Competing Claims to the Diaoyu/Senkaku Islands under International Law: A Critical Evaluation

国际法下钓鱼岛主权争端的评估

李玉玲(Ivy Lee)

《中国海洋法学评论》 18期 (2013/12) Pp. 31-72

摘要

Both China and Japan lay claim in the East China Sea to a group of islands and rocky outcroppings called Diaoyu Dao or Diaoyutai in China and Senkaku Islands in Japan. Prior to 2012, the conflict was kept mostly at bay through an informal agreement between the countries to shelve the issue of sovereignty until a later date. However in September 2012, Japan unilaterally nationalized three islands of the island chain, refusing to acknowledge that a dispute and an agreement to shelve the dispute exist. The current controversy is infused with a strong Japan-driven narrative of China having a flimsy claim to the islands under international law. With this narrative taking hold, especially in the West, it is important to assess the relative strength of China's claim against Japan's, regardless of whether the dispute would eventually be submitted to international arbitration. This paper explores the question of which of these countries has the better right to title through analyzing critical points of contention with respect to these countries' sovereignty claims. These are: whether China had possessed a historic title at the time Japan claimed Diaoyu Dao/Senkaku Islands to be terra nullius, whether China ceded the island group in the Maguan/Shimonoseki Treaty in 1895, and which document, i.e., Japan's signed Instrument of Surrender accepting the provisions of the Potsdam Declaration or the San Francisco Peace Treaty, is relevant to the resolution of the dispute. Evidence suggests China to have the stronger claim under precepts of international law and international case law governing territorial disputes. Japan's assertion of having effective control is highly debatable while the imputation of China's motive to its thirst for the potential reserves of hydrocarbon resources could be applied to Japan equally. China, on the other hand, may value the island group more for its strategic location to ensure China's coastal defense and maritime security, in the context of the U.S. Pivot to Asia and Japanese Prime Minister Shinzo Abe's avowed intention to re-write Japan's pacifist constitution.

關鍵字

Diaoyu Dao ； Diaoyutai ； Senkakus ； Competing claims ； Territorial dispute ； Sovereignty