PANG Shufen

Abstract: From 13 to 14 October 2018, in Xiamen, the Cross-Strait Symposium on Legal Status of the Diaoyu Islands was held by Xiamen University South China Sea Institute and Center for Oceans Law and the China Seas, in collaboration with Shanghai Institute for International Strategic Studies, Mingyue Academy of Classical Learning, and World Chinese Alliance for Defending Diaoyu Islands. More than 60 experts and scholars from Chinese mainland, Taiwan and Hong Kong attended the Symposium. The themes and issues presented at the Symposium mainly include: (a) the jurisprudential fallacy underlying the determination of the legal status of some features involved in the South China Sea Arbitration; (b) evidence supporting China’s claim of sovereignty over the Diaoyu Island and its affiliated islands (hereinafter called “the Diaoyu Islands”collectively); (c) the legal status of Diaoyu Islands and maritime delimitation in the East China Sea; and (d) the possible solutions to the Diaoyu Islands dispute.By debating all the aforesaid issues, the Symposium laid the foundation for a comprehensive understanding of the history, geography, and legal status of the Diaoyu Islands.

Key Words: Cross-strait; Diaoyu Islands; Feature; Legal status

In order to expound on the legal status of the Diaoyu Island and its affiliated islands (hereinafter called “the Diaoyu Islands” collectively), in collaboration with the Shanghai Institute for International Strategic Studies (SIISS), Mingyue Academy of Classical Learning, and World Chinese Alliance for Defending Diaoyu Islands,Xiamen University South China Sea Institute and Center for Oceans Law and the China Seas held the “Cross-Strait Symposium on Legal Status of the Diaoyu Islands” from 13 to 14 October 2018 in Xiamen, Fujian. Prof. FU Kuen-chen of Xiamen University South China Sea Institute gave an opening address to the symposium. In his address, he briefly introduced the purpose and agenda of the symposium, and warmly invited all the attending experts and scholars to share their knowledge of the history, geology and legal status of the Diaoyu Islands. Affirming the significance of the symposium, Prof. YANG Bin, Vice Principal of Xiamen University, shared his regard for the important contributions Xiamen University South China Sea Institute has made towards the development of the law of the sea in China as well as the establishment of the study of such law as a discipline. Prof.CHEN Peiyao, who is the former president of SIISS, continued by stating that the dispute concerning the Diaoyu Islands should be settled by taking into account all factors from the perspectives of law and international relations. Prof. SHAW Yuming, who is the former director of Institute of International Relations, Taiwan Chengchi University, concluded by recommending that similar symposia should be held on a regular basis, since the settlement of the Diaoyu Islands dispute requires continuous joint efforts by outstanding talents in the field of international law.

The themes and issues presented at the Symposium mainly include: (a) the jurisprudential fallacy underlying the determination of the legal status of some features involved in the South China Sea Arbitration; (b) evidence supporting China’s claim of sovereignty over the Diaoyu Islands; (c) the legal status of the Diaoyu Islands and maritime delimitation in the East China Sea; and (d) the possible solutions to the Diaoyu Islands dispute.

I. Jurisprudential Fallacy Underlying the Determination of the Legal Status of Some Features Involved in the South China Sea Arbitration

A. The Arbitral Tribunal’s Misinterpretation and Misapplication of Article 121(3)

Prof. PAN Junwu, who is the Deputy Dean of the School of the International Law, Northwest University of Political Science and Law (NWUPL), highlighted in his presentation that the determination of the legal status of the features involved in the South China Sea Arbitration (Philippines v. China) concerns, primarily, the interpretation and application of Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS), in particular that of Paragraph 3. According to Prof.PAN, the Arbitral Tribunal constituted for the case (hereinafter “the Tribunal”), in its Award, focused on some key terms of the article and interpreted them arbitrarily,jumping into the conclusion that all features of the Nansha Islands should be only considered as “rocks” under Article 121(3), and thus shall have no continental shelf or exclusive economic zone. In consideration of its jurisdiction conferred on by itself, the Tribunal’s interpretation and application of the aforesaid article of UNCLOS seem plausible. Its decision in this regard was even welcomed by a group of Western scholars and, a few of them, also insisted for China, as a lawabiding State, to accept the Tribunal’s decision on the matter.

However, Prof. PAN argued that the support given to the Award rendered by the Tribunal in the South China Sea Arbitration is grossly unfair and even a bit ridiculous. As a matter of fact, the Tribunal committed serious errors, particularly in the interpretation and application of Article 121(3) with the effect of significantly departing from the relevant provisions of the UNCLOS and the Vienna Convention on the Law of Treaties (VCLT). Furthermore, it misinterpreted the logic underpinning Article 121(3) and Article 121(1)～(2), and modified the provisions of Article 121(3) beyond its authority by ignoring some important facts and violating the treaty interpretation principles established by VCLT. Consequently, the Tribunal came to an erroneous conclusion about the legal status of some features involved in the arbitration.

