This article was translated by Mitsubishi UFJ Research and Consulting (MURC, http://www.murc.jp/english) fromJapanese into English as part of a research project sponsored by the Government of Japan to promote academic
studies on Japan's territories. MURC takes full responsibility for the translation of this article. To obtain permission
to use this article beyond the scope of your personal use and research, please contact MURC by e-mail(info@murc.jp).
Citation: Japan's Territories Series, Japan Digital Library (March 2016),
http://www2.jiia.or.jp/en/digital_library/japan_s_territories.php

Reflections on the Issue of the Senkaku Islands‐from the field of practice on international law and politics‐ *Shingo Yamagami

Introduction
The Senkaku Islands debate has been tempestuous. The September 2010 incident, when aChinese fishing trawler hurl itself at Japan Coast Guard (JCG) patrol vessels in the territorial
waters around the Islands, as well as the September 2012 “nationalization” of Uotsuri,
Kitakojima, and Minamikojima Islands, prompted a variety of argument both at home andabroad. While the situation has now calmed slightly, the almost daily entry of Chinese official
vessels into the contiguous zone, as well as repeated intrusions into the territorial waters, have
kept public tension high and placed the Senkaku Islands firmly in the public spotlight.
Postings particularly in the China Division (Asia and Oceanian Affairs Bureau), the Treaties
Division (International Legal Affairs Bureau, formerly the Treaties Bureau), and the ConsulateGeneral in Hong Kong at the Ministry of Foreign Affairs (MOFA) have led the author into along engagement with this issue at the field of professional practice, the juncture of internationallaw and international politics. In this paper, I offer my candid thought on key points in thecurrent debate arising from my daily experience as a working-level government official. My
purpose is not to detail the historical background or international legal grounds; I will leave thatto the many experts.1 Rather, I hope to provide some food for thought in relation to a debate thathas drawn public attention.
Of course, I have no intention of simply repeating the official view of the Japanese Government.
The views expressed below are entirely my own and do not represent the official view of any
organization to which I belong nor of the Japanese Government.

*This article was originally published as 山上信吾「尖閣諸島についての一考察―国際法・国際政治の実務の現場から―」『法学新報』第 120 巻 9・10 号、2014 年、733-773 頁.

1

1.

China pulled the “trigger”(1) Criticism of “nationalization”
Some domestic and foreign media reports and commentaries have tended to blame the Japanese
Government’s “nationalization” of the above three islands for the recent intensification ofconfrontation between Japan and China over the Senkaku Islands.2 The Chinese side too has
been vehement that it was Japan that pulled the “trigger” that has escalated the confrontation
between them, arguing, for example, that “by taking such unilateral actions as the so-called“island purchase”, the Japanese Government has grossly violated China’s sovereignty. This isalso an outright denial of the outcomes of the victory of the world anti-fascist war and poses a
grave challenge to the postwar international order and the purposes and principles of the Charterof the United Nations.”3 Is this actually the case?
(2) “Nationalization” is nothing new
The Senkaku Islands refers collectively to a group of islands—Uotsuri, Kitakojima,
Minamikojima, Kuba, Taisho, Okinokitaiwa, Okinominamiiwa, and Tobise—located at thewestern end of the Nansei Shoto Islands. The three recently “nationalized” islands are Uotsuri,
Kitakojima and Minamikojima. These three together with Kuba were leased by the central
government to a private Japanese citizen free of charge in 1896, and were subsequently bought
by another private Japanese citizen in 1932. In September 2012, the three islands were acquired
and owned by the Government of Japan.4 In other words, the state owned these islands up until
1932 when the real property rights were transferred to a private citizen, with the 2012 purchase
returning them to government hands. All the other islands apart from these three and Kuba—
namely, Taisho, Okinokitaiwa, Okinominamiiwa, and Tobise—have always been state-owned.5
In other words, “nationalization” in the sense of the Japanese Government acquiring the real
property rights is nothing new, but rather a long-standing practice. This raises a question as towhy China would so fiercely oppose the 2012 “nationalization” while it has made no objectionin the past.
As for the legal nature of the “nationalization”, it has no bearing on the status of the Senkaku
Islands under international law,6 nor are the territorial sovereignty over the Senkaku Islands
determined by this action. Under Japanese domestic law, real property rights to these islands(which were already Japanese territory) have simply been transferred from a private citizen to
the government. If “nationalization” were to have any significance under international law, it
would be if, subsequent to this action, the Japanese Government were to take measuressubstantiating territorial sovereignty, such as building port facilities or permanently stationing2

Japanese citizens there.
Given the facts on the situation as well as its legal nature, it is apparent that the so-called“nationalization” is not something that unilaterally changes the status quo. The argument that“nationalization” is the cause of the recent increased tension is considerably lacking in
objectivity.
(3) China’s attempts to change the status quo(a) China’s Enactment of a Territorial Waters Law
Conversely, we do need to examine a series of measures taken by China with the aim ofchanging the status quo over the Senkaku Islands.7 The first point that should be raised in thatregard is China’s 1992 enactment of the Law on the Territorial Sea and the Contiguous Zone of
the People’s Republic of China (hereinafter referred to as “Territorial Waters Law”), which
regards the Senkaku Islands as Chinese territory and marks out China’s territorial waters
accordingly. This is a manifestation of China’s intent to enshrine in domestic law the view that
the Senkaku Islands are part of Chinese territory.
It is the Chinese authorities that have advanced the notion that Japan and China have agreed to“shelve” the issue of territorial sovereignty over the Senkaku Islands, arguing that“nationalization” by Japan contravenes this agreement.8 The Japanese Government, by contrast,
takes the position that there is no issue of territorial sovereignty to be resolved between Japanand China, and consequently no issue that might require “shelving”.9 (Section 6 looks moreclosely at the “shelving” argument.)
However, if indeed there had been “an agreement between Japan and China to “shelve” theissue”, then why did China dare to take the step in 1992 of establishing a piece of domestic
legislation as highly provocative as the Territorial Waters Law? The year 1992 was a special
one, not only marking the 20th anniversary of the normalization of Japan-China relations, butalso distinguished by a visit to China by the Japanese Emperor in October. Does China’s
unilateral action at that particular timing not run entirely counter to China’s claim of a “shelving
consensus”? The Chinese side has yet to present any convincing explanation in this regard.
(b) Active advances into the waters around the Senkaku Islands
The second example of China’s challenge to the status quo that should be noted is the active
advancement into the waters around the Senkaku Islands by Chinese official vessels. China’s
increasing awareness of maritime interests has been accompanied by the ongoing expansion of
the scope of activity and capacity of Chinese maritime institutions. In December 2008, despite it

3

being just ahead of a summit meeting among Japan, China, and the Republic of Korea,10Chinese Marine Surveillance (CMS) patrol boats intruded for the first time into the territorial
waters around the Senkaku Islands. The scale and frequency of navigation in waters around the
Senkaku Islands by Chinese official vessels has subsequently continued to increase, and in
August 2011, two Fisheries Law Enforcement Command (FLEC) vessels intruded into theterritorial waters, followed by one CMS patrol vessel in March 2012 and four FLEC vessels in
July the same year. Since September 2012, Chinese vessels have constantly entered in thecontiguous zone, and between fall 2012 and the time of writing (the end of August 2013), wellover 50 intrusions into the territorial waters have occurred.
(c) Explosion in military spending
In addition to these movements in the waters around the Senkaku Islands, another matter thatcannot be ignored is the explosion in Chinese military spending. Even just according to publicly
announced figures, China’s military spending has rocketed up 5.2 times over the last decade. In
2007, far before China’s GDP had outstripped Japan’s, China’s military spending was alreadygreater than Japan’s defense spending. By 2012, China’s military spending had reached US$102
billion, approximately 1.7 times as large as US$59.4 billion which Japan spent on defense.11 It
might of course be argued that an increase in military spending is a natural accompaniment toeconomic development, but it is astounding to find a country with only around 10 percent ofJapan’s per capita GDP boosting its military spending quite so rapidly at this stage of its
economic development when there is such a strong need for programs to develop infrastructure
and improve standards of living.
An even bigger issue than the rapid rise in the amount of expenditure is the lack of transparency
in how China’s military capacity is being strengthened. Coupled with the many strenuous
pronouncements12 from Chinese side, it is natural that neighboring countries continue to regard
this as a threat.
(d) Fishing boat collision (ramming) incident
Amidst this succession of moves by the Chinese side to change the status quo, there also took
place the 2010 collision incident involving a Chinese fishing vessel. Audio and visual footage ofa Chinese fishing boat which had intruded into Japan’s territorial waters ignoring warnings from
JCG patrol vessels and repeatedly and persistently ramming these appeared on YouTube andother media, much to the shock and anger of many Japanese and the international community.
The backgrounds to the situation surrounding the Senkaku Islands and the Northern Territories
and Takeshima issues obviously differ, but how have the Russian and Korean authorities dealt

4

with Japanese fishing and patrol vessels entering waters around the Northern Territories oraround Takeshima in Shimane Prefecture?13 Even a simple comparison reveals that the responseby the JCG officials to the excessive and provocative behavior of the Chinese fishing vessel was
truly calm and moderate.
(4) International public opinion
Tracing the respective movements of Japan and China in chronological order, it becomes readily
apparent that Japan’s so-called “nationalization” of the three Islands was a reactive move
prompted by the persistent and steady aggression evinced by China in recent years.
Subsequently, in January 2013, a Chinese naval vessel locked their fire-control radar on a
Maritime Self-Defense Force escort ship. This unprecedented and quite dangerous inciden
further heightened criticism of China’s unilateral actions of provocation. It should be noted thatthese developments did increase understanding and support in the international community forJapan’s position on the Senkaku Islands.
2.

Existence or non-existence of dispute?

(1) Criticism of the Japanese Government
Given the intensifying confrontation between Japan and China in recent years in relation to the
Senkaku Islands, the position of the Japanese government—not to recognize the existence of adispute—has been found peculiar by not only the Chinese Government but also certain
businesspeople,14 international law experts15 and commentators.16 Is this actually the case?
(2) The difference between a diplomatic concern and a legal dispute
Within the international community, governments have different views and positions onparticular events and cases, and it is quite common for these differences to develop into
diplomatic issues. Examples include the comfort women issue between Japan and the Republicof Korea (ROK), and the debate between Japan and the EU on whether the death penalty should
be continued or not. However, the existence of a diplomatic concern is not equal to the existenceof a legal dispute. The fact that there are differences in views and positions does not
automatically mean that there are legal disputes.17
University of Tokyo professor Akira Kotera explains this quite clearly by comparing it to theissue of land ownership.18 Taking a case where B happens to be passing A’s house one day
when B suddenly marches up to that house and claims it as his own, Professor Kotera argues
that B’s assertion is a “completely unfounded charge” and that between A and B “there might be5

a difference in opinion, but there is no dispute.”19
Certainly, as noted in Section 5.(2) below, the Senkaku Islands became Japanese territory
through the act of occupation, recognized under international law as a means of acquiring
territorial title. Furthermore, even after the Japanese Government incorporated the Islands into
Japanese territory in 1895, the fact is that China did not even protest for many years thereafter.
It was only after more than 70 years of silence, when the results of a survey undertaken by aUnited Nations institution in the fall of 1968 indicated that there could be oil reserves in the
East China Sea, that China suddenly directed its attention to the Senkaku Islands and, in andafter the 1970s, began to assert its unique claim.20 Under international law, the fact that China
did not protest Japan’s manifest valid control over the Islands clearly connotes China’s
acquiescence of Japanese sovereignty.
Given the above background and facts, it is apparent that China’s argument is “entirely
irrational,”21 and that the argument that “a legal dispute exists in relation to territorial
sovereignty over the Senkaku Islands” is not grounded in the actual background and objective
facts.22 The Chinese side would desperately like to make Japan recognize the existence of alegal dispute.23(3) Meaning of recognizing the existence of a territorial dispute
As a completely hypothetical question, if Japan did recognize that “a legal dispute existed inrelation to the territorial sovereignty to the Senkaku Islands”—in other words, that “a territorial
dispute existed between Japan and China over the Senkaku Islands”—would the situation
improve?
Generally, recognition of “the existence of a territorial dispute” implies recognition that “there
is a dispute under international law as to whom the land belongs”. Put another way, it means
recognizing that it has not been established that the territory belongs to your country, and that asa result of negotiations between the parties, or the judgment of a third party, your country could
lose all or part of its territorial sovereignty.24 Given the Japanese Government’s position that“[t]here is no doubt that the Senkaku Islands are clearly an inherent part of the territory of Japan,
in light of historical facts and based upon international law,”25 recognizing the existence of “aterritorial dispute” in relation to the Senkaku Islands would clearly validate the position of theChinese side and damage Japan’s legal position.
Even if Japan were to recognize the existence of a territorial dispute, due to circumstances on
the Chinese side that will be explored below, China seems unlikely to seek a judicial settlement
in an international court. Rather, once Japan had recognized the existence of an issue, instead of6

a judicial settlement to the territorial dispute in an international court, China would probably
pursue bilateral negotiations with Japan for “joint development” and “joint management”, andJapan would be dragged onto the “negotiating table”. Further, if Japan were to refuse to engage
in such “negotiations”, this too could be framed as Japan failing to deal in good faith with anissue that should be resolved through dialogue and used to criticize Japan in the international
community.
Looking at China’s behavior to date in relation to territorial and maritime issues, if the otherparty makes the slightest concession, China tends to seize upon it and mount a relentlessaggression.26 The most probable outcomes, therefore, would be the perpetuation of the issue,“the shelving” of the issue as sought by China, or the beginning of a chain of concessions by theJapanese side to the Chinese side. Japan, on the other hand, would only be conceding aconsistently maintained position with no guarantee that China would cease all unilateral actions
such as the intrusion into the territorial waters by official vessels. There would be no gain forJapan. Japan accordingly cannot be too cautious about easily yielding even an inch in relation toeither its territory or its sovereignty.27(4) The examples of the Northern Territories and Takeshima
In light of experience of various territorial issues in the international community, it is pointed
out that “a clear tendency can be seen for the party exercising effective control over the disputed
territory to deny the existence of a dispute”.28
The Northern Territories are a typical example. Paragraph 9 of the Joint Declaration of Japanand the USSR, concluded in 1956, explicitly stipulates that (a) continued negotiations for theconclusion of a peace treaty and (b) handover of the Habomai Islands and the island of Shikotan
after the conclusion of that peace treaty. Nontheless, the Soviet Government reacted to the 1960
revision of the Treaty of Mutual Cooperation and Security between Japan and the United Statesby unilaterally altering the content of Paragraph 929 and, up until the early 1990s, basicallymaintained the position that “no territorial dispute existed”. While there were exception of theverbal acknowledgement of the existence of the territorial issue by USSR General Secretary
Leonid Brezhnev during his 1972 summit meeting with Prime Minister Kakuei Tanaka,30
explicit written recognition had to be waited until the 1991 Japan-Soviet Joint Communiqué.31
The 1993 Tokyo Declaration32 again listed the names of the four islands comprising theNorthern Territories to which the 1991 Communiqué referred, and also succeeded in clearly
defining the territorial issue as being an issue of the attribution of those islands. In other words,
this was significant in not only acknowledging the existence of a territorial dispute but also
explicitly stating that what should be resolved in the territorial negotiations was the attribution

7

not of Habomai and Shikotan but of all four islands, including Etorofu and Kunashiri. Behind
this result, it is recalled that the enormous and sustained efforts by successive Prime Ministers,
Foreign Ministers, and Ministry of Foreign Affairs officials to make even the slightest progress
toward resolving the Northern Territories issue.33
To touch but briefly on the example of Takeshima, when relationship between Japan and the
ROK were normalized in 1965, the two countries concluded an Exchange of Notes concerning
Dispute Resolution, but despite it being apparent from the language in the document and thecourse of the negotiations that Takeshima-related issues are included in the “disputes” to which
the document refers, the ROK takes the position that the Takeshima issue is not included.34(5) “Common sense” of the international community
There has been some criticism that the Japanese Government’s position of not recognizing theexistence of a territorial dispute over the Senkaku Islands “lacks any support or understanding in
the international community.”35 With my experience of having engaged in numerous informal
exchanges of views with legal experts and diplomats from major countries in the diplomaticworld, this is a somewhat one-sided and appalling assessment.
Certainly, international jurisprudence has established the idea of a dispute as “disagreement on apoint of law or fact, a conflict of legal views or of interests between two persons,”36 andseemingly it might well give the impression that a legal dispute exists between Japan and China.
However, as described in Section 2.(2), the response of most people once they have correctly
understood the “completely irrational nature” of China’s position on the Senkaku Islands is thatJapan’s position is absolutely plausible. If anything, there seems to be certain political motive
and position behind the persistent quest for recognition of the existence of a dispute.
Of course, international judicial proceedings have the merit of preventing the deterioration ofpolitical relations between the parties by entrusting disputes to a third party. From thatperspective, thus, it is not impossible to understand in general the view that recognizing theexistence of a dispute and referring it to courts might be better for bilateral relations. However,as described earlier, considering the current situation between Japan and China, Japan has
nothing to gain by recognizing the existence of a dispute.
The subjective view of a claimant that a legal dispute exists is not sufficient to recognize theexistence of said dispute. Even looking at the jurisprudence in the past more broadly than just in
relation to territorial issues, it is far from unusual for a party state to contest the existence of alegal dispute as a preliminary objection.37 As the possibility cannot be ruled out of aninternational judicial proceedings taking place in relation to the Senkaku Islands in the future,8

recognizing the existence of a legal dispute would unmistakably represent a backward step forJapan. If China wants to force Japan to recognize the existence of a legal dispute, China itself
needs to seek a fair and objective judicial decision.
(6) China’s behavior
What about China?
For example, China has conflicts with countries concerned over territorial sovereignty over theislands in the South China Sea. Nonetheless, whereas China regards disputes as existing overterritorial sovereignty in relation to those islands in the Spratly Islands controlled by countries
and regions other than China,38 it takes the position that there is no dispute over territorial
sovereignty regarding the Paracel Islands over which it already has de facto control.39 In
addition, China is trying to make Vietnam, the Philippines, and other ASEAN member stateswith de facto control over those parts of the Spratly Islands lying within the so-called nine-dashline recognize the existence of disputes, which China argues should be settled throughnegotiations among the relevant parties.40
Given what we have seen above of the examples of the Northern Territories and Takeshima, thecommon sense of the international community, and China’s behavior, Japan’s position of notrecognizing the existence of a territorial dispute over the Senkaku Islands could surely bereadily accepted.
3.

Possibility of a judicial settlement(1) Routes to an international judicial proceedings
Concerned at the intensification of the confrontation between Japan and China over the Senkaku
Islands issue, some commentators have suggested that a judicial settlement should be sought in
the International Court of Justice (ICJ). This is understandable from the position of advancing
the rule of law in the international community. However, as is widely known, unlike domestic
courts and tribunals, reference of a matter to international courts and tribunals requires theconsent of both parties.
When it comes to specific methods how to institute a proceeding before the Court, there are four
possible routes: (a) by both parties entering into a special agreement to submit the dispute; (b)under a dispute settlement clause in a treaty to which both are party; (c) by means of a unilateralapplication in cases whereby both parties accept compulsory jurisdiction of the court; or (d) bymeans of accepting jurisdiction of the court subsequently in response to a unilateral application(forum prorogatum).

