This report evaluates the argument advanced by representatives of the People's Republic of China (PRC) and aligned delegates during the Fifth Session of the United Nations General Assembly (1951), which asserted that the legal status of Taiwan was irrevocably determined by wartime declarations and Japan’s surrender in 1945, and that Article 107 of the UN Charter forecloses further legal scrutiny of this arrangement. Upon review, it is found that this argument lacks support under accepted principles of international law and postwar treaty practice.
The PRC and allied delegates advanced the position that:
One of the core claims advanced by Chinese officials and their supporters in the United Nations is that the surrender of Japanese forces in Taipei on October 25, 1945, constituted the return of Taiwan to China — celebrated by the Republic of China (ROC) as "Taiwan Retrocession Day." However, this interpretation is legally incorrect and represents a gross violation of China’s obligations under the Hague Regulations Respecting the Laws and Customs of War on Land (1907).
The surrender of Japanese troops in Taiwan was carried out by order of the Supreme Commander for the Allied Powers (SCAP), General Douglas MacArthur, as part of the Allied occupation of former Japanese territories. ROC military forces were designated as subordinate agents of the Allied Powers for the purpose of accepting Japan’s local capitulation. As such, their arrival in Taiwan did not represent the reassertion of Chinese sovereignty, but the start of a military occupation on behalf of the Allied coalition, lead by the United States.
Under Article 43 of the Hague Regulations of 1907, the temporary assumption of authority by a military occupier does not constitute a change in sovereignty. Article 43 reads: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety . . . . " This framework has long governed the legal distinction between occupation and annexation. [FT: 1] Surrender ceremonies trigger military control, not sovereignty transfer.
China officially ratified the 1907 Hague Convention (IV) and its Annexed Regulations on 10 May 1917, as recorded by the ICRC and the Dutch treaty depositary. Following standard principles of international law, including the doctrine of state continuity and succession of governments, the People’s Republic of China (PRC) is bound by the obligations accepted by the Republic of China (ROC) as its predecessor in international legal personality. Therefore, both the ROC and PRC have been — and remain — bound by the norms of the law of occupation.
The unilateral announcement of "retrocession" by the ROC on October 25, 1945, not only lacked treaty basis, but also violated China’s duties as an occupying power under the Hague framework. Sovereignty over Taiwan remained with Japan until such time as it was formally relinquished by treaty, which occurred in Article 2(b) of the San Francisco Peace Treaty (1952), without designating a recipient. The claim that a local surrender ceremony equated to full sovereignty transfer is therefore inconsistent with both historical facts and binding treaty law to which China had agreed.
The Instrument of Surrender signed on September 2, 1945, implemented the unconditional surrender of Japanese forces but did not effectuate territorial changes. Article 1 referred to Japan's acceptance of the Potsdam Proclamation but included no operative clauses transferring title to Taiwan or any other territories.
Moreover, consistent with the Hague Regulations of 1907, especially Article 43, military occupation does not transfer sovereignty. [FT: 2]
The San Francisco Peace Treaty (SFPT), signed on September 8, 1951, and in force from April 28, 1952, governs the legal disposition of Japanese territory. Under Article 2(b) of the SFPT: "Japan renounces all right, title and claim to Formosa and the Pescadores." However, the treaty does not designate a recipient, leaving Taiwan's sovereignty unassigned. This omission was deliberate. As U.S. Secretary of State John Foster Dulles stated, "The treaty does not determine the future of these islands. That is left to the future." [FT: 3]
Article 107 of the United Nations Charter was adopted in 1945 as a transitional provision. It states that:
Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.
This clause was intended to shield the postwar Allied powers from legal challenges concerning wartime decisions, including occupation policies, war crimes prosecutions, and territorial adjustments implemented by force. However, its scope was limited to actions actually taken or authorized by the Allies as a result of World War II, and it does not grant blanket immunity to every claim made in the name of wartime victory.
Critically, the provision does not transform political declarations — such as the Cairo and Potsdam statements — into binding legal instruments, nor does it settle questions of sovereignty that remained unresolved in the absence of a definitive treaty. In the case of Taiwan, no Allied action, whether during or immediately after the war, resulted in a formal legal transfer of the island’s sovereignty to China. Japan’s surrender initiated a period of military occupation by Chinese Nationalist forces on behalf of the Allies, but this occupation did not constitute a cession of title. [FT: 4] Indeed, the Allied Powers made clear that the final status of Taiwan would be determined by a future peace treaty.
