This article was translated by JIIA from Japanese into English as part of a research project sponsored by the Government of Japan to promote academic studies on the rule of law. JIIA takes full responsibility for the translation of this article. To obtain permission to use this article beyond the scope of your personal use and research, please contact JIIA by e-mail ([email protected]) Citation: Rule of Law Series, Japan Digital Library (March 2015), http://www2.jiia.or.jp/en/digital_library/rule_of_law.php Issues on the Title of the Senkaku Islands: Analysis of the Viewpoints of Japan and China* Kyoko Hamakawa Issue Brief, National Diet Library No. 565 (Feb. 28, 2007) Since 1971, the Chinese government has claimed the territorial title to the Senkaku Islands, asserting that they have been Chinese territory since the time of the Ming Dynasty. On the other hand, the Japanese government takes the position that there exists no issue of the territorial title to be resolved concerning the islands. This paper compares and examines the viewpoints of Japan and China over the territorial title to the Senkaku Islands. The main arguments can be broadly divided as follows; (1) before 1895, when Japan incorporated the islands, whether they were terra nullius or Chinese territory; (2) if Japan’s territorial incorporation of the islands by its Cabinet Decision was conducted in a valid manner; and (3) if Japan has exercised sovereignty over the islands continuously and peace- fully since the territorial incorporation. The last argument whether sovereignty has been exercised continuously and peacefully is regarded as particularly crucial in the past international adjudications on territorial disputes. Introduction The Senkaku Islands are currently an uninhabited group of islands comprised of Uotsuri Island, Kuba Island (also known as Kobi-sho Island), Taisho Island (also known as Kumeakashima Island or Sekibi- sho Island), Kitakojima Island, and Minamikojima Island, Tobise Island, Okinokitaiwa Island, and Okinominamiiwa Island. It was thought that the islands had little economic value. However, the scien- tific survey by the United Nations Economic Commission for Asia and the Far East (ECAFE) in 1968 concluded that the continental shelf in the East China Sea might contain prolific oil reserves and after that, the islands quickly became the focus of attention. In the early 1970s, China began to claim territorial title of the islands.1 After reviewing how the attribution of territories is determined in international law, this paper will summarize and examine the arguments on the territorial title of the Senkaku Islands. * This article was originallypublished as 濱川今日子「尖閣諸島の領有をめぐる論点―日中両国の見解を中心に」『調査と情報 -Issue Brief』No. 565, 国立国会図書館調査及び立法考査局、2007 年 2 月、1-10 頁 . 1 Statement by the Ministry of Foreign Affairs, the Government of the People’s Republic of China (December 30, 1971), reproduced in Kazankai, Nitchu Kankei Kihon Shiryoshu 1949 nen-1997 nen [Collection of Basic Documents on Japan-China Relations from 1949 to 1997] (1998), pp. 401-402. Taiwan also independently claims title to the Senkaku Islands, but it is beyond the scope of this paper. 1 Figure 1: The composition of the Senkaku Islands Figure 2: The Location of Uotsuri Island Kuba Island Taisho China Island Okinawa Kume Island Island Approx. 27 km 330 km Okinokitaiwa Uotsuri Island Island 170 km 410 km Approx. 110 km Uotsuri 170 km Island 150 km Okinominamiiwa Island Taiwan Ishigaki Island Approx. 5 km Yonaguni Island Tobise Kitakojima Island Island Minamikojima Island Sounce: Each map is from the website of the Ministry of Foreign Affairs I. International Law concerning the Attribution of Territory A territory belongs to the state that possesses the title to that territory. Territorial title provides the foun- dation or grounds that enable a state to validly exercise sovereignty over a specific territory.2 As the modes for states to acquire territorial title, occupation, accretion, cession, annexation, conquest, and prescription have traditionally been recognized.3 Among these modes of acquisition, Japan bases its title to the Senkaku Islands on occupation. 