Tuesday, February 19, 2013

Examining the claims of Japan, China, and Taiwan in the Senkaku-Diaoyutai East China Sea Territorial Dispute

     The territorial dispute in the East China Sea has been the source for recent  increased tension in the region between The People's Republic of China, Japan, and The Republic of China (Taiwan) in recent months.  In order to gain a perspective into the diplomatic rationale behind each respective states' claims, it is vital to examine each claimant's argument from a historical perspective.

     In January, the American Congressional Research Service published a report   titled "Maritime Territorial Disputes in East Asia: Issues for Congress", in which various claims throughout the region were examined; including the East China Sea island dispute.  The report did an admirable job in laying out the rationale behind the three claimants arguments over sovereignty of the islands.  Below is verbatim text taken from page 15of the report.

China and Taiwan:  "China and Taiwan assert that the Ming Dynasty (1368-1644) considered the islets part of its maritime territory and included them on maps and documents of areas covered by Ming Dynasty coastal defenses. China claims that the Qing Dynasty (1644-1911) went further and placed the islands under the jurisdiction of Taiwan, which was a part of the Qing Dynasty. The PRC
contends that upon Japan’s surrender in World War II in 1945, Japan gave up Taiwan and should
have also given up the Diaoyu Islands. Geographically, China also argues that the Okinawa
Trough in the ocean floor separates the Senkakus/Diaoyu/Diaoyutai and China’s continental shelf
from Japan’s Ryuku Islands
." (CSR)

Taiwan:  "The ROC maintains that it “regained” sovereignty over Formosa (Taiwan) upon Japan’s surrender at the end of World War II in 1945 and also should have regained what the ROC calls the
Diaoyutai Islands. Taiwan’s Foreign Ministry has asserted that the Diaoyutai Islands first
appeared in China’s historical records as early as the Ming Dynasty (1368-1644). 

President MaYing-jeou, in an August 2012 speech, argued that various international agreements after WorldWar II “confirmed that Taiwan has been returned to the Republic of China.” He added that “the Diaoyutai Islands, an island group part of Taiwan prior to World War II, naturally should have
been returned to the Republic of China along with Taiwan after the war.”20 (Taiwan was a colony
of Japan from 1895 to 1945. The ROC was set up in 1911.)"

Japan: "Japan, which maintains that there is no territorial dispute over the Senkakus, laid claim to the islands in January 1895, when the Japanese Emperor approved an Imperial Ordinance annexing
them to Japan.17 Before then, Japan argues, the islands were uninhabited (Japan uses the term
“terra nullis”) and “showed no trace of having been under the control of China.”18 In April 1895,
Japan and the Qing Dynasty government of China signed the Treaty of Shimonoseki ending the
Sino-Japanese war that had begun the previous year. Under the Treaty, China ceded Taiwan
(Formosa) to Japan “together with all the islands appertaining or belonging to the said island of
Formosa.” The Treaty did not specifically mention the Senkakus (Diaoyu/Diaoyutai), and the
islands were not discussed during the negotiating sessions.

Japan has claimed from this that its incorporation of the Senkakus (Diaoyu/Diaoyutai) was an act
apart from the Sino-Japanese War. In contrast, China and Taiwan argue that Japan used its victory
in the war to annex the islands. They also argue that the intent of the Allied declarations at Cairo
and Potsdam during World War II was to restore to China territories taken from it by Japan
through military aggression.19 In October 1945, when Japan relinquished authority over Taiwan,
the disposition of the Senkakus/Diaoyu/Diaoyutai was not explicitly resolved.
" (CSR)

It is also important to note that the CRS stated that:

" From the early 1950s until 1972, the United States administered the islets, under the terms of the
1951 Treaty of Peace with Japan.21 Administration was then turned over to Japan in 1972, after
the signing of the U.S.-Japan Okinawan Reversion Treaty, under which the United States returned
Okinawa and other nearby islands to Japan. China has described the U.S.-Japan understandings
related to the islands as “backroom deals” that are “illegal and invalid.”"

     In analyzing the United States position, although it has stated itself to be "neutral" regarding the disputed territories, it is essentially taking the position tacitly that the islands are in fact Japanese administered.  This can be assumed for a number of reasons:

* In administering the islets from 1951-1972, the United States was the occupier of the territory as a result of being the victorious military force over the Empire of Japan, as acknowledged in its post-war treaties between the two states.  By handing over the territories to Japan in 1972 following the U.S.-Japan Okinawan Reversion Treaty, the United States acknowledged Japan as the administer of the islands.  There have been no additional treaties signed by the government of Japan regarding the Senkakus since 1972, therefore there is no reason for the American government to change its position on the legal ownership of the islands.

* Although the United States government has repeatedly stated that its returning of the islands to Japan does not invalidate the claims made by other states,  "the United States agreed in the
Okinawa Reversion Treaty to apply the Security Treaty to the treaty area, including the Senkaku
(Diaoyu/Diaoyutai). During a 2010 worsening of Japan-PRC relations over the islets, Secretary of
State Hillary Clinton summed up the U.S. 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.”" (CSR)

     Recent Developments in the East China Sea Dispute

While some observers have stated that any form of joint-cooperation between the PRC and Taiwan regarding the dispute could be seen as a single joint claim (as this author stated in a previous article,), the Ma Administration in Taiwan has looked to distance itself from such a perception.   On Monday, Taiwan's Minister of Foreign Affairs spokesperson, Steve Hsia (夏季昌), stated that due to the PRC's derecognition of the Sino-Japanese Treaty (The Treaty of Taipei, which was signed by Japan and the ROC in 1952),   “there is no basis for cross-strait cooperation".

     One of the primary arguments that is made by President Ma regarding the Treaty of Taipei and ownership of the islands is Article 4 of the treaty:

"It is recognized that all treaties, conventions and agreements concluded before December 9, 1941, between China and Japan have become null and void as a consequence of the war."

There are two issues regarding this specific article of the treaty:
* The ROC (Taiwan) contends that by becoming a signatory to this treaty, Japan agreed to nullify prior treaties between the two parties.  Under international law, the ability to abrogate prior treaties that have acknowledged previously  by both parties does not fall under accepted international law

* Nowhere in the treaty does it specify a transfer of the Senkaku islands to another sovereign state

* Even if the treaty did state a transfer of the islands, Under the Treaty of San Francisco signed in 1951 between the United States and Japan, Japan renounced control of Taiwan and various territories, therefore rendering the Treaty of Taipei to be little more than a document that affirms an official ceasing of hostilities between the two states, and not a territorial transfer.

* Previously, both the PRC and ROC (Taiwan) have stated that prior treaties between the prior government of China (The Qing Dynasty) and Japan are invalid due to the documents being signed by the Qing government "under duress".  It would be interesting to how both China and the ROC would categorize the state of Japan during the time in which they signed post-war treaties.

*Additionally, following the same practice of abrogating treaties, the Japanese government did as much with the Treaty of Taipei in 1972, following its diplomatic switch in recognition from the ROC to PRC.

*Finally, one of the core beliefs that is stated by both China and Taiwan is that the Diaoyutai islands were ceded to Japan in 1985 under the Treaty of Shinmoneseki (which as previously stated was illegally declared invalid by both the ROC and PRC).  However, the islands themselves were not specified in the treaty, and Japan claimed the islands in 1885 under the notion of terra nullius (unclaimed territory).




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