Time for an Organised, Focused and Empowered CBI

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

The word ‘corrupt’ is defined in the Twenty-first Century Dictionary as “morally evil, involving bribery, dishonest”. The word ‘corruption’ is defined as “the process of corrupting or condition of being corrupt, dishonesty”. In India, as one supposes in every country in the world, the taking or giving of a bribe or indulging in a corrupt practice is a crime, an offence and is liable to action before a criminal court of justice as per the law in this behalf. The Prevention of Corruption Act was enacted by Parliament in 1988, but the Indian Penal Code was enacted in 1860 and subsequently amended from time to time without diluting the basic format and contents of the Act of 1860. Chapter IX of the Indian Penal Code came into effect in 1860 and though sections 161 to 165A were repealed by the Prevention of Corruption Act 1988 and the offences therein transferred to the P.C. Act, even under the 1860 Act corruption was a criminal offence. Now all matters relating to corruption have been codified under one law, the Prevention of Corruption Act (PCA), 1988. The purpose of this Act is to ensure that if there is any corrupt practice by a public servant or member of the public who, in his dealings with a public servant, commits a corrupt act, then he or she would be liable for penal action under the PCA.

Under law, the power to investigate an offence vests in the police, though other agencies of government can, by law, be given the power to investigate specific offences under particular Acts. Under the Indian Forest Act, officers of the Forest Department are empowered to investigate offences relating to the forests and to wildlife and to prosecute the offenders in a court of law. Similar powers are vested in officers of the Excise Department in relation to excise offences. However, so far as the major part of criminal law is concerned the power to investigate an offence vests in the police. Under Entries 1 and 2 of List 2 of the Seventh Schedule of the Constitution, public order and police fall exclusively within the jurisdiction of the State Legislature, which can enact laws in this behalf. However, because criminal law and criminal procedure fall in Entries 1 and 2 of List 3 of the Seventh Schedule, Parliament and State Legislatures have concurrent legislative jurisdiction, with the laws of Parliament prevailing in case of conflict. Because investigation of offence is a part of criminal procedure, therefore, Parliament has legislated in this behalf, especially through the Code of Criminal Procedure. Chapter XII Cr. P.C. lays down the procedure that the police is bound to follow when investigating an offence. The police acquires jurisdiction for such investigation only after a First Information Report relating to the commission of a cognisable offence is reduced to writing and the officer incharge of a police station, on the basis of the information received, is of the view that a cognisable offence might have been committed, which calls for police investigation. This point is important because under section 155(2), the police cannot investigate a noncognisable offence without the order of a competent Magistrate. Under section 156, Cr.P.C. a police officer acquires jurisdiction to investigate a cognisable offence. Under section 157, the police officer may either proceed with the investigation or, for reasons to be recorded in writing, may decide not to investigate the matter either because the FIR does not suggest a case of a serious nature, or the police officer finds that there is no sufficient ground for continuing with the investigation. Subject to this, the police officer is required to investigate the matter, examine witnesses, collect evidence, including material evidence, carry out searches for recovery of objects relating to the offence and taking of other measures to bring the investigation to completion, resulting either in a challan being put up against the accused or a final report being submitted to a Magistrate seeking permission to close the case. This procedure applies to every police force in this country, including the Delhi Special Police Establishment, which is the legally constituted investigating arm of an executive agency called the Central Bureau of Investigation (CBI). It is made amply clear by section 22 of the PCA that, subject to certain modifications, the provisions of the Code of Criminal Procedure, 1973 will apply to all matters relating to investigation and trial of cases under the Act.

This brings us to the machinery for taking action under the Prevention of Corruption Act. In 1946, largely emanating from widespread complaints about corruption in purchases, etc., during the Second World War, Government of India enacted the Delhi Special Police Establishment (DSPE) Act 1946, constituted a special police force for investigating notified offences in Union Territories, with the power to enlarge the jurisdiction of DSPE in the matter of area of investigation, both in terms of types of offences and in terms of territory. However, under section 6 of the Act the jurisdiction of DSPE cannot be extended to a State without the consent of the State Government. Following the footsteps of the Central Government, many State Governments also enacted similar laws for creating a special police force for dealing with corruption and other notified cases. In Madhya Pradesh, the M.P. Special Police Establishment Act, 1947, created a Special Police Establishment for the State, superintendence over which was vested in the Lokayukt appointed under section 3 of the M.P. Lokayukt Evam Uploakayukt Adhiniyam, 1981. In the case of DSPE, government has vested superintendence in the Central Vigilance Commission through the Chief Vigilance Commissioner. This, then, is the sum total of the special police force which has jurisdiction under the PCA. What, then, is CBI?

Entry 8 of List 1 of the Seventh Schedule empowers Parliament to enact legislation for the setting up of a Central Bureau of Intelligence and Investigation. In other words, Parliament can enact a law creating the Intelligence Bureau and CBI, determine the structure of these two agencies, prescribe the jurisdiction and state how and to whom there will be accountable. From the date of adoption of the Constitution to the present date, Parliament has not been requested by government to enact such legislation, nor has Parliament taken any initiative in this behalf. Instead government chose to issue a notification on April 1,1963 creating, by an executive order, an organisation called the Central Bureau of Investigation (CBI). This bureau has six divisions, one of which is DSPE, its police investigating arm. DSPE has legal sanction, whereas CBI is just another government office. This point is laboured because in the environment created by Anna Hazare, CBI has been projected as something bigger than life, a supra government organisation which has the right to interfere in just about everything relating to government. It is unfortunate that in the process the Supreme Court itself has failed to take a balanced view of the legal position of CBI, which has encouraged CBI and its officers to behave as if through one of its divisions the organisation as a whole has police powers and that in addition its officers are the executive superiors of every officer of every rank in government from whom they can demand accountability for their executive decisions.

It is neither the purport of the Constitution nor the intention of the Legislature to use CBI as a substitute for executive government, to reduce the autonomy of the executive government in the matter of separation of powers or to place in judgement over the executive government an agency which is itself a creation of the executive government and only a very small part of it. By encouraging the CBI to think along these lines, the Supreme Court has done grave injustice to officers of government placed in high positions, where they are required to take important decisions and in the process the Supreme Court has reduced the stature of the Executive as an equal partner in the scheme of separation of powers. These are harsh words but they are being stated because it is expected of the Supreme Court that it will always take an objective, dispassionate, rational and balanced view of matters in which the decisions of the court can either enhance what the Constitution intended or weaken the basic concept of the separation of powers, CBI is an executive organ of the State and must comply with all requirements that the Constitution makes of such an organ, that is, it must be a part of the whole and not larger than the whole.

Before commenting further on the issue, let us look at the Prevention of Corruption Act, 1988, in particular Chapter 3 which defines offences and prescribes penalties therefore. Section 13 which deals with criminal misconduct by public servants is the critical issue. Under section 13 (1) (d) (iii), a public servant commits the offence of criminal misconduct if he “while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without public interest…” This is the clause which CBI uses to question, harass and even prosecute senior officers, the classical cases being those of Shyamal Ghosh, then Communications Secretary and P.C. Parakh, then Coal Secretary. Both are officers of known probity, professionally competent and completely straight forward. Shyamal Ghosh is facing prosecution and P.C. Parakh is under questioning and subject to harassment on account of decisions they took or did not take when holding office. According to CBI, both officers took decisions which gave persons or companies pecuniary advantage. CBI very conveniently forgets the total provision of this particular section of the law which reads “pecuniary advantage without any public interest”. No one will undertake a project or accept a contract unless he has estimated that it would bring him reasonable profit. Is it the case of CBI that all government work should be awarded on the basis of zero profit? It is obvious that a person will undertake a project or accept a contract in order to get some pecuniary advantage. If this becomes an offence, no government officer will ever accept a tender or issue a work order and this will bring the entire work of government to a halt. Even the CBI Director will not be able to issue an order for purchase of the very stationery on which the most unreasonable orders of CBI itself are written because if he purchases the stationery, the supplier will earn some profit and this, according to CBI, would be an offence under section 13(1) (d) (iii) of the Prevention of Corruption Act. It cannot be the case of CBI that mining for coal or promotion of mobile telephony is not in the public interest. Where is the offence made out against these officers? Unfortunately this particular provision of law is the one most misused by CBI to harass senior officers who are asked to explain their executive action to a police officer who is neither their superior nor is really competent to sit in judgement. Perhaps the section needs amendment by adding the word “undue” so that it now reads “any valuable thing or undue pecuniary advantage without any public interest”.

