Excerpt from p. 635 - 638
The Cairo Declaration is not, in the formal sense, a "legal" document. It was not ratified and, indeed, the missions of the three declarants probably did not have authorizations to conclude a policy revision of such scope. The factual erors in the document indicate that the declarants had not even fully briefed themselves. More importantly, the interpretations attached to the Declaration subsequently by the United States and the United Kingdom reinforce the impression that the Declaration was merely a perorative conclusion to what had been a planning session for a complex military campaign. (FN: 133)
(133) In its aide memoire of December 27, 1950, the United States interpreted the Cairo Declaration in these words:
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. The United States cannot accept the view, apparently put forward by the Soviet government, that the views of other Allies not represented at Cairo must be wholly ignored. Also, the United States believes that decflarations such as that issued at Cairo must necessarily be considered in the light of the United Nations Charter, the obligations of which prevail over any other international agreement. Reference:
DOCUMENTS ON INTERNATIONAL AFFAIRS 1949-1950, at 622-23 (M. Carlyle ed. 1953); 3 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW, at 511 - 12 (1964).
The British view:
The British view was even more unequivocal. Prime Minister Winston Churchill stated that the Cairo Declaration "contained merely a statement of common purpose." 536 PARL. DEB., H.C. (5th ser.) 901 (1955). See also Lauterpacht, The Contemporary Practice of the United Kingdom in the Field of International Law: Survey and Comment, 8 INT'L COMP. L.Q. 146, 186 et. seq. (1959). For general discussion and appraisal, see Jain, The Legal Status of Formosa, 57 AM. J. INT'L L. 25 (1963), at 27 et. seq.; Chen, Legal Status of Formosa, 4 PHILIPPINE INT'L L.J. 99 (1965), at 131 - 36; etc.
George F. Kennan observed:
No one seems to know from what deliberations this declaration [Cairo] issued; it was apparently drafted, at the moment, by Harry Hopkins, after consultation only with the President and the Chinese visitors. Of all the acts of American statemanship in this unhappy chapter, the issuance of this declaration, which is so rarely criticized, seems to me to have been the most unfortunate in its consequences. The other direct results of this phase of American statesmanship have either been erased by subsequent events or seem to have produced, at least, no wholly calamitous after effects to date; but this thoughtless tossing to China of a heavily inhabited and strategically important island which had not belonged to it in recent decades, and particularly the taking of this step before we had any idea of what the future China was going to be like, and without any consultation of the wishes of the inhabitants of the island, produced a situation which today represents a major embarrassement to United States policy, and constitutes one of the great danger spots of the postwar world. Reference: G. KENNAN, RUSSIAN AND THE WEST UNDER LENIN AND STALIN 376 - 77 (1960).
George H. Kerr also wrote:
This was not a carefully prepared State Paper but rather a promise to divide the spoils, dangled before the wavering Chinese. It was a declaration of intent, promising a redistribution of territories held by the Japanese. None of the territories mentioned in the document were at that moment in Allied hands. The Allied leaders had to show a bold face before the world, but in truth no one then knew what ultimate course the war might take . . . It is difficult now to understand the offhand manner in which the Conference produced the document. . . . For whatever reason, the Cairo Declaration is as noteworthy for historical inaccuracies within the text as for its rhetorical flourishes. The latter made good propaganda, but the former set a dangerous trap. Some of the damage to American interests will never be repaired. Reference: G. KERR, Formosa Betrayed (1965).
In general, international lawyers are reluctant to attach enduring legal sifnificance to wartime declarations precisely because they are framed as propaganda instruments for short range mobilizations of support and are rarely attended by intentions of permanent policy change. The form of an international document is not, however, the decisive determinant of its validity. The critical question is always the expectations of the framers which the document is to signify. (FN: 134) On the other hand, formal factors should not be minimized because the manifest purpose for which they are introduced is to indicate, through maximum ceremonialization, that the participants did indeed intend to commit themselves to a new policy program henceforth deemed authoritative. Thus the absence of legal formalities in the Cairo Declaration may itself be taken as a communication of an intention not to create a prescription.
(134) M. McDOUGAL, H. LASSWELL & J. MILLER, THE INTERPRETATION OF AGREEMENTS AND WORLD PUBLIC ORDER, PRINCIPLES OF CONTENT AND PROCEDURE 39 et. seq. (1967)
Certain postwar policies were again enunciated by the three major Allies -- the United States, the United Kingdom, and the Union of Soviet Socialist Republics -- at Potsdam in 1945. The concluding Potsdam Declaration of July 26, 1945, contained, in Section eight, a confirmation of the Cairo Declaration:
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.
(135) 13 DEP'T STATE BULL. 137 (1945).
Most of the reservations raised in regard to the Cairo Declaration would apply once again here.
The Cairo and Potsdam Declarations are not, of course, meaningless, for they patently communicated something. It remains to assess, for our purposes, the content and intensity of that communication, and whether the expectations generated thereby may be said to have created an international title. In particular, we must ask whether or not they conformed to temporally relevant international norms. A number of lines of reasoning press us to the conclusion that Cairo and Potsdam did not, indeed could not, create an international title, but as most a sort of jus ad rem, a claim on other Allies to participate at some future time in the perfection of a title in conformity with the law.
The primary reasons why Cairo and Potsdam could not create international title stem from (i) the capacity of the declarants and (ii) the environing international norms which prevailed at the time. As to the capacity of the declarants, three states were simply not empowered under the principles and peremptory procedures of the Covenant of the League of Nations then in force, to decide that the territory held, and formerly recognized as validly so held by another, could now be forcibly removed from that state. (FN: 136) Such incapacity could not be cured by the allegation that the territories to be transferred were in fact "stolen," unless and until that allegation was established authoritatively under the principles and procedures of the Covenant. It follows that while Cairo might have validly established longer range trilateral territorial intentions, it could not establish title, because under international law the parties to it lacked the capacity to do this.
(136) See LEAGUE OF NATIONS COVENANT, preamble: "The maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another." Note also that the Covenant in its inventory of penalties for non-compliance, makes no mention whatsoever of territorial disruptions. Id. art. 16. See J. KNUDSON, A HISTORY OF THE LEAGUE OF NATIONS 373 - 83 (1938). See also LEAGUE OF NATIONS OFF. J., Spec. Supp. No. 101, at 87 - 88 (1932). Even prior to the Covenant, a conspiracy among two or three states to dismember another state could not eo ipso be a ground for title. If title vested at all, it vested by a subsequent successful conquest. Cf. 1 OPPENHEIM INTERNATIONAL LAW (8th ed., 1955), at 566 et. seq. As to the purported lawfulness of such an act after 1919, see Briggs, Non-Recognition of Title by Conquest and Limitations on the Doctrine, 1940 PROCEEDINGS AM. SOC. INT'L L. 72 et. seq.