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East China Sea: how China and Japan can begin to resolve the Diaoyu Islands dispute

2021-03-10 09:56:31       source:NISCSS

Febuary 16, 2021

Japan and the United States are once again bashing China for its deployment of coastguard vessels in Japan’s claimed 12-nautical-mile territorial seas around the disputed Diaoyu Islands, which Japan calls the Senkaku Islands, in the East China Sea.


This strident criticism is based on the assumption that the islets and rocks belong to Japan and that China is trying to alter the status quo. Although Japan and the US dominate the narrative in the Western press favouring Japan’s position, China also has good arguments.


China’s (and Taiwan’s) position is that the Diaoyus have been part of Chinese territory since at least 1534. China argues that Japan seized the features by force during the first Sino-Japanese War that ended with the imposition on China of the unequal Treaty of Shimonoseki.


It asserts that the Potsdam Declaration that Japan accepted as part of the San Francisco Peace Treaty ending World War II required Tokyo to relinquish control of Taiwan, and that these features are part of Taiwan, which is part of China.


But the US took control of them and in 1971 transferred their administration to Japan under the Okinawa Reversion Agreement. Nevertheless, the US recognises that there is a sovereignty dispute over the features.


China formally protested against the transfer on the basis that the features did not belong to the US in the first place. Despite this slight on the sovereignty of the newly established People’s Republic of China, the country showed restraint and more or less accepted the status quo – provided that Japan did not interfere with its fishing boats outside the 12-nautical-mile territorial sea.


There have been many minor incidents over the years based on the features, but they have been largely kept under control by both sides.


But, in September 2010, a serious international incident erupted when Japanese coastguard vessels collided with a Chinese fishing boat while trying to arrest it for illegal fishing in the territorial sea around the rocks, and then detained the boat and its crew.


Then, in 2012, Japan upended the status quo by purchasing the islands from their private Japanese owners, thus nationalising them. Although the government maintained that this was done to keep them out of the hands of radical nationalists, China felt that Japan was opportunistically consolidating its theft of its territory.


China justifies its patrols by saying the features are its “inherent territory”, that Japanese boats are fishing illegally in its claimed territorial seas and it is trying to prevent that.


Indeed, in China’s eyes, it is Japan that has behaved badly by deploying its coastguard vessels to the vicinity of the features to protect Japanese fishing boats. China is simply challenging Japan’s demonstration of “effective control” and showing that its claim is still valid. Moreover, it says that some of its “intrusions” have been in response to purposeful provocations by Japanese civilian nationalists.


Compounding the importance of the sovereignty dispute, the two have differences over the legal status of the features under the Law of the Sea. This results in a large area of overlapping claims to waters and seabed in the East China Sea, adding ownership of valuable fish, seabed metals and hydrocarbons to the bitter sovereignty dispute.


This dispute threatens regional and perhaps world peace because the US – and its allies – could be drawn into a kinetic conflict. In response to pressure from Japan, the US has repeatedly reaffirmed that the features come under the scope of the US-Japan Treaty of Mutual Cooperation and Security.


Making matters worse, Japan denies that there is any dispute over sovereignty and maintains that the islands are an integral part of its national territory. It is not clear that the US understands the depth of China’s national angst on this issue.


The only peaceful way forward is for Japan to acknowledge that there is a legitimate sovereignty dispute over the features and that China’s position – while uncomfortable – has some merit. Such acknowledgement could be embedded in an agreement in principle that the disputed territory cannot be used as a basis for exclusive economic zone or continental shelf claims.


The quid pro quo for China would be to tacitly accept Japan’s temporary administration of the features and cease penetrating the territorial seas around them with its coastguard. But Japan would have to agree to keep its fishing vessels and coastguard out of them as well.


A “code of conduct” governing their behaviour – with accession by Taiwan – would be a natural next step. The circumstances of the use of force and what is an appropriate level should be included. Outside powers active in the maritime region might be expected to accede or even adhere to relevant elements of the code.


Such a code might contain the usual pledges to settle disputes by peaceful means, to avoid militarising the issue, and to not undertake any action that would destabilise the situation. This may seem like purposeless platitudes, but it would be a step away from what both Japan and China have been doing.


However, this step is unlikely as long as Japan and the US continue to make China the sole villain for demonstrating its reasonable claims and rights. There are no angels in the sad saga of the East China Sea, and the first step towards stability there is a mutual recognition of that fact.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China.