9

As a matter of interest, since the ICJ was established, a total of 15 Judgments have beendelivered on cases contesting territorial delimitation or territorial rights over islands, etc. Given
that in ten of these cases, submission of the dispute to the Court was made on the basis of thespecial agreement mentioned in (a) above, this is obviously the most common route. If theparties can agree beforehand to refer the matter to a third party, it would also be easier toimplement the Judgment. There have been no cases employing method (d) in these cases.
(2) Examining the four routes
Japan and China have concluded no treaty that has a clause requiring issues such as these to bereferred to the ICJ, so the possibility of (b) is ruled out from the start.
In the case of the compulsory jurisdiction noted in (c), while Japan has accepted the compulsory
jurisdiction of the ICJ, China regrettably has not accepted it, and the possibility that it will do soin the future also remains very low. China is one of those countries which have the mostnegative stand to accept the jurisdiction of international courts, including not only the ICJ but
also the International Criminal Court (ICC). In the case of compulsory jurisdiction of the ICJ,
accepting such jurisdiction means accepting and abiding the rule of law in principle in relation
to all disputes rather than resolving them by force. International judicial proceedings only workwhen both parties are ready to bring their dispute to courts or tribunals. However, it is a harshfact that when it comes to the rule of law, not all members of the international community are as
exemplary as Japan.
With regard to the Senkaku Islands, taking into account that Japan has maintained the position
that there is no dispute in relation to territorial sovereignty over the Senkaku Islands, reference
to the ICJ by virtue of the special agreement noted in (a) would equate to recognizing theexistence of a dispute to be resolved. The strong feeling that Japan should be very careful inweighing the advantages and disadvantages of handing China this kind of “bonus” as a result of
seeking too ardently a judicial settlement is therefore quite natural.
It is highly unlikely in any case that China would consent to a reference in this form. When, forexample, the Philippine Government initiated arbitration proceedings in relation to the status of
the so-called nine-dash line in the South China Sea pursuant to the dispute settlement
proceedings laid down in the United Nations Convention on the Law of the Sea, China reacted
strongly, declaring that “[t]he Chinese side strongly holds the disputes on the South China Sea
should be settled by parties concerned through negotiations. This is also the consensus reachedby parties concerned in the DOC (The Declaration on the Conduct of Parties in the South China
Sea).”41 Moreover, because China did not even appoint an arbitrator as it was required, thePresident of the International Tribunal for the Law of the Sea made the appointment in China’s

10

stead.42 Given this record, it would seem unrealistic to expect China to accept judicial settlementby the ICJ.43(3) “Japan should submit the dispute to the ICJ”
The next suggestion is that, given that there is the (d) option, Japan should avail itself of this andbring a case on the assumption that it would not do any harm. In other words, if China chooses
to refuse to participate, fine—it will simply be an opportunity for Japan to impress upon theinternational community the difference between Japan’s attitude to respect the rule of law andChina’s intransigence.
Proponents of this view argue that Japan can make a major contribution to the supremacy ofinternational law by making clear to the world its willingness to leave the issues of the Senkaku
Islands, the Northern Territories, and Takeshima to the judgment of the ICJ. They suggest thatin particular, accepting an institution of a case in relation to the Senkaku Islands over which
Japan exerts effective control would place huge pressure on Korea and Russia to do so.44
It seems that on the back ground of this view, given that Japan has proposed referring of theTakeshima issue to the ICJ with Korea, Japan should also lead the way to brings it before the
ICJ regarding the Senkaku Islands, or Japan should actively announce its willingness to respondto a case if China brings it before the ICJ, in order to maintain the consistency of its position.
(4) Current status of the rule of law in the international community
How useful and persuasive is the above view given how matters currently stand in theinternational community?
In fact, as of July 2013, only 69 countries including Japan have accepted compulsory
jurisdiction of the ICJ, and only the United Kingdom has accepted it among permanent
members of the United Nations Security Council. As noted earlier, China does not accept it aswell as Russia or Korea.
What, then, would Japan have to gain from declaring that it would yield to an ICJ ruling? Of
course, it would serve to advertise Japan’s eagerness to advancing the rule of law in theinternational community, and Japan might derive some sense of satisfaction from being a model
student of the international community in terms of respecting the rule of law, and standing on
the moral high ground. However, how effective is such a move likely to be in achieving theimminent priority goal of a state—namely, securing its territory? That is what we need to beasking.
In the case of the Senkaku Islands, in all likelihood Japan would be regarded as having

11

acknowledged the existence of a territorial dispute that it has consistently denied, handing China
just the “bonus” the latter has been hoping for. In the case of the Northern Territories andTakeshima, neither Russia nor Korea is likely to budge an inch. In both cases, would either
country feel “huge pressure” from toothless oral offers and leave the solution of the issue to aninternational judicial proceedings that may invite a result in which they have to acknowledge
Japan’s territorial sovereignty? The history of negotiations over these two issues clearly reveals
just how overoptimistic that scenario is.
(5) Consistency of position
Certainly, Japan has proposed three times to the ROK—in 1954, 1962, and 2012—that the twocountries enter a special agreement to refer the Takeshima issue to the ICJ (which the ROK has
consistently rejected). Some commentators take the position that, given Japan’s call for peacefuldispute settlement and advancing the rule of law in the international community, Japan should
also take the lead in bringing a case to the ICJ in relation to the Senkaku Islands as well. In 1972
Japan also proposed the former Soviet Union to refer the Northern Territories issue to the ICJ,
but this was flatly turned down by the USSR.45
The argument in Section 3.(3) might seem consistent and also appealing in that it uses the ICJ
for dispute settlement. However, there is a major problem in the argument that it does not
sufficiently take into account the differences in backgrounds and Japan’s situation in relation to
the respective three cases, and it fails to recognize clearly the limits of international judicial
procedures, as will be explored below. From the perspective of protecting Japan’s territory andsecuring our national interest, there are many points which should be handled carefully.
What are the differences in Japan’s situation in each case? Specifically, both Takeshima and theNorthern Territories have been occupied by the other country without legitimate grounds,
whereas Japan, which holds legitimate title in light of both historical facts and based uponinternational law, has sought negotiations or reference to the ICJ as a way of settling thesedisputes through peaceful means. With the Senkaku Islands, not only is Japan certain that its
title is completely validated in light of both historical facts and based upon international law,
but the reality is that the Islands are under the valid control of Japan. Moreover, the objective
fact is that while the Chinese Government now considers the Senkaku Islands to be “sacred
territory,”46 as noted above, it remained silent for more than 70 years,47 and did not even protest
the US using Kuba and Taisho Islands as firing/bombing ranges for training US forces stationed
in Japan after the Great East Asia War. In other words, from the Japanese side, the situation isabove and beyond contesting whether or not a legal dispute exists.
In short, whether or not there is a legal dispute that should be brought before the ICJ for12resolution could be described as a criterion of consistency. Japan’s response certainly presents
no problem in terms of consistency. The dogmatic wholesale approach of taking everything to
the ICJ is even harmful in the sense that it does not take into account differences in individual
cases or the limitations of international trials.48 Japan should hold firmly to its position andexplore the best way to realize the national interest. Rather than adhering bureaucratically to a
one-sided “consistency”, we should perhaps take a more thick-skinned approach.
(6) Onus on China
If anyone is to take a case to the ICJ in relation to the Senkaku Islands, it should be China. Japan
has exercised valid control over the Senkaku Islands ever since incorporating them in 1895. The
fact is also that from the Meiji period (1868–1912) through Taisho (1912–26) and up to the
prewar Showa period (1926–45), a private Japanese citizen with permission from the Japanese
Government sent people to live on the Islands and openly engaged in business operations suchas collecting bird feathers and manufacturing dried bonito.49 With Japan still controlling theIslands today, there is considerable persuasiveness to the argument that if China as the party
seeking to challenge and change that status quo wants to find a peaceful solution to theconfrontation, it should take the initiative in referring to the ICJ.50 If China wants to force
acknowledgement of the existence of a legal dispute, the burden of proof lies with China, andusing the ICJ would surely be an excellent means to that end.
4.

