When the legal status of Taiwan is mentioned in our junior high school text books, the Cairo Declaration is always mentioned as being important to [the definition of] that legal status. This year, some scholars have demanded that the San Francisco Treaty of Peace with Japan, also known as the San Francisco Peace Treaty, be included in junior high school text books in order to inform students about historic changes related to Taiwan.
This is a good suggestion, although a few shortcomings remain. Although the aforementioned documents have proven their historical significance, it must be understood that, as a result of US president Harry Truman's post-war policy changes and his changed understanding of the document, the Cairo Declaration can no longer be relied upon as a document determining Taiwan's international status. That is the topic of this article.
ILLUSTRATION: YU SHA
Content and Functions of the Cairo Declaration
The allied forces arranged a meeting between ROC President Chiang Kai-shek (
On July 26, 1945, Truman, Churchill and Chiang issued a joint "Proclamation Defining Terms for Japanese Surrender," also known as the Potsdam Declaration, which stated that "The terms of the Cairo Declaration shall be carried out."
The Cairo Declaration, which illustrates the joint determination of the three states, was implemented following the end of the war. On Aug. 17, 1945, the Supreme Commander for the Allied Powers issued his General Order No 1: "The senior Japanese commanders and all ground, sea, air and auxiliary forces within China (excluding Manchuria), Formosa and French Indo-China north of 16 north latitude shall surrender to Generalissimo Chiang Kai-shek." The ROC government followed the order, and on Oct. 25 the ROC forces accepted the Japanese surrender in Taipei and took over administrative control of the island.
Judging from the text of the order, the task of the ROC forces was to "accept surrender," not to "occupy," and even less to "occupy permanently." The situation was similar to when ROC forces went to northern Vietnam to accept the surrender of the Japanese army and when the US accepted the surrender of the Japanese forces in Japan.
This has led to differing interpretations of the question of whether the acceptance of the surrender was meant to be on behalf of the allied forces or if it was meant to become a permanent occupation.
Judging from the ROC government's behavior, the acceptance of the surrender of the Japanese forces was, naturally, the same as the return [of Taiwan to the ROC government], since the Cairo Declaration stated that Taiwan and Penghu should be returned to the ROC. Following the acceptance of the surrender, Taiwan was immediately incorporated into the ROC's administrative system and ROC rule was effectively established. At the time, other nations did not interfere with or question the way in which the ROC took administrative control of Taiwan, nor did the US declare a differing view.
It is also worth delving into the question of whether there was a qualitative difference between the acceptance by the ROC armed forces of the surrender of the Japanese forces in Taiwan and their acceptance of the Japanese surrender in northern Vietnam or the US acceptance of the Japanese surrender in Japan and South Korea. From the very outset, the ROC government declared that its [presence in northern Vietnam to effect the] acceptance of the Japanese surrender was temporary. As soon as the task was completed, they left northern Vietnam, and there was never any intent to permanently occupy the area.
The same situation applied to the acceptance by the US forces of the surrender of the Japanese forces in Japan and South Korea. Japan and South Korea set up their own governments while the US established military bases in the two countries based on military cooperation agreements.
The biggest difference between these four examples was that the ROC government had advocated the establishment of an independent Vietnam prior to the Cairo Conference. The Cairo Declaration then specified that Taiwan and Penghu be returned to the ROC and that Korea be given independence. Item 12 in the Potsdam Declaration stated that Japan should develop gradually towards democracy, and that the occupying forces should leave once a popularly elected government had been established. These differences show that there was a clear legal intent behind the Cairo Declaration when it came to the future status of Taiwan and Penghu.
However, from the point of view of legal procedure, there were flaws in the process through which the ROC came to occupy Taiwan following its acceptance of the surrender of the Japanese forces here. Because Taiwan was ceded to Japan in a treaty, the recapture of Taiwanese and Penghu territory by the ROC from Japan should also be treaty-based.
The fact that the ROC's acquisition of the Taiwan and Penghu territories was not based on a treaty made it a non-treaty-based "occupation," and not a legal "acquisition." The Japanese left Taiwan after the surrender, and did not legally "return" Taiwan and Penghu. In the legal sense, the fact that Japanese military personnel and civilians left Taiwan and Penghu does not mean that it automatically lost its right of possession over the two islands since it didn't declare that it gave up this right.
Although Japan signed the surrender document on Sept. 2, 1949, promising to accept the text of the Potsdam Declaration, ie, unconditional surrender (stipulated in item 13), it didn't mean that the Taiwan and Penghu territories, both in Japanese possession, could be automatically transferred to the ROC.
Truman's declaration
On Jan. 5, 1950, just after civil war had once again divided China into two government entities, Truman declared that "The United States Government will not pursue a course which will lead to involvement in the civil conflict in China." It is obvious that US policy continued to be one of non-interference in the Taiwan Strait conflict. However, on June 27, 1950, following the outbreak of the Korean War on June 25, Truman declared the "neutralization of Formosa."
Most importantly, in a statement on the same day, Truman said that "The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations."
On June 28, the day following that statement, Truman sent the US' Seventh Fleet to patrol the Taiwan Strait to prevent China from attacking Taiwan, as well as to block Taiwanese forces from attacking China. The US goal was clear -- to respond with its full force to the war on the Korean peninsula it would be best if another war did not develop in the Taiwan Strait.
Truman's Far East policies were almost completely contrary to those of Franklin Roosevelt. For example, Roosevelt advocated placing Vietnam under international administration after the war and that the Chinese army should accept the surrender of the Japanese forces there.
