L/FE (Legal Adviser for Far Eastern Affairs, US Department of State) has undertaken a study of the legal status of Formosa (Taiwan) and the Pescadores Islands (Penghu) with the thought that such a study might prove helpful to the officers of the Department concerned with Chinese affairs.
HISTORY OF STATUS OF FORMOSA AND THE PESCADORES
Prior to the Korean Hostilities
From the middle of the 17th century to 1895, Formosa and the Pescadores were part of the Chinese Empire. China then ceded these islands to Japan in 1895 in the Treaty of Shimonoseki.
When China declared war on Japan on December 9, 1941, she also declared that all treaties concerning the relations between China and Japan "are and remain null and void."
In the Cairo Declaration of 1943, the United States, Great Britain and China stated it to be their purpose that "all the territories that Japan has stolen from the Chinese, such as . . . Formosa and the Pescadores, shall be restored to the Republic of China."
These same three governments on July 26, 1945 issued the Potsdam Proclamation declaring that "the terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine." On August 8, 1945 the Soviet Union adhered to the Potsdam Proclamation.
In the Instrument of Surrender signed September 2, 1945, the Japanese Government accepted its provisions.
Pursuant to Japanese Imperial General Headquarters General Order No. 1 issued at the direction of the Supreme Commander for the Allied Powers (SCAP), Japanese commanders in Formosa surrendered to Generalissimo Chiang Kai-shek "acting on behalf of the United States, the Republic of China, the United Kingdom and the British Empire, and the Union of Soviet Socialist Republics."
Continuously since that time, the Government of the Republic of China has occupied and administered Formosa and the Pescadores and subsequent to the surrender declared Formosa to be a part of China.
Although there is no indication that the United States ever received official notification of such declaration, it can be said that the United States was aware of the fact that the Republic of China treated Formosa as a part of China.
The view of the United States government in the post-war period, however, was typified by a statement on April 11, 1947 of Acting Secretary Acheson that the transfer of sovereignty over Formosa to China "has not yet been formalized."
Sovereignty, it would appear, remained in Japan.
After a prolonged period of civil strife, the Chinese Communists succeeded in driving the Government of the Republic of China off the Chinese mainland. On October 1, 1949 the Chinese Communists proclaimed the establishment of the Peoples Republic of China. The seat of the Government of the Republic of China was transferred to Formosa, and in early December 1949, Taipei became its provisional capital.
The Korean Conflict
The outbreak of hostilities in Korea on June 25, 1950 brought to the fore the question of the status of Formosa and the Pescadores. President Truman, in ordering the U.S. Seventh Fleet to prevent any attack on Formosa, stated 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 August 25, 1950] the United States replied to the United Nations Security Council that
"The action of the United States was expressly stated to be without prejudice to the future political settlement of the status of the island. The actual status of the island is that it is territory taken from Japan by the victory of the allied forces in the Pacific. Like other such territories, its legal status cannot be fixed until there is international action to determine its future.
The Chinese Government was asked by the Allies to take the surrender of the Japanese forces on the Island. That is the reason the Chinese are there now."
By a letter dated September 20, 1950, the United States requested that the question of Formosa be placed on the agenda of the fifth session of the U.N. General Assembly. In an explanatory note of September 21, the United States, citing the Cairo and Potsdam declarations and the Japanese surrender, stated nevertheless:
"Formal transfer of Formosa to China was to await the conclusion of peace with Japan or some other appropriate formal act."
Consideration of this item by the General Assembly was eventually postponed.
Meanwhile the Soviet Union submitted a draft resolution to the UN Security Council condemning the United States for acts of aggression and intervention in the internal affairs of China. The USSR also proposed for inclusion on the agenda of the fifth regular session of the General Assembly the question of "American aggression against China." In both cases the USSR asserted that Taiwan was an inalienable part of the territory of China.
The U.S. delegate in Committee One, John Foster Dulles, answered the Soviet complaint of aggression in part as follows:
"In connection with this whole question of Formosa, I think it is wise for us to bear in mind that Formosa is still affected with an international interest.
It is a former Japanese colony in the process of detachment.
The United States certainly is entitled to some voice in the determination of the future of Formosa, because if it were not for the tremendous military effort and the great sacrifice which the United States made in that area of the world, none of us here today would be sitting around talking about Formosa.
"The United States, as one of the principal victors in the war against Japan, has a legitimate voice in what President Truman referred to as the "determination of the future status of Formosa," which he says, "must await the restoration of security in the Pacific, a peace settlement with Japan or consideration by the United Nations."
The Security Council defeated the Soviet resolution, and the General Assembly failed to endorse the charges against the U.S.
Japanese Peace Treaty
In September and October 1950, the United States proposed in a brief statement to the members of the Far Eastern Commission general principles for a Peace Treaty with Japan.
