Cairo and Potsdam Declarations
In 1941, China proclaimed that all treaties with Japan were abrogated. (FN: 129) Though this act was devoid 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.
(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.