Sun, Jan 06, 2013 page8

• Evidence to back Japan’s claims

  • By Chiang Huang-chih 姜皇池
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  According to a report from Japanese news agency Jiji Press, a Chinese diplomatic document from 1950 shows that, at the time, China did not consider the Diaoyutai Islands (釣魚台), known as the Senkaku Islands in Japan, to be Chinese territory.

  Japanese politician Yoshihide Suga thinks the document formed the basis for discussions between 63 Chinese diplomats and academics at the time and that it is “a very important find” for Japan. And not only that: The report also mentions that according to the interpretation of Yasuhiro Matsuda, a professor in the Institute for Advanced Studies on Asia at the University of Tokyo, the document proves that Chinese officials in 1950 considered the Diaoyutais to be part of the Ryukyu Islands.

  I do not know if such a document really exists, and I have no way of knowing whether it is a forgery.

  However, even if it does exist, and even if it is real, such a historical document could have a certain validity and investigative value from an international law perspective. Legally speaking, though, it would have almost no binding effect.

  First, documents for internal discussion are only drafts that are rarely made public.

  The only purpose of this document was to discuss the handling of the Diaoyutais issue, and it was an internal compilation of opinions within the Chinese government.

  It is highly questionable whether a draft document used for internal discussion which was never made public has any binding legal power under international law.

  Second, even if Japan were to use this document to demand that China be “estopped” — meaning to be legally barred from alleging or denying something because of one’s own previous actions or words to the contrary — from claiming that the Diaoyutais belong to China, it would not be a very persuasive argument.

  Leaving aside the issue of how the International Court of Justice and experts of international law differentiate estoppel from acquiescence, there is relatively little disagreement that successfully demanding that an estoppel be imposed requires that the country making the demand believes the statement of the counterpart to be true, and based on this belief does or does not take some specific action.

  If the country making the statement later denies the truth of that statement, then the country that believed the statement to be true must suffer negative consequences or sustain losses from that denial. If that occurs, the country making the statement may not deny its legal responsibilities following from that statement.

  However, this document has never been made public, and that raises the question of how Japan, unaware of the document’s existence, would be able to claim that it believed it to be true, or how it would be able to claim that it, as a result, had or had not taken some specific action.

  It would thus be preposterous to claim that it had caused Japan to suffer negative consequences or sustained losses.

  The fact is that in territorial disputes strongly influenced by nationalism, it does not matter how vulnerable this kind of evidence is to scrutiny or how preposterous it is. What counts is that it is convincing to oneself and that it makes oneself believe that one has sovereignty over that particular piece of land.

  It is more likely that the Japanese government is making such a big deal of this because it wants to prove to the Japanese public that the Diaoyutai Islands are part of Japanese territory rather than because it feels that it has revealed important new evidence.

  Japanese academic circles have always been known for their rigor, so if the report is correct, then it is very surprising to see that even experts, when driven by strong nationalism, can claim that such a document proves that China thinks the Diaoyutais are part of the Ryukyu Islands.

  It is disturbing to see that even expertise and reason are so weak in the face of nationalism.

  If this is the case with Japanese academics, one cannot help but wonder what the situation is like in Taiwan.

  Looking at the “efforts” of Japanese academia throughout this conflict, one cannot help but feel a need for vigilance when seeing Japanese making such an effort in their search for data. After all, where there is a will, there is a way.

  In Taiwan, integrated legal and political studies into the sovereignty of the Diaoyutai Islands seems to have come to a stop after the National Security Bureau commissioned a study in 1972.

  Looking at two, more detailed, sovereignty statements issued by the Ministry of Foreign Affairs last year, a briefing about the Diaoyutai Islands conflict from the Public Diplomacy Coordination Council and a statement about the Republic of China’s position and propositions regarding sovereignty of the Diaoyutai Islands from the Department of Treaty and Legal Affairs reveal that all legal arguments are repetitions of the old arguments from the 1970s.

  Apart from including the recent dispute, they include no new evidence. It is not very strange, then, that some people say with resignation that Taiwan’s legal studies of the Diaoyutai Islands sovereignty issue remain stuck in the 1970s.

  Faced with this bizarre situation, it seems necessary for agencies to urgently gather domestic and international experts and release data to facilitate data gathering in order for them to conduct thorough research.

  If that is not done, both Taiwan’s actions and its legal arguments during the ongoing conflict over the Diaoyutai Islands will lack any force.

  Chiang Huang-chih is a professor of law at National Taiwan University.

  Translated by Perry Svensson
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