Cohen on the Shanghai Communique and the Status of Formosa

Jerome Cohen turned a piece for SCMP on the 40th anniversary of the Shanghai Communique, which was subsequently posted to his US-Asia Law site. In it, Cohen lauds the Shanghai Communique for its slick non-agreement that permitted US-China relations to go forward:

While the meaning of the Shanghai Communique is still debated, one thing is certain. Its most famous paragraph cleared the path for progress that has plainly changed the world.

This is basically moot; you're entitled to believe what you like about the long-term effects of the Shanghai Communique. However, the section on the Cairo Declaration and the post war period contains some questionable claims, as John Tkacik points out below. First, here is what Cohen says:

For over two decades following the start of the Korean conflict in June 1950, the U.S. denied that Taiwan was part of China. Yet that had not been the original American position after World War II. During the war, in the 1943 Cairo Declaration, the U.S., the United Kingdom and China had promised that Japan, which had forced China to cede Taiwan to it in 1895, would have to return the island to China at war’s end. Thus, in October 1945, the victorious Allies authorized Chiang Kai-shek, then president of the Republic of China, to accept Japan’s surrender on the island.

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They based their decision on the premise that Taiwan had again become part of China, despite the fact that its new status had not yet been formally confirmed by any peace treaty. As Secretary Acheson, an able attorney, put it: nobody “raised any lawyer’s doubts” when Chiang’s forces were placed in charge of Taiwan at war’s end. That, he said, had been done in accordance with the Cairo Declaration and subsequent wartime commitments.

Yet, less than six months later, when North Korea invaded South Korea, the U.S. interpreted the invasion as an attack by “international communism” not only in Korea but also against Taiwan and Indo-China. With no national debate, President Truman immediately announced that he had ordered the Seventh Fleet to protect “Formosa”, using Taiwan’s Western name, and, to justify their momentous decision, Truman and Acheson changed the American legal position. The President proclaimed that the legal status of the island was as yet undetermined and would have to await restoration of security in the Pacific, a formal peace treaty with Japan or consideration by the United Nations.

Retired State Department official John Tkacik, who went to school here in Taiwan and later served in as a State Department official here, shot around an email in response to the claims in the piece about the evolution of the US position on Taiwan beginning with the end of the war and the predation and abuse by Nationalist troops in Taiwan, observing:

"Eminent Chinese legal scholar Jerome Cohen asserts that the doctrine of Taiwan's "unsettled international status" was invented by clever State Department lawyers only after the Korean War. Professor Cohen is entitled to his own opinion, but not his own facts."

Tkacik, who is researching Taiwan's peculiar international status, has inventoried the documents from the archives of the US Consulate, later "office of Embassy," in Taipei from 1945 through 1950 that track the genesis of the legal doctrine of Formosa's unsettled sovereignty.  Here are some of the documents listed below. Taiwan's unsettled status was accepted as a legal fact of life both in Washington and generally among the allied capitals from the earliest post-War days, especially so after February 28, 1947. He writes:

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It was clear as early as 1945 that the US did not consider sovereignty over Formosa to have been transferred to the Republic of China, and that indeed, until a formal treaty of peace, sovereignty remained with Japan.

On November 13, 1945, Richard Butrick, Special Representative of the US Department of State sent Dispatch #5 from the newly reopened US Consulate General in Shanghai analyzing "American Consular Representation in Taihoku" ("Taihoku," of course, was the Japanese name for "Taipei" while Formosa was under the Japanese Empire). Butrick noted in paragraph II B. "Because of the uncertain status of Formosa, the Department did not prepare [consular] seals." Butrick anticipated that Formosa would, indeed, revert to Republic of China sovereignty and suggested that it be temporarily within the Shanghai Consular district.

On November 23, 1945, in the first Consular report by consular agent George Kerr in Taihoku, a bare month after Nationalist Chinese troops began their occupation of the island, Kerr noted that senior Formosan figures, long supportive of China, had become alarmed by the massive influx of corruption and organized crime "which enjoys certain military protections", questioned whether Formosa ought to be returned to China, become independent, or placed under a United Nations Trusteeship.

In the immediate post-War period, as America became disillusioned by rampant corruption in China, and as General George Marshall's peace mission became frustrated with Chiang Kai-shek's regime, the wisdom of turning Formosa's sovereignty over to China was increasingly questioned, especially in America's mainstream press.

