The Senkaku Islands, Pt. I: UNCLOS, the EEZ, and the Conflict Between Land- and Sea-Based Sovereignty Regimes

In the East China Sea, north off the coast of Taiwan and south off the coast of Okinawa, there exists an island chain consisting of five small islets, and three smaller rocks. These islands — known as the Senkaku Islands in Japan, the Diaoyu Islands in China, and the Diaoyutai Islands by Taiwan — are the subject of a longstanding territorial dispute between those three states, and in recent months the dispute has become heated once again. military and diplomatic sparring over the islands has resumed once again.

China claims the islands are part of its sovereign territory, having been wrongfully stolen by Japanese military expansions in the late 19th century. Japan, in turn, claims that it is the rightful sovereign of the Senkakus, alleging that the islands were terra nullius until 1895, when Japan incorporated the islets by cabinet decision. Japan further asserts sovereign title to the islands owing to China’s failure to object to Japan’s claims of sovereignty for over seventy years, until China first raised a competing claim to the islands in 1970.

Not coincidentally, China’s first assertions of sovereignty over the Senkakus were made just one year after seismic surveys of the sea floor surrounding the islands had discovered the existence of significant oil and gas reserves. But while the discovery of natural resources in the East China Sea precipitated the ongoing territorial dispute between China and Japan, during this same time period there was another event occurring that would prove equally responsible: the development of modern international law of the sea. As result, the Senkaku Islands became a massively valuable commodity, and a previously dormant territorial dispute has become a flashpoint. Both Japan and China argue that, under international law, they are the rightful owners of the land.

The problem is, despite all the diplomatic strife and threats of military action, no one actually wants the Senkaku Islands.

And why would they? Seriously, look at these things:

Hardly anything there to speak of — and these are the three of the four biggest islets in the Senkaku Islands. In all, the island chain is nothing more than a barren 1,700 acres of sand, scrub, and rock. A few endangered moles live there, along with some feral goats, but the Senkakus are not suitable for human habitation. It is debatable whether any fresh water sources even exist on the islands, and previous attempts at establishing industry on Uotsuri, the largest islet, have all ended in failure.

The above-water portions of the Senkaku Islands are of negligible value. But the islands’ worthlessness is irrelevant to the intensity of the dispute over their ownership. China and Japan do not seek possession of the Senkakus because they wish to possess the islands, but because possession of the Senkakus is a mechanism for obtaining possession over the surrounding sea. In other words: possession of the Senkakus is a means, not an end.

In previous eras, when competing claims of sovereignty over a territory could not be determined by reference to either treaties or to customary international law, there did remain one additional mechanism that states could resort to for conclusively resolving the question of ownership. That particular mechanism, however, has now been expressly prohibited by Article 2 of the UN charter. With sovereignty-by-conquest no longer a sanctioned means of dispute resolution, and when the states involved in the dispute have no interest in submitting the matter to an adjudicative body, the result is an effective stalemate. In a fruitless attempt to resolve the conflict by reference to international law, Japan and China have now been reduced to squabbling over ancient maps and conflicting historical accounts.

This is the current status of the Senkaku Islands, and of numerous other disputed island territories off the coast of China and Japan. Japan and China can each point to various 19th century maps or little-noticed governmental decrees to bolster their claims of sovereignty. But based on the existing historical record concerning the occupation and use of the Senkaku Islands, neither China nor Japan can convincingly demonstrate a superior claim.

Why International Law is to Blame for the Senkaku Islands Dispute

The Senkaku Islands dispute is a direct result of the enactment of the UN Convention on the Law of the Sea. UNCLOS changed the rules of the game by linking ownership of ocean resources with ownership over uninhabitable islands, and as a result, previously worthless territorial trinkets were suddenly transformed into immensely valuable conquests. Without UNCLOS, neither China nor Japan would possess a strong enough political motivation to spend forty years and millions of dollars fighting over ownership of the Senkakus.

But even though international law created the conflict between China and Japan, international law does not offer any solutions for resolving it. The Senkaku Islands dispute can only be settled by political means, not by legal process, because international law simply doesn’t possess an satisfactory means of establishing sovereignty over worthless land areas.

