US Enters Sino-Japanese Diaoyu Dispute

On May 6, the U.S. Department of Defense audited their budget and submitted to Congress an annual report concerning Chinese military and security developments, simultaneously posting the report for the public. The report was comprised of six sections, as well as a summary, four special reports and three attached diagrams. Eighty-three pages long, the report cost around $95,000 to produce.

The Chinese reacted strongly after the report was published, especially toward the first chapter of the annual update, under the Territorial Disputes section, where the U.S. Department of Defense comments on the “improperly drawn straight baseline claims” in China’s September 2012 white papers on the Diaoyu Islands.* The report also suggested that China’s baseline measurement did not adhere to international law, arousing widespread media attention. Whether the baseline measurement is truly inconsistent with international law is unknown, but many media figures, academics and experts have come forward to make strong rebuttals and clarifications against the Unites States’ claim. Those arguments will not be repeated here, but for those that are interested, ample material can be found.

Diaoyu and its neighboring islands are part of Chinese territory, which is different from territorial waters. The sovereignty of the Diaoyu Islands is a question of territorial land, not territorial waters. The U.S. Department of Defense’s statement can easily mislead readers, causing them to think that because the territorial waters for the Diaoyu Islands were identified using an “improperly drawn straight baseline,” the sovereignty of the islands is under question as well. Actually, there is no doubt about the Chinese sovereignty of the Diaoyu Islands. As for the territorial waters surrounding the islands, the international law of the sea has its own criteria and standards for baseline measurements, and the final say does not belong to the U.S.

Moreover, if a neighboring country such as Japan has a differing opinion of China’s territorial sea baseline, China has never refused dialogue as a means of settling the dispute. The statement from the U.S. Department of Defense highlights this debate over territorial waters while circumventing the sovereignty issue of the Diaoyu Islands. Whether the U.S. Department of Defense has purposely done this in order to avoid the extremely sensitive issue of the islands’ sovereignty is unknown. Either way, the Chinese government and the Chinese people’s sentiment toward Diaoyu and its surrounding islands should not and will not be influenced by a brief statement from the U.S. Department of Defense.

Moreover, the U.S. Department of Defense is not fully qualified to use the international law of the sea to comment on another country. Current accepted territorial waters are based on an agreement signed at the 1982 United Nations Convention on the Law of the Sea. The agreement was signed by 162 countries, as well as China and Japan. Although the U.S. participated in the convention and even sought to lead the discussion and drafting of the agreement, it was unsatisfied with the end results and refused to sign. Since taking office, President Obama has tried to convince Congress to approve the United States’ entry into the agreement to no avail. For a country that stands outside such an important, large-scale international law framework to criticize others that have signed the agreement seems inappropriate.

The opinion of the U.S. Department of Defense does not necessarily represent the country itself. This report from the Department of Defense was directed toward Congress with the purpose of auditing the budget. Strictly speaking, it is an internal document and should not be construed as the official U.S. position on external affairs. Additionally, the U.S. Department of Defense’s report to Congress is divided between published and unpublished portions. The content of the unpublished portions, as well as Congress’s reaction to it and the position the Department of State will take toward these external affairs are all left to conjecture. Thus, while the half-page mention of the Diaoyu Islands in the published report is certainly worth noting, it is not enough to represent the entire picture.

Even under this premise, the report has nevertheless raised a secret concern: The U.S. Department of Defense is in charge of an operation called the Freedom of Navigation Program. Enacted in 1979, the Freedom of Navigation Program continues to be implemented today. Under this program, if the U.S. believes another country’s assertion of its territorial waters are not in accordance with the United States’ own interpretation of international law, the U.S. Navy may enter the area on the grounds of maintaining freedom of navigation. This represents an objection to the sovereignty of the claimant country, thus disqualifying it from obtaining jurisdiction of the disputed waters under customary international law. This is a highly controversial program; according to records published by the U.S. Department of Defense, between the years of 1993 and 2010 the U.S. Navy has challenged the proclaimed territorial waters of 47 countries, including China. Even more worthy of attention, in 2011, Japanese think tanks and academics such as Tetsuo Kotani began to appeal to the Japanese Maritime Self-Defense Force to join the U.S. Navy in executing the Freedom of Navigation Program, with an express interest in targeting China in those efforts.

The U.S. Department of Defense does not lack warmongers. If we were to make the bold assumption that the U.S. Department of Defense’s May 6 report was meant to convince Congress to collaborate with Japan in executing the Freedom of Navigation Program, then the situation could become very serious. If the U.S. and Japan together challenge China’s assertion of sovereignty over the Diaoyu Islands, the U.S. will not need to address the territory of the islands themselves. Their focus on the territorial waters around the island will be enough to drastically change the state of affairs. But this is pure hypothesis, and there currently is not sufficient reason to suppose that the U.S. or Japan will take this risky step, forcing China to walk the road to ruin. The U.S. would not shoot itself in the foot like that, would it? International affairs can change at a glance; we can never exercise too much caution.

Xuechun Chen, an expert in logistics, holds a Bachelor’s degree in foreign affairs from National Chengchi University, a Master’s in law from the University of London and a Master’s in aviation management from the University of Newcastle in Australia. Once a well-known executive of multinational enterprises, he is now an arbiter for the Chinese Arbitration Society.

*Editor’s note: The Diaoyu Islands are known as the Senkaku Islands in Japan.