CBI has no legal status and cannot override the provisions of the Constitution. Article 53 (1) states that the President will exercise the executive power of the Union through officers subordinate to him. Under Article 74, the President is aided and advised by his Council of Ministers, but the manner in which the executive power will be exercised and the business of the Government of India will be conducted would be governed by rules framed under Article 77. The Rules of Business allocate and divide business between different Ministries and give the powers, functions and working procedures of Ministers and Secretaries to Government. In this process, a Secretary to Government is accountable to his Minister, to the Prime Minister through the Cabinet Secretary and to the Council of Ministers which, in turn, is collectively accountable to Parliament. A Secretary to Government is not accountable to CBI. If there is criminality in any of his actions, then certainly a FIR can be recorded and the CBI as a police force can investigate the offence. Subject to that, this practice CBI summoning executive officers and asking them to explain their executive decisions must stop. In other words, let it be made very clear to CBI through an Act to be framed in this behalf, that it enjoys certain police powers but it is neither an Ombudsman nor an agency to which senior officers are accountable. The Prime Minister must make this very clear to CBI and if its officers do not fall in line they must be immediately removed and if the worst comes to the worst, the CBI in its present form should be abolished, to be replaced by a fully accountable, fully empowered agency constituted under law. One finds it strange that for so many years, politicians and civil servants have avoided bringing CBI under a statute, with a defined structure and clearly stated jurisdiction, authority and powers. Does a CBI with no legal status find favour with politicians because an amorphous mass is more amenable to manipulation than a properly structured organisation? Narendra Modi has promised us firm government and effective governance. Why not start with a law which gives us a well organised, focused and empowered CBI?

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Published Date: 20^th June 2014, Image source: http://www.thehindubusinessline.com

(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)

Karachi Airport Attack and its Portents

Sushant Sareen, 

Senior Fellow, VIF

The terrorist strike on the Jinnah International Airport in Karachi was neither the first nor the worst attack on such a high profile target in Pakistan. Just as similar attacks in the past – the GHQ and the Parade Lane mosque in Rawalpindi, the Naval War College, FIA building and ISI HQs in Lahore, the Mehran Airbase in Karachi and the Minhas Airbase in Kamra, the DI Khan and Bannu jailbreaks – did not quite serve as a wake-up call for Pakistan, there is no reason that the Karachi airport attack will. After the usual blame-game and finger pointing, followed by some bombastic declarations of how the country will not surrender before the terrorists, followed by a series of high level meetings on how to meet the terrorist challenge, it will be back to business as usual, until the next attack when the whole familiar cycle will repeat itself. And yet, like in the case of every major terror strike, there is always a method behind the madness that has been unleashed by the Taliban on Pakistan.

Given their savage and barbaric behaviour, there is generally a tendency among analysts and commentators to underestimate the sophistication and carefully calculated and calibrated nature of the Taliban strategy. This is a mistake that should be avoided. While it is true that the bestiality of the Taliban (and the rest of Islamist cohorts) has no modern parallel, they must be given credit for choosing their targets and planning their attacks with great care and calculation to cause maximum impact. To explain away an attack either as a sign of their growing desperation (a familiar tack used by governments to put a shine on their failure to pre-empt or prevent an attack) or as a senseless revenge attack or even as an attack whose only purpose was to create a splash, is nothing but self-deception.

Even worse are the bizarre conspiracy theories that are conjured up to somehow lessen the import of the attack and dilute the horror perpetrated by the actual culprits against whom neither the Pakistani people nor their political and security establishment are ready to take an unequivocal stand. Among the most popular of these conspiracy theories is the involvement of the Indian or Afghan intelligence in directing the Tehrik-e-Taliban Pakistan (TTP) attacks on Pakistan. According to the latest conspiracy theory (i.e. after the Karachi attack), the Indians were retaliating against the Lashkar-e-Taiba’s attack on its consulate in Herat and the Afghan presidential candidate, Dr Abdullah Abdullah was doing the same against the suicide bombing aimed at assassinating him. The evidence: recovery of some Indian made medicines, conveniently glossing over the fact that these carried the label of the Karachi based importer; recovery of Indian origin ‘weapons’, and even though no one ever specified what these weapons were, everyone kept parroting the line. Quite frankly, if indeed India was behind this and other attacks and was using the TTP against Pakistan, it would be the greatest intelligence coup of the millennium and would be every Indian spook’s dream come true. Only it isn’t. Come to think of it, if India had such covert capabilities, why has it not used them to take out international terrorist like Dawood Ibrahim, Hafiz Saeed and some Khalistani terrorists who continue to strut around inside Pakistan?

Clearly, if the Pakistanis were really serious about fighting terrorism, then instead of wasting their time on silly theories that hold no water, they would worry about dreadful implication of the attack on Karachi and the ground (or is it a trap?) that the Taliban are preparing for taking on the Pakistani state. In other words, rather than looking for the apparition of India behind the attack, they should be worried about the possibility that just as 9/11 was a trap that the Al Qaeda laid out for getting USA enmeshed in the Afghan quagmire, the Karachi attack could be aimed at embroiling Pakistan in something similar. But first, a bit about the timing and circumstances of the attack and why it presages something far more serious about the fight that Pakistan faces if it wants to get rid of terrorism.

Unless it is somebody’s case that this attack was planned and executed independently of the political and military situation facing the Taliban, the question of when the attack was planned becomes critical to understand its significance. Normally such assaults take weeks of recce and meticulous planning to get all the nuts and bolts in place. It is of course possible that the Taliban have made blueprints of plans to attack a multitude of targets around Pakistan and these are put into action at a time and place of the terrorists’ choosing and in accordance with their larger strategic game plan. The problem with such set plans is that they tend to become somewhat dated if not executed within a certain timeframe. At the very least, their damage potential reduces in direct proportion to the time they remain on the shelf because of changes in the security and other procedures in the target area which could hamper the original plan. Even so, if such plans exist, it means that there is probably no high value target in Pakistan that is not in the cross-hairs of the terrorists.

Alternatively, it is entirely possible that the Karachi attack was mounted with only rudimentary planning and the terrorists went in ‘blind’. Although published accounts of the attack belie this possibility, even if this was the case, the fact that the terrorists were willing to attack, and in the process create a massive psychological impact, is scary in terms of what it implies for the future. What is more, the fact that the Taliban were able to get together all the elements that go into the launching of such an attack in such a quick time speaks volumes about their network and strike ability.

Clearly then, the first objective that the TTP has achieved is that it has once again proved its firepower and reach. This was important given that many analysts, within the government and without, were gloating about the split in the TTP ranks after the breaking away of the Mehsud faction from the main Fazlullah-led TTP. There appeared to be a consensus among most of these analysts that this split would deal a body blow to the TTP and deprive it of its most lethal component and significantly impair its ability to strike outside of FATA and Khyber Pakhtunkhwa. The Karachi attack rebuffs all these analyses.

Another objective of the attack could be to exploit the divisions between the civilian government and the military on the strategy to combat terrorism. While the former is keen on continuing to pursue the dialogue track – it points to the sharp fall in terror attacks during the month or so of ceasefire between the Taliban and the Pakistani state – the military is itching to (or is at least making a show of it) launch an operation against the Taliban. Although it is not quite clear what sort of an operation the military has in mind – whether it will strike only from the safe distance of the skies and not send in foot soldiers or it will carry out steam-roller military operations – the civilians are reportedly reluctant to give a free hand to the military. The Karachi attack will only deepen this civil-military divide and add to the existing confusion and lack of national consensus on how to combat the menace of terrorism. Under these circumstances, even if the civilians give a go-ahead to the military to launch an operation, questions will continue to be raised and doubts will continue to be expressed on whether or not this was the right path to take, something that works well for the Taliban.

Finally, the Karachi attack could be part of a strategy to provoke a major military operation that would not only lead to the Taliban of all hues closing ranks but also enmeshing the Pakistan army in a debilitating war of attrition. Even if the closing of ranks does not happen, the TTP (and for that matter so should the Pakistani state) would be calculating that if the breakaway faction of Mehsud Taliban, which is as fanatical and committed to radical Islam as the main TTP faction, sides with the Pakistani state it will not be for free. It will demand a price that the Pakistani state will be loath to pay. In addition, the ham-handed approach that the Pakistan army adopts in clearing out areas only works to the advantage of the Taliban who get new recruits with enough cause to fight the Pakistani state. The resulting destabilisation of the region will be exploited by them to extend their area of influence, both inside Pakistan and Afghanistan. The big dilemma for the Pakistani authorities is that they are damned if they move in, and they are damned if they don’t. By not launching an operation, they will buy some more months of peace but it will make any subsequent operation even more difficult, if not impossible; But launching an operation may precipitate the crisis and ensnare the Pakistani security forces in a bloody battle of attrition eventually breaking its will and coherence.