And the Senkaku Islands are not an anomaly. Uninhabitable islands are the most frequent source of territorial disputes in the modern world, due to the prior worthlessness of the contested territories. In previous centuries, for remote and uninhabited islands of ambiguous nationality, the traditional method of settling contested territorial claims — military conquest — just hadn’t ever been worth the effort. But by the time UNCLOS came along and changed the equation, expansionism had largely gone out of style as a viable foreign policy. As a result, territorial disputes over these newly-valuable lands have been intense, but also largely unresolvable.

The Senkaku Islands are a perfect and unfortunate example of this. But despite the symbolic significance they may have, the islands are not the true subject of the dispute. If a Solomonic decree were to be issued, splitting the islands in half by dividing jurisdiction over the above-water portion of the islands from jurisdiction over the accompanying seas, the dispute between China and Japan would be no closer to being settled. Both countries would demand they be awarded the same half — the potential 400-mile diameter EEZ surrounding the islands, rather than the 2.7 square miles of land that the islands are comprised of.

Because the economic value of uninhabitable islands is modern invention, neither treaty law nor customary international are capable of establishing whether China or Japan is the rightful sovereign over the Senkaku Islands.

Treaty Law Does Not Establish Sovereignty over the Senkaku Islands

Unfortunately, to the extent that treaty law might have been relevant in establishing ownership over the Senkaku Islands, the relevant treaties are too ambiguous to establish a clear claim of ownership for either Japan or China. There are at least half a dozen treaties that concern the possession, cession, and administration of islands in the East China Sea, and which could potentially have implicated sovereignty over the Senkakus. They include the 1895 Treaty of Shimonoseki, following Japan’s victory in the Sino-Japanese war, under which Japan acquired numerous island territories from China; the 1951 San Francisco Treaty, which disgorged certain outlying island territories from Japan and put the remainder under U.S. administration; the 1952 Peace Treaty between China and Japan; and the 1971 Okinawa Agreement which terminated U.S. administration of the Ryukyu islands.

While relevant to the dispute over the Senkaku Islands, these treaties simply do not provide either nation with a superior claim of sovereignty, primarily due to the treaties’ failure to specifically identify the Senkakus as within the ambit of the treaties’ concern. The Senkaku Islands could have, and almost certainly should have, been addressed by some or all of the instruments addressing the Ryukyu islands. But both treaty law and customary international law fail to resolve the Senkaku Island dispute for precisely the same reason: because the Senkaku Islands, qua islands, are worthless. Raising the question of the Senkakus was simply not worth the risk of upsetting or complicating the negotiation processes, when there were much more important matters for each side to spend political capital on.

Customary International Law of Territorial Acquisition Does Not Establish Sovereignty over the Senkaku Islands

Under customary international law, a sovereign establishes possession over previously unclaimed lands through occupation. As Vattel proscribed in The Law of Nations,

the Law of Nations will only recognize the ownership and sovereignty of a Nation over unoccupied lands when the Nation is in actual occupation of them, when it forms a settlement upon them, or makes some actual use of them.

Accordingly, when sovereignty over a land territory is disputed, a state will attempt to justify its claims of ownership by citing to the continuing presence of its citizens within the territory, to its longstanding displays of the authority over the land, and to its exclusion of other states from access to and use of the territory.

And for the most part, this is an effective way of establishing a legal claim over a territory. The concepts of “exclusive use” and “continual possession” are easily applied to the overwhelming majority of land territories; when a sovereign occupies a given land area, there is typically an effective occupation that is apparent through the sovereign’s establishment of colonies in the region, its exercise of authority and law-making powers over the territory, and other quantifiable and demonstrable indicia of ownership over the land itself. Although sovereigns can and sometimes do make claims of territory having been “stolen” or “wrongfully occupied” by another nations, as a practical matter it is unlikely that two states can credibly allege to have had simultaneous occupation of the same territory. Either one country occupied it, or the other did, or else they were engaged in active hostilities over the question.

