The Senkakus Debate - A Look At An Essay By Sourabh Gupta

Sourabh Gupta is a terribly smart fellow. He is probably the third most effective agenda sweeper I know, behind Unnamed and Our Man in Abiko.

However, the essays he has written for the East Asia Forum have left me feeling flat. I find myself asking, "Is this the best he can do?"

The latest essay, "Japan–China relations: a grand bargain over the Senkaku (Diaoyu) islands" (Link) is the latest disappointment. It starts out with a whimper, then slumps over for a long, painful slouch toward a fantasy dressed in reason's clothing.

The downward spiral in Sino–Japanese relations that was unleashed by the Noda government's purchase last September of three of five uninhabited islands of the Senkaku chain shows no sign of abating.

Arrggggghhhh.

Having regained one’s senses after being bludgeoned by such an opening, one has to ask, "Are the assertions in the above valid?"

The downward spiral shows little signs of abating -- if one disregards the one-on-one meeting New Komeito leader Yamaguchi Natsuo had with Xi Xinping as well as formal visits to China by former prime ministers Hatoyama Yukio and Murayama Tomiichi.

Assigning the onset of the downward spiral to the Noda government's purchase of three islands in September is rich. The Noda government's decision sought to prevent private actors from provoking a bilateral incident, as was the case in the Chinese trawler’s ramming of Japan Coast Guard vessels in 2010. The reactions of the Chinese government and proxies in response to the arrest of the trawler captain were outlandish, with China lauding the captain's piratical behavior. Keeping private actors out of the picture was the obvious impetus for the Japanese government preemptive purchase, after Ishihara Shintaro began collecting funds to buy the islands from their private owner.

Propulsion of the downward trajectory in relations has furthermore been rather one sided. Under normal circumstances, relations deteriorate as two parties trade tit-for-tat actions. Since the island purchase, however, the Japanese government has had to endure a tit-tit-tit-tit-tit-for-tat situation -- albeit not without not ancillary public relations benefits.

Beijing is channelling its annoyance at America’s military entanglement into provocative acts against Japanese forces, including the recent training of fire-control radar on a MSDF warship and a helicopter in the East China Sea, an action which China has denied.

How does Gupta know the deep psychological impulses driving of Chinese behavior? Has he been receiving information from the psychiatrists of Chinese naval commanders and their civilian controllers, in violation of doctor-patient confidentiality?

Politically, Beijing seeks a long-term bilateral understanding that shelves the question of ultimate sovereignty of the Senkakus to an indefinite future.

Beijing already has this understanding. It even has a collaborator in the act of shelving: the United States, which, even though Japan is a treaty ally, refuses to acknowledge Japan as having a definitive claim on the Senkakus.

Rather than let yet another dangerously repetitive farce play out at the time of expiration or buy-out of that lease —held incidentally by a relative of the ex-owner of the three islands — Beijing appears prepared to force the issue of the islands' future dispensation at this time.

Is Gupta arguing we should in some way be thankful for China's provocations coming now rather than later? Probably not...but is that not the implication of the above?

One has wonder what is so dangerous about something being repetitive...and from whose Olympian viewpoint is the Sino-Japanese struggle over the Senkakus "farcical"? The two governments are damn serious about the fight; we should be serious too.

That a dispute exists with regard to the status of the Senkakus should be obvious to all but the unbending.

I do not know what those serving in Japan's Ministry of Foreign Affairs feel about such language. I would be insulted by an outsider trying to insinuate himself into a discussion with a "we are all reasonable men and women here" gambit.

The anonymous slap at the position held by the Government of Japan is particularly unfortunate, as the rest of the paragraph contains useful information.

The essay reaches its nadir in the succeeding paragraph, here presented with the original links:

In the eyes of international law, neither party has a water-tight case. Japan can confidently assert that, in displaying peaceful and continuous exercise of jurisdiction, it has assiduously protected its claim of evidence of title. Besides, it may be reasonably sure that no international court will have the gumption to strip a sovereign of (disputed) territory that it has administered from a point of time that predates the court's establishment itself. Set against this argument is the fraudulent basis of Tokyo's incorporation of the islands as ‘unclaimed territory’ despite clear knowledge to the contrary, as well as the illegal basis of its formalisation, which was done in secrecy and without public notice. An international court may well hold that an incorporation conducted in the de facto shadow of imperial war victory was exactly that, de jure. That no international case law precedent exists with regard to a territorial dispute between a state and its erstwhile imperial master adds to the unpredictability of the verdict. China’s inability to press, and thereby protect, its claim during the crucial early-1950s to late-1960s period must likewise be seen as a grievous failing.

