China’s Legal Claim to Diaoyu Islands

Authors

The following article states China’s legal claim to the Diaoyu Islands.

Abiding by the Legal Precedents of the Diaoyu Islands Dispute

Liu Jiangyong
September 10, 2012

Recent actions by Japan and the United States risk enflaming an already tense situation surrounding the Diaoyu Islands.  Given historical documentation and legal authority derived from international law, China’s claim to the Diaoyu Islands must be respected.

The territorial disputes in the South China Sea continue to exacerbate relations among China, the US, and Japan. Many would argue that historically, there were questionable actions performed by Japan and the United States regarding International Law that has first germinated and then intensified the Diaoyu Island issue. Turning a blind eye to this fact, however, the Japanese parliament has recently endorsed several resolutions in an attempt to unilaterally claim ownership of this island, an endeavor both illegal and essentially useless.

The disputes surrounding Diaoyu Islands date back well over 100 years. Initially, the Meiji government of Japan abandoned its plan to occupy the Diaoyu Islands in 1885 after realizing from multiple investigations that it was an island named by China. Ten years later during the Sino-Japanese War (1894-1895), the Japanese cabinet met and secretly decided, on January 14, 1895, to seize and occupy this island, an act that is totally illegal because it was committed against the background of an on-going war. In April of the same year, the victor Japan imposed the Treaty of Shimonoseki on the defeated Qing regime, under which Taiwan and other Chinese islands around it were ceded to the colonial rule of Japan. In 1896, the Japanese began to develop communities on Diaoyu Island.

Following the Japanese surrender at the end of World War II, Japan should have returned Taiwan and the islands around it, including the Diaoyu Islands, to the Chinese, as set forth in the Cairo Declaration of 1943. Before normalization of Sino-Japanese diplomatic relations, however, the then Japanese cabinet chaired by Satō Eisaku disclosed that Japan had trusted the Diaoyu Island, together with Okinawa, to the United States as a mandated territory under the Treaty of Peace with Japan (commonly known as the Treaty of San Francisco or San Francisco Peace Treaty) inked in 1951. Since the geographical range covered in its 1971 agreement with the United States on the return of Okinawa was based on the San Francisco Peace Treaty, Japan quickly assumed administration of the Diaoyu Islands in violation of international law after resuming sovereignty over Okinawa in 1972.

Additionally, the late Chinese premier Zhou Enlai made three announcements between 1950 and 1951 that declared the illicitness and invalidity of the San Francisco Peace Treaty for its exclusion of the People’s Republic of China as a participating party, and to articulate China’s opposition to the trust of Okinawa to the United States. The Diaoyu Islands have been an inherent part of Chinese territory, and never an attachment to Okinawa. Neither has it ever legally been a Japanese territory. This is why the unauthorized handover by the United States of the administrative jurisdiction over the Diaoyu Islands to Japan when returning Okinawa to the latter in 1971 met with such explicit opposition from China.

Finally, Shintaro Ishihara, the Governor of Tokyo, has been accruing donations to buy the Diaoyu Islands, while the Japanese cabinet chaired by Yoshihiko Noda has articulated its readiness for the buy and the so-called nationalization of the island. It has even threatened to send in its self-defense troops in situations running beyond the control of its marine safety guards. The United States, meanwhile, has repeatedly stated that Article 5 of the Treaty of Security and Safeguard Between Japan and the United States applies to the Diaoyu Islands. But none of these words or deeds are lawful or availing when put in proper historical context. With its defeat and surrender in 1945, Japan has been obliged to return all the territories it conquered during the Sino-Japanese War to their original owner instead of attempting to buy or sell these areas because neither will be lawful or valid. Moreover, its threat to send in troops has constituted an oral ‘threat of force’ against China, an act violating the following legal provisions:

* Article 9 of the Constitution of Japan, which states that the Japanese people shall earnestly strive for international peace based on justice and order and ‘forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes,’ and that to this end, ‘land, sea, and air forces, as well as other war potential, will never be maintained,’ and no national power shall ever be acknowledged.

* Article 98 of the Constitution of Japan, which states that the Constitution is the supreme law of Japan and that all other laws, decrees, imperial edicts, or any other acts involving state affairs shall be nullified should they run counter, in part or whole, to any of the constitutional provisions; and that all the treaties and international laws Japan has ratified shall be honestly observed.

* Article 5 of the Treaty of Security and Safeguard Between Japan and United States, which states that all acts by either of the parties shall be confined within the framework of their respective constitutions.

These actions also violate several other tenets of international and treaty law. Given that Japan is a binding member of the UN, its actions run counter to the UN’s principles ‘to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’.  Article 1 of the Treaty of Mutual Cooperation and Security between the United States and Japan, states that the signatory states to the treaty shall abide by the provisions in the Constitution of the United Nations and work for international peace, security and justice through peaceful settlement of their disputes with other countries, and prudently resort to threat or use of force or any other acts running counter to the UN purposes.

Article 2 of the Sino-Japanese Treaty of Friendship, which states that the signatory states both pledge to settle all disputes through peaceful means instead of resorting to force or threat of force when handling bilateral Any threat of force against China, be it made in a parliamentary resolution, a government decree, or a speech by the head of government, will be a breach of the international law, international treaties and the Constitution of Japan as quoted above, and will be futile and unavailable.

Given such a large body of national and international evidence, it is hoped that the Japanese and the US will respect China’s traditional historic claims and avoid escalating an already tense situation. [1]

Liu Jiangyong is vice-president of the Institute of Modern International Relations, Tsinghua University and a Chinese member of the 21st Century Committee for Sino-Japanese Friendship.

Observations and Comments

Reference

[1] China’s claim to Diaoyu Islands: http://www.chinausfocus.com/foreign-policy/abiding-by-the-legal-precedents-of-the-diaoyu-islands-dispute/

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: