are present, there is in existence the judicial supremacy directly connected with the undertaking."

German Railway Station at Basle Case, [1927-1928] Ann. Dig. 136, 137– 138 (No. 90).

By article III of the Agreement for the Lease to the United States

of Lands in Cuba for Coaling and Naval Stations-the Guantanamo Naval Base-it was agreed that

"... the United States recognizes the continuance of the ulti- Guantanamo mate sovereignty of the Republic of Cuba over the above described areas of land and water".

I Malloy, Treaties, etc. (1910) 358, 359.

Article III of the Convention for the Construction of a Ship Canal, signed November 18, 1903, by the United States of America and the Republic of Panama, reads:

"The Republic of Panama grants to the United States all the Panama: rights, power and authority within the zone mentioned and de- Canal Zone scribed in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority."

In his now-famous statement made April 18, 1906, before the Committee on Interoceanic Canals, William Howard Taft, then Secretary of War, quoted article III of the 1903 Convention and stated:

"It is peculiar in not conferring sovereignty directly upon the United States, but in giving to the United States the powers which it would have if it were sovereign. This gives rise to the obvious implication that a mere titular sovereignty is reserved in the Panamanian Government. Now, I agree that to the AngloSaxon mind a titular sovereignty is like what Governor Allen, of Ohio, once characterized as a 'barren ideality,' but to the Spanish or Latin mind poetic and sentimental, enjoying the intellectual refinements, and dwelling much on names and forms it is by no means unimportant. . . .

Hearings before the Committee on Interoceanic Canals, Apr. 18, 1906, S. Doc. 401, 59th Cong., 2d sess., vol. III (Serial 5099), pp. 2515, 2526–2527. In an earlier statement contained in a letter addressed to President Theodore Roosevelt, Taft had also stated:

The truth is that while we have all the attributes of sovereignty necessary in the construction, maintenance, and protection of the canal, the very form in which these attributes are conferred in

Ryukyu
Islands

the treaty seems to preserve the titular sovereignty over the Canal Zone in the Republic of Panama, and as we have conceded to us complete judicial and police power and control over the Zone and the two ports at the end of the canal, I can see no reason for creating a resentment on the part of the people of the Isthmus by quarreling over that which is dear to them but which to us is of no real moment whatever." Secretary of War Taft to President Theodore Roosevelt, letter dated Jan. 12, 1905, printed ibid. 2393, 2399.

Deputy Under Secretary Livingston Merchant, upon his departure from Panama on November 24, 1959, issued a statement in which he declared that "the policy of the United States Government with respect to the status of the Canal Zone remains as it had been stated more than 50 years ago to the effect that the United States recognizes that titular sovereignty over the Canal Zone remains in the Government of Panama".

Press release 817, Nov. 24, 1959, XLI Bulletin, Department of State, No. 1068, Dec. 14, 1959, p. 859.

Article 3 of the Treaty of Peace with Japan provides:

"Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto south of 29° north latitude (including the Ryukyu Islands and the Daito Islands), Nanpo Shoto south of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the United States will have 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."

Conference for the Conclusion and Signature of the Treaty of Peace with Japan, San Francisco, California, September 4-8, 1951, Record of Proceedings (1951), Department of State publication 4392, p. 314; U.S. TIAS 2490; 3 UST, pt. 3, p. 3169; 136 UNTS 46.

Commenting on article 3 with regard to the issue of sovereignty, John Foster Dulles, who as special representative of the President had conducted the negotiations with respect to the Treaty, said in a speech at the Japanese Peace Treaty Conference:

"Several of the Allied Powers urged that the treaty should require Japan to renounce its sovereignty over these islands in favor of United States sovereignty. Others suggested that these islands should be restored completely to Japan.

"In the face of this division of Allied opinion, the United States felt that the best formula would be to permit Japan to retain residual sovereignty, while making it possible for these islands to be brought into the United Nations trusteeship system, with the United States as administering authority."

Conference for the Conclusion and Signature of the Treaty of Peace with Japan, San Francisco, California, September 4-8, 1951, Record of Proceedings (1951), Department of State publication 4392, p. 78.

The United States District Court in Hawaii had occasion to examine the question of residual sovereignty with respect to Okinawa, an island in the Ryukyu Archipelago, in the case of The United States v. Ushi Shiroma (123 F. Supp. 145 (D.C. Hawaii 1954)). Charged with failure as an alien to notify the Attorney General in writing of his current address and furnish such additional information as required by law, thus violating 8 U.S.C. § 1306(b), Ushi Shiroma in defense asserted that being a native of Okinawa, and Okinawa being a possession of the United States since World War II, he was not an alien but a national of the United States. Since the defendant was not a citizen of the United States, he could only qualify as a "national" of the United States, according to the definition in the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101 (a) (22), if he owed permanent allegiance to the United States which, as a correlative of the concept of sovereignty, is owed, in the Court's determination, only to a "de jure sovereign".

Discussing this concept of residual sovereignty, the Court declared:

"The adjective 'residual' means of the nature of something left. as residue. Thus the concept of 'residual sovereignty' starts with the assumption that sovereignty is capable of division.

"Under Article 3 of the Treaty of Peace, Japan which previously had full sovereignty over Okinawa transferred a part of that sovereignty, while retaining the residue. That portion of the sovereignty which gives the United States 'the right to exercise all and any powers of administration, legislation and jurisdiction' under Article 3 may be labeled 'de facto sovereignty." The residue or 'residual sovereignty' retained by Japan is the traditional 'de jure sovereignty.'

