Japanese Minister of Foreign Affairs Koichiro Gemba wrote an open letter to the International Herald Tribune on Nov. 21 stating the position of the Japanese government toward the Senkaku Islands — also claimed by China and Taiwan, where they are known as the Diaoyutais (釣魚台). The Diaoyutais had been entrusted to the UN, with the US as the sole administering power, under the San Francisco Peace Treaty in 1951 before it was returned to Japan along with the restoration of Okinawa in 1972, Gemba wrote. According to international law, the Diaoyutais are undoubtedly under Japanese sovereignty as well as jurisdiction.
The Chinese Ministry of Foreign Affairs criticized Gemba’s stance and said that because China had not been invited to conclude the treaty, it should be exempt from adhering to it. Therefore, the Cairo Declaration and the Potsdam Declaration came to replace the treaty as the ultimate legal documents referring to the post-World War II arrangement.
However, this superficially clever dodge made Beijing look like a political hooligan.
First, the treaty is the ultimate legal document that formally ended the war. All “declarations” or statements made henceforth became nothing but wartime political assertions, which enjoy less power than the treaty. The declarations became “policy passe” that related powers could choose to honor, given that they did not breach the terms of the treaty.
The Japanese Ministry of Foreign Affairs and the Supreme Commander of the Allied Powers, General Headquarters (the offices of the US military and civil servants during their occupation of Japan) studied the effectiveness of the declarations made during the war and confirmed the aforementioned principle.
Second, under the mandate of Article 26 of the San Francisco treaty, Japan signed the Sino-Japanese Peace Treaty (also known as the Treaty of Taipei) with the Republic of China (ROC) — the-then legitimate government of China — in Taipei in 1952. The signature proved that China did participate and conclude the San Francisco treaty and the People’s Republic of China (PRC) has no right to assert that China was not invited to conclude it, since the ROC did. In any case, Beijing could not deny the effectiveness of the San Francisco treaty as the overarching post-war arrangement. If Beijing insists on “no signature, no power,” then how does it interpret the fact that no power has ever signed the Cairo declaration?
Third, what happened at the UN General Assembly in 1971 — UN Resolution No. 2758 — was not the “succession of state.” Rather, it was the “succession of government,” in which a new government, the PRC, was recognized as the legitimate government of China and the former one, the ROC, was expelled. The government changes, but the state of China stands still.
Fourth, the PRC, having extinguished the ROC through the practice of the succession of government, possessed the legal right to claim the “one China” principle, which means “one state, one government.” This is also the legal origin of the so-called “1992 consensus,” in which China claims that the PRC, not the ROC, is the sole legitimate government of China.
The facts outlined above reveal the inconsistencies of Beijing’s assertions: While Beijing claims “one China” under the principle of succession of government, it denies the very principle in asserting the sovereign rights ove the Diaoyutais. Beijing seems unaware of the incompatibility, or is ignoring it.