Japan’s two major legal arguments are that in 1895 the Diaoyutais were terra nullius, or land not subject to the sovereignty of any state, so they could be occupied, and that after Japan annexed them, no foreign power objected. History shows both to be invalid.
Chinese first discovered, named and mapped the islands, which were part of the coastal defense system in the Ming and Qing dynasties. Moreover, official Qing gazetteers prove that the Diaoyutais were under the jurisdiction of the Kavalan Office (now Yilan County) of Taiwan prefecture, and thus a part of Taiwan, definitely not terra nullius.
As early as 1885 Japan had territorial designs on the archipelago, but postponed any action because of fears that the Qing court would discover its plans. In 1895, taking advantage of the First Sino-Japanese War, Japan passed a decision to annex the islands in a secret cabinet meeting, but contrary to normal practice, did not officially announce the move, which naturally had no legal force on the Qing administration.
Since the Qing government considered the Diaoyutais subsidiary to Taiwan, when Taiwan was ceded to Japan in the Treaty of Shimonoseki, the archipelago was naturally included, as the wording regarding what territory was relinquished shows: “the island of Formosa [Taiwan], together with all the islands appertaining or belonging to the said Island of Formosa.”
While Taiwan was under Japanese rule [1895-1945], the Qing court of course did not object to Japan’s use of the Diaoyutais; by the same token, the ROC, which succeeded the Qing dynasty, did not protest, nor would any other country have had occasion to.
Because the Diaoyutais belong to Taiwan, the confirmation of Taiwan as ROC territory in the Cairo Declaration, Potsdam Proclamation, Japan’s Instrument of Surrender, San Francisco Peace Treaty and Peace Treaty between the ROC and Japan means that the islands should have reverted to ROC sovereignty along with Taiwan.
Although the Diaoyutais were put under U.S. trusteeship following World War II, and in 1972 Washington turned their administration over to Tokyo, trusteeship does not influence sovereignty. What is more, the U.S. officially announced that transfer of administrative rights to Japan did not affect claims to sovereignty.
From the perspective of international law, the Diaoyutai Archipelago, Taiwan and the ROC are intimately related, so to treat the Diaoyutais as separate from Taiwan, or declare that Taiwan does not belong to the ROC, would not be conducive to the peaceful resolution of the Diaoyutais dispute.
The Diaoyutais are part of the same island chain as Huaping, Mianhua and Pengjia islets to the northeast of Taiwan, and the waters surrounding them are traditional fishing grounds for Taiwan fishermen. They fall under the jurisdiction of Toucheng Township, Yilan County. Geographically, geologically, historically and administratively they are an inherent part of Taiwan and the ROC.
Chen Chun-i is a professor of diplomacy and law at National Chengchi University.
These views are the author’s and not necessarily those of The China Times.
Copyright © Chen Chun-i.