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
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.