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The Czyzak Memo 1961 - The Legal Status of Formosa (Taiwan) and the Pescadores Islands (Penghu)
August 31, 2021
U.S. Department of State, 03 February 1961
Memorandum
February 3, 1961
To: L - Mr. Chayes
From: L/FE - John J. Czyzak
Subject: Legal Status of Formosa (Taiwan) and the Pescadores Islands (Penghu)
L/FE 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.
The following legal theories, among others, have been advanced concerning the status of Formosa and the Pescadores;
1.
Sovereignty over Formosa and the Pescadores has not been finally determined. These islands have rightfully been occupied and administered by the Government of the Republic of China, whose President was authorized to and did accept their surrender by the Japanese at the end of World War II. At some later date, the islands might be recognized as constituting a) part of a single state of China; b) part of the state of the Republic of China as it has been left as a result of the Chinse civil war; c) a new state. This decision as to future status might be reached by agreement of the victorious powers of World War II on whose behalf Chiang Kai-shek was authorized to take the surrender of the Japanese troops in Formosa or by agreement of the parties to the Japanese Peace Treaty, through a plebiscite. Or through international recognition of the continued occupation by an authority claiming full sovereignty (for China, for the Republic of China, of for a new state, as the case may be. It has also been suggested that the islands be placed under the U. N. Trusteeship system or that they be considered as constituting an autonomous area under the suzerainty of a central government of China.
2.
Formosa and the Pescadores belong to the Republic of China. This theory is based on the proposition that, whereas there was formerly one China, there are now two Chinas: (a) the Republic of China, whose territory has now been diminished by civil war so that it comprises Formosa and the Pescadores (and perhaps the offshore islands occupied by it), and (b) the People’s Republic of China, which has become a successor state to the Republic of China as to all other territory. This theory rests also on the proposition that sovereignty over Formosa and the Pescadores has passed from Japan to the Republic of China either 1) because the undertaking in the Cairo Declaration was executed through Japan’s surrender and acceptance of the Potsdam Proclamation and through the actual Japanese surrender on these islands and their continued occupation by the Republic of China, or 2) because of the abrogation of the Treaty of Shimonoseki of 1895 (recognized by Article IV of the Treaty of Peace between the Republic of China and Japan of 1952) by which China ceded Formosa to Japan, as a result of which Formosa has reverted to the Republic of China.
3.
Formosa and the Pescadores belong to China. Sovereignty passed from Japan in one of the ways outlined in 2. Above. This theory is premised on the existence of a single state of China, with two governments competing for control of that state.
4.
Formosa and the Pescadores now form a condominium belonging either 1) to the victorious powers of World War II, or 2) to the parties to the Japanese Peace Treaty.
There follows a discussion of the question of the legal status of Formosa and the Pescadores, particularly of the position that the United States Government has taken heretofore in this matter. The conclusion is reached that from a legal viewpoint, the soundest theory concerning the status of these islands is that outlined in paragraph 1 above, namely that the question of sovereignty has not been finally determined.
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." (Taipei’s Tel. 360, October 17, 1959)
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" (A Decade of American Foreign Policy, 1941 – 1949, at 22). 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" (Id., At 49). 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 (Id., at 625).
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 (Memo of Conv. October 12, 1959, 793.00/10-1259). Although there is no indication that the United States ever received official notification of such declaration (Memo, P/HD to L/FE, October 30, 1959), 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" (Ibid). 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.
Shortly thereafter, President Truman, in a statement of January 5, 1950, referred to a UN General Assembly Resolution of December 8, 1949, (Res. 291 (IV)) which called on all states to refrain from “(a) seeking to acquire spheres of influence or to create foreign controlled regimes within the territory of China; (b) seeking to obtain special rights or privileges within the territory of China.” He said:
“A specific application of the foregoing principles is seen in the present situation with respect to Formosa….