B. Logical Inconsistencies and Fallacies in the Determination of the Legal Status of Some Features Involved in the South China Sea Arbitration

Prof. SONG Jie from the School of Law, Zhejiang Gongshang University advanced the hypothesis that, in the award on the merits of the South China Sea Arbitration, the Tribunal’s understanding of the definition of “rock” is pivotal to its subsequent reasoning and decision in this part. In this regard, it is worthy to examine the absurd definition of “rock” and problematic logic adopted by the Tribunal, which, according to Prof. SONG, accordingly led the Tribunal to commit serious errors in its ruling. To support its argument, the Tribunal used a definition of rock which was not consistent with the UNCLOS. Rather, its definition was ad hoc derived from the Oxford English Dictionary and some documents produced by the International Court of Justice. The Tribunal’s reasoning implies that,since the UNCLOS does not set out any provisions concerning the geology or geomorphology of a “rock”, a “rock” cannot be distinguished from an “island”stipulated in UNCLOS, Article 121(1). If the Tribunal’s reasoning were right, the provisions of Article 121, Paragraph 3 would effectively lose their meanings. All these reveal that the Tribunal’s logic is just inconsistent.

C. Impact of the International Judicial Decisions on the Determination of the Legal Status of Some Maritime Features

Associate Prof. CHEN Chen-Ju from the Department of Law, Taiwan Chengchi University, argued that in the law of the sea, islands have engendered numerous international legal disputes, particularly on matters concerning territorial sovereignty, maritime delimitation and the legal status of some marine features.She added that, legislatively, the island regime has been established through the provisions of Article 10(1) of the 1958 Convention on the Territorial Sea and Contiguous Zone, Article 1 of the 1958 Convention on the Continental Shelf, and Article 121 of the 1982 UNCLOS. And judicially, international judicial precedents indicate that a State’s sovereignty over an island is largely subject to its effective control over the same. However, a universal State practice of settling islandrelated international issues has never been established. Consequently, past pertinent international judicial decisions have made little difference on the resolution of such issues. When handling these issues, this point should be given much weight.

II. Evidence Supporting China's Claim of Sovereignty over the Diaoyu Islands

A. Geology and Geography of the Diaoyu Islands and Adjacent Waters

In his presentation, TAN Shudong, who is a senior engineer at the National Marine Data and Information Service (NMDIS), examined the geography,geology, and natural resources of the Diaoyu Islands and surrounding waters,which encompassed reviewing the scientific survey conducted by Japan in the aforementioned areas. Based on his study, he concluded: (a) the Diaoyu Islands and surrounding waters are abundant in fishery, oil, and gas resources; (b) the Diaoyu Islands are neither part of the Nansei Islands/shoto (an old Japanese name for the Ryukyu Islands), nor part of the Ryukyu Islands, but affiliated to the Island of Taiwan.

Geologically, the Diaoyu Islands and the Ryukyu Islands can be classified as continental and oceanic respectively. This geological distinction is corroborated by the geographical location of the Diaoyu Islands. The Diaoyu Islands are in fact situated at the edge of a broad continental shelf, which stretched from the mainland of China to the East China Sea. Accordingly, they stand in the shallow waters of the southern East China Sea with waters ranging from 140 to 150 meters in depth.The China-Ryukyu Border Trough (also known as Okinawa Trough in Japan),which is a trench up to 2000 meters deep lying to the east of the Diaoyu Islands,topographically separates the Diaoyu Islands from the Ryukyu Islands.

In order to encroach upon the Diaoyu Islands, soon after the end of the Second World War, Japanese research teams, under the guidance of the Japanese government, secretly landed and conducted six field surveys on the Diaoyu Islands.Under the guise of “academic research”, these teams thoroughly surveyed the geology, geography, hydrometeorology, fishery resources, gas and other natural resources of the archipelago and its surrounding waters. Through such surveys,Japan obtained the information necessary to pave the way for its later exploitation of the resources of the Diaoyu Islands and surrounding waters.

Prof. WANG Wenqing, who is the Deputy Dean of College of the Environment& Ecology, Xiamen University, similarly examined the geography and plant species of the Diaoyu Islands. He also investigated their habitability for human beings on the basis of Japan’s relevant research reports.

Associate Prof. HOU Xueliang from School of Life Sciences, Xiamen University, gave likewise a brief introduction to the geography of the Diaoyu Islands, particularly the species and distribution of the plants living on the islands.

B. Historical Evidence Supporting China’s Claim of Sovereignty over the Diaoyu Islands

Dr. CHIAU Wen-yan, who is a professor emeritus of Taiwan Ocean University,through his presentation “Historical Facts about Landing on the Diaoyu Island by the Seamen of Taiwan’s Old Sailboat Free China in 1955”, argued that the Diaoyu Islands belong to Taiwan, China. The seamen of Taiwan’s old sailboat Free China landed on the Diaoyu Island in 1955. This historical fact demonstrates that the waters surrounding the Diaoyu Islands are traditionally Chinese fishing ground.Taiwan fishermen have, in fact, for generations, engaged in navigation and fishery activities in the aforesaid waters.

