Diaoyutai Sovereignty: The ROC's Legal Case

Diaoyutai Sovereignty: The ROC's Legal Case
China Times editorial (Taipei, Taiwan, ROC)
A Translation
September 24, 2012

Summary: The Diaoyutai Islands belong to China. Historically they are part of Taiwan. History attests to this. After World War II, the United States turned over administration of the Diaoyutai Islands, along with the Ryukyus, to Japan. This complicates the issue, but does not change it. Who administers a territory has no bearing on its sovereignty. The sovereignty of the islands remains the same. Japan is currently unwilling to relinquish administrative control. But it cannot ignore the Republic of China's sovereignty. Still less can it assume that administrative control can be magically transformed into territorial sovereignty. The ROC must continue to proclaim its sovereignty to avoid being taken advantage of.

Full Text below:

Storm clouds are gathering over the Diaoyutai Islands. For several days the two sides of the Taiwan Strait and Japan have been taking action. The situation continues to heat up.

Yesterday, Diaoyutai Islands Defense Movement activists staged a protest march through the streets of Taipei. Ilan County fishermen rallied nearly 100 fishing boats. They intend to go out to sea today from Ao Yu Harbor in southern Yilan County. They will sail into Diaoyutai Island waters to proclaim their fishing rights. Last week, Hanhai Engineering Company vessels entered Diaoyutai Island waters. They informed Japan they intend to defend ROC sovereignty over Diaoyutai. They were escorted by ROC Coast Guard vessels during their journey. They circled the islands for over two hours before turning back.

Across the Strait, the Beijing authorities, in accordance with rules prescribed by the Law of the Sea Convention, proclaimed the territorial limits of the Diaoyutai Islands. They submitted diagrams of the 200 nautical mile continental shelf in the East China Sea to the United Nations Continental Shelf Commission. The State Oceanic Administration and Ministry of Civil Affairs made public their standard names and location diagrams for the Diaoyutai Islands and their surrounding waters. In Japan, Yoshihiko Noda was reelected leader of the Democratic Party. He will continue to serve as Prime Minister. He declared that he would attend the United Nations General Assembly, and deliver a speech laying out Japan's position on Diaoyutai. Meanwhile news emerged that Beijing and Tokyo were engaged in military deployments and military preparations. Japan and the US Navy recently held military exercises in the U.S. territory of Guam. They claimed that the exercises targeted no one in particular. But their intentions were abundantly clear.

The Diaoyutai Islands belong to China. Historically they are part of Taiwan. History attests to this. After World War II, the United States turned over administration of the Diaoyutai Islands, along with the Ryukyus, to Japan. This complicates the issue, but does not change it. Who administers a territory has no bearing on its sovereignty. The sovereignty of the islands remains the same. Japan is currently unwilling to relinquish administrative control. But it cannot ignore the Republic of China's sovereignty. Still less can it assume that administrative control can be magically transformed into territorial sovereignty. The ROC must continue to proclaim its sovereignty to avoid being taken advantage of.

We must proclaim our sovereignty over Diaoyutai. But we must beware of at least two things. One. We must beware of alarming Japan, which currently has administrative control. We must avoid changing the status quo. We must avoid widening the conflict. We must prevent it from getting out of hand. Two. We must continually argue the issue of legal rights. We must seek appropriate redress. We must ensure that our legal claims to the Diaoyutai Islands are heard.

First consider the practical side. We must maintain the status quo and avoid worsening the situation. Tensions over the Diaoyutai Islands have sharply increased, because Japan allegedly "nationalized" the islands. This was a devious strategy to change the status quo. Japan's Prime Minister has previously made the same claims. But his current election strategy has provoked strong reactions from both sides of the Taiwan Strait. Anti-Japanese sentiment on the Mainland is especially intense. Economic sanctions may be next. This was something the Japanese did not expect. But the Japanese apparently have no intention of stopping what they are doing. They have no intention of admitting they misjudged the situation. They are pretending to take one step back. In fact they are taking two steps forward. The geographic location of the Diaoyutai Islands is critical. It affects more than the ownership of the islands and the development of its economic resources, including fish and fossil fuels. It affects the demarcation of our territorial boundaries and the boundaries of our territorial waters economic region. It even affects military strategy. For example, will Beijing be able to project power into the Pacific? The Diaoyutai Islands issue must not be treated lightly, as merely a right wing campaign issue within Japan. Consider the Republic of China's perspective. The Diaoyutai Islands are part of Taiwan. We cannot remain silent. We cannot sit like a fly on the wall. Especially since Beijing and Tokyo have squared off against each other, both politically and militarily. The US also has strategic considerations. The ROC must avoid military unrest. We must prevent the Taiwan Region, which is closest to Diaoyutai, from being drawn into unnecessary military conflict. We must not undermine peace and the existing balance of power.

