The May 26, 1971 US Diplomatic Note on the Diaoyutai Issue: Taiwan’s Sovereignty Claim and the US Response

Chapter 3


The May 26, 1971 US Diplomatic Note on the Diaoyutai Issue: Taiwan’s Sovereignty Claim and the US Response


Man-houng Lin


This chapter studies the diplomatic archives of the Republic of China in Taiwan (hereafter referred to as the ROC or Taiwan) and of the United States of America (hereafter referred to as US) and other materials to discuss a diplomatic note issued by the US Department of State on May 26, 1971, in response to a Note sent by the ROC embassy in the US on March 15 of the same year (Appendix 1). In view of the expected termination of the US occupation of Okinawa in 1972, the ROC Note requested that the US respect the ROC’s sovereignty over the Diaoyutai Islets and return them to the ROC upon the termination.


The “Diaoyutai Islets” is the term the ROC uses today, while the ROC called them the “Tiao-yu-tai Islets” around 1971. The Diaoyutai Islets include Diaoyutai or Uotsurijima, Huangweiyu or Kubajima, Chiweiyu or Taishojima, Nanxiaodao or Minamikojima, Beixiaodao or Kitakojima, Chongbeiyan or Okinokitaiwa, Chongnanyan or Okinominamiiwa, and Fejiaoyan or Tobise (Figure 3.1). British Royal Navy charts started to use “the Pinnacle Islands” in the late nineteenth century to denote these islets. The Japanese literally translated this English term to “Senkaku” after 1899. By contrast, the People’s Republic of China (hereafter referred to as the PRC) refers to the islands as the “Diaoyu Islands.” These islets will hereafter be referred to as the Diaoyutai Islets or Diaoyutai, while the ROC Note will be referred to as the March 15 Note and the US Note will be called the May 26 Note.


The May 26 Note, issued by the US Secretary of State William Rogers, emphasized that the US was preparing to return to Japan only the administrative rights over the Diaoyutai Islets, which would in no way prejudice the underlying claims to sovereignty by the ROC. This chapter will analyze: 1) the full text of the note and its impact on the US stance toward the Diaoyutai Islets; 2) the background on the US side for the creation of the May 26 Note; 3) the ROC background for the March 15 Note; 4) the current relevance of the May 26 Note. In order to explore the current relevance, further discussion on the related international laws will be made in the conclusion. The discussions here deal with the second question raised in the introductory chapter of the book about who can make sovereignty claims and the third question about what solutions to the dispute we can offer.


Image


Figure 3.1    Diaoyutai Islets and East Asia


Note: Figures 3.13.3 have been made with a research grant from Academia Sinica and under the author’s request.


Full Text of the May 26 Note and its Impact on the US Stance toward the Diaoyutai Islets


The May 26 Note reads:


The Secretary of State presents his compliments to His Excellency the Chinese Ambassador and has the honor to reply to the note of March 15, 1971, from former Ambassador Chow Shu-kai [Zhou Shukai hereafter] concerning the legal status of the Tiaoyutai Islets, also known as the Senkaku Islands.


The United States Government is aware that a dispute exists between the Governments of the Republic of China and Japan regarding sovereignty over these islands. It is the firm policy of the United States to take no position on the merits of this dispute.


As Ambassador Chow noted, the United States presently administers these islands under Article 3 of its Treaty of Peace with Japan. The United States expects to return to Japan in 1972 all its remaining rights under Article 3 in accordance with the agreement announced by the President of the United States and Prime Minister of Japan on November 21, 1969.


The United States believes that a return of administrative rights to the party from which those rights were received can in no way prejudice the underlying claims of the Republic of China. The United States cannot add to the legal rights Japan possessed before it transferred administration of the islands to the United States, nor can the United States by giving back what it received diminish the rights of the Republic of China.


Department of State, Washington, May 26, 1971


Sources: Archives of the Ministry of Foreign Affairs, Republic of China, held by the Institute of Modern History, Academia Sinica [abbreviated as AMOA hereafter], Department of Treaty and Legal Affairs, no. 11- LAW-00495.