However, when Roosevelt died towards the end of the war and Truman succeeded him, Truman completely overturned Roosevelt's Far East policy. He agreed to the British request that Vietnam be divided into a northern and a southern war theater, and that the Chinese and British armies should accept the surrender of the Japanese forces in North and South Vietnam, respectively. After the war, he also agreed to the French request that Chinese forces leave North Vietnam and that France station soldiers there. The same approach was applied to Taiwan. Roosevelt advocated the return of Taiwan to the ROC, while Truman advocated an undetermined status for Taiwan. His declaration fundamentally negated Roosevelt's position as declared in the Cairo Declaration.
Taiwan's position in the San Francisco Peace Treaty
In order to implement his new position on the issue of Taiwan's status, Truman on Sept. 14, 1950, proposed "Seven Principles for the Peace Treaty with Japan" which were to function as a guideline during peace talks with Japan. The third of these principles stated that "Japan will ... accept the future decision of the UK, the Soviet Union, China and the United States with reference to the status of Formosa, Pescadores, South Sakhalin and the Kuriles...."
At the time, the US supported the ROC government on Taiwan since it supported Taiwan's sending representatives to attend the San Francisco conference concerning the peace treaty with Japan.
The US' stance, however, was defeated, because the Soviet Union supported the attendance of the People's Republic of China in the 1951 conference. With both the US and the Soviet Union insisting on their positions, it was in the end decided that neither the ROC nor the PRC would be invited to the conference. A total of 51 countries attended the San Francisco conference, and on Sept. 8 the "Treaty of Peace With Japan" was passed and signed by 48 countries (the treaty was not signed by the Soviet Union, Poland and Czechoslovakia). Article 2, item 2, of the treaty states that "Japan renounces all right, title and claim to Formosa and the Pescadores." The US and the UK were among the signatories to the treaty, which was ratified by the parliaments of both countries.
The San Francisco Treaty of Peace with Japan is an international treaty signed by 48 countries and it has a high degree of binding legal force. Although the ROC did not sign this treaty, it did sign a bilateral peace treaty with Japan in 1952, a treaty which also includes the clause "Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands," which proves that the ROC also recognizes that Japan waived its rights to Taiwan and Penghu.
This shows that Truman, in the middle of the Korean War, had no intention of adhering to the statements made in the Cairo Declaration concerning Taiwan's status. The US opinion that Taiwan and Penghu belonged to the ROC changed, instead causing their international status to become ambiguous so that the US would not be infringing on Chinese territory if it in future were to send military forces to the Taiwan Strait.
In other words, the three countries signing the Cairo Declaration had by this time accepted that Japan had merely "renounced all right, title, and claim to Taiwan and Penghu." Looking at international precedent, the validity of an international treaty accepting that Japan has renounced all right, title, and claim to Taiwan and Penghu is far stronger than the opinion stated in the Cairo Declaration that Taiwan and Penghu belong to the ROC.
Finally, there is one more related issue worth mentioning -- the question of whether the Cairo Declaration is legally effective.
There has been a lot of debate concerning this issue, both from the perspective of the validity of the declaration, and from the perspective that the declaration had not been signed by the head of state of any of the three participating nations.
This debate, however, is superfluous. Due to the principles that more recent legislation takes precedence over earlier legislation, and that multilateral international agreements take precedence over declarations, the Cairo Declaration was invalidated or given secondary status by Truman's declaration and the passage of the San Francisco Peace Treaty. Furthermore, the San Francisco Peace Treaty's treatment of Taiwan and Penghu had been agreed to by the ROC, the US and the UK after the end of the war.
The ROC government occupies Taiwan and Penghu territories
The San Francisco Peace Treaty treated Taiwan and Penghu as territories renounced by Japan. Juridically speaking, the Taiwan and Penghu territories were abandoned, and since it had not been specified who should take over jurisdiction, they had become no man's land. However, as explained in the foregoing, the ROC government implemented effective administrative control over Taiwan and Penghu following the war.
Did this effective administrative control come to an end when Taiwan and Penghu became no man's land? That is not possible, because the ROC government, as a sovereign entity, had de facto control over Taiwan and Penghu, and it did not administer the territories as a trustee.
De facto, the ROC's administrative control over Taiwan and Penghu should therefore remain in effect. De jure, the ROC government was the first government to take administrative control when Japan renounced its rights over the Taiwan and Penghu territories, and it did so by means of occupation.
The PRC is the only country to offer a diverging opinion concerning the ROC government's occupying and taking over the Taiwan and Penghu territories. This should be a legal conflict -- armed confrontation would be an obvious violation of the UN's guiding principle that conflict be resolved by peaceful means. It also goes against Beijing's repeated declarations that it will use peaceful means to resolve conflict.
Conclusion
In order to meet its strategic needs in the Asia-Pacific region following the outbreak of the Korean War, the US rendered Taiwan's status uncertain in order to make it a link in its effort to stop communism from spreading to the Pacific islands. Because the ROC supported such changes, it gained US support and the survival of Taiwan instead of coming under communist rule.
One major issue that cannot be ignored is the fact that post-war changes in the international situation has meant changes to the validity of the Cairo Declaration.
Finally, I must stress that as far as the US' fundamental Taiwan policy goes, Truman's declaration and the San Francisco Treaty of Peace with Japan, which he planned, to this day lie at the heart of the US' Taiwan policy.
Chen Hurng-yu (
Translated by Perry Svensson
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