Whatever the real objective/s of the attack, and regardless of whether or not it was successful in achieving all it aimed for or how much actual physical damage it caused, it is a no-brainer that the Taliban have for now stuck yet another body blow to the state of Pakistan, not just psychologically (their strike reach and ability) and perceptually (image as an unsafe investment and business centre, something the Taliban spokesman also pointed out while taking responsibility for the attack), but also financially (in terms of actual and notional loss of business opportunities), and in terms of prestige (bumbling government response).

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Published Date: 17^th June 2014, Image source: http://cache.pakistantoday.com.pk

President Pranab Mukherjee’s Vision: Rising Above Party Politics

Dr. A Surya Prakash, 

Distinguished Fellow, VIF

The President, Mr Pranab Mukherjee gave the customary address to the joint sitting of the two Houses of Parliament after the historic Lok Sabha election of 2014 which ended the era of fractious coalitions and resulted in a dramatic change of government and a clear majority for a single party after three decades. As the President spoke to the members of the two Houses, he made no effort to hide his happiness over the decisive nature of the mandate given by the people.

As per convention, the President’s speech dwelt at length on the economic agenda of the new government, its vision for social welfare and its philosophy of governance. Mr Mukherjee spoke of the government’s plans for the empowerment of women, new opportunities for the youth, education, health care, agriculture, national security, foreign policy, e-governance and measures to kick start the economy. All this is de rigueur for a presidential address to Parliament, but what was interesting was the proximity between the President’s pre-election desire for a decisive mandate, leading to a strong government (which he outlined in his Republic Day eve speech on January 25this year) and the final outcome of Election 2014.

Mr Mukherjee was naturally delighted to note that the electorate had heeded the warning he gave five months ago and taken his advice vis-à-vis the undesirability of unstable, fractious coalitions and therefore had no qualms in referring to it when he addressed Parliament on June 9. For the former Prime Minister, Mr Manmohan Singh and the Congress President, Ms. Sonia Gandhi, some of the comments of the Rashtrapati must have been really painful to hear. For example, Mr Mukherjee said this election had been an “election of hope” which marked “a turning point in the evolution of our democratic polity”. Further, he said there was a surge of aspirations and the people believed that these aspirations could be realized through the democratic process. That is why they had come out in record numbers to vote and that is why they had voted decisively in favour of a single political party after a gap of 30 years. He further said that the electorate transcended the boundaries of caste, creed, region and religion and come together to vote resolutely “in favour of development and good governance”. In other words, the President told parliamentarians that the people did not expect their aspirations to be met by the previous regime and therefore, they were casting their lot with the new regime headed by Mr Narendra Modi! Further, they were voting for “development and good governance” this time, meaning that the Manmohan Singh Government did not provide either of them!

It must have indeed been galling for Mr Manmohan Singh and Ms Sonia Gandhi to sit in the front row of the Central Hall of Parliament and hear Mr Pranab Mukherjee, a veteran Congressman whom they chose for the office of President in 2012, to extol the wisdom of the voters in the recent election, which reduced the Congress Party to just 44 seats in the Lok Sabha!

The President also was happy to note that the electorate had given a clear mandate to one party. In fact, in his Republic Day speech earlier this year, Mr Mukherjee had exhorted the people to vote with clarity and to shed ambivalence. Clearly, he was unhappy with the unruly and corrupt coalitions that were running the Union Government in recent years and felt the need to caution the people about the deleterious effect that coalition governments had on governance.

Mr Mukherjee therefore seemed delighted this week to recall the advice he had given the people some months earlier when he addressed the joint session of the two Houses of Parliament. He recalled that on Republic Day he had hoped that 2014 would be a year of healing after the fractured and contentious politics of the previous years. “Standing here today, I applaud the wisdom of my fellow citizens for having voted for stability, honesty and development in a resurgent India in which corruption will have no place. They have voted for a united, strong, and modern India - “Ek Bharat - Shreshtha Bharat” he said.

Although the President’s address to the joint sitting of Parliament is cleared by the Union Cabinet, the irony of Mr Mukherjee, a Congressman of long –standing applauding “the wisdom’ of his fellow citizens for having voted for ‘stability, honesty and development”, was lost on no one. He even said that the vote was for a resurgent India “in which corruption would have no place”.

Undoubtedly, each of these sentences constitute a direct and unambiguous indictment of the Manmohan Singh government, which, the electorate felt could not guarantee any of these things. That is why, while everyone in the Central Hall thumped their desks in approval, Mr Manmohan Singh and Ms Sonia Gandhi listened to the President in stunned stiffness. Much to their chagrin, the President’s words were in sync with the BJP slogan that ‘acche din aane wale hai” as he seemed to suggest that Election 2014 would indeed herald better days for the people. The significance of these remarks of the President is best understood when one does a flashback and recalls the advice he gave citizens on January 25 this year, just a few months before the elections.

In fact, many Congress eye brows were raised on the eve of the last Republic Day when Mr Mukherjee called for a conclusive mandate, because they felt that was in line with the Narendra Modi argument that the country needed a strong and decisive government and that only he could provide such a government provided the people helped him fulfill his mission of 272 +.

In that Republic Day speech, which was distinct and, as it now turns out, prophetic, the President appeared to be concerned about where the nation was headed and keen to share his anxieties with fellow citizens. He also used that occasion to send a strong message to the electors about what they should do in the Lok Sabha election that was scheduled some months hence.

In that speech, Mr Mukherjee appeared to be giving the incumbent Prime Minister, Mr Manmohan Singh, a rap on the knuckles when he said there was growing sense of helplessness among the people and “ we do feel angry and rightly so, when we see democratic institutions being weakened by complacency and incompetence’. Further, he said “if we hear sometimes an anthem of despair from the street, it is because the people feel that a sacred trust is being violated”. Then came the President’s oracular warning while talking about corruption. He said “if Indians are enraged, it is because ‘they are witnessing corruption and waste of national resources. If governments do not remove these flaws, the voters will remove governments”.

Mr Mukherjee also used that occasion to come down on the reckless populism of the Manmohan Singh government, the Aam Aadmi Party and some state governments when he said that “Government is not a charity shop. Populist anarchy cannot be a substitute for good governance”.

Finally, in that historic speech, Mr Mukherjee warned the people of the dangers of yet another fractious coalition coming to power. He said 2014 was not just another election year. A fractured government, which is hostage to whimsical opportunists will be an ‘unhappy eventuality” and in 2014, such an eventuality could be ‘catastrophic” for the nation. Therefore, “2014 is a precipice moment in our history” and in this year ‘we must re-discover the sense of national purpose and patriotism, which lifts the nation above the across the abyss”. Finally, he delivered a warning to voters, though couched as an advice. He said “Don’t let India down”.

He said all this on January 25, 2014. Therefore, one would presume that the Rashtrapati was indeed a very happy man when the results from 543 Lok Sabha constituencies poured in on May 16 and the voters gave an unambiguous mandate to one party after 30 long years and ended the coalition era that bred corruption and inefficiency and resulted in nation-wide despondency.

Although the President’s address to Parliament is cleared by the Union Cabinet, it is safe to assume that the text was by and large in consonance with Mr Mukherjee’s own assessment of the national mood and his desire for a strong and effective government that would inject a positive mood among the 1.3 billion citizens of the country. That is why Mr Mukherjee felt compelled on June 9, when he addressed Parliament, to refer to the advice he had given citizens on the eve of Republic Day.

Although he has been a member of the Congress Party all his life, Mr Mukherjee has shown that the Rashtrapati cannot be put into a political strait jacket. He ought to be above politics. That is why he did some plain speaking last January about the dangers of fractious coalitions and that is why he accepted the verdict of May 16 with utmost grace and dignity. Being a veteran in our public life, he is well aware of the fact that these are the ironies of democracy and that it is incumbent on good democrats to honourably accept the peoples’ mandate and work in consonance with the spirit of that verdict. Mr Mukherjee is doing just that. However, one found the former Prime Minister, Mr Manmohan Singh and the Congress President, Ms Sonia Gandhi squirming in their seats during the President’s hour-long address to the joint sitting of the two Houses. The sooner they accept the reality, the better, because until then, their democratic credentials will be in doubt.

