PART I: THE SENKAKU ISLANDS
The Senkaku islands consist of five inhabited islands and three barren rocks located in the East China Sea and have been internationally recognized as a source of tension between Japan and the People’s Republic of China (hereinafter, China) in recent times. I would like to describe in some detail the issues concerning the Senkaku islands from the Japanese point of view.
Prologue to the “Senkaku issue”: Discovery of Potential Seabed Resources
In 1968, an academic survey conducted by the United Nations Economic Commission for Asia and the Far East (ECAFE) indicated the possibility of the existence of petroleum resources in the areas surrounding the islands. Prior to this, no objection to Japan’s sovereignty over the islands had been expressed by any country or region. It was only in 1971 that the Government of China (and the Taiwanese Authorities) began officially to make their own assertions about the islands. Rather, numerous sources demonstrate that China had treated the islands as part of the Okinawa region of Japan. For example, there is a description of “the Senkaku islands, Yaeyama District, Okinawa Prefecture, Empire of Japan” in the letter of appreciation dated May 1920 sent from the consul of the Republic of China in Nagasaki concerning an incident which involved Chinese fishermen from Fujian Province around the Senkaku islands.
Official View the Japanese Government
Since 1971, the government of Japan has consistently maintained the following position:
“there is no doubt that the Senkaku Islands are clearly an inherent territory of Japan, in light of historical facts and based upon international law. Indeed, the Senkaku Islands are under the valid control of Japan. There exists no issue of territorial sovereignty to be resolved concerning the Senkaku Islands.”
It is likely that the government will continue to hold this view regardless of the outcome of the forthcoming Lower House election on 16 December, by which the new ruling party of Japan will be determined.
International Law and Historical Facts in Support of the Japanese View
Beginning in 1885, thorough surveys of the Senkaku islands were conducted by the Government of Japan through the agencies of Okinawa Prefecture and by way of other methods. The surveys confirmed that the islands had been not only uninhabited, but also showed no trace of having been under the control of the Qing Dynasty of China. Based on this confirmation, the Government of Japan made a Cabinet Decision on January 14, 1895, to erect markers on the islands to formally incorporate the Senkaku Islands into the territory of Japan. These measures were carried out in accordance with the internationally accepted means of acquisition of territorial sovereignty under international law (occupation of terra nullius).
As stated above, Japan did not seize the islands as a result of the Sino-Japanese War. They are not part of Formosa (Taiwan) and the Pescadores Islands that were ceded to Japan from the Qing Dynasty in accordance with Article II of the Treaty of Shimonoseki, concluded in April 1895.
The Senkaku islands were not included in the territory which Japan renounced under Article 2 of the San Francisco Peace Treaty of 1951, a treaty that legally defined the territory of Japan after World War II. Under Article 3 of the Treaty, the Senkaku islands were placed under the administration of the United States as part of the Nansei Shoto Islands. The Senkaku islands were included in the areas over which administrative rights reverted to Japan in accordance with the Agreement between Japan and the United States of America concerning the Ryukyu Islands and the Daito Islands, which entered into force in 1972.
China’s claim that the Senkaku islands have been an inherent part of the territory of China from ancient times is unsupported by valid evidence. Under international law, the discovery of an island or geographical proximity alone does not evidence the assertion of territorial sovereignty. Recently, China has been asserting that it has historically owned the Senkaku Islands (meaning that it has not been terra nullius) on the basis of historical documents and maps existing in China. However, the contents of these documents are insufficient as evidence. For further details, please refer to the website of the Japanese foreign ministry.
The recent problem: What triggered the violence?
Many people may still remember the large-scale anti-Japan demonstrations that took place throughout China last September, following the purchase of three of the Senkaku islands by the government of Japan. The total loss and damage suffered by Japanese companies attacked by the mob is estimated at over $100 million. Some innocent Japanese citizens were also injured during the demonstrations. Needless to say, the destruction of property, arson, looting and all other forms of violence can never be tolerated.
I think there may be a misunderstanding among the Chinese public regarding the above-mentioned purchase, which was reported by media as “nationalization”. Yet, the measure taken by the government of Japan was a transfer of title under domestic law and just means that the ownership of the islands – held by the government until 1932 – was returned to the government. Before the purchase, these islands belonged to a Japanese individual and the government had rented the land of the islands from him for years.
The purchase aims to preempt the purchase by others and maintain the status quo. In fact the former Tokyo Governor, Shintaro Ishihara (often seen as a right-wing populist politician), announced his intention in April to buy the islands and had collected contributions towards the purchase since then. This should be understood in the context of growing concern in Japanese society over the fact that an increasing number of Chinese vessels have entered the waters adjacent to the islands and other territorial waters of Japan in recent times.
ICJ: China keeps the gate locked
Why does Japan not attempt to refer the issue to the International Court of Justice (“ICJ”)? The answer is simple. As Japan has valid control over the islands, from a strategic standpoint, there is no need to take a “risk” (even a small one). Rather this question should be posed to China, who is seeking to challenge the status quo. Japan has accepted the compulsory jurisdiction of the ICJ under Article 36(2) of the Statute as follows:
“Japan recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation and on condition of reciprocity, the jurisdiction of the International Court of Justice, over all disputes arising on and after 15 September 1958 with regard to situations or facts subsequent to the same date…This declaration does not apply to any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of any other party to the dispute was deposited or notified less than twelve months prior to the filing of the application bringing the dispute before the Court.”
In this regard, it can be said that the Japanese side of the gate to the ICJ is indeed unlocked, even though Japan is unlikely to open it by itself. Nevertheless, China has shown no signs whatsoever of referring the matter to the ICJ so far. What has prevented (or would prevent) China from doing so?