On March 21, 1946, a front page article in the Washington Daily News by staff writer William Newton, headlined "Corupt Chinese Worse than Japs, Say Formosans," explained that "their island was turned over to Japan by the Treaty of Shimonoseki - which America supported - and they have been legal subjects of Japan since then." Newton referred to the civil administration on the island as the "Chinese Occupation."

On June 10, 1946, a Time magazine report from Taipei quoted a prominent Formosan as saying "Taiwanese would choose America first and Japan next" now that they have tasted Chinese gov't as here manifested."

Further dispatches from the American Consulate in Taihoku (Taipei) reflect the general understanding, among U.S. officials, Formosans and even the new Chinese administration that the Repubic of China's sovereignty in Formosa had not yet been formalized. On August 30, 1946, Vice Consul Kerr wrote "there is increasing Government awareness that de jure sovereignty over Taiwan by China is not yet a fully accomplished fact."

Even in mundane matters, the legal status of Formosa was a fact of life. On September 26, 1946, the Consul in Taipei cabled the US Embassy in Nanking asking "is it appropriate for Central Chinese Govt or Provisional Government General to give title for land to ConGen in former enemy territory before formal peace treaty transferring sovereignty over Taiwan to China. Would interim agreement be appropriate with stipulation that it be ratified again upon assumption of de jure sovereignty by Central government over Taiwan?"

The alarming maladministration of Formosa by the Chinese occupation authorities was a constant concern in the US Embassy in Nanking and in Washington, D.C. By February 28, 1947, Formosans' patience had given out and the island erupted in anti-Occupation riots forcing virtually all new Chinese officials into hiding and paralyzing all occupation administration for nearly a week. Not until the arrival of several Chinese army divisions beginning March 3, and with the promises of the Chinese central government in Nanking that the occupation administration would be reformed, did the violence cease. The new occupying forces, however, immediately pacified Formosan cities with indiscriminate violence, killing several at the walls of the US Consulate on the night of March 3. In the following weeks, Chinese troops rounded up between 18,000 and 28,000 persons, at least 10,000 of whom were never heard from again.

On March 4, 1947, the Consul in Taipei (Blake) advised the Embassy in Nanking that " . . . After gravest consideration, Consulate believes only practicable solution would be immediate American intervention in its own right or on behalf of United Nations to prevent disastrous slaughter by Government forces if loosed on the capital, which was imminent possibility March 3. American prestige high and intervention profoundly desired by Formosans who believe representations at Nanking and direct intervention by United Nations justifiable under present Japanese de jure sovereignty status."

On March 7,1947, AmConsul Taipei dispatch 43 p. 7 reported " . . . [the Central Government] has sensed the dangers of serious foreign criticism of policy here which may become serious enough to cause a reappraisal of China's capacity to administer a 'liberated' area over which China will not possess de jure sovereignty until the peace treaties are accomplished."

Vice Consul Kerr's dispatch #45 of March 10, 1947, observed that "some consideration must be given to the unavoidable conclusion that the administration of Formosa after the Japanese surrender will come under review at the peace conference."

No doubt informed by the nature of the Nanking Government's brutality on Formosa following the February 28 movement, Acting Secretary of States Dean Acheson wrote to Senator Ball of Maryland on April 11, 1947, that the transfer of sovereignty of Formosa to China "has not yet been formalized."

On May 30, 1947, AmConsul Taipei's dispatch #57 read: "the consulate continues to hear he hope expressed that the negotiations leading up to a conclusion of a peace treaty with Japan will provide an opportunity for careful reconsideration of the decision to turn Taiwan over to China..."

Indeed, the sovereign status of Formosa was an international issue: On July 5, 1947, AmConsul Taipei telegram 113 reports "several Soviet 'businessmen' have arrived on the island for an indefinite stay. Informants report recent Moscow Japanese language broadcasts stating United Nations mandate for Taiwan already decided."

On August 11, 1947, in a briefing prepared for General Marshall's successsor as the official US mediator in the Chinese Civil War, the American Embassy in Nanking began -- on page 1 -- "de jure rather than de facto sovereignty over Taiwan will not be achieved until the conclusion of a peace treaty with Japan." On pages 2-3 the briefing noted "a sensitivity to the reaction that developments on Taiwan could have in the United States has been frequently displayed by local officials and is doubtless a concern stemming, at least in part, from a realization that they occasionally exhibit in informal discussions, that Chinese jurisdiction over the island has not yet been definitively acquired in the full legal sense."

An October 29, 1947, paper prepared by Embassy Nanking for Wedemeyer, said that "although the transfer of the sovereignty over Taiwan has not yet been formalized, China's de facto control over the area was generally recognized."

