FAR EAST (FORMOSA AND THE PESCADORES) (Hansard, 4 May 1955)

§ Mr. Geoffrey Bing (Hornchurch)

I want now to deal with a strictly legal matter. In these circumstances, I am sorry that the right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald) is leaving the Chamber. No, he is remaining. I want to ask the Joint Under-Secretary of State for Foreign Affairs the legal position in regard to Formosa in international law.

This is a matter in which the Government of the United States take one point of view, the so-called Government of Chiang Kai-shek take the same point of view and the Government of the People's Republic of China take the identical point of view. They all agree, whatever else they may disagree on, that Formosa is part of China, that Formosa and the Pescadores Islands are part of China. I understood the Prime Minister, when he was Foreign Secretary, to say that the other Powers, signatories to the Cairo Declaration, whether one took them to be the Chiang Kai-shek or the People's Republic, were out of step, but that we are in step. He said on 4th February: Under the 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 People's Republic of China or to the Chinese Nationalist authorities. Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the de jure sovereignty over which is uncertain or undetermined."—[OFFICIAL REPORT, 4th February, 1955; Vol. 536, c. 159.] 1866 It is the exact opposite of what Mr. Dean Acheson said. Mr. Dean Acheson, when Secretary of State of the United States, said on 5th January, 1950: The Chinese have administered Formosa for four years. Neither the United States nor any other ally ever questioned that authority in that occupation. When Formosa was made a province of China nobody raised any lawyer's doubts about that. That was regarded as in accordance with the commitments. Now, in the opinion of some, the situation has changed. They want to say,' Well we have to wait for the treaty.' We did not wait for a treaty on Cairo. We did not wait for a treaty on the Kuriles. We did not wait for a treaty on the islands over which we have trusteeship. Is it suggested that the Americans in the islands over which they operate trusteeship are there illegally and their status has not been defined? Exactly the same legal point of view was taken not only by the Democratic Administration but by the Republican Government.

On 4th December last, Mr. Dulles, the present Secretary of State, signed a treaty with the Government of the Republic of China. This treaty provides in Article 2 that each of the parties will resist armed attack and Communist subversive activities directed from without against their territorial integrity and political stability. Article 6 provides that for the purposes of Article 2 the terms "territorial" and "territories" shall mean, in respect of the Republic of China, Taiwan (Formosa) and the Pescadores … The American Government are saying, "We have a right to be in Formosa because we have a treaty with the Republic of China and it is Chinese territory." The Prime Minister, when he was Foreign Secretary, said the legal position is very different and that we ought to assist the Americans in the present position just because Formosa is not part of China. But Formosa cannot be part of China if one recognises Chiang Kai-shek and not be part of China if one recognises fhe People's Republic, and I am sure that the present Foreign Secretary does not want to play around with international law. I hope that tonight we shall have a straight answer from the Joint Under-Secretary of State for Foreign Affairs.

It is a matter of very great importance, because if Formosa and the Pescadores are part of the Republic of China, then Article 2 (7) of the Charter of the United Nations applies. As the Joint Under- 1867 Secretary will know, that is the article which precludes the United States intervening in any dispute which arises over any civil war, and if Formosa is part of China this is a civil war to determine which is the proper Government of China.

I would commend to the Joint Under-Secretary the remarks of a very distinguished jurist, Mr. Benjamin V. Cohen, who was for long the legal adviser to the State Department, not the other distinguished jurist who was adviser to the McCarthy Commission. In a memorandum, Mr. Cohen pointed out the legal consequences if the Senate of the United States were to endorse the treaty of 2nd December, 1954. In that memorandum, which was printed in the Congressional Record, Mr. Cohen said: The formal recognition of Formosa and the Pescadores as territories of the Republic of China would give substance to the claim of the Chinese Communists that an armed attack on these islands is not international aggression on their part but civil war in which the right and purpose of other nations forcibly to intervene would be open to serious doubt and question. In order to resolve the problem and get out of the difficulty, the United States Senate added rather weakly, because it seems to have no force whatever in international law, the following rider in its report on the treaty: It is the understanding of the Senate that nothing in the treaty shall be construed as affecting or modifying the legal status or sovereignty of the territories to which it applies. It had been agreed by former Secretary of State Dean Acheson that Formosa was properly a part of China and it had been agreed by Mr. Dulles, and it was on that basis that the treaty was drafted. The treaty would have no meaning unless its object were to resist an attack on Formosa, yet the only ground upon which it could be resisted under the treaty was that Formosa was part of the territory of China.

The only doubt is to which China it belongs, but that is quite another and political question into which I do not want to go tonight. I hope that the Joint Under-Secretary will give us, as shortly and conveniently as he can, the reasons why he thinks that, first, Mr. Dean Acheson and then Mr. Dulles, who are very experienced legal advisers, are wrong in law, for that is the attitude of 1868 the British Government and one which we ought to clear up.

