SFPT   Article 2(b)

Japan renounces all right, title and claim to Formosa and the Pescadores.

DETAILED COMMENTARY

    5. Interpretation of Article 2(b) of the San Francisco Peace Treaty

     5.1 "Right"

It is to be noted that the choice of words in Article 2(b) is limited to "right", "title" and "claim" to "Formosa and the Pescadores" which Japan has "renounced" under the San Francisco Peace Treaty. All three words have been used in relation to "territories" of Formosa and the Pescadores.

The word "right" as used in Article 2(b) of the Peace Treaty means Japan’s recognized and protected interest over Formosa and Pescadores, the violation of which was a wrong. It was the interest, claim, or ownership that Japan had over the territory of these islands.

A state has rights to territory and property. The state's territory is the physical space over which the state exercises sovereignty. The state's property is the set of tangible and intangible objects over which the state exercises ownership, such as embassies, buildings, vehicles, and documents. A right is "general" if any interference with it gives rise to a cause of action. The state has a general right to territory.

When Japan renounced all "right" to Formosa and the Pescadores under the Peace Treaty, it declared that it formally gave up or abandoned all rights and interests in these islands and that it would no longer institute legal actions at their behest. The word "renounce" means "to give up or abandon formally (a right or interest)" or "to disclaim".


     5.2 "Title"

The word "title" is the union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property. It is the legal link between a person who owns property and the property itself.

"Though employed in various ways, [title] is generally used to describe either the manner in which a right to real property is acquired, or the right itself. In the first sense, it refers to the conditions necessary to acquire a valid claim to land; in the second, it refers to the legal consequences of such conditions. These two senses are not only inter related, but inseparable: given the requisite conditions, the legal consequences or rights follow as of course, given the rights, conditions necessary for the creation of those rights must have been satisfied. Thus, when the word 'title' is used in one sense, the other sense is necessarily implied." (FN: 1)

According to Article 2(b) of the Peace Treaty, Japan also renounced its "title" to Formosa and the Pescadores.  ‘Title’ is used in public international law to show that a territory belongs to a state. Before the coming into force of the Peace Treaty on 28 April 1952, Japan held the title to the territory of Formosa and the Pescadores, which was ‘a source of its territorial sovereignty’ over these islands. Therefore, Japan’s control over these islands was legally justified and other states were required to respect that control. In Taiwan, the Japanese surrender ceremonies were held on October 25, 1945. After that time, the exercise of control over (Japanese) Taiwan was exercised by the Republic of China (ROC), based on the specifications of General Order no. 1 issued by General Douglas MacArthur on September 2, 1945. However, before the Peace Treaty came into force, there was no transfer of "title." In other words, it was because of the Peace Treaty that Japan made a territorial cession or consensual surrender of sovereign rights to Formosa and the Pescadores.

Some six years later, at the peace conference convened in San Francisco in September 1951, the signatories to the Peace Treaty fully recognized that Japan still held the title to territory of Formosa and the Pescadores, and this was ‘a source of Japan's territorial sovereignty’ over these islands.

Alternatively, in September 1951, if Japan did not hold the title to territory of Formosa and the Pescadores, it would have been impossible for Japan to renounce its "title" over these areas, and indeed the signatories would not have allowed such a renunciation provision to be included in Article 2(b) of the Peace Treaty.

Some China-friendly scholars dispute this view, asserting that based on (either jointly or singly) the Cairo Declaration (December 1, 1943), Potsdam Proclamation (July 26, 1945), Japanese Instrument of Surrender (September 2, 1945), and the supposed "cancellation" of the 1895 Treaty of Shimonoseki by the ROC regime, with the completion of the Japanese surrender ceremonies in Taipei, the ROC government began exercising its sovereignty over Taiwan. However, such an "interpretation," in order to be valid, would have to be based on some recognized principle of international law. Yet, none of these scholars is able to point to any such international law principle which would validate such an interpretation.

Turning to customary international law, it is not difficult to find a more legally supportable interpretation.

Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.(FN: 2)

Clearly, under the customary laws of warfare, all existing international precedent shows that the surrender ceremonies mark the end of hostilities and the beginning of the military occupation. Moreover, international law specifies that military occupation does not transfer sovereignty.(FN: 3)   In other words, an occupying power does not acquire the title to territory on the basis of belligerent occupation.   Accordingly, the annexation of occupied territory is illegal and must not be recognised.(FN: 4)

The military occupation of Taiwan by the ROC/KMT has been confirmed by many researchers:

• After occupying Taiwan in 1945 as a result of Japan's surrender, the Nationalists were defeated on the mainland in 1949, abandoning it to retreat to Taiwan. In that year the PRC was established.(FN: 5)
• .... after Japan's defeat in 1945, Taiwan and the Pescadores were assigned to the Republic of China for purposes of post-war occupation. Taiwan was still under this occupation four years later, when the ROC government fled to Taiwan after the communist victory in the civil war on mainland China.(FN: 6)
• "From the legal standpoint, Taiwan is not part of the Republic of China," a declassified CIA report on Taiwan written in March 1949 says.   "Pending a Japanese peace treaty, the island remains occupied territory in which the US has proprietary interests," the report continues.(FN: 7)

A multitude of United Nations documents have clearly stated that effective control by an occupier no matter how strong and forceful, is still only a "temporary managerial power . . . . " over the territory.(FN: 8)   Legal scholars maintain that de jure  sovereignty during occupation is retained by the ousted sovereign while the occupying power only retains de facto  control.(FN: 9)   For Taiwan, the application of this tenet confirms that Taiwan was sovereign Japanese territory until Japan renounced its sovereignty in the SFPT effective April 28, 1952.(FN: 10)   General Douglas MacArthur was known to hold the viewpoint that before the post-WWII treaty came into force, Formosa was still a part of Japan.

