A Political Face off Exchange Square.

After lunch today, I had a big surprise. I found two gentlemen in suit and tie outside of the fountain of Exchange Square. They were reading out a protest against the Japanese Government. I found out later that they were representatives of Phoenix TV. Two of their reporters and photographers were illegally detained by the Japanese on Tiaoyutai (Diaoyu Islands)

Their chief representative.

Both representatives facing the press.

The newspaper and media reporters.

More media representatives busy recording and taking down notes or photographing

Some junior press representatives standing at the back.

By evening, all 14 of the "detainees" were "released" by the Japanese authorities, including the two journalists of Phoenix TV.

To me, the following are worth noting:

1. Historically, Tiaoyutai or the Diaoyu Islands ( called Senkaku in Japanese) consist of 8 tiny islands viz. Tiaoyutai, Huangwei Y, Nanxioa Dao, Beixia Dao, Chiwei YU, Dabeixaio Dao, Dannxia Dao, Feilai Dao on the eastern edge of the continental shelf in the East China Sea, bordering what is called the Okinawa Trough, which can be argued to be the outer reach of the natural prolongation of the continental shelf of China in the Japanese direction. 5 of such are volcanic formations with relatively large surface areas and three are just rocky outcroppings. They were Chinese documentary historical records that China first "discovered" and used them as its fishing grounds from as early as the 14th century and the same was put under the equivalent of Fujian today: in 1561, a Chinese naval officer responsible for defending Chinese coast from Japanese pirates clearly included the Diaoyu Islands as part of its 5 areas of naval patrol as part the outlying islands of Taiwan . But the "Senkaku Islands" were not mentioned in any Japanese historical records until 19th century ie. in 1879, when it was purportedly put under jurisdiction of prefecture of Okinawa by the then Meiji dynasty. The Islands were recorded in Chinese documents and maps of the 16th and 17th centuries,when several imperial missions were despatched to the Rhukyu islands in which Diaoyu Islands were mentioned

2.  In May 1895, when China lost the Sino-Japanese War 1894-95, Taiwan was ceded to Japan under the Treaty of Shiminoseki (Ma Kwan Treaty) and the Diaoyu Islands were then considered part of the appurtenances of Taiwan. But sovereignty of the islands reverted to China as part of either the 1951 San Francisco Peace Treaty whereby Japan renounced "all right, title, and claim to Formosa and the Pescadores".  and recognized that "all treaties concluded before December 1941 between China and Japan have become null and void". In the 1952 Sino-Japanese Peace Treaty, Japan reaffirmed its renunciation of the territories referred to in the San Francisco Peace Treaty of 1951 as well as all previous treaties between China and Japan including the Treaty of Shiminoseki. But the Japanese now argue that the Diaoyu Islands were taken by them as terra nullius (no man's land) by establishing a marker stone on them in 1895 before the Treaty of Shiminoseki was signed and that it was then terra nullius and therefore that it formed no part of the territories included in the Treaty of Shiminoseki when it was ceded to Japan and hence the "reversion" of all territories to China under the 1951 treaty excluded the Diaoyu Islands and had no application to them. However, the doctrine of terra nullius applies only where there is no dispute over who has ownership by two different nations.

3. Under the UN Convention on the Law of the Sea ("LOS Convention") to which both China and Japan are parties, countries are allowed to claim 200 nautical miles from the coastline of any qualified insular formation as its maritime "boundary" for and as its "economic exploitation zone" ("EEZ") "regardless" of any geophysical features stemming from e.g "geophysical continental shelf". If so, in the case where a possible "maritime boundary" between two countries is actually less than 400 nautical miles, then some "overlap" of EEZ may be inevitable.

4. There are some grounds for arguing that the handing over of the islands by America to Japan after WWII was "illegal" and against the other terms of the relevant  peace treaties. The Cairo Declaration of 1943 requires the restoration of the Pescadores and Formosa to the Republic of China; the Potsdam Declaration stipulates that the restoration shall be implemented.  The Japanese government accepted the Potsdam Declaration of surrender to the Allies and the Japanese instrument of surrender was handed over to General Douglas A. MacArthur aboard the USS Missouri on Sept. 5, 1945; General Ho Ying-chin accepted in Nanjing the instrument of surrender from General Neiji Okamura, commander-in-chief of the Japanese expeditionary army in China; General Chen Yi accepted in Taipei a similar instrument of surrender from General Rikichi Ando, commanding general of the Japanese army in Taiwan and governor of Taiwan, on Oct. 25, 1945, to take over the province of Taiwan; and the Peace Treaty between the Republic of China and Japan was signed in Taipei and went into force on Aug. 5, 1952. These are effective documents in the eye of international law, and can be cited to justify the Chinese claim to the Diaoyu Islands.

