The 70th anniversary of the Cairo Declaration signed on December 1, 1943 by the leaders of China, the United States and the United Kingdom in the heat of war against Japan has revealed the depths of the emotions felt by China over its claims to the Diaoyu Islands. The anniversary has been used to aggravate the deep emotions associated with the war. The sense of crisis and outrage in China is not only palpable. It is driving China’s policy.
The 1943 document was intended to “punish the aggression of Japan”, to “strip” it of “all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914”, and to restore to China “all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [Taiwan], and The Pescadores”.
This is the moral departure point of the majority of Chinese (including Taiwanese) in their view on the dispute over the Diaoyu/Senkaku Islands. They believe with every ounce of their being that the islands were covered by the communique and subsequent Allied agreements and Treaties premised on the Cairo Declaration. This is one of the most dangerous aspects of the dispute over these otherwise insignificant rocky island currently administered by Japan. If it were just a matter of law and not an issue of end of war justice, the dispute might be easier to settle. The danger has been heightened by the unequivocal commitment of the United States that an attack on the islands by China would be covered by the Mutual Defense Treaty with Japan.
Law does not, however, in all cases line up with morality or justice. The Senkaku Islands are not named specifically in any of the post-war treaties but could be embraced by conflicting heads in various treaties. The earliest relevant treaty is the Instrument of Surrender signed by Japan and the Allies on 2 September 1945, under which Japan agreed to ‘accept the provisions’ of the Potsdam Declaration of 26 July which specifically stated that ‘Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine’. In accepting the provisions of the Potsdam Declaration, Japan also undertook to carry out the terms of the Cairo Declaration. As noted above, it was the ‘purpose [of the signatories] that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China’. (There was at this time only one government of China.)
In 1951, the Multilateral Treaty of Peace with Japan (also called the San Francisco Peace Treaty) was signed and Japan renounced its sovereignty of Taiwan and the Pescadores under Article 2(b). Under Article 3, Japan agreed to temporary ‘exercise of all powers of administration, legislation and jurisdiction’ by the United States of America in the Nansei (Ryukyu) Islands south of 29°N. The southernmost extent of the area of control was not clarified by the USA until 1953. Both Japan and China agree that the Diaoyu/Senkaku Islands were affected by the 1951 treaty but argument revolves around which article of the treaty (2 or 3) covered their disposition.
In 1952, Japan and the Republic of China (on Taiwan) signed a Treaty of Peace (since abrogated by Japan as a precondition to normalization of relations with the People’s Republic) under which Japan reaffirmed its renunciation of sovereignty over Taiwan and the Pescadores and also recognized that all pre-1941 Sino-Japanese treaties, including the 1895 Treaty of Shimonoseki, were null and void. This treaty ceded Taiwan and associated islands to Japan after the First Sino-Japanese War. But the Diaoyu/Senkakus were not mentioned as part of the territories ceded.
The arguments as to which of the various treaties disposed of the Diaoyu/Senkaku Islands, either in favor of China or the United States of America (not Japan), rely essentially on conflicting interpretations of the texts of the treaties rather than on legal arguments as to facts or principles of law.
Japan considers its sovereign interests in the Diaoyu/Senkaku Islands in 1945 to have persisted, albeit in a residual manner, under Article 3 of the 1951 San Francisco Peace Treaty whereby Japan recognized the right of the USA to exercise ‘all and any powers of administration, legislation’ in the Nansei Islands. Japan does not regard its surrender of Taiwan and ‘all islands appertaining or belonging to’ the island of Taiwan under Article 2 of the treaty as having included the islands. The islands were returned, according to the Japanese Foreign Ministry, to full Japanese sovereignty under the terms of the Okinawa Reversion Agreement of 1972 between the USA and Japan.
China argues that when Taiwan was returned to it after World War II, the Diaoyu/Senkaku Islands should have been understood to have automatically reverted to China because they were understood to have been ceded under the 1895 treaty. China regards the Okinawa Reversion Treaty as being unlawful if it purported to include the Diaoyu/Senkaku Islands in the reversion zone.
I have argued in my book, China’s Ocean Frontier, that if judged purely on legal merits, the Japanese claim to the islands (though weak) is probably stronger than the claim of China. Chinese links with the Senkaku Islands prior to 1895 were so few and of such a nature that it would appear difficult for China to support its claim that it possessed a valid title to the Islands at that time. The Japanese annexation of the Islands in 1895 and subsequent activity were probably sufficient to establish a valid title even if China had been the original sovereign prior to the annexation. Evidence that the post-war treaties could have returned the Senkaku Islands to Chinese sovereignty is at best inconclusive, but on balance does not appear supportive of China’s claim. Japanese sovereignty over the Senkaku Islands, established between 1895 and 1945, had been maintained since—on a residual basis during US administration until 1972, and on a complete basis after that date.
That chapter of the book was written from the legal perspective. But law alone does not govern international relations, especially on big issues of national pride and dignity. This is as true for Japan as for China. Many in Japan feel that a line has been drawn under their wartime history and the territories settled long ago. As angered as Chinese people are, most Japanese feel that enough is enough. They rest their legal case on United States’ control of these islands on behalf of Japan after 1945 with no protest from either of the governments of China until 1970 – after oil was discovered in the East China Sea. Japan’s view is not strictly based on law either. It wants an end to its war shame and repeat calls from China for an apology, which Japan feels has been given many times.
In such a situation, it is time for the United States, Japan and China to grasp the moral dimension here more firmly and begin to work towards a solution to the dispute that might balance law and morality, and more explicitly recognize the deep and genuine emotions that are in play. Moreover, the heavy insistence by the United States on law is simply out of place here. China wants greater admission of some role for justice and it will not back down until it gets it. For China, this does not mean that Japan must abandon all sense of its own dignity and surrender the islands. Japan simply has to admit that there is a dispute, that there are many emotional and political factors in play, and then talk with China about a way to calm the tension.
Greg Austin is a Professorial Fellow at the EastWest Institute.
