Deconstructing Japan’s Claim of Sovereignty over the Diaoyu/Senkaku Islands

釣魚/尖閣に対する日本の統治権を脱構築する

Ivy Lee and Fang Ming

“The near universal conviction in Japan with which the islands today are declared an ’integral part of Japan’s territory‘ is remarkable for its disingenuousness. These are islands unknown in Japan till the late 19th century (when they were identified from British naval references), not declared Japanese till 1895, not named till 1900, and that name not revealed publicly until 1950." Gavan McCormack (2011)1

Abstract

In this recent flare-up of the island dispute after Japan “purchased” three of the Diaoyu/Senkaku Islands, Japan reiterates its position that “the Senkaku Islands are an inherent part of the territory of Japan, in light of historical facts and based upon international law.”  This article evaluates Japan’s claims as expressed in the “Basic View on the Sovereignty over the Senkaku Islands” published on the website of the Ministry of Foreign Affairs, Japan.  These claims are:  the Senkaku/Diaoyu island group was terra nullius which Japan occupied by Cabinet Decision in 1895;  China did not, per China’s contention, cede the islands in the Shimonoseki Treaty; Japan was not required to renounce them as war booty by the San Francisco Peace Treaty; and accordingly Japan’s sovereignty over these islands is affirmed under said Treaty.  Yet a careful dissection of Japan’s claims shows them to have dubious legal standing.  Pertinent cases of adjudicated international territorial disputes are examined next to determine whether Japan’s claims have stronger support from case law.  Although the International Court of Justice has shown effective control to be determinative in a number of its rulings, a close scrutiny of Japan’s effective possession/control reveals it to have little resemblance to the effective possession/control in other adjudicated cases.  As international law on territorial disputes, in theory and in practice, does not provide a sound basis for its claim of sovereignty over the Diaoyu/Senkaku Islands, Japan will hopefully set aside its putative legal rights and, for the sake of peace and security in the region, start working with China toward a negotiated and mutually acceptable settlement.