Thursday, October 04, 2012

And When I Say "Stolen" I Say That With All Due Respect

On September 28, Foreign Minister Yang Jiechi of the People's Republic of China delivered a speech to the United Nations General Assembly. In his speech Yang used a weirdly hyperbolic turn of phrase, saying that Japan had stolen the Senkakus from China.

In much of the print, online and broadcast reporting in this blessed land, Yang's use of the word "stolen" was depicted as the Chinese government losing its senses. The evening sports rag Sports Nippon, no stranger to hyperbole itself, was dumbfounded:
This was not North Korea or Iran -- this was China, a Permanent Member of the UN Security Council, using this fiery (gekiretsu) expression. It is beyond precedent.

Osaka mayor Hashimoto Toru, hearing of the use of the expression "stolen", tweeted on 28th:
Be that as it may, this shows China's lack of class. If it had been me that they said this to, that would have been the end of it. This shows that they are still a long way from acting in an honorable manner in global terms. That at the UN General Assembly, to use an expression like 'stolen' toward a sovereign state like Japan...Japan must retort vehemently."


Some in Japan knew that Yang's use of the word "stolen" in his UN speech was not a verbal misstep or a sudden leap in tone. China's State Oceanic Administration on September 20 had released a handbook making exactly the same claim about the islands.

The standard joke one would use in this instance to deflate the tension would be:

"The islands were 'stolen' – that's a technical term, of course. Ha, ha."

What is unfunny is that "stolen" is indeed a technical term. Saying the Senkakus were "stolen" brings them under the purview of the Cairo Communique, which states:

"...Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and 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."

That a close reading of the Cairo Communique would find the niggling problem that the Republic of China is still around, ruling Taiwan, can be and is being glossed over the government of People’s Republic. (E)

As to returning to the status quo ante, the ante has been raised for the government of Japan.

The PRC government is aware that Japan annexed the Senkakus in January of 1895, before the signing of the Treaty of Shimonoseki which ceded Taiwan and the Pescadores to Japan. By declaring the Senkakus as "stolen" China has pushed the application of the Cairo Communique backwards in time, prior to the commonly accepted boundary line of April 17, 1895, the date of the signing of the treaty ending of the First Sino-Japanese War.

If the Senkakus are classed as "stolen" the next logical step is to class Okinawa in the same way.

This is not paranoid right wing fantasy. The China Daily, in talking about the status of the Senkakus, is unabashed about declaring Chinese claims on Okinawa as superceding Japanese ones:
Japan took the Liu Chiu Islands, which Japan calls Okinawa, by force from China in 1874, when the Qing Dynasty (1644-1911) was at war with several countries. The Diaoyu Islands, though, remained under the administration of Taiwan. Following China's defeat in the Sino-Japanese War in 1894-95, the Qing government ceded Taiwan, including its subsidiary islands, to Japan.

Before plunging too deeply into extreme scenarios involving Okinawa, the unanchored use of the word “stolen” in the Cairo Communique is the source of the GOJ’s inability to admit even the existence of a sovereignty dispute over the Senkakus. The moment the GOJ ever admits that a dispute exists, the Cairo Communique comes into effect.

Togo Kazuhiko has been going around advocating that the government of Japan indeed admit the existence of a dispute (E) -- this in order that there be symmetry in between the GOJ's approaches to the dispute with South Korea over Dokdo/Takeshima and the fight brewing over the Senkakus. That the former head of the Treaties Bureau (service: 1998-99) would fail to appreciate the triggering of the Cairo Communique is flabbergasting.

In addition Foreign Minister Yang’s speech in New York and the State Oceanic Administration handbook, the Chinese government's September 10 demarcation of territorial waters baselines including the Senkakus makes clear that the government of China has no intention of returning to the status quo ante. The baseline declaration requires that Chinese constabulary forces conduct uninterrupted surveillance and security patrols in and about the islands, meaning that JCG and various Chinese government vessels are condemned to a series of confrontations in what Japan considers its territorial waters, non erit finis (E).

Hence the absurdity of the breathless daily reports of Chinese ships entering Japan's territorial waters about the Senkakus.

"Let's all calm down, take a deep breath and remember what is at stake here" punditry notwithstanding, China is pushing hard to undermine Japan’s jurisdiction over the Senkakus, using such tools as exist in its own domestic law, international law and World War II declarations.

The Rubicon is crossed. So what are Japan and its treaty ally the United States going to do about it?


sigma1 said...

With all due respect MTC, I don't understand any of your reasoning around the Cairo declaration, although I agree with most of the rest of what is written.

"The moment the GOJ ever admits that a dispute exists, the Cairo Communique comes into effect."

Why? An admission to there being a dispute by say,accepting a Chinese proposal to go to the ICJ, would simply be an invitation to legally visit whether the Cairo declaration applies to the Senkaku annexation, the answer likely being that it doesn't no matter what the Chinese say around the Senkaku's being stolen.

MTC said...

sigma 1 -

The GOJ wants the territorial concessions of Shimonoseki to be the cutoff point for the application of Cairo and Potsdam.