“The United States has no predatory designs on Formosa or on any other Chinese territory. The United States has no desire to obtain special rights of privileges or to establish military bases on Formosa at this time… the United States Government will not pursue a course which will lead to involvement in the civil conflict in China.” (II American Foreign Policy 1950-1955, at 2448).
On the same date, Secretary of State Acheson attempted to elaborate on the President’s statement:
“The Chinese have administered Formosa for 4 years. Neither the United States no any other ally ever questioned that authority and that occupation. When Formosa was made a province of China nobody raised any lawyers’ doubts about that. That was regarded as in accordance with the commitments.
“Now, in the opinion of some, the situation is chanced. They believe that the forces now in control of the mainland of China,. . . are not [illegible] therefore they want to say, “Well, we have to wait for a treaty. We did not wait for a treaty on Korea. We did not wait for a Treaty on the islands over which we now have trusteeship.” (Id. At 2451).
In reply to certain questions raised by the House Committee on Foreign Affairs in connection with the Presidents statement of January 5, the Department of State commented:
“. . . Formosa has been administered by China since 1945, when Japanese forced on the island surrendered to Generalissimo Chiang Kai-shek. It was incorporated into China as a province. It is now the seat of the Chinese Government. The Allied Powers associated in the war against Japan have not questioned these steps because they were clearly in line with its commitments made at Cairo and reaffirmed at Potsdam. In other words, the Allied Powers including the United States have for the past 4 years treated Formosa as a part of China.” (H. Rept. No. 1618, 81st Cong. 2nd Sess., Report of House Committee on Foreign Affairs 1950-1955 at 2456).
From this series of statements it is not clear exactly what position the U.S. Government was taking at the time regarding the status of Formosa and the Pescadores. They could be read as recognizing the extension of China’s sovereignty over the islands and have been cited by the Chinese Communists as proof of that proposition.
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" (XXIII Dept. State Bull. 5 (1950)). In referring to this action, Foreign Minister Yeh of the Republic of China stated:
“That Taiwan is part of the territory of China is generally acknowledged by all concerned powers. The proposals of the U.S. Government should in no way alter the status of Formosa as envisaged in the Cairo Declaration, nor should it in any way affect China’s authority over Formosa.” (Tokyo’s 7, July 1, 1950, 795.00/7 – 150)
In a cablegram dated August 24, 1950 to the United Nations Security Council (U.N. Doc. No. S/171 [illegible] ts termed this action on the part of the United States as “a direct [illegible] aggression on the territory of China.” The fact that Taiwan was an integral part of China was based on history, affirmed by the situation existing since the surrender of Japan, and stipulated in such binding international agreements as the Cairo and Potsdam declarations, the Chinese Communists asserted. The next day, the United States replied (U.N. Doc. No. S/1716), inter alia, 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, (U.N. Doc. No. A/1373) 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 (U.N. Doc. No. A/1381), 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 (U.N. Doc. No. S/1757) 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." (U.N. Docs. No. A/1375, 20 September 1950; A/1382. 21 September 1950). 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’.1/
1/ This argument is reminiscent of the position espoused by the United States Government after World War I that there could be no valid or effective disposition of the former overseas possessions of Germany under the League of Nations mandate system without the assent of the United States as one of the participants in the victory (See e.g. II U.S. Foreign Relations 106 (1921)).
“I might say that the peace treaty with Japan is at the present time being discussed and only a few days ago the honorable delegate of the Soviet Union and I had a conversation about it. One of the subjects of conversation was what disposition would be made of Formosa in the Japanese Peace Treaty.”
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 among which appeared the following:
“Japan would . . . accept the future decision of the U.K., U.S.S.R., China and U.S. with reference to the status of Formosa, the Pescadores, South Sakhalin and the Kuriles. In the event of no decision within a year after the treaty came into effect, the U.N. General Assembly would decide.” (XXIII Dept. State. Bull. 881 (1950)).
