Wednesday, July 26, 2006

Diaoyutai Commentary From A Legal Scholar In China
[link depricated]

"From The Perspective of International Law On China-Japan DiaoYuTai Dispute"

Within international law, a nation's claim on its ownership of a territory, mostly include CESSION, OCCUPATION, PRESCRIPTION, CONQUEST, and INDEPENDENCE. Both China and Japan claim sovereignty over DiaoYuTai - on what basis? Who has a stronger case?

Japan uses OCCUPATION as its principle to claim DiaoYuTai:

On 3/8/1972, Japanese foreign ministry announced Japan?s unified view, claiming "Senkaku" (Japan?s name for DiaoYuTai) is historically Japanese territory, based on following point:

1) after 1885, repeated survey deemed such territory to be uninhabited and Chin Dynasty has not actively administered this territory, Japan recorded put this territory under Okinawa on Jan. 14, 1895.

2) Shimonoseki Agreement became effective in may 1895, Ching Dynasty cession Taiwan and Peng Hu islands to Japan, with DiaoYuTai excluded.

3) The 1951 San Francisco Agreement between US, Japan, and some allied nations, excluding Diao YuTai as part of territory Japan relinquished, was put under US administration along with Okinawa.

4) At that time the nations had no dispute, until the reversion of Okinawa and mineral(oil) discovery in East China Sea, such dispute occurred.

5) Taipei and Beijing?s claim on history, locality and geography, are not effective proof under international laws.

Simply, Japan believe its claim on DiaoYuTai is based on this territory being unclaimed before 1895, as "terra nullius"; Japan occupied it first, and had 50 years of effective administration, until defeated in WWII. Due to the San Francisco Agreement(1951) it temporarily given administration of Okinawa and DiaoYuTai to US. In 1972 US returned Okinawa and DiaoYuTai, Japan regained full sovereignty of these territory. Beijing and Taipei heard of mineral discovery in 1969, then became interested. It?s silent ttitude prior to the discovery, and it?s historical, locality, geographical evidence has no legal ground, thus not hinder Japan?s sovereignty.

China?s UN representation prior to 1971 is Taipei for ROC, then became Beijing for PRC. Government from both sides have emphasized DiaoYuTai is Chinese territory, from evidences below:

China uses OCCUPATION as claim

1) As early as Ming Dynasty (apx 1532-1534), Chinese court document already named these islands as DiaoYuTai; official and civic records treated this to be Chinese territory. Civic records of DiaoYuTai can be traced as early as early Ming(apx 1403, one such discovery of DiaoYuTai is from a man named Yang Zai, around 1372). Because of this, DiaoYu Tai can not be considered as unclaimed territory, it has been long standing Chinese land. Administration of DiaoYuTai was under Fujian province during Ming Dyn and under Taiwan province since beginning of Ching Dyn. For the past hundreds of years this has been Taiwanese ground for fishermen and herbalists.

2) It is because Japan?s instigation of war, China was forced to sign Shimonoseki Agreement, cession Taiwan and it?s islands, thus lost its administration of DiaoYuTai territory.

3) After WWII, China, US, GB victors announced and Japan?s unconditional acceptance of Potsdam Proclamation - "Japan?s sovereignty shall be limited to Honshu, Hokkaido, Kyushu, Shikoku, and our(Allied Nations?) determination of other islands." According to this, Ryukyu was legally no longer part of Japanese sovereignty; its ownership was to be decided by the Allied Nations. US was first to occupy Okinawa, later given it to Japan, which was done by extra-legal, private dealing between them, and became legal only after USSR and China?s supported the return of Okinawa to Japan. However, reversion of Okinawa does not affect DiaoYuTai?s sovereignty [under China].

4) According to China Japan Agreement signed in 1952, Shimonoseki Agreement, Japan?s imperialistic conquering, all these unfair demands became nullified. Taiwan and it?s islands were returned to China, including DiaoYuTai.


US and Japan?s private dealing does not affect China?s sovereignty

5) US and Japan signed San Francisco Agreement in 1951, in it 3rd paragraph grouped islands south of 29 degree northern longitude as "southern islands" (Okinawa islands), under US administration. Later US and Japan announced above agreement included DiaoYuTai, thus interfered with China?s sovereignty. However this does not cause China to lose it?s sovereignty of DiaoYuTai islands, because of:

a) ROC government had already brought up official protest to US thru diplomatic channels, against the agreement?s provision to administer Okinawa islands. As far as DiaoYuTai, it was not part of this administrative zone (as such imperalistic conquering had been returned to previous holder per terms of surrender), and Taiwanese fishermen were free to enter as usual (until 1970), thus no protest of this was necessary;

b) At end of 1969, When US and Japan announced agreement that US will return Okinawa to Japan, along with DiaoYuTai, both ROC and PRC government brought forth protests. US and Japan?s agreement and subsequent treaty, can not restrict China?s claim of sovereignty;

c) US government?s reversion of Okinawa administration, in the eyes of US congress and UN is clear that according to the San Francisco Agreement, is administrative authority only, thus does not affect China nor Japan?s claim of sovereignty over DiaoYu Tai.


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