By Pat Welsh, contributor

In December 2012, this newspaper gave an overview of a dispute between Japan, the Republic of China (Taiwan) and the Peoples’ Republic of China concerning jurisdiction over the uninhabited Senkaku-Diaoyu Islands. These islands are 110 miles north of Ishigaki Island, Japan, and 116 miles northeast of Keelung, Taiwan, Republic of China. After seismic studies of the late 1960s and early 1970s indicated substantial oil reserves in this area, these islands have become the subject of a potentially serious dispute.

This article will focus on the several of the arguments that each party has forwarded. 

The Ming Historical Annals do mention the disputed islands and Chinese fishermen fishing in these waters. Other than that, there is no mention of any follow-up attempt to exert Chinese jurisdiction in the area. In fact, the records of August 1617 indicate that these were not areas of Chinese occupation. They were merely named and mentioned in the context of fishing, and of controlling Japanese pirate activities. Chinese Coast Guard records of that time in the annals indicate that these waters were free for China and any other nation to navigate.

In the Appendix to the CRS (Congressional Research Service) Report to Congress, China’s Maritime Territorial Claims (Nov. 12, 2001) requested by Senator Orin Hatch1, several cases of international law since 1928 would suggest that discovery alone is not sufficient for claiming an island as one’s territory if no attempt is made to occupy or exert sovereignty over it2

In 1885, the Japanese Governor of Okinawa Prefecture, Nishimura Sutezo, petitioned the Meiji Government to take formal jurisdiction over these islands.  However, Inoue Kaoru, the Japanese Minister of Foreign Affairs, believed that the islands lay too close to the border area with China. Stating that these islands had already had Chinese names, Kaoru feared that if Japan were to erect formal landmarks claiming the islands, China’s suspicions would be aroused. Yamagata Aritomo, the Japanese Minister of the Interior, recognizing Kaoru's concerns, rejected the request for incorporation. The island group still remained unclaimed and terra nullius (the land of no one) as Japanese surveys of 1885 confirmed.

Subsequent to the First Japanese-Chinese War of 1894-1895, the defeated Chinese Qing Dynasty government signed the Treaty of Shimonoseki with Japan on April 17, 1895.  Article 2 of this treaty stated: “China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon:” Section (b) of that article lists the affected territories: “...The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa . . .”  Unfortunately, there was nothing in the treaty defining the boundaries of this territory around Formosa.  In any case, before the end of the war, the Japanese government had seized the territory that had included these islands. On January 14, 1895, Japan formally annexed these islands and named them the Senkakus. The Chinese signature on this treaty gave an implied recognition of Japan’s annexation of these islands.

The Chinese affirm that the Japanese claim to these islands was a consequence of China being forced to sign the unequal Treaty of Shimonoseki in which these islands were surrendered. As an unequal treaty, the world should not recognize it as valid. Certainly, the Chinese side did resist ceding Taiwan and other territories during the peace negotiations, but in the end, the Japanese did prevail. The experience of history and sentiment outside of China does not support this Chinese contention. Such an assertion would call into question the validity of peace treaties elsewhere in the world.

Subsequent to World War II, the Instrument of Surrender that Japan signed on Sept. 2, 1945, contained the following language: “We hereby undertake for the Emperor, the Japanese Government, and their successors to carry out the provisions of the Potsdam Declaration in good faith, and to issue whatever orders and take whatever action may be required by the Supreme Commander for the Allied Powers or by any other designated representative of the Allied Powers for the purpose of giving effect to that declaration.”  This Potsdam Declaration (July 26, 1945) reaffirmed the Dec. 1, 1943, Cairo Declaration that stated:  “Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” The stated intention of this declaration by its draftees was that Japan was to be stripped of all the islands in the Pacific that she had seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan had stolen from the Chinese, such as Manchuria, Formosa and The Pescadores, were to be restored to the Republic of China.  Japan was also to be expelled from all other territories that she had taken by violence and greed.  Nothing in either declaration defined which minor islands were to belong to either Formosa or Japan.

Article 3 of the San Francisco Peace Treaty signed in 1951 included Okinawa under a potential U.S. trusteeship. Okinawa and the Ryukyus, including the Senkaku Islands, were administered by the U.S. military. In furtherance of this administration, in 1953 the U.S. Civil Administration of the Ryukyus Proclamation 27 set geographical boundaries of the Ryukyu Islands that included the Senkaku Islands.  During this administrative period, the U.S. Navy set up firing ranges and paid to Jinji Koga, the son of the first Japanese settler of the islands, an annual rent of $11,000.   

