Tensions over conflicting claims to sovereignty in the South China Sea have increased significantly over the past decade. The People’s Republic of China (PRC), as the largest plaintiff in the region, has resorted to a variety of means to establish and consolidate its claims in the disputed region, from complaining about the characteristics it attests to issuing several official documents supporting its historical evidence Connections to the South China Sea. However, there is one legal avenue that seems to have been underutilized for the PRC and that is the Sino-Japanese peace treaty of 1952. Officially, the PRC denies the validity of this treaty, but still makes vague references to its content Contract to justify its legitimacy in the South China Sea. The purpose of this article is to set out the reasons why this treaty could potentially help the PRC’s claim and to explain why their stance on the treaty has been largely hesitant to date.
To understand the potential benefits of the treaty and the reasons for its seemingly under-exploitation, it is necessary to take a brief look at history between 1946 and 1952, as those turbulent years formed the basis of such a paradoxical situation. After Japan’s defeat in World War II, China was occupied by two major political parties: the Chinese Communist Party (CCP) and the Kuomintang (KMT). The two parties waged a bloody civil war, and as a result, the CCP dominated mainland China, while the remnants of the KMT transferred their regime, the Republic of China (ROC), to the island of Taiwan. In the years after 1949, both sides claimed to be the only legitimate government for all of China, leading to a “92 Consensus” four decades later that stated that there is only “one China” between the two sides of the strait. But diplomatically at the time, some countries, such as the United States (US), continued to recognize the KMT as the legitimate government of China, while others, such as the United Kingdom, shifted their recognition from the KMT to the CCP.
At the international level, the peace treaty of San Francisco between Japan and 48 other countries was signed on September 8, 1951. The aim of this treaty was to officially end the Second World War between the Allies and Japan and to make post-war regulations in the Asia-Pacific region. Article 2 of the San Francisco Peace Treaty covers all areas abandoned by Japan, including Korea, Formosa (Taiwan) and the Pescadores (Penghu), the Kuril Islands, the Pacific Islands, which were formerly under Japanese mandate, all parts of the Antarctic area and the Spratlys and the Paracels. But the contract was signed without the presence of the CCP or the KMT. The reason for this was that there was disagreement about which party could adequately represent the central government of China.
In practice, the CCP and KMT had very different approaches to the San Francisco Peace Treaty. The CCP denies the legitimacy of the San Francisco Peace Accords on the grounds that it was excluded from the negotiation process. On September 18, 1951, the Foreign Minister of the People’s Republic of China, Zhou Enlai, announced his rejection of the treaty. Zhou spoke about the absence of the delegates from the People’s Republic of China in the negotiations and criticized the US intention to rearm Japan. The conclusion was that the contract could be illegal, invalid and unrecognizable.
In contrast, the KMT decided to sign a separate treaty with Japan that adopted the basic ideas of the 1952 San Francisco Peace Treaty. It was believed that the motive behind this move was not to offend its most important ally, the United States. The new treaty, which was better adapted to the circumstances of the Republic of China, became the so-called Sino-Japanese peace treaty. The CCP also officially denied the legitimacy of this contract. Zhou Enlai claimed that the contract was “public insults and hostility towards the Chinese people”.
Even so, the Sino-Japanese peace treaty of 1952 is strongly tied to the sovereign status of the Spratlys and Paracels in the South China Sea, which, if properly applied, can advance China’s interests. Taiwanese scientists have tried to make their cases plausible and, to some extent, reasonable. Chen Hurng-yu’s “Territorial Disputes in the South China Sea under the San Francisco Peace Treaty” and Lin Man-houng’s “A Neglected Treaty for the South China Sea” are two examples of such efforts. Two points are particularly emphasized in both articles.
First, they compare the differences between the San Francisco Peace Treaty and the Sino-Japanese Peace Treaty of 1952 and find that the territorial issues mentioned in the latter must indicate that these areas in the South China Sea were transferred to the Republic of China. Article 2 of the San Francisco Peace Treaty covers all areas abandoned by Japan, including Korea, Formosa (Taiwan) and the Pescadores (Penghu), the Kuril Islands, the Pacific Islands, which were formerly under Japanese mandate, every part of the Antarctic area, and the Spratlys and the Paracels. However, the Sino-Japanese peace treaty does not mention that many. It only includes Taiwan and Penghu, and the Spratly Islands and Paracel Islands. Why does the Sino-Japanese peace treaty only mention these areas and not all areas that Japan has renounced?
