Territorial Status andRight to Self-Determination of the Ryukyu Islands

LUO Huanxin*

Abstract: The right to self-determination is a fundamental principle enshrined by international law as well as an equally important collective human right. What this principle exactly stands for and entails has always been controversial and sensitive. However, despite potential controversy, there has been consensus in a traditional sense that people living in colonial, trust and non-self-governing territories are entitled to the right to self-determination. In the doctrines of law, the right to self-determination is also referred to as the “colonial self-determination”, “traditional self-determination”, or “classical self-determination”. The status of the Ryukyu Islands has been a contentious issue since 1879, when the “Disposition   of Ryukyu” was implemented. In the aftermath of World War II, there was an opportunity to deal with the issue on the Ryukyu Islands. As the U.S. won over     Japan, the 1951 Treaty of Peace with Japan and 1971 Agreement between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands established the basis for the aforementioned States to successively share the control of both. The Ryukyu Islands, qualifying as a trust territory, enable its inhabitants to claim the right to self-determination. So that, if the people from the Ryukyu Islands demand independence from their administering States or incorporation into a neighboring State, this demand would not count as an act of as separatism orsplittism.

Key Words: the Ryukyu Islands; Okinawa; Territorial status; Self- determination; Trusteeship

Ryukyu is the shorten form of the Ryukyu Kingdom in history, and of the  Ryukyu Islands in geography as well, which are currently under the  administration and control of the Okinawa Prefecture (referred to as “Okinawa” in short), Japan.[1]The Ryukyu Islands are a long chain of islands in the Western Pacific Ocean. Extending southwestward between the Kyushu Islands and the Taiwan Island, they can be divided into Northern, Central and Southern.[2]The Central part is constituted by the Okinawa Islands. Among them, the Okinawa Island is the largest island in    the Ryukyu Islands. The jurisdiction of Ryukyu has changed several times through history. With an area of around 2,270 square kilometers and a population of about

1.3 million, the Ryukyu Islands in a narrow sense are currently under Japanese “domination”.[3]

Consequently, the independence and self-determination of the Ryukyu Islands has long been an issue. In the past, the Ryukyu Kingdom was one of the most          stable and sustained tributary State of China. Because of this history, the Ryukyu Islands possess a unique cultural characteristic and related political autonomous   status. The implementation of the “Disposition of Ryukyu” by Japan in 1879 made its legal status a “mystery”. In 1945, when the U.S. defeated Japan, the Ryukyu Islands could have reverted the loss of its territorial autonomy. Unfortunately, this opportunity went lost: firstly because of the military occupation and administration oftheislandsbytheU.S.;andsecondlybytheadministrationofJapan,whichwas unilaterally authorized by the U.S. in accordance to the 1971 Agreement between   the United States of America and Japan Concerning the Ryukyu Islands and the    Daito Islands (namely “Okinawa Reversion Agreement”). Studies have amply demonstrated that, under World War II’s post-war settlement, the Ryukyu Islands qualify as “potential candidates for trusteeship among territories”. Consequently, Japan, as  the state exercising administrative power at  the present time, lacks  a legitimate basis to exert its sovereignty over the Ryukyu Islands.[4]Currently, the Ryukyu Islands, despite being under Japan’s administration, are still partlycontrolled by the U.S., who has retained a large number of U.S. military bases on them.[5]As a result, the Ryukyuan people are living in the political dilemma between the U.S. and Japan. In fact, the Ryukyuan people have repeatedly protested against the U.S. military bases and, accordingly, issued several calls for self-determination due to the legitimate concerns about the storage of nuclear weapons on such bases and dissatisfaction with the base’s nuisance practices. Important as these concerns are, the unique territorial status of the Ryukyu Islands, rather than the existence of the U.S. military bases, represents the most legitimate ground on which the right to self-determination can be claimedfrom.

Although the right to self-determination is the first collective human right        and the most important fundamental human right recognized by the international community, the subject and mode of exercising this right has been fraught with controversy. Controversy has stemmed from the yet unclear distinction between      the right to self-determination and separatism as well as relationship between the right to self-determination and principles of territorial integrity. Taken together, these two set of issues have furthered the complexity and sensitivity of the matter here discussed. However, when existence of the right to self-determination is clearly distinguished from the political phenomenon of separatism and splittism,  thereisacertainconsensusthatthepeoplewhichliveineithertrustterritoriesor non-self-governing territories that have existed since the colonial period before     World War II have the right to self-determination. Since this consensus amounts to State that the sovereignties of the trust and non-self-governing territories do not belong to their administering or controlling States, the right to exercise self- determination of the former is, by definition, not in conflict with the territorial     integrity of the latter. Their right to self-determination is the most fundamental and indisputable.Thisrighttoself-determination,indoctrine,isalsoknownas“colonial self-determination” or “traditional self-determination”. From this perspective, if      the Ryukyuan people call for a referendum to demand independence from their administering States or incorporation into a neighboring State, this demand would not count as an act of as separatism or splittism.[6]Since there are only a few studies focusing on the territorial status of the Ryukyu Islands in relation to the right to self-determination as defined in international law, this article will focus on such analysis from thisperspective.

I. The Right to Self-determination Related to the Territorial Status in Which the PeopleReside

The right to self-determination, which is also known as the “right of peoples    to self-determination” or the “right of nations to self-determination”, originated from the national practices of decolonization and independence movements. This right is a basic principle of international law and collective human right, while also representing a thorny issue. On the basis of the broader provisions on the right to self-determination which the Charter of the United Nations and other existing international law documents have provided, States around the world have adopted different interpretations on the right to self-determination in practice. This was particularly the case for States where population groups advocating separatism        and splittism have attempted to use the aforesaid right to achieve their objectives, making the situation extremely complex and sensitive. Despite the variety of interpretations of the right to self-determination in various social environments and typesofideologies,thereisaconsensusthatpopulationslivingintrustandnon-self-governing territories are entitled to claim the right to self-determination.