The term “Note” in the May 26 Note stands for note verbale, a diplomatic communication that is more formal than a memorandum or aide-mémoire. It is prepared in the third person and unsigned (Gove 1970, p. 1,544). The exchange of notes, on the other hand, requires the approval of the countries in question before the exchange, whereas a note verbale does not. A note verbale also does not require a response, yet the March 15 Note was responded to by the May 26 Note. Article 2.1(a) of the 1969 Vienna Convention on the Law of Treaties (VCLT), a treaty codifying international law on treaties between states, provides that:


‘Treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.


Sources: www.oas.org/legal/english/docs/Vienna%20Convention%20Treaties.htm, access January 8, 2013.


The May 26 Note in this sense had binding force and thus has had a strong impact on the US stance on the Diaoyutai Islets.


The Treaty between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands, commonly known as the Okinawa Reversion Treaty, was signed on June 17, 1971. Article I of this treaty defines “the Ryukyu Islands and the Daito Islands” as “all territories with their territorial waters with respect to which the right to exercise all and any powers of administration, legislation and jurisdiction was accorded to the United States of America under Article 3 of the Treaty of Peace with Japan.”


Article 3 of San Francisco Peace Treaty (SFPT) that became effective on April 28, 1952 reads:


Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto south of 29 deg. north latitude (including the Ryukyu Islands and the Daito Islands), … Pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.


Sources: treaties.un.org/doc/Publication/UNTS/Volume%20136/volume-136-I-1832-English.pdf, p.50, accessed January 13, 2013.


The agreed minutes between the US and Japan to the Okinawa Reversion Treaty defines the boundaries of the Ryukyu Islands and the Daito Islands to include the Diaoyutai Islets. The Okinawa Reversion Treaty was ratified by the US Senate on November 10, 1971. The agreed minutes were acknowledged by the ROC government and by supporters of China’s claims, who testified in the Okinawa Reversion Treaty hearings before the Senate Foreign Relations Committee (Niksch 1996, pp. 3–4).


The inclusion of the Diaoyutai Islets in the Okinawa Reversion Treaty under the definition of “the Ryukyu Islands and the Daito Islands” made Article II of the Treaty of Mutual Cooperation and Security between Japan and the United States of America (hereafter referred to as the Security Treaty)—first signed in 1952 at San Francisco following the signing of the Peace Treaty of San Francisco and later amended in 1960 by the US and Japan in Washington, DC— applicable to these islets. This article states that “the Treaty of Mutual Cooperation and Security between Japan and the United States of America … becomes applicable to the Ryukyu Islands and the Daito Islands as of the date of entry into force of this Agreement.” The Security Treaty itself declares in Article V that each party would act in accordance with its constitutional provisions and processes” in response to “an armed attack … in the territories under the administration of Japan.” Thus placing the Diaoyutai Islets under the “administration” of Japan meant that Article V of the Security Treaty could apply to them.1


In presenting the Okinawa Reversion Treaty to the US Senate for ratification, the Secretary of State William Rogers answered that “this treaty does not affect the legal status of those islands [Diaoyutai Islets] at all.” In his letter to the Senate of October 20, 1971, acting assistant legal adviser Robert Starr states:


The Governments of the Republic of China and Japan are in disagreement as to sovereignty over the Senkaku Islands. You should know as well that the People’s Republic of China has also claimed sovereignty over the islands. The United States believes that a return of administrative rights over those islands to Japan, from which the rights were received, can in no way prejudice any underlying claims. The United States cannot add to the legal rights Japan possessed before it transferred administration of the islands to us, nor can the United States, by giving back what it received, diminish the rights of other claimants. The United States has made no claim to the Senkaku Islands and considers that any conflicting claims to the islands are a matter for resolution by the parties concerned. (Niksch 1996, pp. 4–5)


Starr’s statement repeats the May 26 Note in the reference to no addition and no diminution of administrative rights, but it differs from the May 26 Note as it spells out the competing sovereignty claims between the ROC, Japan, and the PRC. The PRC’s claim was actually not officially made until December 30, 1971. Before the official claim, the People’s Daily, the PRC’s official newspaper, had first made the sovereignty claim on December 29, 1970. On May 18, 1970 and December 10, 1970, the People’s Daily also criticized the ongoing Japanese expansion into Diaoyutai and the joint attempt made by the ROC, Japan, and Korea to develop the maritime resources around the Diaoyutai area (Urano, Liu, and Shokuei 2001, pp. 28, 29, 35–6). But, in general, the PRC supported the reversion of Okinawa to Japan, hoping to replace the US influence in this area with the Communist sway (Hara 2006, p. 176).2 In 1974, Deng Xiaoping directly suggested postponing the Diaoyutai issue in order to sign the Treaty of Peace and Friendship between Japan and the PRC, which happened in 1978 (Urano, Liu, and Shokuei 2001, p. 43).