Let us take on this meal morsel by morsel.

1) "In the eyes of international law, neither party has a water-tight case."

Unfortunately, this is not even wrong. In dispute arbitration, one does not need a water-tight case – just one better than the one the other side has. Japanese diplomats, if you scratch them, will say: "If the Chinese have a case, why do they not take it to the International Court of Justice?"

The answer is, of course, because the Chinese would lose as they have

a) insufficiently pursued refutations of Japan's claim and
b) no evidence of effective administrative control for over 120 years.

2) "Set against this argument is the fraudulent basis of Tokyo's incorporation of the islands as 'unclaimed territory' despite clear knowledge to the contrary..."

Whoa, smile when you say that, pardner.

"Fraudulent" is a word on the precipice. When you say it, you probably should not have as your anchor point a New Zealand university master’s thesis by a Chinese-speaking German law student whose argument hinges upon an extension of a 1998 decision on the borders of Eritrea and Yemen to include the Sino-centric world order as explained to us by John K. Fairbank and others in the 1960s.

3) "as well as illegal basis of its formalisation, which was done in secrecy and without public notice."

"Illegal basis" -- another provocative turn of phrase.

One would wish to know from whence Gupta derived this assertion. Unfortunately the linked article is behind the Wall Street Journal's pay wall.

The author of the WSJ article has submitted a post to Nicholas Kristof's blog making the same claims (Link). Unfortunately the evidence presented in the post is inconclusive. Allusive to be sure, but not conclusive.

If I had the full text of Wall Street Journal article, my lack of enthusiasm might be cured.

4) "An international court may well hold that an incorporation conducted in the de facto shadow of imperial war victory was exactly that, de jure."

If anyone can make head or tails of this sentence, please leave an explanatory comment.

5) "That no international case law precedent exists with regard to a territorial dispute between a state and its erstwhile imperial master…"

At no time in history was Japan the imperial master of China. This sentence is therefore an an unexpected and unannounced irruption of the narrow Taiwan-Japan contretemps, unless there is a new meaning for the word "erstwhile" that I am not privy to.

Gupta's prescription for cooling the fires of nationalism -- Japan's throwing open a discussion over sovereignty by admitting the existence of a dispute -- has a number of highly reputable advocates. The initial popularizer of the idea seems to have been the formidable Togo Katsuhiko. The almost always correct Gerald Curtis, in an brilliant essay he circulated yesterday, concurs with the proposal. (Link)

I hold the extreme view that Japan should concede nothing. Beyond the principle that democracies should never make concessions to tyrannies, China is unlikely to stand by any agreements, gentlemanly or not.

In his conclusion, Gupta tells us:

These elements of a settlement are not too much to hope for. The East China Sea has been an arena of peace and cooperation in the post-normalisation era and bilateral, principles-based arrangements have been concluded in the areas of fisheries, marine scientific research and joint development of oil and gas resources. China's and Japan's friends and alliance partners have every incentive to quietly encourage a similar outcome on the vexed Senkaku/Diaoyu dispute.

I am afraid I am about to rain upon a parade.

The collapse of the joint development of oil and gas is fairly well-known (Link). What is less well-known is the effective collapse of the fisheries agreement.

Last week NHK aired a report on the joint fisheries area. It was an eye-opener.

Have a look at this pair of NASA images, here presented with some snarky overlays.





The area inside the orange line is the joint fisheries area. Japanese fisherman, in an effort to preserve the resource, do not use arc lights. However, Chinese vessels use every means including the luring the fish with giant arc lights -- and by doing so have depleted the resource in the joint area. These giant vessels have little recourse but to congregate along the border of the joint area, seeking schools of fish make the unfortunate decision to swim in from inside Japan's EEZ.

In effect, there is nothing joint about the joint fisheries area. Japanese fisherman have given up trying to secure their share of the catch -- a catch that at present probably only exists in the imaginations of diplomats. (Link – J)