On November 6, 1947, the Consul in Taipei informed the Ambassador in Nanking that Formosan leader Joshua Liao was "proceeding to Nanking to meet with Amb Stuart ... Primary purpose ... To be 'Presentation of request for Taiwanese representation at Japanese peace conference and United States support to prevent definitive retrocession to China' . . . "

The Embassy in Nanking cabled the Secretary of State on December 17, 1948, advising that "Despite commitment of Cairo Declaration, Taiwan is still legally part of the Jap empire and occupied territory. It could therefore be given somewhat different treatment from peripheral areas on the mainland. Further, it is more directly related to American security and strategic plans. In event of political  or military events on China, ..."

On January 14, 1949, a top secret National Security Council Decision Memorandum from Acting Secretary of State Lovett [acting for Acheson] to Truman, restated the strategic importance of Formosa, not that the US needs bases there, but to deny the island to hostile forces and advised that . . . "Should the Chinese Communists attempt to take the island by forceful means contrary to the wishes of the Formosan people, or if the Formosans themselves should revolt against their Chinese rulers, justification would exist for action by the United Nations, both on the grounds that the situation represented a threat to peace and based on the de facto status of Formosa . . . " the Memorandum advised that "such intervention should be publicly based, not on obvious American strategic interests, but on principles that are likely to have support in the international community, mainly the principle of self-determination for the Formosan people.''

Nor was the matter of Formosa's "undetermined status" restricted only to Americans. On January 18, 1949, the political counselor of the French embassy in Washington, Jean Daridan, in a confidential meeting with the Department of States' Far East bureau, "expressed the opinion that if China became communist, he could not see why Formosa should necessarily remain Chinese. ... Mr. Daridan said that the problem of Formosa raised many complicated legal and practical problems, and he himself had been toying with the possibility of the creation at an appropriate time an independent Formosa.

As the Chinese Civil War entered its end game on February 24, 1949, The American Consul in Taipei mentioned offhandedly in Airgram A-11 that "Chinese who have sought refuge here from arriving here from the communist onslaught on the Yangtze are suddenly remembering that Formosa is and will continue until the Japanese Peace Treaty to be a segment of the Japanese Empire."

On April 20, 1949, Dispatch #15 from the Consul in Taipei reported that '. . . There has also been great local interest in American press commentary on Taiwan's present legal status and possible future.'. '. . . UP and AP reports on the Taiwan independence and trusteeship movement have caused considerable press repercussion locally and has resulted in a statement by Taiwanese Control Yuan Commissioner Chiu Nian-tai in Nanking who declared that Taiwanese are Chinese people and Taiwan Chinese territory. Mr. Chiu asserted that the numerous Taiwanese political organizations in Tokyo and Hong Kong have altogether less than forty members and that their leaders are "subsidized by the military officers of a certain foreign country" and warned that any plot to league with traitors to snatch Taiwan "will not escape world censure and the united opposition of the Chinese."'

The new Chinese provincial governor of Taiwan, "Wang Shih-Chieh declared that Taiwan is 'Restored Territory' and is not a 'military occupation area of China or any other country' and warned the Taiwanese against any 'direct or indirect control by imperialism through political economic or military invasion.'"

May 1, 1949, the new American "office of embassy" in Canton cabled the Department of a conversation between Ambassador Stuart with the Republic of China's "acting president" Li Tsung-jen (Chiang Kai-shek had "resigned" the presidency at that point) . . . "Governor [presumably Chen Cheng] had mentioned possibility [of Gimo's retirement in Taiwan] to our Consul General who had remarked casually that status of Taiwan would not be determined until Japanese treaty was signed. His casual remark, according to Li, was reported to Generalissimo with result that Generalissimo decided that he could not retire to a place where Chinese sovereignty might be questioned, and though of Fenghwa instead."

A hurriedly composed telegram to the Department of State from Taipei on May 6, 1949, advised that "questions being asked locally why in view of MacDermot statement US government separately or jointly with others has not made official open approach to Chinese government and particularly to governor Chen here that altho recognize de facto interim Chinese admin Taiwan, US and other governments have responsibilities for Taiwan welfare, and cannot repeat cannot disregard recent Chinese tendency to treat Taiwanese in unilateral manner endangering peace welfare natives not yet legally Chinese. Taiwan must not be drafted into Chinese civil conflict."

That cable implored that while "Approach might not succeed but has definite chances and might establish position and hated natives,"

By May 16, 1949, the Consulate in Taipei reported that Formosan and Chinese "business leaders eager for trusteeship solution for Taiwan."