Points to note with international judicial proceedings(1) Utility and limitations of international judicial proceedings
As someone who has studied international law as well as engaging in the implementation
thereof, I am well aware of the utility and importance of international judicial proceedings. They
are particularly effective in dealing with political issues such as territorial issues where bothparties to the dispute have strong obsessiveness and are easily aggravated. At the same time, we
also need to bear in mind their limitations and risks.
In short, in no international judicial proceeding is there ever a 100 percent guarantee of total
victory, even if one party has a strong position in light of both historical facts and based uponinternational law—as they say, “it’s never over until it’s over.” Accordingly, even if aninternational judicial proceedings in relation to the Senkaku Islands were to become a realistic
possibility in the near future, Japan would need to carefully consider the balance of potential
costs and benefits—continuing to exercise valid control on the one hand and, on the other,according to the suit, possibly failing to win an outright victory and sustaining some loss. Thereis much truth in the observation that “while international judicial proceedings are valuable in13

resolving disputes, they are only one means of resolution.”51(2) Enforceability of the ruling
It should also be noted that even if an international judicial proceedings does deliver a judgment,
while this might be legally binding, there have been cases where the compliance of the parties tothe ruling has not been easily achieved.
One example of a territory-related judgment is the border delimitation dispute between
Cameroon and Nigeria on which the ICJ delivered a judgment in October 2002. The court
recognized Cameroon’s territorial sovereignty over the disputed regions—the Bakassi Peninsula
and another area—and delineated the boundary accordingly, instructing Nigeria to withdraw its
administration and military and police forces immediately and unconditionally. However,
because Nigeria did not comply with that judgment, the United Nations interceded to establish
the Cameroon-Nigeria Mixed Commission and consultations took place on ways of peacefully
implementing the judgment. Even then, however, no progress continued to be seen, with Nigeria
unilaterally postponing its withdrawal. The withdrawal was ultimately completed in 2008, but
the Mixed Commission is still at work.
Regarding the case between Cambodia and Thailand concerning the Temple of Preah Vihear,
which the ICJ judged in 1962, Cambodia filed a suit for interpretation of the judgment in 2011,
and also requested measures such as the withdrawal of Thai troops from Cambodian territory.
At the time of writing this article in August 2013, the case is still ongoing.
When the ICJ delivered its judgment in November 2012 on the territory and border delimitationcase between Nicaragua and Colombia, Colombian President Juan Manuel Santos dissented
from the judgment, describing it as a serious error which Colombia could not accept. Colombia
also announced her secession from the Organization of American States’ Pact of Bogotá, which
obliges members to accept ICJ compulsory jurisdiction.
All of the cases above were referred to the ICJ without special agreement among the parties to
accept a judgment of the ICJ. What these cases indicate is the difficulty of peacefully realizing
the law in the absence of cooperation from the losing side.52
In addition, Article 94 of the Charter of the United Nations requires member states to comply
with the decision of the ICJ, and if any party to a case fails to perform its obligations incumbent
upon it under the judgment, the other party may have recourse to the Security Council. However,it should be noted that if, as in the case of the Senkaku Islands, one of the parties is a permanent
member of the UN Security Council, the measures which the Security Council can take will bemuch diminished, because of the power of veto.

14

(3) Interim measures (Provisional measures)
In the event that an international judicial proceedings were to take place, in addition to the
judgment on the merit, it would be needed to be careful of interim (provisional) measures,
which the court can order the parties to take measures to ensure that the rights of the parties are
not irreparably harmed during the judicial proceedings.53
In 1999, Australia, along with New Zealand, filed for arbitration pursuant to the UN Convention
on the Law of the Sea on the grounds that Japan’s southern bluefin tuna fishing program wasendangering the existence of the resources, and also requested that the International Tribunal for
the Law of the Sea institute provisional measures such as a fishing ban. While the arbitration
tribunal upheld Japan’s preliminary objection that the Tribunal had no jurisdiction, theInternational Tribunal had already recognized the necessity of provisional measures andstipulated them, including banning experimental fishing beyond the total allowable catch foreach country.54
What would happen if this precedent were applied to the Senkaku Islands issue?
Japan could potentially request that Chinese government vessels be banned from entering
Japanese territorial waters until a judgment was delivered on the territorial sovereignty in orderto protect the respective rights of the parties, and to prevent the aggravation of the issue.
Another possibility that cannot be ruled out is that measures banning all traffic in the waters
around the Senkaku Islands not just by Chinese official vessels but also by Japanese official
vessels might be sought. In the past, interim measures have been sought by the plaintiff, but
nowhere in the statute and rules of the ICJ appear to rule out a request for interim measuresfrom the defendant.55
While interim measures look like just a litigation technique and thus attract little notice from thegeneral public, according to the content, they could in fact impact heavily on Japan. If Japan
were to decide to move forward with judicial proceedings, it would need to look carefully at therelative pros and cons in this regard.
(4) Rule of law
The rule of law is of course one of the basic values, and Japan has attached importance topeaceful dispute settlement, including the utilization of international judicial proceedings. I also
appreciate the utility of the ICJ in general. Japan has indeed proposed to the ROK that we seekan ICJ solution to the Takeshima issue, despite Korea not even engaging in negotiations nor
recognizing the existence of a legal dispute. However, in the case of the Senkaku Islands, as has
been repeatedly indicated, given that China’s claim is completely unreasonable and that the15

Chinese side is not looking for a fair and objective judicial solution, the situation is not one
which will bring the utility of an international judicial proceedings into play. Accordingly, there
is no need for Japan to take the lead in seeking a judicial solution.
5.

Is the Senkaku a “history issue”?

(1) Playing the history card
The Chinese Government claims that the Senkaku Islands were stolen by Japan and should
therefore be returned pursuant to the Cairo Declaration.56 This is playing of the “history card.”57
However, as a result of carefully confirming that no other country, including Qing Dynasty, had
extended its control over the Senkaku Islands even before the Sino-Japanese War, Japan
incorporated the Islands on January 14, 1895 ahead of the signing of the Treaty of Shimonoseki
on April 17 that year. In the first place, with regard to Taiwan and all islands appertaining or
belonging to Taiwan which were ceded from Qing Dynasty to Japan under the Treaty of
Shimonoseki, the Treaty does not clearly describe the specific areas of these. There is also noground from the course of the negotiations for interpreting that the Senkaku Islands are includedin Taiwan and the appertaining islands referred to in paragraph 2 of Article 2 of the Treaty.
Accordingly, a clear distinction should be drawn between the cession of territory under the
postwar peace treaty and the acquisition of territory through occupation of terra nullius. What isproblematic on China’s claim is that it confuses these.58(2) Territorial incorporation by Japan (occupation)
Since 1885, the Japanese Government conducted careful investigations through the agencies of
Okinawa Prefecture and other means, and confirmed that the Senkaku Islands were not only
uninhabited but also showed no trace of having been under the control of the Qing Dynasty (thecondition of terra nullius) before making a Cabinet decision on January 14, 1895 to install
National Ground Markers on the Islands (the condition of a state’s intention to acquire territory)
and officially incorporating them into Japanese territory.59 Moreover, following that Cabinet
decision, Japan continued to openly exercise its sovereignty over the Senkaku Islands, including
the issuance of permits to private citizens for land tenancy and the surveys implemented by the
Okinawa Prefecture (the condition of effective occupation). As outlined above, Japan acquired
territorial sovereignty over the Senkaku Islands through the act of “occupation”, which isrecognized under international law, and in a form which satisfies the above conditions required
under international law.
Some pundits apparently take issue with the fact that the above mentioned Cabinet decision was

16

kept confidential and not publicly announced. However, it is commonly accepted that the prioroccupation formula does not require public announcement or notification to neighboring
countries, in that if another country were exercising effective control over that land, it would
obviously protest the occupation.60 In fact, if China had been exercising effective control over
the Senkaku Islands back in 1895, it would presumably have immediately protested at Japan
incorporating the Islands and openly exercising sovereignty over them. However, no suchobjection was raised at all.
If, as the Chinese side claims, the Senkaku Islands really were part of Taiwan ceded as a resultof the Sino-Japanese War, there would obviously have been some reference made to the
Senkaku Islands in the course of the Treaty of Shimonoseki negotiations. However, no suchrecord is to be found. The reasonable conclusion is that Japan and the Qing Dynasty shared therecognition that the Senkaku Islands were not included in those islands appertaining to Taiwan
which were ceded to Japan in the Treaty of Shimonoseki.61(3) San Francisco Peace Treaty
Above all, what legally defined Japan’s territory following World War II was not the Cairo
Declaration, in which the Allied Powers laid out their policy on the postwar process, but rather
the San Francisco Peace Treaty as a post-WWII peace treaty which included Japan among theparties to its conclusion. Under Article 3 of the latter, the United States was to exercise
administrative power to the Senkaku Islands as part of the Nansei Shoto Islands. China was nota party to the San Francisco Peace Treaty, but Taiwan confirmed the Treaty under the 1952
Treaty of Peace between Japan and the Republic of China. (At the time of conclusion of the San
Francisco Peace Treaty, Japan recognized the Republic of China (Taiwan) as the government
legitimately representing China). In particular, neither Taiwan nor the People’s Republic ofChina raised any objection whatsoever at the time to the disposition of the Senkaku Islands in
the San Francisco Peace Treaty.
(4) Inappropriate change of the subject
In conclusion, one could not help but feel that the claim that Japan’s incorporation of the
Senkaku Islands is “stealing” resulting from a “war of aggression” is intended to inappropriatelychange the subject in order to supplement the weakness of China’s historical and international
legal position and recover the ground.

17

6.

Existence or non-existence of an agreement to shelve the issue(1) Non-existence of agreement
As noted in Section 1.(3), China has taken every opportunity to assert that Japan and China havesupposedly agreed to “shelve” the issue. However, there is no evidence that Japan recognized
the existence of an dispute to be resolved in relation to territorial sovereignty over the Senkaku
Islands, or that agreement was reached on “shelving”, either at the time of the negotiations overthe 1972 Japan-China Joint Communiqué, or when the 1978 Treaty of Peace and Friendshipbetween Japan and the People’s Republic of China was being negotiated. Let us look at therecords.
(2) Exchange between Prime Minister Tanaka and Premier Zhou Enlai
Examining diplomatic records62 of the exchange between Prime Minister Kakuei Tanaka andPremier Zhou Enlai on September 27, 1972, the only reference comes when Prime Minister
Tanaka asks Premier Zhou for his thoughts on the Senkaku Islands, whereupon Premier Zhou
replies: “I don’t want to talk about the Senkaku Islands issue this time. It’s not good to discuss
this now. It became an issue because of the oil out there. If there wasn’t oil, neither Taiwan nor
the United States would make this an issue.”63(3) Exchange between Prime Minister Fukuda and Vice-Premier Deng Xiaoping
In the exchange between Prime Minister Takeo Fukuda and Vice-Premier Deng Xiaoping on
October 25, 1978 as well, Vice-Premier Deng observes that, “At this time, there’s no need toraise subjects like this [indicating the Senkaku Islands] at a meeting like this. … [T]here’s
probably insufficient wisdom to resolve the issue in our generation, but with the next generation
likely to be savvier than us, they will probably be able to find some resolution to the issue. It isessential to look at this issue with a broad perspective.” Prime Minister Fukuda is recorded as
making no response.64(4) Press conference by Vice-Premier Deng Xiaoping
Further, at a press conference following the above meeting, Vice-Premier Deng Xiaoping states
that, “…I think it is better to avoid the issue when our countries have negotiations. Even if thismeans the issue is temporarily shelved, I don’t think I mind. I don’t mind if it’s shelved for ten
years. The people of our generation don’t have sufficient wisdom to settle this discussion, but
the people of the next generation will probably be wiser than us. At that time, a solution thateveryone can agree on will probably be found.”18

