Canberra, 28 October 1960
Confidential
China and Formosa
I wish to draw your attention to a new element which has been introduced into Australian consideration of the future of Formosa by Sir Garfield Barwick’s1 statement in the United Nations General Assembly on Chinese representation.2
2. Sir Garfield Barwick’s statement is a departure from the position which Australia has previously adopted on the status of Formosa, and uses arguments which we have never before put forward for the non-recognition of Peking or the maintenance of Chinese representation in the United Nations by the Nationalist Government. Our records do not show that Australia has hitherto ever committed itself to the view that Formosa is part of China.
3. Sir Garfield began from the premise: ‘The Republic of China originally admitted to the United Nations was a territorial entity, having independence as a State’. The development of the argument implied (but did not state) that Formosa was and is part of that entity. Presumably, the Republic of China was ‘admitted’ to the United Nations on 24th October, 1945, when the Charter entered into force. The Chinese had in September taken over control of Formosa from the Japanese. But this was not a cession, nor did it in itself constitute any change of sovereignty. Japan’s legal title to the territory had not been renounced by them, and in fact was not done so until the Peace Treaty was signed, so that Formosa was still, in 1945, ‘de jure’ Japanese territory. Under the terms of the subsequent Peace Treaty, in September 1951, Japan renounced any claims to sovereignty to Formosa, but not in favour of any other country. Chiang Kai-Shek had moved his Government to Formosa 2
4. We have hitherto avoided any commitment on where sovereignty over Formosa resides. (A departmental view (1958) on the juridical principle involved, is attached.)3 You said on 9th February, 1955:4
‘I do not think anybody could say dogmatically what the juridical position of Formosa is. I have heard conflicting views on it. I do not undertake to determine who is right. All these problems of international law are pretty vague. As regards the juridical status of Formosa, this is something which is yet to be determined and no doubt will some day be determined by the United Nations or under United Nations machinery.’
The United Kingdom and United States, although signatories to the Potsdam5 and Cairo6 Declarations providing for the restoration of Formosa to the Republic of China, do not consider themselves strictly bound thereby, and are supported in this view by legal assessments of the nature of these declarations. President Truman said on 27th June, 1950:
‘As to the determination of the future status of Formosa, this must wait the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.’
On 26th November, 1951, Mr. Nutting, the United Kingdom Parliamentary Under-Secretary of State for Foreign Affairs said:
‘The Formosan problem has now become an international one, and concerns a number of nations other than those which subscribed to the Cairo and Potsdam Declaration.’
5. Sir Garfield.argued that ‘the Government of the People’s Republic of China was not in the control of the whole territory of China … but it claims the right to take control of a part of that territory containing many millions of people against their will, by force of arms’. He went on to say that ‘Australia felt that the question which the Government of the People’s Republic of China would settle by force of arms must be settled by some other means … before the Assembly considered the question of accepting the accreditation in respect of the whole territory of the Republic of China from the revolutionary Government’. The argument fairly clearly puts Australia in the position of advocating the existence of only a single territorial entity of China, which includes Formosa, which is entitled to a seat in the United Nations.
6. It would seem that the argument used in New York will make it more difficult for Australia to advocate the view that the people of Formosa have a right to determine a future as separate from China. Yet this appears at present to be the only practical alternative to eventual recognition of Peking as the government of the mainland and of Formosa.
[NAA: A1838, 3107/33/1/1, vi]
1 Australian Attorney-General.
2 8 October.
3 A paper by the Legal and Treaty Division on ‘The Legal Position of Formosa’ dated 16 May 1958. The paper concluded that the question of de jure sovereignty over Formosa was uncertain or undetermined: ‘The Allied Powers (or, if they cannot speak unanimously, a majority of them) would thus seem to have the right of disposal of the territory. This conclusion would seem to have the advantage of, if and when Red China is ever recognised, enabling the Allied Powers or at least a majority of them to dissociate the question of the ultimate disposal of Formosa from the recognition question’.
4 Menzies made his statement at a press conference in London, where he had attended the Commonwealth Prime Ministers’ Meeting. See Current Notes , vol. 26, 1955, pp. 116–17.
5 See footnote 4, Document 27.
6 See footnote 4, Document 19.