JURIST Contributing Editor Michael Kelly of the Creighton University School of Law examines the ongoing dispute between China and Japan over the Senkaku Islands …

L ast week the US flew two B-52 bombers over the remote, uninhabited Senkaku Island group in a show of force for an audience of one. Whether he enjoyed the show from his seat in Beijing or not, Chinese president Xi Jinping was no doubt smiling. The Americans finally take the dispute between China and Japan over the Senkaku islands seriously. It took a brazen extension of China’s “air defense zone” over the islands with a warning of possible military reaction against non-compliant aircraft to accomplish this. But the provocation worked.

Located between 123-125 degrees longitude and 25-26 degrees latitude at the maritime crux of Okinawa, Taiwan and China, the Senkakus, or Diaoyu Islands in Chinese, ride atop the same continental shelf as Taiwan. Nevertheless, they were historically seen as associated with the Ryukyu Island chain, which was incorporated into Japan in the 19th Century. For disputes such as these, adversaries tend throw maps and treaties at one another to bolster their claims. Consequently, while Japanese and Chinese fishing and coast guard vessels have been ramming one another or playing chicken in this part of the East China Sea for the past three years, the governments in Tokyo and Beijing have been mustering their legal arguments.

Japan has in its arsenal an 1895 treaty ending the first Sino-Japanese War in which China ceded the islands. China responds that this was superseded by the Treaty of San Francisco ending World War II in the Pacific by which Japan re-ceded the islands. The US took possession of the islands after the war, but then returned them to Japan in 1972. Privately owned by a Japanese family, the conservative mayor of Tokyo sought to purchase them in 2012 to keep them out of the hands of the Chinese and bolster his nationalist political base, but the Japanese government preempted this move by purchasing most of them itself. China was predictably outraged. The dispute has only ratcheted up tensions from there.

Why has the long-simmering Senkaku dispute reached the boiling point now, in 2013? Because Mr. Xi senses a settlement. But not with respect to the Senkaku Islands. Or the East China Sea for that matter. His real focus is on the South China Sea, where the US has far fewer naval assets, smaller and more shaky allies, and the bilateral power politics are distinctly to China’s advantage. China is playing the long game with respect to its maritime ambitions. It is seeking a grand bargain, and we, along with Japan, are playing into it.

The South China Sea dispute involves overlapping claims by China, Vietnam, Malaysia and the Philippines. By far the largest claim is China’s, which, by virtue of its famous “nine dash line” encompasses roughly 80 percent of the waters between mainland China and Borneo. Not only is this area very rich in fishing grounds, it is also home to the largest underwater petroleum reserves in Asia, approximately the size of Saudi Arabia’s. Moreover, China’s quickly developing blue water navy [PDF] requires its own oceanic backyard. Hemmed in by Japan and the US in the East China Sea, the South China Sea is a much more promising pond in which the Chinese navy can operate its new submarines and aircraft carrier.

Indeed, China has invested far more in its South China Sea claim than its East China Sea claim. The island of Yongxing in the Paracels Group, only one square mile, has been built up with an airstrip by which mainland China supplies food, water and all other supplies to the 1,000 residents it has moved there to anchor its claim. Located 220 miles south of Hainan Island, Yongxing, China argues, is the capital of a new administrative region that includes all the other islands in the group. The Chinese also regularly patrol other island and reef claims that it must secure in order for its maritime sea claims to become legitimate under the rules of the 1982 Law of the Sea Convention [PDF], to which the US is not a party.

China became interested in the South China Sea a decade before the East China Sea. Beijing’s modern claim to the former dates to 1958, while its modern claim to the latter dates only to 1970. The origins of the more recent Senkakus claim are rooted in the discovery of fossil fuel by a 1968 UN hydrographic survey. In a 1971 secret report [PDF], the CIA found that Chinese government and military maps immediately prior to this discovery did not include the Senkakus. However, immediately after the discovery, new editions of the maps along with a new map issued by the Chinese National Petroleum Corporation included them.

Whatever the origins of the revived Senkaku claim forty three years ago, Mr. Xi knows he can get much more fossil fuel to feed his carbon-thirsty economy from the South China Sea deposits than he could from the comparatively meager East China Sea. His strategy is to create the biggest fuss possible with brinksmanship tactics over the Senkaku Islands in order to bring a frayed and twitchy Japan to the bargaining table, with the US nervously in the background pushing hard for peace. And then, he will pitch his grand bargain. In exchange for relinquishing China’s claim to the Senkakus, Mr. Xi would want Japan to support China’s claim to the South China Sea. Politically, the Japanese government comes home with a huge victory that costs it virtually nothing. But of course, what Japan gives China in this grand bargain is far more valuable to China than a handful of rocks near Okinawa.

With Japan backing it’s claim in the South China Sea and the US backing off, China will be in a position to deal bilaterally with the claims of the smaller states. Unable to withstand the political, economic and military might of their vastly larger neighbor, the claims of Vietnam, Malaysia and the Philippines will eventually collapse through bribery, bullying and benevolence alternately applied. Long the object of Euro-Japanese grand bargains that carved up its territory and subjugated its people, China now seeks a grand bargain of its own. Mr. Xi understands that his country has the leverage to pull one off, and he is gambling that this feint to the Senkakus will get him the support from the other Great Powers to do it.

An increasingly deflated Obama presidency in its second term, distracted by Syria and Afghanistan, has been unable to fulfill its promised “pivot to Asia” in American foreign policy. If China gets the free hand it wants in the ocean to its south in exchange for short-term peace and stable economic relations, then Mr. Xi will have succeeded mightily in placing his country at the new gravitational center of international relations. China will no longer be a rising power. It will have risen.

Michael J. Kelly is Professor of Law and Associate Dean for International Programs and Faculty Research at Creighton University School of Law in Omaha, NE. He served as Chair of the Association of American Law Schools Section on National Security Law in 2009-2010.

Suggested citation: Michael Kelly Why China Doesn’t Really Want the Senkaku Islands, JURIST – Forum, December 7, 2013, http://jurist.org/forum/2013/12/michael-kelly-china-senkaku.php

This article was prepared for publication by Alex Ferraro, the Section Head of JURIST’s academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org