Thursday, October 28, 2010

The People Hosed of Cairo

Cecilia: I just met a wonderful new man. He's fictional but you can't have everything.

President Ma Ying-jeou was at it again with the Cairo Declaration and Taiwan's status this week, another in the long line of examples of the constant KMT iteration of the falsehood that the Cairo Declaration and the Treaty of Taipei are the legal basis for the ROC claim to have "recovered" Taiwan for China. This week was especially egregious, for he added a claim about President Truman:
The 1943 Cairo Communique, worked out by the ROC president Chiang Kai-shek (蔣介石), then-US president Franklin Roosevelt and then-British prime minister Winston Churchill, said Japan should return Taiwan, Penghu and other territories in northeast China that it had “stolen” from the Chinese, Ma said.

The Potsdam Declaration of 1945 reaffirmed the Cairo Communique and gave the ROC the right to take sovereignty over Taiwan and Penghu, he said.

According to Ma, in its Instrument of Surrender, Japan accepted the terms of the Potsdam Declaration and former US president Harry Truman also accepted the idea that sovereignty over Taiwan was settled as the US Department of State said that the US and other Allied powers accepted the exercise of Chinese authority over Formosa, which was surrendered to Chiang.
Ma's claims about Cairo are the more complex of the two sets of claims here, so we'll first look at what Truman said. Ma refers to Truman's "1950" statements in his remarks (see the Taiwan Today piece). In 1950 Truman made two major statements on the status of Formosa. Remarks about the status of Formosa are included in his famous June 27, 1950 announcement:
The attack upon Korea makes it plain beyond all doubt that communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war. It has defied the orders of the Security Council of the United Nations issued to preserve international peace and security. In these circumstances the occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to United States forces performing their lawful and necessary functions in that area. Accordingly I have ordered the 7th Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. The 7th Fleet will see that this is done. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.
However, on Jan 5 of that year Truman issued a statement on the status of Formosa in which he appears to accept Chinese sovereignty over Formosa (extract here).
"A specific application of the foregoing principles is seen in the present situation with respect to Formosa. In the Joint Declaration at Cairo on December 1, 1943, the President of the United States, the British Prime Minister, and the President of China stated that it was their purpose that territories Japan had stolen from China, such as Formosa, should be restored to the Republic of China. The United States was a signatory to the Potsdam Declaration of July 26, 1945, which declared that the terms of the Cairo Declaration should be carried out. The provisions of this declaration were accepted by Japan at the time of its surrender. In keeping with these declarations, Formosa was surrendered to Generalissimo Chiang Kai-shek, and for the past 4 years the United States and other Allied Powers have accepted the exercise of Chinese authority over the island.

"The United States has no predatory designs on Formosa, or on any other Chinese territory. The United States has no desire to obtain special rights or privileges, or to establish military bases on Formosa at this time. Nor does it have any intention of utilizing its Armed Forces to interfere in the present situation. The United States Government will not pursue a course which will lead to involvement in the civil conflict in China.

"Similarly, the United States Government will not provide military aid or advice to Chinese forces on Formosa. In the view of the United States Government, the resources on Formosa are adequate to enable them to obtain the items which they might consider necessary for the defense of the island. The United States Government proposes to continue under existing legislative authority the present ECA program of economic assistance."
It might be possible to read: "...or on any other Chinese territory." as Truman saying Formosa is Chinese territory. To put that in its proper context, the KMT had just retreated to Taiwan in Dec and suddenly, after saying Formosa was irrelevant, the US did an about face and began to prepare a policy that shifted between saying Formosa was irrelevant and that it was important, because it did not appear that the Communist Chinese would have any trouble taking Formosa when they got around to that task -- thus the declared policy of the US was to simply let the chips fall as they may. This Time article from 1951 gives a sense of that. Hence, Truman is not saying that Formosa belongs to China. He is merely announcing that the island was not a strategic interest of the US and that there the US had no dog in that fight and no designs on any Chinese territory, however such territory may be construed.

