Senkaku or Diaoyu
Can International Law Help the Resolution of the Senkaku/Daioyu Dispute?
The Senkaku/Diaoyu Islands, eight inhabited islets/rocks, have been often reported as a hot button issue that could escalate into a military conflict between Japan and China. I will argue that the international customary law regulating the territorial acquisition and the Law of the Sea (UNCLOS) does not offer enough clear, precise and equally applied rules to persuade the parties to submit the fate of their national interest into the hands of an international institution.
In the dispute, two modes of acquisition could be observed – discovery and occupation and acquisitive prescription. One crucial criteria distinguishes them – whether the territory was terra nullius (no man's land) or it has already been into a possession (lawful or not) of another country. The discovery does not confer permanent title over the territory, it requires the effective occupation to become valid. The latter must be peaceful with no-competing claims of other States, actual with real displays of State authority, sufficient in intensity and continuous. For prescription, acquiescence of other States (express or tacit) and higher publicity are required to wipe the original defect of territory (seized illegally). The intention and will to act like a sovereign (animus occupandi) is important for both cases.
The islands are referred to as known and used in different contexts by China in its historical documents from 1372 to 1893. China could probably be considered as discoverer whose “effective occupation” established a sovereignty title over the islands. China's animus occupandi examples can be found in the use of islands as navigation aids by investiture missions, their inclusion into defense system against pirates and the fact they were granted by Dowager Empress to a private Chinese for collecting herbs for medical purposes. More symbolic acts such as the official ceremony of occupying the territory, posing the symbolic markers and notifying other States about it was not required as essential in relevant decisions.
Japan incorporated the islands belonging to China in 1985, but over time it could be argued that it exercised the effective control and wiped the original defect of the territory. Subsequent treaties referring to territories Japan “has stolen from China” remain silent on the Senkaku/Daioyu (though inhabited Pescadores were mentioned) and shed no light on their previous status. China did not express any claim or its animus occupandi concerning the islands until the UN Report about oil and gas reserves around the island was released in 1969. Could China's silence for 70 years be regarded as tacit acquiescence of Japanese sovereignty over the islands? Did Japan establish a valid title over the islands by the time of first Chinese protest? No unanimous answer exists about the lap of time required for title establishment. Japan has acted as a sovereign for 117 years now and fully administrated the islands for almost 90 years (except the US administration period). Its occupation is actual, the islands are under authority of Okinawa Prefecture and patrolled by Japan's Coast Guard. Japanese symbols on the islands, disembarkation of its government and payment of lease to the owners of 3 of the islands could be satisfying as sufficient control in case of scarce and inhabited islands. Nevertheless, the peaceful character of occupation could be challenged by Chinese and Taiwanese violent protests since the late 60s. The requirement of express protest against another country's territorial possession in international law haven't contributed to resolving the conflict, quite the contrary. Judicial decisions are highly unpredictable and in this case the Court could give preeminence to actual administration of the islands which would benefit Japan.
To the online:
Chinese gamers fight for the Diaoyu islands on new app
A domestic iPad app game in China entered the top 10 list for free downloads six days after its release but was later shelved for reasons unknown. Defending the Diaoyu Islands can no longer be downloaded, but still survives on the internet and has spawned a number of online versions.With further reading:
The game is similar to the hugely popular game Plants vs Zombies, where the player defends their lawn from marauding undead, except this time incorporating the very real territorial dispute over the Diaoyu or Senkaku islands in the East China Sea. The players can defend the islands as the Chinese side, while the invaders are Japanese samurais and sumo wrestlers.
ISLAND DISPUTES BETWEEN JAPAN AND CHINA
Both China and Japan claim the fish-rich and potentially-oil-rich islands—known to the Japanese as the Senkaku Islands, to the Chinese as the Diaoyu Islands and to the Taiwanese as the Tiaoyutai Islands— between Okinawa and Taiwan in the East China Sea..
