ABSTRACT
Debates about sovereignty over the Senkaku/Diaoyu Islands pay insufficient attention to international law. Commentators and media outlets often depict the dispute in primarily historical terms by focusing on the chronology of each state’s effective control (Shaw 2012). In these analyses, there is little attempt to connect history to legal doctrine, as if ancient events somehow possess their own dispositive force. To make matters worse, the few extant legal analyses are generally unsatisfying. Most of them fail to scrutinize important treaty texts, overlook key legal doctrines, emphasize historical facts that are irrelevant, suffer from heavy doses of nationalistic partisanship, and make no attempt to explain how the array of subsidiary legal questions interrelate (Chiu 1996; Heflin 2000; Shaw 2008; Manjiao 2011). The result is a certain level of analytical chaos, and a general sense that the issue is too knotty for principled resolution. But it does not have to be this way. This chapter attempts to bring clarity and order to the sovereignty debate through a close analysis of key texts and legal principles. First, I simplify the debate by identifying a number of commonly raised issues that are immaterial as a matter of law. Next, I organize the debate by identifying and evaluating the legal questions that matter: 1) whether the islands were unoccupied territory when Japan annexed them in 1895, 2) whether Japan ever acquired title under the doctrine of acquisitive prescription, and 3) whether the Allies made a lawful determination in favor of Japanese title after the Second World War in accordance with the Potsdam Declaration and Instrument of Surrender. Finally, I suggest that Japan likely has sovereignty due to the doctrine of acquisitive prescription, which is no more indeterminate than the doctrine of occupation on which China relies, and which trumps China’s possible original occupation as a later-in-time source of title. Prewar acquisitive prescription from 1895 to 1937 confirms that the Cairo and Potsdam Declarations did not transfer sovereignty to China and establishes that the 1951 San Francisco Peace Treaty’s allocation of sovereignty to Japan was lawful. Post-war acquisitive prescription from 1951 to 1970 forms a second, freestanding basis for the Japanese claim. In justifying these conclusions, this chapter offers an answer to the question of who can rightly claim sovereignty.