A.      The Emergence and Issues of the Right toSelf-determination

The right to self-determination was gradually accepted in international law after World War II, when the rise of national liberation and independence movements around the world gradually disintegrated the colonial system. As a        result of these movements’ struggles, the right of peoples to self-determination        was included in the Charter of the United Nations alongside with the principle of sovereign equality of States. The Charter of the United Nations Art. 1(2) clearly   states,

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

Subsequently, on 14 December 1960, the United Nations General Assembly (hereinafter “General Assembly”) adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples, which reaffirmed “the need for     the creation of conditions of stability and well-being and peaceful and friendly  relations based on respect for the principles of equal rights and self-determination of all peoples”.[7]Following, on  14  December 1962, General Assembly issued the Declaration on Permanent Sovereignty over Natural Resources and, as well, established the United Nations Commission on Permanent Sovereignty over Natural Resources “to conduct a full survey of the right of peoples and nations to permanent sovereignty over their natural wealth and resources, having noted that   this right formed a basic constituent of the right to self-determination and, where necessary, to make recommendations to strengthen such sovereignty”.[8]In 1966, on the basis of the Universal Declaration of Human Rights, General Assembly  also implemented the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which Art.1 defines the right to self-determination. Afterwards, in 1970, the Declaration on PrinciplesofInternationalLawConcerningFriendlyRelationsandCooperation among States in Accordance with the Charter of the United Nations reaffirmed the right to self-determination once again.

The right to self-determination is the most important collective human right     that the international community has first acknowledged and enshrinedaccordingly. It radically subverted the traditional view that “human rights can only be individual rights” in the field of international human rights.[9]However, although the right  to self-determination has been affirmed in all the above-mentioned international documents, its exact definition and related connotations are not yet unified. This     has resulted in different understandings, among governments and academics, of      the subject as well as connotation and modalities through which this right can be legitimately exerted. For example, who has the right to self-determination? Who     are the “people” entitled to self-determination? How can we distinguish the right of peoplestoself-determinationfromminorityrightsandindigenousrights?Whilethe right to self-determination is a collective human right, can it also be an individual human right? Moreover, how can the right to self-determination be exerted? What is the difference between self-determination and autonomy? How to distinguish the right to self-determination from the right to separation? What is the difference between the right to self-determination and democratic rights? As Professor James Summers,aprominentinternationaljurist,hasnoted:“Self-determinationisnotjust contested, but notoriously ambiguous.”[10]A positivist approach would emphasize    the legal sources of peoples’ rights rather than their underlying values, who may  define self-determination as a general principle, serving as a basic, overarching guidelineandasetofspecificcustomaryrulesdealingwithindividualissues.”[11]

B.       Whether the Right to Self-determination Is Controversial Is in Relation to the Territorial Status in Which the PeopleReside

Disputes over the right to self-determination can be divided into two main    camps, East and West. Among them, the East Camp represented by the third world have maintained that the subject of the right to self-determination (that is, the concept of “people” or “nations”) only refers to the people who could have but   did not obtain independent sovereignty, which include populations who reside in  either trust and non-self-governing territories or in territories that are “conquered, occupied and exploited by a foreign state”. This stance is mainly based on the history of the right, which, being interspersed with the process of decolonization of the oppressed people or nations, entailed the achievement of sovereign independence represented by the Declaration on the Granting of Independenceto Colonial Countries and Peoples in 1960. Such objective was achieved by both peaceful and non-peaceful means. Peaceful means mainly included legal agreements and referendums while non-peaceful means refers to armed struggles.[12]Scholars from Western developed countries have not denied colonized peoples’ right to self-determination.[13]However, they placed greater emphasis on the universal application of the right to self-determination to all peoples[14]and further linked it to autonomy, democracy and electoral politics. Professor Antonio Cousins is the leading exponent of this stance. He is the first scholar who systematically divided the right to self-determination into internal self-determination and external self-determination[15]while also observing that self-determination does not only represent a powerful means to achieve national independence but also a fundamental tool to establish democracy. According to his twin division, external self-determination pertains to a collective human right which usually related to the liberation from colonial rule, as well as the establishment, independence and separation of a State. Internal self-determination, in contrast, often refers to individual human rights which involves the participation of people of a State in democratic governance andautonomy.[16]

Conversely, most developing countries have opposed the linking of self- determination to democratic rights as it might be used by other States as a pretext    for them to interfere in their own internal affairs as well as exploited by separatist movements and thus jeopardize the territorial integrity of their countries. As Professor BAI Guimei of Peking University has noted that the concept of “internal self-determination”, which is inspired by the “Reservations Clause” of the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,   does not exist in current international law. Consequently, as it has so far been elaborated within international law, the principle of the right of peoples to self- determination has mainly applied to formerly colonized peoples, who have exerted this right primarily through armed struggle to establish new independent States.  If strictly divided, the self-determination in current international law should be    externalself-determination.[17]

In short, the debate over the right to self-determination has not ceased since     the day it entered the arena of international law. As mentioned above, historically,   it was associated with fascists, communists and liberals, as well as claimed by government authorities, national liberation movements and indigenous people.[18]Despite the controversy that these claims have engendered from time to time, to  record, the right to self-determination for people who live in trust and non-self- governing territories and colonies has never been disputed. This basic consensus, known as “colonial self-determination”, “classical determination”, has also been definedas“externalself-determination”.[19]Theself-determinationinatraditional sense is the basis for its acknowledgement as a fundamental principle and basic   human rights in international law. Consequently, international law enshrined this  right as long as the people who claim it reside in trust territories, colonies or non- self-governing territories.

