Restitution vs Treaty: Different Sovereignty Claims for the South China Seas by Professor Man-houng LIN (林滿紅)
Wednesday 7 September 2016, 10.30-11.45
Khalili Lecture Theatre
In January 1935 the issue no. 1 of Bulletin of Land and Sea Maps Examination Committee was published in the Republic of China (ROC). This periodical included a table of English-Chinese Names of South China Sea Islands which, after government audit, announced the names of 132 islands and reefs located in the South China Sea. After the outbreak of the Sino-Japanese War in July 7, 1937, Japan occupied the Pratas (Tungsha), Paracel (Shisha), and Spratly (Nansha) Islands in 1938 and 1939 subsequently. On March 30, 1939, Japan integrated what was called “Shinnan Gunto” (comprising approximately two thirds of the Spratly Islands) into Takao Prefecture (today known as Kaohsiung City) through Announcement No. 122 of the Taiwan Governor-General’s Office. In 1946, following the end of World War II, the ROC government reclaimed the Pratas, Paracel, and Spratly Islands and put them gradually under its effective control. The current South China Sea Issue mainly involves the sovereignty disputes over the Spratly and Paracel Islands. According to the Treaty of Peace between the ROC and Japan effective from 5 August 1952(Taipei Treaty hereafter) , its Article 2 stated: “It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951, Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands.”
This study will point out that during the process of the negotiation of the Taipei Treaty, how the Vice-Minister of the Ministry of Foreign Affairs Hu Qingyu, who was also the deputy representative of that negotiation, made the said Article 2 of the Taipei Treaty to have included the Paracel and Spratly Islands by referring to the facts that Spratly had been part of Taiwan 1939-1952. This study will also note: Despite the fact that the Taipei Treaty could be deemed as a domestic law of ROC, which had passed through the Executive Yuan and Legislative Yuan and had been announced as a presidential proclamation, as well as an international treaty on record in the United Nations, it is such a treaty that has long been overlooked by the ROC itself and other countries. After pointing out the background of the neglect, this study will investigate how the various international parties up to now have argued for their sovereignty claims on the basis of the principle of restitution in international law. The principle of restitution means that in case country A renounces the territory that it has occupied but without the counterpart for such relinquishment, country B, which once occupied that territory before country A’s occupation, can restitute that territory. On the premise that the ROC’s strength is rather little, returning to Article 2 of the Taipei Treaty which clearly indicates that ROC has been the counterpart for Japan’s renunciation in San Francisco Peace Treaty can still be helpful to launch the South China Sea Peace Initiative for the international community, which suggests joint development of the disputed areas.
Man-houng LIN was born in Taiwan in 1951. She was mostly educated in Taiwan and received her Ph.D. in History and East Asian Languages from Harvard University in 1989. Lin has been a Senior Research Fellow at the Institute of Modern History, Academia Sinica since 1990 and Professor at the Department of History, National Taiwan Normal University since 1991. Lin’s main area of research focuses on Treaty ports and Modern China, Native opium of late Qing China, Currency crisis and early nineteenth-century China, Various empires and Taiwanese merchants’ great east Asian overseas economic networks, 1860-1961. She has published 5 books and about 80 papers in Chinese, English, Japanese and Korean in these areas. Her book, China Upside Down: Currency, Society and Ideologies, 1808-1856 (Harvard East Asian Series, 2006) links China’s topsy-turvy change from the center of the East Asian order to its modern tragedy with the Latin American Independence Movement. The passport change of the Taiwanese merchants going abroad in the period of 1860-1961 leads her to have touched upon the neglected Taipei Treaty which defines the sovereignty of Taiwan, Senkaku/Diaoyu, and the South China Seas.
Lecture sponsored by the Centre of Taiwan Studies