5. America was the principal culprit in the whole affair in that it was the American military which actually handed over "adminstrative control" of the islands to the Japanese Government instead of to the Chinese Government against the express terms of the relevant Declarations. There may or may not be any political motives involved. After the WWII, the disputed islands were first held by America as the "agent" of the "trusteeship" of the UN under the 1951 San Francisco Peace Treaty between the Allies (excluding China) and Japan. The islands were then unilaterally classified and treated by America as part of an area called Nansei Shoto (south of 29th latitude north) WITHOUT "any legal basis" as part of its "administrative action" but it is significant that at that time, neither the Republic of China nor the PRC protested against the inclusion of the islands into that American "administrative zone" purportedly pursuant to the UN trusteeship when it was clearly ultra vires its "trusteeship". That "trusteeship" ended in 1972 and America then declared its intention to return the islands to Japan under the Okinawa Reversion Treaty (Agreement Concerning the Ryukyu Island and the Daito Island) signed on 17th June 1971 and the same became effective on 10th November 1971 whereby America returned to Japan the disputed islands together with  " all and any powers of administration legislation and jurisdiction" over the Ryukyu Islands and Daito Islands held by UN under article 3 of the 1951 Peace Treaty. But  there was an important proviso: America was careful to say that the return of "administrative rights" over these islands treaty can "in no way prejudice any underlying claims" on the question of the true sovereignty over the islands. It is thus clear that the "return" to Japan related merely to the return of "administrative rights" and "jurisdictional rights" over the islands, and not  "sovereignty rights". But it may perhaps be argued that "jurisdictional" rights must by necessary "implication" include rights of ownership or rights of sovereignty. But to me this is debatable e.g when China gave extraterritorial rights over various Chinese cities to Britain, France, Germany, Italy etc in the 19th Century, the Western nations had "extraterritorial jurisdictional rights" over the relevant parts of China but "sovereignty rights" remained with China. In addition, the US-Japanese treaty was not recognized by China but in fairness, it must be said that neither had it immediately protested against the same.  However, it is a principle of law that no one can ever purport to "return" something to another in respect of something which the former never owned in the first place. The principle is called in Latin "nemo dat quod non habet" (meaning "no right of title/ownership to what one never had"). Therefore , to put it at its highest, the Japanese can only claim "administrative rights" and/or "jurisdictional" rights over the islands.

6. De facto control doesn't necessarily mean de jure control. Japanese "occupation" is in the nature of what in private civil law of tort ("civil wrong" ) as a "trespass". If so, then Japanese "occupation" of the disputed islands is clearly an "infringement" of Chinese sovereignty rights over the island. China has NEVER given up its claim to sovereignty over the islands and its position is constantly being repeated. But  despite this, no "effective" control has been exercised by China over the islands. In the 1990's, China began surveying the islands. But merely "surveying" the area by Chinese government ships may be insufficient to establish "effective control". 

7. On 12th August 1978, the PRC and Japan signed the Treaty of Peace and Friendship to formally cease a state of hostilities between the two nations following the WWII. The treaty expressly "reserved"  the right to shelve the dispute over the Diaoyu Islands "to future generations". Neither country gave up its claims of "ownership" over the islands.  21 years can be regarded as a generation. By 1999, it's already one generation!

8 . In 1992, China formally "asserted" its claim over the Diaoyu Islands by proclaiming its Law on the Territorial Sea and Contiguous Zone and article 2 of the law expressly asserted that "Diaoyu Islands" as an appurtenance to Taiwan and as part of Chinese territory. I'm not sure if  the Japanese government "protested" against this law.

9. In 1996, the LOS Convention was ratified by both China and Japan. But the same year, a right wing Japanese group with the permission of the Japanese Government built a light tower on one of the islands and requested that the Japanese Government recognize it. China protested. In 1997, when one Japanese legislator landed on one of the islands, PRC also protested it as "a violation of China's territorial sovereignty". The Japanese Government officially declared that it was not behind such activities nor did it give it any support. Its stand appeared officially as "neutral". But the circumstances surrounding such landing must have been known to the Japanese Government. It clearly made no efforts at all to stop it either. But the Japanese reiterated its "fundamental position" viz. that the islands "belong" to Japan as manifested by its regular naval patrol over them and declared repeatedly that there is NEVER any question of any so-called "territorial disputes" over the sovereignty over the islands, the same way they denied the Nanjing massacres ever occurred.

10. Since 1999, China has  also asserted it "physical presence" in the territorial waters of Diaoyu Islands by despatching "scientific research" survey ships to the area but has not mounted any further concrete action to "assert" its sovereignty over the islands. Its "actions" remain at the verbal level and physical entry level AS IF they still belong to China. The Japanese protested against such entry but did not stop their entry.