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 . . . " (XXIV Dept. State Bull. 65 (1951)).
On March 29, 1951 the United States handed the Soviet Union a draft Japanese Peace Treaty. The remarks of the USSR regarding the provision relating to Formosa were as follows:
“. . . in the Cairo Declaration of 1943 it is directly states that the Island of Taiwan and the Pescadores Islands should be returned to China. In this American draft it is stated only that Japan renounces all rights to Taiwan and the Pescadores, which have actually been torn away from China, without change, in violation of the Cairo Agreement concerning the return of these islands to China.” (Id., at 856)
The United States, by memorandum of May 19, 1951 replied:
“The Cairo Declaration provided that ‘Manchuria, Formosa, and the Pescadores shall be returned to the Republic of China.’ . . . the remarks of the Soviet Government fail to quote accurately the Cairo Declaration. The word . . . ‘China’ is substituted for ‘The Republic of China.’
. . . . . . . . . . . . . . . . . . . .
“. . . in view of the fact that the Government of the Soviet Union has itself pointed out on numerous occasions that the ‘Republic of China’ is not identical with what the Soviet Government now refers to as the ‘Chinese People’s Republic,’ the Government of the United States inquires of the Government of the Soviet Union whether it in fact now desires that Formosa and the Pescadores should be restored to ‘the Republic of China.’
“ . . . the Japanese people ought not to be denied a state of peace because of a difference of opinion among the Allied Powers as to the subsequent disposition of Formosa and the Pescadores.” (Id., at 852)
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.“ (Record of Proceedings of the Conference for the Conclusion and Signature of the Treaty of Peace with Japan, at 78, Dept. State Publication 4392 (1951)).
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." (Id., at 93).
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." (Id., at 112).
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, (S. Exec. Rept. No. 2, 82d Cong., 2d sess.) 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 succeed 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 conclusion 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." (American Foreign Policy 1950 – 1955, at 470).
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."
Explaining this provision to the Legislative Yuan, Foreign Minister Yeh of the Republic of China stated that under the San Francisco Peace Treaty no provision was made for the return of these islands to China. He continued:
“Inasmuch as these territories were originally owned by us and as they are now under our control and, furthermore, Japan has renounced in the Sino-Japanese peace treaty these territories under the San Francisco Treaty of Peace, they are, therefore, in fact restored to us.” (Taipei’s Desp. No. 31, July 23, 1952, Enclosure 2).
During the interpellations on the Sino-Japanese Peace Treaty in the Legislative Yuan, Foreign Minister Yeh was asked, “What is the status of Formosa and the Pescadores?” He replied:
“Formosa and the Pescadores were formerly Chinese territories. As Japan has renounced her claim to Formosa and the Pescadores, only China has the right to take them over. In fact, we are controlling them now, and undoubtedly they constitute a part of our territories. However, the delicate international situation makes it that they do not belong to us. Under present circumstances, Japan has no right to transfer Formosa and the Pescadores to us; nor can we accept such a transfer from Japan even if she so wishes. . . . In the Sino-Japanese peace treaty, we have made provisions to signify that residents including juristic persons of Formosa and the Pescadores bear Chinese nationality, and this provision may serve to mend any future gaps when Formosa and the Pescadores are restored to us.” (Id., Enclosure 3)
At another point, Yeh stated that “no provision has been made either in the San Francisco Treaty or the Sino-Japanese peace treaty as to the future of Taiwan and Penghu.” (Id., Enclosure 2).
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 (TIAS 3178, 6 UST 433). 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, (S. Exec. Rept. No.2 84th Cong., 1st sess.) 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 . . . .
". . . he /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. Both by act and by implication we have accepted the Nationalist Government as the lawful authority on Formosa.
"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."2/ (I American Foreign Policy 1050-1955, at 962-3).
2/ See the illuminating discussion on the floor of the Senate regarding the statement. 101 Cong. Rec. 1379 et. Seq. (1955).