II. Origin of Ryukyu Islands’ Status Issue: 1879 “Disposition of Ryukyu” byJapan

There has been a clear record in historical accounts that China discovered     Ryukyu and relations between these kingdoms date as far back as the Sui (581 AD- 619 AD) and Tang (618 AD-907 AD) Dynasties of China.[20]The earliest feudal kingdoms on the Ryukyu Islands were established around the 12th century. In the fifth year of the reign of Emperor Hongwu of the Ming Dynasty (1372), three RyukyuanKingdoms,Beishan,ZhongshanandNanshan,begantopaytributetothe imperial court of the Ming Dynasty. On this occasion the Emperor Hongwu issued an official edict to dispatch envoys to the Ryukyu Islands. Since then, Ryukyu Kingdoms formally developed a tributary relationship with China. SHANG Bazhi (ShouHashi),theRyukyuanKingofZhongshan,conqueredBeishanandNanshan respectively in 1416 and 1429. As a result, the aforementioned three kingdoms     merged into what became eventually known as the Ryukyu Kingdom (or  “thefirst Shou Dynasty”). Upon reception of his canonization, the king of the Ryukyu Kingdom paid tributes to the emperor of China for generations. The Ryukyu Kingdom followed the Chinese era name and calendar as well as accepted an all- round impact of Chinese influence upon its politics, culture, social economy and   other aspects. However, the imperial court of China did not interfere in the internal affairs of the Ryukyu Kingdom, allowing its king to run the State as if it was “an independent State”. Being one of the most loyal tributary States of the Ming and   Qing Dynasties, the Ryukyu Kingdom maintained a suzerain-tributary relationship with China for more than 500 years.[21]

In contrast to China, Ryukyu Islands’ relationship with Japan started later with the Meiji Restoration in 1868. In this period, Japan’s economy experienced rapid economic growth which gradually led the State to pursue a militaristic path of aggressive expansion. At that time, the Qing Dynasty was instead facing domestic and foreign strife, which enabled Japan to take some Chinese and neighboring territories as main targets of its territorial expansion. For instance, in 1874, Japan invaded Taiwan during February to December. In 1875, it signed the Treaty of Saint Petersburg with Russia on the exchange of Sakhalin Island and Kuril Archipelago. In October 1876, it announced to the world that Japan had taken over Ogasawara Islands.[22]In 1879, 10 years after the implementation of the Meiji Restoration when its national strength was at the peak, Japan issued the “Disposition of Ryukyu”,     which interrupted the tributary relationship between the Ryukyu Kingdom and   China. Following, Japan sent 450 soldiers and 160 police officers in April 1879      (the 12th year of the Meiji Period) to suppress the “Han (Clan)” of Ryukyu, which had had no military garrison installed for 200 years, as well as to force their king     to move to Tokyo. Consequently, the Ryukyu Kingdom was first abolished and renamed then annexed to the Prefecture of Okinawa, which was ruled by the emperorofJapan.Nonetheless,theso-called“DispositionofRyukyu”,[23]makingthe territorial status of the Ryukyu Islands an “unsolved historical mysteries”, cannot    be legally regarded as either a conquest or a cession, or any other means through which territories could be legitimately acquired according to the international law    of that time.

A. IntertemporalRule

Any discussion on the legal effect of the “Disposition of Ryukyu” and legal status of the Ryukyu Islands in international law 1879 must take the content and   effect of international law as a frame of reference. International law is the product   of the evolution of international relations, which was not needed until many States were absolutely independent of each other.[24]In light of the distinction in between, international law during the Ming (1368-1644) and Qing (1636-1912) Dynasties of China could not be mentioned in the same breath as contemporary international law and should be better assessed following the principle of “intertemporal rule” than contemporary international law.

In the famous 1928 Island of Palmas Case, the Swiss arbitrator Max Huber, summarized the meaning of  intertemporal rule as  follow: “As regards  the question which of different legal systems prevailing at successive periods is  to be applied in a particular case (the so-called intertemporal law), a distinction  must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the  conditions required by  the  evolution of  law.”[25]The intertemporal law deals with applicable time of a certain rule rather than the validity of time. If the law took effect in any form in the distant past while relevant legal rules have evolved or changed, the question then arises as to whether the    originaloldlawortheexistinglawwillbeapplied.Injurisprudence,theprincipal which approximates the one of intertemporal law the most is the “Principal of Non- Retroactivity of Law”. According to this principal, the rules of modern law cannot be used to explain and regulate past situations and events.

B. Ryukyu as a Vassal State of China in the Ming and QingDynasties

According to the principle of intertemporal law, only the provisions stipulated in the international law from the 14th to 19th century on State, sovereignty and territories should be applied to determine the legal status of the suzerain-vassal relationship between China and the Ryukyu Kingdom. State and sovereignty    came into being as concepts in international law with the advent of Christian civilization in Europe: The term “sovereignty” was first used in political science by Jean Bodin in his treatise “The Republic” (1576). Influenced by the founder of French absolutism Louis XI’s doctrine of centralized government, Bodin defined sovereignty as the “absolute and permanent power” of the State which is subject to no limitation except for the commandments of God and laws of nature. As an attribute, sovereignty is in the hands of the king when living in a monarchy and it is vested in the people when living in a republic. This definition was widely   accepted by most political scientists in the 16th century. In the 17th century, it was gone beyond by Thomas Hobbes’ elaboration of the concept, in which sovereignty was similarly understood as an unfettered power over everything (even including religion). In the 18th century, the concept was distinguished in “absolute/complete sovereignty”,“relative/incompletesovereignty”and“semi-sovereignty”.According to this distinction, absolute/complete sovereignty belongs to monarchs who enjoy unlimited power at home and abroad while relative/incomplete sovereignty or semi-sovereignty belongs to monarchs who are more or less dependent on other monarchs with regard to the administration of domestic and foreign affairs. In 1787, as American federal government was founded, debates about the divisibility of sovereign power between the federal and states governments began to receive attention by the international community in 19th century. In this regard, it is generally believed that the principle that sovereignty could be divisible was not entirely accepted by the international community of thetime.[26]

There is no doubt that China was an absolute monarchy. As a matter of fact, the emperor had uninterruptedly held absolute sovereignty from the foundation of the Qin Dynasty in the 221 BC until the Xinhai Revolution in 1911, especially in the Ming and Qing Dynasties when China was a unified empire with vast territory. Throughout all those centuries, the emperor represented the supreme legal authority of the State and embodiment of the absolute power of the State. Japanese Scholar Kikoh Nishizatou comprehensively summarized the procedure and political significance of the tributary relationship which existed between China and the   Ryukyu Islands during Ming and Qing Dynasties in his treatise, Studies on the   History of Relations between China, Ryukyu and Japan in the Late Qing Dynasty.  He wrote:

(1) The tributary States, by receiving royal investiture from the emperor of the suzerain (Ming and Qing Dynasties of China) to get their own king officially recognized and by sending frequent missions to tribute local products, established a monarch-subject relationship with the suzerain. Therefore, the relationship between the suzerainty and the vassal State (the suzerain-vassal relationship) allowed the suzerain to politically dominate the vassalState.

