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The Legal Status of Formosa: A Study of British, Chinese and Indian Views

Published online by Cambridge University Press:  28 March 2017

J. P. Jain
J. P. Jain*
Affiliation:
Indian School of International Studies
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Extract

Formosa (Taiwan) and the Pescadores (Penghu) were Chinese territory for several centuries before they were ceded to Japan by the Treaty of Shimonoseki of April 18, 1895.

Type
Research Article
Information
American Journal of International Law , Volume 57 , Issue 1 , January 1963 , pp. 25 - 45
Copyright
Copyright © American Society of International Law 1963

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References

1 9 Dept. of State Bulletin 393 (1943). See also Foreign Relations of the United States, Diplomatic Papers, The Conferences at Cairo and Tehran, 1943, p. 448 (Dept, of State Pub. 7187, 1961). For text of Treaty of Shimonoseki, see 1 A.J.I.L. Supp. 378 (1907).

2 13 Dept, of State Bulletin 137 (1945). The Potsdam Proclamation, issued by the Heads of the Governments of the U.S.A., the U.K. and China on July 26, 1945, stated: “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.” On Aug. 8, 1945, the Soviet Union declared war on Japan and, “faithful to its obligations to its Allies,” adhered to the statement of the Allied Powers of July 26, 1945. Foreign Relations of the United States, Diplomatic Papers, The Conference of Berlin (The Potsdam Conference), 1945, Vol. II, pp. 1474-1475 (I960).

3 25 Dept, of State Bulletin 349 (1951); 136 U.N. Treaty Series 45; T.I.A.S., No. 2490; 46 A.J.I.L.Supp. 71 (1952); signed at San Francisco by 49 nations, including Japan, and effective from April 28, 1952. The Soviet Union, though invited to the 25 Conference, refused to sign the document while both Communist China and Nationalist China were excluded from participation in the San Francisco Peace Conference, as no agreement could be reached between the countries responsible for framing the San Francisco treaty documents, the United States and the United Kingdom, on which particular China to invite to the Conference.

4 China Handbook, 1952-53, p. 154 (Taipeh, 1952) ; 138 U.N. Treaty Series 3.

5 Art. V of the Treaty of Mutual Defense between the United States and the Republic of China says: “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.” 31 Dept, of State Bulletin 899 (1954); T.I.A.S., No. 3178; 248 U.N. Treaty Series 213. Commenting on it in the Senate Committee on Foreign Relations, the Secretary of State, Mr. Dulles, observed that reference in the treaty to “the territories of either of the Parties” was language carefully chosen to avoid denoting anything one way or another as to sovereignty over Taiwan. American Foreign Policy, 1950-1955, Basic Documents, p. 963 (Department of State, 1957).

6 Great Britain, Parl. Deb. (Hansard), House of Commons, Official Report, Vol. 595, Nov. 19, 1958, Col. 1140.

7 Wright, Quincy , “The Status of Communist China ”, 11 Journal of International Affairs 181 (No. 2, 1957). See also idem, “Non-Recognition of China and International Tensions,” 34 Current History 153 (1958).Google Scholar

8 Statement by Prime Minister Churchill. Great Britain, Parl. Deb. (Hansard), House of Commons, Official Report, Vol. 548, Feb. 1, 1955, Col. 602. It is held by British experts on international law that, since the Allies were not in possession of the island in 1943, they could not transfer sovereignty over Formosa to anybody or any Power. The Cairo Declaration could thus be only a promise to retrocede Formosa to China at the end of the war. The Cairo “Declaration,” asserts E. Lauterpacht, “is not couched in form Of a legal instrument.” Although he considers it doubtful whether even the Potsdam “Declaration,” couched in more formal language, “was intended to create .binding obligations between the signatories,” he at the same time emphasizes that “there is no warrant for the assumption that merely because a collective instrument is called ‘Declaration’ it lacks any legal binding force.” E. Lauterpacht, “The Contemporary Practice of the United Kingdom in the Field of International Law—Survey and Comment,” 8 Int. and Comp. Law Q. 186-187 (1959).