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Published Date: 16^th June 2014, Image source: http://news24online.asia

(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)

The Warrior State: Pakistan in the Contemporary World; T V Paul; Random House India; PP 257; Price Rs 499

A Wonky State Behaving Like Warrior State

Sushant Sareen, 

Senior Fellow, VIF

In recent years, there has been a veritable deluge of books on Pakistan and all that’s wrong with that country. There have also been some books which have tried to argue, even if unconvincingly, that all is still not lost and that Pakistan is a very resilient state – ‘a hard country’, if you will – which could bounce back provided it gets some things right. The latter set of books are really more of an apologia for Pakistan and appear more like the academic version of the phenomenon known as ‘paid news’. The former set of books tend to deal more with the events and developments in and around Pakistan to explain what happened and why. TV Paul’s book “The Warrior State: Pakistan in the Contemporary World” breaks fresh ground by using political theory and concepts to delve into why Pakistan is what it is.

There is a lot in this very interesting, and even exciting, book on Pakistan that one can quibble over and disagree with. Apart from some of the conclusions, comparisons and theories that Prof. Paul, an Indian origin academic at the McGill University, tries to apply to Pakistan, the title of the book itself has been questioned. During a recent book discussion programme, Prof. Paul was candid enough to disclose that his original title was ‘Paradox of Pakistan’ but that the publisher wanted a more attractive, eye-catching and compelling title and hence ‘Warrior State’. Though Prof Paul does provide the theoretical and practical justification for this title throughout the book, Pakistan's description as a warrior state at best describes the outward manifestation of a psychologically disturbed state which perhaps is more appropriately describable as ‘a paranoid state’, ‘a pernicious state’, ‘a perverse state’, ‘a perfidious state’, ‘a predatory state’ and ‘a schizophrenic state’.

Indeed, in order to understand and make sense of how the Pakistani state thinks and acts, it is imperative to understand the Punjabi psyche, which political theory alone is perhaps ill-equipped to handle. Suffice out here to say that Punjab (on both sides of the Radcliffe line) is probably the region with the most feudal mindset in the entire subcontinent. Punjabis understand power and authority better than anyone else and kowtow to it with great alacrity. At the same time, they are quick to defy authority if they sense that they can do so with impunity. In that sense, they revel in anarchy, something that is so visible in Pakistan where no sooner than a new government assumes office that predictions start on how and when it will collapse. The concept of ‘jugar’ is also something that comes naturally to Punjabis. As a problem solving concept this is unexceptionable, but when applied to administration, foreign and security policies of the state as well as its strategic policy, it can easily lead to disaster. This is something that is so apparent in what is happening in Pakistan today, where the ‘jugar’ of using ‘non-state actors’ in pursuit of political and foreign and strategic policy objectives is now confronting the Pakistani state with the blowback of its short-sighted strategic and tactical ‘jugar’.

Right in the beginning of the book, Prof Paul asks some very fundamental questions about why Pakistan has become the theatre of internecine violence, why it has emerged as a ‘failing state’, why does it remain a garrison or heavily militarised state, why does it remain so problematic for the international community and what sets Pakistan apart? While Prof Paul does attempt to answer these questions in his book, which packs in a lot in just under 200 pages, he understandably – after all he is an academic and a Malayali to boot – he doesn’t take into account the havoc wrecked by ‘jugar’. One of the possible answers to the questions raised by Prof Paul could be that with the state relaxing its authority by allowing private militias to grow, it created the opening for defiance of the state’s authority, an opening that has steadily widened to a point where the states authority has got emasculated to a shocking extent.

Prof Paul is right on the mark when he says that for Pakistan, military might and war (in one form or another) is a natural state of affairs. In fact, it has been said that for Pakistan it isn't so much about winning wars but fighting them that's important. This is something which is partly the fault of India which has proved to be a somewhat hesitant, and even defensive and non-aggressive (in the sense of initiating conflict) adversary. Quite simply, India has been diffident in terms of taking action that would force compellence on Pakistan. The result is that Pakistan is secure in the belief that while it may suffer reverses in conflict with India, it won't suffer irredentism from India, not even in PoK which India claims to be its part. In other words, unlike India which because of historical experience fears conquest from the western borders, Pakistan has no such fear. In her latest book, the US academic C. Christine Fair writes that it isn't security but ideology (political Islam and increasingly radical Islam) that drives the Pakistani state. Security is a veil which justifies its stand or at least makes it comprehensible, even rational, in the eyes of the international community.

Prof Paul also highlights the use of ideology in the forging of security policy that has converted Pakistan into a ‘warrior state’, but he also lays out the fear among Pakistanis of India wanting to gobble up their country. In a way this dichotomous or contradictory line of thinking -- wanting to cut India down to size which according to Pakistani generals is not so difficult given India's fault lines, and at the same time being paranoid of India – is what is fuelling the national schizophrenia inside Pakistan. This presents a challenge to the Indian policy maker. Prof Paul very ably points to Pakistan's failure to factor in how its strategic policy – not just in terms of its militarization but also in terms of its alliances with countries like China – creates a security dilemma for India which then takes steps that only add to Pakistan's threat perception from India.

Among the most interesting concepts that Prof Paul forwards is that of the ‘geo-strategic curse’ that Pakistan suffers from. This is quite similar to the ‘oil curse’ or ‘natural resource curse’ that some countries suffer, only in Pakistan's case it is its location that visits this curse upon the state and society. Pakistanis never tire of flaunting their geo strategic location and how they are indispensable to the great powers. To an extent Pakistan has been supple to take advantage of circumstances – Cold War (SEATO and CENTO alliances), Afghan ‘Jihad’ against the erstwhile Soviet Union, War on Terror – and offer its services to the highest bidder. While this readiness to serve the interests of the Great Powers makes it more a mercenary state and not so much a warrior state, the fact is that Pakistan hasn't really capitalised on the goodies that flowed its way. Prof Paul is quite right in saying that the Pakistani elite have been past masters in milking geo strategic rents. Although in both relative and absolute terms, the quantum of these rents hasn’t been very high (on an average a couple of billion dollars annually) yet they have been enough of an incentive for the Pakistani establishment and elite to persist with the strategy of leveraging its location without any concern over the cost that such alignment entails. But with the US withdrawal from the region looming large, Pakistan's locational advantage could lose steam, especially if disturbed conditions inside Pakistan put paid to Chinese plans for an ‘economic corridor’ and if the US decides not to outsource Afghanistan to Pakistan. If both these things do not happen, then economically Pakistan can exploit its position only in relation to India. This means that Pakistan's location will be important only in the context of serving as a bridge between India and Central and West Asia.

There are a couple of issues that Prof Paul raises that one can join issue with. For instance, he flags the poor tax collection in Pakistan as a major problem in terms of the country’s ability to reform and transform as a normal and viable state. Quite frankly, the tax revenue issue has been a little overplayed in Western academic writings and analysis of Pakistan. Simply put, while there is a lot of tax evasion and avoidance, if Pakistan was to not artificially inflate its growth figures and its GDP numbers, then the ratio of tax revenue to GDP would be lot healthier than it is.

Prof Paul also talks of the possibility of some kind of revolution inside Pakistan. He discounts any outside impulse – from countries like the USA, Saudi Arabia or China – for change in Pakistan because these countries are more or less find it easier to deal with Pakistan as it is than what it ought to have been or should be. Inside Pakistan there is a lot of talk of revolution, but much of it is hot air. The only real revolutionary force is the Taliban or the Islamists. It is in this context that it was a little surprising that Prof Paul wonders why Islam hasn't served as a glue for Pakistan. Clearly, the reason for this is that in Pakistan instead of an Islamic fusion, there has been an Islamic fission in terms of the multiplicity of sects, each considering the other heretical which in turn has made religion a dividing rather than uniting factor.

Finally, the book raises the question in the mind of the reader as to what was the purpose of being a warrior state? With all the shenanigans that Pakistan as a state has indulged in, if it had become a Switzerland or some other place which was hip and happening, one could find justification for the policy framework adopted. But looking at what Pakistanis have made of their state, it is difficult not to wonder at the self-destruct path on which Pakistan has embarked and from which it shows no sign of moving away.