The most natural explanation is that these areas are of great importance to the Republic of China, more than any military or geopolitical sense. The Korean peninsula is militarily and strategically relevant to China’s interests, but is not mentioned in the Sino-Japanese peace treaty. Hence, the Spratlys and the Paracels must have been interpreted in a way with a strong territorial impact on the ROC. Lin cites a historical document which states that while the UK prevented the ROC from attending the San Francisco Conference, it insisted that the scope of the bilateral treaty should be limited to the area then and later under was under the control of the ROC. Lin also discovers that Eiji Wajima, Japanese director general of the Asian Affairs Bureau, declared in the House of Lords Foreign Affairs Committee on May 27, 1952 that the areas included in the San Francisco Peace Treaty were closely related to the Republic China related were mentioned again in the bilateral treaty. Chen’s article also focuses on this point. He cites a statement made by Daniel Dzurek, who argued: “This shows that the Republic of China and Japan accorded a similar status to the islands of Taiwan, the Pescadores, the Spratlys and the Paracels – i. H. belonging to China. “
After his resignation as President of the ROC, Ma Ying-jeou became a professor at Soochow University and added his evidence to the meaning of the contract. Referring to the exchange of notes on the Sino-Japanese peace treaty, he claimed it clearly stated that the treaty “shall apply to all areas of the Republic of China that are now or will be in the future.” , under the control of his government ”. In other words, the treaty strongly indicated that the aforementioned areas would be under the control of the ROC government. Ma then criticized the CCP for rejecting the validity of the treaty that ended the humiliation of the Chinese people after the Qing Dynasty was defeated by Japan in 1895.
The second point they present relates to the status of the Spratlys and Paracels prior to the end of World War II. Lin argues that both the San Francisco peace treaty and the Sino-Japanese peace treaty recognized that the Paracels and Spratlys were Japanese territory at war, otherwise they could not have been abandoned by Japan. This was consistent with the fact that they had been administered by the Takao (Gaoxiong) of Taiwan, under the jurisdiction of the Governor General of Taiwan, since 1939. Consequently, if Taiwan were to be transferred to the ROC with little international confusion, these two areas should also be transferred as a package. Chen’s article attempts to reinforce this notion by invoking international law. He refers to that Principle of the Uti Possidetis to justify his point.
This principle means that the area in question should keep its original shape as it was in the possession of the previous owner. Accordingly, with the takeover of Taiwan, the ROC naturally also took over the territory under Taiwan. Chen also mentions another option than the Paracels and the Spratlys terra nullius, Territory that does not belong to any country. Chen understands that this option remains because the two treaties did not specify which country the Spratlys and Paracels were ceded to. But even if this situation is true, the Republic of China should continue to own these two territories because “before and after the signing of the San Francisco Peace Accords and the Sino-Japanese Peace Accords, the Republic of China actually ruled and closed the Paracel and Spratly Islands in the one officially published map of the Chinese territory. “
This means that both the San Francisco peace treaty and the Sino-Japanese peace treaty of Beijing can be used favorably. It did. It’s a bit ironic because Beijing denies the legitimacy of these two treaties. Following the Filipino arbitration, Beijing issued its China Adheses to the Position of Seting through Negotiation the Relevant Disputes between China and the Philippines in the South China Sea, which also included cases for Chinese sovereignty over the disputed areas. Paragraph 46 states:
In 1951, at the San Francisco Peace Conference, it was decided that Japan would renounce all rights, titles, and claims to Nansha Qundao and Xisha Qundao. In 1952, the Japanese government officially declared that it had waived all rights, titles and claims to Taiwan, Penghu, Nansha Qundao and Xisha Qundao.
It does not specifically mention the name “San Francisco Peace Treaty”.” or the “Sino-Japanese Peace Treaty”. Beijing had probably tried not to embarrass itself. But the content comes from these two treaties. It certainly shows that Beijing wants to take advantage of the treaties it does not recognize.
