APAN

Vol.2 No.3
Winter 2018ISSN 2433-4456

REVIEW

Territory and Maritime Issues in East Asia
East Asian and European Notions of Territory
Masaharu Yanagihara

Validity of International Law over Historic Rights:
The Arbitral Award (Merits) on
the South China Sea Dispute
Atsuko Kanehara

1969 Report by UN Economic Commission
for Asia and the Far East: A Turning Pointin the Historical Debate over Senkaku Islands
Monika Chansoria

The Invention of a Basis for the Possession of
Takeshima by the Korean Government
Yoshiko Yamasaki

Territorial Issues in the Indo-Paciﬃc:the East China Sea...and Beyond
June Teufel Dreyer

THE J A P A N
I NS T I T UTE O F
IN T E R NA TI O NA L
A F FA I R S

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APAN

Vol.2 No.3
Winter 2018

REVIEW

Territory and Maritime Issues in East Asia
1 East Asian and European Notions of Territory ���������������03

Masaharu Yanagihara
Masaharu Yanagihara is professor of public interntional law at the Open University of Japan.
Prior to this appointment, Yanagihara was professor at Kyushu University, Japan(1989–2016).
Yanagihara was visiting professor, LMU Munich, Germany (2000–2001) and visiting Professor,
Catholic University of Leuven, Belgium (2002). Yanagihara is working at several academic
societies: President, Japanese Society of International Law (2009–2012); Council Member andDirector of Planning Committee, Japan Branch, International Law Association (since 2014).
His main recent publications in English are as follows: “Significance of the History of the Law
of Nations in Europe and East Asia,” Recueil des cours, tome 371(2015), pp.273–435; “ʻShioki(Control),ʼ ʻFuyo (Dependency),ʼ and Sovereignty: The Status of the Ryukyu Kingdom in EarlyModern and Modern Times,” A. Roberts et al. (eds.), Comparative International Law (NewYork: Oxford University Press, 2018), pp.141–157.

2 Validity of International Law over Historic Rights:
The Arbitral Award (Merits) on the South China Sea Dispute��������08

Atsuko Kanehara
Atsuko Kanehara is a member of Governing Board of IMO International Maritime Law
Institute (since 2018). She was a member of the Board of the Bar Exam of Japan, appointed by
Minister of Justice (2006–2015). She works as a Councilor of Advisory Council for the National
Headquarters for Ocean Policy of Japan, appointed by Prime Minister (since 2016). She isa council member of both the Japanese Society of International Law and International Law
Association Japan Branch. She is a member of the Committee of International Law Association
on Baseline. She served as an Advocate for the Government of Japan in “Southern Bluefin
Tuna” Cases (Australia and NZ v. Japan) and a Counsel for the Government of Japan in “Whaling
in the Antarctic” Case. She delivered a special course of lectures entitled “Reassessment of Actsof the State in the Law of State Responsibility,” at The Hague Academy of International Law inJuly, 2018. The manuscript will be published shortly.

1

3 1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands�������36

Monika Chansoria
Dr. Monika Chansoria is a Tokyo-based Senior Visiting Fellow at The Japan Institute ofInternational Affairs. Previously, she has held appointments at the Sandia National Laboratories(U.S.), Hokkaido University (Sapporo, Japan), and Fondation Maison des Sciences delʼHomme (Paris). Dr. Chansoria specializes in contemporary Asian security issues, weaponsʼ
proliferation, and great power politics and strategy in the Indo-Pacific with a special focus on
China. She has authored five books, which includes her latest work, China, Japan, and Senkaku
Islands: Conflict in the East China Sea Amid an American Shadow (Routledge © 2018).

4 The Invention of a Basis for the Possession of Takeshimaby the Korean Government �������������������������48

Yoshiko Yamasaki
Yoshiko Yamasaki began her research into the Takeshima Island issue in 2006. Served as amember of the Shimane Prefectural Governmentʼs Takeshima Issue Research Group (Terms
II, III, IV). Earned bachelorʼs degree at Kyoto Universityʼs Faculty of Education and masterʼsdegree at Kyoto Universityʼs Graduate School of Agriculture. Specializes in Southeast Asia
studies. Currently employed by a private-sector company.

5 Territorial Issues in the Indo-Paciffic: the East China Sea…and Beyond���74

June Teufel Dreyer
June Teufel Dreyer is Professor of Political Science at the University of Miami, Coral Gables,
Florida. Formerly senior Far East specialist at the Library of Congress, she has also served as
Asia policy advisor to the Chief of Naval Operations and as commissioner of the United StatesChina Economic and Security Review Commission established by the U.S. Congress. Dr.
Dreyerʼs latest book, Middle Kingdom and Empire of the Rising Sun: Sino-Japanese Relations in
Historical Perspective was published by Oxford University Press in 2016; updated paperback
edition in 2018. The tenth edition of her China’s Political System: Modernization and Tradition,
was published in September 2018. Her research focuses on Chinese foreign policy and AsiaPacific Security issues.

2

Masaharu Yanagihara

East Asian and European Notions of Territory*
Masaharu Yanagihara**

Abstract
The concepts of territor y, territorial sovereignty, and territorial title were originallyelaborated in the latter half of the 19th century and the beginning of the 20th century. NonWestern countries, and particularly Eastern countries such as the Ottoman Empire, Persia,
Siam, China, Korea, and Japan, each existed within their own world order, but contact with
the West around the beginning of the 19th century created pressure to apply to their own
states the concepts of territory and borders as defined under modern European internationallaw. When analyzing the process of accepting the European concept of territor y, which
may conflict with non-European ideas of territory, the issue is whether these concepts andthe modern European concept of territorial right can really be understood as a continuum.
Growing number of territorial disputes and maritime border delimitation disputes arebrought before international courts for resolution in recent years. It is no easy matter to finda legal resolution to a territorial dispute. A comprehensive approach needs to be taken which
also gives sufficient consideration to historical perspectives. In so doing, we should notunderestimate the role played by international law as it stands but, at the same time, we must
not forget to envision what international law ought to be as lex ferenda.

The concept of territor y in modern European international law

Territory comprises that area over which a state exercises exclusive control or, in otherwords, the area over which territorial sovereignty extends. Issues in relation to theacquisition of an area (composed of land as principal and sea and air as accessory) as
state territory are debated within the legal framework of territorial title. By contrast,
according to international law, no matter the means by which a new state is formed̶annexation,
separation, division, etc.̶the territory of that state has been explicated on completely different
theoretical grounds to territorial title. The area effectively controlled1 by a new state is regarded
as that stateʼs territory as of the point at which that state becomes a state under international law.
In other words, the theoretical grounds for a new stateʼs territory have rested on the reality ofeffective control and recognition as a state by other countries (although the constitutive view ofrecognition and declaratory view of recognition are opposed on the effect of state recognition).
This article is a revised and enlarged version of an article in Japanese, “彊域、版図、邦土、そして領域 ” [Kyōiki, Hanto, Hōdo (Chinese and Japanese Notions of Territory), and Ryōiki (European Notion of
Territory)], Kokusai Mondai [International Affairs], No. 624 (2013), pp.1-4.
** Masaharu Yanagihara is professor of public international law at the Open University of Japan.
1
Effective control or occupation means an actual taking of possession of an area through state activities
to exercise exclusive authority there. Concrete terms and degree of state activities establishing effective
control are richly diverse according to the geographical or social circumstances of that area such as a
distance from the mainland, if it is an island, or whether that area remains without population.
*

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Japan Review Vol.2 No.3 Winter 2018

East Asian and European Notions of Territory

Where an area is regarded as territory, another form emerges in addition to the two above̶
namely, state territory already in existence at the point when international law was formulated.
The existence of international law is premised on the existence of a group of states, with theexistence of a group of states and the existence of international law essentially two sides of thesame coin. The territory of those states, too, must be treated as a given. It is rational to represent
the core territories of England, France, etc., in this manner (see also the concepts of original title,
inchoate title, and historical title discussed below).

The histor y of theories of territor y
The above concepts of territor y, territorial sovereignty, and territorial title were originallyelaborated in the latter half of the 19th century and the beginning of the 20th century. Territorial
title is not discussed by Vitoria, Grotius, or Vattel̶the foremost scholars in the 16th, 17th, and18th century respectively̶or indeed by any other scholars. In the case of Vitoria and Grotius,even the modern concept of territory had yet to mature. While Vattel advances something close
to the modern concept of territorial sovereignty, he does not systematically address the causes ofterritorial acquisition and loss.
In the 19th century, the notion of (state) territory as falling under the exclusive reach of statesovereignty (variously called state ownership, state territorial right, territorial sovereignty, etc.)
gradually became predominant (although there was no consensus as to whether that sovereignty
was of an ownership or an authority nature). At the same time, the practice of debating allquestions of the way in which territor y was acquired within the categories of the mode ofacquisition of state territorial right, or else title to state territory, had become virtually standard.
However, a close look at international legal theory at the time as well as British Law OfficersʼReports in relation to territorial acquisition reveals that, while there was almost complete
agreement on occupation, cession, and conquest as means of acquiring territorial title, opinions
were hugely divided on all other modes, with no standard theory yet to emerge. It is certainly
not the case that the “traditional” theory of five modes of acquisition of territorial title comprising
occupation, accretion, cession, subjugation, and prescription dominated international law as of themid-19th century.

Different concepts of “territor y”
Does the modern state as the above-defined territorial state dif fer in essence from other“states”̶the city states of ancient Greece (Athens, Sparta, etc.), the ancient Roman Empire,
Chinaʼs dynasties (Qin, Han, Yuan, Ming, etc.), the Islamic dynasties (the Umayyad and Abbasid
Caliphates, etc.), and “Japan” prior to the Meiji Restoration, for example?
These “states,” too, were certainly political entities that controlled certain territories in one
form or another. However, they do not appear to have shared the concept of territor y in thesense discussed above. For example, the ancient Chinese concepts of 疆域 (jiāngyù; territory
within boundar y), 版図 (bǎntú; territor y), and 邦土 (bāngtǔ; domain) as well as pre-modern
Japanʼs notions of 版図 (hanto; territory), 所領 (shoryō; territory), 化外の地 (kagai no chi; lands
outside imperial influence) and 異国境 (ikokusakai; the area next to a foreign country) did notcorrespond to modern Europeʼs ideas of “territory” and “borders.” Non-Western countries, andparticularly Eastern countries such as the Ottoman Empire, Persia, Siam, China, Korea, andJapan, each existed within their own world order, but contact with the West around the beginningof the 19th century created pressure to apply to their own states the concepts of territory andborders as defined under modern European international law. In other words, faced with theWestʼs overwhelming military superiority, non-Western countries were forced to conduct theirrelationships with the West based on modern European international law. These states received
modern European international law along with its concept of territory, reforming themselves into
4
Japan Review Vol.2 No.3 Winter 2018

Masaharu Yanagihara

the territorial states of today.

Establishment of territor y in the late Edo and early Meiji periods
From around the end of the eighteenth century, when ships from Russia, France and Englandarrived to try to open up Japan, the Shogunate had to decide whether it could continue to maintainits conventional foreign policy. It at first used the maintenance of ancestral law as justification forrefusing to open the country. The Shogunate, however, could not withstand demands to open its
doors that were made by Commodore Matthew Perryʼs American East India Squadron, which
carried out gunboat diplomacy with its overwhelming military power.
Through its growing contacts with Western countries, it became necessar y for Japan toadopt concepts of modern European international law such as “territory” and “boundaries.” Inparticular, the status of Ezochiand the Ryukyu Kingdom̶conventionally regarded as a “foreignarea” and a “foreign country,” respectively̶became subject to severe scrutiny. In addition, thetreatment of the minor islands near Japanʼs main islands had to be clearly decided. Establishingwhat were Japanʼs territory2 and boundaries became serious and urgent issues.
Settling issues with Russia was particularly problematic when it came to the process ofdemarcation, as this was closely related to the status of Ezochi.
Another problematic matter was the status of the Ryukyus. In the uru’u intercalary monthof July in the traditional Japanese calendar, which was equivalent to early September 1854 in theWestern Gregorian calendar, Rear Admiral James Stirling, the Commander-in-Chief of the British
East Indies and the China Station, arrived in Nagasaki. He announced that Britain was fighting
Russia in the Crimean War, and requested permission to enter the port of Nagasaki and otherJapanese harbors. This presented an opportunity for Japan and England to discuss questions
related to Japanʼs territories and boundaries. The Nagasaki Bugyō (Magistrate of Nagasaki)
2

The term 領域 (ryōiki: territory) and similar terms (in Japanese; original terms in Chinese characters)such as 領土 (ryōdo; territorial land) and 領海 (ryōkai: territorial sea) came into common use only
from the late Meiji era. The first treaty containing the word ryōiki was, as far as we could determine,
the Franco-Japanese Treaty of 1907. Before that, terms such as版図 (hanto; territory), 所領 (shoryō;
territory), 邦土 (hōdo; domain), 領地 (ryōchi; appanage),国土 (kokudo; domain), 境土 (kyōdo: territory
within boundary) were used. Chinese official Li Hongzhang, in negotiations between Japan and Qing
Dynasty China in 1876, and again when he met American ex-president Ulysses S. Grant on April 23,
1879, gave his interpretation of the word邦土 (bāng tŭ; domain) used in the first article of the 1871 SinoJapanese Friendship and Trade Treaty, which had the title “domains belonging to both countries.”
According to Li, the character 邦 referred to countries such as Korea (i.e. 外藩 (gaihan; territories
governed by a ruler who is a subject of the king/emperor), 外属 (gaizoku; foreign countries) and 属
国 (zokkoku; subject state), and the character土 referred to territories directly governed by China (i.e.
内属 (naizoku; subject countries) or 内地 (naichi: mainland)). See “Furoku Amerika zen-daitōryō tono kaidan-roku” [Appendix: record of meeting with the former American president], Shinpen Genten
Chūgoku Kindai Shisō-shi: Dai 2-kan: Bankoku Kōhō no Jidai [New Edition, Original Texts of Chinese
Modern History of Thought, Vol. 2: Age of the Law of Nations] (Iwanami Shoten, 2010), p. 172. Motegi
Toshio, “Nittchū kankeishi no katarikata: 19-seiki kōhan” [How to recount Japanese-Chinese history:
the second half of the nineteenth century], Liu Jie et al., ed., Kokkyō o Koeru Rekishi Ninshiki: Nittchū
Taiwa no Kokoromi [Contending issues in Sino-Japanese relations: toward a history beyond borders](University of Tokyo Press, 2006), p. 14. A letter dated February 1, 1876 that was written by Japanese
Minister Mori Arinori to Prince Gong of Qing China when Arinori was stationed in Qing China contains
the sentence “Korea is actually a country that belongs to China…” (Dai-nihon Gaikō Monjo Dai 9-kan[Documents on Japanese Foreign Policy, Vol.9], p. 182.) Morita Yoshihiko sees the possibility that
the Qing side intentionally communicated a different form of the meaning of 邦土 to Japan. Morita
Yoshihiko, “Nisshin kankei no tenkan to nisshin shūkō jōki” [Turnaround in Sino-Japanese relations
and Sino-Japanese Friendship and Trade Treaty], Okamoto Takashi and Kawashima Shin, ed., Chūgoku
Kindai Gaikō no Taitō [Emerging diplomacy in late imperial China] (University of Tokyo Press, 2009),
pp. 55-56.

5Japan Review Vol.2 No.3 Winter 2018

East Asian and European Notions of Territory

expressed his opinion in an official letter to the Japanese government dated August 7, 1854:
3“Ryukyu is a dependency of Japan and Tsushima is within Japanʼs territory.” This letter clearlyshows that, quite unlike the case of Tsushima, Ryukyu was not seen as an inherent territory ofJapan. Was this the view generally accepted at the time? The letter further raises the issue of thestatus of Tsushima in connection with boundary issues with Korea.4

The “inherent territor y” argument
When analyzing the process of accepting the European concept of territory, which may conflictwith non-European ideas of territory, we are required to discuss whether the notions of territory
held by various states are simply a matter of historic interest that are not real and serious
problems today.
As there is no space to go into detail on this issue in this short essay, I will limit myself to asimple explanation of the “inherent territory” argument put forward by Japan (and, more recently,
Korea). There are differences of emphasis however in actual application of this argument ̶in the case of the Northern Territories, for example, the claim is that the Japanese people haveinherited the territory as the land of their forefathers, and it has never once in history become
foreign territory, while in the case of Takeshima/Dokdo, the Japanese claim is rather that the
Koreans have presented no clear evidence that Korea had effective control over Takeshima prior
to Japan taking effective control of the island and establishing territorial right, which is argued tohave occurred at latest by the mid-17th century, i.e., the early Edo period. However, if the “inherent
territory” argument claims that territorial right was established prior to Japanʼs receiving modern
European international law in the mid-19th century and establishing territory in line with theconcept of territory espoused by modern European international law, this immediately presents
the problem of whether concepts from modern European international law such as territorial
right, territorial sovereignty, and borders can be applied directly to other eras and regions.
These ages and regions each had their own awareness of territory and borders. The issue
is whether these concepts and the modern European concept of territorial right can really beunderstood as a continuum.

Legal resolution of territorial disputes
There have been a growing number of cases in recent years where territorial disputes andmaritime border delimitation disputes are brought before international courts for resolution.
To resolve a dispute in court, the first hurdle is for the countries that are related to the disputeto recognize the existence of a dispute.5 The second hurdle is for them to agree to recourse thedispute to a court. Even if these hurdles are cleared, the next issue is which international legal
doctrines or framework to apply. The failure of the theory of territorial title to serve almost any
useful role in court has been long bemoaned.
3

Tsūkō Ichiran Zokushū, Vol. 3, p.99.

4

For more on the concept of territory in Japan, see Masaharu Yanagihara, “Bakumatsuki Meiji shoki
no ryōiki gainen ni kan suru ichikōsatsu” [Some Thoughts on the Concept of Territor y in the Late
Edo and Early Meiji Periods] in Takeo Matsuda et al, Gendai kokusaihō no shisō to kōzō I: Rekishi,
kokka, kikō, jōyaku, jinken [The Thought and Structure of Modern International Law I: History, States,
Organizations, Treaties, and Human Rights] (Tōshindō, 2012), pp. 45-73.

5The International Court of Justice (ICJ) decision in the case Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v.
United Kingdom) said in its judgment of October 5, 2016 that “a dispute exists when it is demonstrated,on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its
views were ʻpositively opposedʼ by the applicant” (para. 41). Whether making “awareness of a dispute” arequirement that is universally acceptable is currently unclear.

6
Japan Review Vol.2 No.3 Winter 2018

Masaharu Yanagihara

In addition, as noted in relation to the “inherent territory” argument, there is the difficult
question of which perspective to use in evaluating historical claims. This is particularly the casewith non-Western countries. The traditional view of territor y, 疆域 (jiāngyù; territor y withinboundary) and the traditional Chinese world order that China appears to be asserting in thecase of the Senkaku Islands and the Spratly Islands can be interpreted within this context.6 In
international courts, it has been addressed in the context of how to evaluate original title, inchoate
title, and historical title.7
It is no easy matter to find a legal resolution to a territorial dispute. A comprehensive
approach needs to be taken which also gives sufficient consideration to historical perspectives.
In so doing, we should not underestimate the role played by international law as it stands
but, at the same time, we must not forget to envision what international law ought to be as lex
ferenda. International law is neither a chimera, a mythical beast nor a panacea; it is “just one
institution among others which we have at our disposal for the building up of a saner international
order”.8

6

See Yoshirō Matsui, Kokusaihgakusha ga yomu Senkaku shotō mondai [Issues of the Senkaku Islands
from the Perspective of International Law Specialists] (Nihonhyōronsha, 2014), pp. 113-118.

7

ICJ decision in the 1953 Minquiers and Ecrehos Case, the ICJ decision in the 1992 El SalvadorHonduras Land, Island and Maritime Frontier Dispute, the 1998 Eritrea-Yemen Arbitration: Phase 1, theICJ decision in the 2008 Pedra Branca Case, etc.

8J.L. Brierly, Law of Nations: An Introduction to the International Law of Peace, Oxford: Clarendon Press,
1928, p.vi.

7
Japan Review Vol.2 No.3 Winter 2018

Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

Validity of International Law over Historic Rights:
The Arbitral Award (Merits) on the South China Sea Dispute*
Atsuko Kanehara**

Abstract
This article examines validity of international law, UNCLOS, over historic rights, particularly
focusing upon the Award on the South China Sea dispute.
The arbitral tibunal found that Chinaʼs historic rights are contrary to UNCLOS by mainly
emphasizing “comprehensiveness” of UNCLOS. This logic adopted by the arbitral tribunal
seems different from the two kinds of logics that are to be applied to historic waters: first,
to establish a general rule in permitting exceptions to it; and second, to deny a generalrule due to varieties of international practices. As a third logic, in the 1951 Fishery Case,
ICJ demonstrated logic that the Norwegian straight baseline method is an application of ageneral rule. By doing so, ICJ kept the sphere of legal regulation of a general rule over the
Norwegian specific case.
For Chinaʼs historic rights the arbitral tribunal did not adopt any of these kinds of logics.
The tribunalʼs logic is critically analysed from the perspective of ensuring regulation ofinternational law, UNCLOS, over those claims challenging against its regulation, such asclaims to historic waters and historic rights.
From the same perspective, namely, keeping the sphere of international regulation overchallenging phenomena, several findings in the Award are also considered. Since judicial
and arbitral procedures that interpret and apply international law have close relation tomaintenance of legal regulation of international law, particularly the tribunalʼs findings
concerning its jurisdiction are also examined.

1. IntroductionO(1) Purpose of this Article

n the 12th of July, 2016, the arbitral tribunal (tribunal) rendered its award (Award)1
on the merits concerning the South China Sea dispute2 between the Philippines andChina. The Award mainly dealt with three points: first, legal effect of the so-called
nine-dash line3 of China under international law; second, legal statuses of maritime
features; and third, legal evaluations of Chinese activities, such as fishing, marine pollution, andlaw enforcement in a dangerous manner.
This paper will focus upon the first point. This is because it touches upon the fundamental*

This article was originally published on Jochi Hogaku Ronshu (Sophia Law Review), Vol.61, No.1-2,
2017, pp. 27-76.

** Atsuko Kanehara is a Professor at Sophia University, Faculty of Law.
1
The South China Sea Arbitration (The Republic of Philippines v. The Republic of China), Award of 12
July 2016, https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN- 20160712-Award.pdf.
All URLs cited in this paper were last accessed on the 15th May, 2017.
2

In accordance with the case name defined by the tribunal, in this paper the dispute is referred to as theSouth China Sea dispute.

3

In the South China Sea, China has drawn a non-consecutive line that consists of nine dots. Within the

8Japan Review Vol.2 No.3 Winter 2018

Atsuko Kanehara

issue of what logic international law may apply in order to encompass maritime phenomena
within its legal scope and in order to ensure its regulation over them. This paper will address thisfundamental issue and call it an issue of validity of international law.
To clearly explain this purpose it is useful to confirm the formulations of the dispute or
subjects of disputes both by the two party States and by the tribunal.

(2) The Formulations of the Dispute both by Party States and by the Tribunal① Regarding a party State, the submission No. 2 of the Philippines reads:
Chinaʼs claims to sovereign rights and jurisdiction, and to ʻhistoric rights” with respect tothe maritime areas of the South China Sea encompassed by the so called “nine dash line”
are contrary to the Convention and without lawful effect to the extent that they exceed
the geographic and substantive limits of Chinaʼ s entitlements expressly permitted by
UNCLOS; (the Award, 169. The numbers refer to the paragraphs and pages of the awards
and the judgments cited there, unless otherwise indicated.)4
In comparison, as China did not formally participate in the arbitral procedure, any formal
submissions were not provided on Chinese side.5 The Chinese Note Verbale dated at the 14th ofApril, 2011 states that:
China ʼ s sovereignty and related rights and jurisdiction in the South China Sea aresupported by abundant historical and legal evidence.6
In addition, the Award cited the Chinese statement dated at the 30thof October, 2015, which
maintains that:
Chinaʼ s sovereignty and relevant rights in the South China Sea, formed in the long
historical course, are upheld by successive Chinese governments, reaffirmed by Chinaʼsline, China has claimed rights over waters and seabed. It is called nine-dash line, nine-dotted line, andU-shaped line. In this paper it is referred to as nine-dash line. Domestically, China in 1948 issued an
official map on which the nine (precisely, eleven)-dash line was drawn. Internationally it was not until
China submitted to the Secretary General of the United Nations its Note Verbale dated at the 7th of May,
2009, in order to protest the joint submission by Viet Nam and Malaysia to the Commission of Limits ofContinental Shelf in the same year, that China officially published the nine-dash line. CML/ 17/ 2009,
CML/ 18/ 2009. The Note Verbales and the joint submission are available at http://www.un.org/depts/
los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm. There are many scholarly writings
regarding the historical background of the nine-dash line. As a detailed survey, for instance, see, Zhiguo
Gao and Bing Bing Jia, “The Nine-Dash Line in the South China Sea: History, Status, and Implications,”
The American Journal of International Law, Vol. 107, 2013, pp. 100-108; Li Jinming and Li Dexia, “The
Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Development & InternationalLaw, Vol. 34, pp. 287-290.
4

The Submission No. 1 of the Philippines reads:
Chinaʼs maritime entitlements in the South China Sea, like those of the Philippines, may not extend
beyond those expressly permitted by the United Nations Convention on the Law of the Sea.

5

While the foreign ministry of China issued its Position Paper on the 7th of December, 2014, which
denied the jurisdiction of the tribunal, it did not formulate Chinese claims to rights and jurisdiction,and the subjects of the dispute. The Position Paper is available at http://www.fmprc.gov.cn/mfa_eng/
zxxx_662805/t1217147.shtml.

6

The Philippines protested the Chinaʼs claim over the South China Sea on the 5th of April, 2011, in theNote Verbal No. 000228. In response, China issued Note Verbale which reads:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters,
and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed andsubsoil thereof. Chinaʼs sovereignty and related rights and jurisdiction in the South China Sea aresupported by abundant historical and legal evidence. (CML/ 8/ 2011)
These Note Verbales are available at the URL cited in supra note 3.

9Japan Review Vol.2 No.3 Winter 2018

Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputedomestic laws,7 on many occasions, and protected under international law including theUnited Nations Convention on the Law of the Sea (187).8
As another statement of China, on 12th of May, 2016, it states that[T]he dotted line came into existence much earlier than the UNCLOS, which does notcover all aspects of the law of the sea. No matter from which lens we look at this, theTribunal does not have jurisdiction over Chinaʼs dotted line (200).9
Furthermore, interestingly, Chinaʼs rights are evaluated as “sovereignty + UNCLOS + historicrights.10
Among Chinese scholars, some argue that Chinaʼs claims to historic rights are based uponinternational law.11 According to them, for instance, Chinaʼs claim to historic rights supplements
its claims to rights under the United Nations Convention on the Law of the Sea (UNCLOS).12 Also
some argue that while historic rights may take various forms depending on the contexts, suchas delimitation of exclusive economic zones (EEZ) and continental shelf, distribution of fisheryresources, international maritime navigation, marine environmental protection, utilization ofmineral resources, and so on, the concept of historic rights is recognized by international law, and7

The relevant domestic laws of China include Article 14 of the Exclusive Zone and Continental Shelf
Act (26 June 1998) (available at www.npc.gov.cn/english/Law/2007-12/11/content_ 1383573.htm),
and Article 2 of the revised Law on Marine Environmental Protection (25 December 1999), cited by
Keyuan Zou, “Implementing Marine Environmental Protection Law in China: Progress, Problems andProspects,” Marine Policy, Vol. 23, No. 3, 1999, p. 211. The latter was further amended in 2014.

8

In the Chinese Note Verbale of the 7th of May, 2009, cited above (supra n. 3) it states that:
China has indisputable sovereignty over islands in the South China Sea and the adjacent waters, andenjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil
thereof, and that the above position is consistently held by the Chinese government, and is widely
known by the international community.
See also, the Chinese Note Verbale of the 14th of April, 2011, cited above (supra n. 6). As an analysis of
the Chinese Note Verbales and claims of other States including Indonesia and Malaysia, see, NguyenDang Thang and Nguyen Hong Thao, “Chinaʼs Nine Dotted Lines in the South China Sea: The 2011
Exchange of Diplomatic Note Between the Philippines and China,” Ocean Development & InternationalLaw, Vol. 43, 2012, p. 35 et seq. A scholar points out that while the Chinese Note Verbale in 2009 does not
mention the historical basis for the Chinese claims over the South China Sea, the Chinese Note Verbale
in 2011 does. Melda Malek, “A Legal Assessment of Chinaʼ s Historic Claims in the South China Sea,”
Australian Journal of Maritime and Ocean Affairs, Vol. 5, (1), 2013, pp. 28-29.

9The concept of “comprehensiveness” or “exclusiveness” emphasized by the tribunal is understood as
responding to such Chinaʼs claim. That will be examined later.

10

The President of the National Institute for South China Sea Studies, a Chinese Think Tank, specificallyfocusing on the South China Sea issues, expressed his view that reads:
The nine-dash line “…is based on the theory of ʻsovereignty + UNCLOS + historic rights.ʼ According
to this theory, China enjoys sovereignty over all the features within this line, and enjoys sovereign
right and jurisdiction, defined by the UNCLOS, for instance, EEZ and continental shelf…In addition
to that China enjoys certain historic rights within this line, such as fishing rights, navigation rights
and priority rights of resource development.”
Cited by Zou Keyuan, “China and the South China Sea Conundrum: Any Prospective Solution in
Future?”, German Yearbook of International Law, Vol. 56, 2013, p. 16, footnote 14.

11

Gao and Jia, op. cit., supra n. 3, p. 98.

12

Ibid., p. 99. In addition, it is opined that since historic rights are recognized by international law, Chinaʼsclaim to rights in the South China Sea is based upon UNCLOS. It further argues that the claims tohistoric rights as being an exception to UNCLOS, as general international law, supplement the claims torights recognized by it. Keyuan Zou and Xinchang Liu, “The U-Shaped Line and Historic Rights in thePhilippines v. China Arbitration Case,” in Shicun Wu and Keyuan Zou eds., Arbitration Concerning theSouth China Sea-Philippines versus China, Routledge, 2016, pp. 138, 142-143.

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Atsuko Kanehara

thus, UNCLOS may not deny historic rights.13
Considering the dispute was entertained by the dispute settlement procedure establishedunder UNCLOS,14 it was totally natural and understandable that the Philippines formulated its
submissions pursuant to it.15 On Chinese side, in some occasions it is maintained that Chinaʼsrights are based upon history.16 If a right can be established by history, an existence of such aright not based upon law would be a serious challenge against international law. However, many
Chinese statements and scholarly writings seek the ground for Chinaʼs claims to historic rights
in UNCLOS or customary international law or general international law. Thus, Chinese positionis understood that although China ʼs rights have formed themselves in a historical process,customary international law or general international law recognizes these rights. In this sense, itdoes not take a challenging position against international law as that history surpasses law.
Compared to these positions of party States to the dispute, how did the tribunal formulate thedispute or the subjects of the dispute?
② Concerning the characterization of this dispute, the award on jurisdiction and admissibility(Award on Jurisdiction)17 reads:[A] dispute concerning the interaction of the Convention (UNCLOS, by the author) withanother instrument or body of law, including the question of whether rights arising underanother body of law were or were not preserved by the Convention, is unequivocally a
dispute concerning the interpretation and application of the Convention (emphasis added)(168).18
13

Ibid., pp. 138-139.

14

The arbitral tribunal was established under Annex VII of UNCLOS.

15Regarding the fact that the Philippines intended to resolve the dispute by the dispute settlement
procedure under UNCLOS, it is pointed out that such a procedure may not be successful, as the
problems concerning the South China Sea include various issues, such as territorial sovereignty,
maritime delimitation, international maritime navigation, maritime security, marine biological diversity,
exploitation of mineral resources. Zou and Liu, op. cit., supra n. 12, pp. 130-131. More specifically, it
is opined that considering the Chinese Note Verbale of the14th of April, 2011 (supra n. 6), basically
Chinaʼs claims on the South China Sea are grounded on the provisions concerning the territorial sea,
the exclusive economic zone and continental shelf under UNCLOS, rather than historic rights derivingfrom the nine-dash line. Therefore, it is said that the Philippines mistakenly attributed all the Chinaʼsclaims to the nine-dash line, and that it distorted the legal nature and status of the line. Ibid., p. 143.
As an analysis from a wider perspective of dispute management in the South China Sea, Ngyuen Hong
Thao and Ramses Amer, “A New Legal Arrangement for the South China Sea?” Ocean Development& International Law, Vol. 40, p. 333 et seq. It states that although Southeast Asia is known as a region
with tradition of non-adjudication, this tradition has undergone important changes. The International
Court of Justice has recently dealt with two sovereignty disputes over islands between Southeast Asian
countries: the dispute over Pulau Ligitan and Pulau Sipadan between Indonesia and Malaysia (Judgementof 17 December 2002); and the dispute over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South
Ledge between Malaysia and Singapore (Judgment of 23 May 2008). Ibid., p. 341. The significance of theresolution of the South China Sea dispute by the tribunal needs to be assessed from such a perspective,
which is beyond the purpose of this paper.

16

As an opinion that Chinaʼs claims to rights in the South China Sea are based not only on UNCLOS but
also on history, see, Robert Beckman, “The UN Convention on the Law of the Sea and the Maritime
Disputes in the South China Sea,” American Journal of International Law, Vo. 107, 2013, p. 153.

17

The South China Sea Arbitration (The Republic of Philippines v. The Republic of China), Award on
Jurisdiction and Admissibility, 29 October 2016, http: //www. pcacases.com/web/sendAttach/1506.

18

Such an understanding itself of a dispute concerning the interpretation and application of UNCLOS
reflects an idea of how judicial or arbitral organs ensure their function of dispute resolution so that it
relates to the question of how and to what extent international law realizes its regulation. Regarding
the meaning of “a dispute concerning interpretation or application of law,” see, Atsuko Kanehara,

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

The Award similarly reads:
The Tribunal is faced with the question of whether the Convention (UNCLOS, by theauthor) allows the preser vation of rights to resources which are at variance with theConvention and established anterior to its entry into force. To answer this, it is necessary
to examine the relationship between the Convention and other possible sources of rights
under international law (emphasis added) (235).
By looking at these formulations of this dispute from a viewpoint of grounds for Chinaʼs claims
to rights in the South China Sea, the tribunal defined the grounds as “another instrument orbody of law” and “other possible sources of rights under international law.” Thus, while “another
instrument” may differently imply, it is understood that the tribunal sought within law for the
ground for Chinaʼs claims to rights in the South China Sea.

(3) The Issue of Validity of International Law in this Dispute
The Philippines argued that any rights that China may have had in the maritime areas of theSouth China Sea beyond those provided for in UNCOS were extinguished by Chinaʼs accession
to UNCLOS (188). In responding to this argument, as a conclusion, the tribunal denied the rights
claimed by China, since they were superseded by those under UNCLOS.
What characteristics may be found in this logic of the tribunal? Was it the only applicable logic
in determining the subjects of the dispute? Considering the discussion relating to historic waters
and historic rights, and from a perspective of “elastic” interaction between UNCLOS and another“body of law,” what evaluation is given to the Award?
These are questions of validity of international law or ensuring international regulation
over any phenomena taking place on the sea. The Award applied UNCLOS solely between theparty States to the dispute, the Philippines and China. Therefore, the analysis of this paper on
the validity of UNCLOS will be conducted on the assumption of relation between party States
to it. This paper does not intend to examine issues of a legal effect of the nine-dash line underinternational law and requirements for historic rights to be established under international law assuch.19 It will somehow touch upon them and the logic in the Award on Jurisdiction in finding the“Determination of the Dispute in the Southern Bluefin Tuna Case,” St. Paul’s Review of Law and Politics(Rikkyo Hogaku), Vol. 60, 2002, pp. 138-152.
19

As comprehensive analyses of historic rights, for instance, see, Clive R. Symmons, Historic Waters in the
Law of the Sea, Martinus Nijhoff Publishers, 2008; Leo J. Bouchez, The Regime of Bays in InternationalLaw, A. W. Sythoff, 1964. There are many works that deal with the legal effect of the nine-dash linewith an examination of the requirements for a historic right to have a legal effect under internationallaw. Among them, for instance, Tai Ikeshima, “Chinaʼs Dashed Line in the South China Sea: Legal
Limits and Future Prospects,”World Global Forum, No. 10, 2013, pp. 33-36; Gao and Jia, op. cit., supra
n. 3, p. 123; Zou, op. cit., supra n. 10, pp. 16-17; Li and Li, op. cit., supra n. 3, pp. 292-294; Masahiro
Miyoshi, “Chinaʼs ʻU-Shaped Lineʼ Claim in the South China Sea: Any Validity under International Law,”
Ocean Development & International Law, Vo. 43, 2012, pp. 5-8; Peter A. Dutton, “An Analysis of Chinaʼs
Claim to Historic Rights in the South China Sea,” in Yonn-Huei Song and Keyuan Zou eds., Major Law
and Policy Issues in the South China Sea, Ashgate, 2014, p.71-73; Malek, op. cit., supra n. 8, pp. 31-34;
Kentaro Nishimoto, “Minami Shinakai ni Okeru Chugoku no Shuchou to Kokusaihou Jou no Hyouka(An Assessment from a Perspective of International Law of Chinaʼs Claims in the South China Sea),” 78
Hogaku (Jurisprudence), 2014, pp. 238-246; Yasuyuki Yoshida, “Minami Sinakai ni Okeru Chugoku noʻKyudansenʼ to Kokusaiho- Rekishiteki Suiiki to Rekishiteki Kenri wo Chusin ni (Chinaʼ s ʻNine-DashLineʼ in the South China Sea and International Law- Historic Waters and Historic Rights),” Kaikanko
Senryaku Kenkyu (Japan Maritime Self-Defense Force Command and Staff College Review), June 2015(5-1), p. 15 et seq; Shigeki Sakamoto, “Kyudansen no Hoteki Chii-Rekishiteki Suiiki to Rekishiteki
Kenri no Kanten Kara (Legal Status of the Nine-Dash Line - form a Perspective of Historic Waters andHistoric Rights),” in Yoshiro Matsui et al eds., 21 Seiki no Kokusaiho to Kaiyoho no Kadai (Agendas ofInternational Law and the Law of the Sea in the 21stCentury), Toshindo, 2016, pp. 170-182. Concerning

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Atsuko Kanehara

tribunalʼs jurisdiction in this case, but it will do so from the perspective of validity of internationallaw.
In the following sections, in a different order from the Award, after clarifying the terminologyof the Award regarding a historic right, the logic of the Award will be considered with respect
to the nature of Chinaʼs historic right, the relationship between Chinaʼs historic rights and
UNCLOS, exceptions from the compulsory procedures entailing biding decisions under Article
298, Paragraph 1 (a) (i) of UNCLOS. Some critical analysis will follow from the perspective of thispaper.