The Senkaku/Diaoyu Islands Dispute: A Preliminary Analysis

Shikha Aggrawal, 

Research Associate, VIF

In his seminal work, ‘The War Puzzle’ John Vaquez establishes that territorial issues constitute the fundamental cause of interstate wars in the modern global system since 1495. Elaborating further upon his thesis, Vasquez argues that territorial issues per se do not constitute a direct causal variable in leading to wars. However, the very presence of ‘territoriality’ as a contentious issue makes wars more probable.¹ As such, a thorough study of territorial disputes institutes a core dimension within the domain of international and security studies.

With international politics no longer governed along ideological fault lines, territorial equations today are often rooted in geopolitical contexts and are thus regarded as manifestations of perceived national interests (political, economic, and security) of the states. Due to this close association with these national concerns, territorial disputes frequently assume a nationalistic dimension. The sentiment of nationalism acts as a dualistic construct of cause and effect in determining the course of territorial conflicts, and their relative importance in a country’s political and strategic calculus.²

The Senkaku/ Diaoyu Islands dispute in the East China Sea is a conflict that entails implications not only for the East-Asian regional dynamics, but has rather become the euphemism for Great Power Politics. This situation owes to the existence of a complex conflict structure involving ‘assertive’ positioning (attitudes and behaviour) by the parties (structures) involved in the dispute³: the People’s Republic of China regards the Islands as their ‘core national interests,’⁴ and hence is committed to recover the Islands through diplomatic or military means; Japan refutes the very existence of any sovereignty debate over the Islands and bought three of the disputed Islands from their private owners in 2012, thus, further intensifying the conflict; the United States of America, though claiming a neutral stance over the sovereignty debate, is committed to defend the Japanese interests under the Treaty of Mutual Cooperation and Security between the US and Japan.

Though both China and Japan have, by far, refrained from resorting to direct armed confrontation for settling the Senkaku/Diaoyu dispute, any military resolution to the issue would render a precursor to the future of the power transition theory between China and the United States of America. This inference is rooted in the psychological underpinnings associated with the outcome of wars, and their effects upon the ‘power equations’ between states. In case of a Sino-US war over the Senkaku/Diaoyu islets, a resolution in favour of China would undermine the confidence of the East Asian nations in America to preserve their interests in the region. This situation would destabilize the very existence of US pivot in Asia. Moreover, the military victory would consolidate China’s position as the ‘hegemonic power’ in East Asia. This would further narrow the ‘power gap’ between the PRC (revisionist state) and the United States of America (hegemonic state), and thereby satisfy the cardinal precept for the onset of “hegemonic war” as described in Organski’s thesis. ⁵,⁶

Furthermore, any solution to the issue would set a precedent, in both normative as well as symbolic terms, for the settlement of other sovereignty claims upheld by Japan and China vis-à-vis other countries. As such, the conflict presents a crucial study from the strategic point of view.

Most importantly, the Senkaku/Diaoyu problem in several ways highlights the fundamental inconsistency between the claims of sovereignty based in 14^th century Asia, and the norms of international dispute settlement developed in Europe centuries later. This divergence owes to the fact that the traditional East Asian international system that existed until the late 19^th century entailed extremely different connotations regarding the concepts of sovereignty and territorial boundaries than those enshrined in the modern Westphalian system. Unlike the Westphalian system that institutionalized norms regarding the notions of sovereignty, diplomacy, nationality, and commercial exchange, traditional East Asian international system operated within the dynamics of the Confucian world view. As such, the traditional East Asian regional order was patterned along a hierarchical construct, with China as the hegemonic power. Within this system, states derived their status and ranking from their cultural achievements, rather than military or economic prowess. Moreover, as David C. Kang has demonstrated, demarcation of uninhibited rocks in the middle of water bodies was not a practice in the East Asian region five hundred years ago. Therefore, Kang asserts that most of the current debates over different Islands in East Asian waters are political disputes and not historical issues per se.⁷ Therefore, it is imperative for IR analysts to explore the dynamics of the East Asia regional construct pertaining to this period, and argue the legitimacy and applicability of the concept of ‘sovereignty’ based upon this ancient regional order.

The Senkaku/ Diaoyu Dispute: Core Issues

The Senkaku/ Diaoyu Islands refer to a tiny group of islands, comprising a land area of 6.3 Km2, in the East China Sea. The islands consists of eight tiny insular formations, of which only two are over 1 Km2 (the Diaoyu/Uotusri Island is the biggest one with a land area of 4.3 Km2), five are completely barren, and none are currently inhabited or have had any kind of reported human activity.

Table I: Islands appertaining to the Senkau/Diaoyu archipelago⁸

At the outset, the Islands dispute primarily involves two fundamental issues: the question of sovereignty over the disputed islands; and the issue of demarcation of the maritime boundary between Japan and China. These issues are further exacerbated due to a complex construct involving security, economic, and political concerns.

The “territorial” aspect of the conflict essentially emanates from a divergent reading of history by both China and Japan. It is within the context of historicity that the dispute assumes a symbolic significance. For the Chinese, the Senkaku/Diaoyu dispute represents yet another legacy of Japanese war-time aggression against China.⁹ As such, any resolution to the islands issue from the Chinese side would be conceived within the dynamics of convergence between pragmatic concerns of economics and security, and the politics of Chinese nationalism derived from a collective memory of past humiliation.

Similarly, Japan regards the developments of the late 19^th century pertaining to its annexation of Ryukyu Islands, Bonin Islands as well as the Senkaku/Diaoyu Islands to be lawful territorial 

consolidations, and unrelated to its overseas military ventures or imperial expansion. ¹⁰ As such the sovereignty dispute over the Senkaku/Diaoyu Islands is associated with the idiom of national pride for the Japanese. This interplay between territorial disputes and popular nationalism serves to limit the policy choices for resolving the sovereignty debate by both countries.

The issue of demarcation of the maritime boundary is rooted in the specific geographic features of the East China Sea. Under the 1982 United Nations Convention on the Law of the Sea (UNCOLOS), the territorial waters of states extend up to a limit of 12 nautical miles from their baseline. Further, the states can also claim a sea area of 200 nautical miles from the baseline as their Exclusive Economic Zone (EEZ).¹¹ However, this delineation becomes complicated in the case of East China Sea as the coast-to-coast distance is less than 400 nautical miles (only 360 nautical miles). Ownership of the Senkaku/Diaoyu Islands would enable China to exert sovereign rights over the continental shelf along with the EEZ to the north and east of the disputed Islands. This would allow China exclusive economic rights to the entire southern portion of the East China Sea. Likewise, sovereignty over the Senkaku/Diaoyu Islands would entitle Japan to extend its EEZ to the north and west of Islands, beyond the Okinawa Trough.¹²

The maritime boundary aspect of the Islands dispute is further rendered difficult due to the differing interpretations of international laws pertaining to the seas by the claimant states. Whereas, Japan stresses on the ‘equidistance principle’ to demarcate the maritime boundary between China and Japan, the Chinese insist on the ‘principle of natural prolongation’ to solve the boundary question.¹³ As per Article 76 of the UNCLOS, a coastal state can claim an area up to 350 nautical miles from its baseline as its extended continental shelf under the principle of ‘natural prolongation’. The coastal state has the sovereign rights to explore mineral and non-living resources in the subsoil of the continental shelf. China argues that the Okinawa Trough in East China constitutes the natural maritime boundary between the PRC and Japan, and hence claims the Senkaku/Diaoyu Islands as falling within the 350 nautical miles area of its continental shelf that extends from its coast to the Okinawa trough. However, Japan insists that the Okinawa Trough is only an “incidental impression in an otherwise continuous continental shelf” and therefore, cannot constitute a natural maritime boundary. Accordingly, Japan favours an equitable division of the waters of the East China Sea by drawing a median line that is equidistant from the baseline of Chinese coast and the baseline of the Ryukyu Islands.¹⁴

For the feasibility of this study, the Paper will restrict itself to exploring the political, security and economic dimensions of the problem. In order to achieve this stated objective, the study shall explore and debate the historical documents cited by the both China and Japan to justify their claims over the Senkaku/Diaoyu Islets.

