International Law and Japan’s Territorial Disputes

International Law and Japan’s Territorial Disputes ＊Raul (Pete) Pedrozo ★

Abstract
The three highly contentious territorial disputes involving Japan – the Northern Territories,
Liancourt Rocks, and Pinnacle Islands – have their roots in the San Francisco Peace Treaty;
although Japan renounced its claims to such lands as Korea, Formosa, and the Kurile
Islands, the treaty failed to declare a successor state. Furthermore, such countries as thetwo Chinas and Koreas as well as the Soviet Union did not sign the treaty. Over the years,
these disputes have intensified as a result of rising nationalism and a growing demand forliving and non-living resources. This paper elaborates on the factual and legal backgroundsof these territorial disputes and explains in detail the positions of the Japanese and U.S.
governments in these disputes.

I.

INTRODUCTIONO

n September 2, 1945, Japan formally1 surrendered to the Allied Powers on board the
USS Missouri (BB 63) anchored in Tokyo Bay, thus ending World War II.2 For the
next seven years, U.S. forces, under the command of General Douglas MacArthuras Supreme Commander of the Allied Powers (SCAP), occupied Japan, enacting“widespread military, political, economic and social reforms” to establish Japan as a peaceful anddemocratic nation.3 Although other major allies had an advisory role in the occupation as part of＊This paper was originally published in Volume 92 of International Law Studies (ILS). In reprinting
the article, we have honored the ILS editorial policies and retained the title and the designations ofgeographical features as they appeared in the original paper.

★

Captain Pedrozo (U.S. Navy, Ret.) is the Deputy General Counsel for the Defense POW/MIA
Accounting Agency. Previously he was a Professor of International Law in the Stockton Center for
the Study of International Law at the U.S. Naval War College, where he now serves as a Non-Resident
Scholar. Prior to his retirement from the U.S. Navy, he served in a number of key positions, including
Staff Judge Advocate, U.S. Pacific Command, and Special Assistant to the Under Secretary of Defense
for Policy. The views expressed in this article do not reflect the views of the U.S. Government, theDepartment of Defense, Department of the Navy, or the U.S. Naval War College.

1

The Emperor of Japan publicly announced the surrender of Japan on August 15, 1945.

2

Instrument of Surrender (Sept. 2, 1945), https://www.archives.gov/exhibits/featured_documents/
japanese_surrender_document/.

3

Occupation and Reconstruction of Japan 1945–52, U.S. DEPARTMENT OF STATE OFFICE OF THE
HISTORIAN, https://history.state.gov/milestones/1945-1952/japan-reconstruction (last visited Jan. 15,
2016).

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Raul (Pete) Pedrozo

the Allied Council, MacArthur had the final say on all matters.4
In September 1950, President Harry Truman directed Secretary of State John Foster Dulles
to begin consultations with other governments to conclude a peace treaty with Japan.5 After a yearof painstaking negotiations, over fifty nations assembled in San Francisco on September 4, 1951,
to discuss and conclude the treaty. Missing from the negotiations were, inter alia, the two Chinas
and the two Koreas.6 Four days later, forty-eight nations signed the Treaty of Peace with Japan(the San Francisco Peace Treaty, or SFPT), formally ending the state of war between Japan and
the Allied Powers and recognizing Japanʼs sovereignty.7 The Soviet Union, Poland and Yugoslavia
participated in the conference, but refused to sign the treaty.8 Taiwan and India signed separate
peace treaties with Japan in April 1952 and June 1952, respectively, and the Soviet Union signed a
Joint Declaration with Japan in 1956, ending the state of war and restoring diplomatic relations.9
Articles 2 and 3 of the SFPT additionally purported to settle a number of outstanding territorial
issues. Japan renounced all right, title and claim to, inter alia, Korea (including the islands ofQuelpart, Port Hamilton and Dagelet); Formosa (Taiwan) and the Pescadores; the Kurile Islands;
and the portion of Sakhalin Island and its adjacent islands over which Japan acquired sovereignty
in 1905 under the Treaty of Portsmouth.10 Japan also gave the United States control over Nansei
Shoto (including the Ryukyu Islands (Okinawa) and the Daito Islands), Nanpo Shoto (including
the Bonin Islands, Rosario Island and the Volcano Islands), and Parece Vela and Marcus Island.11
Although Japan renounced its claims to these lands, the treaty failed to declare a successor
State. Thus, five of the highly contentious territorial disputes that plague Asia-Pacific today havetheir roots in the SFPT, three of which involve Japan̶Kurile Islands/Northern Territories,
Liancourt Rocks (Dokdo/Takeshima) and Pinnacle Islands (Diaoyu/Senkakus).12 Over the years,
these disputes have intensified as a result of rising nationalism and a growing demand for living
and non-living ocean resources. In particular, the exclusive economic zone (EEZ) provisions of

4

Id.

5

Harr y S. Truman, President, Address in San Francisco at the Opening of the Conference on theJapanese Peace Treaty, 7 PUBLIC PAPERS OF THE PRESIDENTS 504 (Sept. 4, 1951), https://trumanlibrary.org/publicpapers/index.php?pid=432&st=&st1=.

6

Other nations that were not invited or did not send a representative to the conference included
Italy, Burma, India and Yugoslavia. C. Peter Chen, San Francisco Peace Conference, WORLD WAR IIDATABASE, http://ww2db.com/battle_spec.php?battle_id=316 (last visited Jan. 15, 2016); John Price,
A Just Peace? The 1951 San Francisco Peace Treaty in Historical Perspective (Japan Policy ResearchInstitute, JPRI Working Paper No. 78, 2001), http://www.jpri.org/publications/workingpapers/wp78.
html.

7

Treaty of Peace with Japan art. 1(a)–(b), Sept. 8, 1951 (entered into force Apr. 28, 1952), 3 U.S.T. 3169,
136 U.N.T.S. 45 [hereinafter SFPT].

8

Chen, supra note 6.

9John Dower, The San Francisco System: Past, Present, Future in U.S.-Japan-China Relations, ASIAPACIFIC JOURNAL (Feb. 24, 2014), http://japanfocus.org/-John_W_-Dower/ 4079.

10

SFPT, supra note 7, art. 2(a)–(c).

11

Article 3 provides that Japan will concur in any proposal of the United States to the United Nations toplace under its trusteeship system, with the United States as the sole administering authority, Nan- sei
Shoto south of 29 deg. north latitude (including the Ryukyu Islands and the Daito Islands), Nanpo Shotosouth of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela
and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the UnitedStates will have the right to exercise all and any powers of administration, legislation and jurisdiction
over the territory and inhabitants of these islands, including their territorial waters.
Id.

12

Dower, supra note 9.

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International Law and Japan’s Territorial Disputes

the United Nations Convention on the Law of the Sea,13 which were designed to accommodate
the interests of the developing States in exercising exclusive resource rights out to two hundred
nautical miles (nm), have had the unintended consequence of intensifying resource competition
and rekindling these long-standing territorial disputes.

II.

SOUTHERN KURILE ISLANDS/NORTHERN TERRITORIES(RUSSIAN FEDERATION V. JAPAN)

The northern boundary between Japan (Etorofu) and Russia (Uruppu) was established by the1855 Treaty of Commerce, Navigation and Delimitation between Japan and Russia.14 Islands tothe south of the boundar y line̶Etorofu, Habomai, Kunashiri and Shikotan̶were Japanese
territory; Uruppu and all islands north of the boundary were Russian territory. In 1875, Russia
ceded all of the Kurile Islands from Uruppu to Shumush (south of the Kamchatka Peninsula)
to Japan in exchange for Japanese rights to Sakhalin Island.15 In 1895, Japan and Russia signed
a new Treaty of Commerce and Navigation, which superseded the 1855 Treaty and reaffirmed
the boundary line established in the 1875 Treaty.16 In the Treaty of Portsmouth, which ended
the Russo-Japanese War, Russia ceded part of Sakhalin Island (south of the 50th parallel North)to Japan.17 Twenty years later, when Japan and the Soviet Union (also referred to as the USSR)
established diplomatic relations, the USSR agreed that the Treaty of Portsmouth remained in

13

United Nations Convention on the Law of the Sea arts. 55–75, Dec. 10, 1982,1833 U.N.T.S. 397.

14

Treaty of Commerce, Navigation and Delimitation between Japan and Russia, Japan-Russ., Feb. 7,
1855, 112 Consol. T.S. 467. See also Joint Compendium of Documents on the History of Territorial Issue
between Japan and Russia, MINISTRY OF FOREIGN AFFAIRS OF JAPAN (Mar. 1, 2001), http://www.
mofa.go.jp/region/europe/russia/territory/edition92/in dex.html [hereinafter Joint Compendium ofDocuments].

15

Treaty for the Exchange of Sakhalin for the Kurile Islands, Japan-Russ., art. 2, May 7, 1875, 149 Consol.
T.S. 179, Joint Compendium of Documents, supra note 14 (“In exchange for the cession to Russia of therights on the island of Karafuto (Sakhalin) . . . , His Majesty the Emperor of All the Russias . . . cedes
to His Majesty the Emperor of Japan the group of the islands, called Kurile . . . , together with all therights of sovereignty appertaining to this possession, so that henceforth all the Kurile Islands shallbelong to the Empire of Japan and the boundary between the Empires of Japan and Russia in theseareas shall pass through the Strait between Cape Lopatka of the Peninsula of Kamchatka and the islandof Shumushu. The Kurile Islands comprises the following eighteen islands:1) Shumushu, 2) Araido, 3)Paramushiru, 4) Makanrushi, 5) Onekotan, 6) Harimukotan, 7) Ekaruma, 8) Shasukotan, 9) Mushiru,
10) Raikoke, 11) Matsua, 12) Rasutsua, 13) the islets of Suredonewa and Ushishiru, 14) Ketoi, 15)
Shimushiru, 16) Buroton, 17) the islets of Cherupoi and Brat Cherupoefu and 18) Uruppu.”).

16

Treaty on Commerce and Navigation between Japan and Russia, Japan-Russ., art. 18, June 8, 1895, Joint
Compendium of Documents, supra note 14 (“This treaty . . . shall replace the following documents: theTreaty of Commerce, Navigation and Delimitation. . . 1855; the Treaty of Friendship and Commerce . . .
1858; the convention signed on . . . December 11, 1867; and all additional agreements attached to theabove.”). An attached Declaration further provided:
The parties . . . declare that Article 18 of the treaty . . . does not relate either to the treaty signed
on . . . May 7, 1875 between His Majesty the Japanese Emperor and His Majesty the All RussianEmperor, or to the appendix, signed at Tokyo on August 10 (22) of the same year. The said treaty
and article . . . remain in force.
Id.

17

Treaty of Portsmouth, Japan-Russ., art. 9, Sept. 5, 1905, 199 Consol. T.S. 144(“The Imperial Russian
Government shall cede to the Imperial Government of Japan, in perpetuity and full sovereignty, thesouthern portion of the island of Sakhalin, and all the islands adjacent thereto, as well as all the public
works and properties there situated. The fiftieth degree of north latitude shall be adopted as thenorthern boundary of the ceded territory.”).

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force.18
The situation remained unchanged until the Soviet Union declared war on Japan on August
9, 1945, and Soviet forces occupied the Northern Territories. The islands were subsequently
incorporated into the Soviet Union by the Decree of the Presidium of the USSR Supreme Soviet
on the Creation of the South-Sakhalin Province in the Khabarovsk Region on February 2, 1946.19
Since then, Japan has argued that continued Russian occupation of the islands is illegal, citing aseries of World War II and post-war documents.
In the Atlantic Charter, the United States and Great Britain affirmed that the Allies, inter alia,
did not seek “aggrandizement, territorial or other” and that the Allies desired “to see no territorialchanges that do not accord with the freely expressed wishes of the peoples concerned.”20 The
USSR acceded to the Charter on September 2, 1941. Similarly, in the Cairo Declaration, which theSoviet Union acceded to on August 8, 1945, the Allies reaffirmed that they coveted “no gain[s]for themselves and have no thought of territorial expansion.”21 The Allies further agreed thatJapan would “be stripped of all the islands in the Pacific which she has seized or occupied since
the beginning of the First World War in 1914, and that all the territories Japan has stolen fromthe Chinese . . . shall be restored to . . . China,” and that Japan will “be expelled from all other
territories which she has taken by violence and greed.”22 In 1945, the USSR agreed to enter the
war against Japan on the condition that, inter alia, “the southern part of Sakhalin as well as theislands adjacent to it” and “the Kurile Islands” would be returned to it at the conclusion of thewar.23 The Potsdam Declaration, which the Soviet Union acceded to on August 8, 1945, simply
stated, in part, that “the terms of the Cairo Declaration shall be carried out” and that “Japanesesovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor
islands as the Allies would determine.”24 The Potsdam Declaration further provided that Allied
forces would withdraw from Japan as soon as “a peacefully inclined and responsible government”
was established by “the freely expressed will of the Japanese people.”25
In 1951, Japan renounced its right, title and claim to the Kurile Islands, and to the part of
Sakhalin Island and the islands adjacent to it over which Japan acquired sovereignty under
Article 9 of the Treaty of Portsmouth.26 The SFPT did not, however, determine the sovereigntyof the islands renounced by Japan, leaving that question to “international solvents other than this18

Convention on Fundamental Principles for Relations between Japan and the Union of Soviet Socialist
Republics, Japan-U.S.S.R., Jan. 20, 1925, Joint Compendium of Documents, supra note 14.