(2) The suzerain (Ming and Qing dynasties) does not interfere in the internal affairs (code of ethical conduct) of the vassal state and allows it to enjoy    self-rule as an “autonomous nation” on the condition that the vassal state faithfully fulfilled its obligations (the promises between the monarch and his subjects). However, the suzerain would impose sanctions, including military actions, if the vassal State was considered to have violated the covenant, in    order to assume responsibility for maintaining the political order within the tributesystem.[27]

The emperors of the Ming and Qing Dynasties were typical absolute monarchs. The king of the Ryukyu Kingdom must receive conferment by the Chinese emperor to have the legitimacy. The emperor of China was the only supreme power who moreover held absolute sovereignty over both China and the Ryukyu Kingdom.  To become the king of Ryukyu, as a courtier, must be appointed as such by the emperorofChina.ThevassalkingsofRyukyubenefittedfromthesamestatus and investiture procedure as the local government ministers of China (therefore, the tributary is also called the vassal, which means subservient/vassalage to the emperor of central imperial court). As a tributary State, the Ryukyu Kingdom was legally part of Chinese Empire’s territory and sovereignty over the former kingdom belonged to the emperors of the latter. In some regards, Chinese emperor’s letter of conferment to the king of Ryukyu, acting as a letter of appointment in the legal sense, retained the title of Ryukyuan King as the local authority. At that time, the sovereign form of the China-Ryukyu relationship is similar to the contemporary “one country, two systems”, where the central government of the China nominated the King of Ryukyu as the supreme local authority and invested him withconsiderable political autonomy within his ownjurisdiction.[28]

During the tributary period, the use of Chinese era name, characters and calendar in the Ryukyu Kingdom further demonstrates Ryukyu’s recognition of the absolute sovereignty of the Chinese Emperor. In this regard, as Japanese scholar Toshirou Obata has noted:

In the past, China has long maintained a unique China-centered international order, namely the “Hua-Yi Order (the China-vassal States’ International Order)”. Within the international state system centered on China, the neighboring tributary States all belong to China. The former tributary and title-conferment relationship between them is the most concrete manifestation  of this suzerain-vassal relationship.29[29]

From this perspective, he emphasizes:

For China, the Ryukyu Islands deviate from the Diaoyu Islands, which are never deemed as are not foreign countries, but are seen as within the scope of its suzerainty, so that the islands are understood as under China’s sphere of influence.[30]

By “sphere of influence”, Obata means sovereignty in that, back then, the supreme sovereignty of the emperor under absolute monarchy was absolute thus indivisible. The voluntary allegiance and attachment of the Ryukyuan king to the Chinese emperor was an affirmation of the sovereign State as the “unique supreme authority”. In terms of the intertemporal law and international law at that time,       unlike European political science, there was no theory or concept of sovereignty  in China, but China’s formal and complete title-conferment system shows that  within the territory of Empire of China in the Ming and Qing dynasties, there was   no supreme leader with the same authority in law as the Chinese emperor. This is consistent with the definition of sovereignty as elaborated by Bodin and Hobbes. Accordingly, the Ryukyu Kingdom must be considered as not an “independentsovereign state” but a self-governing territory (known as “tributary territory” then   in the ancient parlance). As a matter of fact, during the Ming and Qing dynasties, both Ryukyu and Fujian Province were held as under the jurisdiction of the central imperial court of China, enjoying equal status at the administrative level. According to these dynasties’ records, there was even a geographical boundary, the “Heishuigou” (“Okinawa Trough”) to distinguish the Ryukyu Islands and Fujian Provincewhichborderingeachother.In1640,inoneofitsofficialcommunications addressing the Fujian Province, the king of Ryukyustated:

Forgeneration,theRyukyuKingdomhasbeenlocatedintheeastcornerofthe Empire, vitally interrelated with the central imperial court, it is only separated from the adjacent Fujian Province by a nature ready-made geographical boundary.

Due to its width, color, flow direction and other geographical and geological characteristics, “Heishuigou” has become the nature ready-made boundary between the Ryukyu Kingdom and Fujian Province. As ZHOU Huang stated in Annals of the Kingdoms of Ryukyu in 1756:

The Ryukyu Islands are surrounded by the sea. In the west, there is Heishuigou as the sea boundary between Ryukyu and Fujian. Sailing from Fujian to Ryukyu, you must pass through the Cangshui and Heishui.

The term “闽海界Min Haijie (Sea Boarder of Fujian Province)”, which is mentioned above, further demonstrates that “Heishuigou” was  regarded as  notonly a natural division by geography but also the official administrative boundary separating the Ryukyu Kingdom from the Fujian Province.[31]

C. Japan Shall Not Obtain the Territorial Sovereignty of the Ryukyu Islands by “Disposition ofRyukyu”

The “Disposition of Ryukyu” troubled the tributary relationship which had  existed between China and Ryukyu for centuries.[32]Following the principle of intertemporal law,  as the 1879 “Disposition of Ryukyu” was implemented in the   19th century, traditional international law must be applied to assess its validity.[33]Traditional international law encompasses five modalities through which acquiring territorial sovereignty: occupation, cession, accretion, conquest, and prescription. The“DispositionofRyukyu”obviouslydoesnotabidebyanymodesofoccupation accretion or  prescription.[34]Strictly  speaking,  it conforms to  none of cessionand conquest.