The clear indication of the June 27th statement, however, is that the US position was that the status of Taiwan is undetermined. That has been the US position for all of recent history down to the present day.

However, let us recall some salient facts: (1) Truman can't dispose of Formosa. In 1950 the US didn't own it; Japan did. (2) The Formosans themselves weren't consulted on the issue. Lest you think that is some idealistic modern interpretation that didn't apply in those hard-nosed days, Chen and Reisman's seminal review of the issues for the Yale Law Journal in 1971 (Who Owns Taiwan: the Search for an International Title) observed of the Cairo Declaration that in its own League of Nations context:
As to environing international norms, it is sufficient to note that the doctrines of self-determination and the prohibition of use of force for territorial changes, as embodied in many resolutions of organs of the League of Nations, had transformed the component of acquiescence of the indigenous people into a peremptory aspect, and a virtual requirement of lawful transfers of territorial title. Hence, even assuming that the Cairo Declaration, as reinforced by the Potsdam Declaration, had been intended by the parties to it to create new international rights, such an intention would have been limited by international law. Jure gentium, the Cairo Declaration could mean only that the participants agreed to recognize a Chinese acquisition of Formosa if the inhabitants of Formosa indicated that they desired to be part of or to be governed by China.
In other words, Cairo, Potsdam, Truman, Mao, whatever is said and done, in the end, no legal transfer of territory can take place without the consent of the population. Even by the norms prevailing in 1943.

Shifting to the Cairo Declaration, several things may be noted. First, here is the text:
The Three Great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and 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. Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent.

With these objects in view the three Allies, in harmony with those of the United Nations at war with Japan, will continue to persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan.
The Cairo Declaration is not a treaty and has no force. It is merely a declaration of common aims, subject to any changes the future might bring. The language of the CD was adopted as a sop to keep Chiang Kai-shek in the war. The US clarified its position on Cairo in a statement issued Dec 27, 1950:
The Cairo Declaration of 1943 stated the purpose to restore "Manchuria, Formosa and the Pescadores to the Republic of China." That Declaration, like other wartime declarations such as those of Yalta and Potsdam, was in the opinion of the United States Government subject to any final peace settlement where all relevant factors should be considered. The United States cannot accept the view, apparently put forward by the Soviet government, that the views of other Allies not represented at Cairo must be wholly ignored. Also, the United States believes that declarations such as that issued at Cairo must necessarily be considered in the light of the United Nations Charter, the obligations of which prevail over any other international agreement.
That is also the UK position. George Kerr observed:
This [the Cairo Declaration] was not a carefully prepared State Paper but rather a promise to divide the spoils, dangled before the wavering Chinese. It was a declaration of intent, promising a redistribution of territories held by the Japanese. None of the territories mentioned in the document were at that moment in Allied hands.
Similarly George Kennen wrote:
No one seems to know from what deliberations this declaration [Cairo] issued; it was apparently drafted, at the moment, by Harry Hopkins, after consultation only with the President and the Chinese visitors.
I bet your head is nodding. Chen and Reisman point out two major issues, (1) the norms of the day (paragraph noted above) and (2) the capacity of the participants:
As to the capacity of the declarants, three states were simply not empowered under the principles and peremptory procedures of the Covenant of the League of Nations then in force, to decide that the territory held, and formerly recognized as validly so held by another, could now be forcibly removed from that state.
So much for Cairo. The real reason President Ma and other KMT fantasists keep referring to Cairo and to Truman and to Potsdam and the Treaty of Taipei is simple: under the postwar treaty arrangements codified in the San Francisco Peace Treaty, Japan gave up sovereignty over Taiwan and no recipient is named. Thus, under international law, the status of Taiwan is undetermined. Note that Ma generally omits discussion of the SF Peace Treaty, since to mention it instantly invalidates his case.