The annexation of the Senkakus antedates Shimonoseki.

Anonymous said...

What I don't get is which China the islands should be returned to. To ROC (Taiwan) or to PRC (Communist China)?

Until they have made up their collective minds about that issue, why expose their own (weak) hand and make duplicate demands to Tokyo?

Anonymous said...

Was using two Latin phrases in a single paragraph truly necessary?

MTC said...

Anonymous -

You ask: Was using two Latin phrases in a single paragraph truly necessary?

Truly necessary? No.

Is the use of the adverb "truly" in the question "Was using two Latin phrases in a single paragraph truly necessary?" truly necessary?


sigma1 said...

Of course, but in short, nothing the Japanese government does in the temporal realm, other than handing the islands over to China directly and admitting they stole them, will change whether (or not) the Cairo Communique legally applies to the question of whether the Senkakus were "stolen." Either the islands were stolen or they weren't. The ICJ would reflect upon this as is. And if they judged them to be so (unlikely given stealing suggests the dispossession of something someone is legally entitled to, and China's possession in practical terms and legal entitlement are unclear at best)then and only then would the Cairo Communique come into play. And even then it might not be enough to overrule the continuous administration of the islands dimension of Japan's argument.

MTC said...

sigma1 -

China has already claimed the Senkakus to be stolen. As such, it is invoking the Cairo Communique.

If Japan admits the slighest bit of doubt as to whether or not it or the PRC/ROC owns the Senkakus, it puts itself in a very precarious position. This is especially so in light of its military ally, the United States, declaring itself agnostic as to the sovereignty issue.

Togo's symmetry argument is faulty. In the case of Dokto/Takeshima, South Korea's declaration of the Rhee Line was unilateral, in defiance of the MacArthur Line. In the case of the Senkakus, the United States government handed control of them to Japan in 1972, de facto and de jure declaring them a part of Japan.

It's past actions notwithstanding, the U.S. State Department maintains the fiction of the U.S. ashaving not made a determination on sovereignty out of deference to the ROC government.

jerik said...

Why hasn't anyone pointed out the attempted coup that Ishihara has pulled off. He attempted to run an independent foreign policy and has forced the Government of Japan to change its foreign policy. Who elected him to do so? He opened this can of worms. He offered to buy the islands 'forcing' the national government to buy them. Wrecking years of peaceful bilateral relations between the two countries. Can anything hold him accountable?

MTC said...

jerik -

An important point that the Chinese government has chosen to ignore in favor of a formalistic response.

As to who elected Ishihara Shintaro to do what he has done, I nominate the Devil. If Ishihara were actually running the TMG, rather than leaving all the grunt work to Inose Naoki, he would have no time for extra-curricular activities. As the saying goes, "The Devil makes work for idle hands."

Bryce said...

"If Japan admits the slighest bit of doubt as to whether or not it or the PRC/ROC owns the Senkakus, it puts itself in a very precarious position."

Okay, but is this actually what the government will be doing if it responds to a Chinese proposal to take the case to the ICJ? You go to court because you are generally sure you have a case. This applies doubly to courts that you have to agree to go to. Meanwhile, Japan can issue statements about its certain ownership of the islands while claiming "respect for the august institution of international law, yada, yada, yada..."

Andrew S, Mooney said...

"China has pushed the application of the Cairo Communique backwards in time, prior to the commonly accepted boundary line of April 17, 1895, the date of the signing of the treaty ending of the First Sino-Japanese War."

The PRC can sit in it's bedroom sulking, revising the Cairo Declaration all the way back to the battle of the Red Cliffs. So what? Why should anyone listen to them? They missed the cutoff date, namely, Japan's involvement, on the side of the allies, in the first world war.

In doing that, the allies were constructing a basis for the idea that Japanese militarism after that date was illegitimate. Prior to that, Japanese affairs were no different to, say, the actions of the British in the Boer War, or the US manufacturing a pretext and invading Cuba.

The key words in this treaty are actually "such as." They name a set of territories that is now notionally open ended. That, yes, can thus include the Senkakus if it also takes in the Ainu people, the Dutch (Presumably because Deshima was theirs as a treaty port and was taken off of them in the end.) and, notionally, any other territory that a group can claim was taken from them from them by the Japanese government, anywhere, ever...Descendants of the Tokugawa Shogunate perhaps. How about the Toyotomis - Maybe they are in line for compensation as well?

"The annexation of the Senkakus antedates Shimonoseki."

A thought is that in most situations of law, there must be a living plaintiff, and statutes of limitations would apply that would suggest that only people who were alive at the time of the first Sino Japanese war and lost out from the confiscation of the Senkaku islets would be able to claim via their government that they are entitled to their "territories" back.

So China is about fifty years too late in that regard.

A reason for this idea is that in the UK right now, persons who were tortured in prison camps during the Mau Mau uprising in Kenya have gotten permission to sue the UK government, i.e. British Taxpayers - for compensation, but most of them are now so old that it is likely that the entire situation will become moot as many of them will be dead by the time the legal system hears evidence and rules upon each case.