Accordingly, the Court concluded that "Japan, and not the United States, having 'de jure sovereignty' over Okinawa since the ratification of the Treaty of Peace, the defendant is not a national of the United States. . . ."

In reaching its decision, the Court attributed great weight to the construction given the terms of article 3 of this Treaty by John Foster Dulles (supra) and acquiesced in by the other signatory powers. In addition, the Court quoted from a letter dated May 14, 1952, from the Office of the Legal Adviser of the Department of State which stated in part:

"1. A legal opinion is requested on the request of the Japanese Vice Minister for Foreign Affairs dated 10 December 1951, that the United States confirm that the 'Southern Islands' (the

Ryukyus and the Bonins) remain under the sovereignty of Japan and that their inhabitants remain Japanese nationals.

"6. It is concluded that sovereignty over the Ryukyu and Bonin Islands remains in Japan, and that the inhabitants thereof are Japanese nationals."

123 F. Supp. 145, 149 (D.C. Hawaii 1954). For determination of Okinawa as a "foreign country" after World War II and prior to the Treaty of Peace with Japan within the meaning of the Federal Tort Claims Act and distinction between "de facto" and “de jure” sovereignty, see Cobb v. United States, 191 F. 2d 604 (9th Cir. 1951).

In reply to a letter inquiring about the status of the Ryukyu Islands, the Office of the Legal Adviser of the Department of State in a letter of July 31, 1959, wrote:

"You inquire firstly whether any steps have been taken or are likely to be made in the future to place the islands under the United Nations trusteeship system. The United States Government has not made any such proposal to the United Nations, and, as to the future, has repeatedly declared its intention to exercise its present powers and rights so long as conditions of threat and tension exist in the Far East, thereby enabling the United States to contribute effectively to the maintenance of security in that The statement contained in the joint communique of June 21, 1957, issued by President Eisenhower and Prime Minister Kishi at the conclusion of their talks in Washington continues to be the definitive statement of United States policy on this subject. It is quoted below for your information:

"The Prime Minister emphasized the strong desire of the Japanese people for the return of administrative control over the Ryukyu and Bonin Islands to Japan. The President reaffirmed the United States position that Japan possesses residual sovereignty over these islands. He pointed out, however, that so long as the conditions of threat and tension exist in the Far East, the United States will find it necessary to continue the present status.' ('Department of State Bulletin', July 8, 1957, page 52.)

"Your second inquiry relates to the phrase 'residual sovereignty'.

"This phrase expresses the idea that, far from being a cession of sovereignty, Article 3 of the Peace Treaty contains provision only for the broad exercise of the rights and powers of sovereignty by the United States. Thus, the United States has not annexed the islands or claimed sovereignty over them; sovereignty remains in Japan-even though in a latent or residual form. But the right to exercise the rights and powers usually associated with sovereignty has been given to the United States. "A discussion of the situation where one state actually exercises sovereignty which is, in law, vested elsewhere may be found

in I Oppenheim, International Law 455 (8th ed., Lauterpacht 1955). Analysis of the concept of residual sovereignty took place in at least two court decisions: Cobb v. United States, 191 F. 2d 604, 608 (9th Cir. 1951), and United States v. Ushi Shiroma, 123 F. Supp. 145 (D.C. Hawaii 1954). Reference might also be made to the remarks of the Honorable Leon H. Gavin in the United States House of Representatives entitled, "The Precise Status of the Ryukyu Islands', 104 Cong. Rec. App. 283 (daily ed. Jan. 15, 1958). For an instructive illustration of the concept of residual sovereignty in practice, study should be made of the relinquishment by the United States on December 25, 1953 of its right under Article 3 of the Japanese Peace Treaty in favor of resumption by Japan of authority over the Amami Öshima group in the Ryukyu Islands. (4 USŤ 2912; TIAS 2895)."

The Office of the Legal Adviser (Maurer) to John Brimley, letter, July 31, 1959, MS. Department of State, file 794c.0221/7-1759.

"Undoubtedly, on occasions, states exercise jurisdictional rights over territory rights of jurisdiction or control' or 'exclusive jurisdiction and control' [the author is referring to the language of certain proclamations, etc., with reference to the continental shelf]-although they do not possess or claim sovereignty. This is so in all cases in which the exercise of sovereignty is divorced from residuary sovereignty vested with and delegated by a higher authority (as in the case of the mandates of the League of Nations or trust territories under the Charter of the United Nations) or by another state (as in the case of leases, grants in perpetuity, and the like). . .

Lauterpacht, "Sovereignty Over Submarine Areas", XXVII Brit. Yb. Int'l L. (1950) 376, 389, n. 2.

It is not unusual for the status of a particular state's sovereignty to be far from clear. Thus, it may be unclear, indeterminable, or even in some instances considered to be in suspense, at least by certain persons.

In an address before the White House Correspondents Association, February 12, 1943, President Roosevelt remarked: "French sovereignty rests with the people of France. Its expression has been temporarily suspended by German occupation. Once the triumphant armies of the United Nations have expelled the common foe, Frenchmen will be represented by a government of their own popular choice."

VIII Bulletin, Department of State, No. 190, Feb. 13, 1943, p. 145. "Despite the substantive resemblance of the State Treaty [for Austria the Re-establishment of an Independent and Democratic Austria] to a treaty of peace, in that its nine parts contain provisions normally associated with the restoration of peaceful amicable relations between hostile States, it appears that the Allied Powers did not regard it as a treaty of peace. The United Kingdom,