The purpose of this heightened exposure for Cairo and the like is simple: I believe it is the KMT plan to establish a basis for Chinese sovereignty over Taiwan without ever setting the matter before the people and legislature of Taiwan. By pretending that Taiwan has already become part of China -- and always has been, hence it was "returned" -- a 'stealth annexation' of Taiwan can be accomplished, and a plausible fait accompli offered to the world.
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21 comments:

Anonymous said...

It too bad that the people of Taiwan are not educated enough to realize the true face of the KMT.
They misrepresent facts, say one thing then do just the opposite. But then again it like the USA. Most Democrats think Obama,Pelosi and Reid are all great people with wonderful ideas. I hope Taiwan and America will see the light and change our governments this coming election.

Greg said...

The only thing that will stop Ma from following this course is a historically-inspired opposition by the Taiwanese people. Unfortunately, it seems the last thing the Taiwanese want to do is (1) challenge/think about what Ma says, and (2) analyze history.

Ben Goren said...

Mike, thanks for summing up in a few paragraphs what I spent thousands of words hashing out in my thesis. A great summary and a conclusion that should be self evident especially given the way Ma has been going round the country trying to convince everybody that his beloved ROC has a legally backed historical claim to Taiwan's sovereignty by invoking the chimera of Cairo and Potsdam and Treaty of Taipei. But what of Taiwanese? do they buy this? do they see the nuance of international relations? do they love the ROC or is it something that exists out of historical contingency and has no real appeal to them patriotically?

Stealth annexation is about right. There can be no official annexation so fait acompli is the only method to not arouse the people's anger. It also avoids the legislature or any legal or official declaration as you said. So .. we can move stealthily towards de jure independence because that entails a logical conclusion that the ROC be replaced but we can move towards annexation because as long as Taiwan is the ROC it is 'legally' a Chinese territory and thereby meets the one-china' rubric for political negotiations.

Truly scary.

M said...

In other words, Cairo, Potsdam, Truman, Mao, whatever is said and done, in the end, no legal transfer of territory can take place without the consent of the population. Even by the norms prevailing in 1943.

Extensive territorial changes took place in Europe after World War 2 on the basis of the Yalta Conference, and without the consent of the population. Not legal?

Michael Turton said...

M -- don't care. If you have a Europe issue, post on Europe blog.

Mark said...

Michael

FYI

http://www.politicsresources.net/area/uk/man/lab55.htm

See "LABOUR'S POLICY FOR PEACE" point 2

M said...

M -- don't care. If you have a Europe issue, post on Europe blog.

Well, it is very relevant when we consider your claim that "no legal transfer of territory can take place without the consent of the population."
We could use examples from Asia if you prefer...

Michael Turton said...

It is not my claim but Reisman's.

Michael Turton said...

Thanks Mark. What a great thing it would have been if it had actually happened....

STOP Ma said...

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An Amazing summary, Michael!

Thank you.
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Anonymous said...

Well, a Canadian student magazine entitled "World Affairs" had an interesting article related to this subject in their December, 1958 issue. One paragraph that caught my eye was the idea that Formosa could be brought under UN trusteeship.

"Mr. Lester B. Pearson (national Liberal leader) said he would oppose any recoginition that would "turn over Formosa" to the Peking Government. He favors a settlement which agrees to Formosa being brought under a U.N. trusteeship, until such time as the Formosans themselves could 'freely" determine what their futre should be, either as a separate state or by voluntarily agreeing to a merger with mainland China."


Anon2

Brian Schack said...

An excellent post! But one thing leaves me scratching my head - what does the title, "The People Hosed of Cairo", mean? I'm guessing it's some cultural reference, but for the life of me I can't figure out what it is.

Michael Turton said...

I was having some fun with a Woody Allen movie....

jerome in vald said...

When at San Francisco a reborn Japan forgoes in the presence of 47 cosigners her right, title and claim to Taiwan in article 2b, Japan also designates the US, principal occupying power (article 23a) and recognizes the validity of dispositions of property of Japan (Taiwan) and Japanese nationals made by or pursuant to directives of the United States Military Government on Taiwan-Penghu (article 4b).

