This article is intended to introduce the assertion of the Japanese government with regard to the territorial dispute over the Senkaku Islands, and to present an objective and reasoned examination to the problem in terms of international law. Before turning to the main part of the article, some basic points of international law shall be given as an introduction to the legal issues relevant to the dispute.
The Japanese government has contended that the Senkaku Islands had been terra nullius (a territory without owner) until their incorporation into Japanese territory through the decision at the Japanese Cabinet meeting in 1895; that the Islands effectively became Japanese territory in terms of international law through their incorporation in 1895 and through the effective exercise of state functions over the Islands; and that the legal status of the Islands remains unchanged even after World War II. By contrast, both the Chinese and Taiwanese governments have contended that, historically speaking, the Senkaku Islands (Diao-yu Tai) have been their territory; and that Japan, while forcing the Qing government to cede Taiwan in accordance with the Treaty of Shimonoseki (1895), unilaterally incorporated those islands into her territory; and that the Islands should, like Taiwan, be returned to China. In comparing contentions raised by both parties, some critical issues are addressed as follows:
whether the Senkaku Islands were, in the light of international law as it stood in 1895, Chinese territory or terra nullius (a territory which was at the time not subject to the sovereignty of any state); and
whether Japan legitimately acquired the territorial sovereignty over the Senkaku Islands in accordance with the international law of the day, through the measures of territorial incorporation taken in 1895 and through Japan’ s effective control over them thereafter.
The Japanese government invokes the principle of ‘occupation’as the legal ground for their contention. In general, international law recognizes the following modes of acquisition of territory as creating a title1 to territorial sovereignty: occupation, prescription, cession, accretion and annexation (subjugation). Occupation is the appropriation of a territory by a state which is not at the time subject to the sovereignty of any state.2 Occupation is effected through taking possession of, and maintaining the exercise of state functions over, a territory in the name of, and for, the acquiring state.
However, as a matter of fact, it may often be uncertain whether the area in question has historically been a territory of a particular state, or terra nullius in international law in the actual territorial disputes. Such difficult cases have become apparent in territorial disputes, especially after the end of the 19th century when annexation or division of
colonies by western powers had almost come to an end.
Incidentally, both occupation and prescription have common requisites: (1) the will of a state to possess, and (2) effective possession. Bearing this in mind, the international jurisprudence in arbitral and judicial decisions of the 20th century does not intend to forcibly apply either occupation or prescription to each case, but rather applies indiscriminatingly a new title of “the actual, continuous and peaceful display of state functions in regard to the territory in dispute” 6 - the new concept of “effective 7 The concept of “effective occupation”itself had taken place in the 19th century and especially since the African Conference of Berlin in 1885. At that time, the requisite of occupation was the taking of physical possession of land and the exclusion of any other state by settlement or use of territory by other means. However, by the 20th century this theory had been decisively rejected by arbitral and judicial decisions (e.g., Island of Palmas case, 1928; Eastern Greenland case, 1931; Clipperton Island case, 1932; and Minquiers & Ecrehos case, 1953). These cases make it clear that today the decisive test of the effectiveness of an occupation is whether the claimant has in fact displayed state functions in regard to the territory sufficiently to assure to other states “the minimum of protection of which international law is the guardian.” 8 Thus, emphasis has clearly shifted from the taking of physical possession to the manifestation and exercise of the functions of government over the territory. The new concept of “effective occupation” might be said to blur the boundary between occupation and prescription.
Modern international law came to be applied in the 16th to 17th centuries among the European states. International law was never known to Ming China or Ryukyu when Che-feng-shi Lu records 冊封使 (The Records of the Chinese Imperial envoys) were written by Chen Kan 陳侃, Guo Ru-lin 郭汝霖 and others. Therefore, if China had at occupation.”
that time considered the Senkaku Islands as its own territory and treated them as such, and if other states had not contended against such Chinese behavior, the Islands would have been recognized as Chinese territory.10 In other words, if China had apparently expressed its will to possess those islands, if its sovereignty had truly extended to them, and if other states had acceded to this without calling it in question, then they would have been established as a Chinese territory without reference to any rule or of principle of contemporary international law of European origin, such as occupation. Actually, the overwhelming part that comprises Chinese territory today had been established as such through “ancient possession from time immemorial,” 11 and its status has never been affected notwithstanding the acceptance of international law by the subsequent Chinese governments. As far as those uninhabited islands (like the Senkaku Islands that had once been too remote to approach from mainland China) are concerned, one can say that despite the fact that China’ s sovereignty had never actually covered the islands, if the will to possess them as its own territory had been manifestly displayed, and if no other states had disputed it, then the islands would be considered Chinese territory. In contrast, if the will to possess the islands had not been perceived explicitly due to their distance from the mainland, then it should be fair to say that the island’ s legal status would not have been established at that time; and that if they had been occupied by either Japan or China (or any other states) in accordance with the principle of occupation after both states had accepted international law, then the islands would have come under the jurisdiction of the occupying state at the very point of time. In that sense, unless the Chinese government had considered and treated the Senkaku Islands as its own territory, their status would not be different from that of the Ogasawara Islands, Minami-Daitou Island, and Minami-Tori Shima Island (Marcus Island), which are all said to have been acquired by Japan after the Meiji Restoration of 1868 in accordance with the principle of occupation. In the Minquiers and Ecrehos case (U.K. vs. France), the International Court of Justice ( “ICJ” ) decided that, even if one of the parties had a primordial-feudalistic title dating back to the Middle Ages, that title was never applicable unless it was replaced by another valid title which later became necessary through the evolution of law.12 The new valid title - as referred to by the Court - means title based on effective possession, which was required under the new concept of occupation. In the case of Japan and China, since their acceptance of modern international law in the 19th century had caused great changes in the international legal relationship around them, they should be encouraged to meet the requirement of the so-
called inter-temporal law in that the ancient title should be replaced by the new valid one.13 It would follow that title to an uninhabited island lying between the two countries, the...