{"id":22041,"date":"2014-01-22T16:14:26","date_gmt":"2014-01-22T21:14:26","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=22041"},"modified":"2014-01-22T16:16:47","modified_gmt":"2014-01-22T21:16:47","slug":"the-drafting-history-of-the-treaty-of-shimonoseki","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2014\/01\/the-drafting-history-of-the-treaty-of-shimonoseki\/","title":{"rendered":"The Drafting History of the Treaty of Shimonoseki"},"content":{"rendered":"

One of the many contested issues in the sovereignty dispute over the Senkaku \/ Diaoyu Islands is whether China ceded title to Japan in the Treaty of Shimonoseki. In this post, I\u2019ll briefly explain the competing textual arguments under the Treaty and then explore the question of meaning from an angle that is often overlooked: whether a first-hand, historical account of the Treaty negotiations from a Japanese official named Munemitsu Mutsu favors the contemporary position of either party. Mutsu’s account is valuable to the ongoing debate because he wrote it shortly after the negotiations concluded and, as the Japanese foreign minister and Tokyo\u2019s chief representative at Shimonoseki, he possessed intimate and unsurpassed knowledge of the discussions that occurred. I obtained the account from Kenkenroku: A Diplomatic Record of the Sino-Japanese War, 1894-95<\/em>, which was edited and translated by Gordon Mark Berger in 1982.<\/p>\n

Signed at the conclusion of the First Sino-Japanese War in April 1895, the Treaty of Shimonoseki provided in part that China \u201ccedes to Japan in perpetuity and full sovereignty . . . [t]he island of Formosa, together with all islands appertaining or belonging to the said island of Formosa.\u201d The parties disagree on whether this language encompassed the Senkaku \/ Diaoyu. Under the Japanese view, the language did not, the Treaty is inapplicable, and sovereignty hinges on other issues. Under the Chinese view, the Treaty transferred sovereignty over the Islands to Japan, and China reacquired sovereignty through the Treaty\u2019s subsequent invalidation. To support the latter part of this argument, Taiwan relies upon the ROC-Japan Peace Treaty of 1952 (Treaty of Taipei), in which the parties \u201crecognize[d] that all treaties, conventions, and agreements concluded before 9 December 1941 between Japan and China have become null and void as a consequence of [World War II].\u201d According to the ROC, this provision invalidated the Treaty of Shimonoseki and in doing so reversed the original cession to Japan. The PRC makes a similar argument based on China\u2019s 1941 declaration of war, which stated, \u201call treaties, conventions, agreements, and contracts regarding relations between China and Japan are and remain null and void.\u201d The contention, in short, is that China gave sovereignty to Japan in the Treaty of Shimonoseki, and either Japan gave it back in the Treaty of Taipei or China unilaterally nullified the original transfer in 1941. If the Chinese argument is correct, we might reasonably expect Mutsu\u2019s description of the talks to show that the parties addressed the Senkakus and agreed upon their transfer to Japan. If Japan\u2019s argument is correct, the record should be silent.<\/p>\n

It turns out that Mutsu’s record favors the Japanese position\u2014there is simply no reference to the Senkaku \/ Diaoyu Islands anywhere in his description of the negotiations. Nor is there evidence that the parties debated or even talked about the meaning of the language on which China bases its contemporary claim. The first draft of the Treaty would have given Japan the \u201cisland of Taiwan, together with all islands adjacent<\/em> or belonging to it,\u201d rather than\u2014as the final draft provided\u2014the \u201cisland of Formosa, together with all islands appertaining<\/em> or belonging\u201d to it. Unfortunately, Mutsu did not elaborate on the revision\u2019s rationale or effect, but there is no suggestion that the parties discussed the extent to which the key terms encompassed minor islands near Formosa. China certainly objected to the Formosa provision, but the substance of the objection was simply that China opposed the cession of Formosa itself.<\/p>\n

This silence is unsurprising for a few reasons. First, negotiations over the actual terms of the Treaty were fairly brief. In part, this is because the Japanese government wanted it that way\u2014Tokyo aimed for a quick, bilateral settlement so as to avoid giving European powers an opportunity to intervene and dictate terms that might prove more favorable to China. In part, it is also because the parties spent the first ten days of the conference arguing exclusively over whether and on what terms to institute a ceasefire. The actual treaty negotiations were limited to a two-week period spanning from April 1st to April 15th. It wouldn\u2019t be entirely surprising if, short on time, the parties failed to address and resolve every conceivable source of dispute. Second, given the tremendous strategic significance of the various other territories that were up for grabs, there was simply no reason for the parties to spend their limited time resolving title over the Senkaku \/ Diaoyu, which had no inhabitants and close to zero strategic or economic value at the time. Finally, Li Hung-chang, China\u2019s representative at the negotiations, was reportedly reluctant for most of the conference to \u201cexpress his own views on the treaty draft\u201d because he \u201cwished to avoid bearing the responsibility\u201d for deciding on China\u2019s official response. Instead of negotiating over specific language, Li reportedly had a tendency to address the issues only at high levels of abstraction. This tendency would help to explain why the parties may not have reached a specific understanding on fine-grained questions such as title over the Senkaku \/ Diaoyu.<\/p>\n

Of course, given the source of this information, there is a risk of distortion. In introducing his translation, Berger explains that \u201cKenkenroku<\/em> was designed as a defense against . . . charges leveled by [the Japanese government\u2019s] domestic critics that the diplomatic ineptitude of the Cabinet had caused Japan to surrender at the negotiating table what her armed forces had won on the battlefields of Korea and northern China.\u201d It\u2019s apparent, in other words, that Mutsu depicted his own efforts in a favorable light. But it\u2019s not clear that such bias renders his account unreliable with respect to the contemporary sovereignty debate. After all, Mutsu wrote Kenkenroku<\/em> well over a century before the Senkaku \/ Diaoyu became a heated issue in Sino-Japanese relations. Moreover, if his aim was to show that he obtained as many concessions as possible, and if the Senkakus were in fact one of them, it would\u2019ve made sense for him at least to mention the Islands among the various other territories he secured under the Treaty. That he did not suggests that the Treaty simply did not address them.<\/p>\n

Cross-posted on Ryan Scoville’s blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

One of the many contested issues in the sovereignty dispute over the Senkaku \/ Diaoyu Islands is whether China ceded title to Japan in the Treaty of Shimonoseki. In this post, I\u2019ll briefly explain the competing textual arguments under the Treaty and then explore the question of meaning from an angle that is often overlooked: […]<\/p>\n","protected":false},"author":116,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[20,122],"tags":[133,132,140],"class_list":["post-22041","post","type-post","status-publish","format-standard","hentry","category-international-law","category-public","tag-diaoyu-islands","tag-senkaku-islands","tag-treaty-of-shimonoseki","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/22041","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/116"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=22041"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/22041\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=22041"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=22041"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=22041"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}