When the San Francisco Peace Treaty (SFPT) was signed in 1951, it codified Japan’s renunciation of its sovereignty over Taiwan and the Pescadores under Article 2(b). However, the treaty did not specify a recipient of that territory. This omission was deliberate. Therefore, the legal disposition of Taiwan was not settled by the war, but was explicitly deferred by the very treaty that was meant to finalize territorial matters arising from World War II.
Legal scholar Yuen Foong Khong has pointed out that Article 107 was intended as a safeguard for immediate postwar stability and should not be interpreted as perpetually immunizing historical claims of sovereignty from legal or diplomatic reconsideration. He notes: "Article 107 was transitional in nature and not intended to shield future claims of sovereignty based solely on wartime declarations." [FT: 5] Accordingly, reliance on Article 107 to justify or shield the claim that Taiwan is part of China lacks legal grounding, especially in the absence of treaty-based transfer or a subsequent expression of self-determination by the population of Taiwan.
A critical misunderstanding that arises in many PRC-aligned arguments is the conflation of political declarations with legally binding treaties. In international law, a treaty is a written agreement between states that is intended to be legally binding and is concluded in accordance with the respective constitutional procedures of each government. The mere issuance of a joint declaration — such as the Cairo Declaration (1943) or the Potsdam Proclamation (1945) — does not create a treaty obligation unless it meets these criteria.
Treaties typically undergo formal review and approval processes. In democratic states, this often includes scrutiny and ratification by legislative bodies such as a parliament or senate. The deliberate nature of this process ensures that treaty obligations are not imposed lightly or unilaterally. These procedural safeguards distinguish treaties from executive communiqués or statements of policy intent made during wartime diplomacy. This distinction is especially important in territorial matters, where sovereignty transfers must be clearly and unambiguously expressed.
Although the Vienna Convention on the Law of Treaties (1969) came into force only decades after World War II, it codified longstanding customary law regarding the formation and interpretation of treaties. Under Article 2(1)(a), a treaty is defined as "an international agreement concluded between States in written form and governed by international law . . . . whatever its particular designation." The emphasis is not on the label of the document, but on its legal intent and procedural formality.
The Cairo Declaration and the Potsdam Proclamation were not treaties under international law. They expressed intentions rather than effectuated legal transfers of territory. As Professor Lung-chu Chen explains, declarations such as Cairo and Potsdam are political in nature and do not constitute binding international agreements under the law of treaties. [FT: 6]
While the Vienna Convention on the Law of Treaties defines a treaty broadly as "an international agreement concluded between States in written form and governed by international law" (Article 2(1)(a)), the critical determinant is the intention of the parties to be legally bound. Not every intergovernmental declaration qualifies. Wartime communiqués such as the Cairo Declaration (1943) and Potsdam Proclamation (1945) were issued as political declarations of policy and collective intent — not as binding international legal instruments.
How do we know that they were not intended to be treaties?
Moreover:
As such, the argument that Taiwan's territorial status was conclusively resolved by the wartime declarations is not legally sustainable. The distinction between political intent and legal effect is fundamental in treaty law. It is only through instruments like the San Francisco Peace Treaty — negotiated, signed, ratified, and registered under the framework of international law — that sovereignty issues are legally settled. And critically, the SFPT did not award Taiwan to China, thereby reinforcing the understanding that earlier declarations were aspirational and non-binding.
It is also telling that the most authoritative legal database in Taiwan, operated by the Ministry of Justice https://law.moj.gov.tw/ , does not list either the Cairo Declaration or the Potsdam Proclamation as treaties. This omission reinforces the widely accepted view that these documents were policy declarations rather than instruments of legal transfer. The formal instrument that could have transferred Taiwan’s sovereignty was the San Francisco Peace Treaty (1952), but it deliberately omitted naming a recipient of the territory renounced by Japan. This further illustrates that the Allied powers viewed the issue of Taiwan's final legal status as unresolved at the time.
The argument put forth by the People's Republic of China (PRC) that Taiwan’s legal status was conclusively resolved by wartime declarations, Japan’s surrender, and Article 107 of the UN Charter lacks support from international law. The declarations in question were non-binding; Japan's surrender did not effectuate a cession of territory; and the San Francisco Peace Treaty (SFPT) intentionally left Taiwan's sovereignty undefined. Furthermore, Article 107 does not provide immunity from scrutiny in cases where territorial sovereignty remains legally unsettled.
