Now that we have looked briefly at some of the principles that govern the acquisition of territory, and the delimitation of borders, consider the arguments in these two guest posts by Japanese and Chinese scholars, invited by Nick Kristof of
The New York Times to state their nation's case.
First, you might want to read a couple of recent news articles on the dispute,
here and
here. Then, the debate begins
with a post by the Chinese scholar Han Yi-Shaw. This is followed by
a response from the Japanese scholar Takyuki Nishi. Finally, here is a
later blog post from Kristof responding to a letter from the Japanese government.
We have not studied the legal principles that govern this dispute in any depth, but based on what you have learned so far, which of the two arguments do you find most convincing? In a short paragraph or two, in the comments section below, lay out who you think wins and why.
Both sides arguably have claims grounded in legitimate parts of international law. China has evidence of their navigation records, and documents that Japan recognized their claim before 1895 assert that the islands were unlawfully seized in the first place. However it seems unsettling and counter to the idea of consistent control to solely rely on evidence that old to justify a claim over a disputed territory that has had many interweaving facts and changes in law influence it. Although Japan does not make an argument for consistent control either, it rests its argument on more current ( and arguably more relevant) facts. Japan's claim that China is estopped from making a claim because before 1970 they stated the islands should be self governing or returned to Japan seems to be stronger.
ReplyDeleteI agree with everything that Jacque has said. The claims made by China would seem akin to a hypothetical claim by Mexico to much of present day US territory that US acquired during the Mexican American War. International law principles prefer to leave territorial disputes that were handled inappropriately many years ago, pre-UN Charter, alone. What's done is done, the fact that the Senkaku/Diaoyu islands were claimed as spoils after a war in the late 1800s does not negate Japan's claim.
ReplyDeleteFurthermore, China has a bit of a reputation for being a bit of a bully in several regards- especially when it comes to staking claim on territory. Just ask Nepal, Hong Kong, Taiwan, and others. This dispute is not helping their international reputation, whether they have a superior claim or not.
US involvement needs to stay at a minimum- if anything, facilitate mediation or negotiation. If parties would be willing to submit the issue to the ICJ in the event a compromise cannot be reached- that would be the best possible scenario.
It is also relevant to note that in light of modern international law, it seems to me that Japan has a more solid claim under the effective control argument. They also erected a marker to claim it. They need to flesh out what they mean since the islands ar not being cultivated, which is a wise move in order to avoid worsening the already dire situation- but beyond a marker and buying them, how have they exercised control?
DeleteNoto's decision to blatantly ignore any dispute over the territory may seem obstinate, but I think it may be wise in an effort to keep tensions from openly flaring. That remains to be seen, as protests ensue in China. Again, hopefully leaders will pursue ICJ to legitimize their claims and to seek a just resolution.
The history of effective control of the Diaoyu/Senkaku Islands is hard to pin down. However, the document from 1895 showing control by China and the subsequent actions by Japan (allegedly contrary to international law) seem to make China's arguments slightly more compelling. While it may not be the most likely option, it seems that if both parties would submit to the jurisdiction of the ICJ (as suggested by Nicholas Kristof) there is the potential for peaceful resolution.
ReplyDeleteLet me begin by saying that I also support Kristof's call for the parties to submit this dispute to the ICJ. The growing tension between the two States has the potential to cause violence and unrest, as evidenced by the violent anti-Japan protests in China.
ReplyDeleteHowever, based on the cases presented in The New York Times, I would have to agree that China has the stronger claim here. If the Japanese government did, indeed, steal the disputed islands from China in 1895 as "booty of war," I do not think that China's seeming acquiescence to Japanese sovereignty between 1945 and 1970 shop estop China from asserting this wrong. When more than 40 official Japanese documents demonstrate that the Meiji government acknowledged Chinese ownership of the islands all the way back in 1885, I believe this is compelling evidence in support of China's case.
By reading all of the articles it is clear that each country provides compelling arguments of why the islands are within their territory. Following the ways of which territory can be acquired, I would think that China could claim title by discovering or occupying the territory. From Kristof's research, he states that the Meiji government even acknowledged Chinese ownership of the islands in 1885. But I'm confused about one thing, if Japan has purchased the islands recently, then isn't it theirs?
ReplyDeleteLastly, after reading all of these articles, it has become apparent that the dispute between Japan and China goes much more in depth than the mere ownership of territory. The article of the Chinese man being seized by Japan made it clear that both countries despise each other. I would love to see how the ICJ would analyse this. And if the US were to get involved, I would hope that they would just be part of a contact group.