Masaharu Yanagihara

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

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

The concept of territor y in modern European international law

Territory comprises that area over which a state exercises exclusive control or, in otherwords, the area over which territorial sovereignty extends. Issues in relation to theacquisition of an area (composed of land as principal and sea and air as accessory) as
state territory are debated within the legal framework of territorial title. By contrast,
according to international law, no matter the means by which a new state is formed̶annexation,
separation, division, etc.̶the territory of that state has been explicated on completely different
theoretical grounds to territorial title. The area effectively controlled1 by a new state is regarded
as that stateʼs territory as of the point at which that state becomes a state under international law.
In other words, the theoretical grounds for a new stateʼs territory have rested on the reality ofeffective control and recognition as a state by other countries (although the constitutive view ofrecognition and declaratory view of recognition are opposed on the effect of state recognition).
This article is a revised and enlarged version of an article in Japanese, “彊域、版図、邦土、そして領域 ” [Kyōiki, Hanto, Hōdo (Chinese and Japanese Notions of Territory), and Ryōiki (European Notion ofTerritory)], Kokusai Mondai [International Affairs], No. 624 (2013), pp.1-4.
** Masaharu Yanagihara is professor of public international law at the Open University of Japan.
1
Effective control or occupation means an actual taking of possession of an area through state activities
to exercise exclusive authority there. Concrete terms and degree of state activities establishing effective
control are richly diverse according to the geographical or social circumstances of that area such as adistance from the mainland, if it is an island, or whether that area remains without population.
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Where an area is regarded as territory, another form emerges in addition to the two above̶
namely, state territory already in existence at the point when international law was formulated.
The existence of international law is premised on the existence of a group of states, with theexistence of a group of states and the existence of international law essentially two sides of thesame coin. The territory of those states, too, must be treated as a given. It is rational to represent
the core territories of England, France, etc., in this manner (see also the concepts of original title,
inchoate title, and historical title discussed below).

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

Different concepts of “territor y”
Does the modern state as the above-defined territorial state dif fer in essence from other“states”̶the city states of ancient Greece (Athens, Sparta, etc.), the ancient Roman Empire,
Chinaʼs dynasties (Qin, Han, Yuan, Ming, etc.), the Islamic dynasties (the Umayyad and Abbasid
Caliphates, etc.), and “Japan” prior to the Meiji Restoration, for example?
These “states,” too, were certainly political entities that controlled certain territories in one
form or another. However, they do not appear to have shared the concept of territor y in thesense discussed above. For example, the ancient Chinese concepts of 疆域 (jiāngyù; territory
within boundar y), 版図 (bǎntú; territor y), and 邦土 (bāngtǔ; domain) as well as pre-modern
Japanʼs notions of 版図 (hanto; territory), 所領 (shoryō; territory), 化外の地 (kagai no chi; lands
outside imperial influence) and 異国境 (ikokusakai; the area next to a foreign country) did notcorrespond to modern Europeʼs ideas of “territory” and “borders.” Non-Western countries, andparticularly Eastern countries such as the Ottoman Empire, Persia, Siam, China, Korea, andJapan, each existed within their own world order, but contact with the West around the beginningof the 19th century created pressure to apply to their own states the concepts of territory andborders as defined under modern European international law. In other words, faced with theWestʼs overwhelming military superiority, non-Western countries were forced to conduct theirrelationships with the West based on modern European international law. These states received
modern European international law along with its concept of territory, reforming themselves into4Japan Review Vol.2 No.3 Winter 2018

Masaharu Yanagihara

the territorial states of today.