As Mckewen filmed the sailing adventures of Free China crossing the Pacific Ocean, this video represents a piece of critical evidence supporting the claim that the Taiwanese fishermen had been sailing through the waters adjacent to the Diaoyu Islands. All these show that the waters surrounding the Diaoyu Islands are the traditional fishing ground for Taiwan fishermen, and this group of islands is an inherent territory of China, where the Chinese government has taken official acts of sovereignty.

Mr. LIU Mengxiong, who is a retired member of the National Committee of the Chinese People’s Political Consultative Conference (CPPCC), reviewed the Second Cairo Conference held in 1943. The Conference celebrated its 75th anniversary in 2018, but China was still disputing its sovereignty over the Diaoyu Islands with Japan. Against this backdrop, it is of great significance to revisit the conference. As LIU recounted, Allied leaders, including the US president Franklin Roosevelt, British Prime Minister Winston Churchill, and Generalissimo Chiang Kai-shek of the Republic of China attended the conference. During the conference,Roosevelt, on two occasions, even advised Chiang to recover the Ryukyu Islands,let alone the Diaoyu Islands which were then illegally occupied by the Japanese.All these show that Japan’s illegal and absurd occupation of the Diaoyu Islands violated China’s territorial sovereignty and also sabotaged the postwar international order and arrangements.

Prof. SHAW Yu-ming of Taiwan Chengchi University similarly provided a historical review of the campaigns launched to defend China’s sovereignty over the Diaoyu Islands in the 1970s as well as the process through which the US decided to transfer its administrative rights over the Diaoyu Islands to Japan. Prof. SHAW also examined the reasons behind this decision. The US had resolved that “administrative rights over the Diaoyu Islands shall be handed to Japan, while issues concerning sovereignty shall be settled by all parties concerned”.

Dr. LIN Man-houng, who is a Research Fellow at the Institute of Modern History, “Taiwan Academia Sinica”, maintained that the aforementioned policy was part of the 26 May 1971 US Diplomatic Note, instead of Taiwan-US Textile Talks.He also explored the background, basis and significance of the Note.

Ever since the 15th century, the Imperial Title-Conferring Envoys from China to Ryukyu usually started their voyage to Ryukyu from Fuzhou, by way of Taiwan and its northeast islands of Pengjia, Diaoyu, Huangwei and Chiwei. The Diaoyu Islands are considered as the boundary between Taiwan and Ryukyu. This string of islands are adjacent to the coast of Taiwan but located over 100 km away from the Ryukyu Islands. Furthermore, there is a 2000-metre-deep trough which separates the Diaoyu Islands from the Ryukyu Islands.

From generation to generation, Taiwanese fishermen fished, took shelter from storms and repaired their boats at and in the vicinity of the Diaoyu Islands. Japan did not place this chain of islands under the Prefecture of Okinawa until 1894,which is when the First Sino-Japanese War began. The Diaoyu Islands were later annexed by Japan along with the Penghu Islands due to China’s failure to win the war. After the Second World War, the US established military control of the islands south of 29° north latitude in accordance with Article 3 of the 1951 Treaty of San Francisco. However, any provisional military control of an area, in light of the general principles of international law, should not prejudice the ultimate decision on who can legitimately claim the sovereignty of that area.

The Japanese government obtained the administrative rights over the Diaoyu Islands in 1972; the waters in the vicinity of the said insular group, however,has never been officially exploited due to the unremitting disputes between the countries concerned. China ratified the UNCLOS on 15 May 1996. Under the UNCLOS, China is entitled to explore and exploit the resources in its exclusive economic zone (EEZ) that extends 200 nautical miles from its territorial sea baseline. Accordingly, China has the right to exploit the resources in the waters around the Diaoyu Islands.

C. Cartographic and Textual Evidence Corroborating China’s Claim of Sovereignty over the Diaoyu Islands

Prof. WANG Qianjin from the Chinese Academy of Sciences (CAS) has conducted a comprehensive study of the cartographic and textual evidence concerning the sovereignty of the Diaoyu Islands. His research provided voluminous evidence proving that the Diaoyu Islands have been an inherent part of China’s territory since ancient times.

