Taiwan's legal basis and WWII documents

`Since the Cairo and Potsdam declarations are not binding treaties, they cannot provide a legal foundation for the post-war jurisdiction of Taiwan.'

The Allies released two important documents related to Taiwan's status during World War II: the Cairo Declaration on Dec. 1, 1943 and the Potsdam Declaration on July 26, 1945. The latter was signed by US president Harry Truman, Republic of China (ROC) president Chiang Kai-shek (蔣介石) and British prime minister Winston Churchill.

These two documents provide the standard answer to the question of Taiwan's status, and are the basis for the legitimacy of the ROC's claim to rule over Taiwan.

The Cairo Declaration is similar in nature to a statement, and the document is actually entitled the Cairo Press Communique. On the other hand, the Potsdam Declaration makes it clear that it is a proclamation.

Neither document resembles the type of official international treaty normally used when territories are transferred.

Since the Cairo and Potsdam declarations are not binding treaties, they cannot provide a legal foundation for the post-war jurisdiction of Taiwan and Penghu under international law.

The subtitle of the Potsdam Declaration -- Proclamation Defining Terms for Japanese Surrender -- makes it clear that it is a proclamation, which isn't exactly the same thing as a declaration.

The biggest difference between the Potsdam Declaration and the Cairo Declaration is that the Potsdam document was signed by the US president, ROC president and the British prime minister. Nevertheless, the Potsdam Declaration is not a treaty acknowledged by international law and does not have the binding power of a treaty.

The Potsdam Declaration says that Japan shall proclaim its surrender, that the terms of the Cairo Declaration shall be carried out and that Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and "such minor islands as we determine."

After the signing of the Instrument of Surrender in Japan, the Supreme Commander for the Allied Powers issued General Order No. 1 on Sept. 2, 1945. The order was an official instruction for the handling of Japan and its colonies after the war. The order thus clearly regulated the takeover of territories after Japan's surrender.

According to General Order No. 1, when Chinese General Ho Ying-chin (何應欽) received the surrender of Japanese forces from Japanese Lieutenant General Okamura Yasutsugu on Sept. 9, he was thus receiving further orders.

It must be noted that the surrender document clearly stated that Ho, as Chiang's representative, received the surrender on behalf of the US, the ROC, the UK, the USSR and other allies that fought Japan.

As the order clearly states, the Japanese forces within China (excluding Manchuria), Formosa and French Indochina above 16 latitude north were all required surrender to Chiang, but this should not be construed as meaning that Chiang was given sovereignty over these territories.

Hsueh Hua-yuan is the director of the Graduate Institute of Taiwan History at National Chengchi University.

Translated by Eddy Chang