19

Decree of the Presidium of the USSR Supreme Soviet on the Creation of the South-Sakhalin Province inthe Khabarovsk Region (1946), Joint Compendium of Documents, supra note 14.

20

Atlantic Charter, Aug. 14, 1941, Declaration of Principles issued by the President of the United States
and the Prime Minister of the United Kingdom, U.S.-U.K., Aug. 14, 1941, 55 Stat. 1600, http://avalon.
law.yale.edu/wwii/atlantic.asp.

21

Conference of President Roosevelt, Generalissimo Chiang Kai-shek and Prime Minister Churchill in
North Africa, Dec. 1, 1943, 9 DEPARTMENT OF STATE BULLETIN 393 (1943), https://archive.org/
stream/departmentofstat91943unit_0#page/392/mode/ 2up [hereinafter Cairo Declaration].

22

Id.

23

Report Signed at Crimea (Yalta) Conference, U.S.-U.K.-U.S.S.R, Feb. 11, 1945, 59 Stat. 1823, http://
avalon.law.yale.edu/wwii/yalta.asp [hereinafter Yalta Agreement].

24

P r o c l a m a t i o n D e f i n i n g Te r m s f o r J a p a n e s e S u r r e n d e r ¶ 8 , J u l y 2 6 , 1 9 4 5 , 1 3 D E PAR TMENT OF STATE BULLETIN 137 (July 29, 1945), https://archive.org/stream/depar t
mentofstat131945unit#page/136/mode/2up [hereinafter Potsdam Declaration].

25

Id. ¶ 12.

26

SFPT, supra note 7, art. 2(c).

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treaty.”27 Moreover, since the Soviet Union did not sign the treaty, it conferred no rights upon the
USSR.
As a result, Japan and the Soviet Union engaged in separate negotiations from June 1955 to
October 1956 to conclude a peace treaty, but the two sides were unable to reach an agreement
because of the dispute over the Northern Territories. Both sides agreed, however, to continue
negotiations to conclude a treaty, which would address the territorial dispute after diplomatic
relations were reestablished between the two countries.28
The state of war between Japan and the USSR ended and Japanese-Soviet diplomatic relations
were restored in 1956 with the signing of the Joint Declaration by Japan and the USSR.29
Paragraph nine provides that the two countries would continue negotiations on the conclusionof a peace treaty after the reestablishment of normal diplomatic relations, and that the USSR
would hand over Habomai and Shikotan Islands to Japan after the peace treaty was concluded.30
However, the signing of the Treaty of Mutual Cooperation and Security between the UnitedStates and Japan31 prompted the USSR to walk away from its previous commitment to return theislands, which would not occur until such time as all foreign troops were withdrawn from Japan.32
Japanese objections that the Joint Declaration was an international agreement between the two

27

John Foster Dulles, Secretary of State, Address at the San Francisco Peace Conference (Sept. 5, 1951),
http://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/ JPUS/19510905.S1E.html [hereinafterDulles Address].

28

Letter from the Plenipotentiary Representative of the Japanese Government, S. Matsumoto, to the USSRFirst Deputy Minister of Foreign Affairs, A.A. Gromyko (1956), Joint Compendium of Documents, supranote 14 (“The Government of Japan is ready to enter into negotiations in Moscow on the normalizationof Japanese-Soviet relations without the conclusion of a peace treaty at this time. . . . At the same time
the Japanese Government thinks that after the reestablishment of diplomatic relations . . . , it is quitedesirable that Japanese-Soviet relations develop even further on the basis of a formal peace treaty, which
would also include the territorial issue. . . . [T]he Japanese Government assumes that negotiations on
the conclusion of a peace treaty including the territorial issue will continue after the reestablishment of
normal diplomatic relations between the two countries.”); Letter from the USSR First Deputy Ministerof Foreign Affairs, A.A. Gromyko, to the Plenipotentiary Representative of the Government of Japan, S.
Matsumoto (1956), Joint Compendium of Documents, supra note 14 (“[T]he Soviet Government accepts
the view of the Japanese Government . . . and announces its agreement to continue negotiations on the
conclusion of a peace treaty, which would also include the territorial issue, after the reestablishment of
normal diplomatic relations.”).

29

Joint Declaration by the Union of Soviet Socialist Republics and Japan, USSR-Japan, Oct. 19, 1956,
http://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/docs/19561019.D1E.html.

30

Id. ¶ 9 ( “Japan and the Union of Soviet Socialist Republics agree to continue, af- ter the restoration of
normal diplomatic relations . . . negotiations for the conclusion of a peace treaty. The Union of Soviet
Socialist Republics . . . agrees to hand over to Japan the Habomai Islands and the island of Shikotan.
However, the actual handing over of these islands to Japan shall take place after the conclusion of apeace treaty between Japan and the Union of Soviet Socialist Republics.”).

31

Treaty of Mutual Cooperation and Security Between Japan and the United States of America, Japan-U.S.,
Jan. 19, 1960, 11 U.S.T. 1633, T.I.A.S. No. 4509, 33 U.N.T.S. 186 [hereinafter Japan-U.S. Mutual Security
Treaty].

32

Memorandum from the Soviet Government to the Government of Japan (1960), Joint Compendiumof Documents, supra note 14 (“Japanʼs conclusion of a new military treaty [with the United States] . . .
creates obstacles to the development of Soviet-Japanese relations. . . . This situation makes it impossible
for the Soviet Government to fulfill its promises to return the islands of Habomai and Shikotan to Japan.
. . . Thus, . . . the islands of Habomai and Shikotan will be handed over to Japan, as was stated in theSoviet-Japanese Joint Declaration of October 19, 1956, only if all foreign troops are withdrawn fromJapan and a Soviet-Japanese peace treaty is signed.”).

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nations and could not be changed unilaterally by the Soviet Union fell on deaf ears.33
In October 1973, the territorial issue was revived during the Japanese- Soviet summit meetingin Moscow. A Joint Communiqué issued at the conclusion of the summit recognized that theparties had “unresolved problems left over since World War II” and that “the conclusion of apeace treaty” would enhance relations between the two countries.34 Twenty years later, the issue
was still not resolved, but both sides agreed at a summit in Tokyo in 1991 to continue to discussand accelerate the work on the conclusion of a peace treaty, to include resolution of the territorial
dispute.35
Following the dissolution of the USSR in December 1991, Russia assumed responsibility
for continuing the dialogue on these outstanding issues with the government of Japan. In a
letter to the Russian people, President Boris Yeltsin acknowledged that his government had
inherited unresolved issues with Japan, including the conclusion of a peace treaty and resolutionof the Southern Kurile dispute.36 Russiaʼs commitment to resolve these outstanding issues wasreaffirmed two years later in the Tokyo Declaration on Japan-Russia Relations,37 and again in 1998
in the Moscow Declaration on Establishing a Creative Partnership between Japan and the Russian

33

Memorandum from the Japanese Government to the Soviet Government (1960), Joint Compendium ofDocuments, supra note 14 (“It is . . . incomprehensible that . . . the Soviet Government is connecting
the issue of the revised Japan-US Security Treaty with the issue of handing over the islands of Habomaiand Shikotan. . . . The Joint Declaration is an international agreement . . . which has been ratified by thehighest organs of both countries. . . . [T]he contents of this solemn international undertaking cannot
be changed unilaterally. Moreover, since the current [1951] Japan-U.S. Security Treaty . . . already existed and foreign troops were present in Japan when the Joint Declaration . . . was signed, .. . it mustbe said the Declaration was signed on the basis of these facts. Consequently, there is no reason thatthe agreements in the Joint Declaration should be affected in any way. . . . Japan cannot approve of theSoviet attempt to attach new conditions for the provisions of the Joint Declaration on the territorial
issue. . . . Our country will keep insisting on the reversion not only of the islands of Habomai and
Shikotan but also of the other islands which are inherent parts of Japanese territory.”).

34

Japanese-Soviet Joint Communiqué (Oct. 10, 1973), Joint Compendium of Documents, supra note 14(“Recognizing that the settlement of unresolved problems left over from WWII and conclusion of apeace treaty would contribute to the establishment of truly good-neighborly and friendly relations
between the two countries. . . . Both sides agreed to continue negotiations on the conclusion of a peace
treaty between the two coun- tries at an appropriate time in 1974.”).

35

Japanese-Soviet Joint Communiqué (Apr. 18, 1991), Joint Compendium of Documents, supra note
14 (“Prime Minister . . . Kaifu . . . and President . . . Gorbachev . . . held . . . negotiations on a whole
range of issues relating to the . . . conclusion of a peace treaty . . . , including the issue of territorial
demarcation, taking into consideration the positions of both sides on the attribution of the islands ofHabomai, Shikotan, Kunashiri, and Etorofu.” The Prime Minister and the President also emphasized the“importance of accelerating work to conclude the preparations for a peace treaty.”).

36

Letter from the President of the Russian Federation, B.N. Yeltsin, to the Russian People (1991), Joint
Compendium of Documents, supra note 14 (“[A]n obvious obligation of the new Russian leadership is
to look for ways of resolving problems which we inherited from the policies of previous eras. . . . Oneof the problems we will have to resolve . . . is reaching a final post-War settlement in our relations withJapan. . . . [T]he main obstacle to the conclusion of this treaty is the issue of the demarcation of borders
between Russia and Japan. . . .”).

37

Tokyo Declaration on Japan-Russia Relations, U.S.S.R.-Japan, Oct. 13, 1993, http://www.ioc.u-tokyo.
ac.jp/~worldjpn/documents/texts/docs/19931013.D1E.html (“The Prime Minister of Japan and thePresident of the Russian Federation . . . have undertaken serious negotiations on the issue of where
Etorofu, Kunashiri, Shikotan and the Habomai Islands belong. They agree that negotiations towards anearly conclusion of a peace treaty . . . should continue.”).

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Federation.38
Despite Russiaʼs stated intentions, a peace treaty has not been concluded and the dispute over
the Northern Territories remains unresolved. In Japanʼs view, the islands of Habomai, Shikotan,
Kunashiri and Etorofu have been under illegal occupation by the Soviet Union and then Russia
since 1945.39 The Soviet Union maintained that the 1945 Yalta Agreement legally transferredsovereignty of the Kurile Islands, including the islands of Etorofu, Habomai, Kunashiri and
Shikotan, to the USSR at the conclusion of the war.40 Russia argues that, as the successor State to
the USSR, it holds sovereignty over the disputed islands.
Japan counters that the Yalta Agreement was not a final determination on the territorial issue,
a position supported by the United States, which in 1956 stated “the United States regards the . . .
Yalta agreement as simply a statement of common purposes by the then heads of the participating
powers, and not as a final determination by those powers or of any legal effect in transferring
territories.”41 Moreover, since Japan was not a party to the Agreement, it is not bound, legally or
politically, by its provisions.42
Japan ʼ s renunciation of its rights to the Kurile Islands in the 1951 SFPT is also not
determinative of the issue of sovereignty over the Northern Territories. During his speech at
the San Francisco Peace Conference, U.S. Secretar y of State John Foster Dulles, one of theprincipal architects of the SFPT, confirmed that the treaty did not determine the sovereignty of
the islands renounced by Japan, but rather left that question to “international solvents other than
this treaty.”43 Japan additionally points out that, since the Soviet Union did not sign the treaty, it
conferred no rights upon the USSR, a point reaffirmed by Japan each time senior Russian officials

38

Moscow Declaration on Establishing a Creative Partnership between Japan and the Russian Federation,
Nov. 13, 1998, http://www.mofa.go.jp/region/europe/russia/ territory/edition01/moscow.html (“ThePrime Minister of Japan and the President of the Russian Federation, taking into consideration . . .
the proposal regarding a solution to the issue of the attribution of the islands of Etorofu, Kunashiri,
Shikotan and Habomai made by the Japanese side at the Summit Meeting in Kawana . . . , instruct their
Governments to accelerate negotiations on the conclusion of a peace treaty on the basis of the Tokyo
Declaration. . . . The two leaders reaffirm their resolve to make their utmost efforts to conclude a peace
treaty by the year 2000. . . .”).

