The Diao­yu­tais are a group of five uninhabited islands and a few rocky reefs off Taiwan’s northeast coast, with a land area of 6.344 square kilometers. Administratively, the islands belong to Daxi Village of Tou­cheng Township, Yi­lan County. They are unsuitable for habitation due to large waves and a scarcity of fresh water and soil.

Geologically, the islands sit at the edge of the East China Sea continental shelf. They are the outcroppings of an undersea extension of the Da­tun and Guan­yin mountain range, and are part of the same island chain as Hua­ping and Peng­jia islands.

The ROC-Japan Peace Treaty affirms that Taiwan belongs to the ROC, but it is unfortunate that the treaty did not return Taiwan’s appurtenant islands along with the main island, for endless disputes have been the result.

Dr. Shaw, a research fellow at National Cheng­chi University’s Research Center for International Legal Studies, opined at the symposium: “In order to establish a basis for bilateral dialogue between Taiwan and Japan on the Diao­yu­tai issue, we have to avoid indulging in nationalism or populism. Taiwan and Japan must rely on international law and historical records to identify where sovereignty lies. Otherwise, we’ll simply be talking past each other.”

Shaw noted that Japan first laid claim to the Diao­yu­tais (called the Sen­kaku Islands by the Japanese) in 1971 in its Basic View on the Sovereignty over the Senkaku Islands, in which the Japanese Ministry of Foreign Affairs states: “From 1885 on, numerous thorough surveys of the Sen­kaku Islands were made by the Government of Japan through the agencies of Oki­nawa Prefecture and by other means. Through these surveys, it was confirmed that the Sen­kaku Islands had been uninhabited and showed no trace of having been under the control of China. Based on this confirmation, the Government of Japan made a Cabinet Decision on 14 January 1895 to erect a marker on the Islands to formally incorporate the Sen­kaku Islands into the territory of Japan.”

To examine the legality of Japan’s claim under international law, Shaw went to Japan and delved into the foreign ministry archives and the library of the National Institute for Defense Studies, where he found many historical materials with a bearing on the question at hand. Many of the items he discovered were ­Meiji-period documents that had never before been cited. Written in classical Japanese in a flowing calligraphic style, they were a bit difficult to decipher, so Shaw spent over two years copying them out verbatim, after which he translated and studied them.

The Recompiled General Gazetteer of Fujian, published in 1871, describes the Diaoyutai Islands as appurtenant to Taiwan’s Kavalan Subprefecture (modern-day Yilan).

Shaw’s exhaustive search of official ­Meiji records from the 1885–1895 period revealed that the ­Meiji government did in fact acknowledge China’s sovereignty over the Diao­yu­tais.

In October 1885, Japanese foreign minister ­Kaoru ­Inoue wrote: “Chinese newspapers have been reporting rumors of our intention to occupy islands belonging to China located next to Taiwan.... At this time, if we were to publicly place national markers, this must necessarily invite China’s suspicion....” He then ordered that the matter should “await a more appropriate time” and “should not be made public.”

Shaw looked into the matter and found that ­Inoue’s position was actually based on a communication received from To­ku­nori ­Asada, chief of the foreign ministry’s department responsible for foreign documents and communications. In a quickly dashed off note, ­Asada wrote: “For this reason, it would not be advisable to seize these tiny islets at this point in time. It would be best to avoid an unnecessary incident.”

“Notice how ­Asada uses the word ‘seize,’ and how Inoue then uses a different word—‘occupy’—to express the same idea. This document is now sitting in the historical archives of Japan’s Ministry of Foreign Affairs.”

This painting by the Qing-period artist Zhu Henian (1760–1830) depicts the Okinawa Trough as the dividing line between China and Okinawa. The work is currently on display at the Okinawa Prefectural Museum & Art Museum.

Moreover, said Shaw, the Japanese authorities keep insisting that the ­Meiji government had the authorities in Oki­nawa conduct numerous surveys of the Diao­yu­tais that always found the islands to be “terra nullius.” But he felt that this claim did not withstand scrutiny.

The refuting evidence, he reported, comes from Oki­nawa governor ­Kanji Ma­ru­oka, who pointed out in January 1892 that the Diao­yu­tai Islands had “not yet been fully surveyed.” He therefore asked the Japanese Navy to dispatch the naval ship Kai­mon to survey the Diao­yu­tais, but the survey was never done due to bad weather and problems with the transmission of orders.

On this map made in 1785 by Japanese military scholar Shi­hei Hayashi, the Diaoyutai Islands are colored red, ­indicating that they are territory of the Qing Empire.

In May 1894, the Home Ministry wrote, “The islands have not been surveyed since the police authorities of Oki­nawa had them surveyed back in 1885, so it is difficult to report anything definite.”

Said Shaw: “This document is crucial, because it’s the last official document regarding the Diao­yu­tais prior to the outbreak of the First Sino-Japanese War on August 1, 1894, which means that the ­Meiji government never conducted ‘numerous’ surveys of the Diao­yu­tais prior to that war, as they claim.”

“Japan’s annexation of the Diao­yu­tais in 1895 was done secretly. It was never announced. Even the Qing court didn’t know about it. It flew totally in the face of the ‘first occupant’ principle. The Japanese government has been stonewalling on these facts all these years. Even the Japanese people don’t know, which is why they donated ¥1.3 billion to purchase the islands.” Shaw further added that our side can stress this point, and absolutely must make its position clear to Japan.

Shaw further bolstered his argument by noting that a painting by the Qing-period artist Zhu He­nian depicts the Oki­nawa Trough separating the Diao­yu­tais from Okinawa. This work is currently on display at the Oki­nawa Prefectural Museum & Art Museum, and he urges the Japanese people to go and see it.

But in any case, as a political matter, a peaceful resolution to the dispute is desirable. One method would be to go through diplomacy. Or it might be possible to litigate the matter at the International Court of Justice, or file a case with the Permanent Court of Arbitration (PCA).

Shaw pointed to the Eritrea-Yemen Arbitration of 1998–1999 as a good case in point. For cases involving islands with a complex history, the trend in international arbitration is to render decisions that promote regional peace. In practice, this means sharing. The PCA awarded some disputed islands to Yemen and some islands to Eritrea, but then required the two parties to make shared use of the resources in the surrounding area.

For this reason, even if the international justice system can be used to resolve the dispute over the Diao­yu­tai Islands, the end result need not be a zero-sum game. Instead, it might just be, as President Ma suggested, that the parties could engage in shared development of resources. And this win-win outcome is probably what the international community would like to see.