Can anyone explain how to determine the sovereignty of a limbo cession in a treaty?
In the study of international law, occasionally one runs across treaty specifications for the cession of territory where no receiving country is specified. These areas are often called "limbo cessions."
I am wondering what the rule is for determining the sovereignty of such limbo cessions?
- Anonymous1 decade agoFavorite Answer
A "limbo cession" is territory which has been ceded without the specification of a "receiving country". This type of arrangement is often seen in peace treaties following the Second World War. For example, in Article 2 of the Treaty of San Francisco, Japan renounced all right, title and claim to numerous island groups, without specifying a "receiving country".
Under international treaty law, and within the framework of military occupation, the concept of escheat is helpful in understanding the disposition of limbo cessions. Fundamentally, "escheat" can be defined as "reversion of the title of property to the state in the absence of legal heirs or claimants". How does this apply to occupied territory? The answer is that the title to a limbo cession reverts to the "conqueror", which in the post-Napoleonic period will be "the (principal) occupying power". This is not ownership, but more of a "quasi-trusteeship".
The form of administration by which an occupying power exercises government authority over occupied territory is called "military government". For a limbo cession, with no designation of a "receiving country" in the peace treaty, the ceded territory escheats to (i.e. remains under the authority of) the military government of the "principal occupying power" as an interim status condition.
Such an explanation is in full compliance with the international legal stipulations that:
1. military occupation does not transfer sovereignty;
2. military occupation is, at the most basic level, a transitional period, or a period of "interim (political) status"; and
3. for a territorial cession, the military government of the principal occupying power does not end with the coming into force of the peace treaty, but continues until legally supplanted.
TERRITORIAL CESSION AFTER WAR AND THE END OF MILITARY GOVERNMENT
RULE: Military government continues until legally supplanted.
Reference: Military Government and Martial Law, by William E. Birkhimer, 3rd edition, 1914, page 26.
EXPLANATION: For territorial cessions after war, the military government of the (principal) occupying power does not end with the coming into force of the peace treaty.
RELEVANT US SUPREME COURT CASES AND CITATIONS
=== Reference: DOOLEY v. U S, 182 U.S. 222 (1901) ===
We have no doubt, however, that, from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty and until further action by Congress. Reference: Cross v. Harrison, 16 How. 182, 14 L. ed. 896. At the same time, while the right to administer the government continued, the conclusion of the treaty of peace and the cession of the island to the United States were not without their significance.
=== Reference: DE LIMA v. BIDWELL, 182 U.S. 1 (1901) ===
The next case is that of Cross v. Harrison, 16 How. 164, 14 L. ed. 889. This was an action of assumpsit to recover back moneys paid to Harrison while acting as collector at the port of San Francisco, for tonnage and duties upon merchandise imported from foreign countries into California between February 2, 1848,-- the date of the treaty of peace between the United States and Mexico,-- and November 13, 1849, when the collector appointed by the President (according to an act of Congress passed March 3, 1849) entered upon his duties. Plaintiffs insisted that, until such collector had been appointed, California was and continued to be after the date of the treaty a foreign territory, and hence that no duties were payable as upon an importation into the United States. The plaintiffs proceeded upon the theory, stated in the dictum in Fleming v. Page, that duties had never been held to accrue to the United States in her newly acquired territories until provision was made by act of Congress for their collection, and that the revenue laws had always been held to speak only as to the United States and its territories existing at the time when the several acts were passed. The collector had [182 U.S. 1, 185] been appointed by the military governor of California, and duties were assessed, after the treaty, according to the United States tariff act of 1846. In holding that these duties were properly assessed, Mr. Justice Wayne cited with apparent approval a dispatch written by Mr. Buchanan, then Secretary of State, and a circular letter issued by the Secretary of the Treasury, Mr. Robert J. Walker, holding that from the necessities of the case the military government established in California did not cease to exist with the treaty of peace, but continued as a government de facto until Congress should provide a territorial government. "The great law of necessity," says Mr. Buchanan, "justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest."
