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San Francisco Treaty and the South China Sea

by Masahiro Matsumura

Territorial and maritime disputes among China, Taiwan and several Southeast Asian countries are roiling the South China Sea region with little prospect of resolution anytime soon.

The current uneasy status quo may be tenable so long as the parties embrace serious confidence-building measures through multilateral forums while maintaining effective deterrence vis-a-vis China and a commitment not to use offensive force.

Naturally China is eager to exclude interference by extraregional great powers, particularly the United States, preferring bilateral negotiations with weaker regional claimants that it can more easily dominate. Extraregional powers, however, cite the United Nations Convention on the Law of Sea — specifically, the freedom of navigation and the right of innocent passage — to justify their involvement.

Given that the South China Sea disputes stem from overlapping claims to “exclusive economic zones” — not open ocean — the U.N. convention is not entirely relevant.

But another international agreement does provide some guidance for settling these disputes: the San Francisco Peace Treaty, which entered into force in 1952 and officially ended World War II in the Asia-Pacific region.

Under the treaty, Japan renounced its sovereignty claims over the Spratly and the Paracel Islands but did not reassign them to any single country. As a result, these islands remain legally under the collective custody of the treaty’s 48 other parties — including two claimants to the islands, the Philippines and Vietnam.

China — then in the third year of Mao Zedong’s rule — was not even invited to participate in the peace conference. Although Mao’s communists had clearly won the civil war and secured control of China, the conference organizers disagreed about which government — Mao’s People’s Republic of China (PRC) in Beijing or Chiang Kai-shek’s Republic of China (ROC) in Taipei — truly represented China. As a result, the PRC denies that it is legally bound by the treaty.

But the treaty applies to the PRC indirectly through the ROC-Japan bilateral peace treaty of 1952, which was signed just hours before the San Francisco Treaty and reaffirmed its terms — especially Japan’s renunciation of Taiwan. Indeed, the San Francisco Treaty required that the ROC-Japan treaty be consistent with it, thereby preventing Japan from assigning in its treaty with the ROC any additional right or title to any country other than the parties to the San Francisco Treaty. As a result, Japan is unable to recognize Taiwan as part of PRC sovereign territory.

To be sure, the San Francisco Treaty, per se, is not legally binding for the PRC. But for Japan, the PRC has clearly succeeded the ROC in Taiwan, as demonstrated by the 1972 Japan-PRC Joint Communique, on the basis of the bilateral Treaty of Peace and Friendship that was concluded six years later. When Japan shifted its diplomatic recognition from the ROC to the PRC, it recognized the latter as the “sole legal government of China.”

Given that Japan was not recognizing China as a new state — international recognition of the Chinese state had existed without interruption since the ROC government emerged in 1912 — the PRC effectively accepted the rights and obligations of the previous government.

Moreover, Japan did not recognize Taiwan as part of China on the grounds that doing so would infringe on its obligations under the San Francisco Treaty. While Japan fully “understood” and “respected” the PRC’s declaration that Taiwan was an “inalienable” part of its territory, it did not recognize the claim in accordance with international law. The two countries simply agreed to disagree over Taiwan’s legal status. In other words, Japan renounced Taiwan without reassigning it.

To date, China has been silent about the implications of the San Francisco Treaty with regard to its claims in the South China Sea. This may simply reflect a dearth of international legal expertise in this field or the state of China’s segmented, stove-piped policy communities.

It could also stem from concerns that using the treaty’s legal reasoning, which conflicts with China’s stance on Taiwan, to resolve today’s territorial disputes would undermine its credibility and position.

If left unchecked, China may use the South China Sea disputes to gain effective hegemony over weaker claimants. All parties to the disputes, including China, can cite geographic and historical connections to the islands to back their claims, but none of them has solid legal title under the San Francisco Treaty.

The U.S. and other extra-regional powers should take advantage of this fact, invoking their latent collective custody of the Spratly and the Paracel Islands in accordance with the San Francisco Treaty, and internationalize separate bilateral diplomatic processes between China and regional claimants.

The treaty’s parties could even hold a conference to deliberate on the matter. Given that it would exclude China, such a discussion alone would be a game changer.