1.     “Disposition of Ryukyu” Was Not Obtained Through War, Thus DidNot Conform to the Mode ofConquest

Prior the signing of the 1928 Pact of Paris (known as the “General Treaty for  the Renunciation of War”  or “Kellogg-Brien Pact”), war was permitted by law as  oneofthenaturalfunctionsofaStateand,accordingly,conquestwasacknowledged as legitimate mode of acquiring territory.[35]However, to be considered legal, the      act of conquest had to abide by a few conditions. As the Permanent Court of International Justice stated on the occasion of the Eastern Greenland Case between Denmark and Norway in1933:

“Conquest” only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State.36[36]

At the time when conquest was a valid title of acquisition of territorial sovereignty, it was subordinated to the fulfilment of three particular conditions. The material element was the effective control over the seized territory after the close of hostilities. In addition, a previous declaration of war establishing the existence of a state of war among the belligerents was a formal premise. A treaty of peace putting an end to that state of war and endorsing the transfer of sovereignty was perceive as a third decisive condition”.[37]Among these three conditions, disagreement exists about the necessity of the last one.[38]However, apart from the latter two conditions, the “Disposition of Ryukyu” plainly fell short to satisfy the very first conditions, which is preliminary “declaration of war” or “state of war”.

Firstly, Japan’s acquisition of the territorial sovereignty over Ryukyu presupposed a state of war between China and Japan. However, Japan did not declare war on China when carrying out the “Disposition of Ryukyu” in 1879. Nor did China and Japan engage in a war to settle the issue. By definition,  to qualify as a war, any given conflict must be armed  conflict  between  two or more States, aiming at subjugating a rival, and the victorious party is expected to arbitrarily set the conditions of peace on the defeated one.[39]In international law, unilateral acts of force by a State against another without prior declaration of war  may be the cause of the outbreak of war, but such acts of force are not recognized  as war as long as the other party does not respond with similar hostile acts, or at   least does not declare that it considers them to be acts of war.

Moreover, even if a State conducts illegal acts of force against another, such  as occupying part of the territory of the other, they do not constitute acts of war  as long as the other State does not resort to confront them by force or, at least,    does not declare that it considers such acts to be acts of war.[40]As a case in point, although Japan, in the “Disposition of Ryukyu”, sent hundreds of soldiers and        police officer to remove the king of Ryukyu as well as abolished the Ryukyu Kingdom and annexed it as a prefecture of Japan by issuing a royal decree, neither of these actions qualified as a declaration of war nor they were acknowledged as an act of war and resisted with similar hostile acts by the Ryukyu Kingdom. Fromthis perspective, the “Disposition of Ryukyu” cannot be regarded as a war.

Secondly, the “Disposition of Ryukyu” is secretly imposed by Japan. Having been a vassal State, the Ryukyu Kingdom did not have its own armed forces and could not be granted with the belligerent status. More to the point,    in the eyes of classical international law, belligerency is a formal status involving rights and duties.[41]Only a State with full sovereignty can become a belligerent; semi-sovereign States or partially sovereign States do not legally qualify as belligerents.[42]According to the traditional international law,  as a vassal State of  China, the Ryukyu Kingdom can be considered as the same as a client State to the suzerain. As such, the Ryukyu Kingdom had no right to maintain any diplomatic relation with other States because it was taken by the suzerain China; and, accordingly, the Ryukyu Kingdom could act independently from China only within the sphere of internal affairs as a semi-sovereign State. In other words, even when   it is considered as a client State, the Ryukyu Kingdom was but a part of China and, as such, albeit it could enjoy international recognition, any treaty concerning it had to be signed by as well as applied to the suzerain State if there were no exceptions. Wars involving the suzerain undoubtedly involve the client States aswell.[43]

As Kikoh Nishizatou has stated in his book:

In the process of sending troops to Taiwan, the Meiji government took measures on Ryukyu in October 1872 (the fifth year of the Meiji period). Shou Tai, the last king of Ryukyu was enforced to become a Marquis of Japan, with the kingdom transformed into “Okinawa Han”. This measure is definitely a thoughtful deployment to treat the “sovereignty” issue of the Ryukyu Islands    as Japan’s “internal affairs”. However, the kingship of the Ryukyu Kingdom was ultimately conferred by the suzerain, Qing Dynasty of China. Therefore,  aslongastherelationshipbetweentheQingDynastyandtheRyukyuKingdom lasts, the Meiji government shall not arbitrarily treat Shou Tai, who had been conferredasthekingofvassal,asacountymagistrateofJapan.The“abolition of vassal” in a legal sense shall be between China and Japan instead of Ryukyu and Japan.[44]

After that, although the First Sino-Japanese War broke out in 1894, it mainly concerned territorial issues in Korea and Taiwan, not involving the territorial   issue of Ryukyu. All these things considered, Japan’s “disposition” of the Ryukyu Kingdom did not conform to “conquest” as a method of acquiring territory

2.      “Disposition of Ryukyu” Did Not Result in Any Conclusion of Treaty Between China and Japan, Thus Did Not Conform to the Mode ofCession.

Cession is an understanding under international law by which territory is transferred from one State to another with the consent of both States. It is one of      the modes by which States can lawfully acquire territory, and since it is based on mutual consent, it is presumably today the mode having the greatest practical relevance.[45]As cession requires the consent of both States involved, it normally     takes place by means of a treaty or any other form of understanding.[46]In 1879, the Qing government of China lodged a protest against Japan. This protest paved the    way for a treaty negotiation between China and Japan which was, however, never completed. As no agreement was reached between the two parties, China never      ceded its sovereignty over the RyukyuIslands.

At the request of the Qing government, former U.S. president Ulysses S. Grant also mediated Sino-Japanese talks over the Ryukyu Islands during his travel in East Asia in 1879. When meeting with Grant in June 1879, LI Hongzhang stated that:

It does not matter if the Ryukyu Kingdom pays tributes to China. What matters is that the king of Ryukyu has always been conferred by China. Japan had no right to remove the king of Ryukyu, which is a violation of international law.   This had never happened to any other country.

