The East Asia Summit is to be held on the Bali Island of Indonesia on November 19, with US president Obama expected to be there for the first time. It has been reported that the draft declaration prepared for the summit has set out some principles for all the member nations to abide by. On the South China Sea issue, meanwhile, the declaration has emphatically referred to the ‘great importance’ of the United Nations Convention on the Law of the Sea, an obvious attempt to contain China.
Ever since the Obama administration’s initiation of the return-to-Asia strategy, the United States has been trying to do away with the model proposed by China for settlement of marine issues between East Asian countries through bilateral contacts and negotiations and introduce instead a trilateral or multilateral framework so that it can come and intervene in these issues, an attempt that has achieved no other objective results than further complication of these issues. Since 2010, for instance, the South China Sea issue has sorrowfully intensified due to the interventionist call for free navigation by the US, leading to overt policy frictions between China and its neighbors including Vietnam and the Philippines. Alleging the South China Sea has something to do with its key national interest; the US has striven to polygonize the South China Sea issue and blatantly got itself involved in all disputes over the South China Sea, as if it were its guardian. A most noticeable proof of this has been its military exchange activities on the South China Sea. On the Yellow Sea issue, meanwhile, the South Korea warship sinking incident has a direct bearing on the future sailing of US aircraft carriers into the Yellow Sea. The US does not want to surrender its right over sending aircraft carriers into the Yellow Sea, of course. To China, this warship incident was just a bombshell that exploded with no given reasons. What the parties concerned would have driven for, therefore, should have been the stability on the Korean Peninsula and in Northeast Asia as a whole. What had actually come out of this incident, however, was the extension of the Northeast Asian security issue from the land to the sea and the development of a contingency into a certainty. Immediately after the incident, military exercises were staged one after another on the East China Sea and the Yellow Sea, while the US took the chance to further cement its alliance with Japan and South Korea.
What is more, the US has inclined since 2010 to overtly intervene and interfere in issues relating to not only the South China Sea, but also the East China Sea and the Diaoyu Islands. On issues concerning oil and gas exploration in the East China Sea, the US has basically taken a neutral stand while closely following the contacts and negotiations between China and Japan. When it comes to the territorial dispute between China and Japan over the Diaoyu Islands, however, the US would no longer button up its mouth as before and has come forward to say that the Diaoyu Islands are covered in its security alliance with Japan. An attempt to involve itself in the Diaoyu Islands issue through a trilateral framework, this move by the US has raised close concern from China and other East Asian countries.
By its pronouncement about the Diaoyu Islands issue, the US might have dreamed of putting a finger into Sino-Japanese disputes over maritime territories within a trilateral framework. Eventually, however, it has plunged into two predicaments:
First, the historical predicament
The direct historical bases supporting Japan’s actual control of the Diaoyu Islands after World War II include the official Statement on the Sovereign Right Over the Senkaku Islands made by the authorities of the Ryukyu Islands on September 17, 1970 and, in particular, the Agreement on the Return of Okinawa reached between Japan and the United States in 1971, under which the United States returned to Japan the Ryukyu Islands under its occupation and trust, with the Diaoyu Islands included in the territories whose administrative power had been returned. This move by the United States has sowed the seed of territorial trouble for China and Japan.
From a historical perspective, there are two logical paradoxes here.
First of all, the inclusion of the Diaoyu Islands in the Ryukyu Islands by the US trust authorities is not legally valid, according to international law, because the former is not part of the latter. In history, Sekibi sho (which belongs to China) and the Kumejima Island (which constitutes a part of the Ryukyu Islands separated from each other by a trough in the East China Sea was established as the geographical border sign between China and the Ryukyu Kingdom. This ancient kingdom used to rule 36 islands, but never brought the Diaoyu Islands under its jurisdiction. On December 25, 1953, however, US major general David Ogden issued his No 27 decree on behalf of the US Ryukyu authorities on the geographical boundaries of the Ryukyu Islands, in which he arbitrarily included the Diaoyu Islands in the US Ryukyu Trust Area. Then in 1972, the US returned these islands to Japan. An under-the-counter enfeoffment of the territories of another country, this offers no legal grounds for Japan to claim sovereign rights over the Diaoyu Islands.
Secondly, no treaty or accord reached between the US and Japan shall be taken as a basis supporting Japan’s sovereignty over the Diaoyu Islands, because this is an issue involving no one else but China and Japan. It has been stipulated in the Law on International Treaties that ‘no treaty shall harm third-party interests.’ Since the San Francisco Peace Treaty harms China’s interests by disposing China’s inherent territories without China’s participation, the Chinese government has never acknowledged its legal validity. On it contrary, China has publicly declared that the treaty is ‘illegal, invalid, and absolutely not acknowledgeable.’