(5) Actual status of the so-called “shelving”
What emerges from these records is, firstly, how keen China was to “shelve” the issue.
Secondly, from a bilateral exchange perspective, China unilaterally expressed its own positionand view, but Japan simply “listened” China out without either agreeing or disagreeing. From a
diplomatic perspective, it is plainly impossible to argue on this basis that agreement wasreached.65 Why Japan chose to just “listen” China out was doubtless a decision made by those
involved at the time, but I would surmise that, while China was suddenly beginning to saysomething that it hadn’t for the last 70 years, given the fact that it was universally apparent thatJapan was exercising valid control, it was probably not judged as appropriate to cause a fuss.
In any case, it is entirely impossible to interpret what was said as comprising agreement to“shelve” the issue in the sense of both Japan and China recognizing that there was a dispute
over the territorial sovereignty over the Senkaku Islands and postponing the resolution thereof
to a future date. With the normalization of Japan-China relations being the imperative at thetime, it may well have been no more than an attempt to keep the focus away from this in orderto prevent the difference in the two countries’ respective positions on the Senkaku Islands fromjeopardizing that normalization. This seems to be the natural and indeed reasonableinterpretation of what transpired.
7.

Understanding and cooperation of the international community(1) Opposition to a unilateral change in the status quo by force
As we have seen above, opposed views in relation to territory should basically be peacefully
resolved among the parties concerned. However, when we objectively analyze the way in which
the Senkaku Islands situation has developed and also take into consideration the disputes which
China has with Vietnam, the Philippines, and other countries in the South China Sea, it becomes
clear that the Senkaku Islands are not simply a bilateral concern between Japan and China. With
emerging China actively expanding its maritime presence, eyes will be on the extent to which
China is prepared to observe international rules and find peaceful solutions rather than coercing
other countries.66(2) The US position
In this context, the US Government has clearly and repeatedly stated at the level of former
Secretary of State Hillary Clinton, current Secretary of State John Kerry, and current Secretaryof Defense Chuck Hagel that the Senkaku Islands are under Japan’s administration, and that,
accordingly, Article 5 of the US-Japan Security Treaty applies to the Islands ([Note by author at19

the time of translation] Such assurance was later given by President Obama). Under Article 5, inthe case of an armed attack against either Japan or the US in the territories under theadministration of Japan, both Japan and the US are obliged to act to meet the common danger.67
To the extent that Japan exercises valid control over the Senkaku Islands, these indisputably fallwithin those ‘territories under the administration of Japan’ and Article 5 therefore obviously
applies. These statements by the US Government therefore make entire sense.68
In addition, the US Government has recently gone even further and stated explicitly that the
Senkaku Islands are under Japan’s administration and she opposes any unilateral action thatwould aim to change the status quo.69 Given the blatant efforts to change the status quo by force
and threats noted in Section 1.(3), this represents a US warning against such behavior, making
clear that the US Government will not stand idly by in the face of actions that damage regional
peace and safety. It was a timely and appropriate comment.
On the other hand, while it is understood that the US in general chooses to take no position onother countries’ territorial sovereignty, there are many Japanese who find it incongruous thatwhile the US clearly supports Japan’s position in relation to issues of territorial sovereignty over
the Northern Territories,70 in the case of the Senkaku Islands, the US simply reiterates its
general position.71 Even an analyst who insists that adherence to the argument that the Northern
Territories and Takeshima are an “inherent part of Japanese territory” is “just a face issue for the
Ministry of Foreign Affairs” is harshly critical of “the “neutral position” adopted by the US on
the attribution of the Senkaku Islands, claiming that it “insults” Japan and provides China with“maximum grounds” for developing its absolutely unwarranted claim.”72
Under Article 3 of the San Francisco Peace Treaty, that the US itself took the initiative to write,
the Senkaku Islands were placed under US administration as part of the “Nansei Shoto” islands.
Furthermore, the 1972 Okinawa Reversion Agreement, explicitly stated both the latitude andlongitude of those islands covered by it and returned the Nansei Shoto islands, including the
Senkaku Islands, to Japan accordingly. In the case of Kuba and Taisho Islands, when Okinawa
was reverted to Japan in 1972, despite China having already begun asserting its own claim atthat stage, these two islands were offered by “Japan” to the US as facilities and areas within
Japan (firing/bombing zones), and that status has not changed since.
Given the above background and historical facts, the above-mentioned feeling of incongruity
arises from the thinking that because the US obtained the Senkaku Islands from Japan and later
returned them, just as with Okinawa and other territory, the US premise must obviously havebeen that Japan (not China) has residual sovereignty over the Islands.73 The strong expectationis that the position of the US Government too will at some stage become a more faithful20reflection of said background and historical facts.74
As an addendum, when US Republican heavyweight Senator John McCain (2008 presidential
nominee) came to Japan in August 2013, he repeatedly noted at press conferences and on otheroccasions75 that the Senkaku Islands are Japanese territory and that Japan clearly owns the
Senkaku Islands, as well as explicitly stating that all parties taking an objective stance recognizethat the Senkaku Islands issue is not a dispute but rather that “the Chinese are violating thefundamental rights that Japan has to the Senkaku Islands.” This is a truly insightful and accurate
remark.

8.

Conclusion

The Senkaku Islands are Japanese territory over which Japan has maintained valid control for along time. Japan has a strong position in light of both historical facts and based uponinternational law. Accordingly, Japan should not hastily explore a compromise simply because
it wishes to escape the unpleasant position it currently finds itself in with China and achieve a
temporary amelioration.76
The seas around our shores remain unquiet. Obviously, we must do all we can to avoid acontingency. There is a strong need for dialogue between Japan and China for risk management.
The constant state of awareness by JCG, police, Self-Defense Forces, and other related
personnel, as well as the enormous patience they have showed in not reacting to theircounterparts’ provocation, is truly admirable.
Japan should continue to secure valid control77 and take necessary territorial protection
measures, while maintaining firm determination to protect its territory and cool-headed analysis
therefor as well as recognizing this as a long-term battle.

1

Among the many books and papers written about the Senkaku Islands issue, those which lay out thehistorical background and points of international law particularly succinctly include: Toshio Okuhara,“Senkaku retto no ryodo hennyu keii” [Background of the territorial incorporation of the Senkaku
Islands], Seikei Gakkai Shi [Journal of Politics and Economics] No. 4 (Kokushikan University, 1975);
Shigeyoshi Ozaki, “Senkaku shoto no kizoku ni tsuite: Jo/chu/ge no ichi/ge no ni” [The territorial
sovereignty over the Senkaku Islands: Parts I, II and III (a) and (b)], Refarensu [The Reference], No.
259, 1972, pp. 261–263 (Ozaki has also recently written a series of articles on territorial sovereignty
over the Senkaku Islands that was published in three installments in Tosho Kenkyu Journal [Review
of Island Studies], Vol. 1, 2012, Vol. 2.1, 2012, and Vol. 2.2, 2013 (Center for Island Studies, Ocean
Policy Research Foundation); and Kentaro Serita, Nihon no ryodo [Territory of Japan] (ChuokoronShinsha, 2010).

2

On September 19, 2012, NHK newscaster Kensuke Okoshi wrote on his blog that “the reason for the21

recent rapid deterioration in Japan-China relations is of course the issue on territorial sovereignty over
the Senkaku Islands. … The Japanese Government purchased the Islands from the landowner on
September 11 and nationalized them. China’s anger exploded, resulting in the current situation.”
Kensuke Okoshi, Okoshi Kensuke no gendai o miru [Kensuke Okoshi’s view of the present](September 19, 2012),[http://www9.nhk.or.jp/nw9-okoshi-blog/2012/09/] (in Japanese)
In Yoshihiko Yamada and Masato Ushio, Senkaku gekitotsu: Nihon no ryodo wa zettai ni mamoru[The Senkaku clash: Protecting Japanese territory at all costs] (Fusosha Publishing, 2012), Yamada
notes that “The government misread China’s attitude. To the Chinese government and people, thepurchase of the Senkaku Islands by a local government body means something entirely different to thesame purchase and then treat as national land by the central government” (p.14).
Takashi Okada suggests in Senkaku shoto mondai: Ryodo nashonarizumu no maryoku [The Senkaku
Islands issue: The appeal of territorial nationalism] (Sososha, 2012) that “the trigger was Tokyo
Governor Shintaro Ishihara announcing his intention to buy the Senkaku Islands,” which was the“point of departure for the current issue” (p. 16).
3

United Nations address on September 27, 2012 by Chinese Foreign Minister Yang Jiechi. Ministry ofForeign Affairs of the People’s Republic of China (below, PRC Foreign Ministry),[http://www.fmprc.gov.cn/mfa_eng/topics_665678/diaodao_665718/t975814.shtml]

4

See Ministry of Foreign Affairs (MOFA), The Senkaku Islands,[http://www.mofa.go.jp/mofaj/area/senkaku/pdfs/senkaku.pdf ](in Japanese)[http://www.mofa.go.jp/region/asia-paci/senkaku/pdfs/senkaku_en.pdf] (in English)

5

Ibid.