39

Northern Territories, MINISTRY OF FOREIGN AFFAIRS OF JAPAN (Apr. 4, 2014), http://www.mofa.
go.jp/region/europe/russia/territory/index.html.

40

Yalta Agreement, supra note 23.

41

State Department Memorandum on the Japan-Soviet Negotiations, The Aide-Memoire (Sept. 7, 1956),
http://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/JP RU/19560907.O1E.html [hereinafter
Aide-Memoire].

42

Id.

43

Dulles Address, supra note 27. See also Aide-Memoire, supra note 41.

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visit the Northern Territories or Russian forces conduct maneuvers in the disputed islands.44
The ongoing dispute remains a major stumbling block in Russo- Japanese bilateral relations.
The most recent flare-up occurred in August 2015 after Russian Deputy Prime Minister Yuri
Trutnev and Russian Prime Minister Dmitry Medvedev visited Iturup Island. Japan protested
the visit as “ʻincompatible with Japanʼs stanceʼ on the dispute.”45 Russia responded by calling theJapanese Foreign Ministryʼs comments “unacceptable,” stating Japanʼs claims to the islands were“baseless” and that Japan was demonstrating “a dismissive attitude towards the results” of WorldWar II.46 During the visit, Prime Minister Medvedev announced that Russia had decided to basea “modern effective military force” on the disputed islands and that housing for the Russian force
44

On November 1, 2010, the Japanese Minister for Foreign Affairs summoned the Russian Ambassador
to Japan to express his regret and protest the visit to Kunashiri Island by Russian President Dmitry
Medvedev: “President Medvedev's visit to Kunashiri Island contradicts with Japanʼs basic position. . .
. It is extremely regrettable and Japan lodges a protest.” In response, the Russian Ambassador statedthat President Medvedevʼs visit was purely a domestic matter and that “the worsening of Russo-Japan
relations is not beneficial for both sides.” Press Release, Ministry of Foreign Affairs of Japan, Ministerfor Foreign Affairs Seiji Maehara Lodges Representations to Mr. Mikhail Bely, Russian Ambassador
to Japan, Concerning the Visit to the Northern Territories by Russian President Dmitry Medvedev(Nov. 1, 2010), http://www.mofa.go.jp/announce/announce/2010/11/1101_02.html. In May 2012,
the Japanese Ministry of Foreign Affairs expressed its regret over a construction project by a Korean
company (Keumto Construction Co., Ltd.) to build port infrastructure in Nayoka and Etorofu Islands in
the Northern Territories:
Any act by an enterprise of a third country in the Northern Territories which can be interpreted
as following the Russian jurisdiction . . . is not compatible with Japanʼs position concerning theNorthern Territories. We express our strong regret over the activities of this Korean enterprise,
which run counter to the position of Japan.
Statement by the Press Secretar y, Ministr y of Foreign Affairs of Japan, on the Participation in the
Infrastructure Building Work in the Northern Territories by an Enterprise of a Third Country (May30, 2012), http://www.mofa.go.jp/announce/announce/2012/5/ 0530_02.html. On June 3, 2012,
after Russian Prime Minister Dmitry Medvedevʼs visit to Kunashiri Island the Japanese Vice-Ministerfor Foreign Affairs stated to the Russian Ambassador to Japan that “Kunashiri Island is the inherent
territory of Japan. The Japanese Government cannot accept this visit and finds it extremely regrettable.
We express concern that this visit throws cold water on the positive atmosphere which has been constructed between Japan and Russia.” Press Release, Ministry of Foreign Affairs of Japan, Mr. Kenichiro
Sasae, Vice-Minister for Foreign Affairs, Summons Mr. Evgeny Vladimiro-vich Afanasiev, Ambassadorof the Russian Federation to Japan, on the Visit of Russian Prime Minister Medvedev to the Northern
Territories (July 3, 2012), http://www.mofa.go.jp/announce/announce/2012 /7/0703_02.html. In
August 2014, over a thousand Russian troops, five attack helicopters and over a hundred vehicles
conducted a series of militar y exercises on Kunashiri and Etorofu Islands aimed at defending theislands. Japan lodged a protest with Russia calling the exercise “totally unacceptable” and indicating that “the Northern Territories are an inherent part of Japanʼs territory.” Russia responded thatthe exercise was not directed at Japan and that its protest was “groundless.” U.S. Recognizes Japan’s
Sovereignty over Russian-held Isles: Official, JAPAN TIMES (Aug. 14, 2014), http://www.japantimes.
co.jp/news/2014/08/14/national/u-s-recognizes-japans-sovereig nty-over-russian-held-isles-official/#.
VfMzPXmFOUk.

45

Dmitry Filippov, The Northern Territories Remain the Stumbling Block in Russo–Japanese Relations,
EAST ASIA FORUM (Sept. 4, 2015), http://www.eastasiaforum.org/2015/09/04/the-nor thernterritories-remain-the-stumbling-block-in-russo-japanese-relations/.

46

Id. See also Osamu Tsukimori, Denis Dyomkin & Jason Bush, Japan Protests Russian PM's Visit to
Disputed Island, REUTERS (Aug. 22, 2015), http://www.reuters.com/article/2015/08/22/us-russiamedvedev-japan-idUSKCN0QR04A20150822 (“[Russiaʼs] . . . position is simple: We want to be friends
with Japan, Japan is our neighbor. We have a good attitude towards Japan, but this shouldnʼt be linked
in any way with the Kurile islands, which are part of the Russian Federation. Therefore we have madevisits, we are visiting and we will make visits to the Kuriles.”).

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International Law and Japan’s Territorial Disputes

would be constructed on Etorofu and Junishiri islands.47 The following month, four Japanesefighters were scrambled to intercept a Russian aircraft that penetrated Japanese airspace off
Hokkaido. A protest was immediately lodged with the Russian embassy in Tokyo.48
Despite the recent dust up, both sides agreed to meet in Moscow at the end of September
2015 to discuss bilateral relations, including the disputed islands and conclusion of a peace
treaty.49 Any hope of resolving the territorial disputes at the meeting was dashed, however, when
Russian Foreign Minister Sergei Lavrov indicated to his counterpart Fumio Kishida that there
was no room for compromise over the Southern Kurile Islands.50 Notwithstanding Minister
Lavrovʼs statement, Japanese Prime Minister Shinzo Abe met with Russian President Vladimir
Putin on the margins of the U.N. General Assembly meeting in late September to discuss theissue.51
Since 1956, the United Statesʼ position has been that, “ after careful examination of thehistorical facts . . . , the islands of Etorofu and Kunashiri (along with the Habomai Islands andShikotan which are a part of Hokkaido) have always been part of Japan proper and should in
justice be acknowledged as under Japanese sovereignty.”52 That position was reaffirmed in 2014
by a U.S. Department of State spokesperson.53 Of U.S. concern is that an armed attack against
Japan Self-Defense Force (JSDF) units in the area by Russian forces could trigger U.S. defense
obligations under Article 5 of the 1960 U.S.-Japan Treaty of Mutual Cooperation and Security.54

III.

LIANCOURT ROCKS (TAKESHIMA/DOKDO)(JAPAN V. SOUTH KOREA)

The Liancourt Rocks (Takeshima (Japan)/Dokdo (South Korea)) are claimed by both Japan andSouth Korea, but have been occupied by South Korea since 1954. Japan bases its claim primarily

47

Maria Antonova, Russian PM Visits Disputed Kuril Islands, Triggering Japan Protest, YAHOO!
NEWS (Aug. 22, 2015), http://news.yahoo.com/japan-protests-russian-pm-visits-disputed-kurilislands-053050767.html. See also Japan Premier Hits Out at Russian PM’s Visit to Disputed Islands,
YAHOO! NEWS (Aug. 23, 2015), http://news.yahoo.com/japan-premier- hits-russian-pms-visit-disputedislands-055614051.html.

48

Japan Protests after “Russian” Plane Enters Airspace, YAHOO! NEWS (Sept. 15, 2015), http://news.
yahoo.com/japan-scrambles-jets-intercept-russian-plane-222619504.html.

49

Japanese Foreign Minister to Discuss Disputed Isles in Moscow, REUTERS (Sept. 19, 2015), http://www.
reuters.com/article/2015/09/19/us-russia-japan-idUSKCN0RJ04R2015091 9; Russia and Japan toContinue Discussions on Peace Treaty, KSL.COM (Sept. 21, 2015), http://www.ksl.com/?nid=235&sid=36625923&title=russia-and-japan-to-continue- discussions-on-peace-treaty.

50

Japan Must Recognise Kuril Islands for Peace Deal: Lavrov, YAHOO! NEWS (Sept. 21, 2015), http://
news.yahoo.com/japan-must-recognise-kuril-islands-peace-deal-lavrov-2002 16317.html (“Neither theʻnorthern territoriesʼ of Japan nor the ʻnorthern territoriesʼ of Russia are the subject of our dialogue. On
our agenda is reaching the peace deal. Moving forward on this issue is possible only after we see clearlyJapanʼs recognition of historic realities. The work is difficult and the difference in positions is vast.”).

51

Hyun Oh, Residents of Russian-held Isles Disputed by Japan Await Diplomatic Resolution, REUTERS (Sept.
25, 2015), http://www.reuters.com/article/2015/09/25/us-japan-russia- idUSKCN0RP1FZ20150925.

52

Aide-Memoire, supra note 41.

53

Daily Press Briefing, Marie Harf, Deputy Spokesperson, U.S. Department of State (Aug. 13, 2014),
http://www.state.gov/r/pa/prs/dpb/2014/08/230586.htm#JA PAN (“The United States recognizes
Japanese sovereignty over these islands [the Southern Kurile Islands].”).

54

Japan-U.S. Mutual Security Treaty, supra note 31, art. 5 (“Each Party recognizes that an armed attack
against either Party in the territories under the administration of Japan would be dangerous to its own
peace and safety and declares that it would act to meet the common danger in accordance with its
constitutional provisions and processes.”).

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Raul (Pete) Pedrozo

on historical documents and incorporation of Takeshima into Shimane Prefecture in 1905. 55
Japan additionally asserts that the negotiating history of the SFPT,56 as well as a number of postwar documents, support its position that Japan retained sovereignty over the islets after WorldWar II. South Koreaʼs claim is likewise based primarily on historical records and its purported
presence and administration of Dokdo, excluding the forty-year period of Japanese militar yoccupation between 1905 and 1945. It relies heavily on a 1900 Imperial Ordnance that asserted
sovereignty over Utsuryo Island (present day Ulleungdo), which South Korea contends included
Dokdo.57 South Korea additionally argues that the Cairo Declaration,58 Yalta Agreement, Potsdam
Declaration59 and the SFPT, as well as instructions issued by General MacArthur as the SCAP,55

In 1905, the Japanese government incorporated Takeshima into the Shimane Prefecture, identifying theislets by their geographic coordinates. Incorporation of Takeshima into Shimane Prefecture, MINISTRY
OF FOREIGN AFFAIRS OF JAPAN (July 30, 2015). The location of the “uninhabited island” wasspecified as “latitude 37 9ʼ30” N, longitude 131 55” E . . . located at 85 sea-miles northwest of Oki Island.”Tsukamoto Takashi, The Meaning of the Territorial Incorporation of Takeshima (1905), Review of Island
Studies, Center for Island Studies, Dec 25, 2014, http://islandstudies.oprf-info.org/research/a00014/.
The cabinet decision was published in Japanese newspapers in February 1905 and the governor of
Shimane Prefecture registered the islands in the state land register. Lack of extensive publication of
Takeshimaʼs incorporation can be explained by the fact that Japan was still at war with Russia and wasplanning to use the islets as a communications and surveillance facility. It is understandable from an
operational security standpoint that Japan did not widely advertise the incorporation of the islets. Had it
done so, Japan would have alerted Russia that Japanese forces were on the island, making those forces
vulnerable to attack by the Russian fleet in Vladivostok. Japanese sovereignty over Takeshima went
uncontested for the next forty years.

56

During the negotiations of the 1951 treaty, U.S. Assistant Secretary of State for Far Eastern Affairs,
Dean Rusk, informed the South Korean Ambassador to the United States that the Liancourt Rocks were
“normally uninhabited,” had never been “treated as part of Korea” and since 1905 had “been under thejurisdiction of the Oki Islands Branch Office of Shimane Prefecture of Japan.” The Rusk note went on to
say that “the island does not appear ever before to have been claimed by Korea.” Diplomatic Note of 10
August 1951 from the U.S. Assistant Secretary of State for Far Eastern Affairs, Dean Rusk, to the South
Korean Ambassador to the United States, You Chan Yang, http://en.wikisource.org/wiki/Rusk_note_
of_1951 [hereinafter Rusk Diplomatic Note]. See also Mark S. Lovmo, The United States’ Involvementwith Dokdo Island (Liancourt Rocks): A Timeline of the Occupation and Korean War Era, DOKDORESEARCH (2004), http://dokdo-research.com/page9.html. The U.S. position was confirmed in July
1951 by the State Department geographer, S.W. Boggs, in a note to the Special Assistant to the Directorof the Office of Northeast Asian Affairs, Robert A. Fearey, which stated that “while there is a Koreanname for Dagelet [Ulleungdo], none exists for the Liancourt Rocks and they are not shown in maps
made in Korea.” Id.