FEI Jie, who is an associate professor at Center for Historical Geographical Studies, Fudan University, reported the discovery of 17 ancient maps that recorded the Diaoyu Islands. The names of the Diaoyu Islands as recorded in these maps may be classified into three types: Type 1, which uses “Tiaoyusu”, “Hoangoueysu”and “Tchehoeyou” to refer to Diaoyu Island, Huangwei Islet and Chiwei Islet respectively; Type 2, which uses “Houpinsu”, “Tiaoyu-su” and “Tche-oey sou” to refer to Diaoyu Island, Huangwei Islet and Chiwei Islet, respectively; and Type 3,where “Tiaoyu su” refers to the Diaoyu Islands as a whole. Since 1840, Nanxiao and Beixiao Islands have been referred to in Western maps and related documents as Pinnacle Islands, Pinnacle Rocks, Pinnacle Group, Pinnacle Island or similar names. Among these names, the one of “Pinnacle Island” is identical to the English name for Huaping-yu Island, which is one of the Northern Three Islands of Taiwan(Bei Fang San Yu). Some maps drawn in the 19th century in French recorded the Northern Three Islands as Hao-yu-su or Haoyusu.

Mr. LIU Yijie, who is the senior editor of the China Ocean Press, contended that Shunfeng Xiangsong (Voyage with a Tail Wind) might play an important role in settling the Diaoyu Islands dispute. Shunfeng Xiangsong is a book about sea routes which was published during the reign of Emperor Yongle of the Ming Dynasty. As such, it contains the earliest record of the Diaoyu Islands. The section of the book entitled “Voyage from Fujian to Ryukyu” shows that Diaoyu Island was used as an important navigation mark on at least two sea routes. This record corroborates the claim that the Diaoyu Islands were discovered, and consequently named, by Chinese navigators as early as in the early Ming dynasty. The Diaoyu Islands were moreover charted as points of strategic importance when the Ming court reestablished its coastal defense system during the reign of the Emperor Jiajing(1522-1566).

Dr. WU Weiwei, who is a research fellow at the Center for Studies of Fujian and Taiwan, Fujian Normal University, similarly observed that in the ancient atlases published in China, Ryukyu, Japan and Western countries, Chiwei Islet,Gumi Mountain (Today’s Kume Island), and the China-Ryukyu Border Trough,were all indicated as connecting points of the boundary line existing between China and Ryukyu. As these atlases reflect ancient navigators’ experience and knowledge,they stand as strong evidence that a maritime boundary existed between ancient China and Ryukyu, which furthermore demonstrates that China, indisputably, owns legitimate sovereignty of the Diaoyu Islands.

Prof. XIE Bizhen, who is the Director of the Center for Studies of Fujian and Taiwan, Fujian Normal University, gave the presentation “Diaoyu Islands Are Affiliated to Taiwan: Historical Evidence and Its Significance”. In this presentation,he proved that the Diaoyu Islands in its entirety are part of China’s sacred territory,by collating and analyzing the domestic and overseas historical literature and maps.

ZHANG Jiangqi, who is the Director of the Standard Quality Division of the National Geomatics Center of China, also examined a wide sample of Chinese and non-Chinese maps which were drawn in the heyday of the Qing Dynasty. These maps colored Bachong Mountain (Yaeyama Island), Taiping Mountain (Miyako Island) and Bashi Channel the same as the Island of Taiwan, indicating that all these three areas belonged to Taiwan of China at that time. It could also be inferred the existence of a loose political control over these areas by Ryukyu, which was then a vassal State of the Empire of Qing. Such maps constituted the basis on which China and Japan devised their plan to deal with Ryukyu in the 19th century.

Japan accelerated its overseas expansion between 1870 and 1947. During this time, it seized Ryukyu and, accordingly, attempted to occupy Diaoyu Island. In order to achieve this objective, the Japanese government fabricated documents,including counterfeited maps and photographs of Diaoyu Island and Huangwei Islet. These documents may, conversely, be considered as compelling evidence to demonstrate Japan’s attempt to claim control over the aforementioned islands.

D. International Rules Supporting China’s Claims of Sovereignty over the Diaoyu Islands

JIANG Xinfeng, who is a research fellow at the PLA Academy of Military Science, has likewise argued that China has ample historical, geographic and legal evidence to prove that the Diaoyu Islands belong to China. In contrast, Japan’s claim that the Diaoyu Islands are “its inherent territory” is factually and legally unfounded. Her argument was presented as follows:

In accordance with international law, rules relating to the acquisition of territorial sovereignty of a certain area include: acquisition by (a) first discovery;(b) first naming; (c) first exploration and exploitation; and (d) first exercise of continuous and effective administration. A State’s claim to sovereignty over a certain area, regardless of its distance from the mainland of that State, may be well founded, only if the four rules have been observed. In this regard, China should enjoy indisputable sovereignty over the Diaoyu Islands because of the following: (a) ancient Chinese first discovered and named the Diaoyu Islands; (b)ancient Chinese first exploited as well as implemented continuous and effective administration on the Diaoyu Islands; (c) the Diaoyu Islands were affiliated to Taiwan, which is also part of China; (d) the Diaoyu Islands were seized by Japan at the end of the First Sino-Japanese War, and should be returned to China under the provisions of the Cairo Declaration and Potsdam Proclamation; (e) the Chinese government has consistently claimed through a variety of legal channels that the Diaoyu Islands belong to China; (f) China has factually declared and defended its sovereignty over the Diaoyu Islands through patrolling and other acts; and (g)renowned Japanese historians, including Prof. Kiyoshi Inoue and Prof. Murate Tadayoshi, all corroborate the fact that the Diaoyu Islands are part of China’s territory.