The neutral stance concerning the issue of sovereignty, the differentiation between sovereignty and administrative rights, and the inclusion of the Diaoyutai Islets under the protection of the Security Treaty continues to be the US position towards these islands. When Japan–PRC relations over the Diaoyutai Islets were worsening in 2010, Secretary of State Hillary Clinton summed up the US stance by stating, “ … With respect to the Senkaku Islands, the United States has never taken a position on sovereignty, but we have made it very clear that the islands are part of our mutual treaty obligations, and the obligation to defend Japan” (Manyin 2012, p. 5). Speaking at a news conference with Prime Minister Shinzo Abe of Japan on April 24, 2014, President Obama of the US made the following statements: “First of all, the treaty between the United States and Japan preceded my birth, so obviously, this isn’t a ‘red line’ that I’m drawing;” “We don’t take a position on final sovereignty determinations with respect to the Senkakus, but historically they have been administered by Japan, and we do not believe that they should be subject to change unilaterally;” “And what is a consistent part of the alliance is that the [security] treaty covers all territories administered by Japan” (Eilperin 2014).


The Background on the US side for Creating the May 26 Note


The US–Taiwan Textile Trade Negotiation Not a Reason


On April 8, 2013, the United Daily News of Taiwan recounted an April 7 report by Japan’s Kyodo News Agency that, according to US government documents, prior to the signing of the Okinawa Reversion Treaty in 1971, the Nixon Government had requested that the Japanese Government, which at the time did not recognize any other territorial claims over the Diaoyutai Islets, make a concession on its stance and directly enter into dialogue with Taiwan about the latter’s claim to have sovereignty over the Daioyutai Islets. Shinobu Kashi, professor at Nihon University, and reporters of Kyodo News Agency at the US National Archives argued that, as the US at the time was in close contact with the PRC to materialize the first US presidential visit to China, the US was hoping to draw Taiwan to its side through such an action in order to reach its textile trade agreement with Taiwan as soon as possible. This decision formed the US policy toward the Diaoyutai issue, i.e., administrative rights were returned to Japan, while the sovereignty issues should be resolved by the involved parties.3 Actually, the diplomatic context that shaped the US policy of “returning administrative rights to Japan while leaving the parties to resolve the sovereignty issue” was the May 26 Note, rather than the US–Taiwan textile negotiations.


The US Department of State organizes its past documents into volumes of books and databases under the title Foreign Relations of the United States [FRUS], in which the collection titled “1969–1976, Volume XVII, China” has records of the documents related to the May 26 Note.4 Documents No. 133 and 134 indicate that the US only connected the US–Taiwan textile trade negotiation with the Diaoyutai issue on June 7, 1971, i.e., after the May 26 Note. To achieve the success in the textile negotiation with Taiwan, the ambassador-at-large to Taiwan, David Kennedy, suggested the US should retain administration over the Diaoyutai Islets and not return them to Japan. He did not express a differentiation between administrative rights and sovereignty for these islands. When Kennedy’s proposal reached President Nixon through telegram, the response on the same day was that it was too late for any change. With his proposal not enacted, David Kennedy, then in Korea, was informed on June 12 that “a Department of State spokesman would announce on June 17 that a return of ‘administrative rights’ to Japan of the Senkaku Islands ‘can in no way prejudice the underlying claims of the Republic of China,’” which was the US position announced in the May 26 Note. The US signed the Okinawa Reversion Treaty on June 17, and on May 15 the following year the administration of Okinawa, inclusive of the Diaoyutai Islets, reverted to Japan.


