Cairo and Potsdam Declarations



In 1941, China proclaimed that all treaties with Japan were abrogated. (FN: 129) Though this act was deviod of legality and effect in international law, (FN: 130) China pressed its case at meetings of the Allies and succeeded, at last, in having some of its territorial demands incorporated in the Cairo Declaration of December 1, 1943, (FN: 131) which read in part:

      The Three Great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and 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. Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent.

      With these objects in view the three Allies, in harmony with those of the United Nations at war with Japan, will continue to persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan. (FN: 132)


(129) In its Declaration of War on Japan dated December 12, 1941, China stated: "The Chinese Government hereby formally declares war on Japan. The Chinese Government further declares that all treaties, coventions, agreements and contracts concerning the relations between China and Japan are and remain null and void." For the full text, see 5 DEP'T STATE BULL. 506 (1941).

(130) The most obvious limitation on unilateral denunciation of a treaty derives from those international legal norms affecting the party which are juridically independent of the treaty even though formally incorporated within it. See Vienna Convention on the Law of Treaties, art. 43:
The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.
This provision is obviously a codification of a general, indeed a necessary, principle of international law. Title vested in Japan at the time of, and/or because of, the Treaty of Shimonoseki, as the language of the Treaty clearly indicated. Such title, insofar as it is title, ceases to be a bilateral contractual relationship and becomes a real relationship in international law. Though contract may be a modality for transferring title, title is not a contractual relationship. Hence once it vests, it can no longer be susceptible to denunciation by a party to the treaty. In fact, war probably does not abrogate treaties of territorial settlement. In Society for the Propagation of the Gospel v. New Haven, 21 U.S. (8 Wheat.) 464, 494 - 95 (1823), the Supreme Court held that "treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as the case of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts . . . . "

(131) The Declaration was issued by President Franklin D. Roosevelt, Prime Minister Winston Churchill, and Generalissimo Chiang Kai-shek.

(132) 9 DEP'T STATE BULL. 393 (1943).

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. (FN: 135)

(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.


excerpted from:
Who Owns Taiwan: A Search for International Title, by Lung-chu Chen and W. M. Reisman, The Yale Law Journal, Vol. 81, No. 4, March 1972, pages 634 - 638







The Japanese Act of Surrender



In view of the Chinese claim that the surrender of Japan amounted to a transfer of sovereignty over Formosa and the Pescadores (aka "Taiwan"), it seems surprising that little attention is given by China to the Japan surrender documents and the events surrounding the surrender. Instead, the legal basis for China's claim to sovereignty over Taiwan rests almost entirely on the Cairo Declaration, a non-binding press release, issued unilaterally by a group of belligerents years before victory over the enemy was certain. An examination of the Act of Surrender in the China Theatre and other surrender documents may illuminate the situation:

(1) The Act of Surrender, and SCAP General Order no. 1, authorised the surrender of Japanese forces, not Japanese territories. The Act and the General Order were military directives, establishing procedures for demobilising Japanese forces. They were not meant to settle political issues. The assignment of members of the Allied coalition to disarm Japanese forces in certain areas in no way implied the members' permanent possession of those areas, no more so than General Ho Ying-chin's memorandum partitioned China amongst fifteen generals.

(2) The Act of Surrender authorised the surrender of Japanese forces to Chiang Kai-shek as Supreme Commander of Allied Forces in the China Theatre, not to the National Government of the Republic of China. This is clear from paragraph 1 of the Act, which states:
[T]he Supreme Commander for the Allied Powers, having directed by his General Order no. 1 that the senior commanders and all ground, sea, air and auxiliary forces within China excluding Manchuria, Formosa and French Indo-China north of 16 degrees north latitude shall surrender to Generalissimo Chiang Kai-shek.
Thus, the Act derives its authority directly from an order issued by General MacArthur, an order issued pursuant to the Instrument of Surrender signed in Tokyo Bay, which declares:
We [Hirohito] hereby command all civil, military and naval officials to obey and enforce all proclamations, and orders and directives deemed by the Supreme Commander for the Allied Powers to be proper to effectuate this surrender and issued by him or under his authority and we direct all such officials to remain at their posts and to continue to perform their non-combatant duties unless specifically relieved by him or under his authority.
So any directive made to effectuate the surrender of Japanese forces was made under the authority of the Supreme Commander for the Allied Powers. Nowhere in the Act is the Chinese government or the Chinese state ever mentioned; only the Generalissimo and SCAP are.

