Sunday, February 17, 2013

Japan–China relations: a grand bargain over the Senkaku (Diaoyu) islands

The downward spiral in Sino–Japanese relations that was unleashed by the Noda government’s purchase last September of three of five uninhabited islands of the Senkaku chain shows no sign of abating.
This issue will loom over Japanese Prime Minister Abe’s upcoming visit to Washington later this week.
The frequency and duration of maritime assertions by Chinese law enforcement vessels, which seek to deny Tokyo full administrative control of the territorial waters abutting the Senkakus, is on the rise. An aerial element to such incursions was introduced in December. Patrols by US airborne warning and control system aircraft in the airspace along the Japan–China median line since early-January have added a complex three-cornered dynamic to the dispute. Beijing is channelling its annoyance at America’s military entanglement into provocative acts against Japanese forces, including the recent training of fire-control radar on a MSDF warship and a helicopter in the East China Sea, an action which China has denied. The effect has been to widen the geographic area of conflict as well as ensnare the two navies that had hitherto kept at arm’s length from the tensions.
Politically, Beijing seeks a long-term bilateral understanding that shelves the question of ultimate sovereignty of the Senkakus to an indefinite future. And with good reason.A fourth island is already government-owned, and a fifth island of the five-islet Senkakus chain, Kubajima, remains under private lease to the government, as was the case, until recently, with the three central government-purchased islands. Rather than let yet another dangerously repetitive farce play out at the time of expiration or buy-out of that lease —held incidentally by a relative of the ex-owner of the three islands — Beijing appears prepared to force the issue of the islands’ future dispensation at this time.
That a dispute exists with regard to the status of the Senkakus should be obvious to all but the unbending. Japan implicitly admits too that the islands constitute something less than fully undisputed territory. Japanese citizens are denied permission to land on the islands and are punishable under the Minor Offenses Act for violations. Ishigaki city officials — the supervisory municipal authority — are prohibited from conducting property tax assessments on the islets and no Ishigaki city mayor has ever made an official visit. Chinese, and increasingly Taiwanese, fishing vessels are tacitly permitted to ply their trade up until the islands’ contiguous water limit of 24 nautical miles, even as they are debarred from encroaching within 52 nautical miles of the regular Japanese coastline in the East China Sea as per the 1997 Japan–China Fisheries Agreement.
In the eyes of international law, neither party has a water-tight case. Japan can confidently assert that, in displaying peaceful and continuous exercise of jurisdiction, it has assiduously protected its claim of evidence of title. Besides, it may be reasonably sure that no international court will have the gumption to strip a sovereign of (disputed) territory that it has administered from a point of time that predates the court’s establishment itself. Set against this argument is the fraudulent basis of Tokyo’s incorporation of the islands as ‘unclaimed territory’ despite clear knowledge to the contrary, as well as the illegal basis of its formalisation, which was done in secrecy and without public notice. An international court may well hold that an incorporation conducted in the de facto shadow of imperial war victory was exactly that, de jure. That no international case law precedent exists with regard to a territorial dispute between a state and its erstwhile imperial master adds to the unpredictability of the verdict. China’s inability to press, and thereby protect, its claim during the crucial early-1950s to late-1960s period must likewise be seen as a grievous failing.
Whatever the rights or wrongs of the dispute, there are clear reasons for restraint, moderation and seeking practical ways of cooperation to achieve win–win outcomes on both sides. Acknowledging the obvious — that a dispute exists with regard to the final sovereignty of the Senkakus — by way of a broad principles-based agreement, which exchanges such admission in return for China’s renunciation of force to alter the status quo, ought to be a reasonable starting point for statesmanship.
What might be the elements of such an agreement?
Specifically, Tokyo would acknowledge — without prejudice to its legal claim — that there is in fact a dispute and, keeping this in mind, resolve to maintain the existing status quo on the islands indeterminately. In equal measure, Beijing would express its appreciation for this acknowledgement, resolve not to disturb the status quo or peace and stability in the area surrounding the islands and, to the extent that the status quo remains undisturbed, renounce the use of force to alter the disposition of administrative control of the islands.
As a period of calm takes hold in the waters abutting the Senkakus, implementing mechanisms would be derived thereafter. Chinese law enforcement, both maritime and aerial, would cease to assert their presence in the disputed waters and would operationally revert to the status quo ante as existed prior to the purchase of the three islands. No scope for joint administration of the Senkakus would be admitted. Correspondingly, Japan would commit to the absolute maintenance of the status quo on the islands and any-and-all measures that reinforce its effective control — such as conducting lighthouse repairs, pier and shelter construction and stationing personnel on the islands — would need to be informally vetted in advance via consultations with the Chinese government. With the passage of time, a maritime communication mechanism/hotline can also be envisaged. It would need to follow, not precede, political quiet in the surrounding area and in the larger Sino–Japanese diplomatic relationship.
These elements of a settlement are not too much to hope for. The East China Sea has been an arena of peace and cooperation in the post-normalisation era and bilateral, principles-based arrangements have been concluded in the areas of fisheries, marine scientific research and joint development of oil and gas resources. China’s and Japan’s friends and alliance partners have every incentive to quietly encourage a similar outcome on the vexed Senkaku/Diaoyu dispute.
 Sourabh Gupta is Senior Research Associate at Samuels International Associates, Washington, DC. 

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