As such, Taiwan's legal status remains subject to lawful interpretation under the framework of postwar treaty law, the laws of occupation, and the principle of self-determination within that framework. However, it is important to note that, in practical terms, the exercise of the principle of self-determination can only occur insofar as it aligns with the policies of the legal occupier, particularly in the context of its broader global political strategy.
Article 107 of the United Nations Charter states:
Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.
This provision was intended to legitimize actions taken by Allied powers against Axis states during and immediately after World War II. However, its application has been subject to debate in various post-war contexts.
In the late 1940s, the United Nations addressed the issue of Korea's independence. Some member states argued that UN involvement was inappropriate, citing Article 107 to claim that matters related to former enemy states were outside the UN's purview. Despite these objections, the General Assembly proceeded to establish the United Nations Temporary Commission on Korea (UNTCOK) to oversee elections and facilitate Korea's transition to independence.
During the early 1950s, the UN examined human rights violations in Bulgaria, Hungary, and Romania. Opponents of UN involvement invoked Article 107, asserting that these issues were internal matters of former enemy states and thus exempt from UN scrutiny. Nevertheless, the General Assembly adopted resolutions addressing these concerns, indicating a willingness to engage in discussions despite Article 107 objections.
In 1948, the Berlin Blockade prompted discussions in the Security Council. The Soviet Union contended that the situation was a matter concerning a former enemy state and thus fell under Article 107, precluding UN intervention. However, the Security Council included the issue on its agenda and deliberated on it, demonstrating that Article 107 did not categorically bar UN consideration of such matters.
The three postwar disputes described above — Korean independence, human rights violations in Eastern Europe, and the Berlin Crisis — offer valuable insight into how different UN member states have interpreted the scope and limitations of Article 107 of the UN Charter. In each case, certain governments argued that the United Nations had no authority to intervene in matters involving former enemy states, claiming that such actions were shielded by Article 107. However, in each instance, the UN either continued discussions or passed resolutions, signaling a contrasting view of the Charter’s intent and the evolving responsibilities of the UN in global governance.
Those who invoked Article 107 generally believed that:
By contrast, UN members who supported intervention or review typically argued that:
In effect, these disagreements were not merely legal, but deeply political — reflecting the early Cold War divide between East and West. Yet in practice, the United Nations has generally adopted the view that Article 107 cannot be used to permanently shield any state or territory from UN engagement when the issues at stake concern peace, human rights, or international accountability.
When applied to the case of Taiwan, the precedent set by these postwar disputes makes clear that Article 107 cannot be interpreted as foreclosing legal or diplomatic review of Taiwan’s territorial status. First, there was no binding Allied decision or treaty-based action following World War II that legally transferred Taiwan’s sovereignty to China. The postwar arrangements involving Taiwan — particularly the surrender of Japanese forces in 1945 and subsequent ROC administration — were provisional in nature, consistent with occupation rather than annexation. Second, the San Francisco Peace Treaty (1952) expressly avoided specifying a recipient for Taiwan, leaving its status unresolved under international law. In light of these facts, the invocation of Article 107 by PRC-aligned states does not reflect settled legal doctrine but instead represents an attempt to immunize a contentious territorial claim from scrutiny. Just as the United Nations has previously refused to accept Article 107 as a blanket shield in cases involving Korea, Germany, and Eastern Europe, there is no legal basis for using it to block discussion of Taiwan’s status.
[FT: 1] Klabbers, Jan. "Occupation as a Legal Framework." In International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law, edited by Roberta Arnold and Noëlle Quénivet, 229-242. Leiden: Martinus Nijhoff, 2008.
[FT: 2] Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations, Oct. 18, 1907, Article 43.
[FT: 3] Statement of John Foster Dulles, in U.S. Senate, Hearings on the San Francisco Peace Treaty, 1952.
[FT: 4] Roberts, Adam. "What Is a Military Occupation?" British Yearbook of International Law 55, no. 1 (1984): 249-305.
[FT: 5] Yuen Foong Khong, "China and the United Nations: The Politics of Participation," Asian Survey, Vol. 18, No. 11 (Nov. 1978), pp. 1156–1175.
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