9 The British Under-Secretary of State for Foreign Affairs, Mr. Mayhew, said: “Any change in the legal status of Formosa can only be formally effected in a treaty of peace with Japan.” Great Britain, Parl. Deb. (Hansard), House of Commons, Official Report, Vol. 469, Nov. 14, 1949, Col. 1679. Mr. Younger, Minister of State in the Foreign Office, stated: “Formosa is still de jure Japanese territory and there is no Government of Formosa as such. Following on the surrender of Japan, the Chinese Government of the day assumed, with the consent of the remaining Allies, the provisional administration of the territory pending the final determination of its status at a peace settlement. Not all the remaining Allies have recognized the Central People's Government as the Government of China, and for this reason, and because of the provisional nature of the present administration of Formosa, it is the hope of His Majesty's Government that the disposal of Formosa will be decided, as has always been contemplated, in connection with the peace settlement with Japan.” Ibid., Vol. 478, July 26, 1950, Col. 60, Written Answers.

10 Ibid., Vol. 536, Feb. 4, 1955, Col. 159, Written Answers.

11 Ibid., Vol. 540, May 4, 1955, Cols. 1870-1871.

12 The Chiang Kai-shek regime in Formosa could be, in British eyes, a provincial authority at best and a bandit or rebel group at worst. The Foreign Office stated, in a certificate issued in connection with legal proceedings in the English courts, that ‘ ‘ Her Majesty's Government did not recognise that any government was located in Formosa in July and August, 1953.” Since conditions in Formosa have remained materially unchanged since 1949, this statement may be taken as applicable to the whole period of administration in Formosa by the Nationalist authorities ever since the date on which they ceased to be recognized by the United Kingdom as the Government, either de jure or de facto, of the Republic of China. Nevertheless, Her Majesty's Government has maintained a consul at Tamsui during this period and has presented through him to the Nationalist authorities a number of claims arising out of damage done to British vessels by Nationalist forces based in Formosa. In two instances, Nationalist authorities have paid compensation. E. Lauterpacht, 6 Int. and Comp. Law Q. 507 (1957). While signing the International Sugar Agreement on Oct. 16, 1953, the British representative declared that the United Kingdom could not regard “signing of the Agreement by a Nationalist Chinese representative as a valid signature on behalf of China.” Cmd. No. 9815 at 223.

13 Schwarzenberger, Georg , “Title to Territory: Response to a Challenge,” 51 A. J. I. L. 315 (1957)CrossRefGoogle Scholar.

14 Ananalysis of the legal status of Formosaand other islands by Dr.Schwarzenberger, , an expert on international law, and others. Lok SabhaSecretariat, Brochure on Formosa, Pescadores and OtherIslands 18 (New Delhi, 1955). Google Scholar

15 Interview with the author on Dec. 6, 1960.

16 Prof. Wright's interview with the author, Feb. 21, 1962.

17 Wright, Quincy , “The Chinese Recognition Problem,” 49 A. J. I. L. 333 (1955)CrossRefGoogle Scholar.

18 Interview with the author, Feb. 21, 1962.

19 The United States submitted the question of Formosa for consideration of the United Nationson Sept. 20, 1950. The First Committee decided to postpone its consideration on Nov. 15, 1950.On Feb. 7, 1951, it adopted a British proposal to adjourn discussion sine die.

20 Great Britain, Parl. Deb. (Hansard), House of Commons, Official Report, Vol. 478, Sept. 15,1950, Col. 174, Written Answers.

21 Cmd. No. 8110 at 4.

22 Great Britain, Pari. Deb. (Hansard), House of Commons, Official Report, Vol. 487, May 11, 1951, Cols. 2311-2312. In proposing the settlement ofthe question of Formosa by the United Nations, the Western Powers probably try to make use of Art. 107 of the Charter, which says: “Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.”

23 Great Britain, Parl. Deb. (Hansard), House of Commons, Official Report, Vol. 496, Col. 1027.

24 Ibid., Vol. 530, July 14, 1954, Col. 496.

25 While replying to Soviet questions on principles for Japanese peace, Washington stated, on Dec. 27, 1950, that the Cairo Declaration “must necessarily be considered in the light of the United Nations Charter, the obligations of which prevail over any other international agreement.” 24 Dept, of State Bulletin 65-66 (1951).

26 See American Foreign Policy, op. cit. note 5 above, at 2468.

27 Ibid. at 2477.

28 Ibid. at 2479.

29 23 Dept, of State Bulletin 881 (1950).

