Diaoyu or Senkaku? The Volatile Sovereignty Dispute between China and Japan

Much has been discussed in recent media about the deteriorating relations between two economic giants in the Asia-Pacific region, Japan and China, over the sovereignty of a group of uninhabited islands known as the Diaoyu Islands in Chinese and Senkaku Islands in Japanese.  They are composed of five small volcanic islands and three rocky outcroppings, all lying between Taiwan and the island of Okinawa.  The islands have little economic value, home only to certain species of moles and domestic sheep, although there are rich amounts of fish and oil and gas deposits in both the territorial sea and the exclusive economic zone. Despite the complex relationship between China and Taiwan, both governments agree that the islands belong to Taiwan.

Dispute over the islands culminated into diplomatic war on September 7, 2010, when a Japanese Coast Guard Patrol Boat found a Chinese trawler travelling 12 km northwest of the islands, which is claimed by Japan as within its territorial waters.  The ship’s crew and captain were arrested by the patrol boat and detained by Japan to be prosecuted under Japanese domestic law.

The move infuriated Beijing and diplomatic relations between the two countries deteriorated.  It sparked public outrage as anti-Japanese protests were held in various cities across China.  The same occurred in Japan, where thousands of Japanese demonstrators protested in Yokohama as Chinese President Hu Jin Tao arrived in the city to attend an APEC meeting.  Although Japan later released the ship’s crew and captain, the event put another great dent in the history of strained relations between Japan and China.

The dispute over the islands dates back centuries, with both countries claiming for sovereignty over them.  China has claimed that it discovered the islands prior Japan, and had use and ownership of the islands dating back centuries, all of which has been acknowledged by Japan. [1]  China asserts that it has used the islands since 1372 as a navigational aide for Imperial Envoys and for procurement of medicinal herbs.  It argues that Japan did not include the Diaoyu Islands as part of Japanese territory in published maps throughout the 19^th century.  The Tokyo High Court also ruled in 1931 that the islands historically belonged to Taiwan. [2]  Although Japan claimed the islands and Taiwan following its 1894 victory over China in the First Sino-Japanese War, Article IV of the 1952 Sino-Japanese Peace Treaty obliged Japan to return Taiwan and its nearby islands back to China. [3]

Japan’s claim is founded on the basis that it found no sign of Chinese ownership or habitation of the islands in the late 19^th century.  Japan thereafter erected a marker on the island and incorporated it as terra nullius.  Japan asserts that it exercised continuous, unbroken ownership for more than 100 years, through use of the islands for business purposes along with the building of weather stations and surveys of the land by local government.

From the view of international law and precedent case the Island of Palmas, the discovery of supposedly terra nullius land alone does not give legal title.  Acts of concrete occupation must be shown in order to claim sovereignty.  States must also contest the occupation of another state as an exercise of its sovereignty on a timely basis.

In light of public international law, it can hardly be said that the Diaoyu Islands were terra nullius when Japan placed its marker on the islands in 1895.  China has used the islands as a navigational aide and has exploited its resources for centuries before Japan first laid their claim that the land was terra nullius.  If the Chinese exercise of authority over the islands was shown to be broken after 1895, it is largely due to the fact that Japan had annexed it following the First Sino-Japanese War and the subsequent Treaty of Shimanoseki.  It occupied the islands along with the entirety of Taiwan following the War.

There was also an explicit treatment of the islands by the Tokyo High Court in 1931 as territory historically belonging to Taiwan, showing that Japan acknowledges the islands and Taiwan as one territory, and that all of it had therefore been acquired through the Treaty of Shimanoseki.  If China lost both Taiwan and its surrounding islands in 1895 through the Treaty, then it had a new-found right over them after World War II, when Japan had an obligation to return them to China due to the Postdam Declaration of 1945 and the subsequent Sino-Japanese Peace Treaty.  It is also hard to say that Japan exercised exclusive sovereignty over the islands for 100 years from 1895 onwards before China began contesting Japan’s claims over the islands.

[1] William B. Heflin “Diaoyou/Senkaku Islands Dispute: Japan and China, Oceans Apart“, Asian-Pacific Law and Policy Journal (2000), at 4.

[2] Ibid. at 6.

[3] Ibid.

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