by Zhang Haiwen
On December 3, 2020, USALI Perspectives published an essay by Shinya Murase entitled Why China Should Take Japan to the ICJ. He argued that the onus is on China to go to the International Court of Justice if it believes it has the stronger claim to the Senkaku Islands, which China calls the Diaoyu Dao. The uninhabited islands are located east of mainland China, northeast of Taiwan, and west of Okinawa.
The main point of the essay entitled Why China Should Take Japan to the ICJ is that, as Japan and China have different views on the sovereignty of the Diaoyu Dao and China believes that there is a bilateral dispute, China should take the dispute to the International Court of Justice.
The author’s main arguments can be summarized in three points. First, he insists on Japan's territorial sovereignty over the Diaoyu Dao, and holds that there is no territorial dispute between Japan and China. Second, the author believes that the US government recognizes Japan's sovereignty over the Diaoyu Dao. Third, citing the Whaling in the Antarctic case decided by the ICJ in 2014, the author believes that China should follow Japan's example to submit the Diaoyu Dao dispute to the ICJ.
I would like to comment on those points.
First, how should we determine whether there is a legal dispute, and whether a territorial dispute exists over the Diaoyu Dao between China and Japan? Does China have an obligation to refer the dispute to the ICJ? According to the Mavrommatis and East Timor cases, a dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons or parties.” This definition shows that the existence of the dispute itself is independent of the means of settlement, such as arbitration or judicial settlement.
In practice, the existence of a disagreement on an issue may itself be a legal dispute. For example, China believes that a territorial dispute exists, whereas Japan does not. The ICJ has stated that “a mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence. Nor is it adequate to show that the interest of the two parties to such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other.” If Japan does not believe that the dispute exists, such “active opposition” should not exist, either. So China’s Coast Guard ships’ patrol, in order to safeguard its sovereignty over the Diaoyu Dao, should be unimpeded. But that is not the case at present.
Second, the US has been double-dealing with respect to the Diaoyu Dao dispute. On the one hand, the US uses China's territory of the Diaoyu Dao as a bargaining chip in exchange for political favors from Japan. In 1971, the US was trapped in the Vietnam War and needed Japan to play an important role. In exchange, the US agreed to conclude with Japan the 1971 Agreement between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands. In 2001, the US government and military rashly launched the War in Afghanistan. In order to encourage Japan to take an active part in the military operations in the Middle East, the US once again made a deal with Japan over China's Diaoyu Dao. At a press conference during his visit to Japan in 2004, US President Barack Obama declared that Article 5 of the Security Treaty between the US and Japan would apply to the Diaoyu Dao.
On the other hand, since the 1970s, the US official position on the territorial dispute over the Diaoyu Dao has been “no position” even as it gives its security promise to Japan. For example, under pressure from both the Chinese mainland and the Taiwan authorities, before the 1971 Agreement was signed, the US State Department informed the US “Embassy” in Taipei in August 1970 that “the U.S. Government believes that any dispute concerning the Senkaku Islands and their adjacent continental shelf should be resolved by the disputers.” When China’s Vice President Xi Jinping met with US Secretary of Defense Leon Panetta in Beijing on September 19, 2012, Panetta said the US was concerned about the current situation in the East China Sea, and he listened carefully to China's introduction to the historical factors related to the Diaoyu Dao. He then said that “the United States takes no position in relevant territorial disputes.” (Italics added by this author.)
Finally, regarding the issue of the historical and legal basis of Japan's acquisition of the territory of the Diaoyu Dao, the essay is consistent with the position of the Japanese Foreign Ministry and contains nothing new. The Chinese government and scholars from both China and Japan have made comprehensive and systematic refutations of that position. There is no need to elaborate on that. Japan has indeed referred the Antarctic fishery dispute to the ICJ, but it is essentially different from a territorial dispute. Moreover, there are well-known territorial disputes between Japan, South Korea, and Russia over islands. Neither South Korea nor Russia believe that they have territorial disputes with Japan. But Japan believes there are. According to the logic of the essayist, shouldn’t Japan refer these disputes to the ICJ?
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Zhang Haiwen is vice president of the Chinese Society of International Law and an adjunct professor at Wuhan University, China.
The views expressed in USALI Perspectives essays are those of the authors, and do not represent those of USALI or NYU.
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