2. The Nature of China’s Historic Rights(1) The Finding by the Tribunal
In order to decide the question of whether Chinese declaration of 200620 pursuant to Article 298,
Paragraph 1 (a) (i) of UNCLOS21 made this dispute an exception to the jurisdiction of the tribunal,
the tribunal considered the legal nature of the rights that China claims in the South China Sea(207-214).22 It examined the terms, such as historic rights, historic titles, and historic waters ininterpreting Article 298, Paragraph 1 (a) (i) (217-225).
According to the tribunal, “[t]he term ʻhistoric rightsʼ is general in nature and can describe
any rights that a State may possess that would not normally arise under the general internationallaw, absent particular historical circumstances. Historic rights may include sovereignty, but may
equally include more limited rights, such as fishing rights or rights of access, that fall well shortof a claim of sovereignty” (225). “Historic title” is historic sovereignty to land or maritime areas,and “historic waters” is simply a term for historic title over maritime areas, typically internal
waters or territorial sea (225).23 Depending on this terminology set by the tribunal, in this paper
hereinafter “Chinaʼs historic right(s)” will be used to describe the right(s) that China claims in
the South China Sea.
Regarding Chinaʼs historic rights, the tribunal found as follows. Chinaʼs historic right is “formedin the long historical course” (206), and a right arising independently from UNCLOS (207, 211).
The rights that China actually claims are a right for petroleum exploration (208) and a right forfishing regulation (210). In the sea areas where China exercises these rights, it respects freedom
the requirements for historic waters, many scholars mention the 1962 Report of the Secretariat of theGeneral Assembly of the United Nations (1962 Report), Juridical Regime of Historic Waters, Including
Historic Bays, A/ CN.4/ 143, Yearbook of International Law Commission, 1962, Vol. II, pp. 1-26.
20

Chinaʼs declaration of 2006 is available at:
http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China
afterratification.

21

Under Article 298, Paragraph 1 (a) (i), when signing, ratifying or acceding to UNCLOS, a State may
declare that it does not accept any one or more of the procedures provided for in Section 2 of Part XV
with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 relating tosea boundary delimitations, or those involving historic bays or titles.

22

The tribunal found that the Philippinesʼ Submissions No. 1 and No. 2 would involve consideration ofissues that did not possess an exclusively preliminary character, and it reserved consideration of its
jurisdiction to rule on them until the merits stage (413).

23

While the tribunal said that “historic waters” is simply a term for historic title over maritime areas, it
referred to the judgment in the Tunisia/ Libya Continental Shelf case. It reads:
It seems clear that the matter continues to be governed by general international law which does notprovide a single “régime” for “historic waters” or “historic bays,” but only for a particular régime foreach of the concrete, recognized cases of “historic waters” or “historic bays.”
Continental Shelf (Tunisia/ Libya Arab Jamahiya), Judgment, ICJ Reports 1982, para. 100.
The tribunal defined a historic bay as simply a bay in which a State claims historic waters.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputeof navigation and overflight, and, thus, China does not consider that these sea areas form partof its territorial sea or internal waters (214). In sum, China claims rights to living and non-living
resources within the nine-dash line (214).24
Since the issue of Article 298 of UNCLOS will be succinctly dealt with later, it suffices here
to confirm that the tribunal found its jurisdiction to entertain this dispute irrespective of Chinaʼsdeclaration pursuant to Article 298, Paragraph 1 (a) (i). This is because China ʼs claim does
not mean the historic title under the provision but a historic right, and thus, the tribunal has
jurisdiction over the dispute concerning the historic right (229).
Next, this characterization by the tribunal of Chinaʼs historic rights will be examined inconsidering scholarly writings25 with respect to historic rights and historic waters.

(2) Examination① The tribunal concluded that Chinaʼs historic rights were those to specific resources andactivities. Nonetheless, considering that the nine-dash line indicates the scope of sea areas overwhich the historic rights are exercised, implication of “zone” is not necessarily excluded from24

According to Gao and Jia, China can assert historic rights within the nine-dash line in respect of fishing,navigation, and exploration and exploitation of resources. Gao and Jia, op. cit., supra n. 3, pp. 109110. Similar understanding as that of the Award is seen in Zouʼs position in that he interprets the ninedash line in relation to continental shelf and exclusive economic zone under UNCLOS. He recognizes
two types of historic rights: one is exclusive with full sovereignty, such as historic waters and historicbays; and the other is nonexclusive without full sovereignty, such as historic fishing rights in the highseas. Based upon this distinction, he maintains that Chinaʼs claim does not fit in either of the two types,
and that it is understood by referring to the exclusive economic zone and continental shelf regimes.
According to him, Chinaʼs claim involves not full sovereignty but sovereign rights and jurisdiction
in respect to marine scientific research, installation of artificial islands, and protection of the marine
environment. He calls such rights “historic rights with tempered sovereignty.” Zou Keyuan, “Historic
Rights in International Law and in Chinaʼs Practice,” Ocean Development & International Law, Vol. 32,
2001, p.160. He seems to understand Chinaʼs claim as implying “sea areas” rather than as historic rights
to specific activities or resources, such as fishing, navigation, exploration and exploitation of resources.
Even if the nine-dash line is understood as claims of historic rights to specific activities and resources,that understanding may not substantially exclude understanding that the nine-dash line reflects claims
to sea areas. This is because even the former regards the nine-dash line as depicting the limits of waters
to which the exercises of the historic rights reach. Also Zou considers Chinaʼs claim as unique in thesense that it is not only a right to fisheries on the high seas, but in fact it goes beyond this. To him it
seems that China has made precedent in international law relating to the concept of historic rights.
Zou Keyuan, op. cit., supra n. 10, pp. 15-16. In sum, Zouʼs position is interpreted that as the nine-dashline reflects Chinaʼs claims to exclusive economic zone and continental shelf, and even beyond theirdefinitions of UNCLOS, China claims its exclusive economic zone and continental shelf. By interpretingin this way, Symmonsʼ evaluation of Zouʼs position is understandable in that according to Symmons,Zou assumes “historic exclusive economic zone” and “historic continental shelf.” Clive R. Symmons,“Rights and Jurisdiction over Resources and Obligations of Coastal States: Validity of Historic Rights
Claims,” Tran Truong Thuy and Le Thuy Trang eds., Power, Law, and Maritime Order in the South China
Sea, Lexington Books, 2015, pp. 148-150. As another work that understands the nine-dash line as claims
to historic exclusive zone and historic continental shelf, Jiao Yongke, “There Exists No Question ofRedelimiting Boundaries in the Southern Sea,” 17 Ocean Development & Management, Vol. 17, 2000, p.
52, cited by Florian Dupuy and Pierre-Marie Dupuy, “A Legal Analysis of Chinaʼ s Historic Rights Claimin the South China Sea,” American Journal of International Law, Vol. 107, 2013, p. 135.

25

Symmons who examines historic rights in detail, writes that while vagueness in terminology still
remains, historic rights in their broadest sense, have been defined as “rights possessed by a State overmaritime areas that would not normally accrue to it under the general rules of international law, buthave been acquired by that State ʻthrough a process of historical consolidationʼ and also are ʻacquiredvis-ὰ-vis one or more States.”Symmons, op. cit., supra n. 24, p. 147.

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Atsuko Kanehara

this tribunalʼ s conclusion.26 In this sense, the two interpretations are not exclusive to each other:first, interpretation of the nine-dash line as indicating claims to rights to specific activities andresources; and second, interpretation of the nine-dash line as indicating claims over zones. The
difference between the two, if any, is that of weight placed on whether activities and resources, orzones.27
China itself has not officially made clear the meaning of the nine-dash line (179),28 and thereason is said to be Chinaʼ s strategy29. According to scholars, especially Chinese ones, there
may be four types of interpretation of the nine-dash line.30 The nine-dash line signifies, first,
the line determining that islands within it belongs to China, 31 second, the line determining
the zones over which historic rights are exercised (according to this interpretation, maritime
features, such as islands and shoals within the line are Chinese territories, and sea areas except
for internal waters become Chinese EEZ and continental shelf),32 third, the line is demarcating
historic waters (according to this interpretation, China has historic rights to islands, shoals andsurrounding sea areas of them, and all the sea areas within the line are Chinese historic waters,
and therefore, passage and overflight of foreign vessels and aircraft are prohibited without

26

On the other hand, relating to historic waters, as confirmed above, the Award defined it as simply a termfor historic title over maritime areas, typically internal waters or territorial sea. In this regard, scholarly
writings accord.

27

One of the reasons why Zou, in his work referred to at supra n. 24, understands Chinaʼs claims to rights
as implicating claims over zones is that he attaches importance to Article 2 of 1999 Law on Marine
Environmental Protection (revised) that reads:[T] he Law shall apply to internal waters, territorial sea, contiguous zone, exclusive economic zone,
continental shelf of the Peopleʼ s Republic of China and other sea areas under the jurisdiction of thePeopleʼs Republic of China (emphasis added)”Zou, op. cit., supra n. 24 (“Historic Rights…”), p. 160.

28

Mostly scholarly writings accord in such evaluation.

29

Some scholars describe this Chinese attitude as strategic ambiguity. Beckman, op. cit., supra n. 16, p.
156. See also, Nishimoto, op. cit., supra n. 19, p. 228, footnote 16.

30

Guoqiang Li, “Chugokku to Shuhen Kokka no Kaijo Kokkyo Mondai (Border Issues between China
and Neighboring States),” Kyoukai Kenkyu (Border Studies), Vol. 1, 2010, pp. 51-52. As anothercategorization of Chinese scholarly writings regarding the meaning of the nine-dash line, see, Thang
and Thao, op. cit., supra n. 8, p. 50, note 11.

31

Recent Chinese scholars, in general, do not limit the meaning of the nine-dash line to determiningthat islands within it belong to China, and they consider the nine-dash line both from the aspect ofChinaʼs claims over islands and other land areas, and from the aspect of Chinaʼs claims over sea areas.
Most of the works cited at supra n. 19 take such a method of examination as explained here. See also,
Dupuy and Dupuy, op. cit., supra n. 24, p. 126 et seq. There are also scholarly writings that place weighton Chinaʼs sovereignty over lands, such as, Gao and Jia, op. cit., supra n. 3. As for an examination of
the nine-dash line from a perspective of Chinaʼ s sovereignty over islands, see, Jianming Shen, “TheChinaʼs Sovereignty over the South China Sea Islands: A Historical Perspective,” Chinese Journal ofInternational Law, Vol. 1, 2002, p. 94 et seq.; by the same author, “International Rules and Historical
Supporting Chinaʼs Title to the South China Sea Islands,” Hastings International and Comparative Law
Review, Vol. 21, 1997, p. 1 et seq.

32

As in the arbitral procedure for the merits of the South China Sea dispute, territorial sovereignty overislands was not included in the subjects of the dispute, the limits of Chinese EEZs and continental
shelf in the South China Sea cannot be determined based upon the Award. When the nine-dash line
demarcates Chinese EEZs and continental shelf beyond 200 nautical miles, the second interpretationof the nine-dash line would mean that China claims EEZs and continental shelf based upon an inherent
ground as the nine-dash line. Such EEZs and continental shelf are “historic EEZs” and “historiccontinental shelf” explained at supra n. 24.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

Chinaʼ s permission),33 and fourth, the line sets traditional Chinese borders. Regarding sea areas
including seabed and subsoil, the understanding of the Award of Chinaʼs historic rights is close
to the second interpretation. However, while according to the second interpretation the nine-dashline determines the zones over which Chinaʼs historic rights are exercised, and the zones become
Chinese EEZs or continental shelf, it remains unclear whether the EEZs and continental shelf are
not beyond the 200 nautical mile limit set by UNCLOS. The Award did not interpret the nine-dashline from a zonal perspective.
② Concerning the distinction between historic waters and historic rights, scholarly writings, ingeneral, make distinction between the two. They find in the former sovereignty over sea areas,
and in the latter rights short of sovereignty relating to specific activities and resources (sovereign
rights).34 In this regard, the Award seems to have taken the same position. In addition, it issaid that while claims over historic waters are claims of rights toward international society, orrights erga omnes, claims to historic rights are vis-à-vis the one or plural related States.35 Suchunderstanding of historic rights is also reflected in an opinion that historic rights may be disputed
solely between the related States, so that the disputes may be resolved by negotiation between
those States with defining historic rights on a case-by-case basis.36 A conclusion cannot be derived
from scholarly writings as to whether there is difference in requirements for historic waters andthose for historic rights.37 Furthermore, it is opined that while most often adjacent States may
claim historic waters, it is not the case for historic rights.38
The tribunal did not examine all of these issues. This may be because once it could decide
the issue of whether its jurisdiction was denied or not by Chinese declaration of 2006 pursuant to33

In Policy Guidelines for the South China Sea (SCS Guidelines) adopted on the 13th of April, 1993,
the Republic of China demonstrated that the sea areas within the nine-dash line are historic waters.
However, on the 15th of December, 2005, it terminated the SCS Guidelines, and recently it does nottake such a position as claiming historic waters. Miahcel Sheng-Ti Gau, “The U-Shaped Line and a
Categorization of Ocean Disputes in the South China Sea,” Ocean Development & International Law,
Vol. 43, p. 58.

34

For instance, Ted L. McDorman, “The Law of the Sea Convention and the U-Shaped Line: Some
Comments,” in Shicun Wu and Keyuan Zou eds., Arbitration Concerning the South China Sea-Philippines
versus China, Routledge, 2016, p. 150; by the same author, “Rights and Jurisdiction over Resources in
the South China Sea: UNCLOS and the ʻNine-Dash Line,ʼ” in S. Jayakumar et al. eds., The South China
Sea Disputes and Law of the Sea, NUS Centre for International Law, Edward Elgar, 2014, p. 150; Zou
and Liu, op. cit., supra n. 12, p. 134. As a similar opinion, see, Symmons, op. cit., supra n. 19, p. 6. In his
recent work, Symmons divides historic titles into historic waters and historic rights, and explains thedifference between the two by the elements mentioned here. Symmons, op. cit., supra n. 24, p. 146.

35

See the works cited at the footnote above (34). Sakamoto emphasizes that the denial by the Award of
Chinaʼs historic rights is not a denial of their opposability solely in relation to the Philippines, but adenial of their effect erga omens. Sakamoto, op. cit., supra n. 19, p. 200.

36

Shabtai Rosenne, “Historic Waters in the Third United Nations Conference on the Law of the Sea,” inTerry D. Gill & Wybo P. Heere eds., Reflections on Principles and Practice of International Law: Essays in
Honour of Leo J. Bouchez, Martinus Nijhoff, 2000, p. 203.

37

The tribunal, in considering the relationship between Chinaʼs historic rights and UNCLOS, posed
three questions, as explained later. The second question is whether China had held historic rights in
the South China Sea prior to the entry into force of UNCLOS. When addressing it, the tribunal, based
upon the 1962 Report, stated that historic waters are merely one form of historic rights, and that theprocess is the same for claims to rights short of sovereignty (265). Although reservation is needed that
this part of the Award was in relation to the 1962 Report, the tribunal might not assume difference inrequirements for historic waters and those for historic rights.

38

Among the works cited at supran. 34, for instance, McDorman (The Law of the Sea Convention…), p.
150; McDorman (Rights and Jurisdiction…), pp. 150-151. See also, Symmons, op. cit., supra n. 24, pp.
146-147.

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Atsuko Kanehara

Article 298, Paragraph 1 (a) (i) of UNCLOS, it did not need to proceed to further examinations.39③ The tribunal declared that Chinaʼ s historic rights are independent from UNCLOS. However,as confirmed at the beginning of this article, the formulation of this dispute by the tribunal was asfollows:[T] he Tribunal is faced with the question of whether the Convention (UNCLOS, by theauthor) allows the preser vation of rights to resources which are at variance with theConvention and established anterior to its entry into force. To answer this, it is necessary
to examine the relationship between the Convention and other possible sources of rights
under international law (emphasis added) (235).
Accordingly, it is clear that the tribunal did not seek for any grounds for Chinaʼs historic rightsthat exist outside of law. For this very reason, the tribunal needed to proceed to the examinationof the relationship between rights that are independent from UNCLOS and that should be based
upon “other possible sources of rights under international law,” on the one hand, and rights under
UNCLOS, on the other hand (or, the relationship between UNCLOS and “other possible sourcesof ”international law).40
In the next section, the finding by the Award will be analyzed regarding the relationshipbetween UNCLOS and Chinaʼs historic rights.

3. The Relationship between UNCLOS and China’s Historic Rights(1) The Finding by the Tribunal
The tribunal posed three questions to be dealt with in addressing the issue of the relationshipbetween UNCLOS and Chinaʼs historic rights (234). First, does UNCLOS “and in particular its
rules for the exclusive economic zone and continental shelf, allow for the preservation of rights
to living and non-living resources that are at variance with the provisions” of UNCLOS? Second,prior to the entry into force of UNCLOS, did China have historic rights and jurisdiction overliving and non-living resources in the waters of the South China Sea beyond the limits of theterritorial sea? Third, has China in the years since the conclusion of UNCLOS established rights
and jurisdiction over living and non-living resources in the waters of the South China Sea that are
at variance with the provisions of UNCLOS? From the perspective of this paper, focus is placed on
the first question.41
Regarding the first question, the line of argument of the Award is as follows. The tribunal
declared that the applicable principle and rules are, first, Article 311 which deals with therelationship between UNCLOS and other sources, second, Article 293, Paragraph 1 of UNCLOS
which provides for applicable law of the tribunal, and third, the principle reflected in Article
30, Paragraphs 2 and 3 of the Vienna Convention on the Law of Treaties - “the later treaty will
39

However, as mentioned later, this did not hamper the tribunal from denying Chinaʼs historic rights, sothat the denial by it may contribute to resolution of disputes in the South China Sea. As such a position,see, Naoki Iwatsuki, “Minami Shinakai Chusaisaiban to Kokusai Hunso no Heiwateki Kaiketsu (The
Arbitration of the South China Sea Dispute and Peaceful Solution of International Disputes),” Hogaku
Kyositsu (Legal Learning), No. 435, 2016, p. 52.

40

The meaning of “independence” is related to “comprehensiveness” of UNCLOS that the tribunal
emphasized. It will be discussed later.

41

With respect to the second question, the tribunal determined that the rights, which China has
exercised, are a fishing right and a right of navigation, so that it has exercised the freedom of the highseas. Accordingly, these exercises of the rights did not produce historic rights (263-272). As for thethird question, the tribunal stated that in order to amend conventions unilateral acts are not sufficient,and that regarding Chinaʼs claim to historic rights there are not acquiescence by other States and thepassage of sufficient time, either (273-275).

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

prevail to the extent of any incompatibility” - as general international law which regulates theinteraction between bodies of law (235-237). Article 311 of UNCLOS is a provision addressing
the relationship between UNCLOS, on the other hand, and other conventions and international
agreements, on the other hand. According to the tribunal, “this provision applies equally to theinteraction of UNCLOS with other norms of international law, such as historic rights, that do nottake the form of agreement” (235). “Other norms of international law, such as historic rights” isunderstood to mean international norms relating to historic rights.
Such an interpretation of Article 311 by the tribunal may raise a doubt. There is an opinion
that historic rights are those under general international law, and actually Chinese statements
and Chinese scholars have voiced such an opinion. If so, the relationship between UNCLOS
and historic rights means that between UNCLOS and general international law that prescribes
historic rights. General international law takes a form of customar y international law. The
relationship between UNCLOS and customary international law is not necessarily the same asthat between UNCLOS and other conventions and international agreements. While Article 311
deals with the relationship between UNCLOS and other conventions and international agreement,
it does not expressly address the relationship between UNCLOS and customary international law.
Nonetheless, the tribunal interpreted that Article 311applies to the relationship between UNCLOS
and customar y international law, namely, “other norms of international law, such as historicrights.”Considering that there is no priority between conventions and customary international law
as sources of international law, the tribunalʼs interpretation of Article 311 may have a reason inthat it did not make any distinction between “other conventions and international agreement,”on the one hand, and customary international law, on the other hand. However, here it is needed
to clearly recognize the effect that such tribunalʼs interpretation of Article 311 may have. Some
Chinese scholars argue that historic rights have been established under general international law(this is understood as customary international law), so that these rights cannot be denied solely
for the reason of UNCLOS.42 It is not clear on what understanding of the relationship between
UNCLOS and customary international law such an argument is based. Such an argument mightplace customar y international law that gives grounds for historic rights and UNCLOS on an
equal status. In that case, such an argument would lose any room to be approved by the tribunalʼsinterpretation of Article 311. This is because, according to its interpretation of Article 311,
customary international law (that forms a basis for historic rights) may have its effect solely as
far as it satisfies the requirements set by Article 311.
The tribunal may apply international law under Article 293, unless it is not at variance with
UNCLOS. The tribunal could have determined the customar y international law that gives aground for historic rights, and assessed Chinaʼs historic rights by applying the customar yinternational law. After these considerations it could have decided the relationship between
UNCLOS and China ʼ s historic rights. Fur thermore, the tribunal could have reflected thehistoric rights under the customary international law in interpreting and applying the relevant
provision of UNCLOS, such as provisions that prescribe the EEZ regime. In place of examining
these possibilities, the tribunal intended to decide the effect of the customary international law
on which historic rights are based, by applying Article 311. It can be questioned whether theparty States to UNCLOS have agreed to such interpretation of Article 311. Even if the tribunalʼsinterpretation is approved, it can be maintained solely between the party States to UNCLOS. In
that case, the effect of the customary international law that forms a basis for historic rights may
be determined by such interpretation of Article 311.
In addition, according to the tribunal ʼ s opinion, Article 311 and Article 293, Paragraph42

For instance, Zou and Liu, op. cit., supra n. 12, p. 139.

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143“mirror the general rule of international law concerning the interaction of different bodies oflaw, which provide that the intent of the parties to a convention will control its relationship withother instruments (237).”44 It is undeniably a general rule of international law that the intent
of the parties to a convention decides the interaction of the convention with other bodies oflaw. However, it requires an examination whether whole the contents of Article 311 have been
established as general international law. Unless it is approved, the rules contained in Article 311
concerning the interaction of UNCLOS with other bodies of law would apply solely to UNCLOS
and solely between party States to UNCLOS.45
From the provisions and rules that the tribunal referred to, it derived four propositions
concerning the relationship between UNCLOS and other bodies of law. Concerning historicrights to living and non-living resources, first, when UNCLOS explicitly provides for them, andthey take a form of an agreement that Article 311 prescribes, they shall remain unaffected.46
Second, while UNCLOS does not expressly permit or preser ve a prior agreement, rule ofcustomary international law, or historic rights, such prior norms will not be incompatible with
UNCLOS where their operation does not conflict with any provisions of UNCLOS or to theextent that interpretation indicates that UNCLOS intended the prior agreement, rules, or rights
to continue in operation. Third, where rights and obligations arising independently of UNCLOS
are not incompatible with its provisions, Article 311, Paragraph 2 provides that their operation
will remain unaffected. Fourth, where independent47 rights and obligations have arisen prior to
the entry into force of UNCLOS and are incompatible with its provisions, the principles set out
in Article 30, Paragraph 3 of the Vienna Convention on the Law of Treaties and Article 29348 of
UNCLOS provide that UNCLOS will prevail over the earlier, incompatible rights and obligations(238).
Assuming these propositions, after the tribunal found that no articles of UNCLOS expressly
provide the continued existence of historic rights to the living and non-living resources (239),
it moved onto an examination of whether China ʼs historic rights should be considered notincompatible with UNCLOS. Its examination covered the relevant provisions of UNCLOS (240245), the drafting process of UNCLOS and establishment of the EEZ regime (248-254), and43

It is not plainly explicable whether the reference to Article 293, Paragraph 1 is needed here.
That provision reads:
A court or tribunal having jurisdiction under this section shall apply this Convention and other rulesof international law not incompatible with this Convention.
It might be said that the reference to this provision by the tribunal here is for the reason that thisprovision forms a ground for the supremacy of UNCLOS over other bodies of law.

44

The tribunal referred to Article 30, Paragraph 2 and Paragraph 3 of the Vienna Convention on the Law
of Treaties.

45

The relation between historic rights or the rules that prescribe them, on the one hand, and the rules
contained in UNCLOS, on the other hand, becomes complicated in cases in which non-party States are
involved. As for an examination of the relationship between treaties and historic rights as exceptions tothem, see, the 1962 Report, paras. 73-78.

46

As the cases that fall under the first proposition, the tribunal referred to Article 10 and Article 15 of
UNCLOS. Article 10, Paragraph 6 provides that the rules concerning bays do not apply to historic bays.
Article 15 provides that the median line method concerning territorial sea delimitation does not apply tocases in which historic titles are involved.

47

The “independence” mentioned in the third and the fourth propositions may be understood as that fromUNCLOS. Such remarks by the tribunal of the “independence” are based upon its finding that Chinaʼshistoric rights are independent from UNCLOS, as confirmed above.

48

The reference to Article 293 here also raises a doubt concerning its necessity and appropriateness.
However, it might be understood that the tribunal referred to the provision as a ground for supremacy
of UNCLOS over other international law rules.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

precedents (257-260). Then, it reached the conclusion that Chinaʼs claim to historic rights to living
and non-living resources within the nine-dash line is incompatible with UNCLOS (261). It is noteasily understood which propositions among the second, third, and fourth propositions, referred
to above was applied by the tribunal. Nonetheless, the critical point is that by this conclusion thetribunal definitely denied the arguments of China and Chinese scholars that Chinaʼ s historicrights, having established prior to UNCLOS, cannot be denied by it.49
Here, the above mentioned point needs to be recalled that the conclusion of the tribunal isbased upon the application of Article 311 of UNCLOS, and that whether whole the contents of
the article reflect general international law requires further examination. Unless this point isaffirmed, the tribunalʼ s conclusion may be applied solely between party States to UNCLOS,
when party States approve the tribunalʼs interpretation of Article 311. When a non-party State
to UNCLOS claims historic rights and denies the regulation of UNCLOS over the claims, party
States to UNCLOS could not necessarily oppose to such an argument by applying the tribunalʼsconclusion.

(2) The “Comprehensiveness” of UNCLOS① When the tribunal decided that China ʼ s historic rights are at variance with UNCLOS
considering its relevant provisions and its drafting process, it emphasized above all the“comprehensiveness” of UNCLOS (231, 245, 261). From the perspective of this paper, namely thatof validity of international law, the “comprehensiveness” requires most detailed scrutiny.
As to the meaning of comprehensiveness, the tribunal seems to imply the following two
meanings. First, UNCLOS covers all the sea areas including seabed and subsoil, and it regulates
all the uses of the sea. It may be described as the material or spatial coverage of UNCLOS, andthe comprehensiveness is the word to express this meaning (231).50 Second, rather than otherinternational law rules, it is UNCLOS that establishes the ocean regimes and that regulates theuses of the sea (245)51. This meaning, although it is somehow close to exhasustiveness, may bedescribed as exclusiveness.52 These two meanings are not exclusive to each other. Nonetheless,it may not be denied to derive the two meanings from the tribunalʼ s ruling. The first, thecomprehensiveness of UNCLOS, means denial of any vacuums of UNCLOS, as it regulates all the49

As a typical example of it, see, Li, op. cit., supra n. 30, p. 52. The Chinese statement on the 12 of May,
2016, referred to by the tribunal (200), stated that:[T]he dotted line came into existence much earlier than UNCLOS, which does not cover all aspectsof the law of the sea, and that the tribunal does not have jurisdiction over Chinaʼs dotted line.
It is interpreted that the nine-dash line (and Chinaʼs historic rights being claimed within the line) may
not be, at least legally, assessed by UNCLOS. Gao and Jia take a position that Chinaʼs historic rights
are prior to UNCLOS and that they continue their operation even under UNCLOS. Gao and Jia, op. cit.,
supra n. 13, p. 123.

50

Looking at the Preamble of UNCLOS, the tribunal stated that UNCLOS intends to settle “all issues”
relating to the law of the sea and that it emphasizes the desirability of establishing “a legal order forthe sea (245).”However, Paragraph 8 of the Preamble of UNCLOS, assumes existence of issues that
UNCLOS does not addresses, and provides that “matters not regulated by this Convention continue
to be governed by the rules and principles of general international law.” The tribunal, for an unknown
reason, did not mention it.

51

This is understanding based upon the tribunalʼs reference to Article 309 of UNCLOS that prohibits
reservations and exceptions to UNCLOS. Nevertheless, as the tribunal also referred to the Preamble of
UNCLOS, as confirmed supra note 50, it is not determinable whether it placed weight on either of thetwo meanings, or it intended to mean both.

52

McDorman uses the term of exhaustiveness, and he denies the exhaustiveness of UNCLOS regarding
the rights that States claim regarding sea areas and natural resources. McDorman, op. cit., supra n. 34(Rights and Jurisdiction…), p. 153.

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regimes of the sea and all the uses of the sea.53 In comparison, the second, the exclusiveness of
UNCLOS, gives priority to it over other international rules, if there is any, which provide for theocean regimes and regulates all the uses of the sea.
Looking at the tribunalʼ s logic, it did not accept such an argument that Chinaʼs relevant rights
in the South China Sea are protected by international law including UNCLOS,54 as far as thoserights are to living and non-living sources of EEZ of the Philippines. This is because UNCLOS
is comprehensive in terms of determination of the EEZ and continental shelf regimes, and,thus, UNCLOS supersedes any rights that are prior to UNCLOS and at variance with it. While
the tribunal used the term comprehensiveness, it may be interpreted not only that UNCLOS
regulates all the sea areas and all the uses of the sea, but also that UNCLOS supersedes any
rights and obligations with grounds apart from UNCLOS and being not inconformity with it. If
this is the case, the “comprehensiveness” mentioned by the tribunal is understood as containing
the two meanings that are explained here.
With respect to the logical consequences of the “ comprehensiveness, ” the terms usedby the tribunal, such as “ independence ” and “ exception ” are so closely related to the“comprehensiveness” that they require some consideration. As confirmed before, the tribunal
regarded Chinaʼ s historic rights as independent from UNCLOS.55 Its meaning should be clarified
in relation to the comprehensiveness of UNCLOS. On the one hand, if UNCLOS is comprehensivein that it regulates all the sea areas and all the uses of the sea, the sea areas and the uses of thesea that are independent from UNCLOS are not regulated by it, so that they would not come into
existence under UNCLOS. On the other hand, if UNCLOS is exclusive in that solely UNCLOS
establishes the ocean regimes and regulates the uses of the sea excluding other international law
rules regarding them, if any, the “independence” means that other international regulation on theocean regimes and the uses of the sea would be excluded and surpassed by UNCLOS.56② Regarding the term “exception” used by the tribunal, the following observation is important.
The tribunal posed the three questions concerning the relationship between UNCLOS andChinaʼs historic rights. In addressing the second question, namely that of whether China had
acquired the historic rights prior to the entry into force of UNCLOS, the tribunal stated that
historic rights are exceptional rights and that they come into existence by acquiescence by otherStates in the historical process (268). The “exception” also relates to the comprehensiveness of
UNCLOS. However, the tribunal mentioned “exceptional rights” in relation to the international
order of the sea that was prior to UNCLOS. It did not so in relation to UNCLOS. If historic rights
form exceptions in relation to UNCLOS, and UNCLOS are both comprehensive and exclusive
53

Sakamoto, referring to Paragraph 8 of the Preamble of UNCLOS that provides as reproduced at
supra n. 50, argues there are no vacuums under international law. It does not mean that UNCLOS
is comprehensive to deny vacuums, but that the issues remaining unregulated by UNCLOS will
be regulated by general international law. Therefore, his position is to deny “vacuums” of generalinternational law. Shigeki Sakamoto, “Historic Waters and Rights Revisited: UNCLOS and Beyond?,”in
The Rule of Law in the Sea of Asia-Navigational Chart for Peace and Stability (not for sale), Paper
submitted for the International Symposium of the Law of the Sea hosted by the Ministry of Foreign
Affairs of Japan, 12-13 February, 2015, p. 67.

54

The tribunal referred to the Chinese statement of the 30thof October, 2015, which maintains that
Chinaʼs sovereignty and relevant rights are protected under international law including UNCLOS (187).
As Chinese similar statement of 2011, see, supra n. 6.

55

See, Section 2 (1) of this paper.

56

These logical consequences are applied, at least in assuming cases between party States of UNCLOS.
In cases between non-party States or between a non-party State and a party State, they may conclude
different agreements from UNCLOS that regulated the sea areas and uses of the sea. Such agreements
as establishing special laws are not excluded by UNCLOS between non-party States, and between a nonparty State and a party State.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputein the meanings as explained here, as a logical consequence, neither exceptional ocean regimes
nor exceptional uses of the sea can exist or they should be excluded, unless UNCLOS expressly
admits the exceptions. The tribunal did not discuss this point. It only confirmed that UNCLOS
does not contain any explicit provisions that permit historic rights to living and non-living
resources. While the tribunal did not provide further examination, even if the second question
was answered affirmatively, there would be no room for historic rights, as being exceptionalrights, to be preserved in relation to UNCLOS that is comprehensive and exclusive. If this is thecase, the significance would be doubtful in posing the second question.
It is possible to understand that the tribunal defined the requirements for historic rights
as the historical process of creation and no protests from other States. Then, is it customaryinternational law or general international law that provides for those requirements for historicrights to exist? The tribunal gave no mention concerning this point. The statement of the tribunal
that historic rights are exceptional rights set forth a presupposition based upon which it reached
the conclusion that as Chinaʼs rights in the South China Sea were derived from the principle ofthe freedom of the high seas, the exercise of rights permitted by international law did not create
historic rights, as being exceptions to the law.57
In the argument concerning historic waters, there has been a division of opinions as towhether or not they set exceptions to a general rule. The logics applied in the argument bear
critical importance from the perspective of a way for international law to ensure its regulation
over claims to historic rights. In relation to “historic waters,” as a general rule mainly the rulesof maritime delimitation and demarcation of maritime zones are assumed. In comparison, in
relation to “historic rights” it is likely that rules concerning the regimes of territorial sea, EEZ,
and continental shelf are presupposed as general rules. Despite this difference, as far as focus
is placed upon the logics themselves, it is not unreasonable to consider that the logics in theargument of “historic waters” are expected to be also applied in the argument of “historic rights.”
With bearing this in mind, next, succinct examination will be given of the argument
concerning historic waters, in order to evaluate the logic applied by the tribunal in the Award in
dealing with historic rights.

(3) Definitions of Exceptions and a General Rule as Logics Applied in Order for
Securing International Regulation

58① As an analysis of the legal regime of historic waters, the 1962 Report provides an important
59
starting point. It demonstrates denial of the logic that regards historic waters as exceptions to a
general rule of international law. It reads:[T] he widely held opinion that the régime of “historic waters” constitutes an exception to
the general rule of international law regarding the delimitation of the maritime domain of
the State is debatable. The realistic view would seem to be not to relate “historic waters”
57

The tribunal found that historical navigation and fishing as well as trade in the South China Sea
represented the freedom of the high seas, so that they did not create historic rights. According to it,
when China ratified UNCLOS which established the EEZ regime, China relinquished the freedom of
the high seas (269-271).

