This issue will loom over Japanese Prime Minister Abe’s upcoming visit to Washington later this week.
The frequency and duration of maritime assertions by Chinese law enforcement vessels, which seek to deny Tokyo full administrative control of the territorial waters abutting the Senkakus, is on the rise. An aerial element to such incursions was introduced in December. Patrols by US airborne warning and control system aircraft in the airspace along the Japan–China median line since early-January have added a complex three-cornered dynamic to the dispute. Beijing is channelling its annoyance at America’s military entanglement into provocative acts against Japanese forces, including the recent training of fire-control radar on a MSDF warship and a helicopter in the East China Sea, an action which China has denied. The effect has been to widen the geographic area of conflict as well as ensnare the two navies that had hitherto kept at arm’s length from the tensions.
Politically, Beijing seeks a long-term bilateral understanding that shelves the question of ultimate sovereignty of the Senkakus to an indefinite future. And with good reason. A fourth island is already government-owned, and a fifth island of the five-islet Senkakus chain, Kubajima, remains under private lease to the government, as was the case, until recently, with the three central government-purchased islands. Rather than let yet another dangerously repetitive farce play out at the time of expiration or buy-out of that lease —held incidentally by a relative of the ex-owner of the three islands — Beijing appears prepared to force the issue of the islands’ future dispensation at this time.
That a dispute exists with regard to the status of the Senkakus should be obvious to all but the unbending. Japan implicitly admits too that the islands constitute something less than fully undisputed territory. Japanese citizens are denied permission to land on the islands and are punishable under the Minor Offenses Act for violations. Ishigaki city officials — the supervisory municipal authority — are prohibited from conducting property tax assessments on the islets and no Ishigaki city mayor has ever made an official visit. Chinese, and increasingly Taiwanese, fishing vessels are tacitly permitted to ply their trade up until the islands’ contiguous water limit of 24 nautical miles, even as they are debarred from encroaching within 52 nautical miles of the regular Japanese coastline in the East China Sea as per the 1997 Japan–China Fisheries Agreement.
In the eyes of international law, neither party has a water-tight case. Japan can confidently assert that, in displaying peaceful and continuous exercise of jurisdiction, it has assiduously protected its claim of evidence of title. Besides, it may be reasonably sure that no international court will have the gumption to strip a sovereign of (disputed) territory that it has administered from a point of time that predates the court’s establishment itself. Set against this argument is the fraudulent basis of Tokyo’s incorporation of the islands as ‘unclaimed territory’ despite clear knowledge to the contrary, as well as the illegal basis of its formalisation, which was done in secrecy and without public notice. An international court may well hold that an incorporation conducted in the de facto shadow of imperial war victory was exactly that, de jure. That no international case law precedent exists with regard to a territorial dispute between a state and its erstwhile imperial master adds to the unpredictability of the verdict. China’s inability to press, and thereby protect, its claim during the crucial early-1950s to late-1960s period must likewise be seen as a grievous failing.
Whatever the rights or wrongs of the dispute, there are clear reasons for restraint, moderation and seeking practical ways of cooperation to achieve win–win outcomes on both sides. Acknowledging the obvious — that a dispute exists with regard to the final sovereignty of the Senkakus — by way of a broad principles-based agreement, which exchanges such admission in return for China’s renunciation of force to alter the status quo, ought to be a reasonable starting point for statesmanship.
What might be the elements of such an agreement?
Specifically, Tokyo would acknowledge — without prejudice to its legal claim — that there is in fact a dispute and, keeping this in mind, resolve to maintain the existing status quo on the islands indeterminately. In equal measure, Beijing would express its appreciation for this acknowledgement, resolve not to disturb the status quo or peace and stability in the area surrounding the islands and, to the extent that the status quo remains undisturbed, renounce the use of force to alter the disposition of administrative control of the islands.
As a period of calm takes hold in the waters abutting the Senkakus, implementing mechanisms would be derived thereafter. Chinese law enforcement, both maritime and aerial, would cease to assert their presence in the disputed waters and would operationally revert to the status quo ante as existed prior to the purchase of the three islands. No scope for joint administration of the Senkakus would be admitted. Correspondingly, Japan would commit to the absolute maintenance of the status quo on the islands and any-and-all measures that reinforce its effective control — such as conducting lighthouse repairs, pier and shelter construction and stationing personnel on the islands — would need to be informally vetted in advance via consultations with the Chinese government. With the passage of time, a maritime communication mechanism/hotline can also be envisaged. It would need to follow, not precede, political quiet in the surrounding area and in the larger Sino–Japanese diplomatic relationship.