Masahiro Matsumura is a professor of international politics at St. Andrew’s University (Momoyama Gakuin Daigaku) in Osaka. © 2013 Project Syndicate (www.project-syndicate.org)

  • 思德

    I am not sure there is a clear an easy solution to the problem, but I do know all the claimants except China getting together on the matter would certainly rile China further. The question at this point is if that really matters or not; they are already belligerent- what are they going to do, start sinking other people’s ships?

    • Christopher-trier

      China’s actions serve a purpose. They want to intimidate, they want to threaten without actually using violence. One reason why the Chinese are building a military as large as they are is because the possibility that they might use it is enough to scare others to back down, to make the USA cede diplomatic ground to them discrediting it further. In general their policies go off without a hitch, but on occasion there are things like the First and Second Anglo-Chinese Wars to complicate matter.

      • zer0_0zor0

        I don’t know if there is so much ill will in China’s actions in the South sea. What is incongruent with their predilection toward securing the waters to their south.

        Wouldn’t an analogous situation for the USA be present regarding the Caribbean Sea, Panama Canal and other bodies of water to the immediate south of the USA, where the USA has naval superiority, etc.

        Moreover, the Chinese presence in those seas and on many of those islands dates back well over a thousand years in some cases.

      • 思德

        So China also has rightful ownership of Mongolia, Tibet, and Vietnam? Because at one point or another, they occupied those territories as well. At some point, the “we got there first” BS has to stop. If they want to go back so far, odds are there are aboriginal groups they owe much of their territory to. Taiwan, for sure, was occupied by natives before the Chinese, Japanese, and Portuguese meddled there. Nobody is disputing the right of Hakka and Han Chinese groups living there now, because it is meaningless and out of context. Contemporary territorial disputes need contemporary evidence. And they do not need to be resolved right away, either. I personally have a bias against China for a number of reasons; but I am not sure anyone has a clear argument because I do not feel the international laws regarding the matter are binding enough. Therefore, at the end of the day, it is a “might makes right” issue, and China is both happy and more than able to play. It is absolutely eroding their soft power, I will say that, though. The only card they have to play diplomatically is the “throw money at something” card.

      • zer0_0zor0

        Mongolia Tibet and Vietnam?
        That sounds a little too much like hyperbole to me.

        There is proof that meets modern evidentiary criteria for the Paracels, for example, and I have already indicated official Japanese documents that predate the respective dispute.

        I would repeat that the Spratleys seem to call for a little more flexibility on the part of China, though I am not very familiar with the arguments and supporting evidence. I’m basing my assessment intuitively on the close proximity to the Philippines of some (many) of those islands and the implications of EEZ. Maybe a couple of the shoals are contestable by China, I don’t know.

      • 思德

        China was at such a disadvantage at the time that I don’t really see the opium wars meaning much compared today in a sense of politics paying off- they lacked technological and industrial parity, for one. They might not be precisely on par with the US, but they can hypothetically sink a carrier group from a thousand kilometers away, which is good enough for their needs. It doesn’t matter if they can actually do it or not. Doubt in an enemy’s mind is enough.

      • Christopher-trier

        The British did well on the seas, but the Qing had a strong advantage on land. For the Qing it was easier to simply throw them a few bones than actually fight a war with them — especially since British interests were primarily in southern China which the Qing never firmly controlled and never had much love for, anyway. The two wars started because of diplomatic issues, not drugs — and the run up to the wars is critical to understand. Austin Coates’ “The British in Hong Kong” is a good place to start.

    • tennesseetuxedo59

      or is belligerent scaredycat China gonna start sinking ships? lolol i think not china knows better

  • jamesobh

    Japan can always try to use the SFT to dispute China’s claim of sovereignty over China’s nine dash line on South China Sea, and she will find herself closer to destruction than it is already with Diaoyu Islands.

  • zer0_0zor0

    The author sounds like a neocon tool trying to deflect any critical glance at Japan.

    I’m not the greatest fan of China, but China has rights, too.

    Clearly the Paracels belong to China, not Vietnam. The Spratlys are more complicated, with China needing to compromise, but having little latitude to do so in light of domestic political sentiment, largely due to the crisis vis-a-vis Japan.

    The Daiyou/Senkakus are referred to on Japanese maps from the Edo period as Chinese territory by the Chinese name, and Japanese diplomatic communications from the Meiji period echo that, so there is definitely a “dispute”, at any rate.