But this binary analysis is inapplicable in the case of the Senkaku Islands. Although there is a great deal of dispute concerning the historical record surrounding each countries’ indicia of possession over the Senkakus, the clearest conclusion that can be drawn is that, at least prior to 1895, neither Japan nor China had a claim to sovereignty over the islands that was superior to the claims of the other. Before 1895, both countries periodically sailed by the Senkakus, and nationals of both states periodically visited and fished in the waters nearby. As a result, the question of which of the two states had a slightly more frequent transient presence over the course of five centuries is unhelpful and uninteresting.

Inhabited islands do not exhibit this dearth of evidence concerning the existence of sovereign occupation and authority over the territory. As a result, traditional norms of international law concerning territorial acquisition simply break down, when applied to the question of sovereignty over uninhabited islands.

Competing Sovereignty Regimes: Why Uninhabitable Lands Are More Like Water Than Land

The value of land is, primarily, derived from its habitability. People live on land, make their homes on land, and establish nations by reference to the land it occupies. Possession of land is valuable in and of itself, and a fundamental component of the existence of the State.

In contrast, the value of water areas is derived from the resources that the territory can offer — for use as transportation, for the extraction of fish and natural resources, and for maintaining national security.

Consequently, historical patterns of acquisition and conquest over inhabitable land territories looks very different from the patterns of acquisition and conquest over areas of water. As a result, international law has developed two distinct and competing regimes for determining sovereignty over land areas and for determining sovereignty over water areas.

Sovereignty over land is established by customary international law; it is, perhaps, the most fundamental norm under the law of nations. A state’s sovereignty over land territories is typically demonstrated by its exercise of physical authority and control over a region. Sovereignty over water areas is, in contrast, a much more recent invention, and is a treaty-based regime that is set forth in the UNCLOS. Sovereignty over the sea, and of the resources contained therein, is highly legalistic in form, and determined in accordance with equity and pre-determined rules, rather than on displays of occupation. A sovereign’s right to a 12-mile territorial sea and a 200-mile Exclusive Economic Zone (EEZ) exists ab initio and independent from any proclamation or physical display of occupation. Where a state’s land territories meet the sea, the state is automatically granted sovereignty over the 12-mile territorial sea and sovereign rights over the natural resources contained in the 200-mile EEZ.

In short: under modern international law, land is acquired by occupation, and water is acquired by operation of law.

Under UNCLOS, sovereignty over water territories has been granted by operation of law rather than by physical occupation because exclusivity and possession are not a useful concept for establishing sovereignty over the seas. If sovereignty over water was established on the basis of occupation, there would be a great attendant difficulty of sorting through the competing claims of “occupation,” due to the fact the same area of ocean can be “occupied” by numerous states simultaneously.

But for exactly the same reason that exclusivity and possession are not useful for establishing sovereignty over water, exclusivity and possession are inadequate for establishing sovereignty over regions that, while above-water, are nonetheless uninhabitable — such as the deserts of the Western Sahara, the Antarctic icefields, or the Senkaku Islands. The use and possession of water territories, and of uninhabitable land territories, is characterized by transient presences, non-continuous habitation, and non-exclusive use. In the case of an uninhabited island, it is entirely possible for two sovereigns to manifest precisely equal degrees of control and use over a disputed territory. Each state could periodically visit, control, and use an island in equal measure to the other, and each state could legitimately think itself to be the true ‘sovereign’ of those lands. And yet, neither would have a claim to the territory that was superior to the claim of the other.

It is not far off to say that state practice concerning possession of uninhabitable islands has been equivalent to state practice concerning possession of the high seas. This is what has occurred with the Senkaku Islands, and why customary international law is incapable of resolving the dispute. The existence of exclusive use or continual possession of the Senkakus, by either Japan or China, cannot be established from the historical record.

Historically, these islands have been treated in the same way as water territories have been — because, as land, the Senkaku Islands have de minimis value. They have not been treated as a land resource by nations who encountered them. Occupation of Senkaku Islands was accomplished in much the same way as occupation of the surrounding seas was done: through the transient presence of people who used the islands to gather resources which were then transported back to inhabitable land masses.

