Naturally, China is eager to exclude interference by extra-regional great powers, particularly the United States, preferring bilateral negotiations with weaker regional claimants that it can more easily dominate. Extra-regional powers, however, cite the United Nations Convention on the Law of Seaspecifically, the freedom of navigation and the right of innocent passageto justify their involvement.
Given that the South China Sea disputes stem from overlapping claims to exclusive economic zones, not open ocean, the UN 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 treatys 48 other partiesincluding two claimants to the islands, the Philippines and Vietnam.
Chinathen in the third year of Mao Zedongs rulewas not even invited to participate in the peace conference. Although Maos communists had clearly won the civil war and secured control of mainland China, the conference organisers disagreed about which governmentMaos Peoples Republic of China (PRC) in Beijing, or Chiang Kai-sheks Republic of China (ROC) in Taipeitruly 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 entered into effect and reaffirmed its termsespecially Japans 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 recognise 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 Communiqu, on the basis of which the bilateral Treaty of Peace and Friendship was concluded six years later. When Japan shifted its diplomatic recognition from the ROC to the PRC, it recognised the latter as the sole legal government of China. Given that Japan was not recognising China as a new stateinternational recognition of the Chinese state had existed without interruption since the ROC government emerged in 1912the PRC effectively accepted the rights and obligations of the previous government.
Moreover, Japan did not recognise 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 PRCs declaration that Taiwan was an inalienable part of its territory, it did not recognise the claim in accordance with international law. The two countries simply agreed to disagree over Taiwans 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 for its claims in the South China Sea. This may simply reflect a dearth of international legal expertise in this field or the state of Chinas segmented, stove-piped policy communities. But it could also stem from concerns that using the treatys legal reasoning, which conflicts with Chinas stance on Taiwan, to resolve todays territorial disputes would undermine its credibility and weaken its 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 US 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 internationalise separate bilateral diplomatic processes between China and regional claimants. The treatys 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 Professor of International Politics at St Andrews University (Momoyama Gakuin Daigaku) in Osaka
Copyright: Project Syndicate, 2013