These elements of a settlement are not too much to hope for. The East China Sea has been an arena of peace and cooperation in the post-normalisation era and bilateral, principles-based arrangements have been concluded in the areas of fisheries, marine scientific research and joint development of oil and gas resources. China’s and Japan’s friends and alliance partners have every incentive to quietly encourage a similar outcome on the vexed Senkaku/Diaoyu dispute.
Sourabh Gupta is Senior Research Associate at Samuels International Associates, Washington, DC.
Many thanks for much information relating to the dispute that I have not seen elsewhere. I think you are too optimistic about the willingness of the parties, especially China, to accept the status quo maintaining solution, however face-saving, after Japan’s nationalization. Japan is going to have to make major concessions beyond even the status quo ante. It will in her and the U.S. interest that this happen.
“the fraudulent basis of Tokyo’s incorporation of the islands as ‘unclaimed territory’ despite clear knowledge to the contrary…”
That’s an interpretation of facts, not facts. In confidential documents of ealry 1880’s, Japan recognized that these islands were known by Chinese, but not that they belong to China. Facts show they where part of Ryukyu Kingdom for a while, but they have never been included in ANY Chinese map of any period, and even never stepped on them. And when Japan decided to settle on those islands, China has never protested or say a single word, at any time, in any post war negotiation, prior to 1971. Diaoyu/Senkaku was known by China but not considered as a part of Chinese territory, that’s why China has never reacted. The argument that is was imperial time, that Japan was strong and China weak… is biased. China did protest and reclaim all the islands annexed by Japan during war times! (ie: Pescadores)
“China’s inability to press, and thereby protect, its claim during the crucial early-1950s to late-1960s period must likewise be seen as a grievous failing.”
It’s worse than that: not only China did not claim sovereignty, but China also officially supported during 15 years (from 1951 to late 1960s) that Senkaku was a part of Japan (since China was opposed to US control over these islands after WWII).
Mr. Gupta has offered a strong argument for a bilateral negotiated stand-down from the current state of elevated tension. Do the assertions underpinning Mr. Gupta’s recommendations stand up to scrutiny, I wonder?
The downward spiral shows little signs of abating — if one disregards the meeting New Komeito leader Yamaguchi Natsuo’s had with Xi Xinping as well as recent prominent formal visits to China by former prime ministers Hatoyama Yukio and Murayama Tomiichi.
Assigning the onset of the downward spiral to the Noda government’s purchase of three islands in September is rich. The Noda government’s decision sought to prevent private actors from provoking a bilateral incident, as was the case in the Chinese trawler’s ramming of Japan Coast Guard vessels in 2010. The reactions of the Chinese government and proxies in response to the arrest of the trawler captain were outlandish, with China lauding the captain’s piratical behavior. Keeping private actors out of the picture was the obvious impetus for the Japanese government preemptive purchase, after Ishihara Shintaro began collecting funds to buy the islands from their private owner.
Propulsion of the downward trajectory in relations has furthermore been rather one sided. Under normal circumstances, relations deteriorate as two parties trade tit-for-tat actions. Since the island purchase, however, the Japanese government has had to endure a tit-tit-tit-tit-tit-for-tat situation — albeit not without not ancillary public relations benefits.
Does Gupta know the deep psychological impulses driving of Chinese behavior? Has he been receiving information from the psychiatrists of Chinese naval commanders and their civilian controllers, in violation of doctor-patient confidentiality?
Yes, but Beijing already has this understanding. It even has a collaborator in the act of shelving: the United States, which, even though Japan is a treaty ally, refuses to acknowledge Japan as having a definitive claim on the Senkakus.
Is Gupta arguing we should in some way be thankful for China’s provocations coming now rather than later? Probably not…but is that not the implication of the above?
One has wonder what is so dangerous about something being repetitive…and from whose Olympian viewpoint is the Sino-Japanese struggle over the Senkakus “farcical”? The two governments seem damn serious about the staredown over the islands.
I do not know what the bureaucrats in Japan’s Ministry of Foreign Affairs feel about such language. I would be insulted by an outsider trying to insinuate himself into a discussion with “we are all reasonable men and women here” rhetoric.
The slap at the position taken by the Government of Japan is particularly unfortunate, as the rest of the paragraph contains useful information.
