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.
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.