It is forbidden to announce the annexation of occupied territory.(FN: 11)   (FN: 12)   The UN Charter and other UN resolutions have forbidden acquiring territory by the use of force, and this includes any attempts to invoke "prescription" as a means of asserting legal possession of the territory.

Based on the above analysis, the indisputable conclusion is that there was no transfer of Taiwan's territorial sovereignty to China in 1945, or at any other time during the 1940s or 1950s.


     5.3 "Claim"

According to Black’s Law Dictionary, Claim is the aggregate of operative facts giving rise to a right enforceable by a court. It is the assertion of an existing right. Japan’s assertion of its existing right over the territories of Formosa and the Pescadores was also renounced or abandoned by it as per Article 2(b) of the Peace Treaty. This implied that Japan could no longer ask any international court of law for any remedy in regards to the territories of Formosa and the Pescadores after April 28, 1952. By renouncing "all claim", Japan gave up both its existing as well as future claims over these territories. Henceforth, Japan is now barred from asserting or claiming any right in respect of the same.


     5.4 Does Article 2(b) include "territorial sovereignty"

Territorial Sovereignty is the exclusive right of a state to exercise its powers within the boundaries of its territory. When Japan renounced all "title", it in effect abandoned its territorial sovereignty over the island group of Formosa and the Pescadores.

Hence, the territorial cession of Taiwan occurred as a result of the specifications of Article 2(b) of the SFPT, wherein Japan renounced its "title" to the territory of Formosa and the Pescadores. This title had been ‘a source of Japan's territorial sovereignty’ over these islands. This territorial cession was effective as of April 28, 1952. After this date, Japan no longer held the territorial sovereignty of Formosa and the Pescadores.

Since Japan did not hold the title to the territory of Formosa and the Pescadores after 28 April 1952, Japan could not cede the territory of Formosa and the Pescadores to any other nation after this date. Such an explanation is based on the common-sense principle that a country cannot cede the territorial sovereignty of territory over which it does not exercise ownership.

The Treaty of Taipei (Aug. 5, 1952) is a subsidiary treaty under SFPT Article 26. However, based on the above explanations, it is impossible to conclude that the Treaty of Taipei resulted in a transfer of Taiwan's territorial sovereignty to China. Moreover, in fact, Article 26 forbids Japan from making a bilateral Treaty of Peace with any SFPT non-signatory country, which would grant that country greater advantages than those specified in the SFPT.


    6. Definition and Explanation of the term "title"

      6.1 Further Definition and Explanation of the term "title" under International Law

In international public law, when discussing the "ownership" of a certain territory, one important point involves what evidence can be produced. Documentation proving territorial ownership is actually what is meant by "title". (This is especially important when speaking of a territorial cession.)


        6.2 Definition of the term "title" in relation to territory

In relation to territory --
The concept of "title" is used in public international law to show that a territory belongs to a state. Title to territory is usually defined as "a vestitive (FN: 13) fact of territorial sovereignty" or "a source of territorial sovereignty". (FN: 14)

A state acquiring such title is vested with sovereignty. In other words, when a state has title to a certain territory, that state’s control over the territory in question is legally justified, and it is legally considered "domestic territory." Consequently, other states must respect that state’s control over said territory. Alternatively, territorial control without title is never accepted as a legitimate form of "ownership". (FN: 15)

Having "effective territorial control" without having territorial sovereignty is the situation commonly seen in situations of military occupation. If conquered/liberated territory is ceded in a peace treaty, but with no designated "receiving country," and no formal trusteeship agreement put in place, the territory remains under military occupation (i.e. "civil affairs administration of a military government") after the coming into force of the peace treaty. Based on the historical precedent of Cuba after the Spanish American War, the territory would be held by the conqueror/liberator as a quasi-trusteeship.

Such a situation would continue until arrangements were made for the territory to attain a final legal status. This would necessitate the proclamation of the end of the military government of the (principal) occupying power.


        6.25 Transfer of the "title" of territory

In regard to territorial cession as a means of transferring title, in the post-Napoleonic era, territorial cession is always done by treaty.(FN: 16)

(1) Kent McNeil, Common Law Aboriginal Title 10, Oxford University Press (July 1989).

(2) Chapter 1 - International Law: Character and Sources, Restatement of the Law, Third,  Foreign Relations Law of the U.S., § 102 (2), Copyright (c) 1987, The American Law Institute.