Likewise, Grant claimed that:

The Ryukyu Kingdom was a State that enjoyed self-rule. Japan aimed at expanding its territory by annexing the Ryukyu Islands. It is quite reasonable for China to strive for territory, not just for tribute. To make it clear, another special article is needed in the future.[47]

A protracted negotiation between China and Japan over the status of the Ryukyu Kingdom followed LI Shuchang, who was Qing Dynasty’s second envoy to Japan, with the renegotiation of the Ryukyu dispute as his mission, resided in Japan for nearly ten years, from when he first took office in late 1881 (the seventh year of the reign of Emperor Guangxu) to the end of 1890 (the sixteenth year of the reign of Emperor Guangxu) when he returned from second term in office.

At the suggestion of President Grant and John A. Bingham, who was then the U.S.’ envoy to Japan,[48]the Qing government first proposed to separate the Ryukyu Islands as follows:

ThecentralislandsbelongtotheRyukyuKingdomwhichshallberestoredwith its monarch re-established. China and Japan can avail themselves of consular protection respectively: the southern islands, which are close to Taiwan and of strategic importance to China, belong to China; the northern islands, which    are close to Satsuma and of strategic importance to Japan, belong toJapan.[49]

However, Japan rejected China’s proposal and, instead, advanced the following division: the northern and central islands (Okinawa Island) to Japan, and the southern islands (Miyako, Yaeyama) to China.[50]

As these Sino-Japan negotiations were taking place, the Qing dynasty had to face a border dispute with the Russian Empire over Ili. For  fear that Japan and Russia might have joint forces, the Qing government decided to agree to  Japan’s proposal on the division of the Ryukyu Islands into only two sections but  also obtained for the Sino-Japanese Trade Treaty to be amended so that it could include provisions allowing the Japanese to trade with mainland China.[51]Known    as the “Case of Islands Division and Treaty Amendment”,[52]this treaty concerted provisions on trade in addition to the equal division of the Ryukyu Islands to make enjoy “Most Favored Nation treatment”.[53]The negotiations in the case lasted from 18 August 1880 to 21 October 1880. However, in spite of the fact that a basic consensus had been reached after eight formal negotiations during the 64 days, the treaty was never formally signed. In other words, since the agreement was not ratified, not formal “cession” has everoccurred.

Hence, the status of the Ryukyu Islands has been “pending” for several decades. Since then, China has never recognized Japan’s “rule” on the Ryukyu Islands. From the late Qing Dynasty to the defeat of Japan in World War II, CHIANG Kai-shek, FENG Yuxiang, SOONG Tse-ven and others had successively stated their intention of “Taking Back the Ryukyu Islands”.[54]

It can be seen that from the “Disposition of Ryukyu” in 1879 to the end of      World War II, Japan’s rule over Ryukyu was never recognized by China, the Ryukyuan people or the entire international community.[55]The essential reason is     that Japan’s “Disposition of Ryukyu” represented a unilateral act not in accordance with the conditions set by traditional international law at that time and did not    conform to any modes of acquiring territory.[56]

III.   Ryukyu Becoming a Potential Candidate for Trusteeship

The Ryukyu Islands attained a chance to redispose its territorial status at the     end of World War II. After occupying Japan in 1945, the Allied Powers split the Ryukyu Islands from Japan, terminating its destiny as one of Japan’s colonies.  However, when the Korean War broke out in 1950, the Ryukyu Islands were again used as a bargaining chip in political deals. As shown in the 1951 San Francisco Peace Treaty, albeit ambiguously, the Ryukyu Islands and Daito Islands were placed under the U.S. trusteeship system, making the U.S. their sole administering authority. Following the outbreak of the Vietnam War in 1955, the Ryukyu Islands became a key location of the U.S. Pacific defense perimeter, and were again reduced to a bargaining chip when the Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands was signed in 1972. In accordance with the Agreement, the U.S. privately transferred the administration over the Ryukyu Islands to Japan on the condition that a mass of US major military bases would have been retained in Ryukyu. From then on, Japan has been exercising administration of the Islands.

A.          Occupied Differentially by theU.S.

In the aftermath of World War II, Germany was split into four occupation     zones, which were administered by France, the UK, the U.S., and the Soviet Union respectively. Such joint administration caused chaos in the postwar Germany.   As the Cold War began in 1947, the relationship between powers in the Eastern Bloc (the Soviet Union and its satellite States) and the Western Bloc (the U.S., its NATO allies and others) deteriorated. To prevent the chaotic state of Germany from recurring in Japan, the resolution concerning the Soviet Union’s joint occupation    of Japan was cancelled. With the exception of the western region of Honshu, which was occupied by the UK, [57]most of Japan was exclusively placed under control of   the U.S. Neither China nor the Soviet Union wasinvolved.[58]

WhenU.S.troopscontrolledJapan,RyukyuIslandsweretreatedasa“territory detached from an enemy State”, for Japan and the U.S. were still in a state of          enmity during the period between the end of World War II and the signing of the Treaty of Peace with Japan in 1951. On the basis of the post-surrender policy which was formulated for Japan prior to World War II, Japan was placed under indirect control of the Supreme Command for the Allied Powers (SCAP). That is to say, the Mikado system was reserved, and Japan was indirectly ruled by the SCAP through the Japanese government.[59]Unlike other areas of Japan, the Ryukyu Islands were ruled as a “detached disposition” as well as treated by the SCAP as an “areaoutside ofJapan”[60].

