Argument

Those Islands Belong to Taiwan

The Republic of China's foreign minister lays out the case for Taiwanese sovereignty over the Diaoyutai Islands.

The longstanding territorial dispute over the Diaoyutai Islands has once again flared up.  The Japanese government's recent unilateral move on Sept. 11, 2012 to "nationalize" three of the islands, known as "Senkaku" in Japanese, through a purported "purchase" has reignited tensions in East Asia. But while most attention has focused on the standoff between China and Japan, the Diaoyutai Islands actually form an inherent part of the territory of the Republic of China (Taiwan) based on the islands' geographical location, geological structure, relevant historical evidence, and international law. Japan's claim over the islands simply does not stand up to close scrutiny.

Japan's claim of sovereignty over the Diaoyutai Islands by virtue of "discovery-occupation" under international law is invalid ab initio (from the onset), as such claims can only be made to terra nullius (land without owner).

The Diaoyutai Islands were first discovered, named, and used by China during the Ming Dynasty (1368-1644). Chinese envoys at the time used the islands as navigation posts en route to the Ryukyu Kingdom (now Okinawa), a vassal state of China. The islands were also incorporated into Ming China's coastal defense system and patrolled by Chinese naval forces against the invading Japanese pirates.

The most authoritative historical records supporting the Chinese claim are envoy mission records and official Taiwan gazetteers published during the Qing Dynasty (1644-1912).  Envoy mission records specified the national boundary between China and Ryukyu Kingdom as heishuigou (or Black Water Trough, known today as the Okinawa Trough) and the Diaoyutai Islands, and listed the islands as within the "the boundary between China and foreign land."

Official gazetteers of Fujian Province and Taiwan Prefecture also listed territories under Taiwan, which included the Diaoyutai Islands. For example, Record of Missions to Taiwan Waters (1722) listed the patrol routes of the naval forces of Taiwan Prefecture, stating"in the seas north of Taiwan is an island called Diaoyutai where ten or more large ships may be anchored." Subsequently, the Revised Gazetteer of Taiwan Prefecture (1747), Continued Gazetteer of Taiwan Prefecture (1764), Pictorial Treatise of Taiwan Proper (1872) all included this reference.  In Recompiled General Gazetteer of Fujian (1871), the Diaoyutai Island was further listed under Kavalan County (now Ilan County) of Taiwan. These local gazetteers' primary functions were to "record history, assist governance, and inform the populace." These official documents demonstrate Qing China's long and continuous effective control over the islands as part of Taiwan prior to 1895.

Today, the Japanese government asserts that from 1885 on, it repeatedly conducted on-site surveys which confirmed that the islands were uninhabited and there were no signs of control by the Qing Empire. "It therefore made a Cabinet Decision on January 14 1895 to formally incorporate the islands." However, old Meiji period documents unearthed from Japanese archives demonstrate that the Meiji government acknowledged Chinese ownership of the islands in 1885.

In October 1885, following the first onsite investigation, then Foreign Minister Inoue Kaoru and Foreign Ministry Public Communications Director Asada Tokunori described the islands as "close to the Chinese border... next to Taiwan and belonging to China"(emphasis added) and "at this time, if we were to publicly place national markers, this must necessarily invite China's suspicion...."

In November 1885, Okinawa Magistrate Nishimura Sutezo confirmed "since this matter is not unrelated to China, if problems do arise I would be in grave repentance for my responsibility."

Ten years later, in May 1894, Okinawa Governor Narahara Shigeru wrote to the Home Ministry confirming "...no investigations of the islands took place since mid-1885..."

In August 1894, the Sino-Japanese War broke out. On Sept. 17, Japan defeated China's Beiyang Naval Fleet. On Oct. 24, Japan crossed the Yalu River and invaded China. By Nov. 21, Japan had captured the Chinese city Port Arthur. In December 1894, the Japanese Home Ministry stated that the incorporation of the disputed islands "involved negotiations with China... but the situation today is greatly different from back then." Japan accordingly incorporated the islands based on a cabinet decision of Jan. 14, 1895 amid the ongoing war.  The cabinet decision was marked "Confidential" and, contrary to established convention, was never publicly announced.

These historical documents serve to refute the statement by Japan's current government "[From 1885]...surveys of the Senkaku Islands had been thoroughly made..."  It can be seen that Japan's claim of sovereignty over the islands is based on an illegal act of secretly annexing the islands as spoils of war under the false pretext of seizing terra nullius.