When the State Department published its "China White Paper" that explained the U.S. Government's decision to cease all aid to Chiang Kai-shek's regime, it sent a secret circular on July 29, 1949, to all diplomatic and consular posts which may be queried by host governments of the press "Do not play up comments, such as in Wedemeyer Report, that some Formosans want a US trusteeship."

Even Chiang Kai-shek's own foreign minister understood that Formosa had not been placed under Republic of China sovereignty. On November 1949 a memo summarized the remarks of ROC foreign minister George Yeh said "...government would be a fiction if it had no hold on the continent and said 'apart from legal aspects' island could not long be held. He referred to hopes of many that MacArthur would wish assure security of Taiwan that US would underwrite its defense. Thinks air force and navy should be given up and savings be devoted to southwest and first line troops in Taiwan now be used in southwest."

Secretary of State Dean Acheson did, for six months, order the State Department to downplay the issue of Formosa's unsettled legal status from January through June, 1950, but never disavowed it. Acheson was very open as to his reasons. In a speech to the National Press Club in Washington on January 12, 1950, Acheson explained that the Soviet Union had occupied Mongolia, "had detatched the northern provinces of China from China and is attaching them to the Soviet Union." He added "I am sure that in Inner Mongolia and in Sinkiang there are very happy reports coming from Soviet agents to Moscow."

In a desperate attempt to forestall the January 1950 Sino-Soviet Alliance negotiations, and to remind Chinese Communists in Peking who China's real friends were, Acheson cautioned, "I urge all who are thinking about . . . foolish adventures [in Formosa] to remember that we must not seize the unenviable position which the Russians have carved out for themselves. We must not undertake to deflect from the Russians to ourselves the righteous anger and wrath and the hatred of the Chinese people.

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Many similar documents could be adduced. For example, this Jan 19, 1949 NSC draft memorandum clearly lays out the US position that Japan owned Taiwan and the ROC occupation was merely de facto rather than de jure control and that necessary steps should be taken to prevent the CCP from getting it.  Moreover, this discussion over the disposition of Formosa was publicly known; an article dated Aug 13, 1949 in the Saturday Evening Post asks "Should We Grab Formosa?" Darrell Berrigan, the writer, reported that Formosans had told him of the State Department statements on the issue:

"...to the effect that 'the disposition of Formosa must await the Japanese treaty.' The Communists, of course, claim that the US is trying to take over the island. Propaganda like that makes the islanders very happy."

In sum, the Korean War may have triggered the announcement of the changing US position on Formosa, but the US already knew what the Formosans wanted, knew that Taiwan did not belong to China, evolved a policy of preventing a great injustice, and partly managed to carry it out. This is entirely laudable and should not be seen as a betrayal. The US failure was not changing its mind, but failing to create a free and independent republic on Formosa.

Cohen reminds about the Cairo Declaration, in which the US promises to "restore" Taiwan to the ROC. I've written about it in a longish post here. As I have noted many times:

• Cairo is merely a declaration of war aims, which can change. It has no legal effect. If the ROC didn't want the Americans to change their position on Taiwan, they shouldn't have alienated the population, murdered thousands of Taiwanese in the 2-28 incident and then lost the Chinese Civil War. 
• Cairo defines that Taiwan is to be "restored" to the "Republic of China." Note that the ROC never owned Taiwan, didn't exist when Taiwan was given to Japan by the Qing dynasty, and thus it cannot be "restored". Indeed, until the mid-1930s, Taiwan was seen by Chinese as lying outside China. In other words, Cairo refers to a situation that never existed.
• Neither the US nor the UK could dispose of Taiwan; in 1943 Taiwan was owned by Japan.
• Even in the benighted days of 1943 international law and practice held that territorial transfers required the approval of the affected population. Because such consent was never obtained, Cairo actually represents a gross violation of human rights. Observe that some of the items in Tkacik's list show that US officials indeed realized that the Formosans wanted an international trusteeship solution and possible independence and that any disposition of the island would have to include them.

The Cairo Declaration is an odious low in US and international history, one of those ugly moments that the unfolding of history reveals to be a great moral and political injustice, like chattel slavery or the relocation camps of WWII or the dispossession of the native Americans. It's really time to consign Cairo to the same pile, to point out, when it is mentioned, that it was product of a particular historical and social moment, the uncertainty of a desperate war and the ugly legacy of colonialism, that has long since passed.
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