In an aide memoire dated November 20, 1950, the USSR commented:
"2. By the Cairo Declaration of December 1, 1943 . . . and the Potsdam Agreement of July 26, 1945 . . . the question of returning Formosa and the Pescadores to China was decided. In a similar manner the Yalta Agreement of February 11, 1945 . . . decided the questions of returning the southern part of Sakhalin Island and the adjacent islands to the Soviet Union and handing over to her the Kurile Islands."
The United States replied in an aide memoire dated December 27, 1950:
" . . . 2. The Cairo Declaration of 1943 stated the purpose to restore 'Manchuria, Formosa and the Pescadores to the Republic of China.'
That declaration, like other wartime declarations such as those of Yalta and Potsdam, was in the opinion of the United States Government subject to any final peace settlement where all relevant factors should be considered . . . "
From September 4 to 8, 1951 a conference for the conclusion and signature of a Treaty of Peace with Japan was held at San Francisco.
China was not represented at the Conference because of the disagreement among the participants as to who actually represented the government of that country. Reflecting this disagreement is Article 2 of the Peace Treaty as it was signed on September 8 which reads in its pertinent part:
"(b) Japan renounces all right, title and claim to Formosa and the Pescadores."
John Foster Dulles, U.S. delegate at the Conference, commented on this provision in Article 2:
"Some Allied Powers suggested that Article 2 should not merely delimit Japanese sovereignty according to Potsdam, but specify precisely the ultimate disposition of each of the ex-Japanese territories. This, admittedly, would have been neater.
But it would have raised questions as to which there are now no agreed answers.
We had either to give Japan peace on the Potsdam surrender terms or deny peace to Japan while the allies quarrel about what shall be done with what Japan is prepared, and required, to give up.
Clearly, the wise course was to proceed now, so far as Japan is concerned, leaving the future to resolve doubts by invoking international solvents other than this treaty.
The delegate of the United Kingdom remarked:
"The treaty also provides for Japan to renounce its sovereignty over Formosa and the Pescadores Islands. The treaty itself does not determine the future of these islands."
The USSR refused to sign the Treaty. It objected, among other things, to the provision regarding Formosa and the Pescadores:
" . . . this draft grossly violates the indisputable rights of China to the return of integral parts of Chinese territory; Taiwan, the Pescadores, the Paracel and other islands . . . . the draft contains only a reference to the renunciation by Japan of its rights to these territories but intentionally omits any mention of the further fate of these territories."
It is clear from these and other statements made at San Francisco, that sovereignty over Formosa and the Pescadores was not considered to have finally been determined by the Peace Treaty.
The Senate Committee on Foreign Relations also took this view. In its Report on the Treaty dated February 14, 1952, the Committee stated:
"It is important to remember that Article 2 is a renunciatory article and makes no provision for the power or powers which are to succeded Japan in the possession of and sovereignty over the ceded territory.
"During the negotiation of the Treaty some of the Allied Powers expressed the view that Article 2 of the treaty should not only relieve Japan of its sovereignty over the territories in question but should indicate specifically what disposition was to be made of each of them.
The committee believes, however, that this would have been an unwise course to pursue.
It might have raised differences among the allies which would have complicated and prolonged the conclusions of the peace.
Under the circumstances it seems far better to have the treaty enter into force now, leaving to the future the final disposition of such areas as South Sakhalin and the Kuriles."
Although China was not a party to the San Francisco Treaty, a separate Treaty of Peace between the Republic of China and Japan was signed in Taipei on April 28, 1952.
Article II of that treaty provided:
"It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951 . . . Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands."
Article 25 of the Treaty stated that the Treaty shall not confer any rights, title or benefits on any state not a party to the Treaty.
Chinese Mutual Defense Treaty and the Formosa Resolution
Against the background of a massive Chinese Communist propaganda campaign for the "liberation" of Taiwan, supplemented by military action against Quemoy and other offshore islands, the United States and the Republic of China signed a Mutual defense Treaty on December 2, 1954.
The first paragraph of Article V of the Treaty reads:
"Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes."
Article VI provides that for the purpose of Article V the term "territories" shall mean in respect to the Republic of China, "Taiwan and the Pescadores." In an exchange of notes accompanying the Treaty, there appears the statement, "The Republic of China effectively controls both the territory described in Article VI of the Treaty of Mutual Defense . . . and other territory."
In its report on the Treaty, the Senate Committee on Foreign Relations briefly discussed the question of the status of Formosa and the Pescadores:
"By the peace treaty of September 8, 1951, signed with the United States and other powers, Japan renounced 'all right, title and claim to Formosa and the Pescadores.'
The treaty did not specify the nation to which such right, title and claim passed.
Although the Republic of China was not a signatory to the Treaty, it and the parties at the conference expressly recognized that it did not dispose finally of Formosa and the Pescadores . . . .
"Secretary Dulles informed the committee that the reference in Article V to 'the territories of either of the Parties' was language carefully chosen to avoid denoting anything one way or another as to their sovereignty.