In April 1895, Japan and China signed the Treaty of Shimonoseki, which stipulated that China cedes to Japan "the whole island of Formosa [Taiwan], together with each of all the islands appertaining to it."  For the next 50 years, the Diaoyutai Islands and Taiwan remained under Japanese rule until the tides turned again.

In December 1943, the Republic of China, Britain and the United States promulgated the Cairo Declaration, stipulating, "all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [Taiwan], and the Pescadores [Penghu], shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed." (Emphasis added.) The July 1945 Potsdam Proclamation stated, "the terms of the Cairo Declaration shall be carried out." Further in September 1945, Japan accepted the Potsdam Proclamation through signing of the Instrument of Surrender. All the three international legal documents are still binding on the respective countries including the United States, Japan, and the Republic of China (Taiwan).

Additionally, both the 1951 San Francisco Peace Treaty and the 1952 Sino-Japanese Peace Treaty between Taipei and Tokyo stipulate that "Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)." The 1952 Sino-Japanese Peace Treaty further nullified the 1895 Treaty of Shimonoseki. Therefore the Diaoyutai Islands, as with Taiwan, should be restored as the territory of the Republic of China.

Unfortunately, when Japan annexed the Diaoyutai Islands in 1895, it placed them administratively under Okinawa Prefecture at the same time, and formally renamed them "Senkaku Islands" in 1900. These unilateral acts masked the islands' original Chinese ownership and identity, which resulted in their omission from the post-WWII arrangements. When Japan returned Taiwan to the ROC, both sides adopted the 1945 administrative arrangement of Taiwan, with the Allied Powers (including the ROC) unaware that the uninhabited "Senkaku Islands" were in fact the former Diaoyutai Islands. This is why the Diaoyutai Islands were mistakenly placed under U.S. trusteeship between 1945 and 1972.

However, during this time, the Diaoyutai Islands were merely subject to U.S. administrative control, which conferred no sovereignty over them. After the war, Taiwanese fishermen continued to use these islands as in the past century, without interference, until the early 1970s. As the Diaoyutai Islands were placed under a system of trusteeship, rather than a sovereign state, there is no issue concerning explicitly or tacitly recognizing any claim of sovereignty by another state over the disputed islands between 1945 and 1972.

Regarding the reversion of the Diaoyutai Islands to Japan along with the Ryukyu Islands in 1972, the United States sent an official note to the ROC on May 26, 1971, stating that Washington's transferring of administrative rights over these islands did not affect the ROC's claim of sovereignty. On Nov. 9, 1971, then U.S. Secretary of State William P. Rogers stated that the United States took no position on the sovereignty issue over the Diaoyutai Islands and that the dispute should be resolved through negotiations between the ROC and Japan. The U.S. Senate Foreign Relations Committee further stated "the United States action in transferring its rights of administration to Japan does not constitute a transfer of underlying sovereignty nor can it affect the underlying claims of the disputants." Washington has maintained this neutral position in all its relevant diplomatic documents ever since.

Thus, the ROC (Taiwan) has a compelling case for sovereignty over the Diaoyutai Islands. Nevertheless, ROC President Ma Ying-jeou is mindful of the need to foster regional peace and stability. Accordingly, he proposed an East China Sea Peace Initiative on Aug. 5, 2012, calling on all parties concerned to refrain from taking any antagonistic actions, shelve controversies, resolve disputes through peaceful means, and seek consensus with the aim to establish a code of conduct for cooperation in the East China Sea. While ROC (Taiwan) sovereignty is indivisible, resources in the Diaoyutai region can be shared. Under the circumstances, President Ma's peace initiative offers a constructive approach to reducing tensions in the region and resolving disputes between the parties concerned in a peaceful manner.

Mandy Cheng/AFP/GettyImages

Argument

Rewarding Impunity

Why is President Obama's attorney general handing out prizes for sweeping torture under the rug?

On Oct. 17, Eric Holder handed out the Justice Department's annual awards for distinguished service to a slew of department employees. Featured at the top of the awards announcement were the men and women who successfully prosecuted 10 New Orleans police officers for killing innocent civilians in the wake of Hurricane Katrina, and a U.S. marshal who risked his life to protect a victim from a violent fugitive during the fugitive's capture. But buried at the bottom of the list -- the 13th of 14 "distinguished service awards" -- was a more unusual awardee: Assistant U.S. Attorney John Durham. Durham and his team received the award not for bringing anyone to justice, but for declining to hold accountable anyone in the CIA for its brutal interrogations of detainees at secret prisons, or "black sites," in connection with President George W. Bush's "war on terror."