58

As a detailed analysis of the1962 Report, see, Ko Nakamura, “(Rekishiteki Suiiki no Seido no Hotenka ni
Tsuite-Rekishiteki Wan wo Hukumu Rekishiteki Suiiki no Horitsu Seido・Kokusai Rengo no Jimukyoku
ni Yotte Junbi Sareta Kenkyu Kiroku ni Kanren Shite-(The Codification of the Regime of Historic
Waters-The Legal Regime of Historic Waters Including Historic Bays and Research and Report Provided
by The Secretariat of the Unites Nations-),” Hogaku Kenkyu (Journal of Law, Politics, and Sociology), Vol.
38, No. 4, 1965, p. 30 et seq.

59

As for the background for this research, see, the 1962 Report, pp. 1-6; Rosenne, op. cit., supra n. 36, pp.
193-195.

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to such rules as an exception or not an exception, but consider the title to “historic waters”
independently, on its own merits. As a consequence one should avoid, in discussing
the theory of “historic waters,” to base any proposed principles or rules on the alleged
exceptional character of such waters.60
The opposition to the logic that defines historic waters as exceptions to a general rule isbased upon the understanding that as general rules on bays and other rules concerning maritime
delimitation have not been established, so that historic waters cannot form exceptions to generalrules that do not exist.61
In contrast to this, there is a position that the legal regime of historic waters is defined as
exceptions to a general rule.62 Critical importance exists in the reasons for adopting such alogic. A scholarly writing explains that such a logic is needed for claims to historic waters, ora preexisting law to sur vive a changing law.63 Another scholar points out the impossibility of
establishing a general rule without permitting exceptions to it,64 and in this sense, historic waters
fulfil the function of a safety valve (une soupage de sûreté).65 In sum, the object of these positions
is to give somehow elasticity, which is called a safety valve, to international law in its regulation inthat it permits preservation of some effects of preexisting laws and historic waters. By admitting
exceptions as a safety valve, when facing different and incoherent international practice it would
become possible to derive international rules. It is true that by admitting exceptions, generalrules may be hampered from effectively regulating. To avoid such a risk, at least to a certain
degree, a possible way is to ensure dispute settlement procedures, particularly judicial or arbitralprocedures that legally define exceptions in interpreting and applying the general rule concerned.
Here it may suffice to point out that possibility. Looking at UNCLOS, Article 10, Paragraph6 provides that the rule of bays is not applied to historic bays.66 In this regard, by permitting
exceptions a general rule concerning bays could be established. In the same manner, Article
15 recognizes that a historic title as well as special circumstances set exceptions to which thegeneral rule concerning territorial sea delimitation is not applied.67 In the same line of argument,
the tribunal in the Award confirmed that Article 12 of the 1958 Convention on Territorial Sea andContiguous Zone and Article 15 of UNCLOS expressly provide for historic titles (221, 223).68② When the logics proposed by the 1962 Report and in the scholarly writings concerning “historic60

The 1962 Report, para. 184.

61

As for such positions and the Norwegian claims in the Fishery Case, see, ibid., paras.49-53.

62

The 1962 Report introduces the position that defines the legal regime of historic waters as an exception,and the British claims in the Fishery Case, paras. 42-48.

63

Andrea Gioia, “Historic Titles,” in Rüdiger Wolflum ed., The Max Planck Encyclopedia of Public
International Law, Oxford University Press, Vol. IV, p. 817, para. 11.

64

Gilbert Gidel, Droit international public de la mer, Vol. III, Topos Verlag, 1934, p. 651.

65

When both the general rule and its exceptions are established as customary international law rules, it is
not explicable why the former has priority over the latter in the sense that the latter forms an exception
to the former. The 1962 Report, para. 54.

66

The Virginia Commentar y interprets that Ar ticle 10, Paragraph 6 provides for historic bays as“exceptions” to the general rule of bays. Sataya N. Nandan and Shabtai Rosenne, eds., United Nations
Convention on the Law of the Sea 1982 - A Commentary-, Vol. II, Martinus Nijhoff Publishers, 1993,
Article 10, 10. 1, 10.5 (e).

67

Ibid., Article 15, 15. 1, 15. 12 (a).

68Here the tribunal did not refer to Article 10, Paragraph 6, while it did in para. 238 of the Award. The
reason for that is not clear. It referred to the mention of the 1962 Report of the Fisher y Case as aprecedent which reads:
ʻHistoric watersʼ are usually meant waters which are treated as internal waters but which would nothave that character were it not for the existence of an historic title (para. 220 of the Award).

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

waters” are applied to “historic rights,” there will be the two logics: first, historic rights are
exceptions to general rules; and second, they do not form exceptions. The difference between
the two is mainly resulted from the different judgment concerning the possibility to set forth theassumed general rules. In other words, the both logics are the same in respecting concrete andindividual circumstances that introduce claims to historic rights. While the first logic admits suchweight on the concrete and individual circumstances as forming exceptions to general rules,
the second logic admits such weight on them as denying general rules. In addition to the twologics, in presupposing an existence of general rules, in contrast to the first logic, the third logic
can be proposed, which assumes a general rule that regulates historic rights with concrete andindividual circumstances without admitting them as exceptions to the rule. In the Award, since
UNCLOS, as a general rule, is presupposed, the contrast between the first and the third logics issignificant rather than the contrast between the first and the second logics.
Regarding the third logic, although it is the case relating to historic waters, the logic appliedby the International Court of Justice (ICJ) in the Fishery Case is remarkable.69 It adopted thelogic that defined the Norwegian straight baseline method as one application of a general rule,
not as an exception to it. The United Kingdom maintained that there was a 10 nautical mile ruleconcerning a closing line of a bay, and that exceptions to it may be permitted on historic grounds(130. For this case, the numbers indicate pages in the judgment).70 ICJ denied existence of sucha general rule.71 It determined that Nor wegian straight baseline method is not an exception
to general international law, but one application of it to a specific case (131). In reaching thisconclusion, regarding the general international law, ICJ defined three considerations:72 first, thedrawing of baselines not departing to any appreciable extent from the general direction of thecoast; second, the more or less close relationship existing between certain sea areas and the land
formations which divide or surround them; and third, certain economic interests peculiar to aregion, the reality and importance of which are clearly evidences by a long usage (133).73 The
three considerations may be understood as setting forth the requirements for the legality of theNorwegian unilateral measure.
In reality, ICJ determined not the legality but the opposability of the Nor wegian straightbaseline method in relation solely to the UK.74 The opposability in relation to the UK is different
69

Fisheries Case (United Kingdom v. Norway), Judgment of December 18th, 1951, ICJ Reports 1951, p.
116.

70

While the UK adopted the logic that historic waters form exceptions to a general rule, Norway allegedthat Norwegian straight baseline method is one application of general international law to a special case.
As for detailed analyses of the positions of the two parties, see, the 1962 Report, paras. 46-53; Nakamura,op. cit., supra n. 58, pp. 39-41.

71

In this regard, ICJ stated (130) as reproduced at supra n. 68.

72

While here ICJ used the term “considerations,” at page 129 of the judgment, it did the term “principle”
in describing almost the same contents. It states that:[T]he principle that the belt of territorial waters must follow the general direction of the coast makes
it possible to fix certain criteria valid for any delimitation of the territorial sea (emphasis added).
Considering the part of the judgment, the three “considerations” may be expressed as “requirements”
for legal or valid baselines under general international law. In this regard, Okuwaki, as seen at infra n.
75, interpreted the three “considerations” as “requirements” in Japanese.

73

These three considerations are reflected in Article 4 of the 1958Convention on Territorial Sea andContiguous Zone, and maintained in Article 7of UNCLOS.

74

ICJ examined whether Norway coherently adopted the straight baseline method, and whether there
were protests by other States (136-139). Then, it found that the actual Norwegian straight baselines
were not diverted from the general direction of the coast, and that even there were basepoints thatwere diverted from the general direction of the coast, it was due to consideration of traditional rights
of fishing, being reserved to its inhabitants. ICJ also admitted considerations of such traditional rights

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from the legality erga omnes. Although legality and opposability need to be examined in detail asto the Fishery Case, here it suffices to point out the issue. Before determining the opposability,
ICJ declared the two important presuppositions that have been frequently cited: first, the actof delimitation is necessarily a unilateral act; and second, the validity of the delimitation withregard to other States depends upon international law (131).75 The conclusion that the Norwegianstraight baseline method is one application of general international law to a specific case wasderived when ICJ faced the conflict of two logics: first, the Norwegian straight baseline method
forms exception to a general rule; and second, it is application of a general rule to a specificcase.76Thus, ICJ encompassed Norwegian straight baseline method, which was based upon special
circumstances including historical one, within the legal sphere of the general rule by defining
the method as one application of the rule.77In addition, the general rule was declared as one
that admitted consideration of concrete and individual circumstances of the case concerned, in
examining the three conditions that were set forth by ICJ.
of fishing, when they were founded on the vital needs of the population and attested by very ancientand peaceful usage (142). It cannot be easily understood the reason why ICJ did not find the legality of
the Norwegian straight baselines solely based upon the three considerations that it set forth, and thereason why the coherency of Norwegian straight baseline method and no protest from other States
were needed to be considered in addition to the examination of the three considerations in order todetermine the opposability of the Norwegian straight baseline method in relation to the UK. In thisregard, Eto points out that although the line of argument of ICJ is not easy to be traced, its weightis clearly shifted to the consideration of attitudes of other States from application of the standards ofgeneral international law. Junichi Eto, “Ippoteki Koi no Kokusaiho jo no Koka - Gyogyou Jiken (The
Effect of Unilateral Acts under International Law- The Fishery Case),” in Yamamoto et al eds., Kokusaiho
Hanrei Hyakusen (100 Cases in International Law), Yuhikaku, 2001, p. 13. ICJ did not find the legality of
Norwegian straight baseline method but it did its opposability in relation to the UK. Difference between
legality and opposability may form one reason for the not understandable line of argument of ICJ. In
order for finding legality of Norwegian straight baseline method, three considerations may be enough.
In contrast, in order for finding opposability of it, further examination of the two factors, which ICJ
examined, may be needed. However, as ICJ did not determine legality of it, any conclusion could not bederived that the three “consideration” are “requirements” for legality of it. Thus, as explained at supra n.
72, in this paper, the three considerations are not regarded as “requirements” for the legality of straights
baselines.
75

Okuwaki focusses upon the fact that ICJ found the opposability of Norwegian straight baseline method
as a unilateral act, when the three “considerations” (Okuwaki translated “considerations” into “yoken”
which means “requirements” in Japanese) are affirmatively determined. According to him, in thiscontext the opposability is used as a concept that resides within the world of legal rules not as a concept
to evaluate the effect of unilateral domestic measures in case of a vacuum of law, which means nonexistence of a legal rule relating to a closing line of a bay. Therefore, the opposability is admitted as far
as the unilateral measures remain within the discretion that international law allows. Naoya Okuwaki,“Katei to Shite no Kokusaiho - Jisshoshugi Kokusiho Ron ni Okeru Ho no Henka to Jikan no seigyo(International Law as a Process - Changes of Law and Restriction on Law by Time in the Positivist
International Law Theory-),” 22 Sekaiho Nenpo (Yearbook of World Law), 2003, p. 75.

76

Opposing the first logic alleged by the UK, Norway stated that:
The Norwegian Government does not rely upon history to justify exceptional rights, to claim areasof sea which the general law would deny; it invokes history, together with other factors, to justify theway in which it applies the general law (133).

77

A different evaluation of the judgment places weight on the finding of ICJ that considering the publicity,
together with other international factors, the straight baseline method became solid by the coherent
and long practice. That practice proves that other States did not regard Norwegian straight baseline
method as being at variance with international law. Tomoyuki Yuyama, “Rekishiteki Suiiki ni Kansuru
Beikoku SAiko Saibansho no Hanrei (Jurisprudence of the Supreme Court of the US Relating toHistoric Waters),” 333・334 Ritsumeikan Hogaku (Ritsumeikan Law Review), 2010, pp. 1682-1683.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

The logic of ICJ is evaluated as follows. The logic itself ensures international regulation
over claims to rights based upon historic facts and other circumstances (in Nor wayʼs case,they are claims to sovereignty over internal waters and territorial sea demarcated by drawing
straight baselines), in that it keeps such claims to rights being under international regulation
as one application of a general rule of international law. In this very sense, the logic maintains
international regulation and validity of international law over such claims to rights. If it is the case,however, reservation should be immediately added that as a result of international regulation overthose claims to rights, the contents of the rights will not necessarily become clear and objective
enough. When the three conditions set forth by ICJ are “requirements” for legality of straightbaselines under international law, the contents cannot be said to be objective enough, and thejudgment as to whether they are satisfied may not be easy.
③ When, in accordance with the first logic, historic rights are regarded as “exceptions” to a
general rule, a general rule maintains to be a law even in facing opposing phenomena to it. In
this sense, to admit exceptions would make a general rule elastic so that it would not stop beinga law, by allegations of phenomena contrar y to it. When, in accordance with the third logic,
considerations of historic rights are regarded as application of a general rule, in this very sense,
in other words, by allowing considerations of concrete and individual circumstances, it would bearelasticity, too. Either of the two logics has the common nature to provide a general rule, a law,with elasticity.78 The first logic and the third logics may be substantially distinguished from eachother, only if in the case of the third logic a general rule precisely provides in detail for concrete
and individual circumstances to be considered, so that legal assessment of those circumstances ispossible as a consequence of “interpreta- tion”or “application” of a general rule. In order to keepsuch substantial difference between the two logics, in addition to appropriate drafting of a generalrule to precisely prescribe concrete and individual circumstances, to secure the “interpretation”
and “application” of a general rule, as a legal function, in evaluating in legal terms of thosecircumstances is critically important, through proper dispute settlement procedures, particularly
judicial or arbitral procedures that interpret and apply a general rule.
Different from these logics, it may be opined that the requirement for historic waters are
determined by considering concrete and individual circumstances on a case-by-case basis. Sucha position may be seen in the judgment of the Tunisia/ Libya Continental Shelf Case.79 ICJ stated
that:[I] t seems clear that the matter (of historic waters or historic bays, added by the author)
continues to be governed by general international law which does not provide for a single“régime” for “historic waters” or “historic bays,” but only for a particular régime for each of
the concrete, recognized cases of “historic waters” or “historic bays” (italics original) (100).
In addition, there is a scholarly writing that does not admit establishment of generalinternational law relating to historic waters.80 Such a position is led by a judgement that due to78

In this regard, regarding Tunisian claims to historic rights in the Tunisia/ Libya Continental Shelf Case,one scholar pointed out that they were not claims to historic rights and claims of exceptions to a generalrule, either. According to this scholar, Tunisia alleged factors to be considered in drawing straightbaselines. Such an idea is similar to that of this paper in admitting that both exceptions to a generalrule, on the one hand, and drafting of a general rule to allow considerations of concrete and individual
circumstances, on the other hands, are common as a way to respect individual and concrete claims
to rights. Andrea Gioia, “Tunisiaʼs Claims over Adjacent Seas and the Doctrine of ʻHistoric Rights,ʼ”Syracuse Journal of International Law, vol. 11, 1984, p. 339. The same idea is found in the examination of
Tunisian claims by posing a question: whether they were claims of historic waters, or claims of straightbaselines, ibid., p. 345 et seq.

79

Op. cit., supra n. 23, p. 18.

80

Rosenne, op cit., supra n. 36, p. 203. If this position denies that title to historic waters and the definition

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too much variety of claims to historic waters to derive common elements, although there is anattempt to set forth the requirements for historic waters,81 it is not possible to precisely define
them,82 or it is even inappropriate to do that. Such suggestion of the inappropriateness may leadto a conclusion that historic rights are not matters for legal regulation, and that they should beconsidered as extra legal issues. Actually, after the 1962 Report was released, ILC did not workon the issue, and in 1967 many members of ILC raised a doubt about the timing of ILCʼs intensive
works on this issue, because it provoked political claims.83 Such a doubt, too, reflects the idea thatthe issue of historic waters do not fall within a sphere of legal regulation.
Whatever the legal status of historic waters may have under international law, it is really truethat the issue strongly requires consideration of concrete and individual circumstances of eachcase. Doubtlessly, it holds true with historic rights.
Thus far, the possible logics have been analyzed, which are applied to the issue of historicwaters, and historic rights, too. Based upon this analysis, evaluation can be given on the logic
which the tribunal adopted in the Award.

(4) T he Logic of the Tribunal in the Award with Respect to Regulation by
UNCLOS over Historic Rights① The tribunal found that Chinaʼ s historic rights are independent from UNCLOS, and that
UNCLOS is comprehensive. Independence from UNCLOS signifies no ground for China ʼ shistoric rights under UNCLOS. Therefore, as far as comprehensiveness of UNCLOS ispresupposed, the conclusion that rights under UNCLOS superseded Chinaʼ s historic rights (andthat Chinaʼ s historic rights are not preserved as exceptions to UNCLOS) is said to be logically
self-evident. The tribunal regarded Chinaʼ s historic rights as exceptions in relation to the legal
ocean order prior to UNCLOS. However, it did not mention possible status of Chinaʼs historicrights as exceptions to UNCLOS. Irrespective of that, as a logical conclusion derived fromthe comprehensiveness of UNCLOS, exceptions to it would not be admitted, unless UNCLOS

are regulated by customar y international law and general international law, historic waters would
go beyond the sphere of international law regulation. In this regard, attention should be paid to theanalysis conducted in the 1962 Report. It introduces two positions regarding historic waters: first, they
form exceptions to a general rule, and second, they are not be defined as exceptions to a general rule.
The logic of the second position is that as there has not established a general rule relating to bays,
exceptions to a general rule is unthinkable. The point is that this position denies a general rule relating
to historic waters, but it does not mean denial of legal regulation itself over historic waters. The 1962
Report, paras. 49-50.
81

The 1962 Report proposes three requirements for historic waters: first, the authority exercised over thearea by the State claiming it is as “historic waters”; second, the continuity of such exercise of authority;and third, the attitude of foreign Stets. The 1962 Report, para. 185. In Japan, in the Tekisada case inwhich the legal status of Setonaikai was disputed, both Wakayama District Court and Osaka High
Court declared two requirements for historic waters: first, the claims to internal waters have become
continuous and historical practice; and second, inexistence of disputes over the claims. Judgment of 15
July of 1974, Wakayama District Court, Hanrei Jiho (Law Cases Report), No. 844, p. 105; Judgment of 19
November 1976, Osaka High Court, Hanrei Jiho (Law Cases Reports), No. 844, p. 102.

82

Scovazzi seems to take such a position. Tullio Scovazzi, “Le régime des eaux historiques,” in D. Pharand& U. Leanza eds., The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal
Regime, Martinus Nijhoff, 1993, p. 326 et seq.

83

Report of the Commission on the Work of Its 19thSession, A/ 6709/ Rev. 1 and Rev. 1/ Corr.1, para. 45.
In a preliminary work for the 1962 Report, opinions were divided into two possibilities: first, inductive
method to examine State practice; and second presupposing a general rule relating to historic waters.
The second position was based upon a worry about extravagant claims to be found in State practice, andin that sense, such a political consideration might provoke a doubt about verification of State practice.
The 1962 Report, para. 62; Nakamura, op. cit., supra n. 58, p. 32.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

expressly provides for exceptions.
Referring to the first, second, and third logics explained above, the tribunalʼs logic is different
from the first logic, in that it did not admit exceptions to a general rule, namely UNCLOS.
Although by express provisions they would be admitted, the tribunal ʼ s logic rather placedemphasis on the comprehensiveness of UNCLOS. Is it proper to deny any grounds for historicrights under UNCLOS, except for in cases of Article 10, Paragraph 6 (historic bays), Article 15(historic titles), and Article 298, Paragraph 1 (a) (i) (historic bays, historic titles)?84 In this regard,
doubt is raised concerning the propriety, because the tribunal denied Chinaʼs historic rights notin terms of the opposability in relation to the Philippines, but in terms of the effect erga omens.85
The tribunalʼs logic is also different from the second logic that denies existence of a general rule,as the tribunal presupposes UNCLOS.
② As the final choice, did the tribunal adopt the third logic so that it considered Chinaʼs historicrights in interpreting and applying the provisions of UNCLOS? Did it secure international
regulation by UNCLOS over historic rights by providing UNCLOS with such elasticity as
considerations of historic rights with concrete and individual circumstances?
With regard to territorial sea, the tribunal admitted artisanal, traditional fishing of thePhilippines in territorial seas (805 et seq.). This is because Article 2, Paragraph 3 of UNCLOS
contains an obligation on States to exercise their sovereignty subject to “ other r ules ofinternational law” that include the rules on the treatment of a vested right, such as traditional
fishing rights. Some provision among those regarding the EEZ regime is interpreted as indicating
considerations of historic rights. Depending on such a provision, without hampering thecomprehensiveness of UNCLOS that the tribunal emphasized, historic rights would have room tobe preserved.
Concerning the provisions on the EEZ regime, the tribunal examined Article 56, Paragraph 1,
Article 58, and Article 62. Article 62, Paragraph 3 may be interpreted as reflecting considerationsof historic rights to fishing. Scholarly writings point out that this provision indirectly admits
historic rights to fishing.86 In contrast, irrespective of reference to the provision (804), thetribunal interpreted the provision as follows. It does not intend to preserve historic fishing rights,
while it does not exclude them being based upon domestic laws of coastal States and international
agreements. As a conclusion, the tribunal found that by establishing the EEZ and continental
shelf regimes UNCLOS superseded historic rights to living and non-living resources.87 It is voicedthat as UNCLOS “overwrote” historic fishing rights by Article 62, Paragraph 3, there would be noroom for historic fishing rights beyond that.88
The tribunalʼs interpretation of UNCLOS is not easily understood in that while it admitted
historic fishing rights (vested rights) within territorial sea under Article 2, Paragraph 3, in EEZ,
despite the existence of Article 62, Paragraph 3, it denied an intention of UNCLOS to preserve
historic fishing rights. Particularly considering that although coastal States have full sovereignty
over territorial seas, they have solely sovereign rights with limitation on its purpose and function
over EEZs, the tribunalʼ s conclusion is not easy to understand. One possible explanation for
the tribunalʼ s position would be different understandings by the tribunal of the territorial sea
84

Article 46 (b) is also related to historic rights.

85

Sakamoto emphasizes this point. Sakamoto, op. cit. supra n. 35, p. 200.

86

McDorman, op. cit., supran. 34 (Rights and Jurisdiction…), p. 157; McDorman, op. cit., supra n. 34 (The
Law of the Sea Convention…), p. 153; Symmons, op. cit., supra n. 24, p. 148.

87

Submission No. 10 of the Philippines referred to Article 62, Paragraph 3 as a provision addressing
a traditional fishing right, in alleging the preser vation of such a right as the Philippines enjoys at
Scarborough Shoal (782-783).

88

Nishimoto, op. cit., supra n. 19, pp. 243-244.

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Atsuko Kanehara

and EEZ regimes. On the one hand, the EEZ regime bears the sui generis nature (Article 55)
that UNCLOS itself regulates, and UNCLOS does not permit diversion from it unless there
are domestic laws and international agreements to provide for historic fishing rights. On theother hand, with regard to territorial seas, UNCLOS intends to respect restriction imposed onsovereignty by “other rules of international law.”
Even if Article 62, Paragraph 3 is interpreted as providing for consideration of historic rights,
a clear conclusion is difficult to derive regarding the degree to which Chinaʼs historic rights arepreserved. This is because the article stops at providing that:“[I]n giving access to other States …the coastal State shall take into account … the needto minimize economic dislocation in States whose nationals have habitually fished in thezone.”In the end, the tribunal did not see such significance in Article 62, Paragraph 3 as examined
here. There is no idea to be seen in the tribunal to provide UNCLOS, which is comprehensive,with such elasticity as considering Chinaʼs historic rights in “interpreting” and “applying” thearticle.89 As a matter of logic the tribunal might be said to be coherent in that without seeing
the significance of Article 62, Paragraph 3, based upon the comprehensiveness of UNCLOS it
regarded Chinaʼs historic rights as having been superseded by it. Nonetheless, incorporation of
considerations of historic rights into legal function of interpretation and application of Article 62,
Paragraph 3 could be possible without hampering the comprehensiveness of UNCLOS. By doing
so, the tribunal could have substantially given legal assessment to Chinaʼs claim to historic rights.
③ Furthermore, the tribunal seems to apply the same logic regarding the relationship between
historic rights and the EEZ regime to that between historic rights and the continental shelf
regime. It did not expressly make any distinction between the two regimes.90 It found that Chinaʼshistoric rights are superseded in the sea areas (and seabed) to which the EEZ regime or thecontinental shelf regime applies under UNCLOS (247). The tendency of disregarding distinction
between the EEZ and the continental shelf regimes is seen also in the Award on the Merits of the
Arctic Sunrise Arbitration.91 In this case, the arbitral tribunal seemed to equate the EEZ and thecontinental shelf regimes in relation to non-living resources.92 Such an equation is also opined bysome scholars.93 In the South China Sea dispute, the tribunal found that Chinaʼs historic rights
89

The tribunal interpreted the arbitral award on the Eritrea v. Yemen arbitration that the preservation of
the traditional fishing practices was a result of the application of the applicable laws in that case (259,
803).

90

Regarding continental shelf, the tribunal mentioned Article 77 and Article 81 (244).

91

The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits of 14 August 2015,
https://pcacases.com/web/sendAttach/1438, for instance, paras. 278, 330.

92

Atsuko Kanehara, “Haitateki Keizaisuiiki no Engankoku no Kenri-Arctic Sunrise go Jiken wo Sozai to
Shite - (The Rights of Coastal States of Exclusive Economic Zones- An Analysis of the Arctic Sunrise
Arbitration),” Jochi Hogaku Ronshu (Sophia Law Review), Vol. 64, No. 3・4, 2017, pp. 245-246, 254, 269271.

93

Irrespective of the fact that difference is pointed out between the EEZ and the continental shelf
regimes regarding living resources, with respect to non-living resources, the two regimes are said tooverlap each other. D. D. Rothwell and T. Stephens, The International Law of the Sea, the 2nd ed., Hart
Publishing, Oxford and Portland, Oregon, 2016, p. 125. In comparison, although it was somehow in adifferent context, so-called “grey areas” also have some implications on the relationship between thetwo regimes. The “grey areas” were determined by the International Tribunal of the Law of the Sea andthe arbitral tribunal on the Bay of Bengal Case. They mean that seabed of one Stateʼ s EEZ may become
extended continental shelf of the other State. Admission of grey areas may imply that the EEZ regime
applies solely to water areas, and it is the continental shelf regime that applies to seabed both within
and beyond 200 nautical miles. In the following judgment and award grey areas were found. Dispute
Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputeare at variance with both the EEZ and the Continental shelf regimes in relation to living and nonliving resources.
With respect to continental shelf, some scholars doubt acquisition of historic rights overcontinental shelf.94 The tribunal in the Award mentioned Article 77 of UNCLOS, and it equatedthe EEZ and the continental shelf regimes in terms of living and non-living resources. It did notdeclare any special meaning of the article relating to the continental shelf regime.95 The right of acoastal State over continental shelf, as declared by ICJ in the North Continental Shelf Case,96 “ipsofacto” and “ab initio” belongs to it, and occupation and other measures are not needed for it toestablish its right over continental shelf.97 This nature is frequently described as “inherency.” Asa logical consequence, it is argued that the rights to continental shelf is not based upon UNCLOS
and the 1958 Convention on Continental Shelf, but based upon customary international law. 98
Even it is argued that initially the basis of the rights to continental shelf can be traced to theprinciple “land dominates sea,”99 so that they are established by this very fundamental principle
without being based upon treaties and customary international law.100
Bengal (Bangladesh/ Myanmar), Judgment of 14 March 2012, https://www.itlos.org/fileadmin/itlos/
documents/cases/ case_no_16/C16_Judgment_14_03_2012_rev.pdf, paras. 463-476; In the Matter of the
Bay of Bengal Maritime Boundary Arbitration between The Peopleʼs Republic of Bangladesh and The
Republic of India, Award, 7 July 2014, https://pcacases.com/web/sendAttach/383, paras. 498-508. It is
pointed out that admission of grey areas connotes supremacy of rights to (extended) continental shelfover rights to seabed of EEZs. T. L. McDorman, “The Continental Shelf,” in D. D. Rothwell et al eds.,
The Oxford Handbook of the Law of the Sea, Oxford University Press, 2015, p. 200.
94

Nishimoto, op. cit., supra n. 19, p. 245.

95

The rights of coastal States to EEZs are based upon the sui generis regime established under
Article 55 of UNCLOS. In contrast, the rights of coastal Stats to continental shelves bear inherency inaccordance with Article 77. In this sense, the two kinds of rights may be distinguished.

96

North Sea Continental Shelf Cases (Federal Republic of Germany/ Denmark; Federal Republic of
Germany/ Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, p. 3.

97

Based upon this point it is said that historic rights cannot be claimed against rights of coastal States tocontinental shelves. McDorman, op. cit., supra n. 34 (Rights and Jurisdiction…), p. 160: McDorman, op.
cit., supra n. 34 (The Law of the Sea Convention…), pp. 152-153.

98

In the Odeko Nihon Case, it was ruled that although Japan was not a party to the 1958 convention
on Continental Shelf, it may enjoy the rights based upon customary international law relating to thecontinental shelf regime. Judgment of 22 April 1982, Tokyo District Court, Gyosei Jiken Saiban Rei Shu(Administrative Cases Reports), Vol. 33, No. 4, p. 868.

99

In the Fishery Case, ICJ stated that: [ i] t is the land which confers upon the coastal State a right to thewaters off its coast (133). Similar remarks are found in the judgment of the North Sea Continental Shelf
Case (30), op. cit., supra n. 96, and the judgment in the Bay of Bengal Case (409), op. cit., supra n. 93.

100

As a different opinion concerning the “inherency” of the rights to continental shelf, it is voiced that
One of the aims behind the propagation of the doctrine was to annul any priority of claim in timeor nature over the rights of the coastal State, so that, for example the doctrines of historic rights or
acquisitive prescription would not be available.
Daniel Patrick OʼConnell, edited by I. A. Shearer, The International Law of the Sea, Vol. I, Clarendon
Press, 1982, p. 482; see also, ibid., vol. II, p. 713; Gioia, op. cit., supra n. 78, pp.
371-372. Regarding the territorial sea regime, OʼConnel stated that:
There is no precedent for a successful claim to continued fishing rights in waters newly converted
to territorial waters, so that the claim made in this case of adjacent fishery zone had the appearanceof a novel institution - in the absence of treaty rights - which could be rationalized only on the basisof practice. However, the practice has favoured phasing-out rather than maintenance of rights, andphasing-out presupposes a concession rather than a recognition of a right, so that, it is difficult
to regard the practice as more than diplomatic expediency, although it has been widespread,and therefore politically influential. While most traditional fishing rights are opposable to states
extending their fishery limits…only when derived from treaty, it is possible for them to derive from30
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Atsuko Kanehara

Such arguments would provoke an issue of validity of international law, or maintenance ofinternational regulation over the rights to continental shelf. Here, it suffices to point out thefact that concerning the rights to continental shelf, too, there would be an issue of validity ofinternational law,101 because the tribunal in the Award did not touch upon the issue. As a matterof logic, it was enough for the tribunal to emphasize the comprehensiveness of UNCLOS and tofind the contradiction between Chinaʼs historic rights and the rights to continental shelf under
UNCLOS, in order to deny Chinaʼs historic rights. In the Award there was no need to address
the issue of the inherency of the rights to continental shelf. Apart from this, there would be
an argument concerning the relationship between historic rights and the rights to continental
shelf that are “inherent.”102 Here it is also meaningful to note that there is an opinion that while
in relation to the rights to EEZ historic rights may be considered, in relation to the rights tocontinental shelf, because of the “inherent” nature, no historic rights may be claimed.103

4. Concluding Remarks(1) A Doubt Concerning the Logic of the Tribunal in the Award
This paper examined the Award from the perspective of the logic for international regulation bya domestic legal source in the coastal State, although in this case it is questionable whether thecoastal State may not revoke them without breach of international law.
Ibid., Vol. I, p. 538.
101

The issue of validity of international law or maintenance of international regulation may be raised inrelation to outer continental shelf. It would be questioned on what basis non-party States to UNCLOS
enjoy the rights to outer continental shelf, and if they do, whether they should comply the procedures
including those relating to the Commission of Limits of Continental Shelf that was established by
UNCLOS. As an opinion that emphasizes that the rights of a coastal State to outer continental shelf exist“ipso facto” and “ab initio”as being declared by ICJ in the judgment of the North Sea Continental Shelf
Case, see, Ted L. McDorman, “The International Legal Framework and the States Activities Regarding
the Continental Shelf beyond 200-n. Miles in and Adjacent to the East and South China Sea,” in Jon M.
Van Dyke et al. eds., Governing Ocean Resources-New Challenges and Emerging Regimes, A Tribute toJudge Choon-Ho Park, Martinus Nijhoff Publishes, 2013, p. 169. Nonetheless, he cited an opinion thata coastal Stateʼs “inherent”right to continental shelf under Article 77, Paragraph 3 of UNCLOS does
not remove from the coastal State the burden of demonstrating its entitlement. Ted L. McDorman,“The Outer Continental Shelf in the Arctic Ocean: Legal Framework and Recent Developments,” inDavor Vidas ed., Law, Technology and Science for Oceans in Globalization - IUU Fishing, Oil Pollution,
Bioprospecting, Outer Continental Shelf, Martinus Nijhoff Publishers, 2010, pp. 504-506. See also,
Atsuko Kanehara “200 Kairi wo Koeru Tairikudana no Genkai Settei wo Meguru Itikosatsu (SomeConsiderations Concerning the Limitation of Outer Continental Shelf),” Murase and Eto eds., Kaiyo
Kyokai Kakutei no Kokusaiho (International Law of Maritime Delimitation), Toshindo, 2008, pp. 109116.

102

In his Separate Opinion in the Tunisia/ Libya Continental Shelf Case, Aréchaga stated that:“[A] new legal concept, consisting in the notion introduced in 1958 that continental shelf rights are
inherent or ʻab initioʼ cannot by itself have the effect of abolishing or denying acquired and existingrights. That would be contrary to elementary legal notions and to basic principles of intertemporal
law.”
Separate Opinion of Judge Jiménez Aréchaga, op. cit., supra n. 23, para. 82, cited by Gioia, op. cit., supra n.
78, p. 372.
It was not indicated by him what the elementary notions and basic principles of intertemporal law
are. If they were the concept and/ or principle of non-retroactivity, according to them, law could notdeny or change acquired and existing rights. As an observation on this point, see,
Gioia, op. cit., supra n. 78, p. 372.

103

See, supra n. 97.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

UNCLOS and its validity over Chinaʼs claims to historic rights.
The tribunal, on the one hand, did not adopt the logic that admits exceptions to a general rule,setting aside the cases in which provisions expressly permit exceptions. On the other hand, it
did not follow the logic to leave room for considerations of concrete and individual rights, suchas historic rights in interpreting and applying a general rule. These two logics provide a law withelasticity, in that the former assumes a general rule which admits exceptions to it, and in thatthe latter assumes a general rule which permits considerations of rights based upon concrete
and individual circumstances. In sum, the tribunal denied to give elasticity to UNCLOS in either
way. It is doubtful whether such interpretation of UNCLOS is the best one in order to ensure theregulation and the validity of UNCLOS when it faces claims to historic rights that strongly requireconsiderations of concrete and individual circumstances. The tribunalʼs logic that emphasizes thecomprehensiveness of UNCLOS may have a risk of making UNCLOS inflexible so that validityof UNCLOS as a law and regulation by UNCLOS over various phenomena would fall in danger.
Neither the tribunal maintains validity of UNCLOS as a law that would be maintained if it wereinterpreted as permitting exceptions in case of phenomena being at variance with it, unless it
explicitly admits exceptions. Nor the tribunal keeps the regulation of UNCLOS over historicrights based upon concrete and individual circumstances, which would be preserved if it wereinterpreted as giving the room for considerations of those circumstances. In the end, it did not
substantially give legal assessment to Chainʼs claim to historic rights.104
One of the most important rulings of the Award is that the tribunal clearly denied Chinaʼ shistoric rights by emphasizing the comprehensiveness of UNCLOS. However, assessment tobe given is that it was not successful to build logic for UNCLOS and international law to secureincessantly and in a solid manner their validity as laws in facing various phenomena to be
expected to be legally regulated. International law really needs to keep its validity as a law and its
regulation over emerging phenomena and claims to rights based upon pre-existing laws, as well.
Regarding an issue of validity of international law, in addition to the issue of the logic of
how to regulate phenomena, which has been thus far analyzed in this paper, dispute settlement
procedures, particularly judicial or arbitral procedures that interpret and apply laws have a close
relation to it. Thus, in the ending partof this paper, the finding of the Award on Article 298, Paragraph 1 (a)(i) andthe tribunal ʼ s determination of jurisdiction to enter tain the dispute will be succinctly
addressed.