The other way of looking at the issue is that the US military and government won the islands in 1945, all claims are null and void by force majure (Latin, there...) and had the right to assign them to anyone that they choose, and they chose Japan, so it is tough.

I cannot understand this posting or why you think that the Chinese have any claim at all, though any route of people, treaties or war reparations. Or that there any reason for the GOJ to say anything in any way.

If the government of the PRC is so upset about stolen property, perhaps they could return Tibet to the people that they stole it off in 1950.

sigma1 said...

"China has already claimed the Senkakus to be stolen. As such, it is invoking the Cairo Communique."

To which I answer "So what?" (Unless there is a provision in the Communique that gives the PRC/ROC the right to unilaterally and independent of international law decide what the Communique applies to) They would have to actually prove them to be stolen ie Japan dispossessed the Chinese of islands that they are legally entitled to. As it would have to prove conclusively either Chinese possession or legal entitlement before Japan's annexation then the Cairo Communique would become irrelevant and other factors of law would come into it. And if the Japanese government couldn't prove that they didn't steal them, well they stole them I guess! A problem for international law independent of the Cairo Communique.

MTC said...

sigma 1 -

Because if the GOJ allows for the possibility that the Cairo Communique can be applied to territories acquired prior to April 17, 1895, it will be accepting that Japan's hold on Okinawa as being equally disputable.

sigma1 said...

Okinawa? That is not even remotely possible. Okinawa is about as Chinese as Korea is - actually less, if you go on the basis of regularity of tributes paid by the respective kingdoms. And Japan's Meiji annexation was more formalistic given the influence of the Satsuma clan for 300 odd years prior to this. I guess you could argue that maybe Okinawa should legally be independent. But that has nothing to do with the Chinese. The Cairo Communique either applies or it doesn't apply irrespective of what the Japanese government does or "admits." Essentially the logical implication of what you are arguing is that by being willing to accept a Chinese request to go the ICJ Japan by default weakens its case. That would lead to a serious credibility problem for the court and international legal institutions. But no judge is going to argue in their summation "while China would otherwise not have a case for having jurisdiction over the Senkakus, the fact that Japan was willing to come to this court is evidence that its case is weak and therefore the Chinese must be right and the Senkakus were stolen even though they didn't raise a single objection until the 1970s." Japan would be quite right to reject such a judgment.

MTC said...

sigma1 -

It is not me. It is not the right wing revisionist nutbags. It is the Chinese themselves who bring up Okinawa's status. Go back to the body of the post and reread the China Daily quote. Please.

You are also missing the broader point regarding the original reason stated for Japan wanting to switch gears on the Senkakus: that somehow offering the Senkakus up to adjudication by the ICJ will a) shame the Chinese into showing up and b) shame the South Koreans into showing up at the ICJ over Dokto/Takeshima. What if the Chinese and the South Koreans do not play along? The government officials of Japan wind up with the uncoveted "International Naïve Dorks" award.

sigma1 said...

Sure...I wrote a whole post over at JSW on the Okinawa question and worries about Chinese contestation. But what the Chinese think they are and what they are actually legally entitled to are two very separate issues. There is zero chance that Okinawa will be the focus of any Chinese legal strategy as they know it will not work. They will have to take it by force if they want it. On the Senkakus even, the CCP ultimately do not want to go to the ICJ - the risks are far too high for them. And at the end of the day if the Chinese really do believe that the islands were stolen then surely doing what Japan is doing to Korea would be the logical approach. But they are aren't and Japan should be calling their bluff. Japan has sent out feelers saying if the Chinese were willing to bring up the issue to the ICJ then Japan might play along, which is appropriate. Ultimately, Japan probably doesn't want to go to the court either but in this case there is little risk saying they would as their adversaries are even less willing to go to court, albeit for different reasons. I am not saying that Japan should unilaterally say that there is a territorial dispute. But they should not rule out going to the ICJ under any situation, as frankly the onus is on the Chinese to prove the Cairo Communique is relevant to the Senkakus. I doubt they can.

Anyway, what I am reacting to is your being "flabbergasted" at the fact anyone would consider the ICJ route. After this debate I am no closer to understand why you would be so flabbergasted.

I actually agree with the rest of most your post, however. But the threat to Okinawa and the Senkakus from China will not be legal, but in terms of the use of force or the contestation of effective control. That requires a different type of response.

Troy said...

There's 1.3M Japanese-speaking people on Okinawa.

There's 0 Japanese-speaking people on or around the Senkakus.

The cut-the-baby approach I prefer is letting Japan keep the status quo but eliminate the EEZ.

Perhaps China could throw in the sweetener of promising to honor the hole in Japan's EEZ if Japan drops this insistence on re-colonizing China's continental shelf (or at least the edge of it).

MTC said...

Troy -

You and I will never see eye-to-eye on this issue. My position is that when faced with intididation and threats of violence from a tyranny, one has to stand one's ground, no matter how small that patch of ground many be.