In Taiwan a small but remarkably positive step took place this month: on July 12 the Ministry of Foreign Affairs (MOFA) of the Republic of China (ROC) on Taiwan quietly removed a webpage that erroneously claimed that Taiwan was part of China. The Tsai administration also announced changes to the school curriculum, under which the Cairo Declaration will no longer be taught in Taiwan’s schools as the canonical definition of Taiwan’s status. Predictably, this action met with outrage from Beijing and its allies inside Taiwan, who once again cited the Cairo Declaration and bitterly attacked the Tsai government’s decision.
At the end of World War II, ROC troops occupied Taiwan under the aegis of the wartime Allies. Ever since, the then-ruling Kuomintang (KMT) has claimed that Taiwan had been “returned to China” and was now part of the ROC. In reality, Taiwan remained formally under Japanese sovereignty until April 28, 1952, when the San Francisco Peace Treaty of 1951 (SFPT) came into effect. Under the Peace Treaty Japan renounced control of Taiwan, but no recipient of sovereignty was named. This was a deliberate arrangement by the wartime powers. The United States did not want either of the murderous, authoritarian Leninist parties claiming to be the true government of China, the Communist Party of China (CPC) and the KMT, to have Taiwan. Thus, under international law, Taiwan’s status remains undetermined to this day. The United States and many other major nations still quietly hew to this position, which is why the U.S. “one China policy” does not include Taiwan in China.
Thus, Charlotte Gao’s recent claim here in The Diplomat that the Cairo Declaration, the Potsdam Proclamation, and the Japanese Instrument of Surrender are “legally binding” is completely false: none of those documents are legally binding with respect to the status of Taiwan. Under international law and practice, only an international treaty can settle the status of specific territories. Cairo and Potsdam are subject to change as conditions change, and the instrument of Japanese surrender merely dictates terms of surrender to Japan (which surrendered unconditionally) and places no binding conditions on the victorious allies.
Only two internationally recognized documents directly bear on Taiwan’s sovereignty are legally binding in the sense that Gao means: the San Francisco Peace Treaty, and the Treaty of Taipei between Japan and the Republic of China on Taiwan. The Treaty of Taipei is deliberately subordinate to the San Francisco Peace Treaty, and neither assigns sovereignty over Taiwan to China, whether in its Communist or Nationalist incarnation. Instead, they are silent on the issue of who owns Taiwan, merely affirming that Japan gave up sovereignty over the island.
The KMT is of course early on well aware of the position of international law with respect to Taiwan and of the emptiness of the ROC claim over Taiwan stemming from the Cairo Declaration. When then Foreign Minister Yeh Kung-chao was questioned in the legislature after the signing of the Treaty of Taipei, he said that “no provision has been made either in the San Francisco Treaty of Peace as to the future of Taiwan and Penghu.” When a legislator asked him, “What is the status of Formosa and the Pescadores?” He responded:
“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 an 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.”
This understanding that Taiwan does not belong to China/the ROC/the PRC is also found in MOFA internal documents from the 1950s that have been made public (an example from the May 13, 1952, “Report on the Signing of the Peace Treaty between ROC and Japan,” Vol. 54, page 11, is imaged here) and letters of Chiang Kai-shek released this year. The ROC knows that the Cairo Declaration has been given it no legal claim over Taiwan.
Nevertheless, despite its own private understanding, and in defiance of international law, the KMT on Taiwan, like its counterpart the Communist Party of China, has in public steadfastly maintained that Taiwan was “returned to China” at the end of WWII. In the theology of China’s desire to annex Taiwan, history is God and the Cairo Declaration is the tablet Moses brought down from the mountain. Both the Communists of China and the KMT on Taiwan make constant reference to it. Former President Ma Ying-jeou of the KMT, one of the chief acolytes of this cult of Cairo, complained publicly when the MOFA webpage was taken down. Indeed, in 2013 Ma staged a massive exhibition on the Cairo Declaration in Taiwan, dutifully attended by the president, an ardent supporter of annexing Taiwan to China.
This reliance on Cairo is why the MOFA website under the previous KMT administration of Taiwan generously cited the Cairo Declaration, as Gao’s piece avers. It also explains why when MOFA took it down, Beijing’s Taiwan Affairs Office (TAO) protested, also citing the Cairo Declaration. Just this week the Chinese Foreign Ministry spokesman, in response to a question about the website removal, again falsely claimed Cairo was “legally binding.”
The Cairo Declaration (and Potsdam Declaration for that matter) was never near to a binding agreement. It was a mere outline of post-war intentions, intentions that changed when Chiang Kai-shek and the KMT had to flee to Taiwan, taking the Republic of China with them. The irony of Beijing’s clinging to Cairo is that Taiwan was never meant to be given to China under Communist control.
By removing the website claiming that Taiwan is part of China, the Tsai administration has brought the ROC a step closer into compliance with what international law and the ROC government’s own internal understandings of Taiwan’s status. Further, both the website update and the curriculum reform are necessary components of Taiwan’s evolution from an alternative universe of legally-binding declarations toward the actual reality of Taiwan’s independent statehood, a move which should be welcomed in Taiwan and among Taiwan’s friends abroad: democracies in Asia, Europe, and the Americas.
One of the challenges facing Taiwan externally is the ability to tell its story right. Promoting a version of history created by the erstwhile government of China only adds to the confusion. Worse yet, it assists the territorial aspirations of an expansionist state that presents as much danger to its neighbors as it does to its own citizenry, as the sad death of Nobel Peace Prize laureate Liu Xiaobo painfully reminds us.
Michal Thim is a Taiwan analyst at the Association for International Affairs (Czech Republic) and a fellow of the Metropolitan Society for International Affairs (U.S.). Michael Turton blogs on Taiwan politics at The View from Taiwan.