The Senkaku Islands dispute remains unresolved, and almost unresolvable, due to the two conflicting sovereignty regimes at play. The Senkakus are, as a technical and literal matter, lands, and are treated as such under Article 121 of UNCLOS. Accordingly, both China and Japan claim possession by reference to land-based principles of sovereignty and territorial acquisition.

But as a practical and economic matter, the pattern of territorial acquisition of uninhabitable islands is more closely analogous to the acquisition of water areas than to the acquisition of land territories. For centuries, the Senkakus remained outside the clear sovereign control of any one nation, because no nation had a continual presence or economic interest in the islands. Although the islands now have an economic value, the value came long after state practice concerning the islands had been established. Attempting to retroactively apply land-based sovereignty regimes to the Senkaku Islands can never succeed in establishing clear title to the islands.

Next Post: The Senkaku Islands, Pt. II: The International Law of Artificial, Submerged, and Emerging Islands

-Susan

6 thoughts on “The Senkaku Islands, Pt. I: UNCLOS, the EEZ, and the Conflict Between Land- and Sea-Based Sovereignty Regimes

  1. Give me a break, these countries who have these disputes need to submit them to contest of some kind. Either by wager, lots or games! They can agree on the contest and send their best players! They can even agree to a series of contests. But the matter must be resolved or conflict will necessarily result. Conflict will yield an unfair result and alienation.

    • Well there is always the ICJ — which, to be fair, would pretty much be the equivalent of “wager, lots, or games.”

      But that will never happen, at least with the Senkakus. The country witch actual possession of the territory will rarely agree to adjudication of a territorial dispute, because they have nothing to gain from it. And China would never agree to have the dispute decided by the ICJ, because it knows that politically it would not be capable of complying with an adverse result — better for it not to bring the dispute before a tribunal in the first place.

      • Well Asian cultures are known for their prowess at gambling, so it seems like a solution that could be acceptable because each player who comes to the table has to put something in the pot so to speak. So Japan and China for example would each put up so much cash or other valuables and the one who wins the contest gets the islands and the rights while the other gets the cash and/or valuables. They can all depart friends.

        If they choose a series of contests, however, they could probably bring in billions more in ad revenue and product spin off rights as these contests would be of great global interest. So, in the end everyone should go home happy. Who needs another war? Let the games begin!

  2. Dang! Just lost my long reply! Try again: 3 points of law:
    1) There is quite a lot of customary law on occupation of uninhabited or sparsely inhabited (and even uninhabitable) terroritories. Look at Island of Palmas, Clipperton Islands and Eastern Greeland cases. A court will probably consider “relative” title; which State has the better claim. While in theory a court could declare the place terra nullius (noone has it because noone has actually occupied it) for practical reasons, they never would.
    2) It might not even matter because under article 121(3) of UNCLOS, rocks which cannot sustain human habitation or economic life of their own, don’t get an EEZ or continental shelf. (Now, here’s paradadox: the island might not sustain economic life BUT those nice fish swimming about in the sea could… so if it gets an EEZ it can sustain economic life; but if it doesn’t then it can’t…)
    3) The UNCLOS is one of very few international instruments that includes COMPULSORY dispute settlement (Part XV) so Japan or China could, if they wanted, force it to go to ICJ, ITLOS, arbitration or whatever. They probably won’t. The principle of negotiation is still key so they will keep talking (ranting) for a while yet. The maritime border between Norway and Russia took 40 years to settle by negotiation and neither State wanted to push it to Court (and Norway and Russia have way better relations than Japan and China).

    • Yes, as anyone in politics knows, what is detestable today may very well be popular if not sought after tomorrow. So they wait for some mechanism to appear, where a worthwhile trade off might be gainfully made. Neither side wants to surrender it’s claim, in hopes that it may prove to be a valuable trading point somewhere, somehow, in matter likely far afield from any practical interest.

  3. They did get ASEAN on their side. But all countries must abide by UNCLOS. This is going to get innreestitg. You can’t seriously suggest the Chinese nine point line is anything but ocean grabbing right off other nations coastlines.

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