In international law, the U.S. military authority over Ryukyu is referred to as “occupation during the war”. Occupation is different from invasion in that the former refers to the provisional control by a certain ruling power over a territory while the latter aiming at the acquisition of a territory.[61]If either of the States at war successfully occupies the whole or part of the other’s territory, it will have  achieved an important dual goal of war, that is, using the territorial resources of the vanquished State for military purpose and safeguarding military victory with provisional ownership over it, thus forcing the vanquished State to accept the conditions of peace imposed on it.[62]

B.           Defined as a “Potential Candidates for Trusteeship” in Treaty of Peace with Japan

Though Ryukyu was occupied by the U.S., its actual territorial statuswasstillpending.U.S.’militarycontroldidnotaimatterritorialacquisition.Inthisregard,signingapeacetreatyrepresentedthemostlogicalstrategytoterminatethewar.On4September1951,52nationsgatheredforthelasttimeinSanFranciscotonegotiate and conclude a treaty of peace with Japan. The treaty adoptedon this conferencewas Treaty of Peace with Japan. However, also known as the SanFranciscoPeaceTreaty, this treaty wasone-sided as it prioritized the strategic interests of theU.S.China,whohadundertakenan8-year-longwarofresistanceagainstJapan,wasnot invited.Amongtheinvitednations:theSovietUnion,PolandandCzechoslovakia refusedtosignthetreaty.India,BurmaandYugoslavialikewiserefusedtoparticipate.4ofthe52attendingStatesdidnotsignthetreaty,andtwoofthefourleadingAlliedPowers–ChinaandtheSovietwerenotthesignatoriestothistreaty.[63]

TheonsetoftheKoreanWarrepresentstheU.S.’realincentivetoexcludeChinaandtheSovietUnionfromthepeacenegotiationswithJapan.TheKorean War,whichbeganon25June1950,puttheRyukyuIslandsbackonthemapof thegeopoliticalandmilitaryinterestsoftheU.S.,makingstrategicsignificanceof JapantotheU.S.greatlyboosted.TheformerRepublicanforeign-affairsspokesman JohnFosterDulleswasappointedasasenioradvisorattheSanFranciscoconference. Heformulatedthefinaldraftofthepeacetreaty.Article3oftheDulles-draftededitionis concerned with Ryukyu. In previous drafts of the same treaty, articlespertainingto Ryukyu clearly stated that “Japan should abandon its sovereignty overtheRyukyus”.[64]

IntheDullesdraftofthetreaty,whichwasgrantedbyJapan,theaforementioned statement, however, was removed in favor of the vaguely wordedArticle 3,whichplacedtheRyukyuIslandsunderthetrusteeshipsystem[65]oftheUnitedNationswiththeU.S.asthesoleadministeringauthorityupontheapprovaloftheUnitedNations GeneralAssemblyorSecurityCouncil.[66]ThisarticlealsomadeprovisionfortheU.S. to administer the Ryukyu Islands till the trusteeship system was fully set in place.[67]

In the Max Planck Encyclopedia of Public International Law, the entry of    “United Nations Trusteeship System” states that according to the Article 3  of     the Treaty of Peace with Japan, since trusteeship was never implemented,[68]the Ryukyu Islands can be regarded as a “potential candidate for trusteeship among territories ‘detached from enemy states’”.[69]Furthermore, as the treaty drafter John Foster Dulles pointed out in the speech concerning “residual sovereignty” that he delivered at the signing of the Treaty of Peace with Japan, Ryukyu Islands were “territories which may be detached from enemy states as a result of the Second      World War” (as said in Article 77 of the Charter of United Nations). Moreover, as  he added: “the future trusteeship agreement will, no doubt, determine the future civil status of the inhabitants in relation to Japan ... ”[70]Known as the “Residual Sovereignty Notion”,71 [71]Dulles’s statement further emphasizes how Japan did not  retain any sovereignty or sovereignty basis over the Ryukyu Islands. As Article 77 of the Charter of the United Nations setsforth:

The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:

a. territories now held undermandate;

b.   territories which may be detached from enemy states as a result of the Second World War;and

c. territoriesvoluntarilyplacedunderthesystembystatesresponsiblefortheir administration.

As this passage illustrates, the Ryukyu Islands belong to the category of “territories which may be detached from enemy states as a result of the Second World War”.[72]In this regard, its sovereign status should be determined through the UN trusteeship system, which includes signing the trusteeship agreement.

C.          Territorial Status Pending under 1971 Agreement Concerning the Ryukyu Islands and the DaitoIslands

The Treaty of Peace with Japan conferred the U.S. with the right to administer the Ryukyu Islands with the objective of placing the Ryukyu under the trusteeship   of the United Nations. However, during its 20-odd-year administration of Ryukyu, the U.S., as the administering authority, never carried out any act to place Ryukyu under the UN’s trusteeship system.[73]With the outbreak of the Vietnam War, the Ryukyu Islands became a strategically important area again. Consequently, the U.S. and Japan privately signed the Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands in 1971.[74]The signing of this bilateral agreement permitted for the resolution of the issue concerning the territorial status of the Ryukyu Islands to be set aside once more as  a result of a second political deal between the U.S. andJapan.

The Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands was signed on 17 June 1971,75[75]which       was called in abbreviation by the media and the academia of the U.S. Abbreviated   as the “Okinawa Reversion Agreement”, the aforementioned Agreement could  have been easily misunderstood as an arrangement permitting the “returning of the sovereignty over Okinawa to Japan”. Despite being mentioned in the speeches, press conferences and media reports delivered on the occasion of the signing, the   textitselfoftheAgreementdoesneitherincludethewords“ReversionofOkinawa” nor mention arrangements of sovereignty-reversion-related affairs. As a matter of fact, the text of the agreement does not even employ the term “Okinawa”, as the territory in question is consistently referred to as “Ryukyu”.[76]The so-called “OkinawaReversion”issuewasembodiedinArticle1oftheAgreement:

With respect to the Ryukyu Islands and the Daito Islands, as defined in paragraph 2 below, the United States of America relinquishes in favour of      Japan all rights and interests under Article III of the Treaty of Peace with       Japan signed at the City of San Francisco on September 8, 1951, effective        as of the date of entry into force of this Agreement. Japan, as of such date, assumes full responsibility and authority for the exercise of all and any    powers of administration, legislation and jurisdiction over the territory and inhabitants of the saidislands.

