Wanghailou: Japan-U.S. Need Tutoring in History of Jurisprudence

Regarding the topic of the Diaoyu Islands, whenever the U.S. makes a speech, Japan acts up.

On July 9, a U.S. State Department official said that the Diaoyu Islands are subject to the application of the U.S.-Japan Security Treaty. Four days later, Japanese Prime Minister Yoshihiko Noda called for national attention toward maritime rights, protection of minor islands and continued effort at the “nationalization” of the Diaoyu (Senkaku) Islands.* Tokyo Governor Shintaro Ishihara even announced that Japanese self-defense forces should be permanently stationed in the Diaoyu Islands.

However, both the Japanese government’s so-called “nationalization” of the Diaoyu Islands and the U.S. intervention in the subject matter are doublespeak with no real weight. Whether it is from a historical or a jurisprudential perspective, the Diaoyu Islands are China’s inherent territory, sacred and inviolable.

The Diaoyu Islands became the subject of territorial dispute due to a secret decision made by the Japanese without negotiations to occupy the Diaoyu Islands during the latter part of the first Sino-Japanese War in the year 1895. Using the Treaty of Shimonoseki that forced the Qing government to cede Taiwan and its affiliated islands, the Japanese government implemented a 50-year colonial rule on the islands of Taiwan, including the Diaoyu Islands.

In 1945 Japan accepted the terms of the Potsdam Declaration and announced its defeat and surrender. According to the announcement, Japan must abide by the Cairo Declaration of 1943 and return stolen territories, such as Manchuria, Taiwan and the Penghu Islands back to China; other territories seized via greedy and violent means must also enact Japanese expulsion.

Yet because of the civil dispute between mainland China and its offshore islands, the U.S. used occupying Japan as an opportunity to seize management of the Ryukyu Islands — Okinawa — through the 1951 San Francisco peace treaty with Japan, stationing troops in Taiwan and the Ryukyu Islands, and using Diaoyu Islands’ subsidiary islands Chiwei Yu and Huangwei Yu as the U.S. military’s shooting ranges.

Regarding this, China has expressed strong opposition. As early as December 1952, the appointed Foreign Minister Zhou Enlai issued a statement saying that: Taiwan and the Penghu Islands should be returned to China in accordance with the Cairo Declaration and as to the Ryukyu Islands, “the management decision right does not fall under the Cairo Declaration or the Potsdam Declaration, of course, much less is there a need to appoint ‘the U.S. as the regulatory authority.’”

Article V of the 1960 amendments to the U.S.-Japan Security Treaty says: “Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes,” which means only those territories under Japan’s administrative jurisdiction are under the security umbrella of America.

For example, to invoke Article V of the U.S.-Japan Security Treaty, two conditions must be met: One is Japan’s legal and reasonable “administrative jurisdiction” and the second is Japan’s “territorial rights.”

Up until 1972 the sovereignty of Okinawa was under U.S. control; thus even if the Diaoyu Islands were assigned to Okinawa, Diaoyu was not “under Japan’s administrative jurisdiction,” therefore Article V of the U.S.-Japan Security Treaty did not apply. When the U.S. returned Okinawa to Japan in 1972, it also gave administrative jurisdiction of the Diaoyu Islands to Japan without authorization, while declaring that the gesture would not affect sovereignty negotiations and that the parties involved should resolve the dispute through peaceful negotiation. China expressed opposition toward the U.S. handing over the administrative rights to the Diaoyu Islands to Japan illegally. Moreover, even from the U.S. position, administrative rights do not mean sovereignty. Since the U.S. never acknowledged the Diaoyu Islands as under Japanese sovereignty, it means that the Diaoyu Islands were never Japanese territory, and thus do not meet the basic requirements for application of Article V of the U.S.-Japan Security Treaty.

Therefore, Japan’s insistence that the Diaoyu Islands are Japanese territory under the U.S.-Japan Agreement for the return of Okinawa and the U.S.’ insistence that the U.S.-Japan Security Treaty can be applied to the Diaoyu Islands are deceptive talk with neither reason nor legal basis.

The author is a freelance newspaper commentator as well as the vice president of the Institute of Modern International Relations at Tsinghua University.

*Editor’s note: The Diaoyu Islands are a disputed territory also known as the Senkaku Islands, called the Diaoyu Islands by China and Senkaku Islands by Japan.