(2) The Finding of the Tribunal in the Award on Article 298, Paragraph 1 (a) (i)of UNCLOS① The tribunal concluded that the dispute concerning Chinaʼs historic rights are not excluded
from its jurisdiction by Chinese declaration of 2006 pursuant to Article 298, Paragraph 1 (a) (i), forthe reason that according to the tribunal, Chinaʼ s historic rights are rights to living and non-living
resources being different from historic titles under the article. Considering the scholarly writings
in relation to historic waters and historic rights that were referred to above,105 it is well grounded
to make distinction between titles to historic waters and rights, short of sovereignty, to particular
activities and resources. Nevertheless, it is not clear whether Article 298, Paragraph 1 (a) (i)was drafted with intention to give the term “title” such a definitely limited meaning as excluding104

As observed above, in Section 3 (1), the Tribunalʼs interpretation of Article 311 of UNCLOS is also
said to prevent it from determining the customary international law that may give grounds for historicrights and providing substantial consideration on Chinaʼs claim to historic rights in accordance with thecustomary international law, if there is any.

105

Section 2 (2).

32Japan Review Vol.2 No.3 Winter 2018

Atsuko Kanehara

a right to particular activities and resources.106 If the tribunal reached this conclusion in thesituations that the interpretation of the term historic titles has not been established yet,107 and that
there is not generally shared view of its meaning,108 the tribunalʼ s position may be understoodas remarkable interpretation in limiting the meaning of the term titles. That means the tribunal
adopted interpretation by which possibility of compulsory dispute settlement procedures entailingbinding force (hereinafter referred to as judicial procedures as far as no misunderstanding would
be expected) increases.109It is not difficult to speculate existence of motivation for jurisdiction of
the tribunal at the background for such interpretation by the tribunal.
② Another point is to be raised, concerning the tribunalʼs interpretation of the term historic
titles. Article 298, Paragraph 1 (a) (i) might not make definite distinction between historic bays
or titles, on the one hand, and historic rights on the other hand. If it is the case, the object of thearticle could be to deny judicial procedures for any claims to “historic” things (claims to historicbays, historic waters and historic rights), and thus, to deny interpretation and application of law
by judicial procedures in relation to any claims to “historic” things.110 In other words, the objectof UNCLOS could be to deny legal regulation over any claims to “historic” things, at least in
the sense that interpretation and application of UNCLOS by judicial procedures are not given
to these things.111 In contrast, if the tribunalʼs interpretation of Article 298, Paragraph 1 (a) (i)purported to limit the meaning of historic bays or titles, in other words to limit exceptions to
judicial procedures, so that it kept “wide” jurisdiction of judicial procedures, such interpretation,
106

The Virginia Commentary does not provide commentaries to the provision. Myron H. Nordquist et
al eds., United Nations Convention on the Law of the Sea 1982 - A Commentary, Vol. V, Article 298.
Accordingly it did not give support to either of interpretations of “titles,” that by the tribunal and other.

107

Donald R. Rothwell. “Conciliation and Article 298 Dispute Resolution Procedures under the Law of the
Sea Convention,” in Shicun Wu and Keyuan Zou eds., Arbitration Concerning the South China Sea Philippines versus China, Routledge, 2016, p. 62.

108

It is pointed out that while under Article 298, Paragraph 1 (a) (i)historic bays have specific meaning,
it does not the case for historic titles, which may have wider meaning than historic titles under Article
15 of UNCLOS. McDorman, op. cit., supra n. 34(Rights and Jurisdiction…), p. 152; McDorman, op.
cit., supra n. 34 (The Law of the Sea Convention…), p. 152; Zou and Liu, op. cit., supra n. 12, p. 144. As
understanding of the terms, historic rights, historic titles, and historic waters, the tribunalʼs terminology
may be a possible one. However, in State practice and scholarly writings these terms are sometimes
used interchangeably, and thus, it is said that they do not have coherent meanings. Concerning theterminology in scholarly writings, see, Li and Li, op. cit., supra n. 3, pp. 291-293. As to the incoherency
in State practice, see, McDorman, op. cit., supra n. 34 (The Law of the Sea Convention…), p. 150.
Symmons opines that under Article 298, Paragraph 1(a) (i) “title” has wider meaning than “bay” toinclude claims to historic rights. Symmons, op. cit., supra n. 24, pp. 146, 155.

109

Zou maintains that China can invoke exclusion of the dispute over the nine-dash line from jurisdictionof judicial procedures in accordance with Article 298, Paragraph 1 (a) (i) and that China has preferredbilateral negotiations to judicial procedures regarding territorial and maritime disputes. Zou Keyuan,“Chinaʼ s U-Shaped Line in the South China Sea Revisited,” Ocean Development & International Law,
Vol. 43, 2012, p. 29. In his other work, Zou defines Chinaʼs historic rights as “tempered sovereignty” thatis different from both an exclusive right and a non-exclusive right to fishing on the high seas. Although
he suggests that China can invoke Article 298, Paragraph 1 (a) (i), it cannot be judged whether thisposition is consistent with his understanding of Chinaʼs historic rights, as he does not provide any
interpretation of “titles” under the provision.

110

Strupp criticizes the Chinese scholarly writings that interpret the object of Article 298, Paragraph 1 (a) (i)as to freeze the situations prior to UNCLOS. Michael Strupp, “Maritime and Insular Claims of the PRC
in the South China Sea under International Law,” Zeitschrift für Chinesisches Recht, Bd. 16, 2004, pp. 8-9.

111

As an analysis of the conciliation under UNCLOS as a possible dispute settlement procedure for
the South China Sea dispute, in case in which the tribunal denies its jurisdiction to entertain it, see,
Rothwell, op. cit., supra n. 106, pp. 55-69.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

although possibly different from the object of UNCLOS, may widen the sphere of legal regulation
by UNCLOS, as far as interpretation and application of UNCLOS by judicial procedures areconcerned.
③ In contrast, the tribunal in the Award took a position that may increase exceptions to judicial
procedures in interpretation of Ar ticle 298, paragraph 1 (a) (i), which means limiting its
jurisdiction.
The tribunal denied (215) the Philippinesʼ argument that historic bays and titles under Article
298, Paragraph 1 (a) (i) should be interpreted in connection with maritime delimitation (191).
However, in the drafting process there existed an opinion that purported to provide for the
disputes concerning maritime delimitation separately from those concerning historic bays, andan opinion that combined the two types of disputes. The latter was adopted.112 Considering this,the fact that the tribunal separated the disputes concerning historic bays or titles from thoseconcerning maritime delimitation, is understood as interpretation that may increase exceptions
to judicial procedures. This is because according to the tribunalʼs interpretation, the disputes
concerning historic bays or titles form exceptions to judicial procedures, which are independent
from exceptions of disputes concerning maritime delimitation.

(3) Relation between Interpretation of Article 62, Paragraph 3 of UNCLOS and
Dispute Settlement Procedures
Relating to regulation by UNCLOS, in this paper a possibility was already suggested to interpret
Article 62, Paragraph 3 as allowing considerations of historic rights. In that case, historic rights
are considered by interpreting and applying the provision of UNCLOS, which enables UNCLOS,a law, to regulate them and to legally appreciate them. In doing that, the tribunal could havesubstantially assessed Chinaʼs historic rights. Such interpretation of Article 62, Paragraph 3, froma logical perspective, would not hamper the comprehensive- ness of UNCLOS that the tribunal
emphasized. A reservation should be immediately added, however, that even if such interpretationof Article 62, Paragraph 3 is adopted, whether UNCLOS can legally assess historic rights withconcrete and individual circumstances would depend on the following factors: first, to what
extent the provision precisely and objectively provides for the contents of concrete and individual
circumstances that are to be considered in its interpretation and application; and second, to what
extent judicial or arbitral procedures are used, which fulfill the function of interpretation andapplication of Article 62, Paragraph 3.
From this perspective, it is noted that Article 297, Paragraph 3 (a) disputes concerning Article
62, Paragraph 3 form exceptions to compulsory judicial or arbitral procedures. Accordingly, even
if the tribunal had adopted such interpretation of Article 62, Paragraph 3 as allowing considerationof historic rights so that historic rights as being within the reach of its regulation are to belegally assessed, it would have been difficult for judicial or arbitral procedures to treat disputes
concerning claims to historic rights. To the extent that Article 297, Paragraph 3 (a) excludes the
disputes concerning claims to historic rights from compulsory judicial and arbitral procedures, sothat application of UNCLOS by these procedures to those disputes are not ensured, UNCLOS issaid to release historic rights from its regulation.

(4) The Finding of the Jurisdiction of the Tribunal in This Case

Finally, it is useful to consider the characteristic of the tribunalʼs finding of its jurisdiction overthis dispute. The tribunal, in the Award on Jurisdiction and Admissibility, defined this dispute as
follows:“[A] dispute concerning the interaction of the Convention (UNCLOS, by the author) with112

The Virginia Commentary, op. cit., supra n. 106, Article 298. 17.

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Atsuko Kanehara

another instrument or body of law, including the question of whether rights arising underanother body of law were or were not preserved by the Convention, is unequivocally a
dispute concerning the interpretation and application of the Convention (emphasis added)”(168).
Here the tribunal included a dispute concerning the interaction of UNCLOS with another
instrument or body of law in the disputes concerning interpretation or application of UNCLOS.
It might be said that by doing this, the tribunal widened the concept of a dispute concerninginterpretation or application of UNCLOS, so that the number of disputes that are subject to thedispute settlement procedures under UNCLOS would increase.113 Although wide possibility is
not guaranteed, to the extent that at least some of these disputes are subject to judicial or arbitralprocedures that interpret and apply UNCLOS, its regulation over them is ensured. In that sense,
the tribunalʼ s definition of a dispute concerning interpretation or application of UNCLOS may
demonstrate its positive attitude toward widening the sphere of regulation by UNCLOS.
This paper focused upon the logic of the tribunal relating to regulation by UNCLOS from aperspective of validity of international law. It raised a doubt to the tribunalʼs logic in the Award.
ICJ in the judgment of the Fishery Case ruled that the Norwegian straight baseline method is one
application of a general rule, and scholarly writings define claims to historic waters as exceptions
to a general rule. The logics found in them are really devices to provide international law withelasticity, in order to maintain legal regulation over phenomena that require considerations ofconcrete and individual circumstances, and in order to keep it as a law even in facing exceptional
phenomena. In sum, these logics are devices in order to keep validity of international law. In
contrast to them the tribunalʼs logic in the Award is problematical.
As examined in the ending part of this article, the goal of ensuring validity of UNCLOS is notachieved solely by devising logic of international regulation. The dispute settlement procedures,
mainly judicial or arbitral procedures that interpret and apply UNCLOS, are closely related tothe achievement of the goal. Furthermore, in the South China Sea dispute, the tribunalʼ s logicof legal regulation is applied solely to the interaction between a body of law concerning historicrights, and the EEZ and the continental shelf regimes. For other issues, UNCLOS would needdifferent logical devices in order to maintain its validity and regulation. The tribunalʼs logic is only
one possibility. Accordingly, how to ensure validity of UNCLOS, validity of international law stillrequires further considerations including examination of dispute settlement procedures.

113

As an analysis of the concept of a dispute concerning interpretation or application of international law,
Kanehara, op. cit., supra n. 18.

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1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands

1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands
Monika Chansoria*
Abstract
Historical narratives, re-interpretations, and/or distortions of history have been criticallylinked to colonial legacies and experiences, with the objective to redraw frontiers andexpand spheres of influence by some states in the name of histor y. In this reference, aseemingly escalating contest in the East China Sea appears to be getting intensely trappedin an unending state – a state, that of perpetuity involving a geo-strategic struggle between
China and Japan revolving, among other issues, around the increasingly strained andstrategically located Senkaku Gunto (Islands). This paper chronicles the histor y of the
Senkaku Islands that can be segmented in sections highlighting the key milestones anddefining the course of their existence. It remains well recorded and archived that the debate
over the status of the Senkaku Islands was not highlighted as much until the decade of
the 1960s. The contest being witnessed today remained relatively dormant till it reacheda turning point in 1969. The contemporar y histor y and ensuing future of the Senkakus
potentially got ʻrediscoveredʼ by China with the discover y of huge deposits of oil andhydrocarbons in the waters surrounding the Islands in 1969 – a detection that prompteda series of vehement statements and counter-statements. The UN Economic Commission
for Asia and the Far East (ECAFE) [thereafter known as the United Nations Economic andSocial Commission for Asia and the Pacific (UNESCAP)] conducted extensive geophysicalsurveys in 1968 and 1969, which suggested the possible existence of the ʻrichest seabed withoil and hydrocarbon depositsʼ in the waters off the Senkaku Islands, to the extent of being
close to the one existing in the Persian Gulf. The strategic and economic consequences of
the 1969 UN discovery provided fresh impetus to the interests, claims, and contest over
the Senkaku Islands. This, in a way, summarizes the vital contemporary geopolitical andgeo-strategic relevance to the Senkaku Islands, which remains embedded in history. Asiaʼshistorical past during the 20th century and its preceding period will likely continue casting ashadow on its future stability.

R

e-visiting Asiaʼs historical and geopolitical narratives often sparks the debate as to hownation-states and its peoples view the impact and fallout of political and strategic legacies
carved out from the dusty pages of history. Asiaʼs past remains enmeshed in disputes,
wars, economics, and politics, thus making an indelible mark on demographics,
borders, political systems, laws and customs, economies, cultural influx, and, identities. 1 The
defining trends of Asiaʼs colonial past continue to cast a shadow upon Asiaʼs future that remains
firmly weaved with it. 2 The Asian experience does not get limited to historical connotations only.
Historical narratives, re-interpretations, and/or distortions of history have been critically linked
to colonial legacies and experiences, with the objective to redraw frontiers and expand spheres of*1

2

Dr. Monika Chansoria is a Tokyo-based Senior Visiting Fellow at The Japan Institute of International
Affairs.
Monika Chansoria, “Influence of Asiaʼs Colonization: Debating the Past, Present, and Future of
Territorial Issues,” Japan Review, vol. 2, no. 1, Summer 2018.
Ibid.

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Monika Chansoria

influence by some states in the name of history. 3 In this reference, a seemingly escalating contest
in the East China Sea is trapped in an unending state. This state is one of perpetuity involving
a geo-strategic struggle between China and Japan revolving, among other issues, around theincreasingly strained and strategically located Senkaku Gunto (Islands). Chinaʼs claims over the
Senkaku Islands, which it refers to as Diaoyu Islands is structured around economic interests,
domestic political compulsions, issues surrounding national identity and allegiance, requirements
of international law and the long-standing baggage of historical grievances.
The histor y of the Senkaku Islands can be segmented in sections that highlight the key
milestones, defining the course of their chronicled journey and existence. Even before theconclusion of the Treaty of Shimonoseki, archival evidence illustrates that Japan exercised
effective control over the Senkaku Islands including the Cabinet Decision in January 1895.
Japan maintains that the Senkaku Islands were terra nullius before 1895 (i.e. islands that nonation has/had claimed sovereignty over) and “showed no trace of having been under the control
of China”. 4 Justifying this terra nullius status, Shimojo Masao states that the Chinese claim
over Senkaku Islands, i.e., it being a part of Taiwan when it was incorporated into Qing China is
contrary to the extent of the Qing China empire, based on documents from that period. 5
The boundaries of Qing China ended at Mount Jilongshan on Taiwan, while the extent of
the Ryukyu Kingdom ended at Gumishan (present-day Kumejima). 6 Therefore, the Islands
in between, including the Senkakus, were placed in “no-manʼs land” [emphasis added]. For
that matter, Japan ʼ s contentions primarily stem out of them being terra nullius as per thecontemporary mode of effective occupation and control.
On Januar y 12, 1895, Japanese Prime Minister, Ito Hirobumi, and other members of the
Cabinet were presented with an attachment paper under the title, “Secret No. 133: Matter
Concerning the Placement of Markers.” Two days later, the proposal was brought before theCabinet in a meeting held on January 14, 1895 and the following resolution was adopted:
The Home Minister has requested a cabinet decision on the following matter: the Islands,
Kuba-shima and Uotsuri-shima, located nor th-westward of Yaeyama Islands under thejurisdiction of Okinawa Prefecture, have heretofore been uninhabited islands. Due to recent
visits to the said islands by individuals attempting to conduct fishing related businesses,
and that such matters require regulation, it is decided that [the islands] be placed under
the jurisdiction of Okinawa Prefecture. Based on this decision, the Okinawa Prefectural
Governorʼs petition should be approved. Since there are no disagreements on the matter, it
shall proceed based on the above decision. 7
With Hirobumiʼs final approval to the cabinet decision on Januar y 21, 1895, Meiji Japan
formally incorporated the Senkaku Islands into the Okinawa Prefecture. Thereafter, since 1895,
3

Ibid.

4

Terra nullius is a term used in international law to describe territory which has never been subject
to the sovereignty of any state, or over which any prior sovereign state has expressly or implicitly
relinquished sovereignty.

5

For more details see, Shimojo Masao, “A Rebuttal to Chinaʼs Fraudulent Claims on the Senkaku
Islands,” [Shimane Prefectural Government publication, Tonomachi, Matsue city] available at https://www.pref.shimane.lg.jp/admin/pref/takeshima/web-takeshima/takeshima04/takeshima04-2/jitsuji-41.
data/SENKAKU-Shimojo.pdf

6

Monika Chansoria, China, Japan, and Senkaku Islands: Conflict in the East China Sea Amid an American
Shadow (Routledge, 2018).

7

Ryukyu Government, “Reference 3: Official Documents,” History of Okinawa Prefecture, vol. 13, 1967, p.
593.

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Japan Review Vol.2 No.3 Winter 2018

1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands

they have been a part of the Okinawan Prefecture. Every successive Japanese government, till
date, consistently regards the Cabinet Decision of January 14, 1895 as the foundation of its legal
basis for asserting and justifying its claims over the Islands. Japan bases its sovereignty claim on
the fact that it incorporated the Islands as terra nullius on January 14, 1895 and has continuously
been occupying the Islands since then. The Government of Japan incorporated the Islands into
Japanese territory by lawful means under the international legal framework, existing at that time.
After the incorporation of the Senkaku Islands into Japanese territory, Japanese civilians settled
on the previously uninhabited islands, having obtained permission from the Japanese government.
Settlers ran businesses such as dried bonito manufacture and feather collecting. At one point,
the Islands counted more than 200 inhabitants, and taxes were collected from the inhabitants.
The Japanese government originally owned all of the Islands until 1932, when the ownershipof Uotsuri, Kitakojima and Minamikojima, was transferred to a private Japanese citizen. 8
After Japanʼs incorporation of the Islands in 1895, a private individual, Koga Tatsushiro and his
descendant used some of the Islands for commercial purposes for several decades until WorldWar II, also providing habitation for workers who were employed in his fish processing plant.

1920 Certificate of Appreciation by Consul of the Republic of China in Nagasaki
On an occasion in 1920, it was pointed out by a Japanese writer that the Chinese Consul stationed
in Nagasaki acknowledged the Islands as part of the Okinawa District of the Japanese Empire
by means of an official letter of appreciation issued by him. This incident is recorded evidence
as it involved an emergency rescue mission. The contents of the letter thanked the people ofIshigakijima for rescuing Chinese fishermen who were washed ashore on one of the Senkaku
Islands chain, identifying the Islands as part of the Okinawa prefecture. 9 The contents of thisletter of appreciation acknowledged that the Chinese Consul recognized the Islands as Japanese
territory. This letter was first cited as evidence in the December 1972 edition of the Okinawa
Quarterly, reading as follows:
During the winter of the eighth year of the Republic of China (1919), Guo Heshun, and thirtyone other fisherman from Hueiʼan Prefecture, Fujian Province, were met with contrary winds
and drifted to Wayo Island, Senkaku Islands, Yaeyama District, Okinawa Prefecture, Empireof Japan. With the earnest rescue by Mr. Tamaesu from Ishigaki Village, the fishermen wereable to survive and return to their homeland. Deeply moved by such neighboring sympathy
and willingness to perform charity without hesitance, I hereby present this certificate toexpress my gratitude and thankfulness.
Feng Mian, Consul of the Republic of China in Nagasaki
May 20th The Ninth Year of the Republic of China [1920]
According to another letter by Robert Starr, Acting Assistant Legal Adviser for East Asian
8

Akira Kato, “The United States: The Hidden Actor in the Senkaku Islands,” Asia Pacific Bulletin, no. 205,
April 2, 2013, East-West Center, Honolulu (HI).

9

Text of the entire communication is available at http://www.mofa.go.jp/region/asia-paci/senkaku/
pdfs/fact_sheet_03.pdf; for related reference and reading, also see, Okuhara “Senkaku Retto to
Ryoyuken Kizoku Montai” (The Problem of the Right of Sovereignty Over the Senkaku Island) Asahi
Asian Review, no. 22, 1972; also see, Official Release by the Japanese Ministry of Foreign Affairs; andsee, “Japan-China Relations Surrounding the Situation of the Senkaku Islands in response to Chinaʼs
Airspace Incursion” Gaimusho, Position Paper, December18, 2012; also see, S. Wei, “The Territorial
Dispute over the Tiaoyu/Senkaku Islands: An Update,” Ocean Development & International Law, vol.
36, no. 1, 2005.

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Monika Chansoria

and Pacific Affairs, dated October 20, 1971 – on the instructions of US Secretary of State William
Rogers – the Okinawa Reversion Treaty, signed on June 17, 1971, and ratified by the US Senate on
November 10, 1971, contained “the terms and conditions for the reversion of the Ryukyu Islands,
including the Senkakus.” 10 The Japanese Ministr y of Foreign Affairs issued a statement on
March 8, 1972, regarding “Rights to Ownership over the Senkaku Islands” making key assertions
interpreted as follows: 111) Japan conducted deliberate investigation on the Islands between 1885-1895 and confirmedthat China did not exercise control over the Islands and that they were terra nullius. The
Japanese Cabinet Decision of Januar y 14, 1895 incorporated the Senkaku Islands into
Japanese territory.
2) The Senkaku Islands were not included in Taiwan and the Pescadores which were cededby Article 2 of the Treaty of Shimonoseki in 1895. The Senkaku Islands were not part of theterritory, which Japan relinquished under the San Francisco Peace Treaty.
3) The Senkaku Islands were legitimately transferred to Japan through the Okinawa Reversion
Treaty 1971.
4) There was Chinese acquiescence until 1969-70.
As an institution, sovereignty revolves around the normative understanding and acceptanceof political authority and international recognition, often interpreted to being the immoveable
cornerstone of the world order based on rule of international law. Traditionally, sovereignty has
been conceived of as a singular, unified concept, recalling Hans Morgenthauʼs argument that
“If sovereignty means supreme authority, it stands to reason that no two, or more, entities canbe sovereign within the same time and space”. 12 This primarily renders sovereignty as the final
and absolute authority in a political comity. Placing this in the contemporary context, there are
multiple and overlapping challenges to sovereignty and imbricating visions due to increase inglobal flows, and burgeoning economic and political interdependence. Between the autumn of1969 and spring of 1971, the ʻrevival of Japanese militarismʼ came up to be a major foreign policy
concern in Beijing, and, became the second-most visible international topic in the Chinese press,
following the Indochina war. 13 The Chinese perception of threats to regional security saw amarked swing to Japan, away from the border clashes with the Soviet Union which dominated thepages of Beijingʼs major publications in 1969. According to a content analysis of Peking Review,
between February 1969 and February 1971, there was relatively little attention to Japan prior to
the autumn of 1969. 14 Thereafter, there was a noticeably steady upswing in the space devoted
to Japan until February 1971. During the initial few months of this period, the space devoted toJapan was consistently less than that on either the United States or the Soviet Union. Thereafter,
the total pages devoted to Japan exceeded those on the Soviet Union for ever y month from
November 1969 to February 1971, despite Chinaʼs major and more immediate concern over the10

According to the Okinawa Reversion Treaty Hearings, 91st Congress, and see, Larry A Niksch, “Senkaku(Diaoyu) Islands Dispute: The US Legal Relationship and Obligation,” Asian Affairs, Foreign Affairs andNational Defense Division, US Congressional Research Service, September 30, 1996.

11

Published by The Japan Times Online 2004; for related reference also see, Caleb Wan, “Security
Flashpoint: International Law and the Islands Dispute in the Far East,” New Zealand Post-Graduate Law
e-Journal, no. 2, 2005, p. 18; and see, Reiji Yoshida “Is the Senkaku Row About Nationalism, or Oil?” The
Japan Times, March 27, 2004.

12

Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace, (Knopf, New York, 1960).

13

William Saywell, “Japan's Role in the Pacific and China's Response,” International Journal, vol. 26, no. 3,
Summer 1971 p. 508.

14

Ibidʻʼ.

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1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands

expansion of the Indochina war. 15

1969 UN Report: The Turning Point in Chinese Claims over Senkakus
As opposed to all the above, China has seemingly failed to provide hard evidence in backing up
its purported claim of its presence and/or control/sovereignty over the Islands prior to the late
1800s, other than the usual “… since historical [ancient] times” argument. Under internationallaw, appropriation of territor y is legally strengthened by making it public and by not being
contested during that particular period. The official incorporation of the Senkaku Islands by
Japan would surely have come to the attention of succeeding generational leadership eras whilst
they were put to use for economic purposes, resultant tax collection, and inhabitation by Japanesecitizens, given that fishermen from Taiwan and China pursuing fishing activities in the area
sometimes landed there to escape fiery storms. During the beginning of the 1950s, fishermen
from Irabujima near Miyakojima were known to have stayed on Minami Kojima for up to threemonths to process bonito and maintain vegetable gardens. 16
It remains well recorded and archived that the debate over the status of the Senkaku
Islands was not highlighted as much until the decade of the 1960s. The contest being witnessed
today remained relatively dormant till the time when it reached a turning point in 1969. The
contemporary history and ensuing future of the Senkakus potentially got ʻrediscovered by Chinaʼ
with the discovery of huge deposits of oil and hydrocarbons in the waters surrounding the Islands
in 1969 – a detection that prompted a series of vehement statements and counter-statements
among the claimants. The future of offshore oil development was conceivably one of the primary
drivers behind Chinaʼs claims over the Senkaku Islands affecting 20, 750 square nautical miles ofmarine space and mineral resources in the region. 17

Findings of the 1969 UN Economic Commission for Asia and the Far East
The UN Economic Commission for Asia and the Far East (ECAFE) [presently known as theUnited Nations Economic and Social Commission for Asia and the Pacific (UNESCAP)] –the parent body of CCOP, conducted extensive geophysical sur veys in 1968 and 1969, whichsuggested the possible existence of the ʻrichest seabed with oil and hydrocarbon depositsʼ in thewaters off the Senkaku Islands. The ECAFE surveys further revealed that the continental shelfin the Yellow and East China Seas might be among the richest oil reserves in the world. 18 The
geophysical survey conducted in the East China Sea and Yellow Sea in October/November 1968
indicated that the continental shelf between Taiwan and Japan could contain one of the mostprolific oil and gas reservoirs in the world, to the extent of being close to the one existing in the
Persian Gulf. The survey was undertaken by the United States Government with participating
geologists and geophysicists from Taiwan, Japan, and the Republic of Korea. During the cruise,
more than 12,000 line-kms of continuous seismic reflection profiles were run with a 30,000 joule
15

Ibid., pp. 508, 513.

16

“A home away from home / Fishermen worked, took shelter, grew vegetables on Senkakus,” Yomiuri
Shimbun, July 7, 2012; also see, Anthony Reedman and Yoshihiko Shimzaki, A World of Difference: Forty
Years of the Coordinating Committee for Geoscience Programmes in East And Southeast Asia, 1966-2006(Bangkok, September 2006) p. 43.

17

For more details see, Martin A. Pratt, et al., Jane’s Exclusive Economic Zones 1999-2000; also see,
Seokwoo Lee, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East
Asia,” Pacific Rim Law and Policy Journal, vol. 11, no. 1, 2002, pp. 87-88.

18

For details see, Seokwoo Lee, “Territorial Disputes among Japan, China and Taiwan concerning
Senkaku Islands,” Boundary and Territory Briefing, vol. 3, no. 7, 2002, International Boundaries
Research Unit, Department of Geography, University of Durham, UK.

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Monika Chansoria

sparker and continuous geomagnetic profiles created simultaneously. 19 The sixth session of theCommittee for Co-ordination of Joint Prospecting for Mineral Resources in Asian Offshore Areas(CCOP) was held at Bangkok, Thailand, 21-27 May 1969. The meeting was preceded by the fifthsession of its Technical Advisory Group in the same month. 20
Following completion of the final analyses, compilations and illustrations ashore in the UnitedStates, the results of the survey were made public and published in the second volume of theCommitteeʼs Technical Bulletin. 21 According to the results of the reconnaissance seismic profilingin the Yellow and East China Seas (Project CCOP-1/IZ.3) conducted in late 1968, Neogene
sediments with a thickness of more than 1,000 meters distributed on the Korean continental shelfover three areas (D-1, D-2, and D-3) totaling about 80,000 sq km, were declared to be potentiallycontaining huge accumulations of oil and natural gas. 22 To obtain more definitive data on theextent and limits of favorable areas, and to determine the structure within these sedimentarybasins, it was recommended that more detailed seismic explorations be conducted over the
specified areas. 23 The spokesman for the US Woods Hole Oceanographic Institution, which
conducted the UN survey, stated additionally that 80,000 miles2 of the Taiwanese basin has latetertiary sediment which is more than 2,000 meters thick. 24
The May 1969 report 25 was reconfirmed later by independent Japanese as well as Chinese
research – thereby strengthening Chinaʼs desire and strategy to make abrupt and sudden post1969 claims on sovereignty over a huge area of continental shelf and Exclusive Economic Zone.
This conveyed Chinaʼs objective to stake claim over billions of barrels of oil and rich fishinggrounds which additionally were also very close to the strategic sea-lanes in East Asia. 26 This led
to a sudden turn of events, and in 1971, China began publicly asserting claim to its sovereignty
over the Senkaku Islands. The initial reports surrounding the Chinese claim appeared in print
only in May 1970 followed by the government of the Peopleʼs Republic of China putting forth
its claim to the Islands, officially, only on December 30, 1971 following the report of the United

19

UN Economic Commission for Asia and the Far East Committee for Co-ordination of Joint Prospecting for
Mineral Resources in Asian Offshore Areas (Report of the Sixth Session) Held at Bangkok, Thailand, 13 –27 May 1969, Published by the Department of Mineral Resources, Ministry of National Development,
Thailand, June 26, 1969, pp. 5-6.

20

Ibid.

21

Ibid.

22

Ibid., p. 87.

23

Ibid.

24

V. H. Li, “China and Off-Shore Oil: The Tiao-yü Tai Dispute,” Stanford Journal of International Studies,
1975, p. 143; for related reading see, The Oil and Gas Journal, August 10, 1970, p. 83.

25

Zhiguo Gao and Wu Jilu, “Key Issues in the East China Sea: A Status Report and recommended
Approaches” in Selig Harrison, ed., Seabed Petroleum in Northeast Asia: Conflict or Cooperation?
(Washington D.C., Woodrow Wilson International Center for Scholars, 2005), p. 32; also see, Report of
the Sixth Session of the Committee for Co-ordination of Joint Prospecting for Mineral Resources in AsianOffshore Areas, U.N. Doc. E/CN.1 l/L.239 (1970), pp. 51-67.

26

For related references see, Daniel J. Dzurek, “Effect of the Diaoyu/Senkaku Islands dispute on
maritime delimitation,” paper presented at the IBRU Conference on Borderlands under University ofDurham, July 16, 1998, pp. 1-9; also see, Robert G. Sutter, “East Asia: Disputed Islands and Offshore
Claims - Issues for U.S. Policy,” Congressional Research Service Report for Congress, July 28, 1992; Ji
Guoxing, "Maritime jurisdiction in the three China seas: options for equitable settlement,” available atgopher://gopher-igcc.ucsd.edu;

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1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands

Nations Economic Commission for Asia and the Far East. 27 Rejecting Japanʼs terra nullius claim,
China contends that the Senkaku Islands were under Chinese jurisdiction since ancient times. 28
The valid title was obtained through the principle of discovery-occupation as early as 1372. 29 The
official Chinese news agency, Xinhua, issued a dispatch in this reference in 2012 stating:
Diaoyu (Senkaku) and its affiliated islands have been considered part of China since ancient
times. Chinese people were the first to discover, name and administer these islands…
However, having never established a permanent settlement of civilians or militar y personnel
on the islands, nor collecting taxes, nor maintaining permanent naval forces in adjacentwaters, remains a factual reality that is hard to deny or refute by providing evidence – thereby
substantially weakening the purported Chinese claim over the Senkakus. 30 By not laying claim
to sovereignty over the Senkakus, and more significantly, by not challenging the Japaneseincorporation of the Islands officially till 1969, will be interpreted as a tacit acceptance by the
Peopleʼs Republic of China that the Islands were uncontested and that Japan, in fact, controlled
the Islands that were terra nullius to begin with. Academics and experts in the PRC explain
Chinaʼs ʻsilenceʼ for the above argument by stating that there was an absence of diplomatic
relations between Beijing and Tokyo until 1972. The immediate fallout counter-question arising is,
why would that prevent Beijing from protesting against Japanʼs “territorial claims to the Islands”
on the international stage? For that matter, China was known to be lodging protests against Japanon many other issues and occasions before 1972. Another argument often presented from the
Chinese side that took attention away from the Islands revolves around its domestic instability
arising due to the Cultural Revolution (1966-69). The Cultural Revolution happened for a finite
time period during the late 1960s. That period apart, there still is no recorded evidence of Chinese
claims or protests over the Senkakus even prior to the Cultural Revolution.
In July 1970, the Japanese government communicated to the Taiwanese government that
Taipeiʼs bid to explore oil potential around the Islands was not valid. Over the next two months,
the ROC planted a flag on one of the Islands and ROCʼs parliament members visiting the area.
By December 1970, the PRC too, began describing the Senkaku Islands as “Diaoyu – a sacred
territory.” 31 The prospect of availability of large oil deposits moved China to declare the priorityof its claims. In order to meet its ever-growing demand for oil and gas, and diversify away fromhigh dependence on supplies from the Middle East, China began prospecting about extractionof energy resources in the East China Sea in the 1970s. The PRC began claiming the Senkaku
Islands vocally in various UN Committees in 1971. 32 Similarly, in a statement dated April 20, 1971,
27

For more details see, Committee for Co-ordination of Joint Prospecting for Mineral Resources in AsianOffshore Areas, Technical Bulletin, vol. 2, Geological Structure and Characteristics of the East China
Sea and the Yellow Sea, pp. 39–41, 1969.

28

As cited in the Statement of the Ministry of Foreign Affairs of the Peopleʼs Republic of China, September
10, 2012, available at http://www.fmprc.gov.cn/eng/topics/diaodao/t968188.htm

29

Tsui Hsueh, “Tsung Shih Liu Chiu Lu KanTiao-yu-yu” (To View the Diaoyu Tai Through the ʻMission to
the Ryukyu Records) Sinological Studies, vol. 2, 1972, p. 48.

30

Tao Cheng, “The Sino-Japanese Dispute over the Tiao-yu-tai (Senkaku) Island and the Law of Territorial
Acquisition,” Virginia Journal of International Law, vol. 14, Winter 1974, pp. 244-246; and see, R Jade
Harry, A Solution Acceptable to All? A Legal Analysis of the Senkaku-Diaoyu Island Dispute, Cornell
International Law Journal, vol. 46, no. 653, 2013.

31

Jean-Marc F. Blanchard, “The U. S. Role in the Sino-Japanese Dispute over the Diaoyu (Senkaku)
Islands, 1945-1971,” The China Quarterly, no. 161, March 2000, p. 98.

32

United States, Department of the Army, 7th Psychological Operations Group, “Oil in troubled waters: theSenkakus,” May 22, 1972, p. SR 8-3.

