Participants from China and ASEAN countries hold a meeting on the implementation of the Declaration on the Conduct of the Parties in the South China Sea in Manzhouli, Inner Mongolia, on August 16, 2016 (XINHUA)
The South China Sea arbitration case, which was unilaterally initiated by the Philippines, has become more complicated after the tribunal in The Hague on July 12 made its award.
It is understandable that China doesn't accept or recognize the arbitral tribunal's decision. As early as August 1995, in the Joint Statement Between the People's Republic of China and the Republic of the Philippines Concerning Consultations on the South China Sea and on Other Areas of Cooperation, the two sides agreed that "disputes shall be settled by the countries directly concerned" and that "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes."
In the realm of international relations, it is obligatory for parties involved to abide by the consensus and commitment reached in their joint statements. However, the Philippine Benigno Aquino III administration turned its back on negotiations with China and unilaterally initiated the arbitration in January 2013.
In fact, the territorial sovereignty issue is not subject to the United Nations Convention on the Law of the Sea (UNCLOS) and the maritime delimitation dispute has been excluded from the UNCLOS dispute settlement procedures by China's 2006 optional exceptions declaration pursuant to Article 298 of UNCLOS. Among the five permanent member states of the UN Security Council, Russia, Britain and France have made the similar declaration like China's, and the United States has not ratified the UNCLOS. The essence of the subject-matter of the arbitration initiated by the Philippines is an issue of territorial sovereignty over some islands and reefs of the Nansha Islands.
The arbitration can't help solve the South China Sea dispute in any capacity. In fact, as Huang Wei, an associate professor at China's Wuhan University, pointed out, the arbitration "sows the seeds for a new conflict."
There are a lot of island countries in the Pacific and Indian Oceans, such as the Maldives, which are small in land territory. If some of their islands were "judged" to be reefs and rocks according to the arbitral tribunal's award on the Nansha Islands, these countries couldn't claim 200-nautical mile exclusive economic zones and continental shelf. Such a verdict would seriously affect the survival and development of these countries. Therefore, the arbitral tribunal's decision, which defies historical facts and international law, will not be pervasively recognized.
This article tries to clarify the facts of Japan's involvement in the South China Sea from the perspective of history and international law, which I believe will be helpful for us in understanding the nature of the issue.
As a Chinese professor who has been teaching at a Japanese university for years, I am always interested in studying the history of Japan's involvement in the South China Sea. Up till now, I have unearthed several primary sources, including some new discoveries, from Japan's historical archives.
After the end of the World War I, both France and Japan pursued territorial expansion in Southeast Asia. The Imperial Japanese Navy proposed the occupation of China's South China Sea Islands, falsely claiming that Japan was the first to discover and develop the South China Sea Islands, in much the same way it had previously done to invade China's Diaoyu Island in 1895. However, Japan's Foreign Ministry found it hard to provide evidences after carefully studying a collection of historical materials. Then it decided to recognize Chinese sovereignty over the islands and opposed France's territorial claim of them, as preparation for Japanese aggression in the South China Sea. (In 1933, France invaded some islands and reefs from the Nansha Islands and declared their "occupation" in an announcement published in Journal Officiel.)
In reference materials used at the 56th Imperial Diet in 1929, kept in the Diplomatic Archives of the Ministry of Foreign Affairs of Japan, is a document entitled "the matter about Japanese collected guano on the Xisha Islands." The document stated that "the Xisha Islands are located around 140 nautical miles to the southeast of China's Hainan Island, 16 or 17 degrees north latitude, in the South China Sea. The territory consists of over 20 islands and most of them are coral reefs. According to Chinese reports, the islands are rich in guano, fish and shellfish resources. There are no human inhabitants on the islands, except several hundreds of fishermen who temporarily stay on the islands during the fishing season. In 1921, a Chinese man called He Ruinian established a company to develop the islands, offering support for the Sun Yat-sen-led revolution in China. In return, the Chinese Government allowed him to develop the islands. Another Chinese, Liang Guozhi, on behalf of the company's investor, signed the business development contract with He. In fact, company funds were provided by Japanese merchant Hirata Maiji, who lived in the city of Kaohsiung on Taiwan Island."