30 The Cairo and Potsdam Declarations, observedChou En-lai, in his cable to the U. N. Secretary General on Aug. 24, 1950, were “both binding international agreements which the United States Government has pledged itself to respect and observe.” U. N. Doc. S/1715; U. N. Security Council, 5th Year, Official Becords, 490th Sess., p. 9 (Aug. 25, 1950); Foreign Languages Press, Important Documents Concerning the Question of Taiwan 22 (Peking, 1955). Replying to the invocation of the Cairo Declaration by Communist China, one British newspaper wrote: “As the Peking Government has declared null and void all arrangements made with foreign powers by the 'traitor’ Chiang, it can hardly invoke in one case principles it spurns in others.” 159 London Economist 203 (1950).

31 Commenting on President Truman's statement on June 27, 1950, Premier Chou En-lai observed: “The fact that Taiwan is part of China will remain unchanged forever. This is not only a historical fact; it has also been confirmed by the Cairo and Potsdam Declarations and the situation since the surrender of Japan.” Important Documents Concerning the Question of Taiwan, op. cit. note 30 above, at 14. This view was reiterated by Chou En-lai subsequently in his cables to the U. N. Secretary General on July 6, Aug. 24, and Oct. 17, 1950. Ibid. at 19, 21-22 and 24.

32 Ibid. at 34; U. N. Security Council, 5th Year, Official Records, 527th Sess., p. 6 (Nov. 28, 1950).

33 Referring to the formal proclamation of the Chinese Government at Chungking on Aug. 30, 1945, that Formosa was a new province of China, Mr. Turton, Joint Undersecretary of State for Foreign Affairs, said: “Unilateral declarations could not affect the legal status of Formosa.” Great Britain, Pari. Deb. (Hansard), House of Commons, Official Report, Vol. 536, Feb. 9, 1955, Col. 216, Written Answers.

34 Embassy of the People's Republic of China in New Delhi, News Bulletin 8 (No. 6, 1955). Mei Ju-ao also refutes arguments advanced by the United States and “their accomplices, among whom are the British politicians and propagandists in particular,” to justify the U. S. “aggression” under the “legal cloak” of “such nonsense” as the “neutralisation” of Taiwan, placing it under the U. N. “trusteeship,” making Taiwan an “independent State” or recognizing two “Chinas.” Ibid. at 8.

35 See 1 Hyde, International Law 356-358 (Boston, 1951).

36 Address before the Foreign Policy Association, New York, Feb. 16, 1955.5 Free China Review 61 (No. 3, 1955).

37 Asearly as Nov. 28, 1950, i.e., before the signing of the San Francisco Peace Treaty, the Communist Chinese representative, Mr. Wu Hsiu-chuan,observed: “The status of Taiwan was determined long ago. The question of the status of Taiwan simply does not exist. ... To argue thatbecause the Peace Treaty with Japan is yet to be concluded the status of Taiwan remains undetermined and must await consideration by the United Nations—to argue thus is to make a mockery of history, of realities, of human intelligence, of international agreements. To argue thus is to make a mockery of the United Nations Charter.” Important Documents Concerningthe Question of Taiwan, op. cit. note 30 above, at 41-42. Secretary of State Dulles' statement that Taiwan and Penghu Islandsoccupy “a specific juridical status” was characterized by the People's Daily as “preposterous nonsense” and an attempt “to deny the Chinese people's authority over Taiwan and the Penghu Islands.” News Bulletin 7-8 (No. 63, 1954). “The status of Taiwan,” remarked the People's Daily, in an editorial on Dec. 5, 1954, “was fixed long ago. Taiwan was, is and will be Chinese territory.” Embassy of the People's Republie of China in India, China Will Liberate Taiwan 69 (New Delhi, 1955).

38 “It is the Chinese people's own internal concern,” said Mr. Wang Yun-sheng, Editor-in-Chief of the Tientsin Ta Kung Pao, “how and when they will liberate Taiwan and dispose of the Chiang Kai-shek clique.” Ibid. at 89. On June 28, 1956, Premier Chou En-lai observed: “There are two possible ways for the Chinese people to liberate Taiwan, that is, by war or by peaceful means, and that the Chinese people would seek to liberate Taiwan by peaceful means so far as it is possible… . The question of the return of Taiwan to the motherland, regardless of the means by which it is realized … is a question which can only be settled and definitely can be settled by us Chinese people, and no foreign interference will be tolerated.” People's China, Supp. 12-3 (July 16, 1956).