42
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Monika Chansoria

the spokesperson of the Taiwanese Foreign Minister, Yu-Sun Wei, defended Taiwanese inaction
over the Senkaku Islands, and further articulated the Taiwanese position on the Senkaku Islands
as follows:
Chinaʼs sovereign right over Tiaoyutai does not permit any doubt historically, geographically,or legally… It should be explained that when the islets were placed under the US militarycontrol after World War II, the Chinese Government regarded this as a necessary measure
based on the maintenance of regional security. 33
In the midst of all these geo-political and geostrategic developments, Japan and China
embarked upon a new era of diplomatic relations with a Sino-Japanese Joint Communiqué issued
at Shanghai on September 29, 1972. This epoch-making event became possible due to a number ofsignificant international developments: the rapid thaw in Sino-American relations after President
Nixonʼs announced intention on July 15, 1971, to visit China (often referred to as the “Nixon
shock” inside Japan); the seating of the Peopleʼs Republic of China and expulsion of Nationalist
China from the United Nations in October 1971; and the Nixon-Chou Joint Communiqué issued at
Shanghai on February 28, 1972. 34 The Sino-Japanese rapprochement was also made possible by
the flexibility in Japanʼs China policy pursued post-July 7, 1972, following Japanese Prime Minister
Kakuei Tanakaʼs historic trip to Beijing in September 1972. 35
The discovery of oil and hydrocarbons around the Senkaku Islands rendered Japanʼs national
security becoming critically linked to the existing power arrangements in East Asia. 36 For Japanas a highly industrialized island nation, its Achilles Heel was, and continues to be, the extreme
dependence on stable markets and dependable sources of raw materials and energy. Thisapparently made Tokyoʼs shipping lanes highly vulnerable to the pressures exerted by the Arabs
during the 1973 Middle East War. 37 The distance from Japan to the Strait of Malacca is 2,500
miles, and to the Arabian Gulf is another 5,000 miles. 38 Japanese shipping being a worldwide
pattern did not remain confined to the vital shipping lanes through which most of Japanʼs oil
supplies from the Middle East came through. 39

Economics and Geo-Strategy of the Contest
To the extent that national identity, sovereignty claims or military-strategic interests overlap overthese Islands, it becomes questionable whether economic ties alone will be sufficient to constrain

33

China and the United States have reached an agreement on the demarcation of area of patrol [documentsof the United States National Archives and Records Administration II [hereinafter ʻUSNARAʼ] locatedin College Park, Maryland. The USNARA guidelines say that generally, citations for textual recordsof federal agencies such as USDOS 1971e “Telegram: ROC Statement on Senkakus”, 1971/4/21,[USNARA/Doc. No.: Pol 32-6 Senkaku Is; XR Pol 19 Ryu Is; Taipei 1831] cited in, Seokwoo Lee, n. 18, p.
22.

34

Hong N. Kim, “Sino-Japanese Relations since the Rapprochement,” Asian Survey, vol. 15, no. 7, July
1975, p. 559.

35

Ibid.

36

Jay B. Sorenson, “Japan: The Dilemmas of Security,” Asian Affairs: An American Review, vol. 2, no. 6,
July – Aug 1975, p. 365.

37

Ibid., pp. 367-68.

38

Ibid.

39

Ibid.

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1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands

China and Japan from escalating towards a potential conflict in the future. 40 According to a 1994
estimate by the Japanese Ministry of Economy, Trade and Industry (METI), deposits of oil andnatural gas on the Japanese side of the East China Sea amounted to 500 million kilolitres in crude
oil volume. 41 The Chinese estimates of undiscovered gas reserves in the Xihu/Okinawa troughregion in the East China Sea ranged 175–250 trillion cubic feet. 42 Other estimates placed potential
oil reserves on the shelf to be as high as 100 billion barrels (as compared to Saudi Arabiaʼs 261.7
billion barrels). 43 Although foreign companies continued to remain hesitant in investing, the US
Energy Information Administration estimated the region, in and around Senkakus, to hold 60
to 100 million barrels of oil and 1 to 2 trillion cubic feet of natural gas – considered enough toprovide energy sources to either state for 50–80 years. 44 Beginning of this decade, China National
Offshore Oil Corporation (CNOOC) listed its East China Sea proven gas reserves at 300 billion
cubic feet (Bcf) and proven oil reserves at 18 million barrels in 2011, according to the annual
report. In 2012, an independent evaluation estimated probable reserves of 119 Bcf of natural gas
in LS 36-1, a promising gas field north of Taiwan, currently being developed as a joint venture
between CNOOC and UK firm, Primeline Petroleum Corp. 45
The US Energy Administration has forecasted that Chinaʼs oil and natural gas consumption
will continue to grow, thereby putting additional pressure on the Chinese government to seek
new sources of supplies to meet the ever-increasing domestic demand. China surpassed theUnited States as the worldʼs largest crude oil importer in 2017, importing 8.4 million barrels
per day (b/d). In 2017, 56 percent of Chinaʼs crude oil imports came from countries within the
Organization of the Petroleum Exporting Countries (OPEC), a decline from the peak of 67
percent in 2012. Russia surpassed Saudi Arabia as Chinaʼs largest source of foreign crude oil in
2016, exporting 1.2 million b/d to China in 2017 compared to Saudi Arabiaʼs 1.0 million b/d. 46
In January 2018, China and Russia began expansion of the East-Siberia Pacific Ocean (ESPO)
pipeline, doubling its delivery capacity to approximately 0.6 million b/d. As per reports, as muchas 1.4 million b/d of new refinery capacity is planned to open in China by the end of 2019. 47 Given
Chinaʼs expected decline in domestic crude oil production, imports will likely increase during thenext two years. A major factor driving the increase in Chinese crude oil imports is Beijingʼs large40

Blanchard, n. 31, pp. 122-23; The view that economic interdependence will constrain East Asian
countries is noted in Gerald Segal, “East Asia and the ʻconstrainmentʼ of China,” International Security,
vol. 20, no. 4, Spring 1996, p. 107; for related reading and reference see, Norrin M. Ripsman and JeanMarc F. Blanchard, “Commercial liberalism under fire: evidence from 1914 and 1936,” Security Studies,vol. 6, no. 2, Winter 1996/97, pp. 4-50.

41

As per a report, cited in, Yomiuri Shimbun, August 28, 2004.

42

In comparative reference, Saudi Arabia has proven gas reserves worth 21.8 trillion cubic feet.

43

United Nations, Report of the Sixth Session of the Committee for Co-ordination of Joint Prospecting for
Mineral Resources in Asian Offshore Areas, UN Doc. E/CN.11/L.239, 1970, pp. 51-67; see also, C.H.
Park, “Oil under Troubled Waters: The Northeast Asia Seabed Controversy,” Harvard International
Law Journal, no. 212, 1973, pp. 248-49; also see, U Suganuma, “Sovereign Rights and Territorial Space in
Sino-Japanese Relations: Irredentism and the Diaoyu/Senkaku Islands, (Honolulu: Association for AsianStudies and University of Hawai'i Press, 2000) pp. 129-31.

44

For details see, J. Curtin, “Stakes Rise in Japan, China Gas Dispute,” Asia Times, October 19, 2005; alsosee, Lee Jae-Hyung, “Chinaʼs Expanding Maritime Ambitions in the Western Pacific and the Indian
Ocean,” Contemporary Southeast Asia, vol. 24, no. 3, 2002, pp. 549-568.

45

Chansoria, n. 6, p. 105; and see, East China Sea, US Energy Information Administration, September 25,
2012, p. 2.

46

Energy Update, Independent Statistics and Analysis, US Energy Information Administration, February 5,
2018.

47

Ibid.

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Monika Chansoria

scale decline in domestic petroleum and other liquids production among non-OPEC countries in2016 and US Energy Information Administration (EIA) estimates it of it having the second-largest
decline in 2017. 48 In contrast to declining domestic production, EIA estimates that Chinese
growth in consumption of petroleum and other liquid fuels in 2017 remained the worldʼs largest
for the ninth consecutive year, growing from 0.4 million b/d (3 percent) to 13.2 million b/d. Since
mid-2015, China granted crude oil import licenses to independent refineries in northeast China,
which have since increased refinery utilization and crude oil imports. 49
As for Japan, it was the third largest net importer of crude oil and petroleum products in theworld after United States and China in 2012. Following the Fukushima incident, Japan increased
the imports of crude oil for direct burn in power plants, remaining primarily dependent on the
Middle East for its crude oil imports, with 83 percent of Japanese crude oil imports originatingfrom the Middle East in 2012, up from 70 percent in the mid-1980s. Because of its limited natural
gas resources, Tokyo remains heavily reliant on imports to meet nearly all of its natural gas
needs. In 2012, it consumed 4.4 trillion cubic feet (Tcf) of natural gas, up 50 percent from 2000. 50
More than 95 percent of Japanʼs gas demands are being met by liquefied natural gas (LNG)
imports. Japan, the worldʼs largest LNG importer in 2012, accounted for 37 percent of global LNG
demand. These statistics are proof enough that both Tokyo and Beijing hold immense stakes inextracting hydrocarbon resources from the East China Sea to help meet their respective domestic
demands – adding greater criticality to the tensions around the Senkaku Islands. 51
According to a World Energy Outlook survey, released by the International Energy Agency,
Chinaʼs oil imports will likely reach close to 500 million tons by 2030 – the highest in absoluteterms for any country or region. 52 In this context, Southeast Chinaʼs coastal areas, particularly the
Shanghai municipality and Zhejiang province, remain its most critical industrial (and thus energyconsuming) bases having almost no hydrocarbon resources in their own territory. Consequently,
the domestic oil/gas supply for these regions relies on imports from the far northern andwestern provinces, thus proving to be very costly and insufficient. By contrast, the transportationof oil and gas from the East China Seaʼs continent shelf would be much easier and cheaper (giventhat it is located within 500 kilometers approximately). 53 These economic and logistical drivers
render the oil and gas reserves in the East China Sea far more beneficial for China. It needs tobe highlighted that gas being the most important hydrocarbon resource in the East China Sea
is being produced by China from a field in a part of the East China Sea pending delimitation that
Beijing claims to be within its EEZ. However, Japan protested against this unilateral move in 2009and did so again in July 2013.
Since the 1969 report established possibility of substantial oil and gas resources in the East
China Sea in and around the Senkakus, China was goaded to press for its territorial claims
including the whole continental shelf up to the Okinawa Trough for the delimitation of the EEZ.
Chinaʼs official insistence is that its continental shelf demand is in accordance with UNCLOS,
because of the length of its coastal line and its population there, in contrast to the narrow andsparsely populated Okinawa Island chain. The determination and relevance of the ʻcritical dateʼ
48

Ibid.

49

Ibid.

50

Energy Update, Independent Statistics and Analysis, US Energy Information Administration, November 7,
2013.

51

East China Sea, n. 45.

52

Chansoria, n. 6, pp. 96-97.

53

Guo Rongxing, “Territorial Disputes and Seabed Petroleum Exploitation: Some Options for the
East China Sea,” Center for Northeast Asian Policy Studies, Brookings Institution September 2010,
Washington D.C.

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1969 Report by UN Economic Commission for Asia and the Far East:
A Turning Point in the Historical Debate over Senkaku Islands

becomes a key point for understanding the complexity of Chinaʼs claims over the Senkaku
Islands, and more so Chinaʼs failure to stake claim to the Islands until 1970-71. China, as well
as Taiwan, have chosen to mainly rely on historical timelines, which remain self-contradictory
going by the evidence on archived records. On the other hand, Japanese position is premised on
acts of exercising state authority, directly relating to the Senkaku Islands. There is a critical legal
implication of the Chinese/Taiwanese inaction on their claims over the Senkaku Islands during
the material period from 1895 until 1969 when the existence of vast oil deposits were unearthedand announced. Should the Chinese/Taiwanese inaction during the said period be construed asacquiescence over the Senkaku Islands as being part of the Ryukyu Islands?

Conclusion

The Islands being “terra nullius” depends upon the doctrines of occupation and inter-temporality.
The former holds that a state can appropriate unclaimed territory by occupying and possessing
it. The latter holds that one must judge the legality of events in light of the law concurrent with
their occurrence, rather than with the law in force at the time the dispute is ultimately resolved.
In other words, lawful incorporation by Japan requires that China had not already engaged inacts sufficient to appropriate the Islands under the law of occupation that existed up to 1895. 54
An apparent paucity of Chinese effectivitiesʼ in the 19th Century supports this view. The Senkaku
Islands have been Japanese sovereign territor y since 1895 and thereafter, archival research
not displaying any record of China protesting/contesting Japanʼs exercise of authority andoccupational control over the Islands from 1895-1945 and thereafter. In the backdrop that“administration” rather than “sovereignty” shall be a key distinction that applies to the islets, while
China argues its establishment through the classical mode of discovery of the Islands, it is Japanthat comes closer in fulfilling all requisite legal requirements to acquire title over the Islands
under international rules and law.
An arm of the Pacific Ocean borders on the East Asian mainland. The East China Sea extends
to the Chain of the Ryukyu Islands in the east; northeast to Kyushu (the southernmost of Japanʼsmain islands) and north to Cheju Island, off the Korean peninsula, falling west of Chinaʼs eastern
coast. On the south, the Sea extends to the South China Sea through a shallow strait between
Taiwan and Mainland China. Thus, whoever controls the Senkakus could well claim economic
and political control over a huge area of the East China Sea. 55 Unsurprisingly, Chinaʼs endlessstatus quo revisionism in almost all its existing territorial disputes – from the East China Sea
to the South China Sea and Himalayan borderlands – suggests that 21st century Asian political
geography shall continue to be shaped, and reshaped, by Beijingʼs cartographic subjectivity.
Unilateral actions being undertaken by Beijing are upping the ante in the name of “sovereignty”
and remains driven among others, by Chinese domestic politics, including pressures on thecentral government to craft a strong Chinese national identity. What needs to be carefully notedis that stirring nationalist sentiment shall always remain a double-edged sword for the Chinese
leadership – since there is a very thin line that separates it from assuming the shape of becominga threat to the existence of the Party and the Communist State.
The strategic and economic consequences of the 1969 UN discovery provided fresh impetus
to the interests- and claims over the Senkaku Islands. Referring to the Senkaku Islands, mass
54

For more details see, Ryan M Scoville, “A Defense of Japanese Sovereignty over the Senkaku/Diaoyu
Islands,” Legal Studies Research Paper Series, no. 13-16, Marquette University Law School, Wisconsin,
June 2013.

55

United Nations, United Nations Convention on the Law of Sea 1982, available at http://www.un.org/
Depts/los/convention_agreements/texts/unclos/closindx.htm; also see, Erica S Downs and Phillip
C Saunders, “Legitimacy and the Limits of Nationalism: China and the Diaoyu Islands,” International
Security, vol. 23, no. 3, Winter 1998/99, pp. 114-146.

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Monika Chansoria

circulation American periodical, Time, put out a cover story in 1996 asking, “Will the next Asian
war be fought over a few tiny islands” lying west of Okinawa? 56 This, in a way, summarizes
the vital contemporary geopolitical and geo-strategic relevance to the Senkaku Islands, which
remains embedded in history. Contemporary debates on the history of Asiaʼs regional security
issues strongly echo that Asiaʼs history and onerous colonial past has made an indelible mark on
demographics, border disputes, political systems, laws, economies, cultural influx, and identities.
In all, the defining trends of Asiaʼs historical past during the 20th century and its preceding period
will likely continue casting a shadow on its ensuing future stability.

56“In an Ocean of Controversy,” Time, October 7, 1996.

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Japan Review Vol.2 No.3 Winter 2018

The Invention of a Basis for the Possession of Takeshima by the Korean Government

The Invention of a Basis for the Possession of Takeshimaby the Korean Government*
Yoshiko Yamasaki
Abstract
With respect to Takeshima ,the ROK has asserted that (i) Dokdo (the Korean namefor Takeshima) was the first Korean territor y to fall victim to the Japanese aggression
against Korea, (ii) Because it was not a signator y to the Peace Treaty, the ROK was
unable to receive any benefits or assurances with regard to the issue of territorial rights
over “Dokdo;”, (iii) Up until the mid-1950s the United States strongly supported Japanʼs
position on Takeshima as a result of Japanʼs vigorous diplomacy toward the United States.
This research paper aims to critically examine the legitimacy of the ROKʼs assertions. The
author examined ROK and US government documents including those the author has foundand concluded that the ROK government has invented historical basis for its claims byconcealing a part of the documents that are inconvenient for them.

IntroductionIn recent years, newly acquired and released diplomatic documents have provided the basis
for numerous studies on the territorial dispute over the islets known as Takeshima thatflared up after the end of World War II and continued during the negotiations for the San
Francisco Peace Treaty in 1951 and the talks for normalizing ties between Japan and theRepublic of Korea (ROK) in 1965. Among the documents acquired and released by ROK-basedorganizations and researchers in particular, many have provided information regarding previously
unclear matters. Particularly noteworthy is Note Verbale (No. 187), sent by the US Embassy in
the ROK to the ROKʼs Ministry of Foreign Affairs on December 4, 1952. It constituted an official
re-iteration of the US position, invoking a letter from Dean Rusk, the United States Assistant
Secretary of State for Far Eastern Affairs.1 The letter was sent from Dean Rusk to Yang You-chan,
Ambassador of Korea to the United States, in August 10, 1951, about a month before the signingof the San Francisco Peace Treaty. The letter rejected a request of the ROK government to have
Takeshima renounced by Japan under the Peace Treaty because the island “had been under thejurisdiction of the Oki Islands Branch Office of Shimane Prefecture of Japan” and “did not appear
ever before to have been claimed by Korea.” Note Verbale (No. 187) was sent in response to the
ROK governmentʼs protest against an incident in September 1952 in which the US armed forces
conducted bombing training using Takeshima as a target, thereby endangering people from
Ulleungdo (a larger island to the west-northwest about 88 km away from Takeshima) who werereportedly fishing nearby.
A review of research, analysis, and asser tions made by the government, researchers,*
1This article was originally published as 山﨑佳子「韓国政府による竹島領有根拠の創作」竹島問題研究会『第 2 期「竹島問題に関する調査研究」最終報告書』島根県、2012年、61-78頁.
United States National Archives and Records Administration (NARA) (RG59) Lot 54 D422, “Japanese
Peace Treaty Files of John Foster Dulles”, Box 8, Korea (in English). The content of this letter was firstmade public in Foreign Relations of the United States (FRUS) Vol.6, Part 1, 1951, p. 1203, Footnote 3,
issued in 1977 and made publicly available in April 1978.

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Yoshiko Yamasaki

and media in the ROK reveals that their main assertions are (i) Dokdo (the Korean name for
Takeshima, known in English as “Liancourt Rocks”) was the first Korean territory to fall victim
to the Japanese aggression against Korea; upon the liberation of Korea, it returned to its country.
It is a symbol of Koreaʼs independence; historically it was Korean territory but it was seized by
Japan and returned to the ROK when Japan was defeated;”2 (ii) Because it was not a signatory
to the Peace Treaty, the ROK was unable to receive any benefits or assurances with regard toissues including the issue of territorial rights over “Dokdo;”3 and (iii) Up until the mid-1950s theUnited States strongly supported Japanʼs position on Takeshima as a result of Japanʼs vigorous
diplomacy toward the United States and lobbying by Japanophiles such as William J. Sebald, who
was US Political Adviser to the Supreme Commander for the Allied Powers (SCAP), head of the
Diplomatic Section of SCAP, and chairman and member of the Allied Council for Japan,4 but later
switched to a neutral position.
The second session of Shimane Prefectural Governmentʼs Takeshima Issue Research Groupalso focused on the post-war territorial dispute over Takeshima and studied documents that it
acquired that were related to the dispute. The documents show that there is no basis for the
Korean assertions.
This research paper aims to critically examine the legitimacy of the ROK ʼ s asser tions
by presenting new documents in addition to those already discussed in existing research toreconstruct the circumstances that led to Takeshima being omitted from the list of islands to berenounced by Japan under the San Francisco Peace Treaty. Detailed examination of assertion (i)in particular highlights the process by which, despite a lack of clear historical evidence, the postwar government of the ROK asserted that Takeshima was historically the ROKʼs territory andbrought it inside the Syngman Rhee line, then distorted official letters and statements from theUnited States describing Takeshima as Japanese territory in order to fabricate new “evidence.”(1) Pre-World War II—The Origins of the Territorial Dispute over Takeshima

At a routine press conference on August 12, 2011, the ROKʼs minister of foreign affairs and trade,
Kim Sung-hwan, alleged that Dokdo was the first victim of Japanʼs aggression against Korea, andthat upon the liberation of Korea, Dokdo had returned to its countryʼs embrace. It was indeed
the symbol of Korean independence, he claimed, and whoever touched this island should be
prepared to face stubborn strong resistance from all the Korean people. Any attempt by Japan toseize Dokdo would signify the re-invasion of Korea, according to Kim.
Kim was said to be directly quoting an official letter written 57 years earlier by minister forforeign affairs Byun Young-tae.5 Likewise, the ROKʼs Ministry of Foreign Affairs uses the 1943

2

“Why did Kim Sung-hwan bring up Byun Young-taeʼs letter of 57 years ago?,” Joong-ang ilbo (Korea
Joongang daily), online version, August 15, 2011 (in Korean), available at http://article.joinsmsn.com/
news/article/article.asp?total_id=5973972 (as of February 15, 2012).

3

Park Jin-hee, “The Korea-Japan post-war relationship and the San Francisco Peace Treaty,” Korean
Historical Research, No.131, 2005, pp. 3–4 (in Korean).

4Jung Byung-joon, “William J. Sebald and the Dokdo Territorial Dispute”, Korea Focus Vol.13, No. 4,
2006, p. 80 (in English). Jung states that Japan spread inaccurate information and engaged in “intrigue”
without the knowledge of Korea before the creation of the ROK, using Sebald to actively lobby theUnited States in order to have Dokdo recognized as part of Japanʼs territory (p.77).

5

Supra note 2.

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

Cairo Declaration regarding territories “which Japan has taken by violence and greed”6 as its
foundation to assert the illegality of Japanʼs claim to ownership. However, no maps or documents
have yet been found to prove categorically that Korea historically recognized Takeshima as its
territory prior to the formal incorporation of Takeshima by Japan in 1905. In order to establishthat Takeshima was “the first victim of Japanʼs aggression against Korea” and Japan had “taken”
the islands, the ROKʼs historical records must clearly show that Takeshima was a territory of the
ROK before it was incorporated into Japanʼs Shimane Prefecture.
However, from the 18th century, when inspectors began to be posted regularly to Ulleungdo,
maps of Korea compiled by the government depicted Usando (alleged by the ROK to be theprevious Korean name for Dokdo) not as Takeshima (Dokdo), but as Chikusho (called “Jukdo”
in the ROK),7 and Takeshima was not included in any of the geographies, pre-modern maps, andannotated charts with coordinates produced from the end of the Kingdom of Joseon until the
Empire of Korea.8 The “Seokdo” referred to in the Empire of Koreaʼs Imperial Edict No. 419 issued
on October 25, 1900 (Seokdo being the old name for Takeshima, according to the government of
the ROK) has never been directly proved to correspond to Dokdo,10 and even in printed materials
written by those not under the sway of the Japanese government, such as Korean independence
campaigners in exile overseas or members of the Korean diaspora living in the United States,

6“(omitted)…in the midst of the Russo-Japanese War (1904-1905), which had been triggered by Japanʼs
imperialistic invasion scheme toward Northeast Asia since the 1890s, disseized Dokdo and incorporated
the islands into the Shimane Prefecture by issuing Shimane Prefecture Public Notice No. 40(1905).
Japanʼs annexation of Dokdo constituted a violation of international law, and cannot be justified under
any circumstances, for it is a clear infringement on the undeniable sovereignty of Korea over the islands
from ancient times to the recent Empire of Korea. More importantly, Japanʼs actions carry no legal
validity under international law.” “Korea was annexed to Japan in 1910 and the colonial rule ended in1945 with Japanʼs defeat in World War II. In 1943, while the war was still being fought, the three AlliedPowers̶the United States, Britain and China̶issued the Cairo Declaration, vowing that Japan would“…be expelled from all other territories which she has taken by violence and greed.” In 1945, when
Korea regained its independence, Dokdo, too, was returned to Korea as a matter of course.” Ministry ofForeign Affairs, Republic of Korea, “Dokdo: Korean Territory̶The Basic Position of the Governmentof the Republic of Korea on Dokdo”, 2008, p. 6–7.

7

Park Chang-seok, Ulleungdo Do-hyeong (Map of Ulleungdo), 1711; “Ulleungdo Jido” (Map of Ulleungdo),
Joseon-jido (Map of Korea), around 1770, etc. (all in Korean). Until then Usando had generally been
depicted to the west of Ulleungdo.

8

Lee Kyu-won, Ul-leung-do-oe-do (Survey map of outer Ulleungdo), 1882; Heul-beop (Homer Hulbert),
Sa-min-pil-ji (Knowledge necessary for all) (Baek Nam-kyu and Lee Myung-sang, Trans.), 1895; Hyun
Chae, Dae-han-ji-ji (Geography of the Korean Empire), 1899; Dae-han-Jeondo (Complete map of Korea),
1899; Dae-han-yeu-ji-do (Map of the Korean Empire), around 1900; Jang Ji-yeon, “Ji-ri-il” (Geography1), Dae-han-ja-gang-hoe-wol-bo (Korean Self-Strengthening Society monthly magazine), No. 3, 1906, pp.
25–28; Jang, Dae-han-sin-ji-ji (A new geography of Korea), 1907, etc. (all in Korean).

9

Even in the ROK, scholars have not been aware of this edict for very long. It was first introduced in Lee
Han-ki, Territory of Korea, Seoul National University Press, 1969, p. 57 (in Korean).

10

Ikeuchi Satoshi, “Takeshima/dokdo to ishijima no hitei mondai: noto” (Is there any island referred to as
Seokdo?) Tekusuto fuchi no kaishakugakuteki kenkyu to kyoiku (HERSETEC), Vol.4, No. 2, 2010, pp. 1–9(in Japanese).

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Yoshiko Yamasaki

there is no mention of Takeshima as being a seized territory, as far as I am aware.11
Following a Japanese cabinet decision on January 28, 1905 to incorporate Takeshima into thecountry, and Shimane Prefectureʼs issuance of Notification No. 40 on February 22, Takeshimaʼs
incorporation into Shimane Prefecture was reported in newspapers12 and academic journals on
numerous occasions.13 The year 1905 was also when the Battle of Tsushima took place. On May
28, the battle was decided in the vicinity of Takeshima, so the island and its location came to be
known throughout Japan via official gazettes,14 newspapers,15 and magazines.16
The name Takeshima would naturally have come to the notice of the more than 300 Koreans, 17
including members of legation staff and students, said to be living in Japan in 1905, and theinformation in the Japanese official gazettes was also reported in Korea. 18 However, there isnothing in the historical records to suggest that Koreans appeared to harbor any reservations
with regard to the territorial incorporation of Takeshima into Japan.
In March 1906, a party from Shimane Prefecture stopped off at Ulleungdo as it was going
to inspect Takeshima and informed Sim Heung-Taek, the magistrate of Uldo-gun (the Koreancounty within which Ulleungdo was located), of the incorporation of Takeshima into Shimane
Prefecture. The magistrate filed a report notifying the government of the Empire of Korea about
11

Tae-Baek-Gwang-No, Han-guk-tong-sa (Painful history of Korea), 1915; Park Eun-sik, Han-guk-dok- libun-dong-ji-hyeol-sa (The bloody histor y of the Korean independence movement), 1919–20 (both inKorean). Tae-Baek-Gwang-No was the pen-name of Park Eun-sik, the second president of the Provisional
Government of the Republic of Korea in Shanghai. The former work put the eastern boundary of Korea
at 130 °50ʼ east longitude, while the latter work records the 1906 incident in which the party from
Shimane Prefecture visited Ulleungdo and reported the news of Takeshimaʼs formal incorporation into
the prefecture as an event that had to with Ulleungdo. Sin-han-min-bo (The new Korea) (San Francisco
02.10.1909–1980) was a newspaper published in San Francisco by North and South Koreans living in the
United States. All these publications had a strongly nationalist bent.

12“Oki no shinto” (Okiʼs new island), San-in shimbun (San-in newspaper), February 24, 1905; “Shogen,”ibid., February 25, 1905; “Oki-no-kuni kyodo no bocho” (Oki boundary expanded), Oki Shimpo (Okinews), No. 16, March 1905, etc. (all in Japanese). Thereafter, the San-in Shimbun continued to carryarticles relating to Takeshima.

13“Teikoku shinryodo takeshima” (The Empireʼs new territory of Takeshima), Chigaku zasshi (Journal of
Geography), Vol.17, No. 4, 1905, p. 282 (in Japanese).

14“Correction,” Of ficial gazette, June 5, 1905 (in Japanese). The initial account of the report of Togo
Heihachiro, Commander-in-Chief of the Combined Fleet of the Imperial Japanese Navy, received bytelegram on the morning of May 29 of the same year, had referred to Liancourt Rocks, but this wascorrected to Takeshima.

15“Riyankorudo iwa” (Liancourt Rocks), Yomiuri Shimbun (Yomiuri newspaper), June 1, 1905; “Tenchi
genko” Niroku Shimbun (Niroku newspaper), June 16, 1905; “Daikaisen no ato (matsue)” (The siteof a great sea battle (Matsue)), Tokyo Asahi Shimbun (Tokyo Asahi newspaper), June 25, 1905; “Shinsagamimaru to takeshimamaru” (The new Sagami-maru and Takeshima-maru vessels), Tokyo Asahi
Shimbun, August 11, 1905, etc. (all in Japanese).

16

Tayama Katai, “Senji sowa̶riyankorudo iwa” (Collection of Wartime Stories̶Liancourt Rocks),
Nichiro senso jikki (True Record of the Russo-Japanese War, 75th edition, 1905, pp. 115–117; Nozu
Chosui, “Aa takeshima” (Ah, Takeshima), ibid., 76th edition (“Kankoku shashinjo” (Album of Korea),
Shashin gaho rinji zokan (Special illustrated supplement) 25), 1905, p. 35, etc. (both in Japanese).

17

Morita Yoshio, “Zainichi chosenjin shogu no suii to genjo” (Present circumstances and trends in thetreatment of Koreans in Japan), Homu kenshujo homu kenkyu hokokusho (Training Institute of the
Ministry of Justice legal research report), 43rd series, No. 3, 1955, p. 4; Morita, Suji ga kataru zainichikankokujin, chosenjin no rekishi (A history of North and South Koreans in Japan through numericaldata) (new edition), Akashi Shoten, 1996, p. 173 (both in Japanese).

18“Miscellaneous̶Official gazette of the Japanese fleet,” Hwang-sung sin-mun (Hwang-sung newspaper),June 2, 1905, (in Korean).

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

the incorporation of Takeshima into Japan (in his report, the magistrate referred to Dokdo “being
under our jurisdiction”), and the government ordered an investigation,19 but there is no evidenceof the Japanese resident-general of Korea subsequently being approached with any inquir yregarding the matter, let alone any protest. The ROK government and researchers who support
its position assert that “Koreaʼs situation was such that it had been deprived of its diplomatic
power and it was therefore not able to lodge any diplomatic protest,”20 but this assertion is notbased on historical records.
The Empire of Korea was at that time frequently lodging protests and taking otheradministrative and diplomatic measures to address tree felling and other acts by Japanese citizens
that had become common on Ulleungdo before 1900. However, right up to the compilation of the
Uldo-gun rule book (Uldogunjeolmok; 1902), in which the Empire of Koreaʼs Ministry of Home
Affairs laid down administrative guidelines for Uldo-gun, and which was discovered in Korea
in 2010, there were no statements indicating that islands such as Takeshima, which was 90 km
away, were included within Koreaʼs area of administration.21 Moreover, there is no evidence thatany measures were taken to deal with fishing by Japanese citizens around Takeshima, which had
most likely already started by 1903, or surveys by the Ministry of the Navy of Japan.22
Moreover, a Japanese diplomatic note of October 1905 records that the Korean minister forforeign affairs, Park Che-soon, protested verbally to Hayashi Gonsuke, Japanʼs minister to Korea,
as well as in a letter to the British minister,23 about the description of Koreaʼs status included in
the treaty for the second Anglo-Japanese Alliance. Subsequently, in February 1906, a Japanese
resident-general of Korea was appointed, and from March 13 the Council for Improvement of
Korean Administration met every Tuesday, providing a forum for ministers of the Empire of
Koreaʼs State Council to discuss a diverse range of matters including Koreaʼs judicial system withresidents-general such as Ito Hirobumi and Japanese advisors.24 Moreover, the historical recordsof the Empire of Koreaʼs State Council (the Ministry of Home Affairs) include records stating thatinquiries were made to the resident-general and others on the Japanese side with regard to a wide
19

“Special report,” “Directive No. 3,” Gak-gwan-chal-do-geo-re-an (各觀察道去來案), Kyujanggak Archives
of Seoul National University, 奎 17990, 1906 (in Korean). This historical document was first introducedin Shin Yong-ha (1989), “Joseon wangjo eui dokdo ryeongyu wa ilbon jegukjueui eui dokdo chimryak”(Korean dynastyʼs possession of Dokdo and invasion of Dokdo by imperialistic Japan), Han-guk-dok-libun-dong-sa-yeon-gu (Journal of Korean independence movement studies) 3rd series (also in Korean).

20

ROK Ministry of Foreign Affairs and Trade, Refutation of the assertion of sovereignty over Dokdo by
Japan’s Ministry of Foreign Affairs, 2008, p. 12 (in Japanese).

21

Daegu Internet News, January 4, 2011 (in Korean), available athttp://www.dginews.co.kr/ArticleView.asp?intNum=23465&ASection=001003 (as of January 14, 2012).

22

JACAR (Japan Center for Asian Historical Records), Ref. C09050402800, Gunkan Tsushima senji
nisshi (Wartime journal of the battleship Tsushima), Vol.5, National Institute for Defense Studies (inJapanese).

23“Dai 384-go nichiei domei joyakuchu kankoku ni kansuru kitei ni tsuki kan gaibudaijin yori eikoku
koshi ni kogi no ken” (No. 384 The Korean foreign ministerʼs protest to the British minister regarding
provisions relating to Korea in the Anglo-Japanese alliance treaty), Nikkan kyoyaku teiketsu narabini
tokanfu secchi no ken fu zaikan kakkoku koshikan teppai no ken (Conclusion of the Japan-Korea Treaty
and appointment of the Japanese resident-general of Korea & removal of countriesʼ legations in Korea),
October 17, 1905 in Gaimusho—Nihon gaikobunsho dijitaru akaibu, (Ministr y of Foreign Affairsof Japan̶Digital Archive of the Documents on Japanese Foreign Policy) Vol.38, Part 1, 1905 (inJapanese).

24

JACAR, Ref. A04017269100, Tankosho—Kankoku shisei kaizen ni kansuru kyogikai yoryo hikki— kankoku
genro no ito tokan shotaikai sekijo danwa yoryo (Monograph̶Notes on key points from the Council
for Improvement of Korean Administration̶Key points of discussions at banquet of Korean elder
statesmen attended by resident-general Ito (National Archives of Japan) (in Japanese).

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range of matters that came up involving the Japanese. Particularly notable was the fact that the
Empire of Korea made inquiries to the resident-general about a suspected transaction of land ata coastal area in Jukbyeon, Uljin-gun. In December 1905, the Korean minister of internal affairs,
Lee Ji-yong, suspected that a Japanese citizen had illegally obtained land on the former site of theJapanese Navyʼs watchtower. He reported the suspected transaction to Park Che-soon, who wasby then prime minister, and unlike Takeshima, Park made an inquiry to the resident-general. As aresult, Park received a response that no land transaction had taken place, and in April of the same
year Lee received a report to that effect.25
In July 1906, after the incorporation of Takeshima into Japan, when Ikeda Juzaburo, chiefof the Administrative Bureau of Communications of the Japanese resident-general, inquired
about the islands belonging to the county of Uldo-gun and the date when the county office wasestablished, the official response of the Empire of Korea was: “The islands under that countyʼsjurisdiction are Jukdo and Seokdo, and the county extends 60 ri (approximately 24 km) from east
to west and 40 ri (approximately 16 km) from north to south, totaling over 200 ri.(approximately
80 km)” Thus the response excluded Takeshima, at a distance of 90 km from Ulleungdo, from thearea included in Uldo-gun.26 Yet, if one follows the ROK governmentʼs subsequent assertion that
Takeshima was originally under Korean jurisdiction, the Uldo-gun magistrate Sim Heung-Taekwould have committed a blunder by overlooking the incorporation of Takeshima into Japan ʼs
Shimane Prefecture for more than a year. However, there was no evidence that he suffered any
kind of punishment by the Korean central government, and what is more, he continued to receive
pay raises and promotions steadily thereafter.27
In light of these facts, it would be most natural to infer that the investigation by thegovernment of the Empire of Korea, after it had received a report from the magistrate referring
to “Dokdo… being under our jurisdiction,” revealed that Dokdo was neither an alternative namefor Ulleungdo, nor was it Chikusho (Jukdo), which was 2 km off the east coast of Ulleungdo, nor
was it any of the islands or reefs in the waters around Ulleungdo. It was, rather, an island outside
the Empire of Koreaʼs territory that had never before appeared in any maps of Korea. Thus thecentral government must have noticed the report by the local official was mistaken in saying
Dokdo was an island “under our jurisdiction,” and it did not lodge any protest.
This awareness about Takeshima being outside Korea is also evident from the petition of the
Korean minister of internal affairs, Lee Geon-ha, for Imperial Edict No. 41 of 1900, which raised
the status of Ulleungdo to a gun (county). He stipulated an area that excluded Dokdo from the25

Of ficial documents of the Ministry of Internal Af fairs, Vol.1, Februar y 26, 1906 in Inquiry No. 3,(Kyujanggak Archives of Seoul National University, 奎 17768), and State Council Inquiry No. 56, April
17, 1906. These documents were introduced in Shin Yong-ha, “The Japanese Empireʼs attempt to annex
Dokdo during 1904–1905 and criticism thereof”, Research on the history of the Korean independence
movement, 11th series, Institute of Korean Independence Movement Studies, Independence Hall of
Korea, 1996 (all in Korean).

