Scholar’s fan­tasy of a treaty Claims in es­say ‘ From San Fran­cisco to the South China Sea’ go against prin­ci­ples of in­ter­na­tional law and do not hold wa­ter

China Daily (Hong Kong) - - COMMENT - GONG YINGCHUN The au­thor is an as­so­ci­ate pro­fes­sor at China For­eign Af­fairs Univer­sity.

Masahiro Mat­sumura, a pro­fes­sor of in­ter­na­tional pol­i­tics from St. An­drew’s Univer­sity in Osaka, Ja­pan, re­cently wrote an es­say en­ti­tled “From San Fran­cisco to the South China Sea”, which has gar­nered wide at­ten­tion. How­ever, the opin­ions he ex­presses are be­yond the bounds of com­mon sense.

Mat­sumura says that in Ar­ti­cle 2 of the 1951 San Fran­cisco Peace Treaty, Ja­pan re­nounced its sovereignty claims over the Nan­sha (Spratly) Is­lands and the Xisha (Para­cel) Is­lands with­out re­as­sign­ing them to any sin­gle coun­try, thus, th­ese is­lands re­main legally un­der the col­lec­tive cus­tody of the other 48 state par­ties to the treaty, in­clud­ing the Philip­pines and Viet­nam. Here the pro­fes­sor should be re­minded that Viet­nam de­nounced the San Fran­cisco Peace Treaty in an an­nounce­ment. China was never a sig­na­tory and has never rec­og­nized the San Fran­cisco Peace Treaty, which Ja­pan uses to try to jus­tify not re­turn­ing the Diaoyu Is­lands to China.

Mat­sumura seems to be­lieve that Ja­pan, as a de­feated ag­gres­sor, was en­ti­tled to be­stow the new le­gal sta­tus of terra nul­lius upon Manchuria (north­east­ern China), Tai­wan, the Pescadores (Penghu), the Spratly and the Para­cel is­lands and all the other ter­ri­to­ries stolen from China, in­stead of re­turn­ing them to China, the orig­i­nal owner, as re­quired by the Cairo Dec­la­ra­tion, Pots­dam Procla­ma­tion and Ja­panese In­stru­ment of Sur­ren­der. Where did Ja­pan get such a right to “re­as­sign” the ter­ri­to­ries stolen from China as a re­sult of its ag­gres­sion? If the Spratly and the Para­cel is­lands should be put un­der the so-called col­lec­tive cus­tody, what about the Kurile Is­lands, Sakhalin and the is­lands ad­ja­cent to it? In Ar­ti­cle 2 of the same treaty, “Ja­pan re­nounces all rights, ti­tle and claim to the Kurile Is­lands, and to that por­tion of Sakhalin and the is­lands ad­ja­cent to it” with­out re­as­sign­ing them to any sin­gle coun­try ei­ther.

In his es­say, Mat­sumura does not men­tion a word about the 1943 Cairo Dec­la­ra­tion, the 1945 Pots­dam Procla­ma­tion as well as the 1945 Ja­panese In­stru­ment of Sur­ren­der, the ba­sics for post­war in­ter­na­tional or­der. He seems to for­get that ac­cord­ing to the in­ter­na­tional doc­u­ments, the le­gal sta­tus and fu­ture fate of “all the ter­ri­to­ries that Ja­pan has stolen from the Chi­nese” were clear and cer­tain: They shall all be re­stored to China.

China re­trieved its once lost ter­ri­to­ries of Tai­wan is­land and the Pescadores, with Diaoyu Is­lands re­main­ing un­der for­eign con­trol, in 1945, and the Spratly and the Para­cel is­lands in 1946. China’s mea­sures of restora­tion met no ob­jec­tion from any coun­try. The his­tor­i­cal con­text shows that six years be­fore the con­clu­sion of the San Fran­cisco Peace Treaty, the le­gal sta­tus of Tai­wan, the Pescadores, the Spratly and the Para­cel is­lands as the ter­ri­to­ries of China had been clear and be­yond doubt.