Establishment of territor y in the late Edo and early Meiji periods
From around the end of the eighteenth century, when ships from Russia, France and Englandarrived to try to open up Japan, the Shogunate had to decide whether it could continue to maintainits conventional foreign policy. It at first used the maintenance of ancestral law as justification forrefusing to open the country. The Shogunate, however, could not withstand demands to open its
doors that were made by Commodore Matthew Perryʼs American East India Squadron, which
carried out gunboat diplomacy with its overwhelming military power.
Through its growing contacts with Western countries, it became necessar y for Japan toadopt concepts of modern European international law such as “territory” and “boundaries.” Inparticular, the status of Ezochiand the Ryukyu Kingdom̶conventionally regarded as a “foreignarea” and a “foreign country,” respectively̶became subject to severe scrutiny. In addition, thetreatment of the minor islands near Japanʼs main islands had to be clearly decided. Establishingwhat were Japanʼs territory2 and boundaries became serious and urgent issues.
Settling issues with Russia was particularly problematic when it came to the process ofdemarcation, as this was closely related to the status of Ezochi.
Another problematic matter was the status of the Ryukyus. In the uru’u intercalary monthof July in the traditional Japanese calendar, which was equivalent to early September 1854 in theWestern Gregorian calendar, Rear Admiral James Stirling, the Commander-in-Chief of the British
East Indies and the China Station, arrived in Nagasaki. He announced that Britain was fightingRussia in the Crimean War, and requested permission to enter the port of Nagasaki and otherJapanese harbors. This presented an opportunity for Japan and England to discuss questions
related to Japanʼs territories and boundaries. The Nagasaki Bugyō (Magistrate of Nagasaki)
2The term 領域 (ryōiki: territory) and similar terms (in Japanese; original terms in Chinese characters)such as 領土 (ryōdo; territorial land) and 領海 (ryōkai: territorial sea) came into common use onlyfrom the late Meiji era. The first treaty containing the word ryōiki was, as far as we could determine,
the Franco-Japanese Treaty of 1907. Before that, terms such as版図 (hanto; territory), 所領 (shoryō;territory), 邦土 (hōdo; domain), 領地 (ryōchi; appanage),国土 (kokudo; domain), 境土 (kyōdo: territory
within boundary) were used. Chinese official Li Hongzhang, in negotiations between Japan and Qing
Dynasty China in 1876, and again when he met American ex-president Ulysses S. Grant on April 23,
1879, gave his interpretation of the word邦土 (bāng tŭ; domain) used in the first article of the 1871 SinoJapanese Friendship and Trade Treaty, which had the title “domains belonging to both countries.”
According to Li, the character 邦 referred to countries such as Korea (i.e. 外藩 (gaihan; territories
governed by a ruler who is a subject of the king/emperor), 外属 (gaizoku; foreign countries) and 属
国 (zokkoku; subject state), and the character土 referred to territories directly governed by China (i.e.
内属 (naizoku; subject countries) or 内地 (naichi: mainland)). See “Furoku Amerika zen-daitōryō tono kaidan-roku” [Appendix: record of meeting with the former American president], Shinpen Genten
Chūgoku Kindai Shisō-shi: Dai 2-kan: Bankoku Kōhō no Jidai [New Edition, Original Texts of Chinese
Modern History of Thought, Vol. 2: Age of the Law of Nations] (Iwanami Shoten, 2010), p. 172. Motegi
Toshio, “Nittchū kankeishi no katarikata: 19-seiki kōhan” [How to recount Japanese-Chinese history:
the second half of the nineteenth century], Liu Jie et al., ed., Kokkyō o Koeru Rekishi Ninshiki: NittchūTaiwa no Kokoromi [Contending issues in Sino-Japanese relations: toward a history beyond borders](University of Tokyo Press, 2006), p. 14. A letter dated February 1, 1876 that was written by Japanese
Minister Mori Arinori to Prince Gong of Qing China when Arinori was stationed in Qing China contains
the sentence “Korea is actually a country that belongs to China…” (Dai-nihon Gaikō Monjo Dai 9-kan[Documents on Japanese Foreign Policy, Vol.9], p. 182.) Morita Yoshihiko sees the possibility that
the Qing side intentionally communicated a different form of the meaning of 邦土 to Japan. MoritaYoshihiko, “Nisshin kankei no tenkan to nisshin shūkō jōki” [Turnaround in Sino-Japanese relations
and Sino-Japanese Friendship and Trade Treaty], Okamoto Takashi and Kawashima Shin, ed., Chūgoku
Kindai Gaikō no Taitō [Emerging diplomacy in late imperial China] (University of Tokyo Press, 2009),
pp. 55-56.

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

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

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

Tsūkō Ichiran Zokushū, Vol. 3, p.99.

4

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

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

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In addition, as noted in relation to the “inherent territory” argument, there is the difficult
question of which perspective to use in evaluating historical claims. This is particularly the casewith non-Western countries. The traditional view of territor y, 疆域 (jiāngyù; territor y withinboundary) and the traditional Chinese world order that China appears to be asserting in thecase of the Senkaku Islands and the Spratly Islands can be interpreted within this context.6 In
international courts, it has been addressed in the context of how to evaluate original title, inchoate
title, and historical title.7
It is no easy matter to find a legal resolution to a territorial dispute. A comprehensive
approach needs to be taken which also gives sufficient consideration to historical perspectives.
In so doing, we should not underestimate the role played by international law as it stands
but, at the same time, we must not forget to envision what international law ought to be as lex
ferenda. International law is neither a chimera, a mythical beast nor a panacea; it is “just one
institution among others which we have at our disposal for the building up of a saner internationalorder”.86

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

7

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

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

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