26“Facts on arrangement of Uldo County,” Hwang-sung-sin-mun (Hwangsung newspaper), July 13, 1906
(in Korean); this document was discovered by Sugino Yomei; “Ishijima=Dokdo setsu hitei no kijutsu
mitsukaru” (Description negating the theory that Seokdo corresponds to Dokdo discovered), San-in
Chuo Shimpo (San-in Chuo News), February 22, 2008 (in Japanese); “Ikedaʼs official letter,” Dae-hanmae-il-sin-bo (The Korea daily news), July 13, 1906 (in Korean).

27

Sim Heung-Taek was appointed to the post of Uldo-gun magistrate and sonin (senior official) of the 6th
rank on January 26, 1903 (Dae-han-je-guk-gwan-bo (Official gazette of the Empire of Korea), January
29, 1903) and was promoted to the post of Hoengseong-gun magistrate and sonin (senior official) of the
3rd rank on March 13, 1907 (ibid., March 15, 1907). Furthermore, on October 1, 1906 he received apay increase to wage grade five (ibid., October 13, 1906), and a further increase to wage grade four on
March 14, 1907 (ibid., March 27, 1907). I was informed about this document and related information by
Matsuzawa Kanji.

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

new Uldo-gun, saying “the area where the islands are located should be about 80 ri in length and50 ri in width.” The name Dokdo that first appeared as the written name for Takeshima in themagistrateʼs report had not existed in any Korean records until then, and despite the fact thatnewspapers and other media had carried stories on the magistrateʼs report and the directive fromthe Empire of Koreaʼs Ministry of Home Affairs,28 there were no Korean references to Dokdo
immediately afterwards. Even after Korea was annexed by Japan, the issue of territorial rights
was raised with regard to another island, Tsushima,29 but in the records relating to the issue of
Ulleungdoʼs ownership,30 there is nothing referring to Takeshima. This is further underlinedby the fact that even among independence campaigners and members of the Korean diaspora
living in the United States, there were no Koreans who asserted Koreaʼs territorial rights overTakeshima. As the above account shows, the Korean historical records found to date contain noevidence that Korea officially owned Takeshima in 1905 or earlier. When the ROK government
claims that Takeshima was “the first victim of Japanʼs aggression against Korea,” or that Japan
took Takeshima “by violence and greed” or “invaded” the island, it is therefore alleging actions
that were by definition impossible.
(2) From the End of World War II to the Signing of the Peace Treaty

So, is it true to say that “upon the liberation of Korea, Dokdo returned to its countryʼs embrace”?
In fact, even during the period of US military administration immediately after the war, when
Korea was “liberated” from Japanese rule, Takeshima was still not depicted in Korean maps

28

“Mu-byeon-bu-yu” (無変不有), Dae-han-mae-il-sin-mun (The Korea daily newspaper), May 1, 1906and “Ur-sui-bo -go-ne-bu”(鬱倅報告内部), the Hwang-sung-sin-mun (Hwangsung newspaper), May9, 1906 had stories on Simʼs report and the content of the directive by the ministry of internal affairs,
but the accounts show no accurate understanding of the location of “Dokdo” or the fact that it was an
uninhabited island. Hwang Hyunʼs O-ha-gi-mun (梧下記聞) and Mae-cheon-ya-rok (梅泉野録) (Vol. 5,
April 5, 1906) (both 1906) also have stories on the articles carried in the Hwang-sung-sin-mun, but thesame limitations apply (all sources in Korean).

29“The appeal of an isolated island̶Visits to Tsushima Island (5)̶Tsushima Island definitely Korean
territory in ancient times,” The Dong-a ilbo (East Asia daily), August 7, 1926 (in Korean). Moreover,according to Morita Yoshio, Syngman Rhee described the return of Tsushima Island as one aspect of
the Korean provisional governmentʼs policy toward Japan in his letter of November 1942 to Victor Chitsai Hoo (胡 世沢), vice-minister for foreign affairs of the government of the Republic of China (Morita
Yoshio, “Nikkan kankei” (Japan-Korea Relations), edited by Yoshizawa Seijiro, Nihon gaikoshi dai 28kan— Kowago no gaiko 1—tai rekkoku kankei (jo) ((Diplomatic history of Japan) Vol. 28̶Diplomacy
after peace 1̶Relations with other nations (first part)), Kajima Kenkyujo Shuppankai, 1973, p. 23.

30

There were many articles that referred to territorial disputes with Japan during Ulleungdoʼs history: Lee
Eul, “Ul-leung-do-tam-bang-gi” (Ulleungdo report), Gae-Byeok (開闢) No. 41, 1923; Lee Yoon-jae, “Themarvelous An Yong-bok̶ Korean diplomatic issues of two hundred years ago, focusing on Ulleungdo,”
Dong-gwang (Eastern Light), No. 1 & No. 2, 1926; “Island pilgrimage toward Ulleungdo (6)̶Lush
forests on every cliff, just like an enchanted land at sea,” The Dong-a ilbo (East Asia daily), September
6, 1928; Su-chun-san-in, “An Yong-bok̶The pleasant hero of the sea who won back Ulleungdo with his
eloquence,” Byeol-Gun-Gon (別乾坤) No. 65, 1933; Chwi Un-saeng (翠雲生), “Seol-hwan Ul-leung-dobi-sa” (Seol-hwa (雪禍)̶A secret history of Ulleungdo), Byeol- Gun-Gon (別乾坤), No. 70, 1934, etc.
(all in Korean). Most of these articles alleged that Ulleungdo had come close to being seized by Japan,
but Korea had managed to take the island back; however, there was no mention of the present-day
Takeshima.

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and documents.31 It was not included within the eastern limit of Korean territory specified in
geography textbooks and other reference works of the period.32 Indeed, Korean textbooks andmaps during the US military administration set Ulleungdo as the countryʼs eastern limit, placing
Takeshima outside national territory.33
This lack of awareness of Takeshima ended in the summer of 1947, when the citizens of
Ulleungdo complained to the military government in North Gyeongsang Province that Japanesecitizens had traveled to Takeshima and asserted ownership rights over the island. This was
the beginning of the Takeshima issue in the ROK after World War II.34 Subsequently, a rangeof research was conducted within the ROK,35 including surveys by the Corea Alpine Club, but
historical evidence for Korean ownership of Takeshima remained inconclusive. Up to 1952, theyear the peace treaty went into effect, the ROK identified Sambongdo, which was another namefor Ulleungdo, as the old name for Takeshima,36 and the key current assertion that the islandreferred to as Usando in pre-modern maps and documents is the modern-day Takeshima did notappear until 1953, after the territorial dispute had flared up.37
On June 8, 1948 an incident occurred in which a large number of Korean fishermen who had
landed on Takeshima were killed or injured by bombing conducted by the armed forces of theUnited States. The US forces apologized and paid compensation to the victims and their families,
and subsequently, the ROK used this incident as grounds to assert that the United States hadrecognized the ROKʼs ownership of Takeshima. According to reports at that time, the ROK
claimed that Takeshima was the ROKʼs territory for a number of reasons, including (i) assertions
to the effect that Takeshima had been called Sambongdo since ancient times, (ii) assertions
to the effect that in the local dialect, the name Dolseom (Seokdo) had changed to Dokseom(Dokdo), and (iii) the victims of the bombing were Korean citizens and the US forces had dealt
with the ROK to resolve the matter.38 However, the key assertions of the ROK government duringnegotiations with the United States over reparations immediately after the signing of the peace
treaty were that Takeshima had historically been under Korean jurisdiction and comprised islets
31

Kim Jin-bok, Complete Map of Korea, Joong-ang Publishing, 1946; (in Korean), etc. According to Jung
Byung-jun in “The Post-Liberation ROKʼs Awareness of Dokdo and Policy Toward It (1945– 51)”,
Journal of Northeast Asian History 5-2, 2008, p. 3 (in English), the first map issued in hangul (the Koreanalphabetic script) after liberation was the Map Attached to the Geography of Korea published by theinterim governmentʼs printing office and edited by the education ministryʼs editorial office. He statesthat he was not able to view the map itself, but it is very likely that Dokdo was not included in it.

32

Jung Hong-heon et al., Jo-seon-ji-ri (Geography of Korea), Jeong-eum-sa, 1946, etc. (in Korean).

33

Supra notes 15 and 16, No Do-yang, Jung-deung-guk-to-ji-ri-bu-do (National geographic student atlas
for middle school), Mun-u-sa, 1947; Choi Nam-sun, Jo-seon-sang-sik-mun-dap (Questions and answers
regarding common knowledge of Korea), 1947; Choi, Jo-seon-sang-sik (Common knowledge of Korea),
1948, etc. (all in Korean).

34

Supra note 31 (Jung, 2008), pp. 3–5.

35

One typical example of such research is Shin Seok-ho, “On where Dokdo belongs”, Sa-hae, first issue,
1948 (in Korean).

36

Song Seok-ha, “Seeking the ancient, historic site of Ulleungdo,” Guk-je-bo-do (International Report),
Januar y 1948, Part 3, No. 1 (new yearʼs issue; in Korean), etc. In the section on the “UlleungdoJaeng-gye” (Ulleungdo dispute) in his set of books entitled Chun-gwan-ji (春官志) (1745), which was
a compilation of the records of the ministr y of rites (the governmental department charged with
diplomacy and protocol), Lee Maeng-hyu stated that Sam-bong-do was Ulleungdo.

37

Fujii Kenji, “Takeshima mondai ni okeru kankoku no shucho no keisei” (The shaping of the ROKʼs
position on the Takeshima issue), Shimane-ken [dai-ni-ki] Takeshima Mondai Kenkyukai Saishu
Hokoku-sho (Final report of the Shimane Prefectural Government Takeshima Issue Research Group[second session]), 2012, pp. 52–53 (in Japanese).

38

Supra note 31 (Jung, 2008), pp. 18–21.

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The Invention of a Basis for the Possession of Takeshima by the Korean Governmentthat “belonged to” Ulleungdo, that in 1905 Japan had “seized” Takeshima for the purposes of
the Russo-Japanese War, and that Supreme Commander for the Allied Powers Instruction Note
(SCAPIN) 1033, addressed to Japan, had placed Takeshima in the “Korean fishing zone.”39
SCAPIN 1033 demarcated the boundary within which Japanese fishing boats could operate.
In accordance with the “MacArthur line,” Japanese vessels were prohibited from approaching or
landing on Takeshima, but waters outside the line (i.e. on the Korean side) were not designatedas an area in which Korean fishing boats could operate exclusively, and the line did not lay
down stipulations on territor y. The Supreme Commander for the Allied Powers (SCAP) was
not authorized to transfer territory, and the fifth paragraph of SCAPIN 1033 specified that “[t]he present authorization is not an expression of allied policy relative to ultimate determinationof national jurisdiction, international boundaries or fishing rights in the area concerned or in
any other area.” This statement was backed up by the August 1947 activity report issued by the
US armed forces administration40 and the November 27, 1952 letter to the US Embassy in Korea
from the US Army Forces, Far East41 (communicated as the opinion of Mark Clark, commanding
general, US Army Forces, Far East and commander in chief, UN Command). Both of these
documents stated that SCAPIN 1033 did not lay down stipulations on territory.
In 1951 the ROK government asserted its basis for the ownership of Takeshima by citing
SCAPIN 677,42 which excluded Takeshima from the scope of Japanese administrative authority.
However, the sixth paragraph of this instruction note stated that “[n]othing in this directive
shall be construed as an indication of Allied policy relating to the ultimate determination of theminor islands referred to in Article 8 of the Potsdam Declaration.” Furthermore, the fact that
this instruction note bears no relation to territorial rights over Takeshima is indicated by thefact that on February 13, 1946, the officer in charge of the Government Section at the General
Headquarters of the Allied Powers (GHQ) replied to an inquir y by a liaison officer of theJapanese Ministry of Foreign Affairs that “the directive relating to administrative separation was
issued merely for the administrative convenience of the Allied Powers and it had nothing to dowith the territorial issue, which should be decided by means of a peace treaty to be concluded at
a later date.”43 Moreover, the article reporting SCAPIN 677 in The Dong-a Ilbo (East Asia Daily),then the leading Korean newspaper, did not mention that Takeshima had been specifically cited39

Supra Note 37, p. 53.

40

NARA (RG331), GHQ/SCAP Records, United States Army Forces in Korea, No. 1, Aug. 1947 (U.S.
Army Military Government̶South Korea Interim Government activities; in English). According tothis report, “Formerly belonging to Japan, a recent occupation directive which drew an arbitrary line
demarcating Japanese and Korean fishing waters placed Tok-to within the Korean zone. Final dispositionof the islandsʼ jurisdiction awaits the peace treaty.” However, the US armed forces administration in
Korea was misunderstanding the nature of the MacArthur line (M line) when it described the seas thatlay outside the M line from the Japanese point of view as Korean fishing waters. The M line was drawn
up under the exclusive authority of SCAP and was supposed to be beyond any interference by othercountries (Fujii Kenji, “Kankoku no kaiyo ninshiki̶Ri shoban rain mondai o chushin ni” (Maritime
perceptions of South Korea̶Centered on the Syngman Rhee line problem), Kankoku Kenkyu Senta
nenpo (Annual report, the Research Center for Korean Studies), 2011, p. 55 (in Japanese).

41

NARA (RG84), “Records of Foreign Service Posts of the Department of State,” Entry 2846, Korea, Seoul
Embassy, Classified General Records, 1953–55, Box 12 (in English).

42

Supra note 37, p. 53.

43

Public documents of the Ministry of Foreign Affairs of Japan, “2. Gyosei no bunri ni kansuru shireibu
gawa to no kaidan” (2. Talks with SCAP regarding administrative separation), Kyu Nihongaichi jokyo
zakken (Miscellaneous matters relating to circumstances in former Japanese territories outside Japan) (inJapanese).

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Yoshiko Yamasakiin the instruction note;44 Takeshima thus was clearly of no concern to Korean people at that time.
Subsequently, on July 6, 1951, SCAPIN 2160 designated Takeshima as a bombing range, andJapanʼs government was informed of this designation.45
Meanwhile, on November 21, 1945, the Japanese government established the ResearchCommittee on Peace Treaty Issues within the Ministry of Foreign Affairs and started preparing
for the eventual signing of the treaty. The committee prepared seven booklets of documents
regarding territorial issues, which it submitted to the United States. Included among thesewas a document entitled “Minor Islands Adjacent to Japan Proper, Part IV. Minor Islands in the
Pacific, Minor Islands in the Japan Sea” (June 1947), which cited the two islands of Takeshima
and Ulleungdo in the Sea of Japan, describing their geographies, histories, and industries. The
document stated that Korea could not assert its territorial rights over Takeshima because, unlike
Ulleungdo, “Liancourt Rocks” had no Korean name and did not appear on any maps drawn up in
Korea. On the last page of the booklet, a map by Nagakubo Sekisui (Revised Complete Map ofJapanese Lands and Roads) was attached. In 1946 the election regulations for the lower house of
the Japanese Diet (the national legislature) designated “Takeshima within Goka Village under the
Oki Islands Branch Office of Shimane Prefecture” as an area for the purposes of elections (Imperial
Ordinance No. 97),46 and in the same year, Japanʼs Ministry of Commerce and Industry registeredprospecting rights for two Japanese citizens, including a person named Hidaka Fusaichi, to mine
resources such as silver, copper, and iron sulfide.47
As it dealt with the aftermath of World War II, the South Korean government at the time was
focusing on issues relating to the return of national assets and demands for reparations fromJapan; its demands in terms of territorial issues centered on frequent demands for the “return”
of the island of Tsushima, rather than Takeshima. On January 23, 1948, 60 members of South
Koreaʼs interim legislature signed and submitted a “petition for the return of Tsushima Island,”48
and in a session of the National Assembly on February 17, the lawmakers proposed requesting
the return of Tsushima Island at the peace conference with Japan.49 In a press conference on
August 17, 1948, immediately after the new government of the ROK was established, President

44“Reduced Japanese territory̶Only the mainland remains as the country is torn apart,” The Dong-a ilbo
(East Asia daily), February 5, 1946 (in Korean).

45

On March 22, 1951, the US Pacific Air Force Headquar ters drew up the Korean Air Defense
Identification Zone (KADIZ) to include Takeshima, and on June 20 the second-in-command of theEighth United States Army (EUSA) asked the ROK government for permission to use Takeshima asa bombing range. The ROKʼs view is that this action by the US armed forces constitutes proof that theUnited States recognized Takeshima as Korean territory. However, the US forces had no authority todetermine territorial boundaries, and as stated in the aforementioned activity report by the US armed
forces administration, they assumed that territorial boundaries would be defined in the subsequent
peace treaty.

46

JACAR, Ref. A04017805000, “Showa niju nen chokurei dai nana hyaku nana go (Shugiingiin senkyo hoshikorei chu kaisei no ken)” (1945 Imperial ordinance No. 707 (Amendment of enforcement ordinancefor election law of the members of the House of Representatives)), Original with imperial signatureand seal; “Showa nujuichi nen chokurei dai kyuju nana go” (1946 Imperial ordinance no.97) (National
Archives of Japan; both in Japanese).

47

March 5, 1953, 15th Diet Session, “Sangiin gaimu, homu rengo iinkai kaigiroku” (Minutes of theForeign and Legal Affairs Commission of the House of Councillors), No. 1 (in Japanese).

48“Tsushima Island was originally Korean territor y̶Should its return be demanded in the peace
conference with Japan?” Seoul-sin-mun (Seoul newspaper), January 25, 1948 (in Korean).

49“Proposal to request the return of Tsushima Island,” The Dong-a ilbo (East Asia daily), February 19,
1948 (in Korean).

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

Syngman Rhee stated that “Tsushima is Korean territory.”50 On September 10 of the same year,
a South Korean presidential envoy held a press conference in Tokyo, where he proposed that
Tsushima be made part of the ROK.51 On January 7, 1949, Rhee strongly asserted his countryʼs
territorial rights over Tsushima, saying in his new yearʼs press conference that “Tsushima should
be returned.”52 On August 5, 1948, members of a private organization in the ROK called thePatriotic Old Menʼs Association sent a petition to Douglas MacArthur, the Supreme Commander
for the Allied Powers, in which they called for the return of Dokdo and Parangdo, as well as
Tsushima, to the ROK.53
These events demonstrate that there was no evidence the South Korean government
recognized Takeshima as part of its own countr yʼs territor y immediately after World War II,
and it was only after an incident relating to territorial rights occurred in the summer of 1947
that it became aware of the existence of “Dokdo” for the first time. Moreover, Japan had clearly
indicated the historical basis for its sovereignty over Takeshima to the Allied Powers early on,
whereas Korea, which continually insisted on the return of Tsushima from Japan, failed to givea clear historical basis for ownership of Takeshima̶an island which did not appear on any of
its own maps̶instead relying mainly on SCAPʼs directives to provide the basis for its territorial
claims. Thus the ROKʼs assertion that “upon the liberation of Korea, Dokdo came back to its
countryʼs embrace” does not hold true either.

(3) Preparation of the peace treaty draft and the ROK government’s actions

The peace treaty draft went through several rounds of revisions,54 after which the US draft dated
March 23, 1951, was passed on to the ROK government. The ROK government then sent a
letter dated April 26 requesting amendments to the draft.55 These included a request to specify
Tsushima as ROK territory, but there was no mention of Takeshima, and the activities log of
the Committee to Investigate Peace with Japan established by the South Korean diplomatic
mission in Japan made no mention of Takeshima in connection with any territorial issue.56 The
islets were also not mentioned in the opinions presented by various countries with regard to
Article 2, Paragraph 2 of the joint US-UK peace treaty draft of May 3 (which excluded the ROKʼs
50“Tsushima no katsujo̶Ri daitor yo yokyu” (President Rhee to demand that Tsushima is ceded),
Yomiuri Shimbun (Yomiuri newspaper), August 19, 1948. The Asahi Shimbun (Asahi newspaper) articleof August 19, 1948, “Tsushima no henkan̶Ri daitoryo yokyu” (President Rhee to demand return of
Tsushima), reported that on August 18 Rhee responded to a question by an AP reporter, saying that hewould demand the return of Tsushima.

51“Tsushima Island was Korean territory 300 years ago: Its return to the ROK is reasonable in terms ofnational defense,” Kyung-hyang-sin-mun (Kyunghyang newspaper), September 12, 1948 (in Korean).

52“Plans for participation in peace conference with Japan̶ President Rhee states in new year press
conference that he will demand the return of Tsushima Island,” The Dong-a ilbo (East Asia daily),
January 8, 1949 (in Korean).

53“Request for Arrangement of Lands Between Korea and Japan” (Records of the U.S. Departmentof State relating to the internal affairs of Japan, 1945–1949: Department of State decimal file 894; inEnglish).

54

Tsukamoto Takashi, “Heiwa joyaku to takeshima (sairon)” (The Peace Treaty and Takeshima(revisited)), Refarensu (The Reference), No. 518 (March edition), National Diet Library, 1994, pp. 31–56(in Japanese).

55

Dae-han-min-guk-sa-ja-ryo-jip 30, Rhee Syng-man Gwan-gye-seo-han-ja-ryo-jip 3 (Documents on thehistory of the ROK 30̶Letters relating to Syngman Rhee 3), National Institute of Korean History, 1951,
pp. 233–236 (in Korean).

56

Nam, Kijeong, “saenpeulansiseuko pyeonghwajoyag han-ilgwangye -ʻgwandaehan pyeonghwaʼ wanaengjeon-ui sang-gwanseong– (Taking Diplomacy Seriously: Japan and Korea on the Road to theTreaty of Peace with Japan),” Journal of Northeast Asian History, Vol. 22, 2008 (in Korean), pp.63- 64.

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Yoshiko Yamasaki

request regarding Tsushima). Subsequently, on July 9, the revised US-UK draft dated June 14
was presented to South Korea via Yang You-chan, the ROK ambassador to the United States. As
the request for Tsushima had been rejected immediately by the United States, on July 19 the
ROK agreed to withdraw its request on Tsushima, but sent a letter asking that Takeshima andParangdo instead be deemed to belong to Korea.57 President Rhee sent a letter dated August 3 toambassador Yang expressing fury that the request for Tsushima had been rejected.58 Yet there
was nothing in the eight-page letter referring to Takeshima. Thereafter, the opinions of various
countries relating to the US-UK joint draft were compiled in the “Treaty Changes” document
dated August 7, and the ROKʼs requests for Takeshima and Parangdo were included in Article
2, Paragraph a.59 However, other countriesʼ opinions with regard to the paragraph were notrecorded.
In talks on July 19, the ROK requested John Foster Dulles to have Takeshima and Parangdo
specified as territories to be renounced by Japan in the peace treaty. Dulles replied that provided
there were historical justifications for the requests, there would be no problems. However, aninternal investigation conducted by the State Department showed that the ROK had no historicalbasis for its requests. Robert A. Fearey of the US Embassy in Japan wrote a letter dated August 3
to the Assistant Secretary of State for Far Eastern Affairs, John M. Allison, informing him that S.W.
Boggs, the Department of Stateʼs geographer, had “tried all resources in Washington, but had
been unable to identify Dokdo (Takeshima) and Parangdo”. Fearey said he also “asked the South
Korean Embassy and they told him they believed Dokdo was near Ulleungdo, or Takeshima Rock,and suspected that Parangdo was too. Apparently, he said, that was all they could learn, shortof sending a cable to Muccio.”60 In response, on August 7, US Secretary of State Dean Acheson
57

Supra note 54. The ROK government currently asserts its territorial rights based on the reasoning that
Takeshima is a satellite island that is an extension of Ulleungdo, but this letter indicates that there wasno such recognition. Prior to this, a letter from S.W. Boggs of the Department of Stateʼs Geographical
Office to Robert A. Fearey dated July 16, 1951, stated “If it is decided to give them [the Liancourt
Rocks/Takeshima] to Korea, it would be necessary only to add ʻand Liancourt Rocksʼ at the end of Art.
2, par. (a).” This again makes it clear that Takeshima was treated as Japanese territory in the peace
treaty (NARA [RG59], Department of State, Decimal File 1950–54, 694.001/7-1351; in English), and thepreamble to the Treaty on Basic Relations between Japan and the Republic of Korea signed in 1965 also
invokes the peace treaty provisions.

58

Supra note 55, pp. 330–331.

59

NARA (RG59) Records of the Bureau of Public Af fairs, Records Relating to the Japanese Peace
Treaties, 1946–1952, Lot 78D173, Box 2 (in English). In recent years there have been comments postedon the Internet to the effect that the Rusk letter lacks force because it was not disclosed to the Allies
and the Japanese government at the time, and because Secretary of State Dulles wrote in an internal
memorandum a couple of years later that the US view regarding Takeshima was simply that of one ofmany signatories to the treaty. However, the Rusk letter was a diplomatic document exchanged between
the US and the ROK in the process of drafting the peace treaty and it serves as a supplementary meansof interpreting the treaty, attesting to the course of events by which Takeshima came to be regarded
as Japanese territor y as a result of the two governments discussing the issue of the attribution of
Takeshima. As such, it was not the type of document that would usually have been made available tothird parties, let alone one for which the issue of validity or invalidity was applicable. Bearing in mind,
moreover, that drafts of the treaty were sent to the relevant countries other than the United States andthat the treaty was drafted, agreed to and signed after the opinions of the countries were incorporated,
it is clear that the assertions about the letterʼs lack of validity are not true. It is also significant that the1965 preamble to the Treaty on Basic Relations between Japan and the Republic of Korea invokes therelevant peace treaty provisions.

60

NARA Confidential U.S. Lot 58 D118 and D637, Records of the Office of Northeast Asian Affairs, Japan
Subject Files, 1947–1956, Reel 39 (in English). “Muccio” refers to John J. Muccio, the US ambassador in
the ROKʼs Busan (then known as Pusan).

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

notified Muccio that “Neither our geographers nor [the] South Korean Embassy have been able
locate Dokdo and Parangdo Islands. Therefore unless we hear immediately [we] cannot consider
this South Korean proposal to confirm their sovereignty over these islands.”61 The following day
the US was informed of Takeshimaʼs coordinates (latitude and longitude), and at the same time,
the US was notified that the ROK government had withdrawn its demand for Parangdo. As aresult of this course of events, the Assistant Secretary of State for Far Eastern Affairs, Dean Rusk,
formally notified Ambassador Yang on August 10 of the US view that Takeshima was Japanese
territory, stating (in the Rusk letter) that Takeshima had not been claimed by Korea as its own
territory prior to 1905. Subsequently, on August 16, Yang and Rusk held talks, but no opinions
relating to Takeshima were recorded.62
Thus, up until July 19, 1951, there was no evidence that the ROK government had made any
official assertions of territorial rights over Takeshima directed toward third parties. Moreover,the peace treaty was signed without any of the other countries involved raising any objection to
the fact that Takeshima was excluded from the territories to be renounced by Japan. However,
perhaps in an attempt to avoid US intervention in a dispute between the ROK and Japan, the Rusk
letter notifying the official view of the United States was not made public until 1978. As a result,
therefore, the letter failed to prevent the ROKʼs illegal occupation of Takeshima and perpetuatedthe cause of conflict thereafter.
The only historical document of this period indicating the Japanese governmentʼs assertions
with regard to sovereignty over Takeshima is entitled “Minor Islands Adjacent to Japan Proper,
Part IV. Minor Islands in the Pacific, Minor Islands in the Japan Sea,” and no records have beenfound to suggest that Japan actively lobbied the Allied Powers. As demonstrated by a seriesof US Department of State documents, the South Korean government asserted its territorial
rights over not only Tsushima, but also over Takeshima when the treaty was being drafted. And
despite the fact that the ROK was given an opportunity to explain the historical evidence for its
ownership of Dokdo (Takeshima), which did not appear on any of its maps, it failed to do so.
These, therefore, are the likely reasons why Takeshima was regarded as Japanese territory in thepeace treaty. Accordingly, the ROKʼs second and third assertions as described in this research
paperʼs introduction are also incorrect in the sense that, with regard to the second assertion, theROK was given several opportunities to make comments on drafts of the peace treaty despite thefact that it was not a signatory to the treaty. With respect to the third assertion, the US declined
to support the South Korean claim over Dokdo not because of Japanese lobbying, but because
South Korea could not provide historical evidence for its claim.
Having had both its ownership of Takeshima and the continuing existence of the MacArthurline rejected during the drafting of the peace treaty, the ROK government decided on the day
before the treatyʼs signing to establish a “fisheries protection zone.” A vast expanse of the Sea
of Japan that was not a major fishing area, including Takeshima, was added to a “fisheries
jurisdiction zone” that had been created by the ROKʼs Ministry of Commerce and Industry.63 That“fisheries jurisdiction zone” had added Socotra Rock (a submerged rock that the ROK asserted
was Parangdo, located in a valuable fishing area in the Yellow Sea) to the area marked out by61

Supra note 55, p. 110.

62

For more details on the series of events, see supra note 54.

63

The actions taken within the ROK government at the time are analyzed in detail in Fujii Kenji, “Rishoban rain senpu e no katei ni kansuru kenkyu” (Research on the process leading to proclamation of
the Syngman Rhee line), Chosen gakuho (Journal of the Academic Association of Koreanology in Japan),Vol. 185; 2002, and Fujii, “Ri shoban rain sengen to kankoku seifu” (The declaration of the Syngman
Rhee line and the ROK government), Dai-ni-ki Takeshima Mondai ni Kansuru Chosa Kenkyu Saishu
Hokoku-sho (Final Report of the Research Survey on the Takeshima Issue (second session)), Shimane
Prefecture, 2011 (both in Japanese).

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Yoshiko Yamasaki

the MacArthur line and the “fisheries protection zone” was even wider, adding vast areas of the
Sea of Japan that included Takeshima to the “fisheries jurisdiction zone.” Kim Dong-jo, leader of
the Government Affairs Bureau in the ROKʼs Ministry of Foreign Affairs, recalls that the reason
they included Takeshima within the Syngman Rhee line despite opposition from some quarters
was that the ROK had become convinced it was necessary to create a precedent for exercising
sovereignty.64
As described above, a mere two months before the signing of the peace treaty, the ROK
demanded that Takeshima, rather than Tsushima, be specified as one of the islands tobe renounced by Japan. However, the ROK was unable to respond to inquiries regarding
Takeshimaʼs exact location and a clear historical basis for its sovereignty over the islets, and its
demand was consequently rejected by the United States. Then, immediately before the peace
treaty was signed, the ROKʼs Ministr y of Foreign Affairs attempted to expand the countr y ʼsterritory by making preparations to incorporate Takeshima into South Korea by force, under thepretext of protecting fisheries.

(4) Actions after the signing of the peace treaty and the ROK’s tricks
The seizure and detention of Japanese fishing boats by the ROK that had star ted in 1947
took place even more frequently after the Syngman Rhee line was declared, while the ROKʼsgovernment maintained an uncompromising stance with regard to Takeshima, and started toconstruct an after-the-fact basis for its actions to make up for the lack of historical evidence todefend its positions.
On September 21, 1951, following the signing of the San Francisco Peace Treaty on September
8, the ROKʼs foreign minister, Byun Young-tae, again contacted Ambassador Muccio to assert
South Koreaʼs ownership of Takeshima.65 The “definitive” grounds Byun gave for his argument
were largely based on SCAPIN 677, followed by the fact that Takeshima had been placed on“the Korean side” of the MacArthur line, and also the fact that after the bombing incident by the
US military aircraft over Takeshima in 1948, the US armed forces had apologized to the Korean
victims. Byun also alleged that substantial documented evidence existed to demonstrate that
Takeshima had been Korean territory for several hundred years before it was “surreptitiously
incorporated into Japan” in 1905. However, in a letter dated October 3 from the US Embassy in the
ROKʼs Busan to the Department of State, the embassy official who dealt with the matter wrote,“the Ministry of Foreign Affairs did not possess a compilation of such ʻevidenceʼ at this time.
Although it was pointed out to the Minister that the Embassy would welcome the submission ofsuch ʻevidenceʼ for transmittal to the Department, it appears doubtful that such information will
be forthcoming.” Subsequently, in the preparatory discussions held from October 20, 1951 prior
to ROK-Japan diplomatic normalization talks, the ROKʼs proposal to replace the MacArthur linewith an alternative zone excluding Japanese fishing boats from international waters was rejected.
In a special committee meeting of Japanʼs House of Representatives on October 22, Kusaba
Ryuen, the parliamentary vice-minister for foreign affairs, who served as plenipotentiary advisor
for the Japanese delegation to the San Francisco peace conference, expressed the opinion that thepeace treaty clearly confirmed Takeshima as Japanese territory. Spurred by his words, an Asahi
Shimbun newspaper reporter went ashore on Takeshima and wrote an article for the newspaper
64

Kim Dong-jo, Hoe-sang-30-nyeon Han-il-hoe-dam (30 Years of ROK-Japan talks recollected), Joong-angilbo-sa, Seoul, 1986, p. 16 (in Korean), translated into Japanese by Hayashi Takehiko, “Kan-nichi no
wakai̶Nikkan kosho 14 nen no kiroku” (Reconciliation between the ROK and Japan̶A record of 14
years of Korea-Japan negotiations), Simul Press, 1993, p. 11.

65

Dok-do-ja-ryo― Mi-guk-pyeon 巻 2 (Dokdo documents̶The United States, Vol. 2), National Institute of
Korean History, 2008, p. 110 (in Korean and English).

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

dated November 24.66 The ROK government issued a condemnation following the article, but the
grounds it gave for Korean ownership were SCAPIN 677 and the fact that the governor of the
ROKʼs Gyeongsang Province had built a memorial monument to the 1948 bombing incident.67
Then on January 18, 1952, the ROK declared the creation of the Syngman Rhee line. Theline excluded Japanese fishing boats from valuable fishing areas in the East China Sea and the
Yellow Sea, while at the same time asserting South Koreaʼs sovereignty over an extensive area ofinternational waters included within the line and also designating Takeshima and Socotra Rock as
ROK territory. By declaring the line, the ROK asserted its intention to maintain and exercise its
national sovereignty, as well as its fisheries jurisdiction rights by placing the marine products andfisheries industries under the control of the government in order to preserve natural resources.68
In response, the Japanese protested by sending a Note Verbale dated Januar y 28, 1952,
indicating their concern about the illegality of the Syngman Rhee line and the occupationof Takeshima. The United States also sent a letter on Februar y 11, expressing considerable
concern about the ROK wielding administrative authority over an extensive area of international
waters.69 On February 12, the ROK government issued a Note Verbale rebutting the Japanese
governmentʼs concerns, but with regard to Takeshima it made only a brief assertion of its
territorial rights based on SCAPIN 677 and the MacArthur line. On April 25 of the same year,
three days before the peace treaty went into effect, the MacArthur line was abolished, andon the same day the Japanese government issued a rebuttal to the ROK government ʼs Note
Verbale. However, the ROK government was unable to respond to the rebuttal with any clear
indication of the historical basis for claiming Korean sovereignty over Takeshima. On May 20,
the Shimane prefectural government submitted a petition to Japanʼs minister for foreign affairs
and the minister for agriculture and forestry asking for Takeshima, which it described as within
the jurisdiction of the Oki Islands Branch Office of Shimane Prefecture, to be excluded from useby the US armed forces in Japan as a bombing range.70 However, on July 26, 1952, pursuant to an
66“Nihon ni kaeru mujin no takeshima̶Kuhaku junen no shima no zenyo o saguru” (The uninhabited
Takeshima returns to Japan̶Exploring 10 blank years in the islandʼs full stor y), Asahi Shimbun(Asahi newspaper), November 24, 1951. For more details, see Terao Munefuyu, “Hi wa tsuketa kedo̶
Takeshima shuzai hoi” (I lit it: Supplement to Takeshima reporting), Asahi Shimbun Osaka head officelocal news section, ed., Osaka Shakai-bu Sengo Nijunen-shi Nakanoshima San- chome San-banchi (Osaka
local news section history of the 20 years after the war, Nakanoshima 3- chome, 3-banchi), 1966, pp.
168–175 (both articles in Japanese).

