(In Part 1, I described the islets called the Diaoyutais in Chinese and the Senkakus in Japanese. They sit astride one of the most important choke points on Earth. Whoever controls those islets controls much of the sea traffic passing through the East China Sea. Whose are they? Three nations—China, Japan, and Taiwan—claim them. In this part, we examine the relevant legal and political documents.)
The Diaoyutais first appeared on Chinese maps in 1403 and were used as navigational reference points. Throughout the centuries, they appeared on Japanese maps—some claimed them to be Japanese; some claimed them to be Chinese. Chinese maps showed the same discrepancies. Japanese and Chinese political communications showed these discrepancies as well.
For most of this history, aborigines of both the Ryukyu Islands (which included Okinawa) and Taiwan paid tribute to both China and Japan, though neither country formally claimed either area. The 1871 Mudan Incident made it clear to Japan that China could not claim all of Taiwan, let alone the Ryukyu Islands. In 1874, Japan claimed the Ryukyus and marked the Diaoyutais as a border between Japan and China. (Click here.)
In 1891, Japanese researchers determined that no nation had yet laid formal claim to the islands. In that year, Japan formally claimed the Daioyutais. Four years later, after the Sino-Japanese War, the Treaty of Shimonoseki granted Japan "the island of Formosa (Taiwan) together with all islands appertaining or belonging to said island of Formosa.”
That should have been the end of it, except for the two court cases that arose in Japan in 1931 and 1944. The Formosa and Okinawa prefectures squabbled over who had jurisdiction over the Diaoyutais. In both cases, the Japanese High Court decreed that the Diaoyutais belonged to the Formosa prefecture.
China’s present claim to the Diaoyutais rests on the assertion that the islands are part of Taiwan and that Taiwan (so the butchers of Beijing tell us) is part of China. Yet a third country, Taiwan, also claims the Diaoyutais for obvious reasons.
In April 1952, when Japan signed the Treaty of Taipei, Chinese dictator Chiang Kai-shek insisted that the treaty specify the Republic of China as the recipient to the title of Taiwan. The Japanese said they couldn’t do that because, having already given up Taiwan, they had no right to give the title to anyone. You can’t give what you don’t have.
On July 23, 1952, Taiwan’s Minister of Foreign Affairs Kung Chao-yeh reported to the ROC Legislative Yuan, “[Taiwan and Penghu] do not belong to us….Japan has no right to transfer [Taiwan and Penghu] to us, nor can we accept such a transfer from Japan even if she so wishes.” (Click here.)
The Chinese Communist Party, in China and the Chinese Nationalist Party in Taiwan today, however, insist that Chiang Kai-shek’s occupation of Taiwan in October 1945, formalized the transfer of Taiwan to the Republic of China. Beijing claims that the Republic of China no longer exists and that the CCP is the real ruler of Taiwan. Under international law, though, sovereignty can be transferred only by treaty; so neither the PRC nor the ROC government can claim Taiwan—and, by extension, the Diaoyutais—on that basis alone.
In 1947, Secretary of State Dean Acheson wrote that the transfer of Taiwan had “not yet been formalized.” The Treaty of San Francisco took the position that the disposition of Taiwan was “an unsettled question” and that Taiwan had “undetermined status.” According to Sheng vs. Rogers, on October 6, 1959, issued from the District of Columbia Circuit Court, Taiwan was never officially returned to China, and that Taiwan's status remained unsettled. (Click here.) Thus, the PRC’s sole claim to the Diaoyutais/Senkakus has no legal foundation. The State Department reiterated this position on July 13, 1971. Every U.S. administration since then has said that the U.S. position on Taiwan’s status has remained unchanged. (Click here.)
The Treaty of San Francisco should have meant that whoever had a lawful claim to Taiwan also had a lawful claim to the Diaoyutais. The trouble is, under the terms of the Treaty of San Francisco, the United States took possession of the Ryukyu Islands; and the U.S. treated the Diaoyutais as part of them. For some years, the U.S. Navy used the Diaoyutais for bombing and gunnery practice.
The people of Okinawa weren’t treated much better at American hands. From 1951 until 1972, the United States government maintained a gut-wrenching dictatorship over the Ryukyu Islanders.
In 1972, the treaty returning the Ryukyu Islands to Japan geographically described the area that included the Diaoyutais as part of the Ryukyu Islands. Whether this treaty supersedes the Japanese court rulings of 1931 and 1944, is open to debate.
There the matter stands in all its complexity. Japan seems to have the strongest legal claim to the islands. Taiwan also has a legal claim to them, since two Japanese court decisions (1931 and 1944) ruled that the islands were part of the “Formosa Prefecture.” China has no legal claim to them whatsoever.
Every so often, matters flare up and one side or the other threatens to go to war over those rocks. None of the three sides is prepared to yield to the others. Most recently, Beijing stirred up just enough Chinese anger to absorb some of the Chinese people’s anti-Beijing anger. Taiwan’s Quasi-president Ma Ying-jeou, like a terrier trying to please its master, sent twelve Coast Guard ships to the area to bark and snap at Japan’s heels. (Click here.) Napoleon is credited with saying, “Don’t ascribe malice to behavior that can as easily be explained by stupidity.” Stupid politicians can start a war. In the interest of preventing stupid politicians from miscalculating and starting a war that could drag the United States into it, both sides—Taiwan and Japan—should yield to international arbitration. China, which has no dog in this race, should stay out of it.
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