"It is the view of the committee that the coming into force of the present treaty will not modify or affect the existing legal status of Formosa and the Pescadores.
The treaty appears to be wholly consistent with all actions taken by the United States in this matter since the end of World War II, and does not introduce any basically new element in our relations with the territories in question . . . .
"To avoid any possibility of misunderstanding on this aspect of the treaty, the committee decided it would be useful to include in this report the following statement:
It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies."
The question of the status of Formosa and the Pescadores was again discussed on January 24, 1955, before a joint executive session of the Senate committees on Foreign Relations and Armed Services, in connection with the Formosa Resolution.
It is understood that during the course of these hearings, Secretary Dulles indicated that sovereignty over Formosa and the Pescadores was not considered to have been transferred to the Republic of China in the Japanese Peace Treaty and that the question of sovereignty over these islands was not yet finally determined.
It may be well at this time to examine the various legal theories outlined [in] this memorandum regarding the status of Formosa and the Pescadores in the light of the historical analysis set forth above.
1. The most tenable theory regarding the status of Formosa and the Pescadores is that sovereignty over the islands has not yet been finally determined. The Cairo and Potsdam declarations were statements of intention on the part of the Allied Powers that the islands would return to "the Republic of China."
Chiang Kai-shek was authorized by the Allied Powers to take the surrender of the Japanese on the islands, and the Government of the Republic of China has continued to occupy and administer the islands ever since.
This surrender by Japan of Formosa and the Pescadores, although providing a legal basis for the continued occupation and administration of the islands by the Government of the Republic of China, would not appear to have effected a transfer of sovereignty to the Republic of China.
Because of differences among the Allied Powers as to who represented China, no agreement on the disposition of Formosa and the Pescadores could be reached in the Japanese Peace Treaty.
That the San Francisco Peace Treaty was intended to divest Japan of its sovereignty over the islands without transferring that sovereignty to any other country is abundantly clear from the record.
There does not appear to have occurred anything subsequent to the Peace Treaty which can be said to have effected a transfer of that sovereignty.
An analogy to the status of Formosa as described may be found in the case of Cuba after the Spanish-American War.
By Article I of the treaty of peace between the United States and Spain of December 10, 1898, Spain relinquished "all claim of sovereignty over and title to Cuba."
Although the treaty named the United States as occupying power for the relinquished territory, it did not specify to whom sovereignty was to be transferred.
It may be well to point out that the legal status of the offshore islands, the Quemoy and Matsu groups, is different from that of Formosa and the Pescadores as described here.
The offshore islands, although like Formosa and the Pescadores under the control of the Republic of China, have always been considered as part of "China."
As Secretary Dulles explained:
"The legal position is different . . . , by virtue of the fact that technical sovereignty over Formosa and the Pescadores has never been settled.
That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands.
But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan.
Therefore the juridical status of these islands, Formosa and the Pescadores, is different from the juridical status of the offshore islands which have always been Chinese territory."
The usual way in which a formal transfer of territory is effected under international law is by cession, which typically consists of an agreement between the ceding and acquiring state.
No such cession has occurred here. As has been seen, the Republic of China did declare the islands to be a part of China subsequent to the surrender, and such declaration might be considered an annexation of this territory.
However, in view of the fact that Chiang Kai-shek, in accepting the Japanese surrender, was acting on behalf of the Allied Powers, it may be questioned whether any such attempted annexation would have validity in international law.
Normally, military occupation does not have the effect of transferring sovereignty over the occupied territory to the occupant.
Furthermore, the whole history of the San Francisco and Sino-Japanese Peace Treaties casts doubt on this interpretation.
. . . . it has been contended that the transfer of Formosa and the Pescadores to Japan in the Treaty of Shimonoseki was null and void in that these islands had been taken away from China at that time by force, contrary to international law.
However, it is generally accepted that international law as it existed at that time disregarded "the effect of coercion in the conclusion of a treaty imposed by the victor upon the vanquished State" (I Oppenheim, International Law 891 (8th ed. Lauterpacht 1955)).
On February 11, 1945, at Yalta, Churchill, Roosevelt, and Stalin agreed that the USSR would enter the war against Japan on condition, among others, that the southern part of Sakhalin and all the islands adjacent to it "shall be returned to the Soviet Union" and that the Kurile Islands "shall be handed over the Soviet Union."
The Yalta agreement like the Cairo declaration has been considered by the United States to be a statement of intention rather than as creating binding international commitments.
The question of the status of Formosa and the Pescadores must be viewed in the light of a parallel question regarding the Kurile Islands, the southern portions of Sakhalin and certain islands adjacent to it.
Pursuant to the same instrument which directed Chiang Kai-shek to accept the Japanese surrender on Formosa and the Pescadores, the Soviet Union accepted the Japanese surrender on these islands had has continuously thereafter controlled and administered them.
The USSR purported to annex the islands by a decree of February 2, 1946.
The United States Government has maintained, however, that the USSR does not possess sovereignty over them.