Senkaku Islets And The International World Court

The dispute over the Senkaku Islands is a long and contentious one that has recently strained relations between three nations that claim a territorial right. The disagreement over sovereignty existed long before the 1969 United Nations Economic Commission for Asia and the Far East discovery of the possibility of natural gas deposits around the small group of islets.

China’s claim to the islets goes all the way back to the 14th century. Chinese offers proof by showing maps that date back to the Ming Dynasty. Beijing officials are quick to argue that Chinese fishermen have used the islets for hundreds of years. Long before Japan ever attempted their first voyage out onto the sea, or had even known that the islets even existed.

Japan claims it discovered the islands in 1884 and annexed them in 1895 after attacking, and defeating China in the First Sino-Japanese War. China rejects Japan’s claim, arguing that the nation was forced to sign the post-war treaty after Japan invaded the mainland. The San Francisco Peace Treaty (SFPT) officially renounced any of Japan’s claims that had arisen from the Boxer Protocol of 1901.

The problem that exists today began when Japan signed the SFPT, which gave Washington a temporary trusteeship over the islands. The U.S. had invited forty-eight nations to attend but failed to invite China, which arguably suffered the most from Japan’s imperial aggressions during the war. The U.S. contends that since China was in the throws of a civil war it did not know which government should attend. As a result China has never recognized the SFPT.

Clause 14 of the treaty allowed allied forces to confiscate all assets owned by the Japanese government, Japanese corporations and Japanese organizations, as well as any property owned by Japanese private citizens. Clause 14 land seizures included all colonized, or occupied countries that had been in Japan’s control, including China. Clause 21 of the article gave China exclusive authority over all Japanese assets located in Mongolia and China’s mainland. The treaty officially renounced any of Japan’s claims to Korea, Formosa (Taiwan), Hong Kong, the Pescadores, the Kuril Islands, the Spratly Islands, Antarctica and Sakhalin Island in the North Pacific.

In 1969, the U.S. authorized the transfer of the Ryukyus to Japan, an order, which was to take effect in 1972. That order included ceding of control of the nearby Senkaku Islands. Both the People’s Republic of China, and the Republic of China argue that the agreement between the U.S., and Japan had not considered the ultimate sovereignty of the Senkaku prior to turning control over to Japan. The question that many are asking is what can be done to resolve this territorial dispute, and return relationships between the two nations to normal? The clear answer is to turn the matter over to the International Court of Justice (ICJ).

International Court Of Justice Rules

According to Article 38 of the Statute of the ICJ, if Japan and China agree to ICJ jurisdiction over the matter, the Court shall apply the following four legal standards (see below). If the parties choose not to use these rules the ICJ can decide the case ex aequo et bono (according to what is right and good, rather than according to the law). Another term that is more frequently used regarding land disputes is the term equity, which means fairness.

Article 38 of the Statute of the ICJ (in part)

  1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  2. International custom, as evidence of a general practice accepted as law;
  3. The general principles of law recognized by civilized nations;
  4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

The former Senkaku “owners” brother, Hiroyuki Kurihara, who represents the family which appears to have pitted Tokyo’s nationalist governor Ishihara, and Japan’s central government against each other in a frenzied bid to “purchase” the islets at a premium made a public statement that the Kurihara family believes Japan should take China to the ICJ. Well, if Japan truly believes that China has no legitimate claim to the islets then what is Japan waiting for? According to Chinese officials, China has already submitted their evidentiary material.

The ICJ And Its Function

The World Court is officially known as the International Court of Justice. It is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague, Netherlands, and was formed in 1946 when it replaced the Permanent Court of International Justice. According to the ICJ website, its functions include settling in accordance with international law the legal disputes submitted to it by States, and giving advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

The Court is composed of fifteen judges, which may not include more than one judge from any nationality. The United Nations General Assembly and Security Council elect the judges to nine-year terms. Under the United Nations Convention on the Law of the Sea, an island is a naturally formed area of land, which is above water at high tide. This means that the ICJ could have jurisdiction over the matter.

Resolution Under The Concept Of Equity

The islet dispute would best be resolved under the well-established laws of possession over territorial claims. Clearly, both Taiwan, and China claim Japan has taken possession of the islands adversely. Despite an unclear historical record, Japan claims it doesn’t have mere possession, but has sovereignty over the land.

At common law, adverse possession existed where title to another’s real property is acquired without compensation, by possessing it in a manner which conflicts with the true owner’s rights. Averse possession must have taken place over a specific statutory period for the adverse possessor to have a legitimate claim to the land’s title. The law of adverse possession is entirely statutory, arising from a concept referred to as statute of limitations. A statue of limitations is an amount of time that is determined by statute that bars a party from bringing a legal proceeding against another.

The requirements of adverse possession are actual possession as if the adverse possessor owned the property. Adverse possession must also be open, notorious and exclusive. This means the adverse possessor held the property in a manner that was capable of being observed by others and had not shared in that possession with the actual owner. The land must also be held in a hostile manner. Hostility exists where possession of the land of another is held regardless of the true boundary line. The adverse possessor must hold the land continuously and uninterrupted for a stated statutory period. The statutory period is the amount of time the claimant must hold the land in order to successfully claim legal title.

