Page:CAB 129 post war memoranda 73-38.pdf/2

THIS DOCUMENT IS THE PROPERTY OF HER BRITANNIC MAJESTY'S GOVERNMENT 129/73 372 ''Printed for the Cabinet. February 1955''

CONFIDENTIAL Copy No. 74

C. (55) 38

11th February, 1955

CABINET

FORMOSA

NOTE BY THE SECRETARY OF STATE FOR FOREIGN AFFAIRS

I circulate for the information of my colleagues a note on the juridical aspects of the Formosa situation in accordance with a suggestion made at the meeting of the Cabinet on 31st January (C.C. (55) 8th Conclusion, Minute 2).

A.E.

Foreign Office, S.W. 1.,
 * 10th February, 1955.

JURIDICAL ASPECTS OF THE FORMOSA SITUATION

Formosa and the Pescadores

1. Formosa and the Pescadores were ceded to Japan by China in the Peace Treaty of Shimonoseki of 1895. The validity of this cession can hardly be contested. The Cairo Declaration of December, 1943, with its reference to Formosa as one of the territories which Japan had "stolen from the Chinese" was a retrospective moral condemnation of an international transaction which, at the time and long afterwards, was never questioned as being in any way contrary to international law.

2. In the Cairo Declaration, the Allies stated that it was their purpose "that all the territories which Japan has stolen from China, such as .... Formosa and the Pescadores shall be restored to the Republic of China....." This declaration was simply a statement of intention that Formosa should be retroceded to China after the war. This retrocession has in fact never taken place because of the difficulties arising from the existence of two entities claiming to represent China and the differences among the Powers as to the status of these two entities. The Potsdam Declaration of July, 1945, laid down as one of the conditions for the Japanese Peace Treaty that the terms of the Cairo Declaration should be carried out. In September, 1945, the administration of Formosa was taken over from the Japanese by Chinese forces pursuant to the Japanese Instrument of Surrender and General Order No. 1 issued by the Japanese Government at the direction of the Supreme Commander for the Allied Powers, dated September 2, 1945. But this was not a cession nor did it in itself involve any change of sovereignty. The arrangements made with Chiang Kai-shek put him there on a basis of military occupancy, responsible to the whole body of the Allies, pending a peace treaty with Japan or, if the status of Formosa was not finally settled by that treaty (which it was not), then pending an eventual settlement about Formosa—which has not yet taken place. The arrangements did not of themselves constitute the territory Chinese. In the Japanese Peace Treaty of April, 1952, Japan formally renounced all right, title and claim to Formosa and the Pescadores, but again this did not operate as a transfer to Chinese sovereignty, whether to the Chinese People's

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