Subject: 1895 Treaty of Shimonoseki  

Excerpt from p. 634 - 635

In 1941, China proclaimed that all treaties with Japan were abrogated. (FN: 129) Though this act was deviod of legality and effect in international law, (FN: 130) China pressed its case at meetings of the Allies and succeeded, at last, in having some of its territorial demands incorporated in the Cairo Declaration of December 1, 1943, (FN: 131) which read in part:

      The Three Great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent.

      With these objects in view the three Allies, in harmony with those of the United Nations at war with Japan, will continue to persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan. (FN: 132)

(129) In its Declaration of War on Japan dated December 12, 1941, China stated: "The Chinese Government hereby formally declares war on Japan. The Chinese Government further declares that all treaties, coventions, agreements and contracts concerning the relations between China and Japan are and remain null and void." For the full text, see 5 DEP'T STATE BULL. 506 (1941).

(130) The most obvious limitation on unilateral denunciation of a treaty derives from those international legal norms affecting the party which are juridically independent of the treaty even though formally incorporated within it. See Vienna Convention on the Law of Treaties, art. 43:
The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.
This provision is obviously a codification of a general, indeed a necessary, principle of international law. Title vested in Japan at the time of, and/or because of, the Treaty of Shimonoseki, as the language of the Treaty clearly indicated. Such title, insofar as it is title, ceases to be a bilateral contractual relationship and becomes a real relationship in international law. Though contract may be a modality for transferring title, title is not a contractual relationship. Hence once it vests, it can no longer be susceptible to denunciation by a party to the treaty. In fact, war probably does not abrogate treaties of territorial settlement. In Society for the Propagation of the Gospel v. New Haven, 21 U.S. (8 Wheat.) 464, 494 - 95 (1823), the Supreme Court held that "treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as the case of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts . . . . "

(131) The Declaration was issued by President Franklin D. Roosevelt, Prime Minister Winston Churchill, and Generalissimo Chiang Kai-shek.

(132) 9 DEP'T STATE BULL. 393 (1943).

Who Owns Taiwan: A Search for International Title

by Lung-chu Chen and W. M. Reisman
The Yale Law Journal  Vol. 81, No. 4, March 1972