By Nick Pap (PO ‘ 20)

Tensions have escalated between China and Japan over the sovereignty of the Senkaku islands, as they contain valuable resources and are viewed as emblems of national pride.  Taiwan has also claimed sovereignty over the islands, further complicating the disagreement. The recent elections in Taiwan have signaled a change in Taiwan’s political status quo and Taiwan’s stance on international issues. This can be attributed to the fact that Tsai, Taiwan’s recently elected president, is pro-Japan and anti-China thus complicating relations and the balance of power in the Senkaku region.
To understand recent developments, one must understand the history of the islands’ sovereignty and the development of the dispute between China and Japan. Initially, the islands belonged to the Ryūkyū Kingdom. However, after the Ming Dynasty overthrew the Yuan Empire (1372), the Ryūkyū Kingdom accepted the Ming emperor’s “Shouron” (invitation) and unified with China. This was significant because the Senkaku Islands, part of the Ryūkyū Kingdom, became a part of China through that decree.^[1] There is a plethora of evidence confirming the Chinese occupation of the islands after the Ryūkyū Kingdom pledged allegiance to China. The islands are found in most documents written during the Ming Dynasty. They are included in books like the 1534 book Records of the Imperial Mission to Ryūkyū that show Chinese sovereignty over the islands. Additionally, the islands were found in many Taiwanese fishing maps as a military defense zone against Japanese pirates, and were used as a border separating China from the Ryūkyū Kingdom.^[2] More importantly, though, the fact that the Dowager Empress Cixi gifted the islands to the famous Chinese herbalist Sheng Xuanhai for his cures directly implies that the islands were owned by China.^[3]

The previous simplified historical progression of sovereignty of the islands sheds light on some important aspects of the dispute and on the arguments of both sides. The historical argument made primarily by China is founded on the fact that, historically, the islands have belonged to China.^[4] As already demonstrated, there is a significant  volume of evidence indicating that these islands had been under Taiwanese occupation from the Ming dynasty until their seizure during the Sino-Japanese war. Thus, given that after WW2 Japan lost territorial rights over them, Chinese scholars argue, they should be returned to their rightful owner, which historically is Taiwan, a part of  a “united” China.
According to the Customary International Law of Territorial Acquisition, Japan’s claim of the islands is founded on three modes of territorial acquisition: discovery and occupation, cession, and prescription. Based on those grounds, Japan argues that it has demonstrated continuous government authority over the islands by both regulating their economic activity and patrolling the surrounding waters.^[5] Therefore, even if either China or Taiwan had sovereignty over the islands at some point before the Eighteenth Century, Japan acquired sovereignty through prescription. Neither the PRC nor the ROC contended their sovereignty claims until 1971 while Japan had been exercising its sovereignty through continuous government activities that are regarded by the Customary International Law of Land Acquisition as a verification of Japan’s peaceful ownership of the islands. ^[6]
China was not likely to dispute that claim at a time of civil conflicts, warlordism, famines, and other inner problems that it was facing. But that does not change the fact that under the international legal framework, neither the PRC nor ROC contested Japan’s claim of sovereignty and thus Japan acquired sovereignty through prescription. In fact, both Chinas had recognized the Senkaku islands as Japanese territory during the 19th century since in most Chinese textbooks of that time they are portrayed as an extension of Japan. Therefore, it is reasonable that legally the islands belong to Japan. The only complication is that, as demonstrated previously, the islands have historically belonged to the China.
Tsai’s recent victory in Taiwan was highly unexpected and unfavorable for mainland China. Contrary to the previous Anti-Japanese regime, the new government is against reunification with China while seeking diplomatic ties with Japan. In the case of the islands, the previous administration challenged Japan by joining the conflict regarding their sovereignty. However, Tsai, the new president-elect, has asserted that despite the historical legitimacy of Taiwan’s claim of the islands, Taiwan’s utmost priority is maintaining friendly relations with Japan. Such friendly relations will be further amplified through Tsai’s call for a strategic dialogue between Taiwan and Japan regarding maritime cooperation.
This means that Taiwan, which is China’s only mode to acquiring sovereignty of the islands through the One China policy, will engage diplomatically with Japan and might even not challenge Japan’s legal claim. This also means that not only will Taiwan refuse China’s re-unification, but also that this refusal will completely deny mainland China’s case of gaining sovereignty over the islands.^[7] Even if, in the worst case for Japan, the Senkaku islands are given to Taiwan, Taiwan will not re-unite with mainland China and thus mainland China will not own the islands politically. Consequently, Taiwan’s pro-Japanese new government will probably benefit Japan because legally the islands belong to Japan while China’s case is founded on the premise that the islands belong historically to Taiwan, something that Taiwan is willing to disregard in order to maintain good diplomatic relations with Japan.

 

 

^[1]  Suzuki, Takeshi, and Shusuke Murai. “How the Japanese Legacy Media Covered the Senkaku Controversy.” The Dispute Over the Diaoyu/Senkaku Islands: Web.

^[2]  Cabestan, Jean-Pierre. “The New Diaoyu Island Crisis: Who Do the Diaoyu Islands Belong To?” China Perspectives, no. 8, 1996, pp. 44–48., http://www.jstor.org/stable/24050560.

^[3] Cabestan, Jean-Pierre. “The New Diaoyu Island Crisis: Who Do the Diaoyu Islands Belong To?” China Perspectives, no. 8, 1996, pp. 46., http://www.jstor.org/stable/24050560.

^[4] Cabestan, Jean-Pierre. “The New Diaoyu Island Crisis: Who Do the Diaoyu Islands Belong To?” China Perspectives, no. 8, 1996, pp. 45., http://www.jstor.org/stable/24050560.

^[5]  Ramos-Mrosovsky*, Carlos. “INTERNATIONAL LAW’S UNHELPFUL ROLE IN THE SENKAKU ISLANDS.” Penn Law Journal: Web. 4 May 2017.

^[6]  Ramos-Mrosovsky*, Carlos. “INTERNATIONAL LAW’S UNHELPFUL ROLE IN THE SENKAKU ISLANDS.” Penn Law Journal: Web. 4 May 2017.

^[7] Yo-Jung, Chen. “Taiwan Elections: An Opportunity for Japan?”The Diplomat., 29 Jan. 2016. Web. 28 Mar. 2017.