Revolution, State Succession, International Treaties and the Diaoyu/Diaoyutai Islands Revolution, State Succession, International Treaties and the Diaoyu/Diaoyutai Islands By Tseng Hui-Yi Revolution, State Succession, International Treaties and the Diaoyu/Diaoyutai Islands By Tseng Hui-Yi This book first published 2017 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2017 by Tseng Hui-Yi All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-9892-9 ISBN (13): 978-1-4438-9892-8 TABLE OF CONTENTS Introduction ................................................................................................. 1 Chapter One ............................................................................................... 12 International Treaty, Territorial Disposition and State Succession: An Overview Chapter Two .............................................................................................. 46 The Sino-Japanese War and Territorial Disposition in the Shimonoseki Treaty Chapter Three ............................................................................................ 74 The Revolution in 1911: State, Successions and Treaties Chapter Four .............................................................................................. 97 Law and Diplomacy in International Treaties: 1911-1945 Chapter Five ............................................................................................ 129 The Peace Treaty with Japan in 1951: China and the San Francisco Treaty System Chapter Six .............................................................................................. 153 Revisiting China (People’s Republic of China)’s Claim in the Diaoyu/Diaoyutai Islands Disputes Chapter Seven .......................................................................................... 179 Taiwan (Republic of China) in the Diaoyu/Diaoyutai Islands Dispute: A Revisionist View Chapter Eight ........................................................................................... 205 The Okinawa/Ryukyu Issue and the Diaoyu/Diaoyutai Islands: A Constructed Affiliation? Conclusion ............................................................................................... 238 INTRODUCTION(cid:13) The purpose of this project is to view the Diaoyu/Diaoyutai1 Islands dispute from an interdisciplinary perspective, combining the law of treaty with the change in state authorities (if not hastily defined as state succession). In the Introduction, the significance of these two legal regimes in the context of the Diaoyu/Diaoyutai Islands dispute will be identified. The Law of Treaty Beginning in 1842, the Qing Dynasty was confronted, in a forceful manner, with Western demands for China to engage more with the rest of the world. Beginning with commercial matters, the Qing government entered into a large number of treaties with these Western powers, in the course of less than a century. Treaties thus play a critical role in this process that continues to reshape regional order in East Asia. An initial inquiry here is the role of treaty in territorial disposition in the course of contact with non-Asian countries. While most are European countries, non-European actors, such as the U.S., also joined in, albeit at a slightly later stage in the 19th century. Among these various treaties and territorial dispositions, the Shimonoseki Treaty deserves special attention in the context of the ongoing Diaoyu/Diaoyutai Islands dispute. It is significant for two reasons: on the one hand, this treaty is the first document of value in reference to the Diaoyu/Diaoyutai Islands dispute, albeit without explicit inclusion; on the other hand, this treaty was (cid:13) The political implications of and references to naming are clearly reflected in this dispute. China (PRC), Taiwan (ROC) and Japan have named the Islands differently, to demonstrate their sovereignty claims and administrative effects and ambitions. China (PRC) named it the Diaoyu Islands, whereas Taiwan (ROC) and Japan called it the Diaoyutai and Senkaku Islands. In this discussion, these three names are employed interchangeably, depending on the narrative context and subject of the discourse. 1 Diaoyu Islands is China’s (The People’s Republic of China, or the PRC) term, while Taiwan uses the Diaoyutai Islands. These terms will be used interchangeably, depending on the narrative theme and subject. 2 Introduction concluded between two non-Western countries, China and Japan, who both experienced a painstaking process of wrangling with European powers. While it is a premature judgment that China, but not Japan, had failed the learning process, the defeat of China in the First Sino-Japanese War (1894-1895) marked different directions in the national development of the two countries and their rather destructive engagement in the 20th century. After the 1911 Chinese Revolution, amid domestic upheaval and the eruption of the Second Sino-Japanese War, a series of international documents further stirred up the already murky water of the status and attribution of the Diaoyu/Diaoyutai Islands. These documents were: the statement by the Republican government2 to declare war against Japan in 1941; the Cairo Declaration (1943), reached between three Allied countries that condemned Japanese invasions in China and required its restoration and reparation; the Potsdam Declaration (1945), confirming the Cairo Declaration; the Surrender Instrument of Japan (1945); and the Peace Treaty with Japan in 1951 (also known as the San Francisco Peace Treaty). The situation was further complicated by the eruption of the Chinese Civil War (1945-1949), leading to split governance across the Taiwan Strait, when both claimed to be the sole legitimate Chinese government in the international community. In the wake of ideological confrontation between Communism and the West, neither China(s) were invited to join the promulgation and signing of the Peace Treaty with Japan in 1951, despite the Republican government later concluding a peace treaty with Japan in 