Essentially a Decision of the US National Security Council (“NSC”)


The March 15 Note was tendered by the ROC’s Ambassador to the US, Zhou Shukai, to the Assistant Secretary of State, Marshal Green, who was in charge of the affairs of East Asia and the Pacific Region. Document No. 114 of the FRUS volume pointed out that the Assistant to the President for National Security Affairs, Henry A. Kissinger, on April 12, 1971, met with Zhou, who was about to return to the ROC to assume the post of the Minister of Foreign Affairs. Zhou passed on President Chiang Kai-shek’s special request to Kissinger to raise the issue of the Diaoyutai Islets. Kissinger replied that he was studying this issue and had asked senior staff member of the NSC John Holdridge to provide a report prior to April 13. Holdridge’s report to Kissinger on April 13 was a memorandum entitled “China’s position on Diaoyutai” (Document No. 115) to summarize the ROC’s position in the March 15 Note.


There is a summary extract for the “1969–1976, Volume XVII, China” compilation of FRUS. The extract pointed out that it was President Nixon who initially proposed the policy that during his term (January 20, 1969 – August 8, 1974) the US would improve its relations with the PRC, and the other officers of the NSC assisted Kissinger in executing this directive; the State Department was mostly acting on the NSC’s orders. Prior to July 1971, there was little domestic support in the US for Nixon’s change of direction in relations with the PRC. Opponents included extreme leftists who supported expanding US–USSR relations, extreme rightists who conceptually supported the ROC, and supporters of India.5 Therefore, much of President Nixon’s expansion of relations with the PRC was conducted by officers of the NSC discreetly. Holdridge was an important member of the NSC who helped Kissinger carry out this directive (see Extracts pages 1, 7, 9 and 11 and Documents No. 13, 196, 217 and 218). This collection of documents shows that, during the years of 1969 to 1972, a series of major events occurred between the US and the ROC, which highlight the Asia-Pacific diplomatic factors for the May 26 Note.


The Asia-Pacific Diplomatic Factors


Since President Nixon’s announcement of the National Security Study Memorandum on February 5, 1969, the ceasefire in Vietnam was an important consideration for the US to reduce military defense forces in Taiwan (Extracts pages 2 and 7 and Documents No. 3, 4, and 139–43). From the time that the news broke that US was relaxing visa requirements for PRC nationals and trade restrictions with the PRC, until Kissinger’s official visit to the PRC on July 16, 1971, the US had always promised to the ROC that their relationship would remain unchanged (Extracts page 5 and Documents No. 145–6). In the early 1970s, the leader of Taiwan’s Independence Movement, Peng Ming-Min, was permitted to visit the US despite the ROC government’s opposition; the US responded that there was no legal restriction (Extract page 5 and Documents 65, 91, and 92). On April 21, 1970, the ROC’s Minister of Defense and Vice Premier of the Executive Yuan, Chiang Ching-kuo, visited the US, hoping that the US would provide more advanced weapons such as F-4 fighter planes (Extract Page 5 and Documents No. 77 and 78). At the end of 1971, when Kissinger returned to the US after his second visit to the PRC, he was criticized for the outcome of voting at the United Nations that had led to the withdrawal of the ROC from the UN (Extracts page 8 and Document No. 161). President Nixon visited the PRC in February 1972, while Kissinger, in September of the same year, met with the ROC Minister of Foreign Affairs and mentioned that even though it was surprising how fast the relations between Japan and the PRC had been normalized, the US had no intention to intervene. But he also pointed out that the US has promised Japan that it would ensure Taiwan’s defense and safety (Extracts page 10 and Documents No. 251 and 252). In 1972, the US did provide more advanced weapons to Taiwan (Extracts page 10 and Document No. 255). The PRC promised the US that it would not intervene in the Vietnam War, but it did not agree to the US request of influencing North Vietnam to enter into a ceasefire (Extracts page 10 and Documents No. 269 and 270).


