The Peace Treaty Specifications:
Cuba and Taiwan

(1) A comparison of the situations of Cuba (according to the 1899 Treaty of Paris) and Taiwan (according to the 1952 San Francisco Peace Treaty) may be made as follows: Item Treaty of Paris specifications for Cuba SFPT specifications for Taiwan United States is the (principal) occupying power Article 1 Article 23(a) Original "owner" did indeed cede the territory Article 1 Article 2(b) No "receiving country" was specified Article 1 Article 2(b) USMG has disposition rights over the territory Article 1 Article 4(b) Military government is present, and military occupation is a reality Article 1 Article 4(b) and the Hague Conventions (1907) USMG jurisdiction continues past the date when the peace treaty comes into effect Article 1, and the U.S. Supreme Court decision in Cross v. Harrison (1853) Article 4(b), Article 23(a), and the U.S. Supreme Court decision in Cross v. Harrison (1853)

(2) Given the similarity between the peace treaty specifications for Cuba (according to the 1899 Treaty of Paris) and Taiwan (according to the 1952 San Francisco Peace Treaty), the next question becomes: What flag should be flying over Taiwan?

(3) Some seemingly knowledgeable persons in Washington D.C. would argue that "Unless the island of Formosa is American property or territory, it is none of the US Congress' business nor within the legislative competence of the US Congress to determine what flag shall fly over the island . . . . . " Is such an analysis accurate? Some comparisons with Cuba after the Spanish American War may be useful for reference. As a result of this war, Cuba's fundamental legal position became: conquered territory of the United States. In the April 11, 1899, peace treaty, Spain relinquished all claim of sovereignty over and title to Cuba. Yet, an examination of the historical and legal record shows that the United States never regarded Cuba as coming under the US Constitution's territorial clause (Article IV, Sec. 3, cl. 2), which reads as follows: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . . .

(4) Yet, the US flag flew over Cuba after liberation/conquest by the USA. According to historical accounts, the US flag was raised over Cuba at the July 17, 1898, Spanish surrender ceremonies. (Note: This was even before the peace treaty was written.)

(5) And the US flag continued to fly over Cuba after the Spanish American Peace Treaty came into force on April 11, 1899. Question: Was Cuba awarded to the USA in the Spanish American Peace Treaty? The answer is No. Question: Therefore, under the Constitution's territorial clause (Art. IV, Sec. 3, cl. 2) was Cuba a US territory? The answer is No.   . . . . . . however THE US FLAG WAS FLYING.

(6) So, how can these facts be explained? First we must recognize that in regard to any overseas region/area, the statement that "Unless (some particular geographic area) is American property or territory, it is none of the US Congress' business nor within the legislative competence of the US Congress to determine what flag shall fly over the island . . . . . " is very much an oversimplified analysis. Simply put: There are other considerations which come into play in deciding whether to raise a particular flag or not.

(7) In the April 11, 1899, peace treaty, Spain relinquished all claim of sovereignty over and title to Cuba, but no "receiving country" was specified. The US flag had originally been raised over Cuba due to the United States' conquest/liberation in the war. The United States flag continued to fly over Cuba after the coming into force of the peace treaty, because Cuba had not yet reached a final political/legal status. Cuba remained in interim status under the law of occupation. Speaking of this "April 11, 1899, to May 20, 1902" transitional period, the US Supreme Court held in DeLima v. Bidwell, 182 US 1 (1901), that "Cuba is under the dominion of the United States."

(8) The US Supreme Court had other insightful rulings on this subject as well. In Neely v. Henkel, 180 U.S. 109 (1901), the Supreme Court ruled: It is true that as between Spain and the United States -- indeed, as between the United States and all foreign nations -- Cuba, upon the cessation of hostilities with Spain and after the treaty of Paris, was to be treated as if it were conquered territory. But as between the United States and Cuba that island is territory held in trust for the inhabitants of Cuba, to whom it rightfully belongs, and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action. This determination was also restated in Downes v. Bidwell, 182 U.S. 244 (1901). Importantly, all of the analysis regarding Cuba's legal situation (April 11, 1899 to May 20, 1902) would apply to Taiwan equally well . . . . . (beginning April 28, 1952).   Please see the detailed chart at the top of this webpage.