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 (69 Stat. 7 (1955)). 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.
Geneva and Warsaw Talks
In August 1955, the Chinese Communists and the United States Government undertook a series of ambassadorial talks first at Geneva and later at Warsaw which are still in progress. One of the problems dealt with in these talks, that of the renunciation of the use of force in the Taiwan area, has some bearing on the question of the status of Formosa. The Chinese Communists have maintained the position through these talks that Formosa and the Pescadores are Chinese territory and that the “Liberation” of Taiwan and the coastal islands, by whatever means, is entirely a matter in which the United States has no right whatsoever to interfere. The United States, on the other hand, has stated that “Taiwan has never been a part of Communist China” (XXXIV Dept. State Bull. 165 (1956)) and has termed the dispute over these islands as “international” dispute. However, the United States does not seem to have clearly spelled out in these talks its concept of the precise status of the islands. At times the U.S. ambassador has talked of Formosa and the Pescadores as the territory of a “sovereign government” of the “sovereign state of the Republic of China.” At other times reference has merely been made to the fact that the GRC has “control” over Taiwan and the offshore islands. The China situation has been compared to that existing in such divided countries as Germany, Korea and Vietnam or to such international disputes as that between Indonesia and the Netherlands over West New Guinea. The Chinese Communists, in turn, charge the United States with plotting to internationalize the dispute and to create two Chinas. As a whole, the records of the ambassadorial talks available to this office do not add a great deal to the jurisprudence on the subject of the status of Formosa.
DISCUSSION
It may be well at this time to examine the various legal theories outlined at the outset of 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." (underlining added) (XXXI Dept. State Bull. 896 (1954))
As indicated earlier (supra, at p. 1), the future disposition of the islands, under this theory, could be effected in several ways and would seem to depend almost entirely on what political settlement can be arrived at which would be satisfactory to the major powers concerned. This would mean, at the least, that the United States, the Soviet Union, Great Britain, the Republic of China, and probably the Chinese Communists would have to acquiesce in some such political solution.
2. Some support can be found for the theory that Formosa and the Pescadores belong to the state of the Republic of China. In this connection, it has been argued that the undertaking in the Cairo Declaration to restore Formosa and the Pescadores to “the Republic of China” has been executed through the Japanese surrender on the islands to Chiang Kai-shek and the continued occupation of the islands by the Republic of China.
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 (supra at p.3), 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 (VI Hackworth, Digest of International Law 385 et seq.). Furthermore, the whole history of the San Francisco and Sino-Japanese Peace Treaties casts doubt on this interpretation.
Sovereignty over Formosa and the Pescadores may also have passed to the Republic of China by reason of its continued occupation of the islands since 1945. Occupation is an act of appropriation by a state by which it intentionally acquires sovereignty over a territory that is not at the time under the sovereignty of another state (I Oppenheim, International Law 555 (8thed. Lauterpacht 1955)). As indicated by the Permanent Court of International Justice in 1933 in the Legal Status of Eastern Greenland case, acquisition of sovereignty by occupation requires “the intention or will to act as sovereign, and some actual exercise or display of authority.” (P.C.I.J., A/B No. 53 at 46). These latter requirements certainly appear to have been satisfied by the Republic of China. However, until the Japanese Peace Treaty came into force on April 28, 1952 it is doubtful whether Formosa and the Pescadores could be considered as res nullius in normal international usage even after the Peace Treaty. Finally, it may be well to remember, as Oppenheim points out, that “in determining the degree of effectiveness of occupation necessary to confer sovereignty, regard must be had to the extent of competing claims of other states.” (I Oppenheim, International Law 561 (8th ed. Lauterpacht 1955)).