"In order to conduct the investigations," the citation reads, "the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations."

There's no question that Durham worked hard for a long time, and that the investigation was complex and substantial. After all, more than 100 men were "disappeared" into the CIA's black sites for extended incommunicado detention and interrogation. Because the CIA prisons were a secret, everything that happened there is classified, complicating investigation still further. And because the investigation itself is secret, we can't know precisely what evidence Durham considered, what roadblocks he faced, what judgment calls he made.

But here's what we do know. Many of those "disappeared" into the CIA's black sites were tortured and/or illegally subjected to cruel, inhuman, and degrading treatment. Abu Zubaydah and Khalid Sheikh Mohammed, for example, were waterboarded 83 and 183 times, respectively. They and other detainees were stripped naked, doused with water, beaten about the face and stomach, slammed into walls, deprived of sleep for days on end, forced into painful stress positions, and confined in small dark boxes for hours at a time. And these were just the "authorized" torture tactics, given a green light by a secret memo written in August 2002 by John Yoo and Jay Bybee from the Justice Department's Office of Legal Counsel, and specifically okayed by President Bush, Vice-President Dick Cheney, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and White House Counsel Alberto Gonzales, among others.

We also know, thanks to the CIA's own Inspector General, that CIA interrogators in the black sites went beyond even the illegal brutality authorized by high-level officials. One detainee was threatened with a handgun and a power drill. A mock execution was staged next to a detainee's cell. Interrogators threatened to kill the children of another detainee if he didn't tell them what they wanted to know.

We also know that in 2005, CIA higher-up Jose Rodriguez ordered the destruction of videotapes of two of those interrogations, shortly after the Washington Post revealed the existence of the CIA secret prisons where the interrogations took place, and while the tapes were under request from several courts and a Senate committee looking into charges of abuse.

Durham cleared everyone in the CIA of accusations of wrongdoing. Does he deserves a medal for that? Maybe so, but then there are a few other recipients the attorney general left out. Surely John Yoo and Jay Bybee deserve medals for making the interrogations possible in the first place, by issuing a memo that Jack Goldsmith, director of the Office of Legal Counsel after Bybee, has called a "get out of jail free card." Goldsmith himself, along with his successors as OLC heads under Bush -- Daniel Levin and Steven Bradbury -- also deserve medals for secretly allowing the torture tactics to continue even after the administration rescinded the initial memo when the Post published it. Tellingly, the Bush administration could not publicly defend, even for a moment, what everyone had signed off on in secret; but Goldsmith, Levin, and Bradbury ensured, in subsequent secret memos and authorizations, that the CIA's illegal program could go on.

And what about Rodriguez himself, who valiantly ordered the destruction of the best evidence of the torture tactics? Surely erasing that evidence made it easier to clear all of responsibility, and warrants still another medal for distinguished service.

But why stop there? What about the planners of the Guantánamo Bay military commission courtroom, who installed a thick Plexiglass wall between the well of the courtroom, where the defendants will sit, and the public, for the express purpose of shutting off the sound anytime a defendants dares utter a word about his torture at the hands of the CIA's interrogators? Or the unnamed government official who made the brilliant and Orwellian decision to classify the detainee's own accounts of what they suffered in the CIA black sites, ensuring that neither they nor their lawyers can talk publicly about what happened?

And while he's at it, why not give an award to David Margolis, the Justice Department official who vetoed the department's own Office of Professional Responsibility, which had recommended referring Yoo and Bybee to their respective state bars for disciplinary charges in connection with the legal memos they wrote authorizing torture? And for that matter, President Barack Obama certainly deserves a medal for insisting that we must look forward, not back, and opposing even a bipartisan commission to examine the war crimes committed in our name.

All of these individuals played a critical role, surely as essential as John Durham's, in ensuring that no one would be accountable for the cruel and inhuman abuses that CIA interrogators inflicted on their captives. Why should Durham be the only one honored for ensuring that in America, no one even has to say sorry for torture?

AFP PHOTO/HO/US ARMY