The Diaoyu Islands are an inherent part of China’s territory. This is a fact which is as much supported by the geomorphology and history of the islands as sanctioned by international law. Japan shall thus respect history as well as the geopolitical order established in the aftermath of the Second World War. In particular,it shall strictly comply with the relevant provisions of the Cairo Declaration and Potsdam Proclamation, and accordingly abandon any plan to occupy the Diaoyu Islands. Apart from insisting on resolving the Diaoyu Islands dispute through dialogue, China should also place greater efforts in diplomacy, publicity, law,military and other areas.

III. Legal Status of the Diaoyu Islands and Maritime Delimitation in the East China Sea

A. Regime of Distant Archipelagos of Continental States

Associate Prof. WANG Zelin at the School of the International Law, NWUPL,argued that distant archipelagos should be classified into two categories: distant archipelagos of continental States and those of archipelagic States. He argued so from the following two aspects: (a) the criteria used to determine an “archipelago”and applicable laws; and (b) practices and issues regarding the determination of the integrity of a distant archipelago of a continental State. The UNCLOS has laid down important provisions concerning the legal regime applicable to distant archipelagos of archipelagic States, but none for those of continental States. This legal lacuna gave rise to the present international debate over the regime applicable to distant archipelagos of continental States. Additionally, further corroboration is required to decide whether the practices regarding distant archipelagos of continental States have constituted a customary international law.

ZHANG Liangfu, who is a research fellow from the CNOOC Economic and Technologic Institute, similarly observed that, throughout its evolution and development, the expansion of coastal State rights has been a basic characteristic of the international law of the sea. He further noted that the general principles of the archipelagic State regime include the principles of integrity, equity, respect and nonmaleficence. The mutatis mutandis application of the archipelagic State regime to the Nansha Islands would not contravene the UNCLOS, given that it is consistent with some established laws and practices.

In the current law of the sea, no rule can be applied directly to the drawing of the baseline of the territorial sea of the Nansha Islands, as it is a distant archipelago of a continental State. In this case, we could only rely on State practices and the aforementioned general principles of international law. The regime applicable to the drawing of territorial sea baseline for distant archipelagos of continental States has not yet been established, which requires further development and accrual of pertinent State practices. When such a regime is being formulated, the way China draw the territorial sea baseline of the Nansha Islands should be regarded as a significant practice of the law of the sea, as well as an innovative contribution to the establishment of the aforesaid regime. Till that moment, the long-standing historic rights of China in the South China Sea, the existing rights of other States bordering the South China Sea, alongside the reasonable concerns of the international community should be duly taken into account. Furthermore, the general principles of both the UNCLOS regime of straight baselines for coastal archipelagos and regime of archipelagic State should be followed and used as a frame of reference.

China is consequently advised to treat the Nansha Islands as a single unit and to draw straight archipelagic baselines joining the outermost features of the Nansha Islands. The waters enclosed by the baselines should be the archipelagic waters of the Nansha Islands, where the passage rules of archipelagic States should be applied mutatis mutandis, such as the regimes of innocent passage and archipelagic sea lanes passage.

B. Interpretation of Article 2 of Treaty of Shimonoseki and the Diaoyu Islands Sovereignty Ownership

Invoking the theories of the law of treaties and related historical documents,Ms. LIU Dan, who is an associate research fellow at Koguan School of Law,Shanghai Jiao Tong University, examined the wording “islands appertaining or belonging to the said island”, which appears in Article 2(b) of the Treaty of Shimonoseki. As this treaty was signed by China and Japan on 17 April, 1895,Ms. LIU tried to determine whether, at the time of signing, the Diaoyu Islands were implicitly included into “all islands appertaining or belonging to the said island of Formosa”. Her study provided a theoretical basis for China’s claim to the sovereignty of the Diaoyu Islands from the perspective of treaty history and interpretation.

China officially claims that the Diaoyu Islands were not “terra nullius”. Rather the contrary, ancient Chinese were the first to discover and name the islands, and had placed them under the continuous administration of the Chinese government as early as the Ming and Qing dynasties. Due to its defeat in the First Sino-Japanese War, the Qing court was forced to sign the aforementioned treaty on unequal terms and, thus, obliged to cede to Japan “the island of Formosa [Taiwan], together with all islands appertaining or belonging to the said island of Formosa [Taiwan]”. As Ms. LIU demonstrated, it is against this backdrop that the Diaoyu Islands were ceded to Japan as “islands appertaining or belonging to the said island of Formosa[Taiwan]”. However, considering the legally binding documents including the 1943 Cairo Declaration, the 1945 Potsdam Proclamation, the 1945 Japanese Instrument of Surrender and the Supreme Commander for the Allied Powers Instruction(SCAPIN) No. 677 of 1946, the Diaoyu Islands should not have been counted as Japanese territory after the end of the Second World War, but, instead, should be considered as affiliated to Taiwan and thus should be returned to China together with Taiwan.1State Council Information Office, the People’s Republic of China, Diaoyu Dao, an Inherent Territory of China (White Paper), 25 September 2012.