The San Fran­cisco Peace Treaty only re­con­firmed the post­war or­der laid down by the Cairo Dec­la­ra­tion and the Pots­dam Procla­ma­tion, rather than chang­ing it. Un­der the treaty, Ja­pan was only obliged to re­nounce all rights, ti­tles and claims over ter­ri­to­ries it had grabbed and was not, in any sense, en­ti­tled to “re­as­sign” them.

Another stag­ger­ing opin­ion the au­thor in­tro­duces is that “Ja­pan did not rec­og­nize Tai­wan as a part of China, on the grounds that do­ing so would in­fringe on its obli­ga­tions un­der the San Fran­cisco Peace Treaty”. The ques­tion is: Is there any ar­ti­cle in the treaty deny­ing Tai­wan be­ing a part of China? There is of course no such imag­i­nary ar­ti­cle in the treaty. Fur­ther­more, ac­cord­ing to the gen­er­ally ac­cepted prin­ci­ple of Pacta ter­tiis nec no­cent nec pro­sunt, a treaty does not cre­ate ei­ther obli­ga­tions or rights for a third state with­out its con­sent, let alone the dis­po­si­tion of the ter­ri­to­ries be­long­ing to a third state.

Mat­sumura also twists around the word­ing of the 1972 Sino-Ja­panese Joint State­ment, say­ing that Ja­pan only fully “un­der­stood” and “re­spected” the Peo­ple’s Repub­lic of China’s po­si­tion that Tai­wan is an “in­alien­able” part of its ter­ri­tory, but did not “rec­og­nize” the claim. Be­sides the fact that Tai­wan is­lands have been back as part of China both legally and fac­tu­ally since 1945, Mat­sumura, as a scholar in in­ter­na­tional stud­ies, should have been aware that Tai­wan as an in­alien­able part of China is a ba­sis of the 1972 Sino-Ja­panese Joint State­ment shared be­tween the two sides dur­ing the talks on, and con­clu­sion of, the doc­u­ment and has bind­ing le­git­i­macy in in­ter­na­tional treaty law. This kind of word game by the pro­fes­sor of pol­i­tics can only lead Ja­pan to diplo­matic para­doxes.

The au­thor’s third point is the most en­tan­gled and self-con­tra­dic­tory. On the one hand, Mat­sumura cites Ar­ti­cle 2 of the 1972 Sino-Ja­panese Joint State­ment un­der which the Ja­panese gov­ern­ment ceased to rec­og­nize China’s pre­vi­ous regime — the Gov­ern­ment of the Repub­lic of China (ROC) and in­stead rec­og­nized the Gov­ern­ment of the Peo­ple’s Repub­lic of China as the sole le­git­i­mate gov­ern­ment of China. Mat­sumura thus claims that the new gov­ern­ment should in­herit its pre­de­ces­sor’s rights and obli­ga­tions un­der the 1952 Ja­pan-ROC Peace Treaty. On the other hand, he de­nies that Tai­wan is a part of China, even though it was the seat of the ROC gov­ern­ment. Mat­sumura is re­ally puz­zling his read­ers by all this mud­dling logic.

Mat­sumura of course can­not ex­plain why Ja­pan needed to re­con­firm in the 1952 Ja­pan-ROC Peace Treaty that it specif­i­cally “has re­nounced all rights, ti­tles and claims to Tai­wan, Penghu, the Spratly Is­lands and the Para­cel Is­lands”, if those had not been ter­ri­to­ries of China. Nor does he men­tion whether and why “the Kurile Is­lands, Sakhalin and the is­lands ad­ja­cent to it” should also re­main in the col­lec­tive cus­tody of the 48 state par­ties to the San Fran­cisco Peace Treaty ac­cord­ing to his con­tention.

Mat­sumura’s claims about China’s is­lands are ob­vi­ously un­jus­ti­fi­able and even a joke in to­day’s world. In fact, state par­ties to the San Fran­cisco Peace Treaty need to re­view whether or not the en­force­ment of Ar­ti­cle 3 of the treaty goes against the pro­vi­sions in the treaty it­self, and whether or not the treaty’s pro­vi­sions re­lated to ter­ri­tory dis­po­si­tion and their en­force­ment are in con­for­mity with the Ja­panese sur­ren­der terms spec­i­fied in the Pots­dam Procla­ma­tion.

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