Various Dimensions of the Issue: Interplay between Political, Security, and Economic Concerns

The Senkaku/Diaoyu Islands are located approximately midway between Taiwan and the Ryukyu Islands, around 120 nautical miles northeast of Taiwan, 200 nautical miles southwest of Okinawa, and 230 nautical miles east of China. This particular location of the Senkaku/Diaoyu Islands underscores the security dimension of the dispute. Sovereignty over the contested Islands would enable Japan or China to project its military prowess along a prolonged and enlarged frontier, thereby putting the other side into a disadvantageous position.

Furthermore, the Senkaku/Diaoyu dispute also entails geopolitical implications for both China and Japan. The sovereignty issue over the Islands involves a crucial relationship with PRC’s ‘One China’ policy. China regards the Senkaku/Diaoyu Islands as part of Taiwan, and validates its rights over the Islands on the basis of its claim over the ROC. As such, loss of sovereignty debate over the disputed Islands would jeopardise its concerns in Taiwan as well. It is in the context of Taiwan that the Senkaku/Diaoyu dispute gets associated with the notion of regime stability in China. In the words of Chinese scholar, Zhongqi Pan, “If the Chinese government wavers in its position on the Diaoyu (Senkaku) Islands, its legitimacy would be immediately challenged by the Chinese people in both the mainland and Taiwan.” ¹⁵

Moreover, as stated above, any solution to the Islands issue would set a precedent for the resolution of China’s claims in the South China Sea in particular, and its territorial disputes with other countries in general. Similarly, for Japan the issue holds consequences for its differences with Russia over the “Northern Territories” and with Korea over the Dokdo (Takeshima/Takdo) Island.

Notwithstanding the security and political significance of the Islands to the claimant states, the current dispute traces its origin to the 1968 report by the United Nations Economic Commission for Asia and Far East (ECAFE). The report by the ECAFE suggested the possibility of large hydrocarbon deposits in the waters off the Senkaku/Diaoyu Islands. As such legal control over the Islands would confer upon the owner nation the “exclusive rights” to exploit the natural resources in the vicinity of the Islands. The economic value of the Islands should be of particular concern to China whose oil consumption is already the second largest in the world. According to some estimates, China’s oil consumption is expected to reach 590 million metric tonnes by 2020, nearly three-quarters of which will be imported by that time.

The Dispute: Legacy of Post-Second World War History

The recent history of the Senkaku/Dioyu dispute is located within the dynamics of international politics in the post-World War II period. This international political scenario is characterized by international treaties concerning the status and transfer of various territories, trans-regional alliances, and the changing contours of East-Asian politics and economy.

The current dispute over the Senkaku/Diaoyu Islands began with the 1969 US-Japan joint statement¹⁶ that culminated in the Ryukyu Reversion Agreement of June, 1971. ¹⁷ As per this agreement, the Senkaku/Diaoyu Islands were returned to Japan as part of the Okinawa. Previously, the Senkaku/Diaoyu Islands had been placed under the US administration as part of the Nansei (Ryukyu) Islands in accordance with Article III of the 1951 San Francisco Treaty. Article III of the San Francisco Treaty stated¹⁸,

“Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto south of 29 north latitude (including the Ryukyu Islands and the Daito Islands)…. the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.”

The US-Japan joint statement immediately triggered nation-wide protests by Chinese students in the United States.¹⁹ On June 1, 1971, the Republic of China (ROC) Ministry of Foreign Affairs issued a formal statement laying down Taiwan’s claim over the Senkaku/Diaoyu islets on the basis of history, geography, and the principle of long usage of the Islands by the Taiwanese peoples. The ROC further adduced the provisions of the 1943 Cairo Declaration, the Potsdam Declaration of 1945, and the1952 Treaty of peace between the ROC and Japan to legitimize its claims over the disputed Islands ²⁰ This aspect of the problematic involving the relationship between the Islands dispute and aforementioned treaties will be discussed in detail later in the Paper.

Meanwhile, in November 1970, the Japanese government had proposed the ROC and South Korea to carry out ‘joint development’ of the undersea resources in the East China Sea. This joint development exercise was to be conducted without any reference or prejudice to the sovereignty claims of the participant nations in the East China Sea.²¹ It was at this juncture that the PRC entered into the dispute through an article in the Peking Review in December 1970. The article accused the United States and Japan of setting up a “liaison committee” to plunder Chinese and Korean seabed resources in “collusion” with the “Chiang Kai-shek Gang and Pak Jung Hi puppet clique”. The article further stated that “...supported by US imperialism, the reactionary Sato government is also seeking various pretexts for incorporating the Tiaoyu, Huangwei, Chihwei, Nanhsiao, Peihsiao and others, as well as water areas which belong to China, into Japan’s territory.”²²

The PRC Foreign Ministry issued its formal statement with respect to the Senkaku/Diaoyu issue in December 1971. The statement for the first time stated China’s legal status on the dispute, and declared:²³

“…..the Tiaoyu and other Islands have been China’s territory since ancient times. Back in the Ming dynasty (A.D. 1368-1644), the Islands were already within China’s sea defence areas; they were islands appertaining to China’s Taiwan but not to Ryukyu….Like Taiwan, they have been an inalienable part of Chinese territory since ancient times….The Chinese people are determined to recover the Tiaoyu and other Islands appertaining to Taiwan.”

As can be inferred, the statement inextricably linked the Senkaku/Dioyu dispute to China’s claims over Taiwan, and thus rendered the issue a central significance within China’s political apparatus.

The year 1972 served as the watershed year for the Senkaku/Dioyu Islands dispute. In 1972, the US ended its trusteeship of the Islands and formally returned the Islands to Japan. Following U.S President Richard Nixon’s rapprochement towards China and the subsequent visit to Beijing in 1972, both China and Japan embarked on the negotiations that led to the establishment of diplomatic relations between the two countries.²⁴ Pursuant to this development, Japan severed its relationship with the ROC in 1972. This political realignment thus changed the contours of the conflict from being a ROC-Japan issue to a dispute between the PRC and Japan.

It is within the ‘apparent peace’ build-up between China and Japan that yet another strand of the Senkaku/ Diaoyu dispute emerged. The Chinese claim that during the normalization talks in 1972, there was a ‘tacit agreement’ between Japanese Prime Minister Tanaka and Chinese Premiere Zhou Enlai to shelve the Island issue. However, Japan argues that it never reached an agreement with China about "shelving" or "maintaining the status quo" regarding the Senkaku/ Diaoyu Islands.²⁵ As such, Japan does not recognize the existence of any issue regarding the territorial sovereignty of the Senkaku/Diaoyu Islands.

On the Contrary, the Chinese version of the same conversation, made public only in 2012 through an article in the People’s Daily argues that both Zhou and Tanaka decided to stall the issue for future negotiations and deliberations.²⁶ Through this interpretation of the conversation, China attempts to showcase the Senkaku/Diaoyu Islets as a ‘mutually recognized’ disputed territory.

Understanding the Claims: The Politics of History

Within the framework of the dispute both China and Japan agree on the fact that Japan exercised the de facto control of the Senkaku/Diaoyu Islands from1895 until the end of the Second World War. While Japan emphasizes this period of undisputed Japanese administration to assert its claims over the disputed Islands, the Chinese base their arguments on the pre-1895 period when they claim to have occupied the Islands. To support their claims, both countries take recourse to various international and bi-lateral treaties. This divergence in interpretation of history and legal documents pertaining to the issue necessitates a study of the arguments of both claimants.

In 1870s, Japan annexed the Ryukyu (present day Okinawa) Kingdom. However, it refrained from laying any claims to the Senkaku/Diaoyu Islands till 1895, when it finally annexed the Islands through a Cabinet decision (Appendix I). During the period between 1895 and the Second World War, Japan administered the disputed Islands as part of the Okinawa prefecture.

China argues that Japan took possession of the Islands after the defeat of the Qing court in the 1894 Sino-Japanese War. The PRC asserts that as the Senkaku/Diaoyu Islets appertained to Taiwan (formerly Formosa), the Islands were ceded to Japan as part of the Formosa Island under Article II of the Treaty of Shimonoseki, concluded between Qing China and Japan in May 1895. Article II of the Treaty of Shimonoseki stated:²⁷

“China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon….2(b) The Island of Formosa, together with all islands appertaining or belonging to the said island of Formosa…..2(c) The Pescadores Group, that is to say, all islands lying between the 119th and 120th degrees of longitude east of Greenwich and the 23rd and 24th degrees of north latitude….”

Hence, China stresses that the Islands should be returned to it as per the provisions of the 1943 Cairo Declaration, and the Potsdam Conference of 1945. Signed in November 1943, The Cairo Declaration proposed,²⁸

“They [the Allies] covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, 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.”

