Unequal Treaty - Alternative Viewpoints

Alternative Viewpoints

Writing in the Hong Kong Law Journal, Peter Wesley-Smith suggests that many of these treaties were signed by participants acting ultra vires of their legal authority, which should have made those treaties illegitimate.

Writing in the Yale Law Journal, March 1972, Lung-chu Chen and W. M. Reisman argued that the proclamation by China in 1941 that all treaties with Japan were abrogated was devoid of any legality and effect in international law. As supporting evidence, they refer to the Vienna Convention on the Law of Treaties, art. 43. However, the Vienna Convention on the Law of Treaties did not come into force until after 1980 and only covered treaties concluded after the entry into force of the Convention. Moreover, they note that "title" to Taiwan territory vested in Japan at the time of, and/or because of, the Treaty of Shimonoseki, as the language of the Treaty clearly indicated. Such title, insofar as it is title, ceases to be a bilateral contractual relationship and becomes a real relationship in international law. Though contract may be a modality for transferring title, title is not a contractual relationship. Professor Y. Frank Chiang, writing in the Fordham International Law Journal in 2004, expanded upon this analysis to state that there are no international law principles which can serve to validate a unilateral proclamation to abrogate (or revoke) a territorial treaty, whether based on a charge of being "unequal," or due to a subsequent "aggression" of the other party to the treaty, or any other reason.