57

Dokdo Development and Imperial Ordinance No. 41 of the Korean Empire, NOR THEASTA S I A N H I S T O R Y N E T W O R K , h t t p : / / c o n t e n t s . n a h f . o r. k r / e n g l i s h / i t e m / l e v e l .
do?levelId=eddok_003e_0030_0010 (last visited Jan. 16, 2016). See also The Dokdo/Takeshima Dispute,
KOREA.NET, http://www.korea.net/News/news/newsprint.asp?serial_no=20091228010 (last visited
Jan. 16, 2016).

58

But the Cairo Declaration only required Japan to return the Pacific islands it had seized since 1914
(Takeshima was incorporated into Japan in 1905) and determined that Korea would become a free andindependent State following the war. Cairo Declaration, supra note 21.

59

The Potsdam Declaration simply reaffirms the terms of the Cairo Declaration and limited Japanesesovereignty “to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we
determine.” Potsdam Declaration, supra note 24, ¶ 8.

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International Law and Japan’s Territorial Disputes

all support its position that Japan returned Dokdo to Korea at the conclusion of the war.60 Basedon evidence presented by the claimants and standards concerning island disputes articulatedby the International Court of Justice (ICJ) in cases like Indonesia v. Malaysia61 and Malay-sia v.
Singapore,62 it would appear that Japan has the superior claim to the islets.63
The island dispute has also resulted in a maritime boundary dispute between the claimants.
South Korea asserts that the EEZ median line should be between Ulleungdo and Japan ʼs Oki
Island. Japan, on the other hand, maintains that the median line should be between Takeshima
and Ulleungdo. Both sides have made some concessions in the context of joint development
and allocation of fisheries resources in the vicinity of the islands.64 A 1965 fisheries agreement,
which was replaced in 1999 by a new agreement, established a joint fisheries control zone
without mentioning the ongoing territorial dispute over the islets.65 Similarly, a 1977 agreement
established a Joint Development Zone, most of which lies on the Japanese side of a hypotheticalequidistant line, which allows for exploration and exploitation of the continental shelf by bothcountries.66
Notwithstanding this limited progress, repeated efforts by Japan since 1954 to refer the
dispute to the ICJ or other third-party intervention for adjudication have been consistently ejectedby South Korea.67 In South Koreaʼs view, the dispute is not a legal issue that can be resolvedby the ICJ, but rather a historical matter associated with Japanʼs invasion of Korea.68 Bilateral
discussions to resolve the long-standing territorial and maritime boundary disputes have beenongoing since the 1950s, with no resolution in sight.
As a result, relations between the two U.S. allies remain strained, and Japan has repeatedly
called on South Korea to return the disputed islets. The most recent exchanges occurred in

60

Notwithstanding South Koreaʼs position, Dokdo is not mentioned in the Cairo Declaration, Potsdam
Declaration or Yalta Agreement. Similarly, the 1951 SFPT does not mention the status of Dokdo
despite a concerted effort by the Korean government to include Dokdo in the list of islands that Japanrenounced title to in favor of Korea in Article 2(a) of the Treaty. Diplomatic Note of 19 July 1951 fromthe Korean Ambassador to the Secretary of State, https://en.wikisource.org/wiki/Letter_from_You_
Chan_Yang_to_ Dean_Acheson,_19_July,_1951. Article 2(a) of the SFPT provides that Japan would recognize the “independence of Korea” and would renounce “all right, title and claim to Korea, including
the islands of Quelpart [Cheju], Port Hamilton and Dagelet [Ulleungdo].”61

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), 2002 I.C.J. 625, 683 (Dec. 17).

62

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), 2008
I.C.J. 14 (May 23).

63

Raul (Pete) Pedrozo, Sovereignty Claims over the Liancourt Rocks (Dokdo/Takeshima), 28 CHINESE(TAIWAN) YEARBOOK OF INTERNATIONAL LAW AND AFFAIRS 78 (2010).

64

Japan-Republic of Korea Joint Declaration, A New Japan-Republic of Korea Partnership towards theTwenty-first Century (Oct. 8, 1998), http://www.mofa.go.jp/region/asia-paci/korea/joint9810.html.

65Japan unilaterally withdrew from the 1965 Agreement in 1998 after it declared its exclusive economic
zone in June 1996. Kunwoo Kim, Korea-Japan Fish Dispute, INVENTORY OF CONFLICT AND
ENVIRONMENT (ICE) (Apr. 23, 2002), http://www1.ameri can.edu/ted/ice/korea-japan-islands.htm.

66

OFFICE OF THE GEOGRAPHER, U.S. DEPARTMENT OF STATE, LIMITS IN THE SEAS NO. 75,
CONTINENTAL SHELF BOUNDARY AND JOINT DEVELOPMENT ZONE JAPAN-REPUBLIC OF
KOREA 4 (1977), http://www.state.gov/documents/organization/59588.pdf.

67

An Outline of the Japanese Position on Sovereignty over Takeshima and the Illegal Occupation by the
Republic of Korea, MINISTRY OF FOREIGN AFFAIRS OF JAPAN (July 30, 2015), http://www.mofa.
go.jp/region/asia-paci/takeshima/position.html.

68

Dokdo & East Sea: Wrapping-up Review of Each Issue, KOREA.NET (Feb. 2, 2012), http://m.korea.net/
english/Government/Current-Affairs/Others/view?affairId=83&sub Id=233&articleId=1031.

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Raul (Pete) Pedrozo

early 2015.69 Notwithstanding the recent row, on April 14, 2015, the two countries held their firsthigh-level meeting̶2+2 talks involving senior officials from the ministries of foreign affairs anddefense̶in more than five years to discuss territorial and historical differences.70 Additionally,
Prime Minister Shinzo Abe and President Park Geun-hye met in Seoul for the first time since
taking office in 2012 and 2013, respectively.71
Historically, the United States viewed the Liancourt Rocks as sovereign Japanese territory.72

69

The Shimane prefectural government held its annual convention on February 22̶Takeshima Day.
The Parliamentar y Vice Minister in the Cabinet Office, Yohei Matsumoto, attended the ceremony,reiterating Japanʼs position that Takeshima is sovereign Japanese territory and stating the Japan “wasworking to achieve a peaceful resolution of the problem.” South Korean officials called the Japanese
claim “ludicrous.” Japan Calls for Return of Isles from South Korea, YAHOO! NEWS (Feb. 22, 2015),
http://news.yahoo. com/japan-calls-return-isles-south-korea-085002588.html. Two months later, South
Korea condemned the Japanese government for approving new textbooks that reflect that Takeshima
is part of Japan, issuing a strongly worded protest that indicated that the Education Ministryʼs approvalof the new geography books was “yet another provocation that distorts, reduces, and omits clear
historic facts to strengthen its unjust claims to what is clearly our territory. The Japanese governmentis in effect saying it will repeat its mistakes of the past.” Japanese Education Minister Hakubun
Shimomura responded stating that “Itʼs only natural that we want to teach children correctly about theircountryʼs territory.” Jack Kim, South Korea Condemns Japanese Books as Bid to Repeat ‘Past Mistakes,’
REUTERS (Apr. 6, 2015), http://www.reuters.com/article/2015/04/06/us-southkorea-japan-idUSKBN0
MX0F720150406.

70

South Korea, Japan Hold First Security Talks for 5 Years, YAHOO! NEWS (Apr. 14, 2015), http://news.
yahoo.com/south-korea-japan-hold-first-security-talks-5-072152405.html.

71

Justin McCurry, Japan and South Korea Summit Signals Thaw in Relations, THE GUARDIAN (Nov. 2,2015), http://www.theguardian.com/world/2015/nov/02/japan- south-korea-summit-thaw-in-relations.

72

Rusk Diplomatic Note, supra note 56.

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International Law and Japan’s Territorial Disputes

The U.S. position changed, however, to one of “neutrality” shortly after the Korean War ended.73
Since 1953, the United States has maintained its neutrality on the sovereignty issue, while callingon both sides to resolve their differences peacefully, either bilaterally or through third-party
intervention. The U.S. position was reaffirmed by a State Department spokesperson in 2014̶
“Nothing has changed about our policy on the Liancourt Rocks. We donʼt take a position on thesovereignty of those islands.”74 The U.S. position is understandable given the fact that the UnitedStates has treaty obligations to both of the disputants and is concerned that the ongoing rift overthe islets could hinder U.S. efforts to create a united front against Chinese assertiveness in the
East and South China Seas.

IV.

PINNACLE ISLANDS (DIAOYU/SENKAKUS) (CHINA/JAPAN)

The Pinnacle Islands are comprised of five uninhabited islands75 and three barren rocks.76 The
island group is located approximately 120 nm Northeast of Taiwan, 200 nm east of mainland
China and 190 nm southwest of Okinawa. The islands, which are claimed by China, Taiwan andJapan, are separated from the Ryukus Islands by the 2,270-meter-deep Okinawa Trough.
Historically, the Pinnacle Islands had little intrinsic value. However, the dispute over theislands intensified in 1969 after the United Nations Economic Commission for Asia and the Far
East (ECAFE) released a report suggesting that the seabed around the islands could contain73

An internal State Department memo suggested that the best way forward for the United States would
be “to extricate itself from the dispute to the greatest extent possible” and suggest to the parties that“the matter might appropriately be referred to the International Court of Justice,” noting that theUnited States had treaty obligations to both claimants and that the “United States would be placed in
the embarrassing position . . . of seeming to choose between Japan or Korea.” Letter from Kenneth T.
Young, Jr., Director Office of Northeast Asian Affairs, U.S. Department of State to E. Allan Lightner,
American Embassy, Korea, Possible Methods of Resolving Liancourt Rocks Dispute Between Japanand the Republic of Korea (July 22, 1953), https://en.wikisource.org/wiki/Possible_Methods_of_
Resolving_Liancourt_Rocks_Dispute_between_Japan_and_ROK. A subsequent State Department
memorandum dated November 11, 1953, similarly indicated that the United States should remind
Korea of the Rusk note; “express strong hope that settlement can be reached with the Japanese; . . .
[note that] the United States seeks to avoid any form of intervention in this matter;” if clashes continue
to occur the United States “may be forced to give publicity to the Rusk letter and to reiterate the viewexpressed therein”; and if Korea cannot accept the views expressed in the Rusk letter, it should “takesteps toward arbitration or appeal the matter to the ICJ.” Memorandum by William T. Turner in Regard
to the Liancourt Rocks (Takeshima Island) Controversy (Nov. 30, 1953), https://sites.google.com/site/
liancourttakeshima/Home/-reconfirmation-liacnorut-rocks-is-terrotory-of-japan-by-san-fransisco-treatyof-peace. The following month, Secretary of State John Foster Dulles again suggested that the parties
refer the dispute to the ICJ for adjudication. Telegram from John Foster Dulles, U.S. Secretary of State,
to American Embassy, Japan (Dec. 9, 1953), http://dokdo-or-takeshima.blogsp ot.com/2008/08/1953december-secret-security.html. See also Lovmo, supra note 56. Similarly, a repor t submitted by
Ambassador James Van Fleet after a trip to the Asia-Pacific region in August 1954 stated that the UnitedStates had informed South Korea that the Liancourt Rocks “remained under Japanese sovereignty
and the Island was not included among the Islands that Japan released from its ownership under thePeace Treaty.” The report additionally stated, however, that the United States has not “interfere[d]in the dispute.” As a possible way forward, Ambassador Van Fleet informally recommended to South
Korean officials that “that the dispute might properly be referred to the Interna- tional Court of Justice.”
Ownership of Dokto Island, MINISTRY OF FOREIGN AFFAIRS OF JAPAN, http://www.mofa.go.jp/
mofaj/area/takeshima/pdfs/g_sfjoyaku04.pdf (last visited Jan. 16, 2016).

74

Daily Press Briefing, Marie Harf, Deputy Spokesperson, U.S. Department of State (Feb. 13, 2014),
http://www.state.gov/r/pa/prs/dpb/2014/02/221643.htm#SOUTHK OREA.

75

Uotsurishima/Diaoyu Dao; Taisho-to/Chiwei Yu; Kubashima/Huangwei Yu; Kita-Kojima/Bei Xiaodao;
and Minami-Kojima/Nan Xiaodao.

76

Oki-no-Kita-iwa/Da Bei Xiaodao; Oki-no-Minami-iwa/Da Nan Xiaodao; and Tobise/Fei Jiao Yan.