Japan only deposited or pawned the jewel of the crown, a piece of her inalienable territory, Taiwan with the US, the designated pawnbroker. Like the R&R facilities that the Vietnam pilots used to patronize in Taiwan. Chinese personnel might have run the place, but it was run on US and Japanese tax-payers' dollar under directives from DoD.

The Chinese on Taiwan are lucky refugees, exiled and honorable poor guests whom the US subcontracted the day-to-day run of the outfit to as token of gratitude for services rendered and as face-saving exercise in good governance. But the Chinese put too much stock by the face they had been given and failed as occupying forces to promote a local civil authority cooperating but separate from them.

SFPT is anathema to the Chinese brotherhood on both banks of the Taiwan Strait, and for good reason since it deprives them of an undeserved spoil of war. And it makes sense for the offspring of the former Japanese nationals from Taiwan to acknowledge the SFPT as their passport into the routine of nation building under the stewardship of a the civil affairs administration of US Military Government on occupied friendly territory.

Thanks to Richard Hartzell and Roger Lin for all of the above. I hope I have not mangled the product of their research.

TicoExpat said...

Michael,one question: how to respond when they come up with the "You are Chinese (race) therefore you are part of China" bit, as they were saying during the "peacemaking" after the Japan film festival spat?

Anonymous said...

Richard Hartzell and Roger Lin are scam artists.

Anon-A

Richard said...

TicoExpat -

There's many ways to respond. The way I usually respond to that kind of comment towards me is that: Yes, Taiwan has influences from Chinese culture in the past, but also Japanese and American culture, making "Taiwanese" culture distinct from that in China. Then if they keep pressing or fail to understand, I remark, "Why do the Chinese hate the Japanese? And why do, for the most part, Taiwanese love Japanese?"

And in general there's a lot of countries you can draw similar lines of arguments from. Although, there may be some technicalities... just off the top of my head, UK & USA, North Korea and South Korea, Canada (Quebec) and France, etc.

Richard said...

Indeed, great post Michael. Will be bookmarking this as one of those pages that I can refer to in the future.

Readin said...

The legal stuff is a distraction, but necessary propaganda for those who think it matters.

There can be no law without law enforcement, and law is ultimately determined by what is enforced. So long as no one is willing to do what is necessary to carry out the mandates of the various treaties and agreement discussed, they carry no legal weight. Because the ROC does enforce it's rule consistently, Taiwan is legally part of the ROC. But a question remains, does the ROC still represent China. I believe it does not. That's just my opinion. Whether the ROC represents China is a question for the Taiwanese and Chinese. are the Chinese willing to allow it and are the Taiwanese willing to do it. Ma has made his preference clear. if Taiwan elects him again it will be hard to argue that Taiwan has not chosen to be part of China.

Michael Turton said...

The legal stuff is a distraction, but necessary propaganda for those who think it matters.

Like President Ma, for example.

There can be no law without law enforcement, and law is ultimately determined by what is enforced. So long as no one is willing to do what is necessary to carry out the mandates of the various treaties and agreement discussed, they carry no legal weight.

We're lucky then that the US and Japan have done so for the last sixty years.

Because the ROC does enforce it's rule consistently, Taiwan is legally part of the ROC.

The US also enforces its position consistently. As do Japan and the other powers.

But a question remains, does the ROC still represent China. I believe it does not. That's just my opinion.

And the other stuff was not your opinion?

Whether the ROC represents China is a question for the Taiwanese and Chinese. are the Chinese willing to allow it and are the Taiwanese willing to do it. Ma has made his preference clear. if Taiwan elects him again it will be hard to argue that Taiwan has not chosen to be part of China.

Yes, at least to outsiders. i hope the DPP realizes this and makes it an argument for the 2012 campaign. It will be fun to watch Ma shift his rhetoric.

Michael

les said...

Ma's handlers in Beijing have, I am sure, placed very clear limits on where he can shift his rhetoric to.