On June 7, 1971, President Nixon confirmed Japan's "residual sovereignty" over the Senkaku Islands just before a deal to return them to Okinawa Prefecture to Japan in a conversation with his national security advisor, Henry Kissinger. Kissinger also told Nixon that "these (Senkaku) islands stayed with Okinawa" when Japan returned Taiwan to China after the end of World War II.  Both the Ryukyus and the Senkakus were included in a clarification in an Agreed Minutes to the Okinawa Reversion Treaty.  The Nixon Administration, however, removed the Senkakus from its inclusion in the concept of Japanese "residual sovereignty" in presenting the Okinawa Reversion Treaty to the U.S. Senate for ratification.3  Some historians assert that Nixon had done this in order not to offend the Chinese prior to his historic visit there in 1972. Herein may lie one of China’s best arguments for claiming that no Japanese sovereignty exists over these islands as they were deliberately excluded in the senate-approved version of the treaty.

One of the arguments between the claimants refers to the geography. China's interpretation of the geography of the area is that the Okinawa Trough shows that the continental shelves of China and Japan are not connected, that the Trough serves as the boundary between them, and that the Trough should not be ignored. Japan's interpretation of the geography is that the Trough is just an incidental depression in a continuous continental margin between the two countries and the Trough itself should be ignored.

The issue of sovereignty also has been carefully avoided in bilateral fishing agreements. In the 1997 fishing agreement, the Senkaku Islands were officially excluded from China’s EEZ (exclusive economic zone) but in a letter of intent, Japan explained that it would not prevent Chinese boats from fishing there. Some Chinese sources have subsequently argued that this letter constitutes a waiver of Japan's claim to exclusive fishing rights and sovereignty. China also asserts that these islands lie within China’s own 200-mile EEZ and that the rights of states to control and exploit resources in their own EEZs should predominate over the international rights of freedom of navigation and overflight stated in the LOS (Law of the Seas) Convention4 of 1994, a convention that China has signed.

The arguments stated above do not give either side a clear legal basis for their claims to these islands. The legal international cases cited in the second footnote stated below seem to indicate that a nation must enforce its jurisdiction and have a physical presence on the disputed territory, not just make a discovery or a claim. There should also be a period of time when there is acquiescence by the nearby neighbors of the territory. In all probability, the fate of the Senkakus is best left as a matter for negotiation as a military solution would be inherently unstable given the sought-after identified oil resources of the area.  In any case, as of Jan. 4, 2014, no negotiations between Japan and China are scheduled to take place.

An additional factor complicating this situation is the question of whether or not the United States would be required to use military force under the  terms of the 1951 Treaty of Mutual Cooperation and Security between the United States and Japan to defend the Japanese claim to these islands should they be seized by China or Taiwan. Much of the latest thinking remains divided in Washington, seeming to suggest that the islands are viewed as a disputed territory belonging to no one and that a seizure of them by China is not the same thing as a seizure of part of Japan.

Editor’s note: As acknowledged in the beginning of this article, a previous article was featured in the November-December  2012 issue of China Insight, which can be found at www.chinainsight.info and can be accessed by clicking on the Home tab, Past Print Editions. Within this article there is also a reference to a video that also can be accessed on the same Web page by clicking on the Media tab under the” International” category. These articles demonstrate that there is considerable controversy regarding these islands. China Insight is providing coverage for information purposes only and does not take an official position on the matter.

 

Footnotes:

1.  CRS Report for Congress China’s Maritime Territorial Claims: Implications for U.S. Interests November 12, 2001 by Kerry Dumbaugh (coordinator), Foreign Affairs, Defense, and Trade Division, David Ackerman, American Law Division, Richard Cronin, Shirley Kan, and Larry Niksch, Foreign Affairs, Defense, and Trade Division.

2.  The Island of Palmas Case (or Miangas) in 1928 by the Permanent Court of Arbitration, 

Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island in 1932, the Minquiers and Ecrehos Case (1953 before the International Court of Justice),

The Case Concerning Land, Island, and Maritime Frontier Dispute Among El Salvador, Honduras, and Nicaragua (1992 before the International Court of Justice)

3. Letter to Congress from William Rodgers, Secretary of State October1971.

4. Laws of the Seas Convention came into effect in November 1994.  Its purpose is to stabilize the rights and obligation of maritime activities in the open seas.

 

Sources

Ming Shilu, The Treaty of Shimonoseki in 1885, The Cairo Declaration of 1943, The Potsdam Declaration of 1945, The Instruments of Surrender signed by Japan and the Allies in 1945, The Treaty of San Francisco signed in 1951, The Okinawa Reversion Treaty of 1971 and a CRS Report for Congress China’s Maritime Territorial Claims: Implications for U.S. Interests November 12, 2001 by Kerry Dumbaugh et al. 

    

 

 About Pat Welsh

In 2009 while teaching English at Sichuan University, Welsh was asked to give a speech where he was introduced to the audience as a “pioneer of Chinese American relations” as a result of his cooperative work in international banking during the Deng Xiaoping era.  For more than 65 years, Welsh has been learning Chinese and has used this knowledge both professionally and personally to enhance his understanding of Chinese and Asian affairs.

 

Tosh, unless we decide to use some other graphics, I would again use the map that was included in the 2012 article.

 

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