Both China and Japan have brought the dispute over the Diaoyutai Islands (釣魚台) to the UN, each claiming ownership of the islands based on international law.
While Japan — which refers to them as the Senkaku Islands — claims ownership based on international law, China’s claim is primarily based on “historical fact” and only secondly on international law. This view follows the Chinese Nationalist Party’s (KMT) traditional stance, so the two governments are taking the same stance in their cooperation on claiming the Diaoyutais.
Apart from the Diaoyutais dispute, China also puts what it calls historical fact before international law in the South China Sea dispute and on the issue of unification with Taiwan. The reason Beijing is prioritizing history is that it feels its legal claims to sovereignty are too weak.
The US Congress has repeatedly refused to sign the UN Convention on the Law of the Sea. Although China has signed the convention, it did so unwillingly, because, like the US, it believes it to be an obstacle.
Meng Xiangqing (孟祥青) of China’s National Defense University has said the convention is the result of long-term power struggles over the past few decades, especially among developing countries, and that it is a significant and authoritative milestone marking the beginning of human utilization of maritime resources.
However, he also emphasized that the convention has loopholes. What are these loopholes? According to Meng, some countries can claim a 200 nautical mile (370.4km) continental shelf based on the “proximity principle,” and this complete ignores China’s historical sovereignty.
Why are the 200 nautical mile continental shelf and proximity principle problematic? There are two reasons. First, the Spratly Islands (Nansha Islands, 南沙群島) are between 1,200 and 1,900 nautical miles from the Chinese mainland and next to the territorial waters of Vietnam and the Philippines.
Second, China has traditionally been a continental country. As a result, it showed little interest when Taiwan, Vietnam and the Philippines occupied the Spratly Islands in the 1970s.
When Beijing finally did take action in the late 1980s, it was at a disadvantageous position due to the “pre-emptive principle” of international law. As a consequence, it must go back in history to look for a foundation for its claims.
It is evident that the convention tends to protect developing countries, and more powerful nations use so-called historical sovereignty to bypass it. The Chinese view is similar to that held by those in the US who oppose signing the convention, saying it is unnecessary because Washington traditionally maintains effective maritime peace.
Interestingly, in a bid to assist smaller ASEAN countries, US Secretary of State Hilary Rodham Clinton is currently making a great effort to push Congress to approve the convention.
China and the US’ attitude toward the convention is not well regarded by the international community. The problem is that although the image of the more powerful nations suffers when they ignore international law, there is really nothing anyone can do.
However, Taiwan, a small country, is now taking their cue and, like a great power, claims sovereignty over the Diaoyutais based on Chinese historical sovereignty instead of stressing that the waters around the islands are traditional Taiwanese fishing grounds and that the islands are located on the continental shelf extending from Taiwan’s Datun Mountain (大屯山). That is a very unwise approach.