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rich oil and gas reser ves.77 Although no oil and gas has been produced from the Pinnacle
Islands continental shelf to date,78 an analysis brief published by the U.S. Energy Information
Administration in September 2014 estimates “that the East China Sea has about 200 million
barrels of oil in proven and probable reserves” and “between 1 and 2 trillion cubic feet in provenand probable natural gas reserves.”79
The Pinnacle Islands are strategically located along some of the Asia-Pacificʼs most importantsea lines of communication in the East China Sea. Additionally, the waters surrounding theislands are home to productive fisheries, which have been traditionally exploited by Chinese,
Taiwanese and Japanese fishermen.80
The Japanese government incorporated some of the islands in 1895, and Japan has exercised
effective administration and control over the islands, except for the period between 1951 and1972 when the islands were under U.S. administration pursuant to the SFPT.81 In 1896, four of theislands were leased by the Japanese government to a Japanese national free of charge.82 The four
remaining islands were sold by the government to a Japanese citizen in 1932.83
The United States transferred administrative control of the Pinnacle Islands back to Japan in1972 pursuant to the Okinawa reversion treaty.84 Since then, Kubashima/Huangwei and Taisho77

Daniel Dzurek, Comments on “Island Disputes in East Asia,” in SECURITY FLASH-POINTS: OIL,
ISLANDS, SEA ACCESS AND MILITARY CONFRONTATION 419 (Myron H. Nordquist & John
Norton Moore eds., 1998); Carlos Ramos-Mrosovsky, International Law’s Unhelpful Role in the Senkaku
Islands, 29 UNIVERSITY OF PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW 903, 917 (2008).
The ECAFE report indicated that a “high probability exists that the continental shelf between Taiwan
and Japan may be one of the most prolific oil reservoirs in the world.” K. O. EMERY ET AL., UNITED
NATIONS ECONOMIC COMMISSION FOR ASIA AND THE FAR EAST, GEOLOGICAL SURVEY,GEOLOGICAL STRUCTURE AND SOME WATER CHARACTERISTICS OF THE EAST CHINA SEA
AND THE YELLOW SEA 41 (1969), https://www.gsj.jp/data/ccop-bull/2-01.pdf [hereinafter ECAFEREPORT].

78

Therefore, “the question as to whether there is recoverable crude oil in commercially exploitable
quantities remains unanswered.” DIRECTORATE OF INTELLIGENCE, CENTRAL INTELLIGENCEAGENCY, THE SENKAKU ISLANDS DISPUTE: OIL UNDER TROUBLED WATERS? 25 (1971)[hereinafter CIA SENKAKU ISLANDS INTELLIGENCE REPORT].

79

East China Sea Report, U.S. ENERGY INFORMATION ADMINISTRATION 2–3 (Sept. 17, 2014),
https://www.eia.gov/beta/international/analysis_includes/regions_of_interest/East_China_Sea/east_
china_sea.pdf. “Chinese sources claim that undiscovered resources can run as high as 70 to 160 billion
barrels of oil for the entire East China Sea”and “as much as 250 trillion cubic feet in undiscovered gas
resources, mostly in the Xi-hu/Okinawa trough.” Id.

80

Ji Guoxing, Maritime Jurisdiction in the Three China Seas: Options for Equitable Settlement 11 (Instituteon Global Conflict and Cooperation, Policy Paper No. 19 (1995)).

81

Article 3 provides that Japan will concur in any proposal of the United States to the United Nations toplace under its trusteeship system, with the United States as the sole administering authority, Nansei
Shoto south of 29 deg. north latitude (including the Ryukyu Islands and the Daito Islands), Nanpo Shotosouth of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela
and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the UnitedStates will have the right to exercise all and any powers of administration, legislation and jurisdiction
over the territory and inhabitants of these islands, including their territorial waters.
SFPT, supra note 7, art. 3.

82

Uotsurishima/Diaoyu Dao; Kubashima/Huangwei Yu; Kita-Kojima/Bei Xiaodao; and Minami-Kojima/
Nan Xiaodao.

83

The government had retained ownership of Taisho-to/Chiwei Yu, Oki-no-Kitaiwa/Da Bei Xiaodao, Okino-Minami-iwa/Da Nan Xiaodao and Tobise/Fei Jiao Yan.

84

Agreement between the United States of America and Japan concerning the Ryukyu Islands and Daito
Islands, U.S.-Japan, June 17, 1971, 23 U.S.T. 446 (1971).

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International Law and Japan’s Territorial Disputes

to/Chiwei Yu have been provided to the U.S. military as facilities and areas under the Japan-U.S.
Status of Forces Agreement.85 Both China and Taiwan protested the transfer.
In 1978, the Japan Youth Association (JYA) erected a lighthouse on Uotsurishima as ademonstration of Japanese sovereignty over the islands.86 China responded by sending a large
flotilla of fishing boats to the islands.87 The dispute simmered for the next twenty-plus years until
the mid-1990s, when members of the JYA returned to Uotsurishima to construct a new lighthouseon the islet.88 Taiwan and China both strongly protested the action.89 Additionally, as in previous
instances, a flotilla of Chinese protest boats was dispatched to the islands. The Japanese Coast
Guard intercepted the flotilla, but one Chinese activist drowned when he tried to swim to one of
the islets.90 On October 7, 1996, a handful of Chinese protesters successfully landed, albeit briefly,
on Uotsuri/Diaoyu Island and raised the Chinese and Taiwanese flags. The flags were removedby the Japanese Coast Guard and diplomatic protests were lodged with the two countries.91 Overthe next several years, both sides continued to take provocative actions that exacerbated thedispute.92 Then in 2002, the private landowners of Uotsurishima, Kita-Kojima and Minami-Kojima
leased the islands to the Japanese government.
Sino-Japanese relations suffered a serious setback in September 2010 after a Chinese fishing
trawler intentionally rammed two Japanese Coast Guard vessels that were attempting to detain
the ship for illegally fishing in the vicinity of the Pinnacle Islands. Following a series of high-level
demands by China and threats of strong countermeasures if the captain was not unconditionally85

Agreement Under Article VI of the Treaty of Mutual Cooperation and Security between the UnitedStates of America and Japan, Regarding Facilities and Areas and the Status of U.S. Armed Forces inJapan, U.S.-Japan, Jan. 19, 1960, 11 U.S.T. 1652; T.I.A.S. No. 4510; 373 U.N.T.S. 248.

86

Zhongqi Pan, Sino-Japanese Dispute over the Diaoyu/Senkaku Islands: The Pending Controversy from the
Chinese Perspective, 12 JOURNAL OF CHINESE POLITICAL SCIENCE 71, 74 (2007).

87

Id. In 2005, the Japanese government announced that it had placed the lighthouse under State control
and protection. Id. at 76.

88

Daniel Dzurek, The Senkaku/Diaoyu Islands Dispute (Oct. 18, 1996) (on file with author), https://mulrickillion.wordpress.com/2009/03/01/the-senkakudiaoyu-islands-dis pute/. See also KERRY
DUMBAUGH ET AL., CONG. RESEARCH SERV., RL31183, CHINAʼS MARITIME TERRITORIAL
CLAIMS: IMPLICATIONS FOR U.S. INTERESTS 19 (2001); Hungdah Chiu, An Analysis of the SinoJapanese Dispute over the T’iaoyutai Islets (Senkaku Gunto) 22 (Occasional Papers/Reprint Series inContemporary Asian Studies No. 1, University of Mary-land School of Law, 1999); Ramos-Mrosovsky,
supra note 77, at 921; Pan, supra note 86, at 75.

89

Chinese protests were made on September 10, 1996, by the Director of Asian Affairs of the Foreign
Ministry; on September 11, 1996, by its ambassador to Japan; and on March 30, 1997, by the Chinaʼs
Vice-Premier and Foreign Minister. Chiu, supra note 88, at 22–23. See also Pan, supra note 86, at 74.

90

Ramos-Mrosovsky, supra note 77, at 920; Pan, supra note 86, at 75.

91

Chiu, supra note 88, at 22–23. See also Pan, supra note 86, at 75.

92

In 1997, for example, a Japanese legislator landed on the one of the islets. The landing was denounced
by China as a “serious violation of Chinaʼs . . . sovereignty.” The following year, Chinese protesters
landed on Uotsuri/Diaoyu Island after their vessel, the Baodiao Hao, sank after clashing with theJapanese Coast Guard. Several years later, in 2000, Japanese activists landed on Uotsuri/Diaoyu Islandand contructed a shrine. China condemned the action, demanding that Japan prevent similar incidents
from recurring. Pan, supra note 86, at 75.

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Raul (Pete) Pedrozo

released, Japan ultimately succumbed and freed him.93
Since then, Chinaʼs presence and aggressive behavior in the disputed area have been on the
upswing. Some examples of Chinese provocative and potentially dangerous behavior include
buzzing of Japan Maritime Self-Defense Force (JMSDF) warships,94 locking fire control radar on
JMSDF ships and aircraft,95 and dangerous intercepts of Japanese surveillance aircraft.96
Relations between Japan and China hit a new low in September 2012 when the press reported
that the Japanese government had agreed to buy three of the five disputed islands (Uotsurishima,
93

The captain was charged with deliberately colliding with the Coast Guard vessels and obstructing
public officers in the performance of their duties. Following his arrest, China suspended ministeriallevel contacts with Japan and threatened to withdraw from previously scheduled discussions on the
East China Sea gas fields. In addition, public demonstrations were orchestrated outside Japanesediplomatic missions in Beijing, Shanghai, Shenzhen and Shenyang, and four Japanese nationals weredetained for allegedly videotaping activities at a military base in Hebei Province. Finally, China imposed
an embargo on the shipment of rare earth metals to Japan. Demands by China for an apology andcompensation for the incident were rejected by Japan. Martin Fackler, Japan Retreats with Release ofChinese Boat Captain, NEW YORK TIMES (Sept. 24, 2010), http://www.ny times.com/2010/09/25/
world/asia/25chinajapan.html. The captain was subsequently indicted in abstentia by a Japanese judicial
panel in July 2011. Chinese officials condemned the verdict, calling it an unlawful and invalid judicial
procedure. China Rejects Japanese Judicial Panel's Verdict to Indict Fishing Vessel Captain, JAGRANPOST (July 23, 2011), http://post.jagran.com/China-rejects-Japanese-judicial-panels-verdict-to-indictfishing- vessel-captain-1311431603.

94

In April 2010, Peopleʼs Liberation Army–Navy (PLA(N)) helicopters buzzed two Japanese warships̶
JDS Asayuki (DD 132) and JDS Suzunami (DDG 114)̶that were shadowing a large Chinese task group
off the coast of Okinawa. The helicopters dangerously approached to within ninety meters horizontallyand fifty meters vertically of the JMSDF ships. Similarly, in March 2011, a State Oceanic Administration
helicopter buzzed the JDS Samidare (DD 106) near the disputed East China Sea gas fields, approaching
to within seventy meters of the Japanese destroyer. Rory Medcalf, Raoul Heinrichs & Justin Jones,
Crisis and Confidence: Major Powers and Maritime Security in Indo-Pacific Asia, LOWY INSTITUTE(June 2011), http://www.lowyinstitute.org/files/pubfiles/Medcalf_and_Hein richs%2C_Crisis_and_confidence-revised.pdf; JAPAN MINISTRY OF DEFENSE, DEFENSE OF JAPAN 2015 pt. 1, ch. 3, sec.
3, at 36 (2015), http://www.mod.go.jp/e/publ/ w_paper/pdf/2015/DOJ2015_1-1-3_web.pdf [hereinafter
WHITE PAPER PT. I, CH. 1, SEC. 3].

95

On January 19, 2013, a PLA(N) Jiangwei-I class frigate illuminated a JMSDF helicopter with its fire
control radar. Ten days later a PLA(N) Jiangwei-II class missile frigate locked its fire control radar on
the JDS Yudachi (DD 103), which was operating in the East China Sea. Japan protested both incidents,
indicating that “projecting fire control radar is ver y unusual; one mistake, and the situation would
become very dangerous.” Linda Sieg & Kiyoshi Takenaka, Japan Protests to China after Radar Pointed
at Vessel, REUTERS (Feb. 6, 2013), http://www.reuters.com/article/2013/02/05/us-china-japanidUSBRE91410Q20 130205. See also WHITE PAPER PT. I, CH. 1, SEC. 3, supra note 94, at 36; JAPANMINISTRY OF DEFENSE, DEFENSE OF JAPAN 2015 pt. 1, ch. 2, sec. 3, at 118 (2015), http://www.
mod.go.jp/e/publ/w_paper/pdf/2015/DOJ2015_1-2-3_web.pdf [hereinafter WHITE PAPER PT. I, CH. 2,
SEC. 3]. The United States also expressed concern over the fire control radar incident, stating that “wehave seen and are concerned by the reports of the Chinese radar incident” and encouraged both sides
to avoid steps “that raise tensions and increase the risk of miscalculations that could undermine peaceand stability in the region.” Yuka Hayashi, Jeremy Page & Julian E. Barnes, Tensions Flare as Japan Says
China Threatened Its Forces, WALL STREET JOURNAL (Feb. 6, 2013), http://www.wsj.com/articles/
SB10001424127887324445904578285442601856314.