1. Theory of Occupation Occupation means that a state occupies effectively terra nullius, an area that does not belong to any state, with an intention to possess that territory. A state generally expresses its intention to possess a territory through a declaration or a notification to other states that it will incorporate the relevant area into its own territories. However, according to the mainstream opinions, neither a declaration nor a notification is an absolute requirement in order for a state to show its intention to acquire a territory because its intention can be assumed from specific state activities and other relevant facts.4 Effective occupation, in other words, signifies the substantive state activities that prove the inten- tion of possession. Today, it is said that physical occupation in the form of the actual use or settlement is not necessarily required and that social possession in the sense of establishing sovereignty is considered to be sufficient.5 2. The Importance of the Continuous and Peaceful Display of Territorial Sovereignty in the International Judicial Precedents In a traditional legal theory, once a state has acquired territorial title, this immediately generates opposability 2 Takane Sugihara et al., Gendai Kokusaiho Kogi dai 3 pan [Lectures on Modern International Law] (3rd ed., 2003), p. 105. 3 The respective definitions are briefly summarized in Akira Kotera, Paradaimu Kokusaiho: Kokusaihou no Kihon Kosei [Paradigms in International Law: the Basic Structure of International Law] (2004), pp. 121-122. 4 Sugihara, supra note 2, p. 106. 5 Shuichi Furutani, “Kokusaihou ni okeru Ryodo/Kokkyo” [Territories and Borders in International Law], Yurashia Kenkyu [Eurasian Studies], Vol. 34 (2006), p. 34. 2 to all other states. Hence, there should be no concurrent claims of the title among states to a specific area. In reality, however, a dispute may occur under the circumstances where it is not clear if a state has acquired the territorial title. In these instances, each state concerned brings different evidence to claim its title and it is difficult to reach an all-or-nothing judgment based on a traditional theory, in which a single state absolutely possesses the title and others do not. In the Island of Palmas case (1928),6 without relying on the traditional modes of territorial acqui- sition, such as occupation and prescription, the Permanent Court of Arbitration applied the element whether the title acquired had been maintained, by stating that “the continuous and peaceful display of territorial sovereignty … is as good as a title.”7 It can be said that in this case, the court made the judgement based on a comparative factor that which of the parties had controlled the disputed territory more effectively. Since the Island of Palmas case, this legal principle of effective control has been followed as a judicial precedent for territorial disputes. Additionally, it is considered to be highly important the recognition or the acquiescence of other states, especially the other party in the dispute, to a continuous display of “actual control,” since it proves the peacefulness.8 3. The Critical Date The date that the dispute arose or that the territorial title was established is called the “critical date.” International law recognizes only the facts and the state activities occurred prior to a critical date as evidence. There is no single method for determining a critical date and ultimately it is entrusted to the judgment of court. There are some cases where the parties to a dispute claimed different critical dates but courts did not specifically admit these dates.9 II. The Bases of Claims before the Territorial Incorporation of the Senkaku Islands into Japan China claims concerning the Senkaku Islands that “as early as the Ming Dynasty, these islands were already included in China’s coastal defence zone, and they were […] part of the islands appertaining to Taiwan, China. The boundary between the territories of China and the Ryukyus was marked between Sekibi-sho Island and Kume Island.”10 In the following sections, the author will review the documents that are considered to be evidence to support China’s claim that historically the Senkaku Islands have been its territory, and then will examine the validity of this claim. 1. “The Coastal Defense Zone” In the 1560s Japanese pirates, wako (in Chinese wokou), raged around the central and southern coasts of China in the 1560s and they were a serious threat to the Ming Dynasty.11 It is said that China established a coastal defense zone against wako, within which China claims that the Senkaku Islands were included. 6 This is a case concerning the territorial title of the Island of Palmas off the coast of Mindanao in the Philippines between the United States and the Netherlands. Island of Palmas (Netherlands v. U.S.), Reports of International Arbitral Awards, Vol. 2 (1948), pp. 829-871. 7 Ibid., p. 839. 8 Akira Kotera, “Paradaimu Kokusaiho (dai 10 kai): Rikuchi to Tairikudana no Kizoku” [Paradigms in International Law (Lecture No. 10): Attribution of Land and Continental Shelf], Hogaku Kyoshitsu [Legal Classroom], No.256 (2002), p. 132. 9 See the judgement by the International Court of Justice on the Minquiers and Ecrehos (United Kingdom v. France), Advisory Opinions and Orders, I.C.J. Reports1953, pp. 47-109. 10 Kazankai, supra note 1, p. 402. 11 Kyodai Toyoshi