One other basis occurs for asserting that sovereignty over Formosa and the Pescadores has passed to the Republic of China. That is through the process of prescription. However, prescription requires an “undisturbed” exercise of sovereignty over a territory during a considerable period of time. Aside from the question of whether enough time has passed for prescriptive rights to have accrued, the Republic of China’s administration of Formosa and the Pescadores can hardly be termed “undisturbed” in view of the protests of the Chinese Communists and others in this respect.
The theory that Formosa and the Pescadores belong to the Republic of China proceeds on the assumption that whereas there was formerly one state of China, as a result of the Chinese civil war there are now two, the “Republic of China” which represents the old China, and the “People’s Republic of China” which is a new state. The primary difficulty with this assumption is that neither of the “two Chinas” acknowledges it to be correct. They assume what is probably a more accurate legal posture, namely that they are two governments both claiming to represent the single state of China.3/
3/ Note that the question of two Chinas and which is the old and which, the new, or whether they are both “new” states has implications for membership in the United Nations. Thus, for example, in the case of admission of Pakistan, the U.N. General Assembly took the view that when a new state is created, whatever may be the territory and the populations which it comprises and whether or not they formed part of a state member of the United Nations, it cannot under the system of the Charter claim the status of a member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter. (U.S. Doc. A/C.1/212, October 11, 1947)
Another theory which [illegible] nclusion, viz. that Formosa and the Pescadores belong to the Republic of China, is based on the proposition that with the abrogation of the Treaty of Shimonoseki of 1895, 4/ by which China ceded these islands to Japan at the close of the Sino-Japanese war, the islands automatically reverted to their pre-1985 status. Theoretically, this argument has some appeal; but the subsequent history of this whole question indicates that few have thought that it reflects the true facts of the situation.
4/ Article IV of the Sino-Japanese Peace Treaty provides:
“It is recognized that all treaties…concluded before December 9, 1941, between China and Japan have become null and void as a consequence of the war.”
A variation on this theme has been espoused. Thus 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)).
3. On the basis of the same reasoning as described in 2. above, the conclusion can be reached that Formosa and the Pescadores belong to the single state of China, with two governments competing for control of that new state. Both the Chinese Communists and the Republic of China take this view.
4. Where several states exercise sovereignty conjointly over a territory, a condominium is said to exist. It can be argued that as a result of the Japanese Peace Treaty, the parties to the treaty other than Japan became co-sovereigns of Formosa and the Pescadores. Or it may be said that the islands are under the condominium of the victorious powers of World War II. In either case, agreement of the respective parties would be necessary for the ultimate disposition of the islands.
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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 (supra at p.2), the Soviet Union accepted the Japanese surrender on these islands and has continuously thereafter controlled and administered them. The USSR purported to annex the islands by a decree of February [illegible] and Foreign State Papers 935). The United States Government has maintained, however, that the USSR does not possess sovereignty over them.
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." (A decade of American Foreign Policy 1941 – 1949 at 33). 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 Japanese Peace Treaty, to which the Soviet Union was not a party, provided in Article 2(c) that
“Japan renounces all right, title and claim to the Kurile Islands and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905.”
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.
In giving its advice and consent to the ratification of the Peace Treaty the Senate declared:
“As part of such advice and consent the Senate states that nothing the treaty contains is deemed to diminish or prejudice, in favor of the Soviet Union, the right, title, and interest of Japan of the Allied Powers as defined in said treaty, in and to South Sakhalin and its adjacent islands, the Kurile Islands, the Habomai Islands, the island of Shikotan, or any other territory, rights of interests possessed by Japan on December 7, 1941, or to confer any right, title or benefit therein or thereto to the Soviet Union; and also that nothing in the treaty , or the advice and consent of the Senate to the ratification thereof, implies recognition on the part of the United States of the provisions in favor of the Soviet Union contained in the so-called ‘Yalta agreement’ regarding Japan of February 11, 1945.”
The Parallel between the status of these islands and that of Formosa and the Pescadores thus seems clear; and it is apparent that any theory adopted regarding the status of the latter will have a bearing on the status of the former.
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