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http://www.taipeitimes.com/News/editorials/archives/2005/10/03/2003274286

No other state has title to Taiwan
By Frank Chiang 江永芳

Monday, Oct 03, 2005,

At a meeting celebrating the "60th anniversary of the liberation of Taiwan," Chinese Nationalist Party (KMT) Chairman Ma Ying-Jeou (馬英九) said in a speech that Taiwan was returned to the Republic of China after the war. As Ma noted, the Potsdam Proclamation of 1945 states that "the terms of the Cairo Declaration shall be carried out." The terms in the Cairo Declaration state that " ... Formosa and the Pescadores shall be returned to the Republic of China."

Ma therefore claims that the Potsdam Proclamation constitutes the legal basis for the return of Taiwan to the Republic of China (ROC). He then claimed that "Taiwan has never been Japanese" at the same meeting (China Times, Sept. 9, 2005).

No serious expert in international law could ever make Ma's statement that "Taiwan island has never been Japanese," because China ceded it to Japan in the Treaty of Shimonoseki in 1895.

Further, if Ma's statement was true, it would contradict his claim that Taiwan was returned to China pursuant to the Potsdam Proclamation. If Taiwan island was never Japanese, then why would it need to be returned to China? The statement is not worthy of further rebuttal.

`Neither the ROC government nor the PRC government can claim title to Taiwan island on behalf of China based on the Cairo Declaration or the Potsdam Proclamation.'

This article will comment on his claim that Taiwan was returned to China pursuant to the Potsdam Proclamation. Before examining his claim, a brief review of the historical background of these declarations is in order.

In 1941, Japan declared war against the US, which then led the Allied Powers engaging Japan in the Pacific War. In 1943, while the Pacific War was in progress, US president Franklin Roosevelt, British Prime Minister Winston Churchill and Generalissimo Chiang Kai-shek (蔣介石) met in Cairo to discuss the strategy for defeating Japan.

On Dec. 1, 1943, the three governments issued a joint statement known as the Cairo Declaration. The Cairo Declaration states, "The Three allies covet no gain for themselves and have no thought of territorial expansion. It is their purpose that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. The aforesaid three great powers are determined that in due course Korea shall become free and independent."

In 1945, after Germany surrendered, US president Harry Truman, Churchill and the Soviet leader Josef Stalin conferred in Potsdam on the postwar disposition of Europe. During the conference, the heads of governments of the US, UK and China (despite Chiang's absence from the conference) issued the "Proclamation Defining Terms for Japanese Surrender," which as part of the Potsdam Declaration confirmed the Cairo Declaration with respect to the future of Formosa and Pescadores (collectively, "Taiwan island").

The Potsdam Proclamation states that "the terms of the Cairo Declaration shall be carried out."

The intention of the three government leaders expressed at the time of issuing these two declarations was that Taiwan island should be returned to China after the war. That point is not disputed here. However, the nature and the legal effect of these declarations in international law are not as clear, and will be analyzed below.

First, the two declarations, by their nature, are not binding on the declaring governments or their succeeding governments. A joint declaration of two or more governments, like a communique, is often used to express the common foreign policy or the common intent of those governments. Declarations are not treaties. They certainly do not have the characteristics of a contract in private law. They do not create a binding obligation on the governments involved, let alone on the states which the governments represent.

The Cairo Declaration was only a statement of the three governments' common intent. Although there was an intent to return Taiwan island to China after the war ended, Churchill, who took part in the Cairo Declaration, said the declaration "contained merely a statement of common purpose."

British foreign secretary Anthony Eden also said that the declaration was "merely a statement of intention that Formosa should be retroceded to China after the war," an event "that never materialized."

Similarly, in May 1955 the British joint under-foreign secretary Robin Turton said that "the Cairo Declaration was couched in the form of a statement of intention, and as it was merely a statement of intention, it is merely binding in so far as it states the intent at that time."

With the major parties involved in the Cairo Declaration clearly indicating that it was not meant to be binding, it is untenable to hold it so. The Potsdam Proclamation, like the Cairo Declaration, is also a statement of intention. Besides, if the Cairo Declaration was not binding on the governments involved, the Potsdam Proclamation, which refers to it, cannot be binding upon the governments either.

Second, the two declarations did not effectuate a transfer of title to Taiwan island. At the time when the two declarations were issued, Japan had not yet surrendered. The Allied Powers were winning the war, but had not yet defeated Japan. A general rule of law is that one cannot give something that one does not have.