There are five Senkaku islands. Together they cover about 5.6 square kilometers. About 250 people live on Uotsurijima. In the 1940s one of the islands contained a Japanese fish processing plant. The Japanese claim on the Senkaku islands dates back 1895 when the Meiji government incorporated the islands into Okinawa prefecture. The Japanese say no counter claims or protests were made. Under the Francisco Peace Treaty signed in 1951 the islands were included in the territories of Japan.
Chinese claims that Japan stole the islands during the Sino-Japanese war of 1894-95. In their readings of San Francisco Peace Treaty Japan formally lost all of the territories it acquired after 1895.
Maps published in China and Taiwan in the 1960s clearly show the islands as Japanese territory. There was little interest in the islands until a geological surveys released in 1968 and 1972 reported their might be oil and minerals around the islands. Also at stake are the fishing rights.
In 1971, Taiwan and China both officially claimed the Senkaku Islands as theirs. During the U.S. occupation of Okinawa, the Senkaku Islands were used for military drills by U.S. forces. When the U.S. returned Okinawa to Japan in 1972, the Japanese also claimed the Senkaku Islands.
When Japan and China signed a joint communique in 1972, the issues of the islands was not raised. When China and Japan signed a peace treaty in 1978, vice-premier Deng Xiaoping said the dispute over the islands "will be shelved until the next generation comes up with a solution." Also in 1978, the ultra-rightist group Nihon Seinen Sha (Japan Youth Federation) set up a makeshift lighthouse on the largest of the islands. After of period of time the same group returned to the island to rebuild the lighthouse and seek official recognition.
China enacted a law in 1992 claiming the East China Sea as its territory. It also claims the continental shelf off its shores, which stretch to near the Okinawa island chain, as its territory.
Senkaku Islands map In 1996, ultra-nationalists erected on a lighthouse (actually a thin aluminum beacon about 15 feet high) on the main Senkaku island. By this time four of the five islands were technically the private property of two Tokyo businessmen active in ultra-nationalist politics. Beijing was upset by Tokyo's tolerance of the actions by the ultra-rightists.
The people of China, Taiwan and Hong Kong were all unified in their disgust with Japan. In Hong Kong in 1996, protestors took to the streets and burned a Japanese flag. One Hong Kong teacher told Newsweek, "Our dream is that the Beijing navy would sail in from the left, the Taiwan navy would sail in from the right and we would take the Japanese together as a strong national force."
In September 1996, a freighter with 18 protestors from Hong Kong and Taiwan was turned back from the islands with the lighthouse by Japanese coast guard ships. Four protestors jumped into the water to symbolically claim the seas around the island for China. One of the protesters, 45-year-old David Chan, drowned in the choppy seas.
In March 2004, seven Chinese nationalists land on Senkaku. They were arrested by Japanese police and coast guard personnel that arrived by helicopter. The seven were detained for a couple days and deported. The incident got quite a bit of press coverage in Japan and stirred up nationalist sentiments. In Beijing, a few dozen people held ani-Japanese demonstrations outside the Japanese embassy.
There have been many “encounter” between Chinese fishing boats and Japan Coast Guard ships around the islands. Japan’s forces regularly board many China vessels they deem to have entered Japanese territorial waters.
In the minds of Chinese, the Japanese never adequately apologized for the atrocities before and during World War II and they view the Japanese assertiveness in military matters as a threat and a reminder of the World War II era. Textbooks, newspapers and government-sponsored films in China emphasize China’s suffering after the 1935 Japanese invasion but mention little about how relations have improved and Japan has given China billions of dollars in aid.
Chinese President Jiang Zemin had personal memories of Japanese atrocities in the World War II era and was not bashful about lecturing the Japanese about them. His successor Hu Jintao seemed to be more intent on establishing better relations with Japan. His efforts were shot down by Koizumi and nationalist Japanese but have been welcomed with more open arms by recent Japanese prime ministers.
