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Facts stack up against China’s Senkaku claim

Regarding “Refer Senkaku issue to ICJ to avoid a train wreck,” Hotline to Nagata-cho, Jan. 8): Brian A. Victoria’s analogy—two steam locomotives rushing toward each other at full speed—is perfect, not so much because he predicts a collision but because it symbolizes that one of the trains is off course and on the wrong track. That train is China.

Its claims to the Senkaku Islands, disputed with Japan, are belated, and while its interpretations of history are convenient, its historical narrative lacks facts. What’s worse, China’s claims are violations of the principle of estoppel in international law, by which a government is not allowed to deny or assert anything to the contrary of that which has been established as the truth by its own deeds, actions or misrepresentations.

This principle is important, both when recognizing the “inconvenient truths” facing China on this issue, as well as understanding where Mr. Victoria’s letter failed to get to the heart of the issue. The dispute is not so much about differences in interpretations of history, but about the improper or incomplete presentation of supposed “facts,” which gives one side or another an advantage in how the issue is perceived.

In this case, China seems to have been given an unfair advantage in the letter, because the numerous facts working against China’s legal position, particularly — but not exclusively — in the postwar period are not introduced whatsoever. This failure to present a factually complete picture feeds the perception that Chinese claims are in any way legitimate and that a dispute exists.

The truth is the dispute is essentially manufactured, starting in late 1970 as a result of the publication of surveys indicating the possibility of large oil, gas and mineral reserves, and the impending return of the islands, along with the rest of Okinawa, to Japan as per the June 1971 reversion agreement between Japan and the United States. We — academics, commentators, observers and other well-meaners — do not help the situation by continuing to discuss the “dispute” as if the cases of Japan and China were equally valid. They are not.

Some of these facts that are inconvenient for China include: the 1920 letter of appreciation to residents of Ishigaki that acknowledges the Senkakus being a part of the Yaeyama area of Okinawa Prefecture; the 1953 editorial in the People’s Daily; official maps and textbooks published in the 1950s and 1960s by both China and Taiwan; and the issuance of postage stamps by Taiwan. In short, all of these documents recognize the Senkakus as being a part of Japan.

Most damaging is the fact that both China and Taiwan did not register their challenges to the Japanese sovereignty until after the United Nations committee survey results were publicized. Their claims became louder and bolder as the reversion of Okinawa approached. It is not surprising now, with China on the rise, and Japan seemingly on the decline, that China is more strongly asserting itself. But its actions cannot hide these inconvenient truths.

ROBERT ELDRIDGE
Chatan, Okinawa

Robert Eldridge, Ph.D., who specializes in Japan-U.S. relations, is the author of “The Origins of U.S. Policy in the East China Sea Islands Dispute: The Okinawa Reversion and the Senkaku Islands” (to be published later in 2013 by Routledge). Send comments to The Community Chest at community@japantimes.co.jp .

  • Bellamy Moore

    Congratulations to Robert Eldridge on his insightful analysis of China’s belligerence. The worrying thing for everyone in the Pacific is that this aggression and disregard for the rule of law is part of a broader approach. After all, it is not just the Senkaku Islands that China is laying claim to, and we can only hope that the international community supports Japan, Vietnam and the Philippines, stopping this bullying before it gets out of hand.

  • Guest

    This article is completely baseless from a legal standpoint.
    There is absolutely no precedent for a claim of proprietary estoppel in international territorial disputes.

    That being said, if this was a land law case in a common law jurisdiction (which neither China nor Japan are) and a claim of proprietary estoppel was successful, it would mean that the islands do in fact legally belong to China but it would be unconscionable to allow China to fully assert their legal rights based on the fact that there has been some detrimental reliance by Japan on those representation. It seems unlikely that Japan has experienced any detrimental reliance as they have only owned the islands since late 2012 and have not invested heavily in the islands.
    Further, were a claim of proprietary estoppel successful, it would not automatically follow that Japan is allowed to retain control of the land as financial damages would probably be the remedy of first choice for the courts.

    Also, the stamps, textbooks lack of survey challenges are honestly neither here nor there. No matter how many time I assert that your property belongs to you, it has no bearing on my legal rights to demand my property if I later realize that I am in fact the true legal owner of the property in question.

    All lawyers will tell you that the only resolution to this issue will be a political one so we can leave the law out of this. The sooner we stop bloviating about estoppel or other legal doctrines from introductory law courses, the sooner the uninformed jingoists on both sides will loose interest allowing both sides to politically resolve this issue.

  • http://www.kalanstar.com/ KopyKatKiller

    China’s claim is largely based upon a map drawn by a guy who passed by on a boat. There is much more evidence to strip China of over 60% of its current territory based on things other than crude drawings. And when that drawing was made, China was just a colony of Manchuria and didn’t even rule itself.