96

On two separate occasions in May and June 2014, Chinese Su-27 fighters conducted dangerous
intercepts of Japanese reconnaissance aircraft operating in international airspace over the East China
Sea, coming within two hundred feet of the Japanese aircraft. WHITE PAPER PT. I, CH. 1, SEC. 3, supranote 94, at 36; WHITE PAPER PT. I, CH. 2, SEC. 3, supra note 95, at 118; Adam Liff & Andrew Erickson,
Crowding the Waters: The Need for Crisis Management in the East China Sea, FOREIGN AFFAIRS (Mar.
23, 2015), https://www. foreignaffairs.com/articles/east-asia/2015-03-23/crowding-waters.

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Kita-Kojima and Minami-Kojima) from the Kurihara family for ¥2.05 billion (US$26.2 million).97
The deal was approved by the Cabinet on September 10, 2012.98 The purchase was ostensibly
made to prevent Governor Shintaro Ishihara, then nationalist governor of Tokyo, from buying theislands. Earlier in the year he had expressed an interest in purchasing and developing the islands,a move that would certainly have inflamed tensions with China.99 Despite Japanʼs professed goodintentions in averting the purchase by Governor Ishihara, the sale of the islands to the Japanese
government prompted diplomatic protests from China and Taiwan, as well as widespread antiJapanese demonstrations across China.100 Chinaʼs Ministry of Foreign Affairs condemned thepurchase, indicating that any unilateral actions taken by the Japanese regarding the Pinnacle
Islands are “illegal and invalid.”101 It also deployed two Chinese marine surveillance ships to theislands as a show of force.102
Several weeks after the purchase was announced, China deposited a chart with the United
Nations showing the baselines and outer limits of the territorial sea of China, as well as a list ofgeographical coordinates of points defining the baselines of China around the Pinnacle Islands.103
Japan protested the Chinese submission on September 24, 2012.104 Six months later, in April 2013,
China elevated the status of the island dispute as a “core interest,” signaling to Japan that it is not

97

Chico Harlan, Reports: Japan Agrees to Buy Disputed Islands from Private Landowner, WASHINGTONPOST (Sept. 5, 2012), https://www.washingtonpost.com/world/reports-japan-agrees-to-buy-disputedislands-from-private-landowner/2012/09/05/c8c7bc46-f73c-11e1-8398-0327ab83ab91_stor y.html;
Masami Ito & Mizuho Aoki, Government Seen Sealing Senkaku Deal at ¥2.05 Billing, JAPAN TIMES(Sept. 6, 2012), http://info.japan times.co.jp/text/nn20120906a1.html.

98

According to Chief Cabinet Secretary Osamu Fujimura, the Japanese government decided to purchasethe islands “to keep them under peaceful control” after the private owners put the islands on themarket. The other potential buyer, the Tokyo metropolitan government, led by the ultra-nationalist
Governor Shintaro Ishihara, had indicated that it intended to station JSDF forces on the disputed
islands and construct harbors for use by Japanese fishing boats. The Japanese government believedthat development of the islands would inflame Chinese nationalism and therefore decided to purchasethe islands to prevent Japanese nationalists from gaining control of the islands. Takashi Mochizuki,
Japan Plans to Buy Islands in Dispute, WALL STREET JOURNAL (Sept. 11, 2012), http://www.wsj.com/
articles/SB10000872396390443921504577643261139002438.

99

Jane Perlez, China Accuses Japan of Stealing after Purchase of Group of Disputed Islands, NEW YORKTIMES (Sept. 11, 2012), http://www.nytimes.com/2012/09/12/wor ld/asia/china-accuses-japan-ofstealing-disputed-islands.html. See also Position Paper: Japan-China Relations Surrounding the Situationof the Senkaku Islands, MINISTRY OF FOREIGN AFFAIRS OF JAPAN (Nov. 9, 2012), http://www.mofa.
go.jp/region/asia-paci/senkaku/position_paper_en.html.

100

MARK E. MANYIN, CONG. RESEARCH SERV., R42761, SENKAKU (DIAOUYU/DIAOYUTAI)ISLANDS DISPUTE: U.S. TREATY OBLIGATIONS 1 (2012).

101

Mure Dickie & Kathrin Hille, Japan Risks China’s Wrath over Senkakua, FINANCIAL TIMES (Sept. 10,2012), http://www.ft.com/cms/s/0/babbfa2a-fb2b-11e1-87ae-00144feabdc0.html. The People’s Liberation
Army Daily likewise labeled the purchase “the most blatant challenge to Chinaʼs sovereignty since theend of World War II.” Quoted in China Sends Patrol Ships to Island Held by Japan, CSNSNEWS.COM(Sept. 11, 2012), http://www.cnsnews.com/news/article/china-sends-patrol-ships-islands-held-japan.

102

Perlez, supra note 99.

103

U.N. Division for Ocean Af fairs and the Law of the Sea, Of fice of Legal Af fairs, Maritime Zone
Notifications (Sept. 21, 2012),, http://www.un.org/depts/los/LEGIS LATIONANDTREATIES/PDF
FILES/mzn_s/mzn89ef.pdf.

104

Permanent Mission of Japan to the United Nations, Note Verbale PM/12/303 (Sept. 24, 2012), reprinted
in UNITED NATIONS, LAW OF THE SEA BULLETIN NO. 80, at 39 (2013), http://www.un.org/depts/
los/doalos_publications/LOSBulletins/bulletinpdf/bulletin80e.pdf.

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Raul (Pete) Pedrozo

willing to make any concessions on the sovereignty dispute.105
The dispute was further exacerbated in November 2013 when China unexpectedly establishedan air defense identification zone (ADIZ) over much of the East China Sea.106 All aircraft entering
the zone must comply with the aircraft identification rules and provide flight information to Chinese air traffic controllers.107 Additionally, aircraft operating in the ADIZ are required to follow the
instructions of the Chinese Ministry of Defense or suffer “defensive emergency measures.”108
The Japanese Ministr y of Foreign Af fairs immediately protested China ʼ s declaration,emphasizing (inter alia) that the ADIZ was “totally unacceptable . . . [and] was extremely
dangerous as it could unilaterally escalate the situation surrounding the Senkaku Islands and leadto an unexpected occurrence of accidents in the airspace.”109 The following week, JSDF aircraft
operationally challenged the ADIZ by conducting an unannounced reconnaissance mission in thezone near the Pinnacle Islands.110 Japan also instructed Japanese civil aircraft to disregard the
new ADIZ procedures, to include the requirement to file flight plans with the relevant Chinese au105

Chinaʼs other “core interests” include Taiwan, Tibet, Xinjing and the South China Sea. China OfficiallyLabels Senkakus a “Core Interest,” JAPAN TIMES (Apr. 27, 2013), http://www.japantimes.co.jp/
news/2013/04/27/national/china-officially-labels-senkakus-a-core-interest/.

106

On November 23, 2013, China declared an ADIZ over a large portion of the East China Sea that overlaps
portions of the South Korean and Japanese ADIZs, which have been in existence since 1951. Thezone includes the airspace within the area enclosed by Chinaʼs outer limit of the territorial sea and thefollowing six points: 33º11ʼN (North Latitude) and 121º47ʼE (East Longitude), 33º11ʼN and 125º00ʼE,
31º00ʼN and 128º20ʼE, 25º38ʼN and 125º00ʼE, 24º45ʼN and 123º00ʼE, 26º44ʼN and 120º58ʼE. Statementby the Government of the People’s Republic of China on Establishing the East China Sea Air Defense
Identification Zone, XINHUA NEWS AGENCY (Nov. 23, 2013), http://news.xinhuanet.com/english/
china/2013-11/23/c_132911635.htm. The new ADIZ was purportedly established to protect Chinaʼssovereignty and territorial and airspace security, as well as maintain flying order. China Exclusive:
Defense Ministry Spokesman Responds to Air Defense Identification Zone Questions, XINHUA NEWSAGENCY (Nov. 23, 2013), http://news.xinhuanet.com/english/china/2013-11/23/c_132912145.htm.

107

Aircraft will provide the following information: (1) flight plan identification, (2) radio identification, (3)transponder identification and (4) logo identification. Announcement of the Aircraft Identification Rules
for the East China Sea Air Defense Identification Zone of the P.R.C., XINHUA NEWS AGENCY (Nov. 23,
2013), http://news.xinhuanet.com/english/ china/2013-11/23/c_132911634.htm.

108

Id.

109

Press Release, Ministr y of Foreign Af fairs of Japan, Chinaʼs Establishment of an Air Defense
Identification Zone in the East China Sea (Protest by Mr. Junichi Ihara, Director-General of the Asianand Oceanian Affairs Bureau, MOFA, to Mr. Han Zhingiang, Minister of the Chinese Embassy inJapan) (Nov. 23, 2013), http://www.mofa.go.jp/ press/release/press4e_000100.html. The following
day Japanese Minister of Foreign Affairs, Fumio Kishida, stated (inter alia) that Japan would “respondfirmly, but in a calm manner against Chinaʼs attempt to unilaterally alter the status quo by coercive
measures with determination to defend resolutely its territorial land, sea and airspace.” Press
Release, Ministry of Foreign Affairs of Japan, Statement by the Minister for Foreign Affairs on the
Announcement on the “East China Sea Air Defense Identification Zone” by the Ministry of National
Defense of the Peopleʼs Republic of China (Nov. 24, 2013), http://www.mofa.go.jp/press/release/press4e_000098.html. The United States also expressed its concern that the ADIZ declaration will“increase tensions in the region and create risks of an incident.” Press Statement, John Kerry, Secretaryof State, Statement on the East China Sea Air Defense Identification Zone (Nov. 23, 2013), http://
www.state.gov/secretar y/remarks/2013/11/218013.htm. See also Press Statement, Chuck Hagel,
Secretary of Defense, Statement on the East China Sea Air Defense Identification Zone (Nov. 23, 2013),
http://archive.defense.gov/releases/release.aspx?rel easeid=16392 (“The United States . . . views
this development as a destabilizing attempt to alter the status quo in the region. The unilateral action
increases the risk of misunderstanding and miscalculations.”).

110J apanese and South Korean Aircraft Enter Chinese ADIZ, WANT CHINA TIMES (Nov. 29, 2013), http://
www.wantchinatimes.com/news-subclass-cnt.aspx?id=20131129000064 &cid=1101.

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International Law and Japan’s Territorial Disputes

thorities.111 As implemented by China, most nations would agree that the East China Sea ADIZ
interferes with high seas freedoms of overflight and is therefore inconsistent with international
law.112Since 2013, Chinese intrusions into Japanʼs claimed airspace and waters around the islands
have become commonplace in an apparent effort to demonstrate that Japan does not exercise
effective administrative control of the islands. These increased incursions raise the possibility of a
miscalculation or other unintended consequence.113 In the three-month period between July 1 and
September 30, 2015, JSDF fighters have been scrambled 117 times to intercept Chinese aircraft inthe vicinity of the Senkakus.114 China argues that the Japanese intercepts hamper its freedom of
overflight and threaten the safety of its ships and aircraft.115 In an apparent show of force, eleven
Chinese military aircraft̶eight bombers, two surveillance planes and an early-warning aircraft̶
conducted a drill near Miyako and Okinawa in November 2015 “to improve its long-range combat
abilities,” prompting the JSDF to scramble jets to intercept and monitor the aircraft.116
On the economic front, China also appears to be extracting gas from disputed gas fields near
the hypothetical median line with Japan in the East China Sea, despite a 2008 agreement not toengage in individual drilling pending resolution of the maritime boundary dispute. Photographs
published in Japanʼs 2015 defense White Paper confirm the construction of sixteen structures thatare currently engaged in offshore drilling operations in the East China Sea.117 On September 16,
2015, Japan protested the activity, indicating that “it is extremely regrettable that the Chinese side
. . . has unilaterally gone ahead with the development while the border has not yet been settled.”118
Six weeks later, China agreed to restart talks on the contentious issue during the South KoreaChina-Japan trilateral summit in Seoul.119
To counter Chinese activities in the region, Japanʼs defense ministry has requested a budget
increase for the next fiscal year̶¥5.09 trillion ($42 billion)̶with a focus on strengthening
111

Thom Shanker, U.S. Sends Two B-52 Bombers into Air Zone Claimed by China, NEW YORK TIMES(Nov. 26, 2013), http://www.nytimes.com/2013/11/27/world/asia/us-flies-b-52s-into-chinas-expandedair-defense-zone.html?_r=0; Julian Barnes, Yuka Hayashi & Jeremy Page, Stakes Escalate For Biden in
Beijing, WALL STREET JOURNAL (Dec. 4, 2013), http://www.wsj.com/articles/SB10001424052702304
579404579236652947844062.

