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Big Trouble in the East China Sea: The Legal Obligations of the United States and the Disputed Senkaku Islands

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An international dispute over a small collection of uninhabited islands and rocks may sound charmingly historic. Didn’t the great imperial powers of the 19th century, the British and the French and the Germans, neatly carve up the world with a line on the map and a flag in the sand? Surely any subsequent question of territory, especially over such an inconsequential smattering of islets as the 7 square kilometers known to the Japanese as the Senkaku (and to the Chinese as the Diaoyu, and to the early European cartographers as the Pinnacle Islands, etc.), is merely an exercise in diplomatic rhetoric, and not a harbinger of war? Try telling that to the Japanese and Chinese officials as they adamantly declare their sovereign claims to the islands and sponsor excursions to the disputed zone.

The appeal of the Senkaku Islands is not in the land itself, but in the seabed below. The seabed around the Senkaku Islands is supposedly flush with virgin oil and gas reserves, and, per the law of the sea, exclusive access to the deposits rests with whoever controls the neighboring “exclusive economic zone” of sea encircling the Senkaku Islands.[] With sovereign ownership disputed, the conflict somewhat resembles a mining rights dispute from the days of the Old West. And, like the Old West, this dispute may quickly escalate to conflict. The press across East Asia has focused on the dispute, as anti-Japanese demonstrations intensify in Chinese cities and both sides flex their rhetorical muscle. The United States, for historical, economic, and legal reasons, may be thus forced to intervene before the East China Sea gets hot.

There is an old legal adage that “possession is 9/10ths of the law”. If clear possession could settle the Senkaku Islands dispute, it seems that Japan would be the victor. Although mentioned in Chinese atlases of the Ming Dynasty (China, 1368-1644), the first known human occupation of the Senkaku Islands occurred in 1900, under the supervision of a Japanese fishing enterprise. After World War II the islands, as part of the greater Okinawa Prefecture, entered American custody before being returned to the care of the Japanese government in 1972. The islands are now owned by a private Japanese citizen, and are partially leased to the Japanese government for various communication and scientific purposes.[] The small cluster of islands is uninhabited: except, it seems, by a rampant overpopulation of goats.[]

In an effort to bolster the credibility of Japan’s claim to the islands, both the Japanese national government and the government of Tokyo are competing to outbid each other and purchase the islets. This domestic drama has played out like a bizarre comedy: as the rhetoric from China intensifies, a delegation of Tokyo representatives, in an attempt to outshine their rivals in the national government, sailed to the Senkaku Islands, ostensibly to survey the goat population. However, the national government (which supervises the islands) refused to let the Tokyo party land, so the ship was forced to merely circle the largest island before returning to Okinawa. The Japanese government has reason to be wary of intruders: groups of Chinese protestors have been landing on the islands throughout the summer, planting Chinese flags and denouncing the Japanese “occupation” of rightful Chinese territory.[]

Despite the strong historical precedent, China refuses to accept Japanese sovereignty of the islands. Chinese domestic media refer to the dispute as another example of Japanese imperialism and arrogance, with the Chinese state apparatus points to the Treaty of San Francisco (which ended the Pacific War) as proof that the Senkaku Islands are the rightful territory of China.[] Under that treaty, Japan forfeited all foreign territorial claims outside of the four Home Islands and various minor islands (including Okinawa). This argument would hold water if the disputed land was in Manchuria, New Guinea, or Java. However, as discussed above, the United States went on to occupy the Senkaku Islands as part of the Okinawa concession following the war, and subsequently “returned” the islands to Japan in 1972. It seems that the Chinese argument is backed more by nationalism than historical or legal precedent: with the Chinese economy weakening, and civil unrest spreading, who better than the long-hated Japanese as an appropriate scapegoat? The news of Chinese protestors aggressively demonstrating in front of Japanese consulates and businesses across Chinese is more suitable fodder for the Chinese media than reports on income inequality and corruption, anyways.

Now how does this dispute involve the United States? The United States and Japan are allies[]. As a consequence of the various treaties that concluded World War II, Japan is forbidden from maintaining a proper military (the existence of de facto military units notwithstanding). Thus, the ultimate protection of Japanese territory falls on the United States as a consequence of the Japan-U.S. Security Treaty.[] Simply put, if the Chinese (or any other power) were to invade sovereign Japanese power, the United States would be legally obliged to intervene on the side of Japan. This diplomatic assurance is strengthened by the contemporary reality of American-Japanese relations: the US and Japan are major trading partners, both nations fear a naval-power China, and US military installations in Japan, including the garrisons on Okinawa several hundred miles to the south-east of the Senkaku Islands, would be threatened by any skirmish in the East China Sea. In addition to Japan, US bases in Korea, and American diplomatic commitments to Taiwan, who also claims the Senkaku Islands, would also be threatened by any heightened tension in the region (which, granted, is already high thanks to North Korea and the typical China-Japan-Taiwan-Korea squabbling).

The United States has remarkably attempted to remain neutral in the dispute: reiterating a commitment to the defense of Japan while refusing to publicly support the Japanese claim to the islands. The Chinese state media has rightfully called the US out – how can the United States play dumb on the islands when the US itself controlled the region for twenty-seven years as part of Okinawa?[] A clear answer on American commitment to the defense of Japan may be necessary to defuse the conflict: China may be content acting the part of the mighty dragon when her foes are the relatively weak Korea or Japan, but if the United States were to rhetorically commit itself to the dispute on the side of the Japanese, supported by the legal evidence in favor of Japanese sovereignty of the Senkaku Islands, then the bluster of the dragon may be extinguished, and more rational dialogue could resume.

As outlandish as the Senkaku Islands dispute may seem to be, disagreements over the sovereignty of island territories is a perennial issue in East Asian affairs.[] Both China and Japan have disputes with several of their neighbors over the ownership of various islands and the corresponding fishing and mining rights. Some of these disputes, such as the contested Russo-Japanese Kuril Islands, go back to the tumultuous post-war peace process. Others, like the Spratley Islands dispute in the South China Sea, involve several concerned states and could easily disrupt global trade if the conflict escalates. Border squabbles are as old as the idea of the nation itself, and, as disputes like the Senkaku Islands controversy show, are not going away soon. With deep political, military, and economic ties in the region, the United States should be monitoring the Senkaku Island dispute with a concerned eye.

[] http://www.eia.gov/cabs/East_China_Sea/Full.html

[] http://www.mofa.go.jp/region/asia-paci/senkaku/senkaku.html

[] http://online.wsj.com/article/SB10000872396390443571904577629142328281480.html?mod=googlenews_wsj

[] http://www.chinadaily.com.cn/opinion/2012-09/04/content_15730948.htm

[] http://www.dailymail.co.uk/news/article-2191078/Senkaku-islands-feud-Thousands-Chinese-protesters-streets-overturn-Japanese-cars.html

[] http://www.mofa.go.jp/region/n-america/us/security/guideline2.html

[] http://news.xinhuanet.com/english/world/2012-09/01/c_131821113.htm

[] http://www.theaustralian.com.au/news/world/us-obliged-to-defend-contested-senkaku-islands/story-e6frg6so-1226422910686

[] http://world.time.com/2012/08/20/turf-wars-a-guide-to-east-asias-troubled-waters/#senkaku-islands

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