In order to decide whether an island is an island “appertaining or belonging to”a continent or the principal island of an archipelago, one should not only interpret the relevant treaty provisions and provide appropriate evidence, but also take into consideration of all the associated factors, including historical, administrative and economic ones.

To interpret the aforementioned Treaty’s wording “islands appertaining or belonging to the said island”, one should take into account the circumstance characterizing the time of the treaty. When the treaty was signed, did the expression“the island of Formosa, together with all islands appertaining or belonging to the said island of Formosa” include the Diaoyu Islands? To answer this question, both China and Japan are required, in line with international judicial practices, to submit evidence of “subsequent practice” prior to the critical date of 1895. Otherwise,the subsequent treaty or practice would not be accepted by international tribunals.In this regard, Japan invoked the subsequent agreement after 1895 to support its evolutive interpretation of the Treaty of Shimonoseki, which is unfounded in international law. On the contrary, to statically interpret the term “islands appertaining or belonging to the said island” is well founded both in the theory and practice of international law.

C. Legal Status of the Diaoyu Islands

Associate Research Fellow SHU Zhenya of China Institute for Marine Affairs(CIMA) analysed the legal status of the Diaoyu Islands from five aspects: (a)general information of the Diaoyu Islands; (b) possible ways to prove an argument on the legal status of the Diaoyu Islands; (c) the regime of distant archipelagos of continental States; (d) the Diaoyu Islands viewed under the regime of distant archipelagos of continental States; (e) risks and challenges associated with the substantiation of an argument on the legal status of the Diaoyu Islands.

The Diaoyu Islands group is located to the northeast of the Island of Taiwan.As announced by China’s competent authorities, the group comprises 71 islands,which include Huangwei Islet, Chiwei Islet, Nanxiao Island, Beixiao Island, Nan Islet, Bei Islet and Fei Islet. It approximately has a land area of 5.69 km2in total.According to Ms. SHU, arguments on the legal status of the Diaoyu Islands may be advanced by taking the Diaoyu Islands either as a separate archipelago, or as islands appertaining to the Island of Taiwan, or as a distant archipelago of a continental State. The Diaoyu Islands, as per the regime of distant archipelagos of continental States, cannot constitute an independent sovereign State; ultimately, this insular group should be placed under the control of a sovereign State, despite of its long distance from China’s and Japan’s coasts. The Tribunal of the South China Sea Arbitration decided on the status and maritime entitlements of some component islands and reefs of the Nansha Islands by dividing the island group into separate and individual features, depriving China of the right to claim sovereignty and maritime rights over the Nansha Islands as a single unit. In addition, the Tribunal denied China’s claim of maritime rights by taking the Nansha Islands as a single unit on the assumption that a continental State is not allowed to draw archipelagic or straight baselines for its distant archipelagos under the UNCLOS. The factors mentioned above may give rise to risks and challenges in the settlement of the Diaoyu Islands dispute.

In this context, China should make a full use of existing findings, conduct an in-depth study of historical documents, and subsequently endeavor to solve the Diaoyu Islands dispute through all the means at its disposal: diplomacy, legislation,law enforcement, maritime activities, and publicity, among others.

D. The Diaoyu Islands and Maritime Delimitation in the East China Sea

Dr. LV Wenzheng, who is a research fellow at the Second Institute of Oceanography, Ministry of Natural Resources, and a member of the Commission on the Limits of the Continental Shelf (CLCS), examined the typical methods that CLCS adopts to review the submissions it received with regard to the limits of continental shelf. He then used legends to provide a clear picture of the consideration and review of the submissions concerning the extended continental shelf in the East China Sea made by China and Japan respectively.

Prof. ZOU Ligang from the Law School of Hainan University reviewed the positions and grounds of China and Japan with respect to their maritime delimitation in the East China Sea, which he summarised as follows:

China maintains that: (a) the maritime boundary between the two countries should be delimited based on the principle of “natural prolongation”; (b) China enjoys the sovereignty over the Diaoyu Islands; (c) since the Diaoyu Islands are disputable, Japan should not use them as base points to delineate its boundary line with China; (d) Danjo Islands shall not have full force for delimitation purposes;(e) an equitable delimitation should take into account the length of the coastline and other related factors. China’s claims above outlined are grounded on the following premises: (a) China has never acceded to the Convention on the Continental Shelf; (b) Article 15 of UNCLOS is applicable to the delimitation of territorial sea between States but with some provisos; (c) Articles 74 and 83 provide that maritime boundary delimitation shall be effected by agreement on the basis of international law, in order to achieve an equitable solution; (d) the China-Ryukyu Border Trough forms a natural boundary line that separates China’s continental shelf in the East China Sea from the insular shelf of Japan’s Ryukyu Islands; and this trough has been historically treated as a maritime boundary line between China and Japan.