This historical record proves that Japan attempted to occupy the Xisha Islands, but was aware of their position under Chinese jurisdiction. Therefore, Japan had to use a Chinese company to develop the Xisha Islands, proving that it recognized China's sovereignty over the Xisha Islands at the time.
In 1933, France invaded some islands and reefs of the Nansha Islands, creating the "Incident of the Nine Islets". On July 21 of that year, the newspaper Yomiuri Shinbun published an article titled "France occupied islands, but its military strength is limited, a report from Ambassador Nagaoka." The story disclosed that after France declared its occupation of the Nansha Islands, Nagaoka, the Japanese Ambassador to France, compiled a report for Japan's Foreign Ministry. Nagaoka reported that when the Japanese came to Zhongye Dao (Thitu Island) to explore silver mines in 1925, they found Chinese already living on the island. And on Shuangzi Qunjiao (the Two Islands) - another island occupied by the French--Chinese inhabitants who came from Hainan Island had been living there.
In another document kept in the Diplomatic Archives, concerning the geographic relations of countries, there are statistics made by Yakichiro Suma, the then Japanese Consul-General to Guangzhou, on the land area of China's Guangdong Province, on October 21, 1930. Yakichiro Suma listed the land areas of all 94 counties of Guangdong Province, especially indicating the areas of Guangzhou Bay, Hong Kong, Macau and the Xisha Islands.
In the early summer of 1938, French Indo-China authorities occupied the Xisha Islands. I found two Japanese newspapers published in that period. According to these sources, Japan fully supported China's sovereignty over the Xisha Islands in diplomatic negotiations with France.
One is a morning paper of Yomiuri Shinbun published on July 8, 1938. The front page headline was "Japan sends a diplomatic letter to France, expressing serious concern and not admitting French occupation of the Xisha Islands." The story reported that on July 4 the French ambassador to Japan paid a visit to the Japanese Vice Foreign Minister, informing him orally that French Indo-China authorities had dispatched executive officers to the Xisha Islands and installed buoys and radio devices on the islands. The Japanese Foreign Ministry summoned French ambassador to Japan on July 7 and the vice foreign minister sent a diplomatic note to the French ambassador, urging France to withdraw from the Xisha Islands. In the diplomatic note, Japan claimed that France went against the commitment it made to Japan in 1937--France promised that it would not attempt to occupy the Xisha Islands in the territorial dispute with China--therefore, Japan could not accept France's occupation of the Xisha Islands. Japan declared that France's actions "would not change Japan's consistent stance on the dispute and Japan would only negotiate with China on the Xisha Islands."
The other is an evening paper of Yomiuri Shinbun published on the same day. A headline on the front page read "Japan protests against France, the Xisha Islands are apparently China's territory." The story disclosed more details about Japan summoning the French ambassador on the previous day. As it reported, at four pm on July 7, Japan's Vice Foreign Minister summoned the French ambassador. In the meeting, the Japanese official said that the islands [the Xisha Islands] were clearly China's territory. The news report also quoted evidence provided by the Japanese Government. One was a conversation recorded from 1920 in which a Japanese company asked a French Navy secretary about the jurisdiction of the Xisha Islands. He answered that the French Navy had no record to identify that the Xisha Islands belong to France. The second piece of evidence showed that a chief officer in charge of civil affairs in the Guangdong Provincial Government once issued a public notice in 1921, declaring that the Xisha Islands were under jurisdiction of the lower level department in Hainan Island. At that time, no one ever expressed objection to this.
In 1939, prior to Japan's aggression toward the Xisha Islands, then Japanese Foreign Minister Hachiro Arita suggested in a report on the establishment of a consulate in Haikou, China's Hainan Island, adding that the consular services of the Haikou Consulate should cover Hainan Island, the Xisha Islands, Weizhou Island and Sheyang Island in China's Guangdong Province.
