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The Senkaku/Diaoyu Islands: Two Perspectives on the Territorial Dispute (Part II)
Following on from last weeks post by Mai Fujii, this week we have a post by Jaiyu Bai, offering a Chinese perspective of the Senkaku/Diaoyu Islands dispute.
The Diaoyu Islands Dispute
On 10 September 2012, the Japanese government announced the ‘purchase’ of Diaoyu Dao and its affiliated Nanxiao Dao and Beixiao Dao and the implementation of the so-called ‘nationalization’. This move stirred up once again the debate surrounding Diaoyu Dao between China and Japan. The following post sets out the author's personal understanding of the Chinese view of the legal issues involved in the dispute.
Japan’s ‘nationalization’ and other arguments are unfounded under international law
First of all, Diaoyu Dao was not ‘terra nullius’. It was first discovered, named and exploited by China. The earliest historical record of the names of Diaoyu Dao, Chiwei Yu and other places can be found in the book “Voyage with a Tail Wind” published in 1403 during the Ming Dynasty. Diaoyu Dao has long been under China’s jurisdiction. The Qing court not only incorporated the Diaoyu Dao Islands into the scope of China’s coastal defense as the Ming court did, but also clearly placed the islands under the jurisdiction of local government of Taiwan of China. Besides, Chinese and foreign maps of that era also show that Diaoyu Dao belonged to China. Therefore, Diaoyu Dao was not ‘terra nullius’, but belonged to China and had been under Chinese government for over six centuries. Second, ‘nationalization’ of Diaoyu Dao violates international rules. In December 1943, the Cairo Declaration stated in explicit terms that:
“all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [Taiwan] and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.”
In July 1945, the Potsdam Proclamation stated in Article 8:
“The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.”
On September 2, 1945, the Japanese government accepted the Potsdam Proclamation in explicit terms with the Japanese Instrument of Surrender and pledged to faithfully fulfill the obligations enshrined in the provisions of the Potsdam Proclamation. In accordance with the Cairo Declaration, the Potsdam Proclamation and the Japanese Instrument of Surrender, Diaoyu Dao, as affiliated islands of Taiwan, should be returned, together with Taiwan, to China. Therefore, the ‘nationalization’ of Diaoyu Dao constitutes a violation of international law and openly defies those international rules formulated after the Second World War.
Third, the international law rule concerning acquisition of territory by occupation should not be applied to such a situation. Acquisition of territory by occupation is only applicable to ‘terra nullius’ under international law and requires possession of the land. Not only is Diaoyu Dao not ‘terra nullis’, but also the Japanese government has never implemented undisputable control of the island. Thus, the rule regarding acquisition of territory by occupation should not be applied.
Japan’s claim of sovereignty over Diaoyu Dao lacks historical support and a basis in international law
As mentioned above, Diaoyu Dao is not ‘terra nullius’ and has never been effectively occupied by Japan. International legal documents such as Cairo Declaration and the Potsdam Proclamation provide that Japan must unconditionally return the territories it has stolen from China. These documents also clearly define Japan’s territory, which by no means includes Diaoyu Dao. Japan’s ‘nationalization’ and attempt to occupy Diaoyu Dao challenge the post-war international order established by such legal documents as the Cairo Declaration and the Potsdam Proclamation and seriously violate Japans obligations under international law. Moreover, Diaoyu Dao was not validly placed under the trusteeship system established by the Treaty of San Francisco, which was signed between the United States and other countries with Japan and is partial in nature. The United States arbitrarily expanded the scope of trusteeship to include Diaoyu Dao, which is China’s territory, and later ‘returned’ the ‘power of administration’ over Diaoyu Dao to Japan. This has no legal basis and is totally invalid according to international law. The government and people of China have always explicitly opposed such illegal acts of the United Stated and Japan.
China has taken resolute measures to safeguard its sovereignty over Diaoyu Dao
China has strongly protested against and condemned the backroom deals between the United States and Japan over Diaoyu Dao. On 15 August 1951, before the San Francisco Conference, the Chinese government made the following statement:
“If the People’s Republic of China is excluded from the preparation, formulation and signing of the peace treaty with Japan, it will, no matter what its content and outcome are, be regarded as illegal and therefore invalid by the central people’s government.”
On 18 September 1951, the Chinese government issued another statement stressing that the Treaty of San Francisco was illegal and invalid and could under no circumstances be recognized. In 1971, responding to the ratifications of the Okinawa Reversion Agreement by the US Congress and the Japanese Diet, the Chinese Foreign Ministry issued a stern statement which pointed out that the Diaoyu Dao Islands have been an indivisible part of the Chinese territory since ancient times.
In response to Japan’s illegal violation of China’s sovereignty over Diaoyu Dao, the Chinese government has taken active and forceful measures such as issuing diplomatic statements, making serious representations to Japan and submitting notes of protest to the United Nations, solemnly stating China’s consistent proposition, principle and position, firmly upholding China’s territorial sovereignty and maritime rights and interests, and earnestly protecting the safety of life and property of Chinese citizens.
China has enacted domestic laws, which clearly provide that Diaoyu Dao belong to China. In 1958, the Chinese government released a statement on the territorial sea, announcing that Taiwan and its adjacent islands belong to China. In light of Japan’s repeated violations of China’s sovereignty over Diaoyu Dao since the 1970s, China adopted the Law of the Peoples’ China adopted the Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone in 1992, which unequivocally prescribes that "Taiwan and the various affiliated islands including Diaoyu Dao" belong to China. The 2009 Law of the People's Republic of China on the Protection of Offshore Islands establishes the protection, development and management system of offshore islands and prescribes the determination and announcement of the names of offshore islands, on the basis of which China announced the standard names of Diaoyu Dao and some of its affiliated islands in March 2012. On 10 September 2012, the Chinese government issued a statement announcing the baselines of the territorial sea of Diaoyu Dao and its affiliated islands. On 13 September 2012, the Chinese government deposited the coordinates table and chart of the base points and baselines of the territorial sea of Diaoyu Dao and its affiliated islands with the Secretary-General of the United Nations.
China has maintained a routine presence and exercised jurisdiction in the waters of Diaoyu Dao. China's marine surveillance vessels have been carrying out law enforcement patrol missions in the waters of Diaoyu Dao, and fishery administration law enforcement vessels have been conducting regular law enforcement patrols and fishery protection missions to uphold normal fishing order in the waters of Diaoyu Dao. China has also exercised administration over Diaoyu Dao and the adjacent waters by releasing weather forecasts and through oceanographic monitoring and forecasting.
Diaoyu Dao has been an inherent territory of China since ancient times, and China has indisputable sovereignty over Diaoyu Dao. China strongly urges Japan to respect history and international law and immediately stop all actions that undermine China’s territorial sovereignty. The Chinese government has unshakable resolve and will to uphold the nation’s territorial sovereignty. It has the confidence and ability to safeguard China’s state sovereignty and territorial integrity.