39 In his statement on Jan. 24, 1955, Premier Chou En-lai observed: “Neither the United Nations nor any foreign country has the right to intervene in the Chinese people's liberation of Taiwan.” Ibid. Supp. No. 4 (1955).

40 The Chinese complaint regarding “armed invasion of Taiwan by the United States” was submitted by Chou En-lai in his cable to the United Nations on Aug. 24, 1950. See Important Documents Concerning the Question of Taiwan, op. cit. note 30 above, at 21-22. In a letter addressed to the President of the General Assembly (U.N. Doc. A/1375), dated Sept. 20, 1950, the Secretary General of the Delegation of the Soviet Union requested, “as a matter of importance and urgency,” the inclusion of the item “United States aggression against China” in the agenda of the General Assembly. During the debate Sir Gladwyn Jebb, the British delegate, observed that it was not clear what document A/1375 referred to. He seemed to differ from, or at least to cast doubt about, the Soviet representative's view that China included Formosa, “an assumption,” Mr. Spender of Australia said, “which prejudged the issue. ’ ’ General Assembly, 5th Sess., Official Records, General Committee, 69th Meeting, Sept. 21, 1950, pp. 5-6. On Nov. 30, 1950, the Security Council rejected by a 9-1-1 vote the Soviet resolution which would have condemned the United States.

41 Important Documents Concerning the Question of Taiwan, op. cit. note 30 above, at 22. People's Daily said on Jan. 29, 1955: “The United Nations has the duty to take action to stop U. S. aggression against China and to make all U. S. armed forces withdraw from Taiwan and the Taiwan Straits,” and thereby facilitate the return of Taiwan, and other islands to Communist China. Embassy of the People's Republic of China in India, Causes of Tension in Taiwan Area 9 (New Delhi, 1955).

42 Premier Chou En-lai characterized the decision ofthe General Assembly to include the “Question of Formosa” on its agenda as “an unjustified decision in violation of theUnited Nations Charter and international law ... in violation of the sovereignty and independence of China.” Important Documents Concerning the Question of Taiwan, op. cit. note 30 above, at 25. The Communist Chinese representative, Wu Hsiu-chuan Mr. ,in his speech before the Security Council on Nov. 28, 1950, stated that any decision by the United Nations about “trusteeship” or “neutralisation” or even procrastination by way of “investigation” would in substance mean “stealing China's legitimate territory and supporting United States aggression against Taiwan.” This, he added, “will in no way shake the resolve of the Chinese people to liberate Taiwan.” Ibid. 41; U. N. Security Council, 5th Year, Official Records, 527th Sess., p. 10 (Nov. 28, 1950).

43 People's Daily, in its editorial on Jan. 29, 1955, declared that neither the United Nations nor any other state has “any right tointervene in the liberation of Taiwan which is by its nature within the domestic jurisdiction of China.” Causes of Tension in Taiwan Area, op. cit. note 41 above, at 8.

44 Important Documents Concerning the Question of Taiwan, op. cit. note 30 above, at 41.1

45 “If the Democracies repudiate the Cairo Declaration, which they signed themselves, how, either now or in the future, can they criticize the Communist aggressive bloc for tearing up treaties and agreements? Those who play fast and loose with the status of Taiwan do so against their own conscience. ’ ’ Address by President Chiang Kai-shek, Feb. 8, 1955. 5 Free China Eeview 52-53 (No. 3, 1955).

46 Quincy Wright, loc. cit. note 17 above, at 332.

47 Address by Chiang Kai-shek, Feb. 8, 1955, loc. cit. note 45 above. To the leaders of Communist China, Taiwan, though under the occupation of what they call the “Chiang Kai-shek traitorous clique,” is a province of China which Peking is bound to “liberate.” To Nationalist China, the Chinese mainland, though under the control of what it calls the “Peiping puppet regime, a mere tool of Soviet imperialistic aggression, ’ ’ is still ‘ ‘ a part of the territory of the Republic of China which the people and Government of the Republic of China are determined to recover.” Ibid. at 56.