Japan asserts that: (a) the Sino-Japanese maritime delimitation should be effected on the basis of the median line principle; (b) Japan can legitimately claims sovereignty over the Diaoyu Islands; (c) the Diaoyu Islands, Danjo Islands and the Ryukyu Islands should have full effect in the maritime delimitation between China and Japan in the East China Sea.

China does not claim sovereignty over Okinotorishima; but Japan claims that Okinotorishima is an island with full maritime entitlements, which greatly undermines China’s national interests, including those related to high seas fishery,resources of international seabed area and navigation.

LIU Jiangyong, who is a professor at the Institute of International Relations,Tsinghua University, noted that the critical date of the Sino-Japanese territorial dispute over the Diaoyu Islands can be determined as January 1895, when the Meiji government seized the Diaoyu Island, Huangwei Islet alongside with other uninhabited islands. Prior to this critical date, the Diaoyu Islands had been regarded as an inherent part of China’s territory instead of “terra nullius”. The Japanese government “purchased” and “nationalised” the Diaoyu Islands solely on the basis of the account provided by Koga Tatsushiro, which is not strongly supported with evidence. China’s legitimate ownership of the Diaoyu Islands would ensure its entitlement to the continental shelf lying to the west of Diaoyu Island and connecting Diaoyu Island with the Island of Taiwan, as well as its entitlement to the EEZ extending 200 nautical miles southeastward. However, China’s EEZ might overlap with those of the Yaeyama Islands and Miyako Islands (which belong to Prefecture of Okinawa), since both islands are only 170 nautical miles away from Diaoyu Island. In that case, the delimitation of the EEZ between China and Japan in this sea area should be determined through negotiations. Chiwei Islet is situated at the edge of the continental shelf. If it is only entitled to a 12-nauticalmile territorial sea and a continuous zone, but not to an EEZ or a continental shelf,Chiwei Islet would make little difference in terms of maritime delimitation to both China and Japan.

IV. Possible Solutions to the Diaoyu Islands Dispute

A. To Undertake a Two-Pronged Effort in Academic Research and Diaoyu Islands Defense Campaigns

Prof. LIU Yuan-Tsun, who is the former principal of Taiwan Soochow University, studied six Diaoyu Islands Defense Campaigns and their achievements.Based on this analysis, he concluded that such campaigns and academic research are complementary to each other in defending China’s sovereignty over the Diaoyu Islands, and therefore neither of them should be ignored. He also observed that some problems have most recently emerged: (a) being misled by the historical proposition of “Taiwan Independence”, some youngsters in Taiwan hold a superficial or even ill-informed view of the Diaoyu Islands dispute; and (b) in the dispute, Taiwan can hardly make its voice heard among the great powers contending for supremacy of the world. In this regard, the “Diaoyutai Education Association” should be mobilised with the objective of educating the younger generation about the Diaoyu Islands. Similarly, the “Taiwan Association for Recovery of Diaoyutai Islands” should continue to speak up for the Diaoyu Islands,thus urging the Taiwanese authorities to hold their ground, while also promoting cooperation between Chinese all over the world for defending China’s sovereignty over the Diaoyu Islands.

Mr. CHAN Miu-tak, who is the chairman of World Chinese Alliance for Defending Diaoyu Islands, similarly argued that the resolution of the Diaoyu Islands dispute resembles an odyssey which requires long-term and combined efforts both in realm of defense campaigns and academic research. To defend China’s sovereignty over the islands, new brain power is needed and all Chinese should be united to carry on the historical mission.

B. To Pay More Attention to Role of the Ryukyu Islands in Settlement of the Diaoyu Islands Dispute

LIM John Chuan-tiong, who is an associate research fellow at the Institute of Modern History, “Taiwan Academia Sinica”, asserted that more attention should be paid to the role of the Ryukyu Islands in the solution of the Diaoyu Islands dispute. According to him, Japan’s claim to the continental shelf or exploitation of oil resources in the East China Sea is inevitably related to the sovereignty of the Ryukyu Islands. This is the case because, during the US occupation of the Ryukyu Islands, Ryukyu, which was then a relatively independent kingdom, separately laid its claim over the Diaoyu Islands, even prior to Japan. Today’s Ryukyu is not entitled to raise an individual claim over the sovereignty of the Diaoyu Islands, however, a review of the relevant historical facts and the role Ryukyu played through history might lead to a better understanding of the issues currently concerning the Diaoyu Islands.

Ryukyu and Japan have used similar lines of reasoning to claim sovereignty over the Diaoyu Islands. Although their focuses have been different, both lines of reasoning have been carried out on the basis of Japan Cabinet Resolution of 14 January 1895. As a result, both of them firmly maintained that the Diaoyu Islands were terra nullius until the aforesaid date.