A poll conducted by the Pew Research Center before the 2008 Olympics found that 70 percent of the Chinese interviewed had an unfavorable impression of Japan.
In a poll by a Japanese newspaper, 57 percent of Chinese asked said they considered Japan "untrustworthy." Even so the Chinese seem to love Japanese commercial pop culture. Chinese children walk around with Hello Kitty and Pokeman bags. Young girls wear platform shoes and Casio G-Skok watches.
The number of Japanese that said they warm feelings toward China declined from 69 percent in 1988 to 32.4 percent in 2004. In a December 2004 Gallup survey, 71 percent of Japanese said they distrusted China. Even so China became very fashionable. Shanghai became a popular tourist destination. Food and fashion have clear Chinese influences. Four million people travel between China and Japan every year. After English, Chinese is the second most popular foreign language. Mandarin language classes had waiting lists.
Small Islands – Big Problem: Senkaku/Diaoyu and the Weight of History and Geography in China-Japan Relations
In December 2010, the Okinawan city of Ishigaki (within which Japanese administrative law incorporates these islands) adopted a resolution to declare 14 January to be “Senkaku Islands Colonization Day.” The “Colonization Day” is intended to commemorate the incorporation of the islands by cabinet decision 116 years earlier. China immediately protested.
Ishigaki was following the model of the Shimane Prefectural Assembly, which in 2005 declared a “Takeshima Day” in commemoration of the Japanese state’s incorporation 100 years earlier of the islands known in Japan as Takeshima but in South Korea (which occupies and administers them) as Tokdo. That Shimane decision prompted fierce protests in South Korea. The Ishigaki decision seems likely to do no less in China. Why should these barren rocks, inhabited only by endangered short-tailed albatross, be of such importance to otherwise great powers? Whose islands are they? How should the contest over them be resolved?
Read more at the link.
Activists to fly flag for Diaoyu Islands
A group of activists from Hong Kong and Macau set sail for the Diaoyu Islands in East China Sea yesterday. The 14 left for the islands on a Chinese-flagged fishing boat from Hong Kong.
The activists, who belong to a group called the Action Committee for Defending the Diaoyu Islands, will be joined at sea by two other vessels tomorrow - from Taiwan and Xiamen City in southern China.
The activists have made repeated attempts to reach the islands, but apart from one successful foray in 1996 they have been blocked by Japanese patrol vessels.
Also yesterday, Taiwan coastguards said they will next month stage a live-firing exercise in the Xisha Islands in the South China Sea with new, longer-range artillery and mortars.
The drill will take place on Taiping Island in the sprawling group of islands. The coastguard said it would take place in September but did not give an exact date.
CE summons Japan Consul
The Chief Executive, C Y Leung, has stepped into the dispute over the Diaoyu Islands by summoning the Japanese Consul General to protest against the arrest of activists who sailed there to assert China's claim of soverignty.
Mr Leung told Yuji Kumamaru that the Diaoyus had been China's territory "since ancient times" and that local people had strong feelings on the issue.
He said the SAR government was "extremely concerned" about the incident, and did not want to see any action by the Japanese that would be regarded as provocative by the people of Hong Kong.
Mr Leung urged the Japanese government to release the 14 people being held as soon as possible. In Beijing, the Foreign Ministry also demanded their immediate release.
The activists, from the Action Comittee for Defending the Diaoyu Islands, left Hong Kong on Sunday in a Chinese-flagged fishing boat. They said their action was intended to counter a plan by a group of Japanese politicians to visit the islands this weekend.
A commentary published by Xinhua said the dispute had raised tensions over territory to a new high and said the activists were "flagrantly arrested" while trying to set foot on Chinese territory. "The tensions are fully due to irresponsible clamouring and attempts by some Japanese politicians and activists to claim the islands, which are in the East China Sea and indisputably belong to China," the commentary said.
Labels: Not so pacific Pacific