    • Christopher-trier

      There are also Chinese maps from the Republic of China and the People’s Republic of China that indicate the islands as Japanese and use the Japanese name. The issue, thus, is not so much the islets themselves as it is fear of being bested yet again by Japan. It’s important to keep in mind that the Anglo-Chinese Wars are not sources of pride in China, but they do not cause quite the reaction that even the first Sino-Japanese War does. China simply cannot handle the fact that a country it always considered inferior, sometimes obedient, sometimes insufferable is its superior culturally, educationally, technologically and arguably economically outside a few urban centres.

      • 思德

        It doesn’t fit into the parent-child relationship that forms a lot of the culture. A lot of Chinese things like Buddhism (well, that’s really Indian, but the Chinese altered it so much), kanji, and so forth, became a part of and influenced Japan. So I think there is definitely this sense of, “You owe us / We’re the parent, you’re the child,” sort of mentality. The fact that the upstart managed to cause so much trouble for them in the 20th century probably makes it all the more aggravating.

      • Christopher-trier

        Chinese culture traditionally paid a great deal of respect to protocol and proper position. China was the elder brother, Korea and Japan were the younger brothers. The younger brothers could thrive and the older brother would be happy, but the younger brothers were never to upstage the older. In Europe there were always several great powers so no one way of doing things went unchallenged and diplomatic protocols reflected a negotiation of traditions. In East Asia China was the absolute centre of gravity and there was no negotiation. The only country that ever seriously threatened this pattern was Japan — far enough away and strong enough to resist. It happened before the 20th century as well. Toyotomi Hideyoshi launched an invasion of Korea in order to try to take China in the 16th century. He failed, but the cost of the invasion caused serious damage to Ming finances and it destroyed Korea. Tokugawa Ieyasu had a policy of officially denigrating China and trade/political connexions existed only through Korea which both countries denigrated as an inferior. China was annoyed by Japan, but 1895 was the year that China realised how far it had fallen in comparison.

      • zer0_0zor0

        The maps you refer to are post conflict and post treaty documents. Document such as those prepared by any administration under whatever geopolitical and domestic circumstances should probably not have a bearing on what is basically an inalienable right under international law – sovereignty.

        The fact that the Japanese recognized the islands as Chinese territory as early as the 18th century (not sure when the Edo maps date to), and under both the Edo shogunate and Meiji regimes should support the claim to sovereignty by the Chinese, or so I would think.

  • Osaka48

    China’s aims are clear. Make arbitary and illegal territorial claims and then back them up with ever increasing military power hoping that they won’t actually be challenged in the process of their military hegemony.

    They are playing a “step-by-step” strangulation game as they built up their naval forces.

  • pervertt

    Some dodgy logic at work in this article – the PRC was not a signatory to the San Francisco Treaty, but Taiwan was. Taiwan signs onto a treaty on behalf of all Chinese – something it had no right to do. When the joint communique was signed between Japan and China in 1972, “the PRC clearly succeeded the ROC in Taiwan.” Then the next leap of logic – “the PRC effectively accepted the rights and obligations of the previous government.” Wow.

    Why not simply admit that Japanese government made a grave strategic mistake by excluding the PRC from the Treaty in 1952, that Taiwanese representatives had no authority to sign on anyone’s behalf other than the inhabitants of Taiwan, and that the Treaty is a meaningless agreement as far the PRC is concerned.

    • Christopher-trier

      Let us take a look at the five permanent members of the UN Security Council in 1952. The United States of America which did NOT recognise the People’s Republic of China, the United Kingdom which did NOT recognise the People’s Republic of China, the French Republic which did NOT recognise the People’s Republic of China, the Republic of China, er, yes, and the USSR which DID recognise the People’s Republic of China. Until the 1970s the Republic of China exiled in Taiwan was the official government of China at the UN. Japan, the USA, UK, France, South Korea, etcetera did not recognise the People’s Republic of China until decades after the Treaty of San Francisco. Absurd, but that’s how diplomacy works.

      • 思德

        If only Mao had been wiling to sacrifice a few hundred thousand people to cross the strait and finish the job!

      • Christopher-trier

        Mao was, for the time, content with the diplomatic isolation. The USSR and East Bloc countries recognised China so the countries most important to his goals were on side. Mao offered to renounce China’s claim on Taiwan just to get rid of the KMT, it would have been no loss for China. Unfortunately, Chiang and his KMT hardliners who had invaded Taiwan were caught up in their quixotic goal to re-take the mainland and refused the offer.