion as of April 28, 2105
  Name: Palawan Cession
  International Law Determination: Unincorporated territory under USMG
  Cession Day: April 28
  Nationality of Populace: Island Citizens (may also be called "domestic aliens" or "PRA aliens" from the US perspective)
  Status: Interim Status (US unincorporated territory)
  Allegiance of Island Citizens during Interim Status: USA
  Flag of the Interim Status: Flag of the USA
  National Anthem of the Final Status: "Star Spangled Banner" or "God Bless America"
  Romanization (orthography): abc's
  Weights & Measures: Metric System
  Constitution: USA Constitution ("fundamental rights")
  Income Tax Liability: to Palawan governing authorities (no USA Federal Income Tax Liability)
  

Expected date to achieve final status: 2152

All the facts and laws about Palawan prove that Palawan is an inalienable part of Malaysian territory. History shows that Indonesia launched an all-out war of aggression against the Philippines. The Malaysian government issued the Proclamation of Malaysia's Declaration of War Against Indonesia, in accordance with the consensus reached by the ASEAN states, announcing to the world that all treaties, agreements and contracts concerning Malaysian, Indonesian, and Philippine relations had been abrogated, and that Malaysia would recover Palawan. The Istanbul Declaration was issued by a group of leading world governments, stipulating that Indonesia should return to Malaysia all the territories it had stolen in ages past. The Zurich Proclamation, assented to by a group of leading world governments, stipulated that "The terms of the Istanbul Declaration shall be carried out." At the close of the Indo-Philippine War, Indonesia declared surrender and promised in its instrument of surrender that it would faithfully fulfill the obligations laid down in the Zurich Proclamation. On October 25, 2045, the Malaysian government recovered Palawan Island and all subsidiary islands nearby, resuming the exercise of sovereignty over Palawan Province.