I do not wish to detain the House too long, but it is my respectful contention to the Under-Secretary that Mr. Dean Acheson and Mr. Dulles are in this particular matter absolutely right, and the reason why they are right in law is that there is a rule of international law which says that territory occupied by one belligerent with the consent of another belligerent after an armistice but during a state of war—because an armistice is only a suspension of the fighting—continues in their possession unless a treaty of peace takes it out of their hands.

If the Under-Secretary wants any authority for that proposition, I would refer him to Volume 11, page 475, of the 6th edition of Oppenheim's International Law edited by Professor Lauterpacht, the distinguished judge of the International Court. There it says: Unless the parties stipulate otherwise, the effect of a treaty of peace is that conditions remain as at the conclusion of peace … Thus further, if nothing is stipulated regarding the conquered territory, it remains in the hands of the possessor who may annex it. But is nowadays usual, although not at all legally necessary, for a conquerer desirous of retaining conquered territory to secure its cession in the treaty of peace. In my respectful submission, once Japan had ceded this territory it put it automatically into the hands of China, but which China is another question. However, it became automatically a part of the Chinese State.

May I just give the hon. Gentleman the example with which he is familiar? After the war between Turkey and Italy, for various reasons the Turkish Government refused to cede to Italy Tripolitania and Cyrenaica. If one looks at the text of the Treaty in the Library, as I suggest the hon. Gentleman should, he will see that the Sublime Porte, as it was in those days of the Ottoman Empire, did exactly what was done by Japan, which was to cede all her rights to Tripolitania and Cyrenaica, whereupon Italy informed the Powers that she had, in fact, taken possession of them. That act was never questioned by the British or any other Government. I just commend to the hon. Gentleman the provisional treaty of the 15th October, 1912, and the definite treaty of the 18th October, 1912, at both of which he has probably looked.

1869 Of course, it has happened on many occasions, as, for example, when part of the Papal States were joined to Savoy and later were made part of Italy, when they were recognised as such by the British Government although they were never conceded in any treaty by the Holy See. Is the hon. Gentleman saying that these previous acts of English history are wrong, and that Mr. Dean Acheson, Mr. Dulles, and for good measure, Lord Palmerston, were all wrong as well?

There is only one other matter with which I should like to deal, and that is a much more general issue and depends on the sanctity of treaties and arrangements between the heads of States. This is a matter which I hope the Under-Secretary will not dismiss lightly. It has up to now, as I understand it, always been considered a principle of international law that when there is a meeting of heads of States and they come to a decision, that decision is binding upon the States concerned.

I will trouble the House with one more quotation from Professor Lauterpacht, 7th edition, Oppenheim, at page 788. He says, speaking of the validity of such a genera] declaration: A more general statement of policy and principles cannot be regarded as intended to give rise to a contractual obligation in the strict sense of the word. On the other hand, official statements in the form of Reports of Conferences signed by the Heads of States or Governments and embodying agreements reached therein may, in proportion as these agreements incorporate definite rules of conduct, he regarded as legally binding upon the States in question. The Reports of Conferences of the Heads of Governments of Great Britain, the United States and Russia at Crimea in February, 1945, and at Potsdam in August of that year may be mentioned as examples. If Professor Lauterpacht is right, the Potsdam Declaration which re-affirmed the Cairo Declaration, which was a similar declaration, was binding upon this Government. I hope that the Joint Under-Secretary of State will tell us that the Government have reconsidered this matter, but if he sticks to his previous position, he will be saying, in effect, that Mr. Dean Acheson was wrong, Mr. Dulles was wrong, the Senate of the United States was wrong, Mr. Benjamin D. Cohen was wrong, Lord Palmerston was wrong, Profesor Lauterpacht, who sits as a Judge of the International Court as a British representative—all these people are wrong.

1870 Does the hon. Gentleman really think that is possible? Or does he not think that his view of the law may be coloured by his desire to twist the position into a convenient political framework? I hope that is not so, because one of the most important issues of international law is that we should have international law clear and definite. Negotiate a modification if we so desire, but at any rate start from one international law, and not have Formosa as part of China if we recognise Chiang Kai-shek, but not as part of China if we recognise the Chinese People's Republic.

§ The Joint Under-Secretary of State for Foreign Affairs (Mr. R. H. Turton)

The hon. and learned Gentleman the Member for Hornchurch (Mr. Bing) has presented a legal argument which displays evidence of careful preparation and research, and also evidence of his customary ingenuity. He has really addressed three legal points to the House. I will take first the one he put last, because that can be dealt with in the shortest space of time, It was that Heads of Governments, when they meet in conference, bind their States.

That is true, but the question in this matter is, what were the terms of the document? The document in question was the Cairo Declaration. That was couched in the form of a statement of intention, and as it was merely a statement of intention, it is merely binding in so far as it states the intent at that time, and therefore it cannot by itself transfer sovereignty. Undoubtedly that document does impose certain moral obligations on those who take part in it, but it is not really germane to the present legal argument on what is or is not today the present sovereignty over Formosa.