112

Jonathan Odom, A ‘Rules-Based’ Approach to Airspace Defense: A U.S. Perspective on the International
Law of the Sea and Airspace, Air Defense Measures, and the Freedom of Navigation, 1 BELGIUMREVIEW OF INTERNATIONAL LAW 65–93 (2014). See also Raul (Pete) Pedrozo, The Bull in the China
Shop: Raising Tensions in the Asia-Pacific Region, 90 INTERNATIONAL LAW STUDIES 66, 68–77 (2014).

113

In FY2014, JSDF force aircraft were scrambled 464 times to intercept Chinese aircraft intruding into
Japanʼs claimed airspace around the Pinnacle Islands. WHITE PAPER PT. I, CH. 1, SEC. 3, supra note
94, at 44.

114

Ben Blanchard, China Calls on Japan to Stop “Hampering” Military Flights, REUTERS (Oct. 29, 2015),
http://www.reuters.com/article/2015/10/29/us-china-japan-idUSKCN 0SN0W020151029.

115

Id.

116

“Large” Chinese Military Fleet Flies Near Japan Islands: Media, YAHOO! NEWS (Nov. 27, 2015), http://
news.yahoo.com/large-chinese-military-fleet-flies-near-japan-islands-035354583.html.

117

Jeffrey W. Hornung, Get Ready: China-Japan Tensions Set to Flare over East China Sea, THE NATIONALINTEREST (Aug. 12, 2015), http://nationalinterest.org/feature/get-ready-china-japan-tensions-set-flareover-east-china-sea-13557?page=show; Felix K. Chang, China’s Energy Exploration In East China Sea
And Japan’s Security Debate – Analysis, EURASIA REVIEW (July 30, 2015), http://www.eurasiareview.
com/30072015-chinas-energy-exploration-in-east-china-sea-and-japans-security-debate-analysis/.

118

Japan Protests Chinese Gas Operation in Disputed Sea, YAHOO! NEWS (Sept. 16, 2015), http://news.
yahoo.com/japan-protests-chinese-gas-operation-disputed-sea-114447459.html.

119Japan and China Agree on Moves to Mend Ties Further, REUTERS (Nov. 1, 2015), http://www.reuters.
com/article/2015/11/01/us-japan-china-idUSKCN0SQ1SY201511 01.

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protection of the Senkaku Islands. 120 Japanese concern over Chinese aggression is likewisereflected in eleven security bills adopted by the Diet in September 2015 that reinterpret Article
9 of Japanʼs constitution121 to allow the JSDF to provide collective self-defense for its allies inoverseas conflicts.122
The U.S. position on the status of the Pinnacle Islands has wavered since the end of the WorldWar II. Following the surrender of Japan in September 1945, U.S. forces assumed formal control
over the main Japanese islands, as well as a number of other island groups including the Ama- ni,
Okinawa, Miyako and Yaeyame island chains.123 With regard to the Ryukyu Islands, U.S. Navysurvey and reconnaissance operations initially did not extend beyond Kume Island.124
However, in January 1946, the commander of the Okinawa Naval Base was ordered “to extend
Military Government operations . . . to include the Northern Ryukyus south of the 30th parallel
North and to include Sakishima Gunto,” which includes the Pinnacle Islands.125 A map issued by
the Supreme Commander for the Allied Powers reflected that the Ryukyus were not associatedwith Japan proper, nor were they part of Taiwan.126 Japan was defined in SCAP Memorandum(SCAPIN-677) to include “ the four main islands of Japan (Hokkaido, Honshu, Kyushu andShikoku) and the approximately one thousand smaller adjacent islands, including the TsushimaIslands and the Ryukyu (Nansei) Islands north of 30°North Latitude (excluding Kuchinoshima

120

If approved, the request would be the biggest ever budget request by the Ministry of Defense, a 2.2
percent increase from the current fiscal year, and the fourth straight annual defense budget increase.
Japan Defense Ministry Asks for Record Budget, DEFENSE NEWS (Aug. 31, 2015), http://www.
defensenews.com/story/defense/international/asia-pacific/2015/08/31/japan-defense-ministry-asksrecord-budget/71491924/.

121

Article 9 provides:
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever
renounce war as a sovereign right of the nation and the threat or use of force as means of settlinginternational disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and airforces, as well as other war potential, will never be maintained. The right of belligerency of the state will
not be recognized.
NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION], ar t. 9 (Japan), http://japan.kantei.go.jp/
constitution_and_government_of_japan/constitution_e.html. The Constitution, promulgated on
November 3, 1946, came into effect on May 3, 1947.

122

Prime Minister Shinzo Abe told reporters, “The legislation is necessary in order to protect the peopleʼs
lives and their peaceful livelihood, and it is to prevent a war.” Mari Yamaguchi, Japan Enhances Military’s
Role as Security Bills Pass, AP (Sept. 18, 2015), http://bigstory.ap.org/article/bf06b3fa661f47e689f6ccd50599f5d9/japan-ruling-party-final-push-expand-role-military.

123

Jean-Marc F. Blanchard, The U.S. Role in the Sino-Japanese Dispute over the Diaoyu (Senkaku) Islands,
1945–1971, 161 THE CHINA QUARTERLY 95, 102 (2000). Japan was defined by the Joint Chiefs ofStaff in a basic directive for the occupation and control of Japan as “the four main islands of Japan:
Hokkaido (Yezo), Honshu, Kyushu and Shikoku and about 1,000 smaller adjacent islands including
the Tsushima Islands.” Joint Chiefs of Staff, J.C.S. 1380/15, Basic Initial Post Surrender Directive toSupreme Commander for the Allied Powers for the Occupation and Control of Japan (Nov. 3, 1945),
https://assets.documentcloud.org/documents/1354730/us-jpn-rok-basic-directice-for-post-surrender.
pdf.

124

Blanchard, supra note 122, at 103.

125

Id.

126

Id. at 102 n.35.

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International Law and Japan’s Territorial Disputes

Island).”127 Thus, official documents issued by the U.S. State Department and the SCAP clearly
associated the Pinnacle Islands with the Okinawa prefecture.128
Declassified records from the State Department note that the United States “rejected in toto
Chinese claims to the Ryukyus” that were raised by Chinese Foreign Minister T.V. Soong in
October 1944 and by Chiang Kai-Shek in 1947.129 Similarly, a 1951 National Intelligence Estimate(NIE-19) by the Central Intelligence Agency “ concluded that adherence to the territorial
clauses of Cairo and Potsdam would require the return of the Ryukyus and Bonins to Japan.”130
Publications by U.S. Civil Administration of the Ryukyu Islands botanists and forestry officials
likewise identified the Pinnacle Islands as part of the Ryukyus chain.131
The U.S. position at the San Francisco Peace Conference reflects that the United Statesconsidered the Pinnacle Islands to be part of Japan. During the negotiations, the United States
rejected a proposal by the allies that Japan renounce its sovereignty over the Ryukyus in favorof U.S. sovereignty. The formula advanced by U.S. Secretary of State John Foster Dulles, andultimately adopted by the conference, allowed “Japan to retain residual sovereignty, while making
it possible for these islands to he brought into the United Nations trusteeship system, with theUnited States as administering authority.”132
The Eisenhower, Kennedy and Johnson administrations followed suit, recognizing Japanese
residual sovereignty over the Ryukyus Islands.133 In a Joint Communiqué in 1957, President
127

Excluded from the definition were Utsuryo (Ullung) Island, Liancourt Rocks (Take Island) and Quelpart(Saishu or Cheju) Island, (b) the Ryukyu (Nansei) Islands south of 30°North Latitude (including
Kuchinoshima Island), the Izu, Nanpo, Bonin (Ogasawara) and Volcano (Kazan or Iwo) Island Groups,
and all the other outlying Pacific Islands [including the Daito (Ohigashi or Oagari) Island Group, andParece Vela (Okino-tori), Marcus (Minami-tori) and Ganges (Nakano-tori) Islands], and (c) the Kurile(Chishima) Islands.
Formosa and the Pescadores were also excluded from the definition. Memorandum from General
Headquar ters, Supreme Commander for the Allied Powers (SCAPIN-677) to Imperial Japanese
Government, Governmental and Administrative Separation of Certain Outlying Areas from Japan (Jan.
20, 1946), https://en.wikisource.org/wiki/SCAPIN677. Paragraph 6 made clear, however, that it did
not purport to express Allied policy with respect “to the ultimate determination of the minor islands
referred to in Article 8 of the Potsdam Declaration.” See also Seokwoo Lee, The 1951 San Francisco
Peace Treaty with Japan and the Territorial Disputes in East Asia, 11 PACIFIC RIM LAW & POLICYJOURNAL 63, 105–6 (2002).

128

A map issued by the SCAP in December 1947 includes the Sakishima group as part of the Ryukyus andexcludes them from the China theatre and Taiwan. Blanchard, supra note 122, at 103.

129

Mao Zedong had also implied in 1939 that the Ryukyus had been stolen from China by the imperialists.
Id. at 104.

130

Id. at 108.

131

Id. at 111 n.86. See also EGBERT H. WALKER, RYUKYU ISLANDS: PRELIMINARY NOTES ON THE
USE, DISTRIBUTION, AND ADAPTABILITY OF NATIVE AND INTRODUCED TREE SPECIES(1952)).

132

Dulles Address, supra note 27. See also KERRY DUMBAUGH (COORDINATOR), CONG. RESEARCHSERV, CHINAʼS MARITIME TERRITORIAL CLAIMS, IMPLICATIONS FOR THE U.S. 21(2001);
Blanchard, supra note 122, at 102, 109. The British delegate to the conference, Kenneth Younger, agreed
with this approach, indicating that the SFPT “did not remove the Ryukyus from Japanese sovereignty.”
DUMBAUGH ET AL., supra note 89, at 21; Blanchard, supra note 122, at 110.

133

“Residual sovereignty” was defined in 1969 to mean that “the United States would not transfer its
sovereignty powers [administrative, legislative and judicial] over the Ryukyu Islands to any nation
other than Japan.” Blanchard, supra note 122, at 109 n.78. This definition was consistent with President
Eisenhowerʼs 1957 position that residual sovereignty meant “that the United States would exercise its
rights for a period, and that the sovereignty would then return to Japan.” Blanchard, supra note 122, at
117 n.115.

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Dwight D. Eisenhower reaffirmed the U.S. position that “Japan possesses residual sovereignty
over these islands.”134 President John F. Kennedy similarly noted in 1963, indicating, “I recognize
the Ryukyus to be a part of the Japanese homeland and look forward to the day when the security
interests of the free World will permit their restoration to full Japanese sovereignty.”135 The
Johnson administration likewise “reaffirmed Japanʼs residual sovereignty over the islands” in ajoint communiqué in January 1965.136
A declassified CIA report from 1971 states “the Senkaku Islands . . . [were] generally accepted
as being Japanese owned” and were not claimed by China until December 1970 following therelease of the 1969 ECAFE report that indicated there was a high probability that large deposits
of oil may be present in the continental shelf between Taiwan and Japan.137 The report additionallystates that “strong support for the Japanese claim to the Senkakus exists not only on Japanesemaps but also on maps published in Peking and Taipei.”138 The report concludes that “theJapanese claim to sovereignty over the Senkakus is strong, and the burden of proof of ownershipwould seem to fall on the Chinese.”139
Nonetheless, the U.S. position on the sovereignty issue changed to one of neutrality during
the Nixon administration. During the negotiations of the Okinawa reversion treaty, the State
Department suggested in April 1971 that “in occupying the Ryukyus and the Senkakus in 1945,
and in proposing to return them to Japan in 1972, the U.S. passes no judgment as to conflicting
claims over any portion of them, which should be settled directly by the parties concerned.”140
The change in position was not, however, made because the United States believed that theislands were not Japanese territory, but rather to appease the Taiwanese government and break

134

Joint Communiqué of Japanese Prime Minister Kishi and U.S. President Eisenhower (June 21, 1957),
http://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/JPU S/19570621.D1E.html.

135

Statement by President John F. Kennedy upon Signing Order Relating to the Administration of the
Ryukyu Islands (Mar. 19, 1962), http://www.presidency.ucs b.edu/ws/?pid=9114. President Kennedyʼsstatement was consistent with a joint communiqué issued by the White House in June 1961 after ameeting between the President and Japanese Prime Minister Hayato Ikeda (“The President and thePrime Minister exchanged views on matters relating to the Ryukyu and Bonin Islands, which are under
U.S. administration, but in which Japan retains residual sovereignty.”). Blanchard, supra note 122, at
118.

