Don't Rush in Dealing with Territorial Issues

Faculty Fellow, RIETI

Japan and China continue to exchange verbal broadsides, responding to each other's claim of territorial sovereignty over the Senkaku Islands. The territorial issue over the Takeshima Islands between Japan and South Korea seems to have calmed somewhat compared with the situation in August, but it is still far from resolved.

Keidanren chairman Hiromasa Yonekura recently said that Japan should acknowledge the existence of a territorial dispute over the Senkaku Islands, while Toru Hashimoto, mayor of Osaka, issued a statement calling for the matter to be resolved at the International Court of Justice (ICJ), according to the law. Taking one step forward from arguments to justify the territorial sovereignty of Japan over the Senkaku Islands and the Takeshima Islands, arguments are emerging on how to deal with the present jostling Japan faces between China and between South Korea. Still, it remains somewhat questionable whether these discussions are based on a full understanding of what it means to acknowledge the existence of a territorial dispute and what is involved in settling one at the ICJ under international law.

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South Korea denies the existence of a territorial dispute over the Takeshima Islands, while Japan dismisses the notion that there is any issue over the Senkaku Islands. The presence of a territorial dispute depends on one party acknowledging some validity in the counterparty's claim to the territory.

Using the example of a claim on property may make this easier to understand. Consider the following two cases: Case 1 in which person B one day walks past a house belonging to person A, and then suddenly comes to the front door and claims that this house is his/hers, and Case 2 in which there is a question as to whether ownership of the property belongs to persons Y or Z, because person X first sold the land to person Y and then also sold it to person Z, without revealing the fact he/she had already sold it to person Y (a double transfer). Although ownership of the property is in question in both cases, the situations are completely different. While person B's claim in Case 1 is without basis, the claims of persons Y and Z in Case 2 both have merit. There is a dispute in Case 2, while there are conflicting claims but no dispute in Case 1.

With respect to the Senkaku Islands, Japan's position is that the territorial issue is like that in Case 1, while China insists that it falls under Case 2. With regard to the Takeshima Islands, by contrast, South Korea claims that the territorial issue is like Case 1, while Japan says that it falls under Case 2. There is no contradiction at all in Japan's position that there is a territorial dispute over the Takeshima Islands and not over the Senkaku Islands.

Acknowledging the existence of a territorial dispute is to acknowledge some validity in the counterparty's claim. If they admit that there is a territorial dispute, both countries are required to initiate discussions to resolve it. This point is vividly illustrated in the way the territorial dispute over the Northern Territories between Japan and the Soviet Union (current Russia) has been developing. The Japan-Soviet Joint Declaration in 1956 stipulated that the Northern Territories would be a matter of continual consultation, but the Soviet Union subsequently began asserting that the territorial issue had already been resolved. That claim was overturned by persistent negotiations by Japan, and the Soviet Union admitted the existence of a territorial issue in the Japan-Soviet Joint Communiqué in 1991. As a result, negotiations over territorial sovereignty of the Northern Territories have begun between Japan and the Soviet Union.

The fact that the Soviet Union acknowledged the territorial dispute is simply admitting that all or part of the Northern Territories could belong to Japan. Should Japan take such a position over the Senkaku Islands? The fact that the views of China and Japan are conflicting, with China refusing to acknowledge that the islands are Japanese territory, is entirely different from saying that a territorial dispute exists.

Also, these disputes are sometimes erroneously called international conflicts. In fact, an international conflict refers to a clash of arms, while a situation that stops short of an armed clash is called a confrontation. Disputes do often end in confrontation or an armed clash, but confrontations or armed clashes can happen with or without disputes. What the Japan-U.S. Security Treaty relates to is not a dispute, but an armed clash. If an armed clash were to occur over the Senkaku Islands, U.S. forces would be required to take an action. However, it is unwise to think that the United States will stand with Japan over the question of territorial sovereignty over the Senkaku Islands.

The U.S. government has said repeatedly that it takes a neutral position on the question. Although conflicts and confrontations are an international concern threatening the peace of the international community, the issue of territorial ownership is in principle a problem between the two countries concerned, just like a domestic dispute over property.

