On Wednesday last week, the Rossiyskaya Gazeta published an article by Chinese President Xi Jinping (習近平) asserting the People’s Republic of China’s (PRC) territorial claim over Taiwan effective 1945, predicated upon instruments such as the 1943 Cairo Declaration and the 1945 Potsdam Proclamation. The article further contended that this de jure and de facto status was subsequently reaffirmed by UN General Assembly Resolution 2758 of 1971.
The Ministry of Foreign Affairs promptly issued a statement categorically repudiating these assertions. In addition to the reasons put forward by the ministry, I believe that China’s assertions are open to questions in international law.
First, regarding the Allied powers’ disposition of Japanese territorial sovereignty after the war, the critical legal instrument governing territorial disposition must be the 1952 Treaty of Peace with Japan, also known as the San Francisco Peace Treaty.
The wartime instruments predating the San Francisco Peace Treaty, whether the Cairo Declaration or the Potsdam Proclamation, do not have the legal character to effectuate disposition of territorial title.
The Cairo Declaration’s substantive purpose and operative function were to establish the casus belli and war objectives of the Allied powers, including the US, Britain and the Republic of China (ROC); the Potsdam Proclamation enumerated the conditions and terms for Japan’s surrender, with the end of hostilities as its ultimate objective.
The prevailing opinion among international academics does not regard the Cairo Declaration as having legally binding force under the corpus of international law. Notwithstanding the incorporation by reference of the Cairo Declaration’s substantive content within the Potsdam Proclamation, the latter merely emphasized that the conditions stipulated in the Cairo Declaration were to be realized in the future.
Thus, the San Francisco Peace Treaty constitutes precisely the definitive and dispositive instrument regarding Japanese territorial disposition subsequent to the Potsdam Proclamation, and as a matter of international law, only the San Francisco Peace Treaty possesses the normative force to determine the territorial title of Taiwan.
Secondly, notwithstanding the ROC government’s administrative occupation of Taiwan commencing in 1945 pursuant to General Order No. 1 issued by the Supreme Commander for the Allied powers, throughout this intervening period Taiwan retained its status as Japanese territory de jure. From the perspective of international law, the principle of nemo dat quod non habet (one cannot give what one does not have) applies — the precondition for lawful renunciation is prior possession of sovereign title. If Japan was legally competent to renounce its territorial title over Taiwan in the 1952 San Francisco Peace Treaty, the necessary legal premise must be that Japan still retained de jure territorial title over Taiwan in 1952. Absent such legal status, Japan would have been ultra vires (acting beyond one’s legal power) in purporting to renounce Taiwan’s territorial title.
This factual and legal sequence further substantiates that neither the Cairo Declaration nor the Potsdam Proclamation possessed the normative efficacy to effectuate transfer of Taiwan’s territorial title.
Finally, from the moment of Japan’s formal renunciation of territorial title over Taiwan to the present day, the PRC has never exercised any effective control over Taiwan. Applying the international law criterion of effective territorial administration (effectivites), since the emergence of the PRC as an international legal person, any benefits accruing from Taiwan bear no nexus with the PRC. That state entity lacks any international legal foundation to assert claims over the territory of Taiwan or the rights and interests of its inhabitants.
Although in the 1971 Joint Communique on the Establishment of Diplomatic Relations between China and Japan, Japan declared its intention to adhere to the provisions concerning Taiwan in the Potsdam Proclamation, Japan had already executed its treaty obligations under the Potsdam Proclamation through its ratification of the San Francisco Peace Treaty.
Moreover, Japan has never asserted or acknowledged that the PRC could acquire territorial title over Taiwan on the basis of the joint communique. From this analysis, it is evident that the PRC lacks any legal basis under the doctrine of state succession to succeed any rights in relation to Taiwan from its predecessor government, as the pre-1949 Chinese government had not acquired territorial title over Taiwan.
It is therefore legally tenable to maintain that the determination of Taiwan’s territorial title must be juridically predicated upon the San Francisco Peace Treaty. Antecedent wartime instruments were merely declaratory documents establishing war aims or surrender conditions formulated by the Allied powers during wartime for distinct purposes and never attained the status of dispositive instruments capable of effectuating the transfer of Taiwan’s territorial title under international law.
In short, we firmly believe that Taiwan’s contemporary status as a sovereign entity is the consequential outcome of the collective endeavors of the Taiwanese following the legal framework established by the San Francisco Peace Treaty and the Treaty of Peace between the ROC and Japan, and bear no legal nexus with the PRC, which has never exercised any effective control over Taiwan, nor with the non-dispositive Cairo Declaration.
Chiang Huang-chih is a professor of international law at the National Taiwan University College of Law.
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