At a meeting celebrating the "60th anniversary of the liberation of Taiwan," Chinese Nationalist Party (KMT) Chairman Ma Ying-Jeou (馬英九) said in a speech that Taiwan was returned to the Republic of China after the war. As Ma noted, the Potsdam Proclamation of 1945 states that "the terms of the Cairo Declaration shall be carried out." The terms in the Cairo Declaration state that " ... Formosa and the Pescadores shall be returned to the Republic of China."
Ma therefore claims that the Potsdam Proclamation constitutes the legal basis for the return of Taiwan to the Republic of China (ROC). He then claimed that "Taiwan has never been Japanese" at the same meeting (China Times, Sept. 9, 2005).
No serious expert in international law could ever make Ma's statement that "Taiwan island has never been Japanese," because China ceded it to Japan in the Treaty of Shimonoseki in 1895.
Further, if Ma's statement was true, it would contradict his claim that Taiwan was returned to China pursuant to the Potsdam Proclamation. If Taiwan island was never Japanese, then why would it need to be returned to China? The statement is not worthy of further rebuttal.
This article will comment on his claim that Taiwan was returned to China pursuant to the Potsdam Proclamation. Before examining his claim, a brief review of the historical background of these declarations is in order.
In 1941, Japan declared war against the US, which then led the Allied Powers engaging Japan in the Pacific War. In 1943, while the Pacific War was in progress, US president Franklin Roosevelt, British Prime Minister Winston Churchill and Generalissimo Chiang Kai-shek (
On Dec. 1, 1943, the three governments issued a joint statement known as the Cairo Declaration. The Cairo Declaration states, "The Three allies covet no gain for themselves and have no thought of territorial expansion. It is their purpose 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. The aforesaid three great powers are determined that in due course Korea shall become free and independent."
In 1945, after Germany surrendered, US president Harry Truman, Churchill and the Soviet leader Josef Stalin conferred in Potsdam on the postwar disposition of Europe. During the conference, the heads of governments of the US, UK and China (despite Chiang's absence from the conference) issued the "Proclamation Defining Terms for Japanese Surrender," which as part of the Potsdam Declaration confirmed the Cairo Declaration with respect to the future of Formosa and Pescadores (collectively, "Taiwan island").
The Potsdam Proclamation states that "the terms of the Cairo Declaration shall be carried out."
The intention of the three government leaders expressed at the time of issuing these two declarations was that Taiwan island should be returned to China after the war. That point is not disputed here. However, the nature and the legal effect of these declarations in international law are not as clear, and will be analyzed below.
First, the two declarations, by their nature, are not binding on the declaring governments or their succeeding governments. A joint declaration of two or more governments, like a communique, is often used to express the common foreign policy or the common intent of those governments. Declarations are not treaties. They certainly do not have the characteristics of a contract in private law. They do not create a binding obligation on the governments involved, let alone on the states which the governments represent.
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