6

Shinya Murase, The Senkaku Islands and International Law, Center for Strategic and International
Studies, Japan Chair Platform, May 22, 2013.

7

Takashi Tajima, “Senkaku mondai: Chugoku-gawa wa hanashiai o hikaetai to shi, Nihon-gawa wa
kikioku ni todometa” [The Senkaku issue: The Chinese side wanted to refrain from discussion, andthe Japanese side just listened] (Gaiko [Diplomacy], No. 18, March 2013, pp. 78–79. Tajima also
notes that, “Looking at the behavior of the Chinese side, China itself has repeatedly infringed the very
‘shelving’ of the issue—in other words, maintaining the status quo—it has called for,” giving theexample of the formulation of China’s Territorial Waters Law. He also observes that, “Far fromshelving the issue, the Chinese side has launched straight into an attempt to change the status quo
through the use of force without even formally requesting a dialogue. You have to wonder if this canreally be the road to “peaceful development” that China talks about.”
Even Takakazu Kuriyama, who claims that tacit agreement to “shelve” the issue was reached between
the Japanese and Chinese leaders, says that “… while seeking to change the situation to one’s own
benefit through the use of some unilateral means is understandable, it does infringe the standstill rule.
The recent tensions between Japan and China have been caused by both sides acting in disregard ofthis rule, but in my view, this all began with China’s formulation of its Territorial Waters Law in1992.” Takakazu Kuriyama, “Senkaku shoto to nitchu kankei: “Tana-age” no imi” [The Senkaku
Islands and Japan-China relations: The meaning of “shelving”], Ajia Jiho, December 2012, pp. 7–8.

8

For example, PRC Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on June 4,2013 [http://kw.china-embassy.org/eng/fyrth/t1047602.htm] and the Q&A session with Vice Foreign
Minister Zhang Zhijun at a Foreign Ministry regular press briefing on October 26, 2012[http://www.fmprc.gov.cn/mfa_eng/wjdt_665385/zyjh_665391/t983015.shtml]

9

In his speech at the House of Councilors plenary session on February 1, 2013, Prime Minister Abe
stated that “... there is no doubt that the Senkaku Islands are clearly an inherent territory of Japan, inlight of historical facts and based upon international law. Consequently, there exists no issue ofterritorial sovereignty to be resolved with China concerning the Senkaku Islands, nor does an issue tobe shelved exist.”22

On April 5, 2013, Foreign Minister Fumio Kishida said at a House of Representatives Committee on
Foreign Affairs meeting that “Japan’s position on the Senkaku Islands is as I described earlier, namely,
that, to begin with no territorial issue exists that requires resolution in relation to the Senkaku Islands.
Japan’s position in this regard has been entirely consistent. Accordingly, there are absolutely no facts
that Japan has agreed with China in the course of its history to date to shelve regarding the Senkaku
Islands or maintain the status quo in that regard, and Japan’s recognition is that there is actually noissue to be shelved.”
10

The intrusion into the territorial waters occurred on December 8. The Japan-China-ROK Summit washeld on December 13.

11

Based on data from The Military Balance, which is put out by the International Institute for Strategic
Studies in the UK.

12

Examples of Chinese statements include:(a) Former Prime Minister Li Peng’s comment that “Japan will be no more in 30 years.”
When he was head of the Management and Coordination Agency, Kabun Muto explained asfollows at the House of Representatives Special Committee on Administrative Reform: “… When
I went to Australia, I was asked by then-Australian Prime Minister Paul Keating if Japan wasn’t
on the verge of collapse. Apparently, at a recent meeting with Chinese Prime Minister Li Peng [inChina], the latter had said to Keating, “You Australians are counting heavily on Japan, but theodds are good that Japan will be no more in 30 years.” Keating was quite shocked by this, and as I
happened to be in Australia [after that visit], he asked me about what I thought. I replied that I
didn’t know what Li Peng had said, but as a Japanese politician I could hardly say that mycountry was going to collapse. It was certainly a fact that Japan was currently in a bad way, but itwould definitely recover, so there was no need for concern, and then I actually left …” (May 9,1997 comment by Management and Coordination Agency Minister Muto to the House ofRepresentatives Special Committee on Administrative Reform).
(b) Suggestion from a Chinese military officer that the US and China split the Pacific between themOn March 11, 2008, then-US Commander of the US Pacific Command Timothy Keating stated asfollows to the House Armed Services Committee on US Pacific Command Posture: “If I could, avery brief anecdote, Senator. While in discussions with a senior Chinese naval officer on our first
visit, he with a straight face—so apparently seriously—proposed the following deal to me.” Hesaid, “As we develop our aircraft carriers,” an interesting note to begin with, “why don’t we reachan agreement, you and I? You take Hawaii east; we’ll take Hawaii west. We’ll share information
and we’ll save you all the trouble of deploying your naval forces west of Hawaii.” US Senate(c) Comment by Chinese Defense Minister General Chang Wanquan at a joint press conference withDefense Secretary Chuck Hegel(In response to Hegel’s call for China to find a peaceful solution to disputes over maritime
interests in the East China and South China Seas, which include the Senkaku Islands) “No one
should fantasize that we will barter away our core interests. And no one should underestimate ourdetermination in defending our territory, sovereignty and maritime rights.” (Yomiuri Shimbun,
August 20, 2013).

13

Examples of incidents related to Takeshima and the Northern Territories:(a) Takeshima-related incidents
In January 1952, ROK President Syngman Rhee issued “the Declaration on Maritime
Sovereignty”, contravening international law by unilaterally establishing the so-called “Syngman
Rhee Line” and also unilaterally proclaiming fisheries jurisdiction over a large area of water
within that line, which encompassed Takeshima. In March 1953, the Japan-US Joint Committee
decided to release Takeshima from its designation as a bombing training range for US Forces
stationed in Japan. This enabled Japanese boats to resume fishing around Takeshima, but it was23

confirmed that Korean boats were also engaging in fishing around the island. In July that year, aJapanese Coast Guard(JGG) patrol vessel demanding that Korean fishermen engaged in illegal
fishing leave Takeshima was fired upon by Korean authorities who were protecting the Korean
fishermen. In 1954, another JCG vessel on patrol near Takeshima was fired on by ROK security
personnel who began to be constantly stationed on Takeshima. See MOFA, Establishment of“Syngman Rhee Line” and Illegal Occupation of Takeshima by the Republic of Korea[http://www.mofa.go.jp/mofaj/area/takeshima/g_senkyo.html] (in Japanese)[http://www.mofa.go.jp/region/asia-paci/takeshima/index.html](in English)
Regarding the Syngman Rhee Line, in the 13 years until the former Agreement on Fisheries
between Japan and the Republic of Korea was concluded in 1965, 3,929 Japanese citizens
detained, 328 vessels being seized, and 44 injured or killed (Ichiro Komatsu, Jissen kokusaiho[International law in practice] , Shinzansha, 2011, p. 109.
(b) Northern Territories-related incidents
In the morning of August 16, 2006, the Japanese fishing boat No. 31 Kisshinmaru was fired upon
and then seized by a Russian patrol boat near Kaigarajima island, which is part of the HabomaiIslands, with one fisherman killed and three others detained (for details of the incident and thegovernment’s response, see the MOFA web page on the incident of firing on and seizure of aJapanese fishing vessel in the waters around the Northern Territories,[http://www.mofa.go.jp/mofaj/area/russia/hoppo_jiken.html] (in Japanese)
14

The second page of the September 28, 2012 morning edition of the Asahi Shimbun reported thenKeidanren Chair Hiromasa Yonekura as referring “at a press conference on the 27th in Beijing during
his visit to China to Prime Minister Noda’s statement that “no territorial issue exists” in relation to the
Senkaku Islands and that this stance of the Japanese Government was “hard to understand.”According to the newspaper, “he added that “the (Government’s) stance will not be accepted in
private-sector negotiations and that he wished “the Japanese Government would not cling to thisstance.” In response, Masato Ushio observed that “Yonekura’s assertion undermines Japan’s national
interests, benefiting only China or considering only economic interests, including those of his own
company” (Yamada and Ushio, supra note 2, p. 174).

15

Yoshiro Matsui, “Senkaku shoto ni tsuite kangaeru: Kokusai-ho no kanten kara 1–4” [The Senkaku
Islands from the perspective of international law], Vols. 1–4 Horitsu Jiho No. 85:1–4, 2013.

16

Ukeru Magosaki, Nihon no kokkyo mondai: Senkaku, Takeshima, Hoppo-ryodo [Japan’s borderissues: The Senkakus, Takeshima and the Northern Territories], Chikuma Shobo (Chikuma Shinsho),2011, p. 87; Okada, supra note 2, p. 114. In addition, the July 2, 2013 edition of the Tokyo Shimbun
opined in its editorial that questions remain about an attitude as if it would simply shuts down debate
by claiming that “a issue on territorial sovereingty does not exist”.

17

Murase, supra note 6. This paper explains the difference between conflicts and disputes.

18

Akira Kotera, “Ryodo mondai no shori isogu na” [Don’t rush in dealing with territorial issues] (The
Nikkei, October 9, 2012).

19

Asked whether the Senkaku Islands are Japanese territory, former Taiwanese President Lee Teng-hui
was reported as saying “[The Senkaku Islands] are naturally Japanese territory. If not, to whom dothey belong? There is no historical record of them belonging to anyone else, and no geographicalterritorial delimitation. Taiwan cannot say the Senkaku Islands belong to it. Upon seeing a beautiful
woman, we can’t just say that she is my wife. Is such behavior valid? We should look at the matterbased on history.” (Central News Agency (Taiwan), September 24, 2008).