President Ma has announced the ROC government's position. The ROC will safeguard its sovereignty through peaceful dialogue. This is commendable. But the Ma administration must give greater importance to safeguarding the sovereignty of the Diaoyutai Islands through legal means. Since President Ma Ying-jeou assumed office, ROC international law scholars have been hard at work. They have been making long-term, in-depth studies of the legal basis of our sovereignty over the Diaoyutai Islands. We do not lack talent. These scholars have dedicated their lives to these goals. We do not lack people with lofty ideals. The administration should establish a work group. It should systematically compile relevant information. When the time is right, it will be able to argue the legal case. President Ma has already declared that the matter should be resolved through international negotiations, mediation, arbitration, or even international court proceedings. This is the correct path from an international law perspective. The Mainland has also shown an active interest in advancing the legal arguments. Japan, on the other hand, merely asserts that no sovereignty dispute exists. This amounts to lying through its teeth. It also reveals a guilty conscience. We must make ourselves heard on the international stage. We know our case is unassailable. We should not be afraid to argue our case in the court of world opinion. In fact, no international law argument on Diaoyutai sovereignty, by any party, can refute the Republic of China's historical claims. We hope to resolve the issue in a peaceful manner. This is why we must constantly make ourselves heard internationally. As the saying goes, "God looks after those who look after themselves."

釣魚台歸屬 法理論證台灣不缺席
    2012-09-24
    中國時報

　釣魚台問題風雲變幻，連日以來，海峽兩岸以及日本方面都有動作，情勢持續升溫。

　台北街頭昨天出現保釣遊行；宜蘭漁業界人士集結近百艘漁船，預計今天從宜蘭縣南方澳漁港出海，前往釣魚台海域宣示漁權。上周則有大瀚海事工程公司的船隻進入釣魚台海域，向日本宣示維護我國對釣魚台的主權，此行並有海巡署船艦隨行保護，繞行兩個小時有餘始行返航，完成宣示保釣的任務。

　海峽對岸則先是依照海洋法公約規定的程序，宣布釣島領海基線，並向聯合國大陸棚界限委員會提交東海部分海域二百浬大陸棚劃界案，嗣又由其國家海洋局及民政部就釣魚台等島嶼及其周邊海域之部分地理實體，公布其標準名稱及位置示意圖。日本方面則是甫行當選民主黨黨魁而繼續擔任首相的野田佳彥，宣布將出席聯合國大會，準備以演說表達日本對釣魚台列嶼的主張。於此同時，也有消息傳出對岸與日本均在從事相關軍事部署，從事軍事準備，日本甚至與美國關島海軍進行奪島戰軍事演習，雖然宣稱演習並無針對性，但是用意如揭。

　釣魚台屬於我國，歷史上與台灣的關係也最為密切，史乘斑斑可考。美國於二次戰後將之與琉球的管領地位一併交由日本接手，雖然增加了問題的複雜性，但是管理地位的易手，並不能動搖主權的歸屬。目前日本雖然事實仍不放棄其管領的意圖，也不能排除我國的主權主張，更不能想當然耳地從管領者轉變為主權者。我國必須不斷地公開宣示主權，才能免於為人所乘。

　爭取釣魚台的權利主張，至少有兩個面向須要小心謹慎，步步為營。一個面向是在事實狀態應該避免管領者處心積慮改變現狀的企圖，當然也要避免衝突擴大，以致於不可收拾；另一個面向則是法理上的權利主張，必須不斷地據理力爭，而且尋求適當的程序，確保法理主張可以有效地發揮其維護我國在釣魚台上固有權利的作用。

　先談事實層面，也就是現狀的維持與避免事態的惡化之道。最近釣魚台情勢陡然升高，其實是緣於日本企圖將釣魚台國有化的行動而起，這正是一種改變現狀以謀不軌的策略。日相雖然曾經公開表示，此項因為選舉而採取的策略措施，引起海峽兩岸的強烈反應，特別是對岸反日情緒高張而有加施經濟制裁的趨勢，為日方始料所未及，但是日方顯然無意停止其企圖，承認錯估情勢，實不無表面上退一步、實質上進兩步的欺敵動作之嫌。由於釣魚台的地理位置，不但涉及經濟資源（包括漁捕與石油開採）的歸屬與開發利益，也直接關係到領土及領海經濟區域的劃界，更還有軍事戰略上北京能否跨向太平洋的形勢位置考量。釣魚台的問題絕不能僅以日本國內右翼勢力的選舉姿態視之而掉以輕心；對於我國而言，釣魚台屬於台灣，自不能自甘緘默而僅作壁上之觀，尤其因為北京與東京進入政治及軍事相對峙的局面背後，還有美國的戰略布局考量，我國更必須設法避免此一問題引起軍事不安，而使得距離釣魚台最近的台灣陷入不必要的國防緊張狀態，破壞既有的勢力平衡與和平情勢。

　因此，我國政府由馬總統宣示以和平對話為維護主權的主軸立場，甚為合宜，但仍應重視更重要的面向，也就是從法理上循可行之管道提出維護釣島主權的主張。我國國際法學者們，從馬英九總統以降，長期深入研究釣魚台主權歸屬法理基礎者，大有人在，而且不乏以之為畢生致力目標的有志之士，應該有一個群策群力的平台，有系統地整理相關資料，以便於經營適當的場合力爭法理。前此馬總統已然表明應循國際談判、調解、仲裁乃至於國際法院訴訟做為解決糾紛的途徑，此點原是國際法上的正道；對岸最近也有意積極從法理進行對話，而日本方面，卻謂主權在彼而謂爭端並不存在，這不僅是睜眼瞎話，而且不能免於情虛之譏。我方應該在國際上發聲，自認理直者，都不應懼怕在國際法理舞台上據理力爭，事實上，凡是要在國際法上論證釣魚台歸屬，不論是誰，都不可能抹殺中華民國在此一問題上的關鍵歷史身分與地位，也不可能否定我們的話語。以和平的方式解決爭端，正是我們不斷在國際上發聲所必須堅持的基調。好自為之，必然大有可為！