67“November 26, 1951, Comments on Dokdo by Chief of Public Relations Lee,” Gwang-bok-30-nyeon Jungyo-ja-ryo-jip Wol-gan-jung-ang 1-wol-ho Byeol-chaek-gi-rok (30 years since liberation: Key documents,
Monthly Joongang, Januar y edition, supplementar y volume of records), Joong-ang-ilbo-sa, Seoul,
January 1975, p. 140 (in Korean).

68

Fujii Kenji, “Kankoku no kaiyo ninshiki̶Ri shoban rain mondai o chushin ni” (Maritime perceptionsof South Korea, centering on the Syngman Rhee line problem), Kankoku Kenkyu Senta nenpo (Annual
report, the Research Center for Korean Studies), 2011, p. 58 (in Japanese). Socotra Rock is a submerged
rock located southwest of Jeju Island in the East China Sea. At the time the Syngman Rhee line was
declared, the ROK government called this submerged rock Parangdo and asserted that it was Korean
territor y. The ROK has now named it Ieodo and built a maritime research station there. This has
resulted in friction with China, which calls it the Suyan Rock.

69“Issues associated with the proclamation of the peace line 1953–55” (Documents of the ROK relating to
the Japan-ROK talks), 0119–0122 コマ (in Korean).

70

Sugihara Takashi, “Zoku takeshima no gyogyoken no hensen ni tsuite̶okinoshima gyogyo
kyodokumiai rengokai no doko o chushin ni” (Regarding the changes in fishing rights aroundTakeshima, Part 2̶Centered on movements of the Okinoshima Federation of Fisheries Cooperatives),
Shimane Prefecture Web Takeshima Issue Research (in Japanese), available at
http://www.pref.shimane.lg.jp/admin/pref/takeshima/web-takeshima/takeshima04/ takeshima04-1/
takeshima04-230701.html (as of February 16, 2012).

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Yoshiko Yamasaki

administrative agreement between the United States and Japan, Takeshima was re-designatedas one of the marine exercise and training zones to be provided to the US forces in Japan by theJapanese nation.71
On September 15, 1952, an incident occurred whereby some people from Ulleungdo who werefishing around Takeshima narrowly escaped injury by a US bomber conducting exercises overthe islets. At the time, the second Ulleungdo/Dokdo academic survey team sponsored by theCorea Alpine Club was staying in Ulleungdo to conduct a survey. The team reported the incident
to the ROK government on September 20, and on November 10 the ROK government issued aprotest to the US Embassy in Busan alleging that the bombing had targeted “ROK territory.”72
The correspondence between the US Embassy and the Department of State relating toterritorial sovereignty over Takeshima in relation to this incident is explained in the final
report of the first session of the Research Survey on the Takeshima Issue.73 The exchange ofmessages indicates that the content of the Rusk letter of August 10, 1951 (i.e., the US position
that Takeshima was Japanese territory) had been communicated to US diplomats in overseas
diplomatic missions, and had been notified to the ROK government for a second time on
December 4. The original text of the Note Verbale of December 4, 1952, written by the US
Embassy in reply to the ROK governmentʼs protest, was not available when the final report of theresearch studyʼs first session was compiled. However, the author has obtained Note Verbale No.
187, which was a US reply to the ROK governmentʼs protest. The Note Verbale focused on theclaim in the ROK governmentʼs protest that Takeshima was ROK territory and stated that the
US position remained as described in the Rusk letter of August 10, 1951. The Note Verbale wasrepeating the official view of the United States that Takeshima was Japanese territory.74

71

For more details, see the Ministry of Foreign Affairs of Japan website, available at
http://www.mofa.go.jp/mofaj/area/takeshima/g_beigun.html (as of February 16, 2012; in Japanese).
http://www.mofa.go.jp/region/asia-paci/takeshima/index.html (in English)

72

ROK Ministry of Foreign Affairs Government Affairs Bureau, Dok-do-mun-je-gae-ron (“Introduction to
the Dokdo Issue”), Annex 5 (in Korean and English), 1955.

73

Tsukamoto Takashi, “Takeshima ryoyuken funso ni kanren suru beikoku kokumusho bunsho (tsuiho)”(Documents of the US Department of State relating to the Takeshima territorial dispute (addendum)),Takeshima Issue Research Group, Takeshima mondai ni kansuru chosa kenkyu saishu hokokusho (Final
Report of the Research Survey on the Takeshima Issue), 2007, pp. 79–89 (in Japanese).

74

Supra note 65, p. 255.

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

Fig. 1 Note Verbale No. 187 from the Embassy of the United States of America
to the ROK government, December 4, 1952*
No. 187
The Embassy of the United States of America presents its compliments to the Ministry ofForeign Affairs and has the honor to refer to the latterʼs note of November 10, 1952 statingthat a single engined airplane described as being under the command of the United States
Forces in the Far East dropped bombs on Dokdo Island on September 15, 1952. The Embassy
is advised that the limited amount of information provided in the Ministryʼs note as well as
the very long time which has elapsed since the incident is said to have taken place makeit virtually impossible for the United Nations Command to determine the facts in the case.
Preparations have, however, been expedited to dispense with the use of Dokdo Island as abombing range.
The Embassy has taken note of the statement contained in the Ministryʼs Note that “Dokdo
Island (Liancourt Rocks).is a part of the territory of the Republic of Korea”. The United States
Governmentʼs understanding of the territorial status of this island was stated in Assistant
Secretary of State Dean Ruskʼs letter to the Korean Ambassador in Washington dated August
10, 1951.
American Embassy,
Pusan, December 4, 1952*

National Archives of the Unites States, RG84,Entr y 2846, Record of Foreign Ser vice Posts of the
Department of States, Korea, Seoul Embassy, Classified General Records, 1953-1955, box12

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Yoshiko Yamasaki

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

This Note Verbale was included as an annex to the book entitled Introduction to the Dokdo
Issue published by the ROK Ministry of Foreign Affairs Government Affairs Bureau in 1955.75 It
was used as a basis to argue that since the US armed forces had responded to the ROKʼs protest
by deciding that Takeshima would no longer be a bombing range, the US had recognized that
Takeshima was ROK territory. Kim Dong-jo, leader of the Government Affairs Bureau in the
Ministry of Foreign Affairs, explained in the preface to Introduction to the Dokdo Issue that thebookʼs purpose was not to notify the general public of the Dokdo issue, but to enable the headsof diplomatic missions overseas to correctly understand the matter and to provide them withinformation necessary to counter the unwarranted propaganda of the Japanese̶a purpose forwhich he hoped the book would be frequently put to use. Shockingly, however, the book omitted
the section of the Note Verbale that reaffirmed the Rusk letter, thereby concealing the fact that
the US considered Takeshima to be Japanese territory not only from ROK citizens, but also fromthe ROKʼs own diplomats.76

75

Supra note 72, Annex 6.

76This falsification was first pointed out on Gerry Beversʼ blog (in English), available at
http://dokdo-or-takeshima.blogspot.com/2011/08/1955-introduction-to-dokdo-issue-rok.html (as ofFebruary 16, 2012).

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Yoshiko Yamasaki

Fig. 2 Note No. 187 from the United States Embassy to the ROK government,
December 4, 1952, as it appeared in the Ministr y of Foreign Af fairs
Government Affairs Bureau Introduction to the Dokdo Issue (1955). The
final paragraph reaffirming the letter from Rusk has been abbreviated to“etc.”

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

Meanwhile, E. Allan Lightner, Jr., the charge dʼaffaires ad interim of the US Embassy in
Korea, made inquiries to establish the facts about the bombing following the ROK governmentʼs
protest. He received a reply from a representative on behalf of the commander-in-chief of United
Nations Command, Mark W. Clark, stating that, although they had been unable to confirm thefacts regarding the bombing, if the use of Liancourt Rocks (Takeshima) as a bombing range
were to be suspended, the ROK as well as other interested agencies would be notified, but thatquestions of territorial sovereignty were beyond the scope of SCAPʼs authority.77 The letter also
pointed out that SCAPIN 1033, relating to fisheries, had specified that “it was not to be construed
as an expression of Allied policy relative to the ultimate determination of national jurisdiction,international boundaries or fishing rights in the area concerned.” Lightner replied enclosing theDecember 4 notification to the ROK government,78 urging that attention be paid to the section
invoking the content of the Rusk letter.
On December 13, 1952, the Commander in Chief, Far East (CINCFE) decided to revoke thedesignation of Takeshima as a bombing range, and the US Embassies in Japan and the ROK
deliberated with the commanding general of the Korean Communications Zone (KComZ),
Thomas W. Herren, about whether they should notify the ROK of this revocation.79 On January
20, 1953, Herren notified the ROKʼs minister for foreign affairs that Takeshima would no longer
be used as a bombing range,80 but despite the fact that the Note Verbale of December 4 clearly
notified the ROK government that the United States recognized Takeshima as Japanese territory,
the December 4 memo was appended as documentary material to a publication compiled for
the ROK governmentʼs embassy officials to use as grounds to assert the ROKʼs ownershipof Takeshima. 81 Furthermore, the Note Verbale had been falsified by omitting the section
reiterating the Rusk letter to give the impression that the United States had acknowledged the
ROKʼs ownership of Takeshima and revoked the designation of Takeshima as a bombing range
as a result of the ROK government ʼs protests and demands. Its inclusion in the publication
was intended as evidence that the United States had acknowledged the ROKʼs ownership ofTakeshima.
Subsequently, on February 4, 1953, there was an incident in which the Japanese Dai Ichi
Daihomaru fishing boat was fired at by the ROK navy in international waters near Jeju Island,
resulting in the death of its chief fisherman. 82 On Februar y 13, the Japanese government
protested by sending a Note Verbale to the ROK legation, and on Februar y 18, it demanded
compensation and measures to prevent a reoccurrence83. On Februar y 23, after the incident
was taken up in the Japanese Diet, the ROK presidential secretariat sent a letter to the Japanese
government stating that the ROK had established “a line of sovereignty for the sake of peace”

77

Supra note 65, p. 251.

78

Supra note 65, p. 252.

79

Supra note 65, pp. 262–264.

80

Supra note 72, Annex 7.

81

Supra note 72.

82

February 23, 1953, 15th Diet Session, “Suisan, homu, gaimu iinkai rengo shinsakai kaigiroku” (Minutesof the Joint Review Board for the Fisheries, Judicial Affairs, and Foreign Affairs Committees), no. 1 (inJapanese).

83

Februar y 25, 1953, 15th Diet Session, “Gaimu iinkai kaigiroku” (Minutes of the Foreign Af fairs
Committee), No. 20 (in Japanese).

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Yoshiko Yamasaki

called the Syngman Rhee Line.84 This was followed on February 24 by an announcement of “thetruth about the incident” by the ROK Government Information Agency,85 and on February 26, an
official at the ROKʼs Home Affairs Ministry released a statement about the incident.86 Tensions
were building between Japan and the ROK, and it was within this context that, on Februar y27, newspapers reported that the ROK Defense Ministry had issued a statement alleging thatthe commander of the Far East Air Forces (FEAF), General Otto Paul Weyland, had sent the
Ministry a letter acknowledging Takeshima as ROK territory,87 and this became a major issue
in Japan.88 On March 3, Ellis O. Briggs, the US ambassador to Korea, filed a report with theState Department saying that he hoped any future communications relating to Dokdo would betransmitted through the Embassy, thus ensuring there could be no distortion of the US position
that the islets were not subject to Korean jurisdiction. He added that the Embassy had not
obtained an original copy of the ROK defense ministerʼs statement, but it was clear that the ROK
government (or at least certain elements within it) had distorted the meaning of any such notefrom Weyland to suit its own purposes.89 On March 5 (or 4), the Japanese Ministry of Foreign
Affairs asked the US Embassy about whether Weyland had actually acknowledged Takeshima
as ROK territory,90 and the Japanese Diet also held deliberations on the matter.91 On March 12,
Secretary of State Dulles sent notification to the US Embassies in both Japan and the ROK thatthe Department of State and the Department of Defense had conducted thorough investigations,but they were unable to discover Weylandʼs letter. He also indicated that the Department of State
would maintain its position as outlined in Note No. 365 to Busan and Note No. 1360 to Tokyo,
both dated November 26. In future, he said, any formal statements affirming or denying thematter would need to be reviewed before being made public.92 Note No. 365 to Busan states thatthe reiteration of the Rusk letter serves only to repeat the existing position of the United States,
so it distances the United States from the dispute and might dissuade the ROK from introducing
a “gratuitous ” issue into Japan-ROK negotiations that have already fallen into considerable
difficulties.93 In the end, the ROK government never offered the Weyland letter as evidence of84“Sovereignty line demarcated for the sake of peace̶ Letter to Japanese representative from presidential
secretariat on Japanese fisherman incident,” The Dong-a ilbo (East Asia daily), February 26, 1953 (inKorean).

85“The truth about the Daihomaru incident̶Announcement by the Government Information Agency,”
The Dong-a ilbo (East Asia daily), February 25, 1953 (in Korean).

86“Reinforcement of maritime security unavoidable̶ Home Affairs Ministr y official Jin̶Comments
relating to ROK-Japan dispute over Japanese fisherman incident,” The Dong-a ilbo (East Asia daily),
February 27, 1953 (in Korean).

87“Takeshima ryoyu o kakunin̶kankoku kokubobu de seimei” (Ownership of Takeshima confirmed̶
ROK Defense Ministr y issues statement), Mainichi Shimbun (Mainichi newspaper), Februar y 28,
1953 (in Japanese); “Fears of Dokdo fishermen dispelled̶US forces guarantee end of aerial bombing
exercises,” The Dong-a ilbo (East Asia daily), February 28, 1953 (in Korean), etc.

88

Februar y 28, 1953, 15th Diet Session, “Shugiin gaimu iinkai kaigiroku” (Minutes of the House ofRepresentatives Foreign Affairs Committee), no. 21 (in Japanese).

89

Supra note 65, pp. 272–273.

90

Supra note 65, p. 279.

91

March 5, 1953, 15th Diet Session, “Sangiin gaimu, homu iinkai rengo shinsakai kaigiroku” (House ofCouncillors̶Minutes of the Joint Review Board for the Foreign and Legal Affairs Committees), no. 1 (inJapanese).

92

Supra note 65, p. 285.

93

Supra note 65, p. 250. It can be inferred from the content that Note no. 187 was modelled on this.

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

territorial rights94 and consequently it is assumed that the letter was a falsification by the ROK
Defense Ministry.
On March 19, 1953, it was agreed at the Japan-US Joint Committeeʼs Marine Subcommitteethat the bombing training area at Takeshima would be eliminated, and following approval by theJapan-US Joint Committee, Takeshima was formally removed from the exercise zone.95 But it does
not follow that the United States and its armed forces acknowledged that Takeshima was Korean
territory as a result of the agreement in the Subcommittee, as has been argued by the ROK. It
is evident that the US government was treating Takeshima as Japanese territory. Subsequently,
a letter from R. B. Finn of the US Embassy in Japan to William Leonhart, First Secretary of the
US Embassy in the ROK,96 suggested that when the time was right, the US government might
consider issuing a statement to clarify the fact that, according to the US interpretation of thepeace treaty, sovereignty over the Liancourt Rocks remained with Japan. The letter is believed tohave been written in April 1953.97
As outlined above, therefore, the ROK government, having been denied sovereignty overTakeshima under the peace treaty, used the Syngman Rhee line to forcefully incorporate
Takeshima into its own territory just before the ROK-Japan diplomatic normalization talks were
to be held and the peace treaty was to enter into effect. Then it attempted to gloss over its illegal
action by concealing a part of an official US document to twist the truth, and may even havegone so far as to distort the words of a high-ranking US military officer to provide a basis for its
assertion that the United States had recognized the ROKʼs territorial rights over Takeshima.
In September 1953, the ROK government sent a Note Verbale to the Japanese government
stating for the first time the historical basis for Takeshima to be considered as ROK territory.
However, the legitimacy of that alleged historical basis has already been empirically denied for anumber of reasons, including the claim that the present-day Takeshima was identified as Usando,
an island that appeared on old maps of Korea. The Note Verbale was therefore just anotherattempt by the ROK government to fabricate a historical basis for its claims.
94

Supra note 72.

95

According to Naito Seichu, the revocation of Takeshimaʼs designation as a bombing range within lessthan one year was in response to the protest by the ROK government, which knew that the JapanUS Joint Committee had made the designation. In other words, it was based on the official letter sentby the ROK government on February 27, 1953, demanding that the designation be revoked (Naito,
Takeshima=Dokdo mondai nyumon—Nihon gaimusho “Takeshima” hihan (Territorial issue between
Japan and Korea; case of Takeshima/Dokdo: A critique of the “10 issues of Takeshima” published by
the Ministry of Foreign Affairs of Japan), Shinkansha, 2008, p. 53 (in Japanese)). Naito also says thatfor this reason the ROK government sent a letter demanding measures to prevent reoccurrence of theincident to the US ambassador in the ROK on November 10, and after receiving notice on December 24
from the commanding general of the US Army Forces Far East that there would be no more bombing
exercises around Dokdo, the ROK-US Joint Committee decided on March 19, 1953 to revoke its status
as an exercise area. Naito therefore concludes that the course of events indicates that this series ofmeasures was taken based on recognition by the US armed forces in the ROK that Dokdo was ROK
territory (ibid., p. 54). However, I was not able to locate records confirming that a meeting of the ROKUS Joint Committee was held on that date (for details refer to the answer to the third question in theopinions on the Takeshima issue for Dec. 2009 and Jan. 2010 in Shimane Prefecture Web Takeshima
Issue Research (in Japanese), available at
http://www.pref.shimane.lg.jp/soumu/web-takeshima/takeshima08/2007/record200912.html
Note that I was also not able to locate the official letter sent by the ROK government on February 27,
1953, or the notice of December 24, 1952.

96

Supra note 31 (Jung, 2008).

97

NARA (RG 84) Memorandum by R. B. Finn to Leonhart, Japan, Tokyo Embassy, Classified General
Records 1952-63, Box 23, folder 322.1 (in English).

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Conclusion

The ROK government asserts that “Dokdo is a historic land that was invaded in the process ofJapanʼs imperialist invasion of the Korean peninsula, but then recovered.”98 This assertion comesfrom the “official letter of 57 years earlier” written by minister for foreign affairs Byun Youngtae that was cited earlier in this paper, which is thought to be the basis for the Note Verbale
sent by the ROK government on October 28, 1954.99 However, as this study has demonstrated,sensationalist comments, such as this, that incite nationalism run counter to the facts of thematter. Nonetheless, the ROK government has for more than 60 years repeatedly incited antiJapanese sentiment among its citizens and stirred up public opinion for political purposes, or toput diplomatic pressure on Japan.
After World War II, the ROK shocked Japan by petitioning the United States to demand the100“return” of Tsushima, an inherent part of Japanese territory. Although the ROK made anotherformal demand on Tsushima just before the peace treaty was signed, it was denied by theUnited States. The ROK then immediately asserted territorial rights over Takeshima instead,and despite lacking any basis in the form of geographical or historical documents, it adopted theunquestioning belief that Takeshima was its own territory and demanded that Takeshima be
specified in the peace treaty alongside Ulleungdo as one of the islands Japan would renounce.
With inadequate historical documents or knowledge relating to the island, however, the ROK was
unable to secure US support, and instead ended up prompting the decision to make Takeshima
Japanese territor y under the peace treaty. The ROK then used force to occupy Takeshima
illegally̶still without any legal basis̶thereby creating a future source of trouble between South
Korea and Japan. Furthermore, as this research paper has demonstrated, the ROK did not present
documents as they were, but knowingly falsified them prior to inclusion in official publications.
The ROK may have distorted or stretched the meaning of the words of a high-ranking US military
officer in an attempt to create new evidence for Korean ownership of Takeshima. Consequently,
for nearly 60 years, researchers in the ROK were forced to conduct studies and write research
papers based on erroneous information,101 thus depriving South Korean citizens of their right toknow the truth.
98

ROK Ministry of Foreign Affairs and Trade, Refutation of the assertion of territorial rights over Dokdo by
the Japanese Ministry of Foreign Affairs, 2008 (in Japanese).

99

Hyun Dae-song maintains that the minister for foreign affairs, Byun Young-tae, also refuted Japanʼsassertion of territorial rights over Dokdo in comments made in September 1954. His comment indicated“a heroic resolve to fight to the last in defense of Dokdo.” (Hyun, The Birth of Territorial Nationalism:
The Politics of the Dokdo/Takeshima Issue), 2006, p. 278 (in English)).

100“Tsushima henkan wa gensoku ni kaesu” (The return of Tsushima goes against fundamental principles),Asahi Shimbun (Asahi newspaper), August 28, 1948 (in Japanese). In recent years there have beenreports of the discovery of historical documents indicating that the official responsible for the matterat the Japanese Ministry of Foreign Affairs at the time was considering measures to counter the ROKʼs
demand, in addition to reports of testimony by archaeologists (“Tsushima wa kankokur yo ni taio:
shiryo hakken” (Dealing with the assertion that Tsushima is ROK territory: Documents discovered),
NHK Nyusu (NHK News), July 3, 2008; “Kuni o tadorite̶kokkyo to ryodo no kokogaku, daini-bu (2)̶Tsukushiboko nihon wo urazuke” (Tracing the nation̶the archaeology of borders and territories, Part2 (2)̶Tsukushiboko (ancient bronze pikes) provide evidence for Japanese territory), Sankei Shimbun(Sankei newspaper), May 5, 2011.

101

Kim Myung-ki, “A critique of Paragraph 3 of the items relating to the peace treaty with Japan in the “10issues of Takeshima” published by the Ministry of Foreign Affairs of Japan,” Dok-do-yeon-gu (Dokdo
Research), 2009 fall issue (No. 7), 2009, pp. 62–70 (in Korean). In this article, Kim states that following
the response from the US Department of State, the official intent of the United States was to view Dokdo
as ROK territory, “as shown below (in the Annex).” He then quotes Annex 6 of Dok-do-mun-je-gae-ron (theIntroduction to the Dokdo Issue), which omitted the section relating to the Rusk letter.

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The Invention of a Basis for the Possession of Takeshima by the Korean Government

However, fewer and fewer people are asserting that the United States discontinued useof Takeshima as a bombing exercise site and recognized the ROKʼs ownership of the island
in response to the ROKʼs protest. In recent years, even some South Korean researchers arerecognizing Usando in the old maps as Chikusho (called “Jukdo” in the ROK),102 and we arealso seeing researchers who, after analyzing official US documents and the ROKʼs historical
documents from when the country was ruled by the US military after World War II, acknowledge
that the ROK had only a tenuous awareness of Takeshima.
There have been other developments. In September 2011, the ROKʼs Ministry of Foreign Affairs
and Trade invited a judge who had written a novel imagining that the Takeshima issue had beenreferred to the International Court of Justice to join the ministry,103 and requested budget funds
for researching litigation and preparing English-language documents.104 After the discover yin 2010 of the Uldo-gun rule book, there was a separate announcement about the unearthingof some questions and answer sheets for the civil ser vice exam known as gwageo that wasadministered during the Joseon Dynasty. The test materials, which were discovered as thisresearch paper was being written, asked candidates about measures to deal with the Ulleungdo
Dispute that occurred during the reign of King Sukjong.105 If one reads the texts released, neither
the questions nor the answers include any information about Takeshima, and only Ulleungdo ismentioned in connection with the borders of the Kingdom of Joseon and the subsequent Empireof Korea, as well as in territorial disputes with Japan. If anything, the texts that were made public
seem to show that Koreaʼs central government, regional officials, and the intellectuals of the day
did not recognize the countryʼs boundaries to extend as far as Takeshima. We can only hope thatthe results of further document collection and empirical research on the part of the ROK will bemade available.
Japanʼs yearly budget for Takeshima is less than 50 million yen, including the budgets for both
the Ministry of Foreign Affairs and Shimane Prefecture. The ROK, on the other hand, expends
an enormous budget equivalent to more than 5 billion yen annually. Even greater sums willsoon be required. It has been reported that there are plans to refurbish accommodations on theislets and to construct sightseeing facilities that will enable visitors to observe a local maritime
research station and get views of the sea. Plans are also reportedly being drawn up for facilities
such as a quay where 5,000-ton class vessels can berth. Meanwhile, the Japanese government
constantly files protests, and while these types of actions by the ROK do not result in Takeshima
becoming ROK territory, there is a concern that the ROK may make headway in establishing defacto occupation of the island. Japan therefore needs to respond properly. As explained previously,
102

Oh Sang-hak, (The change in perception of Ulleungdo and Dokdo represented in maps of the Joseon
Dynasty), Mun-hwa-yeok-sa-ji-ri (Journal of cultural and historical geography), Part 18, No. 1, 2006, p.
92; Kim Hwa-kyung, (Research on perception of Dokdo as it appeared in old Korean maps), Dok- doyeong-yu-gwon-hwak-lib-eul-wi-han-yeon-gu (Research to establish territorial rights over Dokdo), edited
by Yeungnam University Dokdo Research Institute, 2010, p. 25 (both in Korean), etc.

103

“Dokdo horitsu shimonkan ni hanji ninmei̶Gemba gaisho no hatsugen, ikan̶kankoku”, (Judgeappointed as Dokdo legal advisor y attorney; ROK expresses regrets over Japan foreign minister
Gembaʼs statement) (in Japanese), Jiji Tsushin (Jiji Press; online version), September 6, 2011, available
at http://www.jiji.com/jc/zc?k=201109/2011090600633 (as of February 15, 2012).

104“Kankoku seifu, rainen no dokdo kanren gaiko yosan ni go-oku won o tonyu” (ROK government
allocates 500 million won in next yearʼs Dokdo-related diplomatic budget), Joong-ang ilbo (Korea
Joongang daily), Japanese-language online version, October 17, 2011 (in Japanese), available athttp://japanese.joins.com/article/671/144671.html (as of February 15, 2012).

105

Daegu District Bar Association website, “Dokdo Committee discovers historical documents relating to
Dokdo” (in Korean), available athttp://www.daegubar.or.kr/index.php?status=menu5&code=01&no=420 (as of February 16, 2012).

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what the ROK is doing is illegally occupying Takeshima without any evidence that is backed upby historical documents. However, as the number of researchers and government officials in the
ROK who use historical documents as a basis for discussions is increasing, it is to be hoped that
more people will see through their governmentʼs tricks and express their concerns about taxes
being squandered.
When Shimane Prefecture established local regulations for Takeshima Day in 2005, many
people voiced their concerns about the impact of the measure on Japan-ROK relations, and there
was a temporary deterioration in how the citizens of the ROK viewed Japan. As the empiricalresearch of Shimane Prefectureʼs Takeshima Issue Research Group proceeded, the loud andemotional reaction in South Korea tapered off, and there have been some attempts at conducting
empirical research on the subject in the ROK. Meanwhile, there also seems to be a shift in South
Korea toward lobbying the Japanese political world106 and academic circles.107 The people ofJapan need to be aware that territory that is inherently Japanese, Takeshima, has been occupied,and that Japanʼs sovereignty continues to be violated. The Japanese government needs to makeeven greater efforts to resolve the issue peacefully by investing funds in empirical research andactivities to inform the public.

106“Possibility of Dokdo being misused politically because Japanʼs Democratic Party administration isweak̶Interview with Northeast Asian History Foundation,” Jugan Chosun (Weekly chosun), No. 2136,
2010, pp. 22–23 (in Korean).

107

Kyoto Sangyo University Institute for World Affairs, ROK and Northeast Asia history foundation, Joint
academic seminar, “Kagami no naka no jiko ninshiki̶nihon to kankoku no rekishi, bunka, mirai” (Selfperception in the mirror̶The histories, cultures, and futures of Japan and the ROK), (October 9–10,
2010) (in Japanese).

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Territorial Issues in the Indo-Pacific: the East China Sea… and Beyond

Territorial Issues in the Indo-Pacific:
the East China Sea… and Beyond
June Teufel Dreyer*

Abstract
Chinese actions over the past decade indicate that the PRC intends to assert functional
control over broad areas of the globe, including the Indo-Pacific, Eurasia, Africa, Latin
America and the antipodes. The stated motivation for these actions, the need to protectenergy sources crucial to support the nationʼs economy is valid, although the means
employed to do so have sometimes violated both international law, the laws of the countries
impacted, and the Beijing governmentʼs own promises. Militarization of certain areas, thethreat of force, cyberattacks, economic pressures, and united front efforts to influence
the domestic politics of target countries in ways that favor Chinese interests have all been
employed. This article summarizes these actions, the countermeasures that have beentaken against them, and their possible consequences.

A

What Issues?
ccording to China, there are no issues in the Indo-Pacific. Although the numerous
other claimants to territories disagree, influential voices within them have reluctantly
concluded that territorial disputes have indeed been resolved, or are well on their way
to resolution, and in Chinaʼs favor. The headline of a recent article in the New YorkTimes stated flatly that Chinaʼs sea control is a “done deal.” 1 This perhaps startling statement is
supported by congressional testimony: at his confirmation hearing as head of the United States
Indo-Pacific Command by the Senate Arms Services Committee in April 2017, Admiral PhilipDavidson stated that that “China is now capable of controlling the South China Sea in all scenarios
short of war with the United States.” 2 Beijingʼs construction of artificial islands, after first denying
any intention to militarize them, was followed quickly by their doing so. Bases, hangars, barracks,
bunkers, underground fuel and water storage facilities appeared, all carefully constructed to resist
the punishing typhoons that regularly afflict the area. 3 Western countries frequently abet the
PRCʼs rapidly enhancing capabilities, as evidenced by Britainʼs decision to sell unlimited amounts*

June Teufel Dreyer is Professor of Political Science at the University of Miami, Coral Gables, Florida.

1

Hannah Beech, “Chinaʼs Sea Control Is a Done Deal, ʻShort of War With the U.S.ʼ,” The New York Times,
September 20, 2018, https://www.nytimes.com/2018/09/20/world/asia/south-china-sea-navy.html.

2“Advance Policy Questions for Admiral Philip Davidson, USN Expected Nominee for Commander, U.S.
Pacific Command.” United States Senate Committee on Armed Services, last modified January 29, 2018,https://www.armed-services.senate.gov/imo/media/doc/Davidson_APQs_04-17-18.pdf.

3David Brunnstrom and Michael Martina, “Xi denies China turning artificial islands into militar ybases,”REUTERS, September 26, 2015, https://www.reuters.com/article/us-usa-china-pacific/xi-denieschina-turning-artificial-islands-into-military-bases-idUSKCN0RP1ZH20150925.

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June Teufel Dreyerof military radars and technology to China. 4
The situation in the East China Sea seems to be moving in a similar direction, with incidents of
incursion into Japanʼs claimed exclusive economic zone (EEZ) increasing after a Chinese fishingboat rammed two Japan Coast Guard (JCG) vessels in September 2010. Beijing announced that,since the waters involved belonged to China, its fishermen had a legitimate right to ply its waters,
it would henceforth patrol the area. And so it has, less often at first, more frequently since then,although the pace has been measured and the increases sporadic̶the so-called salami tactics
that make defining a threshold that would trigger retaliation difficult for Japanese authorities
to determine. Japanese fishing boats, fearing for their safety, now rarely venture into the area.
Recent cases in point include:• More Japanese Air Self Defense (ASDF) scrambles near the contested Senkaku/Diaoyu
Islands from April to June 2018 than in January through March (173 versus 105) or in April
to June 2017 (105 versus 101).
• Chinese Coast Guard (CCG) ships entered the territorial waters of the Senkakus 23 times
from April to June 2018 versus 20 from January to March.
• What appeared to be a Chinese unmanned aerial vehicle (UAV) flew north of the Senkakusin April 2018, albeit without entering Japanese airspace, for the first time since May 2017.5• In June 2018, a hospital ship of the Chinese navy entered the contiguous zone adjacent to
the Senkakus for the third time in a year.6• The PRCʼs State Oceanic Administration statement that it had installed a large buoy within
Japanʼs claimed EEZ in the vicinity of the Senkaku, presumably to collect weather and otherdata for military purposes.7• A JCG repor t revealed that the Chinese oceanographic ship Xiangyanghong10 had
conducted unauthorized activities inside Japanʼs claimed EEZ.8

Port Facilities

Chinaʼs expansionism is also evident in its activities relevant to the Indian Ocean and the Persian
Gulf. These passages are important to the PRCʼs energy needs, since 82 percent of the oil andgas that China imports pass through the Indian Ocean. Pakistan has leased its port of Gwadar,
located just outside the Straits of Hormuz at the mouth of the Persian Gulf and Indian Ocean, toChina until 2059. In July 2018, Sri Lanka awarded a 99 year lease on Hambantota, at the countryʼs

4

Stephen Chen, “Britain to sell China ʻunlimitedʼ amount of military radar equipment, technology,” South
China Morning Post, November 1, 2018, https://www.scmp.com/news/china/society/article/2171242/
britain-sell-china-unlimited-amount-military-radar-equipment.

5

Ministry of Defence Joint Staff Office, “Suitei Chūgokuki no Higashishinakai ni okeru hikou ni tsuite[Regarding what it appears to be a Chinese aircraft flying over East China Sea],” Joint Staf f Press
Release, April 18, 2018, http://www.mod.go.jp/js/Press/press2018/press_pdf/p20180418_01.pdf.

6“Chinese naval vessel spotted near disputed islands, Japan airs concern,” Kyodo News, June 29, 2018,https://english.kyodonews.net/news/2018/06/caaf411aa97a-chinese-naval-vessel-spotted-neardisputed-islands-japan-airs-concern.html.

7“Nihon no EEZnai de chugoku no aratana bui: gunji mokuteki demo shushu ka [New Chinese buoy inJapanese EEZ: information gathering for military purpose too?],” Sankei Shimbun, Oct. 2, 2018,https://www.sankei.com/affairs/news/181002/afr1810020003-n1.html.

8Japan Coast Gard, “Waga kuni shūhen kaiiki ni okeru kaiyō chōsasen no katsudō jōkyō [The activities ofmarine research vessels within ocean surrounding Japan],” last modified March 1, 2019,https://www.kaiho.mlit.go.jp/info/topics/post-485.html.

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southern extremity and overlooking South Asian sea lanes, to China Merchant Port Holdings.9 At
the same time, the Sri Lankan government announced that it would move the headquarters of its
southern fleet to the Chinese-operated port. Whether observersʼ concerns that this could resultin Chinese constraints upon Sri Lankaʼs freedom of action are justified remains to be seen.
Djibouti, on the Horn of Africa, may be the most strategically valuable acquisition of all. The
Bab al-Mandeb, a twenty-mile passage between Djibouti and Yemen, connects the Suez Canalthrough the Red Sea, with the Indian Ocean and the Arabian Sea. In July 2017, it became the firstformal overseas Chinese military base.10 China will not be alone in Djibouti, however, since theUnited States, Japan, France, and Italy also maintain facilities there.
China also expressed an interest in constructing a naval facility in the Maldives ʼ Southern
Laamu Atoll, near the main trading route between Africa and Asia. In 2018, India, alreadyinvolved in a long-simmering land border conflict with China as well as concerned with maritime
encirclement from Gwadar and Hambantota, spent millions of dollars helping Ibrahim Mohamed
Solih, a leading opponent of the facility, to defeat then-president Abdulla Yameen, who favored it.11
New Zealand media described their country as “blindsided” when Niue and the Cook Islands,
self-governing nations in free association with New Zealand and subsidized by its aid andinvestment, signed memoranda of free association to join Chinaʼs belt and road initiative in returnfor nearly ＄15 million for wharf renovation and an upgraded expressway12; Beijing has alreadypaid the Cook Islands for pelagic tuna fisheries licenses and is discussing development of a deepwater port on its Penrhryn Island.
Acquisition of overseas bases and basing rights is not confined to the Indo-Pacific. China
has expressed interest in the polar route, now ice-free for longer periods of the year. It has alsoannounced plans to build a permanent airfield in Antarctica.13 This will insert the PRC into the
management of the continentʼs air traffic network. While there are legitimate scientific researchreasons for the facility, its associated radar and other communications facilities can be used
for missile guidance and surveillance operations that would give Beijing the ability to shift thestrategic balance in the area. In Latin America, soon after El Salvador broke diplomatic relations
with Taipei in favor of recognizing Beijing, reports circulated that the PRC was negotiating toestablish a military base in El Salvadorʼs strategically located Gulf of Fonseca. These were promptly
denied by a Chinese official14, with Salvadorian President Salvador Sanchez Ceren reiterating that

9

Abhijit Singh, “Chinaʼs strategic ambitions seen in the Hambantota port in Sri Lanka,” Hindustan Times,
July 26, 2018, https://www.hindustantimes.com/analysis/china-s-strategic-ambitions-seen-in-thehambantota-port-in-sri-lanka/story-PErf7dzG8lZINVGuF37gxK.html.

10“For Djibouti, Itʼs All About Location,” Stratfor Worldview, last modified January 29, 2018,https://worldview.stratfor.com/article/djibouti-its-all-about-location.