Second, the practical predicament
When the US returned the Diaoyu Islands to Japan in 1972, it not only laid a historical trap, but also threw itself in a practical predicament: it has no way whatever to justify its action, for the following three reasons:
First of all, the US said it only returned to Japan the administrative power over the Diaoyu Islands instead of the sovereignty. It has also tried all the time to confuse concepts about the sovereignty of the Diaoyu Islands. As it grows into a dispute between China and Japan over maritime territorial sovereignty today, the US cannot but come up with explanation and clarification of the sovereignty of the Diaoyu Islands true to history and compliant with international laws.
The Sino-Japanese dispute over the sovereignty of the Diaoyu Islands has kept intensifying since the 1970s. The first to start trouble over the sovereignty of the Diaoyu Islands after World War II, the US has never found any way to escape the doubting eye from China, Japan and others in the international community for its vague attitude toward the issue. During its tough fight for sovereignty over the Diaoyu Islands, the Japanese government hopes to get express support from the US. While reaffirming its stand that the Diaoyu Islands are its inherent territories, China also hopes the US will responsibly reflect on the negative legacy it left during the Cold War.
Secondly, the US has publicly announced that the Diaoyu Islands are covered in its security alliance with Japan, which means these islands, whose administrative power is supposed to stay with Japan, are within the boundary of the regions covered in its security treaty with Japan. The fact is, however, that its security treaty with Japan does not apply to these islands at all.
It is prescribed in Article 5 of the US-Japan Security Treaty that ‘the signatory nations to this treaty here pledge that in case any of the nations in an area under Japan’s jurisdiction comes under armed attack, joint actions shall be taken to counter the common threat in accordance with provisions and procedures set in the constitution of Japan. The US shall provide protection to all territories under Japan’s jurisdiction.’ From a logical perspective, however, the US has never publicly admitted that Japan enjoys sovereignty over the Diaoyu Islands. It is absurd, therefore, to assign a territory with disputed sovereignty to any country, and no security policy on any region whose sovereignty has not yet been truly finalized speaks logic. The US-Japan Security Treaty does not apply, therefore, to the Diaoyu Islands.
In the third place, the US may see the straining of its relations with Russia and South Korea should it apply its interventionist policy set in its security treaty with Japan to the Northern Territories and the Liancourt Islands over which Japan has claimed maritime sovereignty.
As for Japan, it has been entangled in maritime territorial disputes with many of its neighbours. Apart from its contention with China over the Diaoyu Islands, Japan has been disputing with Russia over the Northern Territories and with South Korea over the Liancourt Islands. When it comes to territorial issues, Japan has remained fairly unyielding, never making any concession in matters involving territorial sovereignty when trying to promote bilateral relations with others. Given the situation, the US will inevitably throw itself into security frictions with Russia and South Korea should it attempt to protect the Northern Territories or the Liancourt Islands, over both Japan has claimed sovereignty, as it has pledged to deal with the Diaoyu Islands in line with Article 5 of its security treaty with Japan.
US involvement in the Diaoyu Islands dispute has exposed itself to a double-edged sword. On the one hand, the US must perform its duty as Japan’s ally and guardian, and on the other hand, it has to face the potential challenges of history, international legal principles and practical strategies. In 2004 when George W Bush was the president, assistant secretary of state Armitage said during his visit in Japan that ‘the Senkalu Islands are covered in US protection of Japan because they are Japanese territories.’ In 2010 after the boat collison incident near the Diaoyu Islands, US secretary of state Hillary also said: ‘I’d like to reiterate here that the Senkaku Islands are territories to which Article 5 of our security treaty with Japan apply. We value our duty to protect Japanese citizens.’ From an overall perspective, however, the US has remained cautious enough to keep itself clear of disputes over the sovereignty of the Diaoyu Islands. During his visit in Beijing, for instance, assistant defense secretary aide David Sedney said on February 28, 2009 that the US would follow a non-intervention policy on matters concerning the sovereignty of the Diaoyu Islands and opt for their settlement through peaceful means. During the Sino-Japanese maritime conflicts that have broken out every now and then since 2010, the US has fallen a little bit back from its interventionist policies.
As a matter of fact, the US stands for the creation of a loosely-structured alliance of maritime nations that honours sea rights principles, as can be seen from the global maritime partnership it has advocated and the stand of openness it has kept in its maritime alliance with Japan. It has invited, for instance, South Korea, Australia, and other countries in the western Pacific region to join the GMP, and maintained a cooperative relationship with India. Neither has it ruled out the possibility of participation by China and Russia. It is true that the US has been keeping a close eye on Sino-Japanese maritime disputes, and issues concerning the Diaoyu Islands in particular. Just as its assistant secretary of state James Steinberg has pointed out, however, settlement of these disputes through peaceful means is the overwhelming strategy the US has always followed. As the situation stands, what has come for China to decide during the reengineering of the international maritime order in the future is how to handle its relations with the US and Japan in maritime matters, with proper settlement of disputes over the East China Sea and the Diaoyu Islands, development of the seas into areas of peace, cooperation and prosperity, and win by all countries from the new maritime order being the top issues for it to tackle.
Gao Lan is research fellow with the Asia-Pacific Institute, Shanghai Academny of Social Sciences.