The Potsdam Declaration, signed in July 1945 further reinforces the terms of the Cairo Declaration. Article 8 of the Declaration reads:²⁹

“The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.”

However, Japan refutes the Chinese assertion that the Senkaku/ Diaoyu Islands were included as part of the Taiwan and Pescadores (Penghu) Islands annexed by it under the Treaty of Shimonoseki. As per the Japanese claims, the cabinet decision to occupy the Islands in 1895 was the result of a 10-year-long survey on the disputed Islets, which confirmed that the Islands showed no trace of having been under the control of China. Based upon this argument, Japan claims that the Islands were occupied by it under the principle of terra nullius (land without owners) as enshrined in the modern international law on territorial acquisition. As such, Japan maintains that the Senkaku/Diaoyu Islands were never included in Article II of the 1951 San Francisco Treaty, whereby Japan denounced its claims over ‘Formosa and the Pescadores Islands’ or the 1952 Treaty of Peace between the ROC and Japan which reiterated Article II of the San Francisco Treaty, and further declared that “…all treaties, conventions, agreements concluded before December 9, 1941, between China and Japan have become null and void as a consequence of the war.”³⁰

Japan further argues the PRC and Taiwan only began laying their claims over the Senkaku/Diaoyu Islands after the discovery of the prospective petroleum resources in the Senkaku/Diaoyu seabed. To consolidate this argument, Japan stresses the fact that neither Beijing nor Taipei ever raised any objections against the exclusion of the disputed Islands under Article II of the San Francisco Treaty. Also, both China and Taiwan never protested against Article III of the said Treaty, whereby the Senkaku/Diaoyu Islets were transferred to the US as part of the Okinawa. However, this argument from the Japanese side is refuted by China on the grounds that the San Francisco Peace Treaty cannot exert finality on the dispute as neither the PRC nor Taiwan were signatories to the treaty.

To justify its claims, Japan cites historical documents which describe the disputed Islands as its territory. Two such documents pertain to the maps published in the Republic of China New Atlas, and the World Atlas, both published in China in 1933 and 1958 respectively. Both these maps depict the disputed Islands as the “Senkaku Islands” and not Diaoyutai Islands (See Appendix II, III).

Other documents put forth by Japan to reinforce its claims include a 1953 article that appeared in the People’s Daily and which describes the Senkaku/Diaoyu Islands as part of the Ryukyu Islands (See Appendix IV). Another important article cited by Japan vis-à-vis their claims over the disputed Islands appertains to a 1920 ‘Letter of Appreciation’ by the Consul of the Republic of China in Nagasaki to the Japanese citizens to thank them for helping the Chinese fisherman in distress. The letter refers to the Senkaku Islands as part of the Okinawa Prefecture (Appendix V). However, it must be noted that China refutes the relevance of this evidence on the grounds that since the Senkaku/Diaoyu Islands, along with Taiwan were already under the Japanese control from 1885, the Consul referred to them as being Japan’s territory.

In addition to employing maps and official correspondences, Japan also takes recourse to historicity to justify its claim over the Senkaku/Diaoyu Islands. Japan posits that Formosa was not exactly under the control of the Fujian province during the Ming dynasty. It was only in 1683, under the Qing that Formosa was included in the Chinese territory.³¹ Through this interpretation of history, Japan seeks to nullify the Chinese claim that the Islands were China’s territory during the Ming rule.

As against the Japanese arguments, the Chinese claims to the Islands emanate from the historical narrative of the Ming (1368-1644) and the Qing (1644-1911) periods. Chinese historical records detail the discovery and geographic features of the Senkaku/Diaoyu Islands as early as 1372. During this period, the Islands were used as navigational aid for the official Chinese missions to the Ryukyu Kingdom, which was in a tribute relationship with China at that time. As per the Chinese records, during the period from 1372-1879, the Chinese Emperors sent some 24 investiture missions to the Ryukyu Islands to confer the title of Zhongshan Wang (the Chung-shan King) on their new rulers.³² China also argues that the name “T’iaoyutai” first appeared in a Chinese book entitled Shun-feng Hsiang-sung (May Fair Winds Accompany You) published in the fifteenth century.³³

China insists that the Islands were incorporated into its maritime defence as early as 1556. Some of the documents cited to support this claim by the Chinese include the Illustrated Treatise on Coastal Defence. Compiled in 1562, the volume recorded all Chinese military deployments in the coastal areas on the mainland and offshore Islands. The disputed Islands were recorded in two maps labelled Fu7 and Fu8 in the first scroll of the volume whose title is “Atlas of the Islands and Shore of the Coastal Region.” (Appendix VI). Likewise, the Revised Gazetteer of Fujian Province complied in 1871 indicates the presence of the “Diaoyutai” behind Taiwan, and their utility to anchor large ships 

(Appendix VII).

Interestingly, China employs studies by certain Japanese scholars to augment its claims over the Senkaku/Diaoyu Islets. Two prominent works in this regard are the 1785 map drawn by noted Japanese cartographer, Hayashi Shihei, titled the Illustrated Survey of Three Countries; and a study by Japanese historian Inoue Kiyoshi, “Senkaku” Islands: A Historical Explanation of the Diaoyu Island. The map by Hayshi Shihei uses the traditional four pigment colouring method, with Chinese territories, including the Senkaku/Diaoyu Islands marked in red (Appendix VIII). This map was further translated into French and published in 1832 by a German scholar of Oriental studies, Heinrich Klaproth. The book by Inoue Kiyoshi cites several documents pertaining to the Ming period to establish Chinese sovereignty over the Senkaku/Diaoyu Islets.³⁴

In addition to this, China cites certain official Japanese documents which indicate that Japan was aware of the fact that the Islands were not terra nullius. One such document relates to an October 21, 1885 letter of response by the Foreign Minister of Japan to the Home Ministry (Appendix IX). The letter states that the Islands bear Chinese names and that a Chinese newspaper has already carried a report regarding Japan’s intentions to occupy the Islands near Taiwan. It further requests the government to wait till the “appropriate” time to establish its claim over the Islands.

China also argues that the ten years investigation by Japan to ascertain the status of the Senkaku/Diaoyu islets was never completed. This assertion is supported through a letter written by the Okinawa Prefectural Governor 1892. In the letter, the Governor states that since the initial investigations of 1885, no subsequent field surveys have been conducted on the Islands (Appendix X).

The Chinese also refer to some usage of the disputed Islands as evidence of their claim. One such interesting record is that in 1893, just two years before Japan occupied the Islands, Dowager Empress Tsu Hsi of Qing issued an imperial edict through which the Islands were awarded to a Chinese alchemist who had gathered rare medical herbs on the Islands.³⁵

Analysis of the Claims:

In addition to establishing the authenticity of the documents produced by both China and Japan to assert their claims over the Senkaku/Diaoyu Islets, the dispute calls for an examination of the concept of ‘ownership’ over the Islands within the dynamics of the antiquated historical narratives of the countries. Within this context, a careful study of China’s claims reveals that the disputed Islands have been mentioned in the Ming historical records only for the purpose of navigational aid between the imperial court and the Ryukyu Kingdom. Moreover, China never established a permanent settlement of civilians nor of military personnel on the Senkaku/Diaoyu Islands. Therefore, it can be deduced that China never established any ‘direct’ ownership over the Senkaku/Diaoyu Islands. On the contrary, Japan exercised de facto control over the disputed Islets for a period of fifty years, beginning from 1895 to the end of the Second World War in 1945.

The second aspect of the problematic concerns the economic dimension of the dispute. In this respect, it is significant to question China’s failure to object to article II, and III of the 1951 San Francisco Treaty. The Chinese argument that neither Taiwan nor the PRC were signatories to the Treaty fails to explain China’s silence on the matter for almost two decades. It is within these dynamics that China’s claims over the Senkaku/Diaoyu Islands, originating only after the discovery of possible hydrocarbon deposits in the waters off the disputed Islets, indicate a classic case of economic opportunism.