20

Serita, supra note 1, p. 159. According to Serita, “It can be more than adequately demonstrated thatJapan has continually—for 75 years since 1895—and peacefully—that is, with no protest from
China—exercised sovereignty.”

21

Comment by Shinsuke Sugiyama, Director-General of MOFA Asian and Oceanian Affairs Bureau, atthe Upper House Budget Committee on May 15, 2013.

24

22

Masayasu Hosaka and Kazuhiko Togo, Nihon no ryodo mondai: Hoppo yonto, Takeshima, Senkaku
shoto [Japan’s territorial issues: The four Northern Islands, Takeshima, and the Senkaku Islands],
Kadokawa Shoten, 2012, p. 122. The authors note that “The issue of sovereignty is a sacrosanct stateright, as well as the state’s responsibility. It is unreasonable for a wartime victor to ignore the matterfor 23 years and now, when oil is found, make a claim to that territory. Basically, such would appear
to have been the sentiment of the government and at least the majority of the people at the time.”

23

An article on page 1 of the July 2, 2013 edition of the Yomiuri Shimbun reported that “It has emergedthat the Chinese Government has made (1) the Japanese Government’s recognition of the existence ofa territorial dispute and (2) both Japan and China “shelving” the issue preconditions for holding a
Japan-China Summit.”

24

MOFA PR material: “Ryodo mondai no sonzai o mitomeru beki da” “Nihon to shite senkaku mondaio ai si jei ni futaku sureba ii de wa nai ka” naze ikenai? [What’s wrong with the arguments that “theexistence of a territorial dispute should be recognized” and “Japan should take the Senkaku issue tothe ICJ”?]

25

MOFA, The Basic View on the Sovereignty over the Senkaku Islands,[http://www.mofa.go.jp/mofaj/area/senkaku/kenkai.html] (in Japanese)[http://www.mofa.go.jp/region/asia-paci/senkaku/basic_view.html] (in English)

26

Commentary in the May 8, 2013 People’s Daily. The argument in this article that “The time has comenot only for Taiwan and the appertaining islands (including the Diaoyu Islands) to be returned toChina but also to revisit the historically unresolved issue of the Ryukyu Islands” is one example.

27

MOFA PR material, supra note 24.

28

Matsui, supra note 15, Horitsu Jiho 85:1, p. 72

29

The Soviet Government Memorandum to the Japanese Government, issued January 27, 1960 after thesigning of the Japan-US Security Treaty (January 19, 1960), takes the position that “the Soviet
Government finds it necessary to declare that the islands of Habomai and Shikotan will be handed
over to Japan, as was stated in the Soviet-Japanese Joint Declaration of October 19, 1956, only if all
foreign troops are withdrawn from Japan and a Soviet-Japanese peace treaty is signed.” (MOFA,
Warera no hoppo ryodo 2012 nen-ban shiryo-hen [2012 edition of the joint compendium of
documents on the history of territorial issues between Japan and Russia 2012 edition], p. 26).

30

The Japan-Soviet Joint Communiqué signed by Prime Minister Kakuei Tanaka and USSR General
Secretary Leonid Brezhnev on October 10, 1973 clearly states that “[r]ecognizing that the settlementof unresolved problems left over from WWII and conclusion of a peace treaty would contribute to theestablishment of truly good-neighborly and friendly relations between the two countries, both sides
held negotiations on issues pertaining to the contents of a peace treaty.” It was also verballyconfirmed at the summit meeting that the “unresolved problems” in question included the Northern
Territories issue (MOFA, Warera no hoppo ryodo 2012 nen-ban setsumei-hen [Explanatory notes to2012 edition of the joint compendium of documents on the history of territorial issues between Japanand Russia], p. 13).

31

The Japanese-Soviet Joint Communiqué signed by Japanese Prime Minister Toshiki Kaifu and USSR
President Mikhail Gorbachev on April 18, 1991(MOFA, Warera no hoppo ryodo 2012 nen-ban
setsumei-hen [Explanatory notes to 2012 edition of the joint compendium of documents on the historyof territorial issues between Japan and Russia], pp. 41–44). Paragraph 4 explicitly states that “[Prime
Minister Toshiki Kaifu of Japan and President M.S. Gorbachev of the Union of Soviet Socialist
Republics] held an in-depth and thorough negotiations on a whole range of issues relating to the
preparation and conclusion of a peace treaty between Japan and the Union of Soviet Socialist
Republics, including the issue of territorial demarcation, taking into consideration the positions ofboth sides on the attribution of the islands of Habomai, Shikotan, Kunashiri, and Etorofu…
[confirming that] … the peace treaty should be the document marking the final resolution of warrelated issues, including the territorial issue ...”

25

32

The Tokyo Declaration on Japan-Russia Relations signed by Prime Minister Morihiro Hosokawa andPresident Boris Yeltsin on October 13, 1993 (MOFA, Warera no hoppo ryodo 2012 nen-ban shiryohen [2012 edition of the joint compendium of documents on the history of territorial issues between
Japan and Russia], pp. 46–48). Paragraph 2 clearly states that “[Leaders] … have undertaken serious
negotiations on the issue of where the islands of Etorofu, Kunashiri, Shikotan, and Habomai belong.
Both sides agree that negotiations towards an early conclusion of a peace treaty through the solutionof this issue on the basis of historical and legal facts and based on the documents produced with thetwo countries’ agreement as well as on the principles of law and justice should continue, and that therelations between the two countries should thus be fully normalized.”

33

Kazuhiko Togo, “‘Ryodo mondai nai’ no saiko o” [Japan must acknowledge territorial issue overislands] (Asahi Shimbun, October 1, 2010). In that article, Togo notes that the expression “a territorial
dispute does not exist” is one which “caused a great sense of humiliation and anger in me [Togo] andmy fellow Japanese as that which USSR Foreign Minister Andrei Gromyko continued to direct at
Japan during the last days of the Cold War in relation to the Northern Territories issue” and suggeststhat we must “stop forcing China to experience the same “Gromyko insult”.”
While the “sense of humiliation and anger” noted by Togo is certainly true, the suggestion in relation
to China equates the position in which Japan was placed, namely the illegal occupation of theNorthern Territories, where as many as 17,000 Japanese citizens resided, with the position of China,
which suddenly began claiming territorial sovereignty over the Senkaku Islands after remaining silent
for many years over Japan’s continuous exercise of effective control over the Islands, which is hardly
an appropriate comparison.

34

Remarks by Korean Foreign Minister Lee Tong Won at a Korean National Assembly Special
Committee meeting on August 10, 1965.

35

Matsui, supra note 15, Horitsu Jiho 85:4, p. 70.

36

The ruling in an international court on the definition of a dispute traces back to as early as the 1924
Permanent Court of International Justice ruling on the Mavrommatis Palestine Concessions Case. The
2011 ICJ judgment on the Application of the International Convention on the Elimination of All
Forms of Racial Discrimination Case also quotes that definition: “A dispute is a disagreement on apoint of law or fact, a conflict of legal views or of interests between two persons.” (Mavrommatis
Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., series A, No. 2, p. 11). (Application of theInternational Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 84, para. 30).

37

In international judicial proceedings to date, there have been many examples of a party arguing thenon-existence of a dispute as a preliminary objection—South Africa, for example, in the Southwest
Africa Case (1962); Australia in the Case concerning East Timor (1995); the US and the UK in theCase concerning Questions of Interpretation and Application of the 1971 Montreal Convention arisingfrom the Aerial Incident at Lockerbie (Preliminary Objections) (1998); Germany in the Case
Concerning Certain Property (2005); and Russia in the Case concerning Application of theInternational Convention on the Elimination of All Forms of Racial Discrimination (2011).

38

Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference, September 4, 2012, PRC
Foreign Ministry[http://www.mfa.gov.cn/ce/cgtrt/eng/fyrthhz/fyrth/t966813.htm].

39

Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference, March 1, 2012, PRC Foreign
Ministry [http://az.china-embassy.org/eng/fyrth/t911393.htm].

40

Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference, February 29, 2012, PRC
Foreign Ministry[http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t910855.shtml],
remarks by Chinese Premier Wen Jiabao at the 2011 East Asia Summit, PRC Foreign Ministry[http://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/yzs_663350/dqzzywt_663588/t879898.shtml].

26

41

January 23, 2013 Statement of the Chinese Embassy in the Republic of the Philippines(http://ph.chineseembassy.org/eng/xwfb/t1007184.htm).

42

April 25, 2013 International Tribunal for the Law of the Sea Press Release[https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_191_E.pdf]

43

In fact, China has never been a party to an international judicial proceedings at the ICJ.

44

Hosaka and Togo, supra note 22, p. 224.

45

In 1972, with the USSR continuing to deny the existence of the Northern Territories issue, Foreign
Minister Masayoshi Ohira proposed referring to the ICJ, but the Soviet Foreign Minister Andrei
Gromyko rejected this. MOFA, Kokusai shiho saibansho (ICJ) ni tsuite [About the International
Court of Justice] (June 2013)[http://www.mofa.go.jp/mofaj/files/000103330.pdf] (in Japanese)46

For example, at Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on November 1,
2012, he said “… the Diaoyu Islands have always been China’s sacred territory since ancient times”.
PRC Foreign Ministry,[http://pl.china-embassy.org/pol/fyrth/t984876.htm].

47

Yoshiji Nogami, “The Senkakus: The true nature of the issue,” The Boston Globe, February 19, 2013.