Several issues here:
1) “In the eyes of international law, neither party has a water-tight case.”
Unfortunately, this statement is not even wrong. In cases submitted to dispute arbitration, one does not need a water-tight case – just a case better than the one the other side has. Japanese diplomats, if you scratch them, point out: “If the Chinese have a case, why do they not take it to the International Court of Justice?”
The answer is, of course, because China would lose an arbitration case for having
a) insufficiently pursued refutations of Japan’s claim and
b) no evidence of effective administrative control of the islands for over 120 years.
China is now trying to demonstrate administrative control through the uninterrupted presence of its maritime constabulary forces in the waters about the Senkakus. However, this belated effort would not sway any court’s or arbitrator’s decision.
2) “Set against this argument is the fraudulent basis of Tokyo’s incorporation of the islands as ‘unclaimed territory’ despite clear knowledge to the contrary…”
Whoa, smile when you say that, pardner.
“Fraudulent” — The link underpinning the use of this loaded term is a New Zealand university master’s thesis by a Chinese-speaking German law student whose argument hinges upon an extension of a 1998 decision on the borders of Eritrea and Yemen to include the Sino-centric world order as explained to us by John K. Fairbank and others in the 1960s.
3) “as well as illegal basis of its formalisation, which was done in secrecy and without public notice.”
“Illegal basis” — another provocative turn of phrase.
One would wish to know from whence Gupta derived this assertion. Unfortunately the linked article is behind the Wall Street Journal‘s pay wall.
The author of the WSJ article has submitted a post to Nicholas Kristof’s blog making the same claims (Link). Unfortunately the evidence presented in the post is inconclusive. Allusive to be sure, but not conclusive.
4) “An international court may well hold that an incorporation conducted in the de facto shadow of imperial war victory was exactly that, de jure.”
What does this sentence mean?
5) “That no international case law precedent exists with regard to a territorial dispute between a state and its erstwhile imperial master…”
At no time in history was Japan the imperial master of China. “Erstwhile” only applies to Taiwan and the Penghu Islands. Has Gupta changed the cast of players?
Gupta’s prescription for cooling the fires of nationalism — Japan’s throwing open a discussion over sovereignty by admitting the existence of a dispute — has a number of highly reputable advocates. The initial popularizer of the idea seems to have been the formidable Togo Katsuhiko. The almost always correct Gerald Curtis concurs with the proposal in a new essay in Foreign Affairs (Link)
In conclusion, Gupta writes:
Unfortunately, while negotiating and signing accords are one thing, standing by those accords in word and in spirit are quite another.Ｃｈｉｎａ’s record in fulfilling its half of bilateral accords is not encouraging.
The collapse of the joint development of oil and gas is fairly well-known (Link).
What is less well-known is the effective collapse of the fisheries agreement.
Last week NHK aired an eye opening on the status of the joint fisheries area. Japanese fisherman, in an effort to preserve the resource, follow the mutually agreed upon rules. Japanese ships, for example, do not use arc lights when fishing for mackerel and horse mackerel. However, Chinese vessels use every means of the luring the fish including lights — and by doing so have depleted the resource in the joint area. These giant vessels now congregate along the border of the joint area, seeking schools of fish make the unfortunate decision to swim in from inside Japan’s EEZ. The result is an eyrie line of light in the middle of the open ocean visible from space. (Link – J)
In effect, there is nothing joint about the joint fisheries area. Japanese fisherman have given up trying to secure their share of the catch — a catch that at present probably only exists in the imaginations of diplomats.
Clarifying a few points:
The fraudulent basis of Tokyo’s incorporation is not an interpretation of a fact – it IS a fact. At time of incorporation, the islands were under the jurisdiction of Kavalan Subprefecture (today’s Yilan County) of Qing China’s Taiwan Province. Under imperial seal, a grant to harvest medicinal plants on the islands was also issued to a Chinese subject. The islands were not “unclaimed territory,” and could not have become so suddenly in 1895.
Second, because the decision to incoprorate the islands (as unclaimed territory) was secrtely made by the Imperial Japanese Government and was never promulgated/formally announced by Imperial decree, it was deemed by the Chinese to have been legally ceded to Japan as part of the Shimonoseki settlement/war booty (i.e. as appurtenant to Taiwan). Hence the lack of protest from the Chinese end duing the first half of the 20th century … they were not sleeping on their claim, and if they had known that the islands were incorporated as ‘unclaimed territory’, the Chinese government’s reaction would have been markedly different.