1952. This treaty closely mirrored the wording of and the arrangements in the San Francisco Peace Treaty. Later, in 1971, the reversion of the Okinawa/Ryukyu Islands from the U.S. to Japan was concluded without the participation of China(s), the incorporation of the Diaoyu/Diaoyutai Islands allegedly being implied in Washington’s narratives. This is where the law of treaty comes in. These documents can be studied by following aspects of the law of treaty: the rule of treaty interpretation; fundamental changes in circumstances that justify the termination of treaty; and whether or not third parties’ rights and obligations are affected in absentia of their participation. To summarize, the following issues will be studied in this project in respective chapters: 2 The Republic of China later withdrew to and re-seated its capital in Taiwan in 1949. Revolution, State Succession, International Treaties 3 and the Diaoyu/Diaoyutai Islands - How should the territorial disposition stipulated in the Shimonoseki Treaty be construed? In what way were these territorial arrangements consolidated in the course of regional political and legal order change? For example, did the 1911 Xinhai Revolution in China impact upon these territorial dispositions? - How did the political movement during the Republican era in the early 20th century shed light on territorial dispositions made in the Shimonoseki Treaty? In this context, were the territorial arrangements stipulated therein, affected? - Later, in the 1930s, when hostility erupted between China and Japan and was formalized in 1941 when a declaration of war was issued by the then Republican government, did this belligerent status abrogate the Shimonoseki Treaty, thus nullifying territorial arrangements, as claimed by China (PRC) and Taiwan (ROC)? - How should the territorial disposition in the Treaty of Peace with Japan (SFPT), later stipulated in 1951, be construed? A relevant issue remains: how should the consistent lack of explicit denotation of the Diaoyu/Diaoyutai Islands be explained? - How should the relationship between the SFPT and a separate peace agreement between Taiwan (ROC) and Japan (The Treaty of Peace between the Republic of China and Japan, also known as Taipei Peace Treaty, or TPT), which nevertheless had almost identical terms, be construed? In particular, how should it be construed in the relevant context of territorial disposition regarding the Diaoyu/Diaoyutai Islands dispute? After SFPT was signed in 1951, the connection between the Diaoyu/Diaoyutai Islands dispute and the Taiwan issue became realized and was clearly illustrated in the policy discourse and narratives of both China (PRC) and Taiwan (ROC). Because of the level to which this connection elevated this Diaoyu/Diaoyutai Islands dispute, incidents that took place at a macro level should also be considered. It is in this context that Taiwan is discussed. Several incidents need to be considered. If the Republican government in Taiwan was deprived of Chinese representation in the UN after 1971, was this justifiable grounds on which to terminate the peace treaty with Japan entered into in 1952 (TPT)? If the TPT was nullified, how would it affect the Republican government’s governance in Taiwan? Further, how would the uncertain status of the Republican government in Taiwan further impact Taiwan (ROC)’s claim over the Diaoyu/Diaoyutai Islands? If, as China (PRC) claimed, the Chinese case was one of government 4 Introduction succession but not state succession, was China (PRC)’s repudiation of the Treaty of Peace with Japan (SFPT) justified? How would the de facto Republican government in Taiwan impact China (PRC)’s succession claim? And have sovereignty claims over the Diaoyu/Diaoyutai Islands by a de facto ROC government helped, or attenuated China (PRC)’s claim? Who is deemed the de jure government and the sole Chinese representative? To begin exploring these questions, we need to turn to the law of state succession. The Law of State Succession The law of treaty aside, another critical dimension should be considered: the law of state succession and the change in state authorities. In the first chapter, the history, development and current status of the law of succession will be examined. Bearing in mind that its evolution is always vulnerable to external contextual changes, broader political and social vicissitudes will be discussed, to deepen the discussion. Succession of state remains one scenario in international law in which more effort generates more confusion. Despite academic developments in different parts of the world, scholars are yet to establish a generally recognized analytical framework and have, to date largely attributed this regime to the phenomenal development of decolonization and the subsequent emergence of new states. While not denying the profound to international legal order wrought by decolonization, there are other formats of succession, in both governments and states, that are not specific to this period or process. Events in the Communist bloc in the early 1990s (German reunification and the dissolution of the Socialist Federal Republic of Yugoslavia), as well as the Chinese case, serve as valuable examples here. The Chinese case will be the focus of this project. Succession of state or government (yet to be clarified) complicates the Diaoyu/Diaoyutai Islands dispute at the following critical points: in 1911, when the First Chinese Revolution led to the establishment of the Republican government; in 1949, when the Chinese Civil War reached its watershed, resulting in split governance (two Chinese governments, ROC and PRC) across the Taiwan Strait; and in 1971, when the Communist government (PRC) acceded into the UN, claiming legitimate Chinese representation. The Revolution of 1911 led to the establishment of a new Republican government that embraced Western values in its governmental structure and judicial system. This raised questions about the impact these changes in state authority would have on treaties that had been previously entered