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Sino-Japanese Tensions: Legal Jousting and Beyond

Jan 02, 2014

The cities of Sarajevo, Cairo, Potsdam and San Francisco are not often linked, but in the risky, escalating impasse between Japan and China in the East China Sea, these names resonate powerfully. As we approach the centennial of the outbreak of WWI ignited at Sarajevo, there are concerns that yet again leaders may be sleepwalking to war. 

Japan and China both lay claim to the Senkaku/Diaoyu (as they are named respectively) islands in the East China Sea based on differing historical and legal claims. At the risk of overly simplifying a complex tangle (leaving Taiwan’s claim to the side), China asserts that the Diaoyu were war booty seized by Japan in 1895. Thus by virtue of the 1943 Cairo Declaration issued by the US, UK and Nationalist China, they should be retroceded to China by Japan which after its 1945 surrender was stripped of other territories it gained through Imperial aggression. The Potsdam Declaration, which Japan formally accepted in signing the instrument of surrender with the US in 1945, embraces the Cairo Declaration and was the basis for stripping Japan of its control over Taiwan among other territories. At the time of the Cairo Declaration, the Senkaku were administered under Japan’s colonial Taiwanese government. 

Article 8 of the Potsdam Declaration states, “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.” In the Sino-Japanese Joint Communique issued with normalization of relations in 1972, Japan agreed that, “it firmly maintains its stand under Article 8 of the Potsdam Declaration.” So Beijing maintains that Japan, in maintaining administrative control over the islands and asserting sovereignty, is not heeding what it has agreed to. Tokyo’s decision to assert its sovereignty by nationalizing the disputed islets in September 2012 is thus seen as a gross provocation and betrayal of commitments undertaken in the 1970s to shelve the issue of sovereignty. 

Naturally Japan sees things a bit differently. Tokyo asserts that the islets were terra nullius when they were seized in January 1895, before the end of the Sino-Japanese war (1894-95) and the signing of the Treaty of Shimonoseki that ended hostilities and awarded Japan substantial financial and specific territorial rewards. The treaty, while mentioning other small islands near Taiwan, does not mention the Senkaku and thus Tokyo asserts that they are not subject to the Cairo Declaration and thus remain Japanese territory. China counters that the seizure of the islets amid ongoing hostilities renders them war booty. 

Since March 2012 when Ishihara Shintaro, then governor of Tokyo, announced that he planned to buy the rocky outcroppings from the Japanese private owner, Beijing has been furious. When the central government stepped in to buy the islets in September 2012 in a bid to prevent Ishihara from making mischief, China went ballistic because Tokyo was violating putative understandings reached in the 1970s to shelve the issue of sovereignty. 

Beijing maintains that in 1972, at meetings between Tanaka Kakuei-Zhou Enlai in Beijing to normalize diplomatic relations, and in 1978 involving Foreign Minister Sunoda Sunao and Deng Xiaoping, the leaders agreed to shelve the question of sovereignty for eventual resolution, while leaving the islands under Japanese administration. The Japanese government maintains that there was no such agreement. However, a discordant note has emerged from within as a prominent confidante of Tanaka, Hirofumi Nonaka, said in June 2012 that, “Just after the normalization of relations, I was told clearly by then-Prime Minister Kakuei Tanaka that a decision was made on the normalization by shelving the Senkaku issue.” His memory is inconvenient especially because he is a retired political heavyweight in the ruling Liberal Democratic Party with impeccable conservative credentials.  

The status of the disputed islands was left ambiguous in the 1952 San Francisco Treaty, a festering Cold War legacy that also sowed the seeds of Japan’s longstanding territorial disagreements over islands with Seoul and Moscow. After WWII, the US occupied the Okinawan islands, under which the Senkakus were administered, and used them for bombing practice. In 1972, with the reversion of Okinawa to Japanese control, the Senkaku were also placed under Japanese administration. But the US State Department clarified that this move did not prejudice underlying claims. China asserted sovereignty over the islands for the first time in 1971. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) increased the potential value of the Senkaku as a basis for resource claims in territorial waters. But, aside from a 2008 agreement for joint development outside the contested zone, one that never materialized, Beijing and Tokyo have been at loggerheads. 

The US is hoping that cooler heads will prevail, but there are reasons to worry that hot heads are getting their way. On Nov. 23rd the standoff between China and Japan over the disputed islets in the East China Sea escalated as Beijing announced that it was declaring an Air Defense Identification Zone (ADIZ) that overlapped Japan’s (and South Korea’s) ADIZs. Over twenty states have declared ADIZs, but China’s assertion sent shockwaves through the region that reached as far as the Potomac. While an ADIZ may not be remarkable, the timing of China’s declaration came amid growing concerns in the Asia Pacific about the hegemonic ambitions of an increasingly truculent leadership no longer shy about calling the shots. Beijing’s smile diplomacy at the outset of the 21st century has vanished and now China seems more inclined to leverage its economic influence to force other nations to heed its concerns and agenda. 

China’s resolve and growing clout can’t be ignored because it is challenging the status quo. The US-Japan Alliance and US regional hegemony are targets of China’s ambitions to become the new Asian hegemon. The face-off is also driven by unresolved historical grievances stemming from Japanese depredations 1895-1945 and a desire to avenge “the century of humiliation” at the hands of imperial powers, China’s chosen trauma invoked to ratchet up nationalist fervor. Clearly the ADIZ targets Japan and is an aggressive ploy to assert China’s claims over the disputed islets. 

The US has a stake in this test of wills. In 2010, a Chinese fishing boat rammed a Japanese Coast Guard vessel, sparking a major crisis and angry anti-Japanese demonstrations in China. In the aftermath, the US affirmed that the US-Japan Mutual Security Treaty covers the islets because they are under Japanese administrative control, but clarified that this has no bearing on rival sovereignty claims. 

For Washington the situation is complicated by similar disputes in the South China Sea, most prominently with the Philippines and Vietnam, and wariness about China’s intentions. At the moment, watching China overplay its hand and nurture an arc of rancor seems the best option. 

Jeff Kingston is the Director of Asian Studies at Temple University in Japan.

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