11

Yuji Kuronuma and Oki Nagai, “Maldives election marks setback for Chinaʼs Belt and Road,” Nikkei
Asian Review, September 25, 2018, https://asia.nikkei.com/Spotlight/Belt-and-Road/Maldives-electionmarks-setback-for-China-s-Belt-and-Road2.

12Matthew Rosenberg and Hamish Rutherford, “Government blindsided as Niue signs up to Chinese
blandishments,” stuff, November 4, 2018, https://www.stuff.co.nz/national/108331406/governmentblindsided-as-niue-signs-up-to-chinese-blandishments.

13“China expands its presence in Antarctica,” The Japan Times, November 1, 2018, https://www.
japantimes.co.jp/opinion/2018/11/01/editorials/china-expands-presence-antarctica/#.XFKhgVz7SUl.

14

Rosa María Pastrán, “China niega una intención militar en golfo de Fonseca,” La Prensa Grafica,
October 1, 2018, https://www.laprensagrafica.com/economia/China-niega-una-intencion-militar-engolfo-de-Fonseca-20180930-0070.html.

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there were no such plans15. Skeptics recalled that this is exactly what Xi Jinping said about not
militarizing the islands in the South China Sea, just before China began to militarize them.
While Beijing states that its port facilities are to be used for commercial purposes, or, in thecase of Djibouti, to support its humanitarian assistance and disaster relief operations in the area,
having access to foreign ports allows the PLA to pre-position the logistics support that it needs
to regularize and sustain military deployments, hence enabling the projection of military power
at greater distances from China. The acquisition of what has been called a “string of pearls”
has been accompanied by annual increases in the defense budget that would be the envy ofany military in the world. Since the PRC faces no external enemy, increasing capabilities raise
concerns about its geostrategic intentions. China avows that it is a good global citizen and abides
by international law. Still, its angry response to a 2016 international court ruling that invalidated
the PRCʼs claims to the 9-dash line in the South China Sea, stating that this made war more likely,
did not inspire confidence.16 China has also prolonged discussions on a code of conduct (COC)
for the South China Sea, with the latest draft indicating that it will be able to impose its conditions
on signatories in such a way as to ensure that its rules rather than their preferences will bedefinitive.17
Threats aside, and in no way to minimize the threat posed by an increasingly powerful
Chinese militar y and its increasingly assertive leadership, it should be recognized that thedanger posed to Indo-Pacific security is not simply a kinetic threat but involves what is known
in basketball terminology as a full-court press. Chinese leaders recognize the dangers of war toits hard-won and precariously poised financial prosperity. Despite government stimulus efforts
that Chinese and foreign economists warn are unwise, the 2018 rate of growth is the lowest
in decades.18 The debt to GDP ratio has reached worrisome levels, and although the citizenry
remains politically inactive, it is angry over such issues as choking pollution and massive official
corruption. Chinaʼs budget for domestic security exceeds its defense budget, indicating insecurity
at the highest level. While belligerent international behavior increases national pride, an actual
war could not only derail economic growth but lead to the fall of the ruling elite.

The Three Warfares
Whether through study of the revered 500 B.C. military strategist Sun Zi or their own common
sense, the Chinese leadership seems to have determined to win without fighting. None of the“three warfares”̶legal warfare, which is sometimes referred to as “lawfare;” public opinion
warfare, and media warfare̶involve the use of physical force. With regard to lawfare, Beijing
has acted as if its domestic laws trump international law, citing a Februar y 1992 decision of
its National Peopleʼs Conference to unilaterally annex all disputed territories: the Spratlys, theParacels, the Diaoyu/Senkakus, and Taiwan. When international law provides a claim that favors
Beijingʼs case, it will be utilized as well, often by omitting references that would qualify its claims.
For example, although purportedly authentic ancient documents have been produced to back15

“Presidente Sánchez Cerén: En El Salvador solo existirá una base military [President Sánchez Cerén: In
El Salvador there will only be one military base],” El Mundo, October 6, 2018,https://elmundo.sv/presidente-sanchez-ceren-en-el-salvador-solo-existira-una-base-militar/.

16

Tom Phillips, “China attacks international court after South China Sea ruling,” The Guardian, July 13,
2016, https://www.theguardian.com/world/2016/jul/13/china-damns-international-court-after-southchina-sea-slapdown.

17

Carl Thayer, “A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct,” The
Diplomat, August 3, 2018, https://thediplomat.com/2018/08/a-closer-look-at-the-asean-china-singledraft-south-china-sea-code-of-conduct/.

18

Chao Deng, “China Finds Big-Ticket Spending Is a Road to Nowhere,” The Wall Street Journal, Oct 20,
2018, https://www.wsj.com/articles/china-finds-big-ticket-spending-is-a-road-to-nowhere-1540036800.

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the claim that China discovered their areas first, international law states that first discovery does
not automatically confer ownership, which requires other actions such as continued assertionsof the countryʼs claim to the territory, the placing of plaques or flags on the area claimed, andor habitation by its nationals. All are lacking. Beijing adds to its claims that Chinese mariners
discovered the Diaoyu/Senkakus first that, since Japan ruled the islands from its then-colony of
Taiwan, the Diaoyu/Senkakus reverted to China when Japan relinquished control of Taiwan afterWorld War II. So far, neither China nor Taiwan, which also claims the islands, has been able tofind any evidence to back this assertion. Japan states that it administered the islands as part of
Okinawa prefecture, as it has done since reversion from American stewardship in 1972.

United Front WorkIn the case of the other two warfares, numerous tactics to win hearts and minds have been
employed. In effect, they seek to use the openness of the society to undermine and subvert
its democratic processes. The CCPʼs United Front Work Department has been charged withcoordinating these activities though, as New Zealand scholar Anne-Marie Brady has pointed out,
all CCP agencies and every party member are tasked with united front work, albeit some morethan others.19 A particular focus of its efforts are the many Chinese diaspora communities. These
overseas Chinese associations, often pre-existing ones, receive infusions of funds and guidance
designed to create sympathy for the PRC governmentʼs positions on such matters as the disputed
territories. Chinese-language newspapers have been bought and transformed to reflect the CCPʼsposition. Candidates for public office, sometimes ethnic Chinese and sometimes not, have beeneffectively suborned.

Australia

In Australia, a joint investigation by journalists from the countryʼs Four Corners and Fairfax
Media exposed what it called a wide-ranging campaign by the Chinese government and its
proxies to infiltrate Australiaʼ s political process through its universities, local student andcommunity groups, the Chinese language media, and some of the nationʼs leading politicians. In
one much-publicized case, a woman who had emigrated from China and married the assistantsecretary of Australiaʼs Office of Net Assessments, which provides secret intelligence briefings
to the prime minister, was later discovered to have been the conduit between funds from China
to politicians with whom they wanted to become “sincere friends.” Sam Dastyari, an Iranianborn Labor member of parliament whose campaigns had been generously supported by Chinese
donors, resigned after it was revealed that he had contradicted both the Australian governmentʼsand his own partyʼs position supporting the international tribunalʼs ruling on the South China
Sea and that he had warned a major Chinese donor that his phone was probably being tapped byAustralian security.20 He is now a radio show host in Sydney.

New ZealandIn New Zealand, the issue of Chinese interference in politics came to a head with the case of19

Anne-Marie Brady, “Exploit Every Rift: United Front Work Goes Global,” Party Watch Annual Report
2018, October19, 2018,https://www.ccpwatch.org/single-post/2018/10/18/Party-Watch-Annual-Report-2018.

20

Katharine Murphy, “Sam Dastyari: senator recorded contradicting Labor on South China Sea,” The
Guardian, November 29, 2017, https://www.theguardian.com/australia-news/2017/nov/29/samdastyari-senator-recorded-contradicting-labor-on-south-china-sea.

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member of parliament Yang Jian.21 Yang, born and educated in the PRC, omitted to mention on
his application for New Zealand citizenship that he had worked in Chinaʼs military intelligence
sector for fifteen years. The Peopleʼs Liberation Army would not have allowed individuals with his
background to go overseas to further their studies unless they had official permission; even so,
Yang would have had to wait at least two years to leave China. This did not happen. After enteringparliament, Yang accompanied two successive prime ministers to meetings with visiting senior
Chinese leaders, which gave him privileged access to New Zealandʼs China policy briefing notes
and positions. Normally, someone with a foreign military intelligence background would not havebeen given the security clearances necessary for this access, but elected members of parliament
need not apply for such clearances. Yang remains a member of parliament, with Deputy Prime
Minister Winston Peters angrily defending this continued presence there. He has, however, been
removed from committees that deal with classified information.

United Kingdom
After resigning as prime minister, David Cameron announced that he would lead a billion-dollar
infrastructure investment initiative between the UK and China that is connected to the PRCʼsbelt and road initiative.22 As described by the U.S.-published journal Foreign Policy, this initiative“has revealed itself to be rather uncompromisingly aligned with an aggressive interpretation ofChinese interests.”23 (For more on the Belt and Road, see below.)

TaiwanPerhaps the biggest territorial prize of all is Taiwan, the overwhelming majority of whose citizens
reject unification with a country they have never been part of. Here, too, united front work has
been utilized. Efforts to bring the island under control through economic agreements arranged
with a compliant Taiwan president backfired when the compliant president attempted an
extraparliamentary maneuver to gain approval of yet another trade pact. Hundreds of thousandsof opponents streamed into the streets and occupied the countryʼs parliament building for overthree weeks, leading to a humiliating defeat for the presidentʼs party in the next, 2016, election.
Beijing then strengthened its ties with other political groups on the island.
These ties had actually existed for many years. Information revealed by the Taipei Times
disclosed that in 2005, Wang Huning, then director of the CCPʼs Central Party Research Officeand since promoted to Politburo membership, identified more than twenty people who had been
marginalized by their respective political parties and invited them to organize a new, pro-Beijing
party. The Taipei Times’ investigation was corroborated by an exiled Chinese dissident, Yuan
Hongbing, whose book The Taiwan Crisis, stated that in June 2008, the Politburo had approved apolitical strategy for Taiwan that named organizing a political party as its most important united
front tactic. There are at least two of these, the New Party and the Chinese Unity Promotion Party(CUPP), both of which are perfectly legal under Taiwanʼs constitution.
What is not legal are their sources of funding and certain of their activities. In late 2017,
investigators searched the residences of four prominent members of the New Par ty for
documents relevant to subsidies for its newspaper and for founding a paramilitary New China
21

Anne-Marie Brady, “Magic Weapons: Chinaʼs political influence activities under Xi Jinping,” Document
Cloud, last modified January 29, 2018, https://www.documentcloud.org/documents/4053774-MagicWeapons-China-s-political-influence.html#document/p22/a376225.

22

Rowena Mason, “What is David Cameron doing now?,” The Guardian, December 29, 2017,https://www.theguardian.com/politics/2017/dec/29/what-is-david-cameron-doing-now.

23

Bruno Maçães, “David Cameron Didnʼt Just Sell Out to China,” Foreign Policy, December 20, 2017,https://foreignpolicy.com/2017/12/20/david-cameron-didnt-just-sell-out-to-china/.

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Youth Association with the goal of “wartime control.” A party spokesman has denied all charges.24
The CUPPʼs chairman, Chang An-le, also known as “White Wolf,” is an acknowledged former
gangster. His son, Chang Wei, who is a CUPP activist, and an associate were charged withattempted murder after CUPP members assaulted university students during a cross-strait music
event on their campus on behalf of a CCP effort to absorb Taiwan.25 The charges, corroborated
by videos of the attack, were later dropped to assault, and the accused given 40-day prison
sentences.26
Particular targets of Chinaʼs penetration of Taiwanese society are businesspeople with assets
in the PRC, the younger generation who have no memories of what life under communism waslike for those who escaped it, and the estimated 300,000 Chinese women who married Taiwaneseand live on the island. Some of these activities are legally unobjectionable ̶ for example,
inviting youth baseball teams, baseball being Taiwanʼs national game̶for exchanges in China,
entertaining them lavishly, and having them play in stadia adorned with banners proclaimingthat there is only one China, with Taiwan a part of it. Scholarships to major Chinese universities
have also been made available, with lucrative job offers extended to some of the island ʼs top
technological talent.

Soft Power versus Sharp Power
Most countries seek to create good will in others through such methods as sending abroad
dance and theater groups that reflect their national cultures, making their literature available
in translation, and showcasing such aspects as their cuisine, cinema, and couture. This is soft
power: it seeks to attract through its culture and values. Sharp power, by contrast, attempts topierce, penetrate, or perforate the political and information environments in targeted countries
to create support for itself and its values. It typically seeks to silence or counter critical voices
through rejecting foreign scrutiny of its human rights record, and asserting its own alternative
conceptions of human rights, insisting that target countries back its positions on sovereignty.
In Australia and New Zealand, ethnic Chinese who resist the united front blandishments havereceived hate mail; the home and the office of Professor Anne-Marie Brady, the scholar whose
work brought these and other united front activities to light, were broken into and rifled fordata27̶clearly not the work of common thieves. One obser ver describes Beijing as having
adopted the stance of the wounded bully: a powerful state that describes itself as victimized,
shouting that the world is treating it unfairly.28

Debt Traps
In 2013, Chinese President Xi Jinping announced an ambitious economic plan that would rewrite the rules and norms of international trade, replacing a system heretofore dominated byseven of the earliest industrialized states (G-7) with a creatively reimagined globe-spanning silkroute emanating from and financed by China. The vehicle that would underwrite this, the AsianInfrastructure Investment Bank (AIIB) was established in Beijing with a Chinese national as
24

Stacy Hsu, “New Party spokesman denies allegations of collusion,” Taipei Times, Januar y 3, 2018,
http://www.taipeitimes.com/News/front/archives/2018/01/03/2003685093.

25

Jason Pan, “Prosecutors charge five CUPP members with assault,” Taipei Times, December 2, 2017,
http://www.taipeitimes.com/News/front/archives/2017/12/02/2003683283.

26

Aris Teon, “Pro-China Gangsters Jailed In Taiwan For Injuring Students,” Global perspectives, July 31,
2018, https://www.aristeon.net/2018/07/pro-china-gangsters-jailed-in-taiwan-for-injuring-students.html.

27

Matt Nippert, “The curious case of the burgled professor,” NZ Herald, September 15, 2018,https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12125210.

28

Professor Jacques de Lisle, October 6, 2018.

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head. The PRC, having contributed the majority of capital, holds the largest number of shares.
At first attracted by the prospect of “free money,” often by states of doubtful credit worthiness,or who wanted to undertake projects that other lending agencies had considered unacceptably
financially risky, countries contracted loans that they were unable to pay back, and that they later
complained had been accompanied by demands and conditions that benefited China rather thanthemselves.
This is the genesis of leaseholds or basing rights to the strategically positioned ports that the
PRC has been acquiring. Several states, already unable to repay the loans, are caught in a debt
trap, as happened to Sri Lanka with regard to Hambantota. Large infusions of aid to Venezuela̶
over ＄50 billion through oil-for-loans over the past decade, beginning even before the OBOR plan
was announced, have also proved impossible for its beleaguered economy to repay. New infusionsof Chinese money halted nearly three years ago, when declines in oil prices and Venezuelaʼs badly
mismanaged petroleum sector pushed the countryʼs economy into a hyperinflationary collapse.
The Caracas government then requested a change in the terms of payment. In September 2018,
President Nicolás Maduro Moros traveled to Beijing to seek relief, but apparently failed to secure
the new credit lines he sought.29 Maduro agreed to sell 9.9 percent of the shares in joint venture
Sinovensa to the PRCʼs state-owned China National Petroleum Corporation (CNPC), which, added
to the 40 percent CNPC already held, means that China now owns 49.9 percent of the company.
The situation in Africa is similar. According to Africa Confidential, 23 of the 68 developing
countries participating in OBOR are in debt distress or close to it because of their participationin the project.30 Kenya is at risk of losing control of Mombasa, its major port, if, as expected, it
default on loans from The China EximBank.31 Uganda, which waved sovereignty over certain
properties as a condition of loans from China, may lose them for similar reasons.32
Malaysia almost immediately became dissatisfied with the terms of Chinese loans, with Prime
Minister Mahathir Mohamed criticizing the “stupidity” of previous negotiations and announcing
the cancellation of two major projects, the East Coast Rail Link and the Trans-Sabah Pipeline,that had been part of the OBOR infrastructure initiative.33 They had been valued at ＄23 billion.
Pakistani officials have voiced nearly identical concerns that the deals were badly negotiated,
too expensive, and overly favorable to China. The Pakistan government refused Chinaʼs demandto accept Chinese currency within the Gwadar free zone; a Chinese national was assassinated in
the capital city of Karachi, and another murdered in Balochistan, through which a crucial stretchof the China Pakistan Economic Corridor (CPEC) passes. The principal goal of the CPEC is toconnect Chinaʼs restive northwestern province of Xinjiang with Gwadar and from there to the29

Brian Ellsworth and Corina Pons, “Venezuela sold 9.9 percent of joint venture to China oil firm:
Maduro,” Reuters, September 19, 2018, https://www.reuters.com/article/us-venezuela-china/venezuelasold-9-9-percent-of-joint-venture-to-china-oil-firm-maduro-idUSKCN1LY2NN.

30“Bonds, bills and ever bigger debts,” Africa Confidential, September 14, 2018,https://www.africa-confidential.com/article-preview/id/12424/Bonds%2C_bills_and_ever_bigger_debts.

31“Report: Kenya Risks Losing Port of Mombasa to China,” The Maritime Executive, December 20, 2018,https://www.maritime-executive.com/article/kenya-risks-losing-port-of-mombasa-to-china.

32“China to take over Ugandaʼs main assets over unpaid rising huge debt,” African Stand, January 12,
2019, https://www.africanstand.com/news/africa/east-africa/china-to-take-over-ugandas-main-assetsover-unpaid-rising-huge-debt/.

33

Isabel Van Brugen, “Malaysia Cancels Megaprojects Under Chinaʼs OBOR to Save Countr y From
Debt,” The Epoch Times, August 21, https://www.theepochtimes.com/malaysia-cancels-megaprojectsunder-chinas-obor-to-save-country-from-debt_2629309.html.

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Arabian Sea.34 The Pakistani component of this initiative is ＄60 billion, equal to 20 percent of thecountryʼs entire GDP.
China has responded to these and other criticisms by pointing out that the infrastructure
projects are usually initiated by host countries, who then choose to enter into contracts on
terms they deem appropriate.35 The Sri Lankan government, for example, wanted to develop
Hambantota into a transportation hub on the Indian Ocean; the Chinese company that now
controls it is responsible for no more than the operation and management of the port, and theport is being used for commercial use only. Chinaʼs interest rates, they aver, are not high inpercentage terms. Those who call OBOR a debt trap are simply trying to stoke the perception ofa China threat.
Countries indebted to China would nonetheless be ill-advised to challenge Beijingʼs claims
to disputed territories. Even countries that do not have territorial disputes find it expedient toendorse the PRCʼs claims. In Greece, where China has taken out a lease on the countryʼs major
port of Piraeus, locals grumble about their government selling the countryʼs strategic assets
to China.36 But the parliamentʼs foreign affairs and defense committee head, Costas Douzinas,
contrasted the PRCʼs willingness to provide money with the European Union [EU]ʼs “medieval
leech” behavior.37 Although China never explicitly asked for support on such sensitive issues, hesaid “when you can do something in return, who will you help, the one who helped you or the one
who slapped you?”
Hungary, where China has promised to provide billions of dollars for railway construction,
has blocked an EU statement on the South China Sea, with EU officials expressing concern thatsuch pre-emptive deference to Beijingʼs wishes is undermining the organizationʼs ability to speakwith one voice. U.S. Secretar y of State Mike Pompeo has also warned of Chinaʼs “predator yeconomic activity”38̶an interesting parallel, or perhaps counterpoint, to Douzinasʼ descriptionof EU medieval leeches̶noting that “when China comes calling, itʼs not always to the benefit ofyour citizens.”
The sum total of these developments have raised concern that OBORʼs real purpose is controlof the seas and strategic overland routes rather than the “win-win” future of global prosperity
through enhanced connectivity that the Chinese government advertises the initiative as.

The Weaponization of Trade

Trade has also been employed to extract compliance with the PRCʼs territorial policies. Whenin 2010, Japan announced its intention to put on trial the captain of a Chinese fishing boat that
had rammed two Japanese coast guard vessels off the Diaoyu/Senkaku Islands, the Chinese
government announced that it would halt sales of rare earth to Japan, these being necessary forthe catalytic convertors used in the Japanese auto industry. It also imposed meticulous inspection
procedures for all Japanese exports entering China, thereby slowing trade, and arrested several
Japanese nationals on spying charges. The captain was soon released. Something similar
34

Adnan Aamir, “Chinaʼs Belt and Road plans dismay Pakistanʼs poorest province,” Financial Times, June
14, 2018, https://www.ft.com/content/c4b78fe0-5399-11e8-84f4-43d65af59d43.

35

Zhao Minghao, “The BRI is Not a Debt Trap!,” China US Focus, October 16, 2018,https://www.chinausfocus.com/article/2018/1016/17257.html.

36

Alexander Bowe, October 22, 2018.

37

Jason Horowitz and Liz Alderman, “Chastised by E.U., a Resentful Greece Embraces Chinaʼs Cash andInterests,” The New York Times, August 26, 2017,https://www.nytimes.com/2017/08/26/world/europe/greece-china-piraeus-alexis-tsipras.html.

38

Edward Wong, “Mike Pompeo Warns Panama Against Doing Business With China,” The New YorkTimes, October 19, 2018,https://www.nytimes.com/2018/10/19/world/americas/mike-pompeo-panama-china.html.

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happened to the Philippines two years later with regard to Chinese fishing boats off ScarboroughShoal. Manilaʼs protests were followed by Beijing announcing a halt on the import of fruit itclaimed was infested.39 Manila quickly backed down: China now controls the area, although it iswithin the Philippinesʼ exclusive economic zone. A commentator for the Asia Sentinel noted thatthe effect of Chinese action would not be lost on the other claimants to disputed territories in thearea.40
Private and semi-private companies have also been forced to comply with Chinese rules.
The app and websites of international hotel giant Marriott were taken off line for a week inpunishment for its showing Taiwan as a separate entity. The hotel chain apologized as well as
announcing “disciplinar y action” against an employee who had supported independence for
Tibet.41 Clothing manufacturers must also comply, as Zara, among others, was told. Airlines havebeen affected. as well: while White House spokesperson Sarah Sanders denounced42 Beijingʼs
demand43 that Taiwan be referred to as “Taiwan, China,” as “Orwellian nonsense,” most airlines,
including private, state-owned or partially state-owned carriers such as Air India, Lufthansa,
Qantas, and Delta quickly changed their websites. The airline of Palau, one of the 17 remaining
states who accord diplomatic recognition to Taiwan, went out of business after Beijing banned
all group tours to the island and announced fines for those who violated the new rule.44 Tourism
accounts for most of the GDP of the small island, which has only 21,000 inhabitants.
Sometimes, capitulation appears to result from self-censorship, since it occurs even when
there is no evidence, or perhaps no public evidence, of Chinese demands. In Australia, a local
beef council painted over the Taiwan flags that two little girls had contributed to the statue of abull meant to show the cultural diversity of their community.45

Cyberattacks
Cyberattacks have also been used against many countries, including but not limited to the U.S.,
India, the Philippines, and Japan, with the Beijing government disclaiming any responsibility.46
Some instances in the latter two appear to be the work of nationalist forces, since they areaccompanied by strident claims over the disputed territories. It has, however, been pointed out
that, given the degree of surveillance the Chinese government exercises over its population,
the hackers are likely to have had official approval for their actions. In cyber intrusions in the
39“The China-Philippine Banana War,” Asia Sentinel, June 6, 2012,https://www.asiasentinel.com/society/the-china-philippine-banana-war/.

40

Isabel Van Brugen, “Malaysia Cancels Megaprojects Under Chinaʼs OBOR to Save Countr y From
Debt,” The Epoch Times, August 21, 2018 (Updated: August 22, 2018), https://www.theepochtimes.
com/malaysia-cancels-megaprojects-under-chinas-obor-to-save-country-from-debt_2629309.html

41

Abha Bhattarai, “China asked Marriott to shut down its website. The company complied.,” The
Washington Post, January 18, 2018, https://www.washingtonpost.com/news/business/wp/2018/01/18/
china-demanded-marriott-change-its-website-the-company-complied/?utm_term=.2f16e53ae5aa.

42

Erica Pandey, “Go deeper: The list of airlines bending to Chinaʼs will,” Axios, last modified January 29,
2019, https://www.axios.com/go-deeper-list-of-airlines-china-taiwan-references-or wellian-nonsensee514d38e-d155-4bcf-8a76-7c0bec4b7033.html.

43

Ibid.

44

Michael Auslin, “The New China Rules,” National Review, September 27, 2018,https://www.nationalreview.com/magazine/2018/10/15/chinas-geopolitical-power-play/.

45

Paul Robinson and Emilia Terzon, “Taiwan flag design painted over by council ahead of beef industry
event,” ABC News, May 9, 2018, https://www.abc.net.au/news/2018-05-09/childrens-cow-statue-designaltered-taiwan-flag-painted-over-qld/9739574.

46

Christopher Bing, “U.S. Warns of New Cyber Attacks by Group with China Ties,” Insurance Journal,
October 4, 2018, https://www.insurancejournal.com/news/national/2018/10/04/503399.htm.

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Territorial Issues in the Indo-Pacific: the East China Sea… and Beyond

Philippines, for example, the patriotic hackers have claimed that China will never surrendersovereignty over Huangyan, the Chinese name for Scarborough Shoal.47 In Japan, a favoritetarget is the Yasukuni Shrine, since Chinese nationalists regard it symbolic of Japanese warlike
instincts. The massive theft of information from the U.S. Office of Personnel Management,
involving data on more than 20 million people, is believed to have been a Chinese government
effort that is part of a larger strategic plan. The data could be used, for example, to identify U.S.
intelligence personnel, or to recruit spies for China. Along with Russia, Beijing is also believed to
be involved in efforts to influence voting in the elections of democratic countries including the U.S.
and Taiwan. According to a Reuters report, China has been exporting this technology to othercountries.

What Can Be Done
Although the Chinese leadership has for decades stated its preference for a multipolar worldorder, its recent actions indicate that it intends to establish a world order in which Beijing makes
the rules, and will enforce its claims, territorial and otherwise, through united front techniques,
economic inducements, economic sanctions, cyberattacks, and threats to use force backed up byimpressive increases in its ability to actually use force.
Assuming that other countries do not want to accept these rules---although there are many
who apparently are willing to, however reluctantly, what sorts of counterstrategies exist? Certain
counterstrategies have been undertaken.
• Australia has not only passed more stringent laws on financial contributions from abroad
but also on acquisition of assets such as its electricity grid.48• After a wave of Chinese purchases of high technology German firms, the government of
Chancellor Merkel enacted rules that will make future acquisitions more difficult.49• The UKʼs Office of the Advisory Committee on Business Appointment informed former
prime minister David Cameron that, although it had approved his petition to head the China
investment fund, the approval was subject to certain conditions including that he must not
draw on any privileged information available to him as prime minister; and that for two
years from his last day in office, he should not become personally involved in lobbying the
UK government on behalf of the UK-China Fund or its partners or investors or make use,
directly or indirectly, of his contacts in government and/or crown service to influence policyor secure business on their behalf.50• Australia has offered up to ＄2.8 billion dollars to fund infrastructure construction among
South Pacific states to help counter expanding Chinese influence there.51
47

Phil Muncaster, “Patriotic hackers face off in South China Sea,” The Register, April 27, 2012,https://www.theregister.co.uk/2012/04/27/philippine_china_hack_stand_off/.

48

Jamie Smyth, “Australia to tighten foreign investment rules amid China concerns,” Financial Times,
February 1, 2018, https://www.ft.com/content/308ca8d6-06f6-11e8-9650-9c0ad2d7c5b5.

49

Stephan Scheuer, Sha Hua and Klaus Stratmann, “Germany may block tech takeover amid security
and trade concerns,” Handelsblatt, May 25, 2018, https://www.handelsblatt.com/today/politics/
chinese-checkers-germany-may-block-tech-takeover-amid-security-and-trade-concerns/23582248.
html?ticket=ST-249302-VTZbrA7uhZKG1RfYj46s-ap4.

50

Appointment Advice by the Advisory Committee on Business Appointments dated 6 December 2017,https://assets.publishing.ser vice.gov.uk/government/uploads/system/uploads/attachment_data/
file/668702/171206_Letter_DC_UK-China_final__2_.pdf.

51

Philip Wen and Colin Packham, “China shuns rivalry in Pacific as Australia says ʼthis is our patchʼ,”
Reuters, November 8, 2018, https://www.reuters.com/article/us-australia-china-pacific/australialaunches-1-5-billion-pacific-fund-to-counter-chinas-influence-idUSKCN1NC333.

84
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June Teufel Dreyer• It successfully outbid China to fund a base on Fiji52 and, after rumors circulated that the
PRC was seeking to fund a port on Papua New Guineaʼs Manus Island, has pledged53 to help
Papua New Guinea develop a naval base there. The U.S. and Japan subsequently agreed torender assistance as well.
• According to Reuters, Canberra, citing security considerations, will also underwrite thecosts of an undersea internet cable aimed at shutting out Chinese telecom giant Huawei.54• There has been increased surveillance of persons suspected of carrying out united front
activities, albeit against resistance by civil liberties groups and ethnic Chinese who fear
having their loyalty suspected because of their ethnicity.
• Some efforts have been taken toward defense cooperation. Japan, Australia, India, and theUnited States participate in an as yet rather amorphous quad aimed at resisting Chinese
expansion.
• The U.S. and Japan are drafting plans for a combined response to the Chinese threat to the
Diaoyu/Senkaku Islands, which is expected to be finalized in March 2019.55• The largest ever Operation Keen Sword exercises began, with Canadian ships taking partwith U.S. and Japanese forces for the first time in line with its desire to have a militarypresence in Asia, alongside British and French navies.56 Japan and France have agreed tocooperate on defense against the expanding Chinese military presence.57• Hunter Stires, a strategist affiliated with the U.S. Naval War College has suggested acollective maritime counterinsurgency effort to protect local civilian mariners against
Chinese harassment.58• Pakistan is now looking to Saudi Arabia to help balance Chinaʼs inroads and has asked
Riyadh to join the CPEC as the third “strategic partner.”59• French President Emmanuel Macron applauded New Caledonia for rejecting a referendum
on independence that would have abetted the PRCʼs expanding influence in the strategicallylocated and nickel-rich territory.60• In 2018, Japanʼs Maritime Self Defense Force sent its largest ship, the Kaga helicopter
52

Christopher Mudaliar, “Australia outbids China to fund Fiji military base,” The Interpreter, October 4,
2018, https://www.lowyinstitute.org/the-interpreter/australia-outbids-china-fund-fiji-military-base.

53“Australia plans to help PNG build a navy base,” Taipei Times, November 2, 2018,
http://www.taipeitimes.com/News/world/archives/2018/11/02/2003703492.

54

Ibid.

55

“Japan and U.S. to formulate armed response to China threat to Senkakus: sources,” The Japan Times,
November 4, 2018, https://www.japantimes.co.jp/news/2018/11/04/national/japan-u-s-plan-armedforces-response-china-threat-senkakus/#.W98uGOJOlc8.

56“U.S. carrier leads warships in biggest Japan defense war game,” The Asahi Shimbun, November 4,
2018, http://www.asahi.com/ajw/articles/AJ201811040018.html.

57“Abe and Macron agree to boost cooperation for Indo-Pacific stability,” Kyodo, October 18, 2018,https://www.japantimes.co.jp/news/2018/10/18/national/politics-diplomacy/abe-macron-agree-boostcooperation-indo-pacific-stability/#.XH3m5Yj7SUk.

58

Hunter Stires, “Understanding and Defeating Chinaʼs Maritime Insurgency in the South China Sea,” The
National Interest, November 1, 2018, https://nationalinterest.org/feature/understanding-and-defeatingchina%E2%80%99s-maritime-insurgency-south-china-sea-34637.

59

Harsh V. Pant, “Why China could lose its ʼall weather friendʼ Pakistan,” October 2, 2018,https://www.dailyo.in/politics/china-pakistan-debt-trap-diplomacy-xi-jinping/story/1/27009.html.

60

Christian Edwards, “French President Emmanuel Macron holds on to New Caledonia, but with anotherreferendum in just 2 years, Paris is further from paradise than ever,” Business Insider, November 5, 2018,https://www.businessinsider.com/new-caledonia-rejects-independence-from-france-in-referendumvote-2018-11.

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Territorial Issues in the Indo-Pacific: the East China Sea… and Beyond

carrier, on an unprecedented two-month tour of the Indo Pacific, including stops in thePhilippines, Indonesia, Sri Lanka, India and Singapore.61 The Kaga and its two destroyer
escorts also conducted drills with a Japanese submarine in the South China Sea.
• In the same year, the Ground Self Defense Force has established62 an Amphibious Rapid
Deployment Force (ARDF) whose mission includes retaking islands that have been seized,
and has finalized63 plans to establish a base at Ishigaki which would be on the front line if
war were to break out between China and Japan.
• The US Department of Justice announced a China initiative aimed at increasing efforts toprotect critical infrastructure against external threats including foreign direct investment,
supply chain threats and foreign agents seeking to influence the American public andpolicymakers without proper registration.64• The U.S. Congress passed the 2018 Countering Foreign Propaganda Act, which requires a
U.S.-based foreign media outlet that produces or distributes any video programming for a
foreign principal that is or intended to be transmitted by a multichannel video programming
distributor (such as cable operators and direct satellite ser vices) to U.S. consumers
to include a conspicuous statement that the programming is produced or distributedby the outlet on behalf of its foreign principal.65 It empowers the Federal Communication
Commission to define what constitutes a conspicuous statement.
• Section 1042 of the 2019 U.S. Defense Authorization Act explicitly tasks the National
Security Council coordinate the full U.S. government response to malign foreign influence
operations and campaigns, particularly those that are cyber-enabled.66
Whether these will be able to successfully halt an apparently determined China from imposinga Sinocentric, unfree and closed sea in which non-Chinese vessels sail only at Beijingʼs pleasureremains to be seen.
Concerns about the Belt and Road aside, countries continue to sign on. Some may hope tolearn from the mistakes earlier participants have made. Several of the earlier participants, notably
Malaysia and Pakistan, are insisting on renegotiating better terms, and many can benefit frombalancing the funds and expertise being offered by the U.S., Japan, and Australia with thoseavailable from China. Even so, dangers lurk, with the verbal barbs exchanged between Chinese
President Xi Jinping and U.S. Vice President Pence at the November 2018 APEC meetingarousing concerns of war between the worldʼs largest and second largest powers with othercountries caught in the cross fire. Xi accused the United States of unilateralism and the impositionof punitive unilateral tariffs and urged it to make good on supporting regional infrastructures,
while Pence countered by accusing the PRC of drowning its BRI partners in a sea of debt and
61“U.S. carrier leads warships in biggest Japan defense war game,” The Asahi Shimbun, November 4,
2018, http://www.asahi.com/ajw/articles/AJ201811040018.html.

62

Grant Newsham, “Japan Activates Amphibious Rapid Deployment Brigade: What Now?,” Japan Forward,
April 9, 2018,
http://japan-forward.com/japan-activates-amphibious-rapid-deployment-brigade-what-now/.

63

Kim Sengupta, “China Sea crisis: Japan to bolster military base on island idyll that could become frontline in event of war,” Februar y 13, 2018, https://www.independent.co.uk/news/world/asia/chinamilitary-aggression-island-missiles-troops-south-china-sea-ishigaki-japan-winter-olympics-a8208586.html.

64

The United States Department of Justice, “Attorney General Jeff Sessionʼs China Initiative Fact Sheet,”
November 1, 2018, https://www.justice.gov/opa/speech/file/1107256/download.

65

The United States Congress, “H.R.5354 - Countering Foreign Propaganda Act of 2018,” last modified
January 29, 2019, https://www.congress.gov/bill/115th-congress/house-bill/5354.

66

The United States Congress, “National Defense Authorization Act for Fiscal Year 2019” last modified
January 29, 2019, https://www.congress.gov/115/crpt/hrpt676/CRPT-115hrpt676.pdf.

86Japan Review Vol.2 No.3 Winter 2018

June Teufel Dreyertransforming harbors and highways into military conduits. To date, no one has been charged
with the crimes against New Zealand scholar Anne-Marie Brady, and Sam Dastyari and Yang Jian
remain respected figures in their countries.
There is a consensus that war would be disastrous for all, winners as well as losers. And
that cooperation with China on shared national interests such as curbing North Korea nuclear
capabilities, resolving unexpected encounters in the air and in the ocean, anti-piracy operations,disaster relief, humanitarian assistance, and environmental sustainability is both possible anddesirable. But these are unlikely to be sufficient to outweigh territorial issues. At present, robust
defense and resolute commitment to resist while agreeing to cooperate when the mutual benefits
are clear appear to be the best hope for countering Chinese aggression.

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