Third, there is much wider body of material on the historical background, especially the 1885-1895 period. Much of that is in hard copy/print format though and not in digital format. The links provided in the article are among he few available ones in digital format. Hence the reason I placed those links. But please make an effort to read the WSJ op-ed by Han Yi Shaw. It is brief and illuminating.
Finally, a broader cast of reputed Japanese individuals and institutions who believe that the case for recognition of a dispute, needs to be acknowledged. This includes ambassadors, politicians and editorialists. They deserve support, not contempt.
Sourabh
Sourabh
I’m aware that this is a discussion from some months ago, but just have to respond.
You write “[t]hey deserve support, not contempt.” My review of the above exchange suggests that the only relevant characterizations were “highly reputable” and “formidable”. In what manner (or should I say in what universe) do these words suggest contempt?
I find that this type of rhetoric does neither you nor your chosen cause any favors.
Max
Honorary Professor Yabuki Jin of the Yokohama University is a well-known Japanese scholar on China. Recently, regarding the Senkaku Islands crisis, Professor Yabuki Jin wrote a new book. The title of this book is “the Core Issues of Senkaku”, subtitled “What will Happen to Japan-China Relations”. Experts think this book is more impartial, more thorough exposition of Japan and China, and the stance of the United States on Senkaku Islands / Diaoyu Islands dispute. Here are some key points written by others, maybe over-simplified, from the book:
1. Japan’s current position on the Senkaku Islands / Diaoyu Islands issue in several respects is UNTENABLE. The most fundamental point is that JAPAN’S UNCONDITIONAL ACCEPTANCE OF THE POTSDAM PROCLAMATION – The notice asked Japan to return all stolen Chinese territories back to China.
2. Potsdam Proclamation covers the following scenarios which INVALIDATED the following acts:
a. the annexation of the islands of the Ryukyu Islands and the Senkaku/Diayu Islands in January, 1895 by the Meijin Government;
b. the ceding of Taiwan and the Penhu Islands in the Treaty of Shimonoseki signed by Qing Government and the Meijin Government several months later in 1895.
These islands in the past are clearly part of Taiwan, and that Taiwan continues to use and occupies the islands are all reasonable requests.
3. The main reason Japanese believes Senkaku Islands / Diaoyu Islands are Japanese territory is because in the 1971 Agreement with the United States, Okinawa was returned to Japan. However, this position is inconsistent with the facts that the U.S. only gave the ADMINISTRATIVE jurisdiction of the island, rather than SOVEREIGNTY.
4. Japan’s policy has been based on the ERRONEOUS ASSERTION in the testimony before Congress by Foreign Minister Takeo Fukuda in December 15th, 1971. He said, based on the agreement with the U.S., Okinawa was returned and its sovereignty was restored to Japan. It is not clear, however, whether Fukuda clearly MISUNDERSTOOD this issue, or he DELIBERATELY DECEIVED the Japanese people.
5. Prior to Japan’s implementation of the “nationalization” of the Senkaku Islands / Diaoyu Islands, the position that China’s handling of this territorial issue was based on the consensus reached between Kakuei Prime Minister and Premier Zhou Enlai in 1972 – to “SET ASIDE” and to POSTPONE TO RESOLVE the territory dispute issue.
6. Yabuki Jin invoked the point of view of his own research, and third-party authoritative figures, that in the official record of the meeting that reached the clear understanding and accepted by both Prime Minister Tanaka of Japan and Premier Zhou of China, the transcripts regarding the two sides agreed to “set aside” and to postpone to resolve [the territorial dispute] were DELETED, and that later on, the Japanese government has FRAUDULENTLY claimed that this issue was NOT discussed at the time.
7. Given the above scenarios, the “nationalization” decision made by Noda government is a serious provocation to fundamentally change the status quo. From China’s point of view, such act equals to the aggression and violence to the annexation of Chinese territory. It’s inevitable that China had a strong reaction.
Mr Gupta and everyone else is watching a false flag and committing a basic “sunk cost” error of accounting-double counting by crediting Japan with “120 years of administration”.
Note-I am not going to discuss SF treaty details as the author doesn’t either-I’m only contesting the so called “120 years of administration” everyone seems to agree with without flinching, which is not the least very flimsy.
The core contention of the Diaoyu/Senkaku dispute should rest primarily on whether Japan’s terra nulius is first valid and second, not illegally interfering with China’s first discovery.