Japan has a strong claim under adverse possession because it has been in possession of the islets without China ever taking any action against Japan to prevent that possession. Japan also openly operates a lighthouse one of the islands, and pays for its repair, and upkeep, such was when it’s damaged by a typhoon. Japan had once operated a factory on the islands, however that operation was abandoned long ago, so Japan could not claim continuous possession for that duration. What really matters is, if the ICJ would make a determination based on possession, what statutory determination would be applicable? Statutory limitations differ from jurisdiction to jurisdiction, and this would be a contentious matter for any nation involved in territorial disputes.

All common law jurisdictions require that the action of trespass be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the landowner to evict the adverse possessor depends on the jurisdiction.

In some jurisdictions such as England, the title of a landowner will automatically extinguish once the relevant limitation period has passed. In other jurisdictions, the adverse possessor acquires merely an equitable title where the landowner remains a trustee on behalf of the property.

Adverse possession however does not automatically work against property owned by a government agency. The legal concept has applied to territorial disputes in the past. For example, in the U.S., Georgia lost an island in the Savannah River to South Carolina, when that state used fill from dredging to attach the island to its own shore. Since Georgia knew of this but did not take action to prevent it, the U.S. Supreme Court held in favor of South Carolina, even though the Treaty of Beaufort (1787) explicitly specified that the river’s islands belonged to Georgia.

Common Defenses To Adverse Possession

The following is a list of defenses that are often brought in adverse possession cases:

  1. Permissive Use. If the actual owner has granted permission to use the property, the claim of adverse possession cannot be considered hostile and would fail. (Here, China may argue that operating the lighthouse on the islands was permissible since its own nation benefited from it during storms.)
  2. Public Lands. Government-owned land may be exempt from adverse possession. (China could refuse to allow the doctrine to be used in an ICJ determination.)
  3. Insufficient Acts. Although it is conceded that the claimant engaged in some use of the property, it is alleged that these acts were not sufficient to amount to acts claiming ownership. (China may argue that operating a lighthouse is an insignificant use.)
  4. Non-Exclusive Use. Although it is conceded that the claimant engaged in some use of the property, it is alleged that others (usually the property owner) also used the property in a manner consistent with that of the landowner. (Here, Japan could make a clear showing that Japanese controls the islands military. China could argue that it has fished in that region for centuries.)
  5. Insufficient Time. Even if various elements of adverse possession were met, it is alleged that the adverse possession did not last for the full statutory period, or that the adverse possession was interrupted by a period of non-use. (All nations making a territorial claim over the Senkaku dispute would have to agree to the ICJ rules of equity.)

Conclusion

Japan is almost entirely responsible for the current chaos over the insignificant set of islands. As a result of Japan’s untimely action, its own corporations are suffering the blowback of plummeting sales, and rebuilding factories that had been destroyed in numerous protests that has happened in China. The Chinese perceive Japan’s actions as an imperialistic aggression against China and its sovereignty claim over the disputed territory. However, what is really at stake is 365 Billion USD in trade between the two nations if the matter is not resolved quickly and amicably.

Whether of not this matter is ever resolved, one thing remains, Japan’s failed nationalistic ploy has done nothing but cause economic turmoil for both nations. The furious Chinese are now relentless in refusing to purchase Japan goods, as auto sales have plummeted, as well as the purchase of nearly every other Japan made goods.

Japan’s nationalistic determination was unwise, and has caused relations between the two nations to be at its lowest level since before signing the Sino-Japanese Peace Treaty on September 29th, 1972, that normalized relations.

What has really occurred is that Japan’s central government has been entirely inept in the handling of the 3.11.11 triple disaster, and Japan’s failing economy. The false spirit of nationalism has no other purpose than to sway voters to keep the incompetent politicians propped up in their official capacity. A position they have not earned, and do not deserve to hold on to.

Clearly, the dispute can only be resolved through a proceeding held at the ICJ, and every nation that has a claim must be involved including Taiwan. These nations must agree to Court’s final determination no matter what the outcome.

This Senkaku matter has also caused a stir in Korea over the uninhabitable set of islets known as Liancourt Rocks, which are located 216.8 kilometers from Korea’s mainland, and 250 kilometers from the Honshu island of Japan.

It must be mentioned that the overtures Russia had been sending to Japan regarding territorial disputes in the northern region are now mute.

Japan can also probably kiss the 2020 Olympics goodbye, as it would probably need votes from China, Korea, Taiwan, and Russia to win its bid. The last two Olympics between Sydney and Beijing, and Paris and London were determined by a mere one or two votes.

Once again China, Korea, and Taiwan are openly calling for Japan to acknowledge it’s abhorrent imperialistic past, and to start teaching its true history to its people. A history that it seems the entire world is aware of, but its own people are not.

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