Given the above backdrop, one can derive that, even though the US had improved its relationship with Communist China overall and intended to withdraw its forces from Taiwan, and although it had imprudently caused the ROC to leave the UN, it nevertheless promised to Japan that it would defend Taiwan’s safety. The fact that the US and Japan still needed Taiwan to remain on its Asia Pacific defense line was the most important background to the formation of the May 26 Note. The ROC’s position of sovereignty over Diaoyutais represented in the March 15 Note, and the vivid outbreak of the “Protect Diaoyutai” movement in early 1971, which reminded the US not to further exacerbate Taiwan’s anti-US and anti-Japan sentiments, were also important to the formation of the May 26 Note.


The ROC’s Position of Sovereignty over Diaoyutais


The April 13 memorandum Holdridge submitted to Kissinger pointed out that the Deputy Minister of Foreign Affairs of the ROC, Shen Jianhong, had only verbally expressed to the US ambassador to the ROC, Walter McConaughy, in September 1970, that the ROC would not accept Japan’s claim over the Diaoyutai Islets, yet the ROC had not clearly expressed the basis of its sovereignty claim at that time. Only in February 1971 did the ROC for the first time made public claims to Diaoyutais, and then it subsequently sent the March 15 Note to the US. In the memorandum, Holdridge summarized the arguments for ROC’s sovereignty over the Diaoyutais as:


•    As early as the fifteenth century, Chinese historical records considered the Senkakus to be the boundary separating Taiwan from the independent kingdom of the Ryukyus.


•    The geological structure of the Senkaku Islands is similar to that of other islets associated with Taiwan. The Senkakus are closer to Taiwan than to the Ryukyus and are separated from the Ryukyus by the Okinawa Trough at the end of the Continental Shelf, which is 2,000 meters in depth.


•    Taiwanese fisherman have traditionally fished in the area of the Senkakus and called at these islets.


•    The Japanese Government did not include the Senkakus in Okinawa Prefecture until after China’s cession of Taiwan and the Pescadores to Japan after the First Sino-Japanese War in 1895.


•    For regional security considerations, the GRC [government of ROC] has hitherto not challenged the US military occupation of the Senkakus under Article 3 of the San Francisco Peace Treaty. However, according to international law temporary military occupation of an area does not affect the ultimate determination of its sovereignty.


The “Protect Diaoyutai” Movement


Before Kissinger met with Zhou Shukai on April 12, 1971, approximately 3,000 Chinese, mainly from Taiwan and Hong Kong, marched in New York, Washington, Chicago, Seattle, San Francisco, and Los Angeles on January 29 and 30 for the protection of Diaoyutais. Further, on April 10, 2,500 people marched in Washington, DC, and 1,500 people in San Francisco, Los Angeles, Seattle, and Montreal. In Washington, DC, the demonstrators marched to the Department of State, the ROC embassy, and the Japanese embassy. They elected three representatives to present their petitions. When the reply from the Department of State was that the Diaoyutai Islets were part of Okinawa and would be returned to Japan altogether in 1972, the crowd exclaimed in tears, “Down with the US imperialism!” “No betrayal of the Daioyutai Islets!” When the representatives met Ambassador Zhou at the ROC embassy, they asked the ambassador to answer their questions and petition by April 20, after Zhou returned to Taiwan. The secretary of the Japan embassy replied, “Your government does not ask for these islands. How come you have this demonstration?” The crowd became agitated and exclaimed, “Down with Japanese militarism!”6


When Kissinger met Zhou Shukai on April 12, President Nixon was also there. Zhou pointed out that the US plan of returning the Diaoyutais together with Okinawa elicited vehement protest by Chinese intellectuals and overseas Chinese. If the ROC could not secure its sovereignty over the Diaoyutais, those people would turn to identify with the PRC. After Zhou Shukai left, Nixon confirmed with Kissinger that the ROC needed to be concerned about the political identity of the overseas Chinese (Shao 2013, p. 48).


On May 23, prior to the May 26 Note, internationally acclaimed mathematician and professor Shiing-shen Chern, of the University of California, Berkeley, led close to one thousand American Chinese, including Nobel laureates, academics, professionals, and students in the US, to raise US$9,960 and purchase a full page advertisement in The New York Times and publish an open letter to President Nixon and the Congress on the preservation of the sovereignty of the Diaoyutais.7


The Development of the ROC Side


The Temporal Development of the Diaoyutai Issue

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