(本文於 2012年10月18日刊登於 Foreign Policy 網站，請點選連結觀看原文）
Japan’s claim of sovereignty over the Diaoyutai Islands by virtue of “discovery-occupation” under international law is invalid ab initio (from the onset), as such claims can only be made to terra nullius (land without owner).
The Diaoyutai Islands were first discovered, named, and used by China during the Ming Dynasty (1368-1644). Chinese envoys at the time used the islands as navigation posts en route to the Ryukyu Kingdom (now Okinawa), a vassal state of China. The islands were also incorporated into Ming China’s coastal defense system and patrolled by Chinese naval forces against the invading Japanese pirates.
The most authoritative historical records supporting the Chinese claim are envoy mission records and official Taiwan gazetteers published during the Qing Dynasty (1644-1912). Envoy mission records specified the national boundary between China and Ryukyu Kingdom as heishuigou (or Black Water Trough, known today as the Okinawa Trough) and the Diaoyutai Islands, and listed the islands as within the “the boundary between China and foreign land.”
Official gazetteers of Fujian Province and Taiwan Prefecture also listed territories under Taiwan, which included the Diaoyutai Islands. For example,Record of Missions to Taiwan Waters (1722) listed the patrol routes of the naval forces of Taiwan Prefecture, stating”in the seas north of Taiwan is an island called Diaoyutai where ten or more large ships may be anchored.” Subsequently, the Revised Gazetteer of Taiwan Prefecture (1747), Continued Gazetteer of Taiwan Prefecture (1764), Pictorial Treatise of Taiwan Proper (1872) all included this reference. In Recompiled General Gazetteer of Fujian (1871), the Diaoyutai Island was further listed under Kavalan County (now Ilan County) of Taiwan. These local gazetteers’ primary functions were to “record history, assist governance, and inform the populace.” These official documents demonstrate Qing China’s long and continuous effective control over the islands as part of Taiwan prior to 1895.
Today, the Japanese government asserts that from 1885 on, it repeatedly conducted on-site surveys which confirmed that the islands were uninhabited and there were no signs of control by the Qing Empire. “It therefore made a Cabinet Decision on January 14 1895 to formally incorporate the islands.” However, old Meiji period documents unearthed from Japanese archives demonstrate that the Meiji government acknowledged Chinese ownership of the islands in 1885.
In October 1885, following the first onsite investigation, then Foreign Minister Inoue Kaoru and Foreign Ministry Public Communications Director Asada Tokunori described the islands as “close to the Chinese border… next to Taiwan and belonging to China”(emphasis added) and “at this time, if we were to publicly place national markers, this must necessarily invite China’s suspicion….”
In November 1885, Okinawa Magistrate Nishimura Sutezo confirmed “since this matter is not unrelated to China, if problems do arise I would be in grave repentance for my responsibility.”
Ten years later, in May 1894, Okinawa Governor Narahara Shigeru wrote to the Home Ministry confirming “…no investigations of the islands took place since mid-1885…”
In August 1894, the Sino-Japanese War broke out. On Sept. 17, Japan defeated China’s Beiyang Naval Fleet. On Oct. 24, Japan crossed the Yalu River and invaded China. By Nov. 21, Japan had captured the Chinese city Port Arthur. In December 1894, the Japanese Home Ministry stated that the incorporation of the disputed islands “involved negotiations with China… but the situation today is greatly different from back then.” Japan accordingly incorporated the islands based on a cabinet decision of Jan. 14, 1895 amid the ongoing war. The cabinet decision was marked “Confidential” and, contrary to established convention, was never publicly announced.
These historical documents serve to refute the statement by Japan’s current government “[From 1885]…surveys of the Senkaku Islands had been thoroughly made…” It can be seen that Japan’s claim of sovereignty over the islands is based on an illegal act of secretly annexing the islands as spoils of war under the false pretext of seizing terra nullius.
In April 1895, Japan and China signed the Treaty of Shimonoseki, which stipulated that China cedes to Japan “the whole island of Formosa [Taiwan], together with each of all the islands appertaining to it.” For the next 50 years, the Diaoyutai Islands and Taiwan remained under Japanese rule until the tides turned again.
In December 1943, the Republic of China, Britain and the United States promulgated the Cairo Declaration, stipulating, “all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [Taiwan], and the Pescadores [Penghu], shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.” (Emphasis added.) The July 1945 Potsdam Proclamation stated, “the terms of the Cairo Declaration shall be carried out.” Further in September 1945, Japan accepted the Potsdam Proclamation through signing of the Instrument of Surrender. All the three international legal documents are still binding on the respective countries including the United States, Japan, and the Republic of China (Taiwan).
Additionally, both the 1951 San Francisco Peace Treaty and the 1952 Sino-Japanese Peace Treaty between Taipei and Tokyo stipulate that “Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores).” The 1952 Sino-Japanese Peace Treaty further nullified the 1895 Treaty of Shimonoseki. Therefore the Diaoyutai Islands, as with Taiwan, should be restored as the territory of the Republic of China.
Unfortunately, when Japan annexed the Diaoyutai Islands in 1895, it placed them administratively under Okinawa Prefecture at the same time, and formally renamed them “Senkaku Islands” in 1900. These unilateral acts masked the islands’ original Chinese ownership and identity, which resulted in their omission from the post-WWII arrangements. When Japan returned Taiwan to the ROC, both sides adopted the 1945 administrative arrangement of Taiwan, with the Allied Powers (including the ROC) unaware that the uninhabited “Senkaku Islands” were in fact the former Diaoyutai Islands. This is why the Diaoyutai Islands were mistakenly placed under U.S. trusteeship between 1945 and 1972.
However, during this time, the Diaoyutai Islands were merely subject to U.S. administrative control, which conferred no sovereignty over them. After the war, Taiwanese fishermen continued to use these islands as in the past century, without interference, until the early 1970s. As the Diaoyutai Islands were placed under a system of trusteeship, rather than a sovereign state, there is no issue concerning explicitly or tacitly recognizing any claim of sovereignty by another state over the disputed islands between 1945 and 1972.
Regarding the reversion of the Diaoyutai Islands to Japan along with the Ryukyu Islands in 1972, the United States sent an official note to the ROC on May 26, 1971, stating that Washington’s transferring of administrative rights over these islands did not affect the ROC’s claim of sovereignty. On Nov. 9, 1971, then U.S. Secretary of State William P. Rogers stated that the United States took no position on the sovereignty issue over the Diaoyutai Islands and that the dispute should be resolved through negotiations between the ROC and Japan. The U.S. Senate Foreign Relations Committee further stated “the United States action in transferring its rights of administration to Japan does not constitute a transfer of underlying sovereignty nor can it affect the underlying claims of the disputants.” Washington has maintained this neutral position in all its relevant diplomatic documents ever since.
Thus, the ROC (Taiwan) has a compelling case for sovereignty over the Diaoyutai Islands. Nevertheless, ROC President Ma Ying-jeou is mindful of the need to foster regional peace and stability. Accordingly, he proposed an East China Sea Peace Initiative on Aug. 5, 2012, calling on all parties concerned to refrain from taking any antagonistic actions, shelve controversies, resolve disputes through peaceful means, and seek consensus with the aim to establish a code of conduct for cooperation in the East China Sea. While ROC (Taiwan) sovereignty is indivisible, resources in the Diaoyutai region can be shared. Under the circumstances, President Ma’s peace initiative offers a constructive approach to reducing tensions in the region and resolving disputes between the parties concerned in a peaceful manner.