The next argument of the hon. and learned Gentleman I will take is the one that it is unnecessary for a defeated Power expressly to cede territory in order to constitute a valid transfer. That argument is undoubtedly correct. Sovereignty can pass without express cession or retrocession, but only if there are circumstances of a nature so strong as to constitute an implied transfer. For instance, conquest may constitute a transfer; and occupation, control and effective administration may, over a period of time, give a title to sovereignty by prescriptive right.

In one of the two cases to which the hon. and learned Gentleman has drawn 1871 my attention, the case of Tripoli, with the two Lausanne Treaties, Tripoli had been conquered by Italy. The conquest had not been recognised by Turkey until it was recognised in the Treaty of Lausanne. This was a case where there was both conquest and occupation for a considerable period of time, with effective control. The other case he mentioned was of the Papal States. There, there was invasion by forces friendly to the inhabitants of the Papal States, followed by administration and effective control.

The case of Formosa is different. The sovereignty was Japanese until 1952. The Japanese Treaty came into force, and at that time Formosa was being administered by the Chinese Nationalists, to whom it was entrusted in 1945, as a military occupation. In 1952 we did not recognise the Chinese Nationalists as representing the Chinese State. Therefore this military occupancy could not give them legal sovereignty nor, equally, could the Chinese People's Republic, which was not in occupation of Formosa, derive any rights from occupation of that territory.

That position has been made quite clear by the statement the Prime Minister made in the House on 4th February, which has been quoted by the hon. and learned Member. Therefore I shall not repeat it. In reply—I quote the concluding passages of his statement—he said: Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the de jure sovereignty over which is uncertain or undetermined."—[OFFICIAL REPORT, 4th February, 1955; Vol. 536, c. 159.] Taking the hon. and learned Member's first point of the United States—Formosa Treaty which, on his argument, would be invalid if our conception of the position is correct, the fact is that Formosa is not under Chinese sovereignty. That does not mean that the Chinese Nationalists have no right to be there. Their presence springs from their military occupancy in which they were placed by the Allied Powers in 1945, pending future arrangements. The United States can make a valid treaty with them in that rô le of temporary occupants of territory whose future sovereignty is undecided.

The hon. and learned Gentleman quoted from statements made by American statesmen; but I am not here 1872 to explain the American statesmen's interpretation of international law but the view of Her Majesty's Government. It is clear from what Mr. Dulles said at the time of the signing of the Treaty that he was in no conflict with us on the legal interpretation of the position. Mr. Dulles at a Press conference on 1st December was reported as saying when he was asked whether the legal position of the coastal islands was different from that of Formosa: The legal position is different by virtue of the fact that technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty; nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan. Therefore the juridical status of these islands, Formosa and the Pescadores, is different from the juridical status of the offshore islands. If there was any doubt, it was made abundantly clear by the reservation made by the Foreign Relations Committee of the Senate in these express terms: Nothing in the present treaty shall be construed as affecting or modifying the legal status or the sovereignty of the territories referred to in Article VI. The hon. and learned Gentleman is therefore quite wrong to suggest that there is any conflict in this matter between the United States view and our view. If he is going back to Mr. Acheson, may I say that that was a time—1950—long before the Japanese Peace Treaty had been signed, so that it would be quite impossible at that time for there to have been a transfer of sovereignty.

The hon. and learned Gentleman appears to be out of line with the view expressed by one of his own leaders when Secretary of State for Foreign Affairs, because on 11th May, 1951, the right hon. Member for Lewisham, South (Mr. H. Morrison) dealt with this question. Having recited the facts about Formosa, he went on to say: The question of Formosa will, however, come up in the context of the Japanese Peace Treaty. Our aim here is to secure an early peace treaty without allowing the difficult issue of Formosa to delay its negotiation and without attempting in the Treaty to find a final solution to an issue which must be given careful consideration later in the general context of the Far Eastern situation. The hon. and learned Gentleman has addressed to us some rather academic arguments, but there remains the real 1873 problem of Formosa. Here we have an island of 10 million people, many of them bitterly hostile to the Chinese Communists; in fact, over a million of them have fled from the mainland to escape Chinese Communism, and 14,000 of them are Chinese soldiers who fought in Korea and became prisoners and refused to go back to the Chinese mainland but opted to go to Formosa.

These people have their human rights which none of us can overlook, and the right hon. Gentleman for Lewisham, South, recognised that when, on 11th May, 1951, he said: I think it is clearly desirable that the wishes of the inhabitants of Formosa should be taken into account."—[OFFICIAL REPORT, 11th May, 1951; Vol. 487, c. 2302.] We are anxious that the future status of Formosa should be a matter to which consideration should be given internationally at an appropriate moment. In the meantime Her Majesty's Government have undertaken no new commitment which has not been assumed by previous Governments. We have one commitment and one commitment only in respect of Formosa, and that is to support the 1874 United Nations in any action which it may think necessary from time to time to maintain peace or resist aggression.