48 The suggestions about a United Nations Trusteeship over Taiwan or that of the replacement of the Republic of China by the “Republic of Formosa,” said Dr. Tingfu F. Tsiang, the Nationalist Chinese representative, “are proposals devised to destroy the legal and moral position of my Government. They are meant to liquidate the Republic of China.” Speech by Dr. Tsiang before the Commonwealth Club of San Francisco, June 17, 1955. 5 Free China Review 52-53 (No. 8, 1955).

49 To Chiang Kai-shek the leaders of Communist China are rebellious Communist bandits and traitors and the Mao regime a puppet government set up by Moscow. The shelling of the offshore islands of Quemoy and Matsu is likewise taken as “a continuation and an extension of Soviet Russian aggression in China.”

50 Free China Review, loc. cit. note 45 above, at 51-52. The author wishes here to point out that he is in total disagreement with the views of President Chiang Kai-shek about theso-called “Soviet Russian aggression in China.” See J. P. Jain, “Chinese Reaction to British Recognition of the People's Republic of China,” 4 International Studies (No. 1, 1962).

51 Address by Tingfu F. Tsiang before the University Club, New York City, on Feb. 5, 1955. Free China Review, loc. cit. note 45 above, at 7. “The idea of a plebiscite on the island of Formosa is, of course, a fellow-traveler idea,” Mr. Tsiang added. Ibid.

52 Loc. cit. note 4 above.

53 TJ. N. General Assembly, 5th Sess., Official Records, 286th Plenary Meeting, Sept. 27, 1950, p. 133.

54 India, Pari. Deb., Parliament of India, Vol. 6, Pt. 2, Dec. 6, 1950, Cols. 1263-1266.

55 Cmd. No. 8366, at 33.

56 Ibid. at 34.

57 Statement in Parliament, Feb. 12, 1951. Jawaharlal Nehru, India's Foreign Policy 422(Government of India, Publications Division, 1961).

58 25 Dept, of State Bulletin 385-386 (1951).

59 India, Pari. Deb., Lok Sabha, Vol. 1, Pt. 2, Feb. 21, 1955, Col. 11.

60 Ibid., Feb. 25, 1955, Cols. 511-512.

61 Statement in Lok Sabha, April 30, 1955. India's Foreign Policy, op. cit. note 57 above, at 278.

62 TJ. N. General Assembly, 13th Sess., Official Records, 774th Plenary Meeting, Oct. 7, 1958, p. 369.

63 Ibid. at 370.

64 “The problem today,” observed Mr.Menon, , “concerns only the United States and China—and not anybody else. ...” He repudiated the claim of Nationalist China to be represented at any international discussion of the problem by saying that “Chiang Kai-shek is not an international entity except in a legal sense.” Ibid. at 369-370.Google Scholar

65 Ibid. at 370.

66 Tsou, Tang ,“Mao's Limited War in the Taiwan Strait,” 3 Orbis 346 (1959)Google Scholar.

67 Statement by Foreign Secretary. Great Britain, Pari. Deb. (Hansard), House of Commons, Official Eeport, Vol. 595, Nov. 19, 1958, Col. 1141.

68 Statement by Lansdowne, Lord , Joint Parliamentary Under-Seeretary of State for Foreign Affairs. Great Britain, Parl. Deb. (Hansard), House of Lords, Official Report, Vol. 213, Dec. 11, 1958, Col. 216.Google Scholar

69 Statement by the Foreign Minister of the People's Republic of China, chen. Yi Mr. See Gerald Clark, Impatient Giant: Red China Today 46 (London, 1960).

70 Statement by the British Foreign Secretary. Great Britain, Parl. Deb. (Hansard), House of Commons, Official Report, Vol. 595, Nov.19,1958,Col.1141.

71 Ibid., Vol. 594, Oct. 30, 1958, Cols. 327-328.

72 Statement on the 27th anniversary of the foundingof the Chinese People's Liberation Army,Aug. 1, 1954. News Bulletin 2-3 (No.39, 1954).

73 The Chinese Nationalist representative, Dr. Tingfu F. Tsiang, reminded his audience in San Francisco that the Treaty of Mutual Defense wassigned (on Dec. 2, 1954) between the United States on one side and the “Republic of China” on the other. “It was not a treaty,” he added, “between the United States of America and Formosa. The distinction is very important.” Address before the Commonwealth Club of San Francisco, June 17, 1955. Free China Review, loc. cit. note 48 above, at 53.

74 Quincy Wright, loc. cit. note 7 above, at 181.