136

Blanchard, supra note 122, at 118.

137

CIA SENKAKU ISLANDS INTELLIGENCE REPORT, supra note 78, at 1. See also ECAFE REPORT,
supra note 77.

138

Foreign maps cited by the report include the 1967 edition of the Soviet Unionʼs official Atlas of the World,which specifically designates the Senkakus to be Japanese. CIA SENKAKU ISLANDS INTELLIGENCEREPORT, supra note 78, at 18–19.

139

Id. at 29.

140

Memorandum From John H. Holdridge of the National Security Council Staff to the Presidentʼs
Assistant for National Security Af fairs (Kissinger) (Apr. 13, 1971), reprinted in 17 FOREIGNRELATIONS OF THE UNITED STATES, 1969–1976: CHINA 1969–1972, at 296 (2006), https://history.
state.gov/historicaldocuments/frus1969-76v17/d115 [hereinafter Holdridge Memorandum]. A similar
position was reflected in a State Department cable in June 1971 (“The United States cannot add to thelegal rights Japan possessed before it transferred administration of the islands to the United States nor
can the United States by giving back what it received diminish the rights of the Republic of China.”)
Lee, supra note 126, at 122–23. See also Choon-ho Park, Oil Under Troubled Waters: The Northeast Asia
Sea-Bed Controversy, 14 HARVARD INTERNATIONAL LAW JOURNAL 212, 253 (1973).

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International Law and Japan’s Territorial Disputes

the impasse of the ongoing textile negotiations in Taipei.141 The change in position may also havebeen influenced by the administrationʼs “overtures to China during 1971–1972, culminating in the
Nixon visit to China.”142
When the Okinawa reversion treaty was presented to the U.S. Senate for advice and consent
in 1971, the Secretary of State indicated “that reversion of administrative rights to Japan did notprejudice any claims to the islands.”143 Acting Assistant Legal Adviser Robert Starr amplified the
U.S. position in a letter dated October 20, 1971.144 Since that date, successive U.S. administrations
have maintained a position of neutrality concerning the dispute.145
The change in position by the United States is somewhat contradictor y in that all U.S.
141

A memorandum from the Assistant for International Economic Affairs to President Richard Nixon
indicated that “the Taiwan Government feels it has taken a heavy beating from the U.S. in recent months(oil moratorium, Two-China developments) and that it would lose a great deal more international face
if they were to settle for a disadvantageous bargain” in the textile negotiations. Therefore, Ambassadorat-Large David Kennedy had suggested, inter alia, that the United States “offer certain concessions to
Taiwan” to break the impasse “without causing disastrous side effects for either our industry or the
Taiwan Government.” Kennedy was convinced that the “only way to resolve the issues is to withhold
turning the Senkaku Islands over to Japanese administrative control under the Okinawa Reversion
Agreement.” Memorandum From the Presidentʼs Assistant for International Economic Affairs (Peterson)
to President Nixon (June 7, 1971), reprinted in 17 FOREIGN RELATIONS OF THE UNITED STATES,
1969–1976: CHINA 1969–1972, at 341 (2006), https://history.state.gov/historicaldocuments/frus196976v17/pg_341. See also Backchannel Message from the Presidentʼs Assistant for International Economic
Affairs (Peterson) to Ambassador Kennedy, in Taipei (June 8, 1971), reprinted in id. at 343 (2006),
https://histor y.state.gov/historicaldocuments/frus1969-76v17/pg_343; CIA SENKAKU ISLANDSINTELLIGENCE REPORT, supra note 78, at 16; Eisuke Suzuki, The Origin of the Territorial Disputeof the Senkaku Islands, HOJOROHNINʼS DIARY (Nov. 4, 2013), http://ho jorohnin.hatenablog.com/
entry/2013/11/04/132324.

142

DUMBAUGH ET AL., supra note 88, at 22. See also Suzuki, supra note 140.

143

In response to a question by the Chairman of the Senate Foreign Relations Committee regarding thesovereignty dispute over the islands, Secretary of State William Rogers stated that “this treaty does
not affect the legal status of those islands at all.” LARRY A. NIKSCH, CONG. RESEARCH SERV,CRS-96-798, SENKAKU (DIAOYU) ISLANDS DISPUTE: THE U.S. LEGAL RELATIONSHIP AND
OBLIGATIONS 3 (1996). See also Blanchard, supra note 122, at 120.

144

The . . . the Republic of China and Japan are in disagreement as to sovereignty over the Senkaku
Islands. . . . [T]he Peopleʼs Republic of China has also claimed sovereignty over the islands. The UnitedStates believes that a return of administrative rights over those islands to Japan, from which the rights
were received, can in no way prejudice any underlying claims. The United States cannot add to thelegal rights Japan possessed before it transferred administration of the islands to us, nor can the UnitedStates, by giving back what it received, diminish the rights of other claimants. The United States . . .
considers that any conflicting claims to the islands are a matter for resolution by the parties concerned.
NIKSCH, supra note 143, at 3. See also Hearing on Ex. J. 92-1 the Agreement Between the U.S.A. andJapan Concerning the Ryukyu Islands and the Daito Islands Before the Senate Committee on Foreign
Relations, 92nd Cong. 91 (1971).

145

See e.g,, MANYIN, supra note 100, at 6. On August 16, 2010, Assistant Secretary of State Philip Crowley
reiterated the U.S. position at a daily press briefing in Washington:
The U.S. position on this issue is longstanding and has not changed. The United States does not takea position on the question of the ultimate sovereignty of the Senkaku Islands. We expect the claimants
to resolve this issue through peaceful means among themselves. But Article 5 of the 1960 U.S.-Japan
Treaty of Mutual Cooperation and Security states that the treaty applies to the territories under theadministration of Japan. . . .
Daily Press Briefing, Philip J. Crowley, Assistant Secretary, U.S. Department of State (Aug. 16, 2010),
http://www.state.gov/r/pa/prs/dpb/2010/08/146001.htm#JAPAN. See also Daily Press Briefing,
Victoria Nuland, Spokesperson, U.S. Department of State (Aug. 28, 2012), http://www.state.gov/r/pa/
prs/dpb/2012/08/196986.htm.

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Raul (Pete) Pedrozo

administrations have stated that U.S. defense obligations under the U.S.-Japan defense treaty
apply to the Pinnacle Islands. Therefore, U.S. “neutrality,” albeit well-intended, is of little value
in reducing the growing tensions between China and Japan over the disputed islands.146 Rather,it encourages China to be more assertive by allowing it to exploit the U.S. distinction between
sovereignty and administrative control, which helps explain the increased presence of Chinese
patrol boats and aircraft around the Pinnacle Islands since the fall of 2012.147
The ongoing dispute between China and Japan is of concern to the United States since thePinnacle Islands, which have been under the administrative control of Japan since 1972, fallwithin the scope of Article 5 of the 1960 U.S.-Japan Treaty of Mutual Cooperation and Security.148
Renewed Chinese provocations in the vicinity of the islands have prompted the United States to146

Dr. Henr y Kissinger, one of Americaʼs greatest statesmen, astutely obser ved in 1971 that the U.S.
position was “nonsense.” Kissingerʼs handwritten comment in the margin of a memorandum articulating
the State Departmentʼs neutrality proposal indicated: “But that is nonsense since it gives the islands toJapan. How can we get a more neutral position?” Holdridge Memorandum, supra note 139.

147

MANYIN, supra note 100, at 6.

148

For the text of Article 5, see supra note 53. Article II of the Okinawa reversion treaty extends U.S.
defense obligations to the islands:
It is confirmed that treaties, conventions and other agreements concluded between the United States. . . and Japan, including, but without limitation, the Treaty of Mutual Cooperation and Security between
the United States of America and Japan signed at Washington on Januar y 19, 1960, and its related
arrangements and the Treaty of Friendship, Commerce and Navigation between the United States ofAmerican and Japan signed at Tokyo on April 2,1953, become applicable to the Ryukyu Islands and theDaito Islands. . .
Agreement between the United States of America and Japan concerning the Ryukyu Islands and Daito
Islands, U.S.-Japan, June 17, 1971, 23 U.S.T. 446 (1971).

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reaffirm U.S. defense obligations under Article 5 on numerous occasions.149

V.

CONCLUSION

Despite Japanʼs best efforts to negotiate a peaceful settlement to its outstanding territorial
matters, resolution of these disputes remains elusive. Although initially inclined to discuss thestatus of the Northern Territories/Southern Kurile Islands, Russia recently reversed course andindicated that there is no room for compromise on the sovereignty issue. South Korea has taken asimilar position with regard to the Liancourt Rocks, repeatedly refusing Japanʼs proposal to havethe dispute settled through third party adjudication. Finally by elevating the status of the Pinnacle
Islands dispute to a “core interest,” China has signaled that it has no intentions of resolving
the sovereignty issue amicably and will do ever ything in its power to alter the status quo.
Consequently, for the foreseeable future Japan must continue to enhance its defensive capabilities
and cultivate and strengthen its alliance with the United States in order to deter aggressive
countermeasures by the other disputants, as well as minimize the potential for miscalculation.

149

In August 2010, Assistant Secretary of State Philip Crowley reaffirmed U.S. defense obligations under
Article 5 of the mutual defense treaty. Crowley, supra note 146. Two months later, in October 2010,
Secretary of State Hillary Clinton re-confirmed U.S. obligations under the defense treaty during an
official visit to Vietnam, indicating that the United States has “made it very clear that the [Pinnacle]
islands are part of our mutual treaty obligations, and the obligation to defend Japan.” Secretar y ofState Hillary Rodham Clinton, Remarks with Vietnamese Foreign Minister Pham Gia Khiem (Oct. 30,2010), http://www.state.gov/secretary/20092013clinton/rm/2010/10/150189.htm. In 2012, the UnitedStates reiterated that the U.S.-Japan defense treaty applies to “any provocative set of circumstances.”
Hiroko Tabuchi, Japan Scrambles Jets in Islands Dispute with China, NEW YORK TIMES (Dec. 13,
2012), http://www.nytimes.com/2012/12/14/world/asia/japan-scrambles-jets-in-island-dispute-withchina.html?_r=0. In April 2013, then Chairman of the Joint Chiefs of Staff General Martin Dempsey
told reporters in Beijing that he had reminded Chinese officials that the United States will live up to
its treaty obligations with regard to the Senkakus̶“In the case of Japan in particular, I was careful toremind . . . [the Chinese] that we do have certain treaty obligations with Japan that we would honor.”
Michael Martina & Terril Yue Jones, China Calls Japan-U.S. Drill ‘Provocative,’ REUTERS (Apr. 25,
2013), http://www.reuters.com/article/2013/04/24/us-china-japan-islands- idUSBRE93N0N720130424.
Following a Januar y 2013 meeting with Japanese Foreign Minister Fumio Kishida in Washington,
Secretary of State Hillary Clinton reiterated the U.S. position over the Pinnacle Islands dispute, stating
that, “although the United States does not take a position on the ultimate sovereignty of the islands,
we acknowledge they are under the administration of Japan and we oppose any unilateral actions thatwould seek to undermine Japanese administration. . . .” Secretary of State Hillary Rodham Clinton,
Remarks with Japanese Foreign Minister Fumio Kishida after Their Meeting (Jan. 18, 2013), http://
www.state.gov/secretary/20092013clinton/rm/2013/01/ 203050.htm. In April 2013, then U.S. Secretaryof Defense Chuck Hagel stressed that the United States would live up to its defense obligations to Japanand that Washington was opposed to any unilateral action to weaken Japanʼs administrative control
over the disputed islets: “The United States does not take a position on the overall sovereignty of theislands but we do recognize they are under the administration of Japan and fall under our security treaty
allocations.” Yasushi Azuma, Hagel Vows Defense Commitments to Japan, Including Nuclear Umbrella,JAPAN TIMES (Apr. 30, 2013), http://www.japantimes.co.jp/news/2013/04/30/national/politicsdiplomacy/hagel-vows-defense-commitments-to-japan-including- nuclear-umbrella/. Finally, in April
2014, President Barack Obama became the first sitting U.S. president to overtly state that the Pinnacle
Islands fall under the U.S.-Japan defense treaty: “The policy of the United States is clear̶the Senkaku
Islands are administered by Japan and therefore fall within the scope of Article 5 of the U.S.-Japan
Treaty of Mutual Cooperation and Security. And we oppose any unilateral attempts to undermine Japanʼsadministration of these islands.” Ankit Panda, Obama: Senkakus Covered under US-Japan Secu- rity
Treaty, THE DIPLOMAT (Apr. 24, 2014), http://thediplomat.com/2014/04/obama-senkakus-coveredunder-us-japan-security-treaty/.

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