Even assuming, for the sake of argument, that the declarations were considered contractual promises to offer Taiwan island to China, they could not effectuate a transfer of Taiwan island to China. None of the three governments had title to Taiwan island at the time of the declarations. Nor could they force Japan to transfer the title to Taiwan island before Japan surrendered. Such a transfer could have been made at a postwar settlement in a treaty only after Japan surrendered.

At a congressional hearing held in May 1951, General Douglas MacArthur said "there were certain agreements that were entered into at Yalta, and other places, but legally Formosa is still a part of the Empire of Japan." Eight years after the Cairo Declaration, MacArthur, who assigned the task of post-surrender administration of Taiwan to Chiang, still said that Taiwan island was Japan's territory, clearly implying that neither the Cairo Declaration nor the Potsdam Proclamation nor anything else effectuated a transfer of Taiwan island to China. Turton agreed, saying the "Cairo Declaration cannot by itself transfer sovereignty."

The Allied Powers initially intended to return Taiwan island to China after the war. The But the ROC government had become embroiled in a civil war with the Chinese Communists, who forced Chiang's government to Taiwan island and established a new government, the People's Republic of China (PRC), in 1949.

After the Korean War erupted, the UK and the US governments changed their positions on Taiwan's fate.

They changed their positions because, by aiding North Korea's invasion of South Korea, the PRC violated the basic principles of non-aggression and no territorial ambitions proclaimed in the Cairo Declaration.

In May 1951, British foreign secretary Herbert Morrison made the following policy statement in the House of Commons: "The Cairo Declaration also proclaimed the intention that Korea should in due course become free and independent. It also expressed acceptance of two principles: non-aggression and no territorial ambitions.

British Prime Minister Benjamin [Atlee] went on to remark [on Dec. 14, 1950] that until China shows by her action that she is not obstructing fulfillment of the Cairo Declaration in respect of Korea and accepts the basic principle of that Declaration, it will be difficult to reach a satisfactory solution of this problem [of Formosa]."

In February 1955, Churchill, who had been one of the signatories to the Cairo Declaration more than a decade earlier, said, "since [the Cairo Declaration] was made a lot of things have happened. The problem of Formosa has become an international problem in which a number of other nations are closely concerned."

The following day, the New York Times printed the headline, "Cairo Formosa Declaration Out of Date, Says Churchill."

The US government also changed its position with respect to the sovereignty over Taiwan because of Chinese aggression. One day after North Korea invaded South Korea, Truman changed his position. On June 27, 1950, he issued the Statement on Korea, in which he stated: "The Communists' attack upon Korea makes it plain that communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war. The occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to US forces performing their lawful and necessary functions in that area."

Although the Chinese Communists had not yet formally entered the Korean War at the time, Truman regarded North Korea's invasion of South Korea as part of a broad Communist attack scheme, and considered the Chinese Communist's invasion of Taiwan imminent. He ordered the US Seventh Fleet to prevent any attack on Taiwan by the Chinese Communists.

In a television interview in September 1950, US secretary of state Dean Acheson said: "The Cairo Declaration declares that Formosa should be returned to China. It also declares that Korea should be free and independent. In most of the discussions that we have about Formosa, we are reminded about the Formosan part of the Declaration, and both the Chinese and the Russians forget about the Korean part of the Declaration. Surely, the Declaration of Cairo is an important factor to be taken into consideration in the future settlement. But the future settlement is for the future."

The following year, the Allied Powers forced Japan to renounce its title to Taiwan in the Treaty of San Francisco, without designating a beneficiary. China was not given Taiwan island in the Treaty of San Francisco nor in any other treaty.

From the above analysis, it is clear that neither the ROC government nor the PRC government can claim title to Taiwan island on behalf of China based on the Cairo Declaration or the Potsdam Proclamation.

After the Treaty of San Francisco entered into force, Taiwan became a territorial entity and has belonged to no other country in the world.

Frank Chiang is president of the Taiwan Public Policy Council in the US and professor of law at Fordham University School of Law. The quotations and the theories discussed in this article are adapted from his articles "State, Sovereignty, and Taiwan" (Fordham International Law Journal, 2000), "The Territorial State and Taiwan" (The Comparative Law Journal of Japan, 2003), and "One-China Policy and Taiwan" (Fordham International Law Journal, 2004).