By Andi Zhou
A cluster of barren islets and rocks, the Senkaku/Diaoyu Islands hardly look like anything worth fighting for. Hundreds of miles separate the uninhabited islands from the nearest shore, and goats account for most of the islands’ warm-blooded population. In recent years, however, the dispute over these islands has come close to sparking war, placing the islands squarely at the center of Asia-Pacific security concerns. Among the many analyses that have attempted to evaluate the validity of each competing claim, few have declared a winner. Unquestionably, the issue is enormously complex and ambiguous, but dispassionate scrutiny of history and relevant legal principles reveals that China has a much more difficult case to make for its claim. Seeing as China seems unlikely to risk fighting a war over the issue, Japan should be able to hold on to the islands for the foreseeable future.
At the heart of this issue is the concept of terra nullius, Latin for “no man’s land.” The generally accepted legal principle states that, in order to gain sovereignty over previously unclaimed territory, a state must exercise “effective” occupation or demonstrate the “intent” to do so. In other words, the first to stake a claim on the land gets it. This is relevant because Japan claims that the islands were terra nullius, rather than Chinese territory, before it annexed them. According to Japan, an enterprising businessman “discovered” the uninhabited islands in 1884 and asked the Japanese government for permission to develop them—the government initially denied his request, fearing that such a move would provoke China—but after conducting a series of surveys, the Japanese government determined that the islands bore no trace of Chinese control. In January 1895, three months before the end of the First Sino-Japanese War, Japan annexed the Senkaku Islands as terra nullius and granted the businessman his long-sought permission to develop them.
China, meanwhile, claims that it owned the islands all along, arguing that Chinese sailors knew about the islands as early as the 13th century and used them as navigational aids to direct them toward the Liuqiu (Ryukyu) kingdom that occupied present-day Okinawa. In 1893, Empress Dowager Cixi awarded two of the islands to a pharmacist as a prize for providing free medicine to the poor, the only indication that China ever considered the islands their own before Japan’s 1895 annexation. The Chinese argue that the islands were not terra nullius at all, but were ceded along with Taiwan in April 1895 under the Treaty of Shimonoseki, and thus, should have been returned to Chinese rule at the end of World War II.
Thus, the dispute hinges two questions: 1) whether the islands were truly terra nullius in 1895 and 2) whether Japan annexed the islands independently or as part of China’s cession of Taiwan. On both counts, Japan ultimately holds the stronger claim. Considering the first question, in order to show that the islands were anything but terra nullius in 1895, China needs to prove that it exercised “effective” occupation over the islands or that it intended to occupy them. It would be difficult to argue that awarding just two of the islands to a pharmacist—who, to the best of our knowledge, never set foot on his prize—justifies China’s claim to sovereignty over the entire area. On the second question, one could argue that the annexation was politically dependent on China surrendering Taiwan, i.e. Japan held off on annexing the islands until it could be sure that China would mount no resistance. Legally, however, there’s no way around it—Japan formally annexed the islands a full three months before it took Taiwan.
This is not to say that Japan’s claim is ironclad. Some note that the Japanese government, when denying the businessman’s request to develop the islands, stated that the “islands lie near the border area with the Qing…and have Chinese names.” Does this mean that Japan recognized China’s sovereignty over the islands prior to 1895? Maybe, maybe not—but the fact remains that Japan’s 1895 annexation was the first attempt to establish sovereign occupation over the islands according to modern standards of international law, an attempt that China never challenged until potential oil fields were discovered in the surrounding sea bed in 1968.
In short, awarding the disputed territory to China would require changing, or at least very loosely interpreting, the standards of determining and acquiring sovereignty as laid out by terra nullius. Whether the terra nullius principle is fair is open to debate, especially considering its less-than-fair origins: British authorities developed the concept in the 19th century to justify the taking of aboriginal lands during the settlement of Australia. If China wishes to challenge Japan’s control over the Senkaku Islands without resorting to war, it will have to challenge established understandings of sovereignty itself—a daunting, perhaps even impossible, enterprise to undertake.