48

In Hosaka and Togo, supra note 22, the authors note that there is “no immediate need for Japan torefer to the ICJ. Japan is the one exercising effective control, and Japan has an highly advantageous
position under international law.”49

For example, testimony by parties related to the Koga family which operated on the Islands (Gendai,
June 1972 issue, pp. 142–47 and Moriteru Arasaki (ed.), “Okinawa gendaishi e no shogen: Ge”[Testimony about modern Okinawan history Vol. 2] , Okinawa Times, 1982, p. 127).

50

Japanese Foreign Minister at the time Koichiro Gemba, “Japan-China Relations at a Crossroads,”
International Herald Tribune, November 21, 2012.

51

Kotera, supra note 18.

52

Naoya Okuwaki, “Takeshima/Senkaku shoto henyu no rekishi: Kokusaiho-jo, tetsuzuki mondai nashi”[History of the incorporation of Takeshima and the Senkaku Islands: No procedural issues underinternational law], The Nikkei, September 14, 2012.

53

Komatsu, supra note 13, p. 376.

54

Provisional measures ordered by the International Tribunal for the Law of the Sea were revoked by
the arbitration tribunal when it determined that the International Tribunal did not have jurisdiction
over the case. (Award on Jurisdiction and Admissibility (Southern Bluefin Tuna Case: Australia and
New Zealand v. Japan), August 4, 2000, p. 111, para. 72.)

55

Article 73.1 of the ICJ Rules of Court states that “A written request for the indication of provisional
measures may be made by a party at any time during the course of the proceedings in the case inconnection with which the request is made.”

56

People’s Republic of China State Council Information Office, Diaoyu Dao, an Inherent Territory of
China: White Paper, September 25, 2012. (PRC Foreign Ministry,[http://www.china-embassy.or.jp/jpn/zrgxs/zywj/t973306.htm] (in Japanese),[http://www.ebeijing.gov.cn/BeijingInformation/BeijingNewsUpdate/t1242062.htm](in English)). Speech given at the United Nations General Assembly on September 27, 2012 by
Chinese Foreign Minister Yang Jiechi (PRC Foreign Ministry,[http://www.fmprc.gov.cn/mfa_eng/topics_665678/diaodao_665718/t975814.shtml]).

57

Publications that take the perspective that the Senkaku Islands are an “historical issue” and a “colonial
issue” include Narahiko Toyoshita, “Senkaku mondai” to wa nani ka [What is the “Senkaku Islands
issue”], Iwanami Shoten, 2012.

27

58

Hosaka and Togo, supra note 22, p. 118.

59

MOFA, Senkaku shoto ni kan suru Q&A [Senkaku Islands Q&A],[http://www.mofa.go.jp/mofaj/area/senkaku/qa_1010.html] (in Japanese)[http://www.mofa.go.jp/region/asia-paci/senkaku/qa_1010.html#q10] (in English)

60

Okuwaki, supra note 52.

61

Serita, supra note 1, p. 161.

62

MOFA, Senkaku shoto ni tsuite [The Senkaku Islands], supra note 4,[http://www.mofa.go.jp/mofaj/area/senkaku/qa_1010.html][http://www.mofa.go.jp/region/asia-paci/senkaku/pdfs/senkaku_en.pdf]

63

Ryuji Hattori, Nitchu kokko seijoka: Kakukei Tanaka, Masayoshi Ohira, kanryo-tachi no chosen[Normalizing Japan-China diplomatic relations: The challenge faced by bureaucrats, Kakuei Tanaka
and Masayoshi Ohira], Chuokoron-Shinsha, 2011, The author analyzes the response of Premier Chou
En-lai, arguing that “Chou probably parried Tanaka’s comment because he made the snap decisionthat if the Senkaku Islands were discussed, things would get out of hand. Placing greater priority on
China’s Soviet strategy, he hurried through the signature of the Japan-China Joint Communique.” “Innormalizing relations with Japan, China did not make any demands in relation to the Senkaku Islands,
and even shut down Japan’s efforts to propose it. …There is no territorial dispute between Japan and
China.”

64

Remarks by then-Foreign Minister Seiji Maehara at the House of Representatives Security Committee
on October 21, 2010: “That was a proposal made unilaterally by Deng Xiaoping, and the Japaneseside did not agree. The conclusion, then, is that Japan did not agree with China to shelve the issue.” At
the same meeting, Ambassador Takashi Tajima (Director of the China Division at the time) noted that
“In other words, the fact is that China wanted to refrain from discussion, and the Japanese side justlistened without comment.” Tajima (supra note 7, p. 77). In 1972 too, Tajima said there was norecognition that agreement had been reached on shelving (Sankei Shimbun morning edition, June 29,2013 p. 3).

65

For example, Reinhard Drifte, while taking the view that normalization of bilateral relations could nothave occurred if there had not been agreement to shelve the issue, says that the shelving agreement
was obviously a tacit understanding and clearly not something with legal nature. Reinhard Drifte, The
Senkaku/Diaoyu Islands territorial dispute between Japan and China: Between the materialization of
the “China threat” and Japan “Reversing the outcome of World War II”?, UNISCI Discussion
Papers No. 32, May 2013.

66

Nogami, supra note 46.

67

Article 5 of the Treaty of Mutual Cooperation and Security between Japan and the United States ofAmerica states that “Each Party recognizes that an armed attack against either Party in the territories
under the administration of Japan would be dangerous to its own peace and safety and declares that it
would act to meet the common danger in accordance with its constitutional provisions and processes…”

68

In Yamada and Ushio, supra note 2, Ushio argues that “Even if America were to ignore the Senkaku
Islands—in other words, Japan—what would America’s allies around the world think? If even Japan,
which for better or worse has gone as far as providing a “Host Nation Support”, is forsaken, America
would lose its credibility” (pp. 132–33).

69

MOFA, Comment by Secretary of State John Kerry at a joint press conference by Japanese and US
foreign ministers on April 14, 2013.
[http://www/mofa.go.jp/mofaj/kaidan/page4_000032.html] (in Japanese)[http://www.mofa.go.jp/region/page6e_000016.html] (in English)

70

A September 7, 1956 aide-mémoire from the US Department of State on the Japan-USSR negotiations
notes: “The United States has reached the conclusion after careful examination of the historical facts

28that the islands of Etorofu and Kunashiri (along with the Habomai Islands and Shikotan which are apart of Hokkaido) have always been part of Japan proper and should in justice be acknowledged asunder Japanese sovereignty.” (MOFA, Warera no hoppo ryodo 2012 nen-ban shiryo-hen [2012edition of the joint compendium of documents on the history of territorial issues between Japan andRussia], pp. 22–23)
71

At the June 18, 2013 meeting of the House of Councillors Committee on Foreign Affairs and Defense,
Diet member Koji Sato remarked: “As is clear from the comment by National Security Adviser to the
President Tom Donilon, the US is not in a position to make a final decision on territorial sovereinty
over the Senkaku Islands, and has chosen not to take a specific position. This could be thought tomean that the US does not necessarily recognize Japan’s territorial sovereignty, but on the other hand,former Secretary of State Hillary Clinton and current Secretary of Defense Chuck Hegel have bothmade comments, stating their view that because the Senkaku Islands are under Japaneseadministrative control, they fall under Article 5 of the Treaty of Mutual Cooperation and Security
between Japan and the United States of America, which states that in the case of an armed attack
against either Japan or the US, both parties would act to meet the common danger. The US is
distinguishing between territorial sovereignty and administrative rights … and I would like to see
these two terms closely defined.” “Issues like these can be difficult to discuss publicly, whichconversely means they can end up damaging the national interest. In that sense, I would like thediscussion to be moved forward with caution.”
At the November 6, 2013 meeting of the House of Representatives Committee on Foreign Affairs,
Diet member Akihisa Nagashima remarked: “I would like a clearer commitment from the US on thisissue, so I urge the Foreign Minister too to press hard in that direction.”

72

Toyoshita, supra note 57, p. 172. Toyoshita further argues that “For the 27 postwar years of the US
military occupation of Okinawa, the US considered the Senkaku Islands to be part of Okinawa andused them as a bombing range. Even after Okinawa was returned to Japan, the US continued tocontrol Kuba and Taisho Islands. In other words, the US is not a third party, but an actual party to thematter.”73

Press conference by State Department spokesman Robert McCloskey on September 10, 1970.
McCloskey stated that “Under the San Francisco Peace Treaty, the U.S. government administers the
Senkaku Islands as a part of the Ryukyu Islands, but considers that residual sovereignty over the
Ryukyus remains with Japan.”74

A CIA report created in 1971 (released from confidentiality in 2007) notes that the Senkakus arecommonly considered as part of the large Ryukyu Island chain, and also states that the Japanese claim
to sovereignty over the Senkakus is strong, and the burden of proof of ownership would seem to fallon the Chinese.

75

Remarks at an informal press conference following a courtesy call on Foreign Minister Kishida on
August 21, 2013, as well as at a press conference following his speech at the Tokyo American Center
the same day (The Nikkei, August 22, 2013, p. 4).

76

Takako Kawasaki, Japanese Association of International Law (ed.), “Nihon no ryodo [Japan’s
territory]” in Nihon to kokusaiho no 100 nen: Dai 2 kan: Riku, sora, uchu [Japan and international law
in the past 100 years Vol. 2: Land, air and space], Sanseido, 2001. The author argues that “If weconsider that territorial issues have an almost permanent nature, even if Japan’s relationship with theother country party to the dispute should temporarily deteriorate, or if negotiations become quite
protracted, Japan should avoid making any reluctant concessions.”

77

Okuwaki, supra note 52, argues that “In the case of the Senkaku Islands, Japan needs to deal
rigorously with incursions by foreigners pursuant to Japanese law, and, according to the situation, takemeasures such as strengthening maritime patrols, ensuring that Japan’s effective control continues.”(Deputy Director-General, International Legal Affairs Bureau, Ministry of Foreign Affairs)

29