APPENDIX I




Source: “Fact Sheet On the Senkaku Islands,” Ministry of Foreign Affairs, Japan

APPENDIX II





Source: “Fact Sheet On the Senkaku Islands,” Ministry of Foreign Affairs, Japan

APPENDIX III





Source: “Fact Sheet On the Senkaku Islands,” Ministry of Foreign Affairs, Japan

APPENDIX IV



Source: Fact Sheet On the Senkaku Islands, Ministry of Foreign Affairs, Japan

APPENDIX V



Source: Fact Sheet On the Senkaku Islands, Ministry of Foreign Affairs, Japan

APPENDIX VI



Cited here from Che-jung Yu, “A Historical Analysis of the Ownership of the Diaoyutai/ Senkaku Islands: from the Chinese Perspetive,” Mater’s Thesis, Graduate School of International Affairs, Ming Chuan University
APPENDIX VII





Cited here from Che-jung Yu, “A Historical Analysis of the Ownership of the Diaoyutai/ SenkakuIslands: from the Chinese Perspetive,” Mater’s Thesis, Graduate School of International Affairs, Ming Chuan University
APPENDIX VIII



Cited here from Che-jung Yu, “A Historical Analysis of the Ownership of the Diaoyutai/ Senkaku Islands: from the Chinese Perspetive,” Mater’s Thesis, Graduate School of International Affairs, Ming Chuan University
APPENDIX IX





Cited here from Che-jung Yu, “A Historical Analysis of the Ownership of the Diaoyutai/ Senkaku Islands: from the Chinese Perspetive,” Mater’s Thesis, Graduate School of International Affairs, Ming Chuan University
APPENDIX X



Cited here from Che-jung Yu, “A Historical Analysis of the Ownership of the Diaoyutai/ Senkaku Islands: from the Chinese Perspetive,” Mater’s Thesis, Graduate School of International Affairs, Ming Chuan University
Endnotes

1. John A. Vasquez, The War Puzzle (Cambridge University Press, 1993).
2. For a detailed study of Nationalism and its effects upon China’s territorial disputes refer to, Erica Strecker Downs and Philip C. Saunders, “Legitimacy and the Limits of Nationalism,” International Security, Vol. 23, No.3 (Winter, 1998-1999), pp. 114-146; Chih-Yu Shih, “Defining Japan: The Nationalist Assumption in China’s Foreign Policy,” International Journal, Vol.50, No.3 (Summer 1995), pp. 543-544; Erik Beukel, “ Popular Nationalism in China and the Sino-Japanese Relationship,” Danish Institute for International Studies (DIIS) Report 2011:01.
3. This modeling of the Senkaku/Diaoyu Islands dispute is based upon Johan Galtung’s Conflict Triangle. For details See, Johan Galtun, Theories of Conflict: Definitions, Dimensions, Negations, Formations ( Columbia University: 1958)
4. China first claimed the Senkaku/Diaoyu Islands as its Core National Interest through an opinion piece in the People’s daily in January 2012. The article can be accessed at http://english.people.com.cn/90780/7708939.html. The PRC officially declared the disputed Islands as its core national interests in April 2012, through a statement by the Foreign Ministry Spokeswoman Hua Chunying. China uses the term to describe its sovereignty claims over Taiwan, Xinjiang Autonomous Region, and Tibet.
5. A.F.K Organski, World Politics ( New York: Knopf, 1968)
6. The Paper employs Organski’s thesis only as an idea among various schools of IR theories to explain States’ behaviour. The author neither subscribes to, nor endorses the Realist perspective.
7. David C. Kang, East Asia Before the West: Five Centuries of Trade and Tribute ( New York: Columbia University Press, 2012)
8. Names and size details of the Islands taken from Che-jung Yu, “A Historical Analysis of the Ownership of the Diaoyutai/Senkaku Islands: from the Chinese Perspetive,” Mater’s Thesis, Graduate School of International Affairs, Ming Chuan University, 2013; Daniel Dzurek, “The Senkaku/Diaoyu Islands Dispute,” Paper available at http://www-ibru.dur.ac.uk/resources/docs/senkaku.html
9. “Diaoyu Dao: An Inherent Territory of China,” State Council Information Office, PRC, September 2012. Full text available at http://news.xinhuanet.com/english/china/2012-09/25/c_131872152.htm
10. “The Basic View on the Sovereignty of the Senkaky Islands,” Ministry of Foreign Affairs, Japan. Full text available at http://www.mofa.go.jp/region/asia-paci/senkaku/basic_view.html
11. United Nations Convention on the Law of the Sea, available at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
12. Pan Zhongqi, “Sino-Japanese Dispute over the Diaoyu/Senkaku Islands: The Pending Controversy from the Chinese Perspective,” Journal of Chinese Political Science, Vol. 12, No.1, 2007
13. The Principle of Natural Prolongation proposes that a nation’s maritime boundaries should reflect the ‘natural prolongation’ of where its land territory reaches the coast. Whereas the Equidistance principle refers to a legal concept that states that a a nation's maritime boundaries should conform to a median line equidistant from the shores of neighboring nation-states.
14. For a detailed discussion on this aspect of the Senkaku/Diaoyu dispute, See, Peter Dutton, “Craving Up the East China Sea,” Naval War College Review, Spring 2007, Vol. 60, No. 2, pp.45-68.
15. ibid
16. “Joint Statement of Japanese Prime Minister Eisaku Sato and U.S. President Richard Nixon,” November 21, 1969, Washington, available at http://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/docs/19691121.D1E...
17. “Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands,” June 17, 1971. Document is available at the Ryukyu-Okinawa History and Culture Website, http://www.niraikanai.wwma.net/pages/archive/rev71.html
18. “Treaty of Peace with Japan,” signed at San Francisco, September 08, 1951, United Nations Treaty Series 1952 (reg. no. 1832), vol. 136, pp. 45 - 164.
19. “An open letter to President Nixon and members of the Congress,” The New York Times, May 23, 1971.
20. The original statement was published in Chinese in Chung-yang Jih-pao ( Central Daily News), June 12, 1971. Cited here from Hungdah Chiu, “An analysis of the Sino-Japanese Dispute over the T’iaoyutai Islets (Senkaku Gunto),” Occasional Paper Series in Contemporary Asian Studies, School of Law, University of Maryland, No. 1, 1999.
21. Ibid 17
22. “US and Japanese reactionaries out to Plunder Chinese and Korean Sea-Bed Resources,” Peking Review, Vol. 13, No. 450, December 11, 1970.
23. “Statement of the Ministry of Foreign Affairs of the People’s Republic of China,” (December 30, 1971). English translation available in Peking Review, Vol. 15, No.1, January 7, 1972.
24. “Joint Statement of the Government of the People’s Republic of China and the Government of Japan,” Peking Review, Vol. 15, No.40, October 6, 1972.
25. “The Senkaku Islands,” Ministry Of Foreign Affairs, Japan, November, 2012, available at http://www.lk.emb-japan.go.jp/eg/contents/culture/SenkakuIslands.pdf
26. “Diaoyu Islands are Chinese territory, based on abundant iron-clad evidence,” People’s Daily, October,
    12, 2012, available at (http://www.chinaembassy.org/chn//zt/DiaoYuDao/t978666.htm).
27. “Treaty Of Shimonoseki,” April 17, 1895, available at http://www.taiwandocuments.org/shimonoseki01.htm
28. United States Department of State. A Decade of American Foreign Policy: 1941-1949, Basic Documents. Washington, DC: Historical Office, Department of State; for sale by the Superintendent of Documents, U.S. G.P.O., 1950, p. 20.
29. ibid
30. “Treaty of Peace between the Republic of China and Japan,” April 28, 1952, Taipei, available at http://www.taiwandocuments.org/taipei01.htm
31. “The Senkaku Islands,” Ministry Of Foreign Affairs, Japan, November, 2012, available at http://www.lk.emb-japan.go.jp/eg/contents/culture/SenkakuIslands.pdf
32. Tao Cheng, “The Sino-Japanese Dispute Over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition,” Virginia Journal of International Law, Vol.14, No.2, 1974, pp.248-260.
33. The Year of publication of this book is not clear. According to Joseph Needham, it was published in 1430. For further details, see Science and Civilization in China, Vol.4, Part 1, Chapter 26, (Cambridge: Cambridge University Press, 1971)
34. Kiyoshi Inoue, Japanese Militarism & Diaoyutai (Senkaku) Island–A Japanese Historian’s View: ‘The Tiaoyu Islands (Senkaku Island) are China’s Territory. Full text available at http://www.skycitygallery.com/japan/diaohist.html
35. Tao, “The Sino-Japanese Dispute,” 1974, pp. 248-60

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Published Date: 12^th June 2014, Image source: http://www.bloomberg.com