As this passage demonstrates, Article 1 does not make any reference to changing of the sovereign status. Rather, it is only concerned with the relinquishing of powers   of administration, legislation and jurisdiction and the disposal of these obligations underArticle3oftheTreatyofPeacewithJapan,whichwillbediscussedlaterin this article.

The U.S. Department of State stated in its bulletin that the “Reversion of Okinawa” to Japan represented a guarantee for the enduring existence of the U.S.    in such territory, which further acknowledged Japan’s residual sovereignty over Okinawa according to the definition that Dulles provided of the notion of residual sovereignty at the San Francisco Peace Conference in September 1951.[77]The U.S. announced its standpoint beyond the frame of the treaty, thus misled the public by using the entangling “Reversion of Okinawa” with “Residual Sovereignty”. By     means of political tricks and text camouflage, the U.S. successfully deceived the     rest of the world powers and cast the Ryukyu Islands at the margins of history one more time.

Based on earlier studies, the statement of “Residual Sovereignty” can be considered a paradoxical political concept which, furthermore, cannot generate rights or obligations. The idea of residual sovereignty expressed by Dulles at the signing of the Treaty  of Peace with Japan in 1951, and the one declared by Japan   and the U.S. at the signing of the Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands, though using the same terms, differ strikingly in meanings. In his speech, Dulles expressed respect    for Article 3 of the Treaty of Peace with Japan as well as the provisions regarding trusteeshipintheCharteroftheUnitedNations.Inthisregard,hisspeechexpressed expectation for a future agreement to determine Ryukyu’s territorial status. This     was not the case when the U.S. and Japan signed the Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands in 1971. On the occasion of this agreement, the concept of “residual sovereignty” was conflated with the assumption that “Japan retains sovereignty” over the Ryukyu Islands, which was to be reverted to or “Reversion of Okinawa”.   In fact, if “Japan retained sovereignty” over the Ryukyu Islands, the Ryukyu Islands would not have ever been placed under the trusteeship of the United Nations since these two political statuses are irreconcilable with each other according to what is specified in the Charter of the UnitedNations.[78]

Hence, the Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands contradicts the provisions      that the Treaty of Peace with Japan made with regard to placing the Ryukyu Islands under the trusteeship of the UN as well as infringed the Ryukyuan people’s right to self-determination. Since self-determination is regarded as a jus cogens rule,[79]and any treaty should be void if it conflicts with the jus cogens norms,[80]the Agreement Between the United States of America and Japan Concerning the Ryukyu Islands   and the Daito Islands should be regarded as illegal and should not be considered as a legal mandate for Japan’s rule over the RyukyuIslands.

IV. Ryukyuan People Enjoying Indisputable Right to Self- Determination

According to what discussed above, the Ryukyu Islands have been a Japanese colony since the 1879 disposition. In the aftermath of World War II, the Ryukyu Islands were detached from Japan and occupied by the U.S. In 1951, the Ryukyu Islands were disposed as a “potential candidates for trusteeship among territories” with the U.S. as the sole administering authority under Article 3 of the Treaty of Peace with Japan. The status of the Ryukyu Islands was still pending. In 1971, the Agreement Between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands was signed under the table. Despite having   been referred to as the as “Okinawa Reversion Agreement”, this agreement in fact did not involve any disposition of the Ryukyu Islands’ sovereignty. Rather, it just handed over the U.S.’ administrative right to Japan under Article 3 of the Treaty of Peace with Japan. Hence, Japan’s sovereignty over the Ryukyu Islands lacks any legal foundation. Consequently, as to-be-trusted territory, people living in Ryukyu Islands have the right to claim self-determination. As argued in the first part ofthis article, while internal self-determination might be controversial in international law, external self-determination for peoples who live in “trust territories, colonies and non-self-governing territories”, is widely accepted aslegitimate.

A. Entitled to Call for Independence

Provisions for people who live in trust territories, colonies and non-self- governing territories to claim the right to self-determination are present in voluminous international law documents apart from the Charter of the United Nations and the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights provide:

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories,shallpromotetherealizationoftherightofself-determination,and shall respect that right, in conformity with the provisions of the Charter of the UnitedNations.

The 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the    United Nations also claims:

To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples   to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter … The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it …

Hence,theRyukyuanpeoplehavetherighttoclaimindependenceand,accordingly, demand for the Ryukyu Islands to be separated from the “territory” of Japan, its present administering State, thus enjoy a distinct sovereignstatus. In fact, the Ryukyuan people have aspired to independence since the onset of World War II. In name, the Ryukyu Islands are part of Japan’s territory; in reality,  the Ryukyuan people have never been treated as part of the Japanese, especially  during World War II.[81]During this battle, which was regarded by many as “the bloodiest battle of the Pacific Theater”,[82]besides being attacked by the U.S.’troops, the Ryukyuan people were also persecuted by the Japanese troops who looted food, sex enslaved local women and forced residents of all ages to kill themselves and    each other (includinginfants).[83]

During the post-war occupation period, the Ryukyu Islands were overall militarized, and the currency was made a type of military scrip called B yen.[84]The administration of the islands constantly changed hands, from the U.S. army to the navy, until the United States Civil Administration of the Ryukyu Islands (USCA)  was finally established in 1950.[85]Whenever local residents left or returned the    islands, they had to possess a Sailing Certification (like a passport or visa) which    was issued by the USCA. In 1950, the USCA released a national flag of Ryukyu    and, despite it was not widely used.[86]During the administrative period of the USCA, Ryukyuan civil ships could use it instead of the Japanese and American one.[87]Around the time when the Treaty of Peace with Japan was signed, the Ryukyuan people began to campaign for self-determination. As testified by theletter below which the author read (see Fig. 1) in Britain’s National Archives, which was sent from the Association of Indigenous People in the Ryukyus to the
 British Embassy, the Ryukyuan people denounced Japan’s invasion since 1609 and the illegal disposition of Ryukyu in 1897 besides expressing fierce resistance to Japanese rule.[88]

Fig.1 Pictures of the letter from the Association of Indigenous People in the Ryukyus.

As Ryukyuan writer Yamagata Eiji said: