By Liu Dan
There is a longstanding sovereignty dispute concerning the Diaoyu/Senkaku Islands betwixt China together with Japan. An “international dispute” is a affair for objective determination: i exists if “there is a disagreement over of dot of police describe or fact, a conflict of legal views of interest” betwixt 2 parties, every bit it was stated yesteryear the Permanent Court of International Justice inward the Mavrommatis Palestine Concessions (Jurisdiction) instance (1924). Therefore, a mere denial from the Japanese authorities that the dispute exists does non try the nonexistence of the dispute. China together with Nippon apparently own got contradicting legal positions on the Diaoyu/Senkaku Islands. Previous Chinese literature invokes historical evidence dating to earlier the Sino-Japanese state of war to try China’s sovereignty over the islands. For China, the “fact” that the islands were uninhabited does non hateful that Diaoyu Islands were “terra nullius” nether international law. Besides the fact that China had already discovered together with named the Diaoyu Islands yesteryear the 14th-15th century, it is full general noesis that the maritime boundary line betwixt China together with the Kingdom of Ryukyu (invaded together with and therefore renamed every bit “Okinawa prefecture” inward 1879 yesteryear Meiji authorities of Japan) was inward Hei Shui Gou (today’s Okinawa Trough) betwixt Chiwei Yu together with Kume Island. The Diaoyu Islands, lying to the westward of Hei Shui Gou, were China’s territory, non islands appertaining or belonging to the territory of the Ryukyu Kingdom.
Prior to the 1895 Japanese Cabinet determination that “incorporated” the Diaoyu Islands into Okinawa prefecture, the Diaoyu Islands had long been nether the Chinese coastal defense forcefulness of the Ming (1368-1644) together with Qing (1644-1912) dynasties. The Qing courtroom farther placed the islands nether the jurisdiction of the local authorities of Taiwan. This tin dismiss live proved yesteryear numerous official documents or maps originating from China, Japan, together with the Kingdom of Ryukyu.
Japan, on the other hand, relies on the theory of territorial acquisition nether modern international police describe to defend its claim. For example, a recent article yesteryear Jun Tsuruta inward The Diplomat referred to the dominion of “effective control” inward international law, peculiarly “terra nullius” together with “acquiescence,” together with concluded that “China’s long postwar quiet undermines its claim to sovereignty.” However, according to the Tripartite Hierarchy Rule for territorial disputes, the International Court of Justice (ICJ) looks outset to treaty law, together with therefore to uti possidetis, together with lastly to effective control. Treaties inward relation to the territorial dispute play a preliminary or fifty-fifty preferential move for international dispute mechanisms inward deciding territorial sovereignty.
The 1895 Treaty of Shimonoseki after the Sino-Japanese War is the starting dot to examine the applicable treaties concerning the dispute. Japan’s official documents such every bit Minister Mutsu Munemitsu’s reply to Yasushi Nomura on Jan xi of 1895 demo that from the fourth dimension of the fact-finding missions to Diaoyu Islands inward 1885 to the work of the islands inward 1895, Nippon had consistently non made its moves to seize the Diaoyu Islands inward public, until it defeated the Qing dynasty inward the Sino-Japanese war. According to Article 2 (b) of the Treaty of Shimonoseki signed on Apr 17, 1895, the Qing courtroom was forced to cede “the isle of Formosa [Taiwan], together amongst all islands appertaining or belonging to the said isle of Formosa” to Japan. Accordingly, the Diaoyu Islands were ceded to Nippon every bit “islands appertaining or belonging to the isle of Formosa.”
Following the Treaty of Shimonoseki, a serial of treaties together with international instruments after the World War II are the legal ground for China to claim its territorial sovereignty over the Diaoyu Islands. First, the Cairo Declaration of Dec 1943 proclaimed that “all the territories Nippon has stolen from the Chinese, such every bit Manchuria, Formosa [Taiwan] together with the Pescadores, shall live restored to the Republic of China. Nippon volition too live expelled from all other territories which she has taken yesteryear violence together with greed.” The Diaoyu Islands, which were secretly stolen yesteryear Japan, should live returned to China.
Article 8 of the Potsdam Declaration of July 1945 reaffirms that “The price of the Cairo Declaration shall live carried out” together with the Japanese Instrument of Surrender of September 1945 reverberate that the fact that Nippon pledged to faithfully fulfill the obligations enshrined inward the Potsdam Declaration. Japan’s obligation to homecoming the Diaoyu Islands was farther reinforced yesteryear these 2 legal documents.
Moreover, the Supreme Commander for the Allied Powers Instruction (SCAPIN) No. 677 of 1946 defined Japan’s direction mightiness to “include the iv master copy islands of Nippon (Hokkaido, Honshu, Kyushu together with Shikoku) together with the simply about 1,000 smaller side yesteryear side islands, including the Tsushima Islands together with the Ryukyu Islands due north of the 30th parallel of North Latitude.” The Diaoyu Islands, lying inside 25°40′ – 26°00′ of North Latitude, were clearly non included into the regime defined yesteryear the SCAPIN No. 677.
Contrary to China’s approach to invoke the Treaty of Shimonoseki together with legal documents such every bit the Cairo Declaration, Nippon tends to deny the applicability of the Treaty of Shimonoseki inward the dispute. Instead, Nippon relies on multilateral treaties such every bit the 1951 San Francisco Peace Treaty, bilateral treaties such every bit the 1971 Ryukyu Transferring Agreement (“Agreement concerning the Ryukyu Islands together with the Daito Islands amongst related arrangements,” i.e., the so-called “Okinawa Reversion Agreement”), every bit good every bit some decrees issued yesteryear the U.S.A. Ryukyu Administrative Government (which operated from 1950 to 1972).
Although Nippon regards relevant provisions of the San Francisco Peace Treaty every bit the conventional ground for the Diaoyu Islands dispute, the applicability together with legality of the Treaty are problematic. First, the negotiation, legislative, together with ratification procedure of the San Francisco Peace Treaty inward relation to the post-war organization amongst Nippon excluded China together with other allies such every bit the Soviet Union. Therefore, the legality of the San Francisco Peace Treaty every bit “peace treaty” or post-war organization is doubtful, since the said exclusion is a violation of the commitment yesteryear the allies to “cooperate amongst the Governments signatory hereto together with non to brand a split upwards armistice or peace amongst the enemies” which was envisaged inward the 1942 Atlantic Charter. Second, according to the full general dominion of pacta tertiis nec nocent nec prosunt (treaty does non exercise obligations for a 3rd party) nether international law, China is non jump yesteryear the San Francisco Peace Treaty because of its condition every bit a 3rd political party beingness excluded from the treaty signature.
Even if the San Francisco Peace Treaty is applicable inward determining the dispute, if i examines the treaty provisions from the angles of the police describe of United Nations trusteeship together with treaty interpretation, the utilization of price inward Article 3, such every bit “Nansei Shoto,” “any proposal of the U.S.A. to the United Nations to house nether its trusteeship system,” together with “powers of administration, legislation together with jurisdiction” may non necessarily back upwards Japan’s sovereign claims over the Diaoyu Islands.
Referring to the U.S.A. Civil Administration Proclamation No. 27 of Dec 1953, Article 1.2 of the “Agreed Minutes” attached to the Ryukyu Transferring Agreement included the Diaoyu Islands into the regime of the “Ryukyu Islands” yesteryear geographic coordinates which had been indicated inward Proclamation No. 27. However, neither the 1971 Ryukyu Transferring Agreement nor Proclamation No. 27 of 1953 is a solid legal ground for Japan’s claim for several reasons.
First, such inclusion was defined yesteryear the cast of “Agreed Minutes” instead of “Annex,” which had been required yesteryear the Japanese authorities during the negotiation. The legal cast undermines the possibility of applying Article 1.2 of the “Agreed Minutes” inward the dispute. Second, the Ryukyu Transferring Agreement violated the full general dominion of pacta tertiis nec nocent nec prosunt, since the Agreement has the final result of including the disputed territory (the Diaoyu Islands) into the Ryukyu Islands. Third, Proclamation No. 27 of 1953, which neither conforms amongst SCAPIN No.677, nor abides yesteryear the police describe of armed services occupation, shall non live regarded every bit a “legal basis” for the Ryukyu Transferring Agreement.
To keep its claim, Nippon disregards the Treaty of Shimonoseki together with treaties signed amid allies to keep globe peace together with lodge after World War II. On the other hand, Nippon relies heavily on the San Francisco Peace Treaty, the Ryukyu Transferring Agreement, together with the decrees of the U.S.A. Ryukyu Administrative Government. Moreover, rules of territorial acquisition (such every bit “terra nullius” together with “acquiescence”) are quoted oft yesteryear the Japanese government. However, the ICJ commonly follows the Tripartite Hierarchy Rule for the territorial dispute; namely, treaties inward relation to the territorial dispute — instead of rules of territorial acquisition — volition play a preferential move for the Court to examine the dispute. In deciding the Diaoyu/Senkaku Islands dispute, multiple considerations such every bit treaties together with the ingredient of “critical date” (the dot of fourth dimension falling at the destination of a catamenia inside which the cloth facts of a dispute are said to own got occurred) are to a greater extent than decisive than acquiescence.
LIU Dan is Associate Research Professor at Koguan Law School, Shanghai Jiao Tong University.
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