Column  Foreign Affairs and National Security  2014.04.03

Legal Status of Senkaku Islands

By now, many may be just a bit sick and tired of hearing about the Senkaku islamds. It is, in fact, frequently in the news and a sheer volume of relevant documents and papers may be crowding out the fundamental facts.

By way of example, the Ministry of Foreign Affairs ("MOFA") of Japan explains that "the Senkaku Islands are not included in the territory which Japan renounced under Article II of the San Francisco Peace Treaty, which came into effect in April 1952 and legally demarcated Japan's territory after World War II. They were placed under the administration of the United States of America as part of the Nansei Shoto Islands, in accordance with Article III of the said treaty, and were included in the areas whose administrative rights were reverted to Japan in accordance with the Agreement Between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands, which came into force in May 1972. The facts outlined herein clearly indicate the status of the Senkaku Islands as being part of the territory of Japan."

In reviewing Article III of the Peace Treaty, one finds that it does not specifically state that "the Senkaku Islands are under the administering authority of the United States." In fact, Article III does not refer to "the Senkaku Islands" at all. MOFA's explanation, of course, is not incorrect, but it certainly is a bit ill-considered. Previously, the Diet has addressed this issue many times; basically, the discussions repeat the same sort of explanation from MOFA quoted above.

One of these ill-considered points is that MOFA's explanation gives the impression that the Treaty specifically notes the Senkaku Islands, though that is not the case.

Another point is that this explanation states both how the San Francisco Peace Treaty treated the Senkaku Islands as well as how the issue was addressed 20 years later, at the time of the reversion of Okinawa to Japan. This makes the issue harder to understand. Absent having some particularized knowledge about the issue, it would be difficult for ordinary persons to understand MOFA's explanation correctly.

It is in fact the case that, after Japan's defeat in the war, the Peace Treaty divided the territories that Japan would renounce from those that it would not; it stipulated how each of these territories would be treated. Article II covers the territories that Japan renounced. Article III covers territories that Japan did not renounce but that were placed under the administration of the United States of America. These included 1) Nansei Shoto south of 29 north latitude (including the Ryukyu Islands and the Daito Islands), 2) Nanpo Shoto south of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands), and 3) Parece Vela and Marcus Island. Of these, the territories described in 2) and 3) are over 1,000 km away from the Senkaku Islands and it is obvious that they do not include the Senkakus. The question, then, is whether Nansei Shoto south of 29 north latitude (including the Ryukyu Islands and the Daito Islands) includes the Senkaku Islands. The explanation proffered by MOFA takes the position that it does.

What is the support for this? When the United States began administering the Ryukyu Islands, it officially proclaimed the area by longitude and latitude as "Nansei Shoto south of 29 north latitude (including the Ryukyu Islands and the Daito Islands)". This is set out in Civil Administration Proclamation Number 27, dated December 25, 1953. "Nansei Shoto" and "Ryukyu Islands," as stated in the Treaty, consist of numerous islands, and the names of the two islands, by themselves, is not adequate to define the scope of the areas that were to be placed under the administration of the United States. It was, therefore, both natural and necessary for the U.S. to confirm the geographic scope of those areas by issuing the Civil Administration Proclamation.

This proclamation was issued by the Governor of the U.S. Civil Administration, which had responsibility for administering Okinawa. From a procedural standpoint, the proclamation may appear to have been solely an administrative act, but, in fact, it is an interpretation of Article III of the Peace Treaty. Accordingly, the proclamation had two characteristics - one, as an administrative act by the U.S. Civil Administration and, second, as interpreting Article III of the Peace Treaty.

The United States alone could not have defined the scope of the Treaty, i.e., providing an official interpretation. The scope of U.S. administrative authority was laid down by the Treaty, but one signatory nation alone could not have rendered a definitive interpretation. Therefore, the proclamation indicated the position of the United States and confirmed that the other Treaty signatories had no objection.

Other than the proclamation, no other document has defined the scope of Article III of the Peace Treaty and, for that reason, it is extremely important. Based on the document, it is clear that "Nansei Shoto south of 29 north latitude (including the Ryukyu Islands and the Daito Islands)" includes Okinawa and the Senkaku Islands.

It goes without saying that the Peace Treaty is the definitive document for demarcation of the post-war territory of Japan. That is to say, even if Japan held territory since ancient times, if the Peace Treaty had defined that as the territory of a third party, then regardless of historical precedents, it would no longer have been the territory of Japan.

Incidentally, some have questioned whether the United States actually confirmed that the Senkaku Islands are the territory of Japan, but the 1953 proclamation clearly defined the scope of Article III of the Peace Treaty. The U.S. government's explanation at the time of the Okinawa reversion was worded carefully so as to not interfere with the prior definition of the scope of Article III.

The United States currently takes the position that it does not interfere with the territorial disputes of the third countries. Therefore, in the case of the Senkaku Islands, it may assert that such a territorial dispute should be solved by the parties involved, while stating that the Japan-U.S. Security Treaty would apply. As for Japan, it can assert that including the Senkaku Islands in Article III of the Peace Treaty was not decided by Japan but by the Peace Treaty and the Allied Powers in implementing it. At present, Japan is asserting that the Senkaku Islands are inherently part of the territory of Japan but, in fact, that has been determined internationally and, given the circumstances, the Allied Powers are concerned parties. Someday, if the issue is ever the subject of deliberations at the International Court of Justice, Japan will invoke the U.S. Civil Administration Proclamation and that will be a strong basis for its claim.