(3) Hague Conventions, Convention (IV) Respecting the Laws and Customs of War on Land, Annex to the Convention: Regulations concerning the Laws and Customs of War on Land,  Articles 42 and 43,   [The Hague, October 1907].   Also see:  FM 27-10, US War Dept. Field Manual, Rules of Land Warfare (Oct. 1, 1940 edition), para. 271.

(4) Goodman, Davis P., "The Need for Fundamental Change in the Law of Belligerent Occupation," Stanford Law Review, Vol. 37, No. 6 (Jul., 1985), p. 1580-1.

(5) Jonathan I. Charney and J. R. V. Prescott, "Resolving Cross-Strait Relations Between China and Taiwan," American Journal of International Law, July 2000

(6) "Sino-Japanese Relations: Issues for U.S. Policy," Congressional Research Service, CRS Report for Congress, Dec. 19, 2008, Washington, D.C.

(7) TAIPEI TIMES news report, June 09, 2013, p. 1, quoting from  "Probable Developments in Taiwan," Central Intelligence Agency Report, March 14, 1949.

(8) Benvenisti, Eyal, The International Law of Occupation, Oxford University Press, (2012), p. 5.  

See also: ICRC Commentary on the Geneva Conventions of 1949, published under the general editorship of Jean S. PICTET, Doctor of Laws, Director for General Affairs of the International Committee of the Red Cross, Geneva, (1958), p. 275; and

Greenwood, Christopher, "The Administration of Occupied Territory in International Law" collected in: Playfair, Emma (ed) International Law and the Administration of Occupied Territories, Oxford University Press, (1992).

(9) Goodman, Davis P., supra,   p. 1580.

(10) Such an interpretation fully confirms the remarks of General Douglas MacArthur given at a US congressional hearing in May 1951. He stated: "legalistically Formosa is still a part of the Empire of Japan."

(11) Geneva Convention (IV) (Aug. 12, 1949), Geneva Convention Relative to the Protection of Civilian Persons in Times Of War,   Article 47; and

Hague Conventions, Convention (IV) Respecting the Laws and Customs of War on Land, Annex to the Convention: Regulations concerning the Laws and Customs of War on Land,  Articles 42 and 43,   [The Hague, October 1907].   Also see:  FM 27-10, US War Dept. Field Manual, Rules of Land Warfare (Oct. 1, 1940 edition), para. 271, 273.

(12) Graber, Doris A., The Development of the Law of Belligerent Occupation, Columbia University Press, (1949).

(13) Vestitive fact is one which determines positively or negatively, the vesting of a right in its owner. It is one which either creates or destroys or transfers rights. Example: If a treaty is made, and Country A cedes a territory to Country B, then Country A’s right to ownership in the territory is (forever) devested, and this right vests in Country B.

Importantly, if someday in the future Country A wants to re-obtain this territory, a treaty must be concluded whereby Country B definitively cedes this territory to Country A.

[Note: After some time has passed, Country B's renunciation of the "title" to this territory, even if stipulated in a treaty, but without the designation of Country A as the "receiving country," will not effect a transfer of "title" (back) to Country A.]

(14) Ian Brownlie, Principles of Public International Law, Oxford University Press (6th edn, 2003), at 129. However, even in the post-Westphalia Treaty era, and especially in advocating "prescription" (i.e. uninterrupted use and control of territory for a lengthy duration), Brownlie doubted the abstract notion of "title to territory" in public international law, and urged the establishment of standards of proof.

[Note: Hence, this author maintained that a method for clarifying such territorial title more concretely should be utilized, in order to prove the holding of territorial sovereignty.]

(15) E.g., According to international law (in particular the Hague Conventions and Geneva Conventions) the Iraqi invasion of Kuwait in early August 1990 was never considered to have resulted in the acquisition of territorial title, or the holding of territorial sovereignty, even though Iraq took control of the territory.

References: UN Security Council Resolution 660 (1990). Cf. E. Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy (2006).

See also: Distefano, Giovanni, "The Conceptualization (Construction) of Territorial Title in the Light of the International Court of Justice Case Law", 19 Leiden Journal of International Law (2006) 1041, at 1067–1074.

(16) In regard to WWII in the Pacific, the definition of "treaty" under the laws of the leading Allies was/is much narrower that that given in the Vienna Convention on the Law of Treaties,  which came into force in January 1980. Looking back to the period of the early 1940s to mid-1950s, the Cairo Declaration, Potsdam Proclamation, and Japanese surrender documents were not regarded as "treaties".

The official "Laws and Regulations Database of the Republic of China" was compiled by the ROC's Ministry of Justice, and is available online at https://law.moj.gov.tw/     It has a listing of all international treaties and conventions to which the Republic of China is a party. Apparently however, the compilers of this database do not regard the Cairo Declaration, Potsdam Proclamation, or Japanese Instrument of Surrender as conventions or treaties; hence these documents are not listed therein.

In summary, in regard to the post-WWII disposition of Taiwan, the SFPT clearly has the highest legal weight under international law.