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When considering a judicial solution to a dispute, it is necessary to keep in mind the difference between an international court and a national court. In the event of a domestic dispute, if one party submits the case before a court, the court is ultimately able to settle the case, regardless of the intentions of the other party. On the other hand, to bring the case to an international court for trial, the agreement of both parties is needed. Although countries are expected to settle a dispute peacefully in the international community, they are not required to settle it in an international court such as the ICJ in accordance with international law.

In a domestic dispute, the party who claims ownership is able to settle the dispute by bringing it before the court in both Cases 1 and 2 above. In the international community, however, this is not the case. A judicial solution at an international court is simply one option to settle a dispute peacefully.

With respect to the Takeshima Islands, the Japanese government has offered South Korea a proposal to refer the territorial issue to the ICJ. This only means that Japan has taken a countervailing measure against a series of actions taken by South Korea, by giving a notice that it will seek to solve the issue according to international law. However, South Korea has neither a legal nor a moral obligation to respond to this. The Japanese media reported at one point that South Korea will be accountable if it does not respond, but this is incorrect. An international trial is important, but is just one means to settle a dispute.

The ICJ has handled an increasing number of territorial issues recently (see Table ). However, this does not mean that its view on territorial issues has changed. In what cases is it possible to settle a territorial issue at the ICJ? The first condition is that there is recognition that it is more important to settle a territorial issue than leaving it unsettled, even if all or part of the territory is transferred to the other party. This might include a case, for example, in which there is a widespread belief that it does not matter to which party the territory belongs, and it is not desirable that relations between the two countries deteriorate because of the territorial issue.

Table: Territorial Issues Recently Brought Before the ICJ
Year filed Countries involved in a dispute Details of dispute
2002 Benin and Niger Border dispute (Decided in 2005)
El Salvador and Honduras Demanding a retrial of a judgment in 1992 on a dispute over land, islands, and ocean borders (Decided in 2003)
2003 Malaysia and Singapore Sovereignty over Pedra Branca, etc. (Decided in 2008)
2010 Burkina Faso and Niger Border dispute (Pending)
2011 Cambodia and Thailand Request for an interpretation of the judgment on the Temple of Preah Vihear case (Pending)

Questions about marine and mineral resources are often raised in relation to a territory. However, a fishing agreement and an agreement on the development of the continental shelf have already been concluded between Japan and South Korea, even if there is a territorial issue over the Takeshima Islands. Similarly, despite the existence of the territorial issue concerning the Senkaku Islands, Japan and China have already signed a fishing agreement on fishing activities in the East China Sea. These examples show that questions of natural resources in the surrounding seas can be dealt with without settling a territorial issue.

If the judgment that it is more desirable to settle a territorial issue peacefully in any manner possible holds true, then the next step would be how to do that. While some may support the notion that the territorial issue should ultimately be settled through negotiations, it is possible in some instances to conclude that having a third party provide a conclusion under international law would take less time or be easier--in other words, less costly--when it comes to persuading stakeholders such as the public. If this notion is accepted, the countries involved would choose a judicial procedure for an international trial. However, if one party has a high likelihood of winning the case, the other party will be less motivated to bring it to an international court.

To settle the territorial issues over the Senkaku Islands and the Takeshima Islands at the ICJ, there must be recognition among the all parties that stabilizing relations is more important than the issue of attribution of the islands and that the best way to settle it is through a judicial solution. However, under the present circumstances in which confrontations over the territorial sovereignty over the islands are connected with anti-Japanese sentiment and that territorial sovereignty over the Senkaku Islands are regarded by China as a core national interest, the conditions for resolving the issue at an international court are completely absent.

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As long as the given territorial sovereignty is a major political issue linked to nationalism and provided that force is not being demanded, there is no alternative but to accept that the issue won't be settled until the countries involved and their respective populations have cooled down and relations between the countries have stabilized. There is no alternative but to wait patiently until an atmosphere conducive to resolving the confrontation is developed, by freezing it for the foreseeable future, without demanding a final and immediate resolution. Adopting a national policy to solve international problems peacefully means being wise enough not to insist on an immediate solution.

>> Original text in Japanese

* Translated by RIETI.

October 9, 2012 Nihon Keizai Shimbun

November 19, 2012

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