This should be the core contention, obviously, because of the WWII treaties stipulating return of stolen territories.
AKA: It is thus pointless to credit Japan’s administration from 1990 to 1945 as central to case because any judgement on whether that is valid to who owns the islands TODAY will rest on whether the court approves China’s title or Japan’s terra nulius regarding 1890s events.
If China is deemed the owner of the islands before the 1st Sino-Jap war, the islands will be stolen territories and Japan has ceded title to them, making administration of this former period void to the dispute. If China is not and Japan’s terra nulius is credited, then that will add to Japan’s favor. The WWII treaties concern whether Diaoyudao belongs to “Taiwan and affiliated islands”.
Moreover, it is unclear how anyone could suddenly decree 1945 to 1971 as “Japanese administration”. The United States continuously used the islands as a shooting range and neither China nor Japan uttered a word. To quote a retired Japanese official “we didn’t expect them to return it to us-why bother”? It was not administrated by anyone other than the United States.
As for the maps Japan pointed out regarding the fifties era to the seventies, China has responded with claims of technical inaccuracies and I won’t be discussing them. There are also claims of Japanese maps neglecting “Senkakus” altogether, although not going as bad as labelling them Chinese http://japanfocus.org/-Fang-Ming/3877
From 1971 China and Taiwan were the protesting party because the United States handed administration over to Japan. It was not established that Japan had prior administration other than United States claiming so, as stressed last paragraph.
http://www.thechinastory.org/2013/06/much-ado-over-small-islands-the-sino-japanese-confrontation-over-senkakudiaoyu/
With regards to motives of oil, it applies to both nations.
From 1970s onwards Japan administrated the islands until 2009 with China and Taiwan making openly competing claims, the same status, if not less length, than Japan making claims to Takeshima, except that Takeshima had been obviously administered by Koreans for around two decades longer, which Japan Ministry of Foreign Affairs itself maintains the principle that “as long as the continual opposing claim is voiced through the same period the claim is minimally affected by Korean jurisdiction”.
It is very obvious that without disputing the finer points which actually matter to the dispute, Japan’s so called “120 years of administration” only has a period of definite relevance of an ordinary 37 year administration under competing claims.
Regarding criteria of first discovery and its dispute with Japan’s terra nulius:
For a precursory look I would try to find analogous established standards outside the dispute, preferrably concurrent standards to the era, because virtually all scholars who stand in the middle cite vagueness in determining what degree of activity constitutes ownership or map clarity or whether the Meiji Survey is sufficient or whether Japan’s old newspapers hinted sufficiently that the islands were not Chinese or whether they were just taking precautions.
Thus, in search of objective standards
I would first assess how much Japan catered for its thousands of small islands to gain historical ownership of them and put them on its map, and whether they have more ambiguity of having been labelled territorial territory or just “maritime defense charts” or whatever as the Japanese claim, and compare this to what China has done for Diaoyu to draw a consistent standard.
I then lean towards the cited international maps of China 7 years prior to the dispute-of which I’m assuming correct unless proven otherwise because neither do we have Japan’s Meiji Records here to assess (Chinese white paper claims five international cartographical maps-ie non Chinese-state Diaoyusu or otherwise similar titles from 1700s, 1970s to 80s) because that would show
a concurrent standard in whether first discovery was established in international standards of the day before Japan came in with its terra nulius.
Simon – I do not subscribe to the “120 years of administration” school. GOJ incorporated the islands by stealth and, perhaps, fraudulently in the 1890s.
But by the same token Japan has continuously administered the islands openly, and with public knowledge of the same, since 1952, i.e. since the territorial settlement – or rather ambiguity of settlement – at the San Francisco Treaty conference. So it does have legitimate right to claim continuous administration since that time. And unfortunately China failed to lay out a formal claim between 1952 to 1969, which is a significant failing at its end.
I would also point out that in spite of the probably fraudulent basis of Tokyo’s incorporation of the Senkakus in the 1890s, there is a sub-category within the international legal concept of ‘acquisitive prescription’ which allows a possessor even with defective original title to retain/acquire title if it has enjoyed uninterrupted possession for a period of time under conditions which are considered to imply acquiescence (tacit consent) on the part of the rightful title owner. Whether the short period from 1952 to 1969 suffices to consolidate title in such manner (I would personally think not), that only a court can definitely decide.
The legal complexities attached to the Senkakus, thus, are many and are not easily resolvable. Hence best for both sides to scope out politically-wise bargains.
Sourabh