At that time, the Japanese Government did not recognize China's sovereignty over the Xisha and Nansha Islands because of kindness. As a matter of fact, Japan failed to find a justifiable excuse to invade the islands or deny China's sovereignty. So it had to recognize China's sovereignty first so as to oppose French occupation. As an extension of the Sino-Japanese war, Japan eventually invaded the Xisha and Nansha Islands. After Japan's unconditional surrender in 1945, China restored sovereignty over the two islands.
The Japanese Government has long recognizes China's sovereignty over the Xisha Islands since the end of WW II. As the white paper concerning the South China Sea issue released by the State Council Information Office of China on July 13 said, in 1952, the Japanese Government officially stated that it had renounced all rights, titles, and claims to Taiwan and Penghu, as well as Nansha Islands and Xisha Islands. Xisha Islands and Nansha Islands, which Japan renounced under the San Francisco Peace Treaty, together with Dongsha Islands and Zhongsha Islands, were all marked as China' territory on the Map of Southeast Asia of The Standard World Atlas recommended by the then Japanese Foreign Minister Katsuo Okazaki with his signature.
In Article 2 of the "Treaty of Peace" reached by Taiwan authorities and Japan in April, 1952, Japan renounced all rights, titles, and claims to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands (the Nansha Islands) and the Paracel Islands (the Xisha Islands).
During this period, Japan only recognized the Taiwan authorities to represent China. In September, 1972, Japan and the People's Republic of China (PRC) normalized their diplomatic relations. The then Japanese Foreign Minister Ohira Masayoshi declared the "Treaty of Peace" between Japan and the Taiwan authorities was no longer in force and the rights stipulated in the treaty were also transferred from Taiwanese authorities to the PRC.
I also found many post-war publications in which Japanese scholars and publishers recognize China's nine-dash line in the South China Sea. For example, Encyclopedia Nipponica published by Shogakukan in 1987 marks China's dotted line in the South China Sea, volume 15.
From the mid-1950s to the mid-1990s, the annual China Yearbook (it was also renamed New China Yearbook for some time), written by Japanese scholars who studied China, showed Chinese territory extending south to Zengmu Ansha (James Shoal) and the nine-dash line map can also be found on a number of issues of the yearbook.
In 1988, China announced that Hainan Province would have jurisdiction over Xisha Islands, Nansha Islands and Zhongsha Islands and the relevant maritime areas, among others. In China Yearbook 1989, a map of Hainan's jurisdiction is displayed, including islands and reefs within the nine-dash line.
The principle of "estoppel"
The pervasive rules in international relations were formed in history through diplomatic negotiations, statements and commitments. Today's international rules come from historical experiences, so discussions on the South China Sea issue must be based on history.
There is an important principle in international law, "estoppel," which means that a party is precluded from denying the truth of a statement of facts it has previously asserted.
The Permanent Court of International Justice first applied the principle of estoppel in 1933 to settle a territorial dispute over Eastern Greenland between Denmark and Norway. Norway recognized Danish sovereignty over Greenland before 1930 in a number of statements and agreements. However, it claimed that eastern areas of Greenland were terra nullius and occupied the areas in 1931. The international court investigated these statements and agreements and ruled Norway's occupation of Eastern Greenland null and void. Today, the principle of estoppel has become a general rule in international law. Using the principle to restrain the behaviors of a state actor helps keep national behavior consistent and safeguards the international order.
To analyze the Japanese Government's current foreign policy on the South China Sea issue, we must take a look back at Japan's historical behavior on the South China Sea. Japan has recognized China's sovereignty over the South China Sea islands. But why is the Japanese Government making irresponsible remarks on China's actions on its own territory? If Japan meddles in the South China Sea issue today and goes against what it had promised over 70 years ago, the Chinese people will be reasonably suspicious of its ulterior motives. There have been many problems in China-Japan relations, which we should take care to resolve.
The author is a professor at Toyo Gakuen University, Japan
Copyedited by Dominic James Madar
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