In addition, Dong Jianhua, Vice Chairman of the National Committee of the Chinese People’s Political Consultative Conference, spoke at a two-day “Symposium on International Law to Settlement Maritime Disputes” in Hong Kong in July 2016. He pointed out that China’s sovereignty over the Spratlys can be substantiated by numerous pieces of evidence, including the “Cairo Declaration of 1943, the Potsdam Proclamation of 1945, the San Francisco Peace Treaty of 1951, the Sino-Japanese Peace Treaty of 1952, the United Nations General ”. Assembly Resolution 2758 of 1971 and the 1972 Joint Declaration by the Government of the People’s Republic of China and the Government of Japan ”. Here the names of the contracts were mentioned directly by a high-ranking official in the PRC. Although Dong spoke these words in Hong Kong rather than on the mainland, his political status meant that words from his mouth were not casual, especially on a sensitive subject like the South China Sea.
Hence the ambivalence of the PRC’s attitude towards the Sino-Japanese peace treaty and the previous San Francisco peace treaty is evident: on the one hand, it denies the legitimacy of these treaties; on the other hand, their claim to the South China Sea is based in part on it. In my interview with Liu Fu-kuo (2019), professor at the Taiwanese National Chengchi University, who frequently suggests cooperation between mainland China and Taiwan on the South China Sea issue, he expressed his wish that mainland China would sign the Sino-Japanese peace treaty: “ The mainland should see the ROC’s efforts objectively.[…] You seldom mention the ROC. You were only talking about “since ancient times” …… When you talk about the Sino-Japanese peace treaty, you have to talk about the San Francisco peace treaty. […]You can deny it in relation to the cross-strait relationship, but as a starting point for the South China Sea claim it is necessary to include it and make an official statement. “
Indeed, ambiguity can hardly help Beijing because a contradiction in terms will always undermine the justice of its own case. In addition, more questions are raised than Beijing is trying to answer. Does Beijing mean that the international agreement of the San Francisco Treaty will be recognized? Does Beijing state that the contracts signed by Taipei are valid? To what extent will Beijing really rely on these treaties to justify its claims, especially on international occasions where different opinions can be exchanged? At the moment, partial reliance on this treaty can neither deny Taiwan’s de facto autonomy nor systematically support Beijing’s claims to sovereignty.
But it is not easy for the Beijing authorities to make adjustments. This is because there is a legal quandary for Beijing. If Beijing denies the existence of the Republic of China and the treaty it signed after 1949, the PRC’s evidence of its claim in the South China Sea is not at its peak. Without the historic deal signed by the ROC, Beijing’s claim to the South China Sea is potentially more vulnerable to attack by other claimants. But if Beijing takes advantage of the treaty, then the idea that the Republic of China will exist as a legal entity beyond 1949 has at least some validity. Beijing also rejects this.
One neutralizing factor that could alleviate Beijing’s concerns is that the treaty was annulled in 1972 when the PRC established diplomatic relations with Japan. Japan has moved its diplomatic recognition from the ROC to the PRC. This is important because, on that basis, the Sino-Japanese peace treaty will make Beijing’s insistence that it is the only legitimate government for all of China, including Taiwan, less in question. At the same time, however, according to Article 63 of the Vienna Convention on Contract Law of 1969, the effect of the contract can be preserved:
The termination of diplomatic or consular relations between the contracting parties does not affect the legal relations established between them by the contract, unless the existence of diplomatic or consular relations is essential for the application of the contract.
This article has shown that the Sino-Japanese peace treaty can potentially help China’s claim to the South China Sea. However, there is a certain ambiguity in the official stance of the Chinese authorities that is not particularly helpful to itself. This stems from a legal dilemma for Beijing as it faces a difficult choice of tacitly admitting the ROC’s continued presence in Taiwan or not fully exploring a legal avenue in the South China Sea. Nonetheless, the 1972 revocation of the treaty could offer a small assurance that better use of the treaty is less likely to challenge the CCP’s political principle that it is the only legal government for all of China.
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