11.  In 2000, the Japanese Government ostensibly "passively" tolerated another right wing Japanese group to build a shrine over Tiaoyu Island. It was up to the same trick again. PRC government again declared that the "Diaoyu Island and its adjacent islets have been integral part of China" and "strongly demanded that Japan honour its commitment, restrict right wing activities and prevent similar incidents from recurring." But the Japanese Government rejected Chinese claims and claimed that it was part of Japanese territory and has "always"  been so. Perhaps the Japanese uses a criterion for the "measurement" of time very different from that used by more normal people so that a  hundred years or so is already "always". 

12.. In March 2004, 7 Chinese activists landed on the disputed island but were removed and detained by the Japanese Coast Guards but they were later released after China arrested 7 Japanese on "spy" charges and detained them for a similar period of time.

13. Taiwan too has asserted "sovereignty" over the islands but openly declares that it will not deal with the issue jointly with the PRC. But earlier this month (August, 2012) , Ma Ying Kau  has proposed that the resources be jointly developed by the three sides viz. Taiwan, PRC and Japan without dealing directly with the question of "sovereignty".

14. The PRC may bring up the issue in the International Court if it wants to but so far has not done so.

15 . In my view, the longer the Japanese assumes "jurisdiction" over the islands, the weaker will be China's claim of "sovereignty" over the islands because there is a saying that according to English legal principles, possession is 9/10th of the law. This is a matter of public policy because it is thought that it will be in the national interest if land should be actively exploited and used instead of being left idle. The rationale is simple, you use it or lose it because to "claim" ownership without putting it to good use constitutes a "waste" of resources and that is considered to be something against public policy and the common good.  As a matter of "fact", the Japanese have taken very strong action to "defend" what it thinks its "legal" authority and "sovereignty" over the Diaoyu (which they called "Senkaku") Islands by sending its "coast guards" to patrol the area extending 200 nautical miles of what it claimed to be Japanese islands. If any nation claims "sovereignty" over a territory, it must show that it is in "effective" control of such territory without protest. The Japanese have been doing that since 1972  but however, China did protests and did so repeatedly. So the Japanese cannot claim that China had by conduct "acquiesced" in Japan having control and sovereignty over the islands. 

16.  Declaration of "sovereignty" must be accompanied by appropriate "substantial" or at the minimum "token" assertion of such sovereignty or right of ownership from time to time e.g. exploiting its resources  like fishing over it  and the Chinese coast guards or navy may declare that the island be designated one of its outlying islands for the purposes of military exercises and if possible (unlikely) jointly with Taiwan and give warnings to all people who may be affected by such artillery practices to clear off the area to prevent unnecessary loss of life e.g. target practice for its long range naval artillery or naval air force artillery. I think a public announcement of its intention to do so may well be sufficient in the first place. The exact date(s) may be announced later depending on the circumstances.

17. From the Chinese perspective, it is absurd that Japanese should purport to exercise "jurisdiction" to "arrest" any PRC citizen over what it regards as notionally Chinese territory because it lacks any legal basis except from the point of view of Japanese law.

18. Formal negotiation should take place on a diplomatic level for the return of sovereignty. A number of possible options are open to China:
      (a) China may assert sovereignty over the island but may "lease" or "license " it to Japan for development if China has not got the necessary technical know-how to do so, provided a designated return be given back to China , details of the terms of such lease or license to be negotiated.
  (b) China may leave aside the issue of "sovereignty" for the moment and simply exploit it economically together with the participation of Taiwan whilst "reserving" its rights to dispute Japanese "sovereignty" over the islands
  (c) China may bring the matter to for a decision by the international court of justice ( Japan has filed a declaration under article 36 of the Statute to the effect that it would submit to the jurisdiction of that Court, being one of the 67 States which have done so but China and USA being the original members presumably do not need to do so)
  (d) China and Taiwan continue to support "action" by HK, Taiwanese or PRC non-Government organizations to assert Chinese "sovereignty" over the islands by non-military action.
  (e) The PRC put into measures certain economic sanction against Japan unless they are prepared to acknowledge Chinese sovereignty over the islands
  (f) last but not least, a military solution. This is the worst option.

Japanese are like hungry wolves. If you don't pay attention, it may bite your finger, your hand, your arm and eventually your body. A tough policy should be adopted vis- a-vis the Japanese at all times.

Postscript: after the publication of this blog, another Japanese right wing group had landed on the island and the PRC Government had protested against the same as a violation of Chinese sovereignty over the island and urged the Japanese Government not to encourage activities to put into jeopardy the long term good relations between the two countries. In addition, widespread demonstrations had occurred in various Chinese cities including Chungking and Quangzhoue involving some violence against Japanese vehicles in the latter city.It has also sent its air force and ocean patrol ship to "patrol" the islands.