[Aside: Hirohito was so reluctant to recognise defeat at the hands of the Chinese that in his rescript issued upon accepting the terms of surrender on 15 August 1945, he stated " ... we are about to make peace with the United States, Britain, the Soviet Union, and Chungking", i.e. with the three states and the Supreme Allied Headquarters in the China Theatre, not China]

(3) Taiwan was not considered Chinese territory in the Act of Surrender. It was distinguished from China, and listed alongside French Indochina as an area to be disarmed by Chiang Kai-shek. Chiang was authorised to accept the surrender of Japanese forces in three areas: China, Formosa, and French Indochina north of the 16th parallel. Japanese possessions considered for transfer to China, such as Port Arthur, were not separately mentioned in the Act because they fell under the definition of China.

Moreover, General Ho Ying-chin's memorandum, which, in great detail, assigns forces to accept the surrender of the Japanese in China and Indochina, is silent on Formosa. It appears that as late as mid-August 1945, Formosa, which like the Ryukyus fell in the Pacific, not China, Theatre of Operations, was contemplated as being under the jurisdiction of the United States Navy.

(4) Although Chiang was not authorised to accept the surrender of Japanese forces in Manchuria, the Act of Surrender acknowledged Chinese claims, by specifically excluding the region from areas in China to be demobilised by Chiang ("China, excluding Manchuria"). China did not renounce sovereignty over Manchuria, despite this exclusion agreed to by the Generalissimo. Neither did the Soviet Union claim a transfer of sovereignty when her forces occupied the region. No similar implications are made in the Act about potential Chinese claims to Taiwan or Indochina.

(5) China did not acquire sovereignty over Indochina north of the 16th parallel, although Chiang Kai-shek was authorised to accept the surrender of Japanese forces there. Neither did the United Kingdom acquire sovereignty over Indochina south of the 16th parallel, although she was authorised to accept the surrender of Japanese forces there. China's claim that by accepting the surrender of Japanese forces on Taiwan, Chiang's forces had acquired sovereignty over the island for China is severely weakened by the fact that she does not make a claim for Indochina based on the same principle.

(6) The deployment of over 50,000 United States Marines, who accepted the surrender of over half a million Japanese troops in north China, did not injure China's claim of sovereignty over those areas. The presence of these forces in China for four years did not operate to transfer sovereignty over areas of China to the United States, just as the presence of Chiang Kai-shek's troops on Taiwan did not transfer sovereignty of the island over to him or China.

Conclusion

Neither the circumstances surrounding Japan's surrender in 1945 nor the provisions of the surrender documents evidence, or even suggest, that Japan transferred sovereignty over any of her former possessions as a result of her defeat in war.

China, unlike the other Allies, did not prevail against and displace Japan in any of her former possessions. Indeed, at the end of the war, she was on the brink of national annihilation. Aside from conquest, no other method for acquiring sovereignty applies in the period in question. Japan did not cede territories by her surrender; she would do that in the 1951 Peace Treaty, which came into force on April 28, 1952. No sovereignty issues with respect to former Japanese possessions were addressed until the 1951 Peace Treaty.

Japan did temporarily yield authority to exercise some of the rights of sovereignty over herself at the end of the war, not to any state, but to the Allies collectively:
"The authority of the Emperor and the Japanese Government to rule the state shall be subject to the Supreme Commander for the Allied Powers who will take such steps as he deems proper to effectuate these terms of surrender." (Instrument of Surrender)
Her pre-war possessions were also occupied by forces that acted on behalf of the Allies. Manchuria and northern Korea did not become Soviet territory; southern Korea, Japan proper, the Ryukyus and the Japanese mandate in the Pacific did not become United States territory; and Taiwan did not become Chinese territory. Paradoxically, China, the only Ally not to have prevailed against Japan, is also the only one making claims on occupied territories entrusted to her.


excerpted and adapted from:
The Surrender of Japanese Forces in China, Indochina, and Formosa,     Taiwan Documents Project,         http://www.taiwandocuments.org/         last update: 2002