Japan’s rightist political tendency has become more obvious in the 1990s.Following this tendency, Japan has become gradually dominated by nationalism,when it comes to the Diaoyu Islands issue. In contrast, due to its exceptional national and State identity, and the trauma it suffered through World War II, postwar Ryukyu has consistently been in favour of maintaining peace. As a result,Ryukyu holds a negative attitude towards both the strengthening of Japan-US military presence in its neighboring areas and China’s regular patrolling of the waters in the vicinity of the Diaoyu Islands.

C. To Place Greater Importance on South Korea’s Standpoint in the Diaoyu Islands Dispute

Dr. HAO Huijuan, who is a post-doctoral researcher at the South China Sea Institute, Xiamen University, advanced the hypothesis that although South Korea is not a party to the Diaoyu Islands dispute, its position in the dispute cannot be ignored. This is the case in that: (a) both China and Japan are geopolitically critical to South Korea; and (b) the Sino-Japanese Diaoyu Islands dispute arose in a historical context which is very similar to that of the dispute over the Dokdo Islands (also known as Takeshima Islands in Japan) between South Korea and Japan. In light of these similarities, China should pay attention to South Korea’s diplomatic stance and policy concerning the Dokdo Islands dispute, and then try to win the support of South Korea in the Diaoyu Islands issue. Lastly, in order to resolve the Diaoyu Islands dispute in a better way, China should learn from South Korea’s experience and lessons in the handling of the Dokdo Islands dispute.

According to Dr. HAO, the South Korean government has maintained a politically neutral position in the Diaoyu Islands dispute. It has pursued a diplomatic policy of balance of interests towards the great powers. South Korean scholars are generally on the side of China when it comes to the historic rights concerning the Diaoyu Islands but, at the same time, they have also assumed that China occupies a position of disadvantage with regard to the aforementioned dispute. In the South Korean academia, scholars often study the Diaoyu Islands dispute in conjunction with the Dokdo Islands one, which, to some extent,provides a direction for China’s research on the Diaoyu Islands dispute. Given the similarities and connections between the two disputes, it would be necessary for China to assess the measures taken by the South Korean Government to deal with the Dokdo Islands dispute.

Dr. HAO concluded her presentation by stating that South Korea, although is not a party to the Diaoyu Islands dispute, occupies an important and delicate position. China should be cognizant of South Korea’s stance in and understanding of the Diaoyu Islands dispute, as well as learn from how South Korea has dealt with the Dokdo Islands dispute. In addition, China should seek South Korea’s support by considering the diplomatic and political strategies that other States, which, like South Korea, surround the Diaoyu Islands but are not involved in the dispute, have taken over time. In this way, China may possibly gain an edge in the battle with Japan.

D. To Solve the Diaoyu Islands Dispute Through Peaceful Means

Associate Prof. ZHANG Xinjun of Tsinghua University maintained that legal discernments may provide a way out of the Diaoyu dilemma.2ZHANG Xinjun, Diaoyu/Senkaku Dilemma: To Be or Not to Be, The Journal of International Law and Diplomacy, Vol. 113, No. 2, pp. 25～48.China and Japan are divided in views on the laws and facts regarding the acquisition of the Diaoyu Islands. These divisions are primarily reflected in the interpretation and application of: (a) the rule of acquisition of territory by occupation, and (b) the international legal documents with regard to post-war territorial arrangements. Firstly, Japan’s interpretation and application of the rule mentioned above are contradictory,resulting in its violation of the principle of interpretation in good faith. Secondly,the probative force of the documents submitted by Japan to support its claims to the sovereignty of the Diaoyu Islands is questionable.

Ambiguity in the substantive rules of territorial acquisition may be the seminary to breed speculation in the process of territorial dispute settlement;however, the procedural rule of general international law relating to the settlement of international disputes through peaceful means will limit such speculations. In that case, both China and Japan should conscientiously review the relation between their respective sovereignty claim and the Diaoyu Islands dispute, and perform the obligation of peacefully settling this dispute.

SHAW Han-yi, a research fellow at the Institute of International Relations,Taiwan Chengchi University, made an all-round analysis on Taiwan’s sovereignty over the Diaoyu Islands from three aspects: (a) the whole story about the Diaoyu Islands being placed under the trusteeship of the US; (b) Taiwan’s negotiation efforts to release the Taiwan fishermen who were arrested when fishing in the waters near the Diaoyu Islands; (c) Taiwan’s re-understanding of the Diaoyu Islands and the designing of its countermeasures.

The Diaoyu Islands dispute should be settled by international law. This means of dispute settlement has an advantage since it could provide a cooling-offperiod for the parties concerned. Specifically, proceedings often take years, during which the parties may suspend the pending procedure and adopt an out-of-court settlement.