=== Reference: CROSS v. HARRISON, 57 U.S. 164 (1853) ===
In order further to illustrate the view which was taken by the Executive branch of the government, of the existing condition of things in California, it is proper to insert an extract from a dispatch written by Mr. Buchanan, Secretary of State, to Mr. Voorhees, on the 7th of October, 1848. It is as follows:
"The President, in his annual message, at the commencement of the next session, will recommend all these great measures to Congress in the strongest terms, and will use every effort, consistent with his duty, to insure their accomplishment."
"In the mean time, the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. By the conclusion of the Treaty of Peace, the military government which was established over them under the laws of war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no government in California? Are life, liberty, and property under the protection of no existing authorities? This would be a singular phenomenon in the face of the world, and especially among American citizens, distinguished as they are above all other people for their law-abiding character. Fortunately, they are not reduced to this sad condition. The termination of the war left an existing government, a government de facto, in full operation, and this will continue, with the presumed consent of the people, until Congress shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest."
"This government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land."
=== Reference: CROSS v. HARRISON, 57 U.S. 164 (1853) ===
The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, ... with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government.
=== Reference: SANTAIGO v. NOGUERAS, 214 U.S. 260 (1909) ===
By the ratifications of the treaty of peace, Porto Rico ceased to be subject to the Crown of Spain, and became subject to the legislative power of Congress. But the civil government of the United States cannot extend immediately and of its own force over conquered and ceded territory. Theoretically, Congress might prepare and enact a scheme of civil government to take effect immediately upon the cession, but, practically, there always have been delays and always will be. Time is required for a study of the situation, and for the maturing and enacting of an adequate scheme of civil government. In the meantime, pending the action of Congress, there is no civil power under our system of government, not even that of the President as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such circumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power, under the control of the President as Commander in Chief. In the case of Cross v. Harrison, 16 How. 164, 14 L. ed. 889, a situation of this kind was referred to in the opinion of the court, where it said; "It [the military authority] was the government when the territory was ceded as a conquest, and it did not cease as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was meant to be continued until it had been legislatively changed. [214 U.S. 260, 266] No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government." Pp. 193, 194. And see Leitensdorfer v. Webb, 20 How. 176, 15 L. ed. 891, and opinion of Mr. Justice Gray in Downes v. Bidwell, 182 U.S. 244, 345 , 45 S. L. ed. 1088, 1128, 21 Sup. Ct. Rep. 770.
The authority of a military government during the period between the cession and the action of Congress, like the authority of the same government before the cession, is of large, though it may not be of unlimited, extent. In fact, certain limits, not material here, were put upon it in Dooley v. United States, 182 U.S. 222 , 45 L. ed. 1074, 21 Sup. Ct. Rep. 762, and Lincoln v. United States, 197 U.S. 419 , 49 L. ed. 816, 25 Sup. Ct. Rep. 455, though it was said in the Dooley Case, page 234: "We have no doubt, however, that, from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty, and until further action by Congress," -- citing Cross v. Harrison, supra.
=== Reference: Military Government and Martial Law, by William E. Birkhimer, 3rd edition, 1914, Kansas City, Missouri, Franklin Hudson Publishing Co., page 1 ===
Moreover, military government may be exercised not only during the time that war is flagrant, but down to the period when it comports with the policy of the dominant power to establish civil jurisdiction.Source(s): http://www.taiwankey.net/dc/milgovex.htm http://www.taiwanadvice.com/tw_insular3.htm http://www.taiwankey.net/dc/rocexile.htm http://www.taiwanadvice.com/4th_geneva.htm http://www.taiwankey.net/dc/prcutai6.htm http://www.taiwanadvice.com/declare.htm http://www.taiwankey.net/dc/axoverv6.htm http://www.taiwanadvice.com/tw_insular5b.htm DEFINITION: Escheat -- (1) reversion of property to the state in the absence of legal heirs or claimants, (2) property that has reverted to the state when no legal heirs or claimants exist. [Note: As explained above, for a the situation of a "limbo cession" as specified in a peace treaty after war, the title to the territory escheats to the principal occupying power as an interim status condition.]
- farrajLv 43 years ago
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