APAN

Vol.1 No.2
Winter 2017
ISSN 2433-4456

REVIEW
East/South China Sea

The South China Sea Arbitration Award(Philippines v. China) and the Rule of Law at Sea
Kazuhiro Nakatani

The Rule of Law and the Path to a Just and Lasting
Peace in the South China Sea
Paul S. Reichler

Regional Cooperative Security in the Indo-Paciﬁc:Synergizing Consultative Mechanisms across the
Indian Ocean, East China Sea, South China Sea,and the Western Paciﬁc
Monika Chansoria

International Law and Japanʼs Territorial Disputes
Raul (Pete) Pedrozo

T HE J A P A N
I NS TI T UTE O F
IN TE R NA TI O NA L
A FF A I R SDocuments: Japanʼs Major Foreign Policy
Statements (2017)

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APAN

Vol.1 No.2
Winter 2017

REVIEW

East/South China Sea
1 The South China Sea Arbitration Award (Philippines v. China)
and the Rule of Law at Sea �������������������������03

Kazuhiro Nakatani
Professor of International Law, Graduate Schools for Law and Politics, the University of Tokyo(since1999). LL.B, Faculty of Law, the University of Tokyo (1983); Research Associate, Facultyof Law, the University of Tokyo (1983-86); Associate Professor, Faculty of Law, the Universityof Tokyo(1986-99); Visiting Scholar, University of Oxford (1988-89); Member of the Science
Council of Japan; Member of the Cybersecurity Strategic Headquarters; Secretary-General of
the International Law Association Japan Branch.

2 The Rule of Law and the Path to a Just and Lasting Peacein the South China Sea����������������������������06

Paul S. Reichler
Paul Reichler "is one of the worldʼs most respected and experienced practitioners of Public
International Law, specializing for more than 25 years in the representation of Sovereign Statesin disputes with other States. He belongs to a select group of elite lawyers with extensive
experience litigating on behalf of Sovereign States before the International Court of Justicein The Hague, and the International Tribunal on the Law of the Sea in Hamburg," (Chambers
Global 2010).
Among many other clients and cases, he was Counsel and Advocate for Nicaragua in thehistoric case of Nicaragua v. United States of America (1984-1986), regarding the illegal use offorce in international relations, for Uruguay in the case of Argentina v. Uruguay (2006-2010),
concerning international environmental protection and sustainable development, and for thePhilippines in Philippines v. China (2013-2016) over maritime jurisdiction and entitlements in
the South China Sea.

3 Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean,
East China Sea, South China Sea, and the Western Pacific����������13

Monika Chansoria
Dr. Monika Chansoria presently is based in Tokyo as a Senior Visiting Fellow at The Japan1

Institute of International Affairs (JIIA). She is also a Senior Fellow at the Centre for Land
Warfare Studies, New Delhi where she heads the China-study programme. She specialises incontemporary Asian security, weaponsʼ proliferation issues, great power politics and strategy in
the Indo-Pacific with a special focus on China.
She received her Ph.D. in International Relations from the School of International Studies,
Jawaharlal Nehru University (JNU), New Delhi. Subsequently, she was awarded the prestigious
French Hérmes FMSH Post-Doctoral Fellowship in Paris. Subsequently, Dr. Chansoria has
been a recipient of many prominent international academic fellowships, including successive
stints at the Cooperative Monitoring Center (Sandia National Laboratories, USA), Japanese
Global Chair of Excellence Fellowship (Hokkaido University, Sapporo, Japan) and the MSH
Senior Fellowship as Visiting Professor and Associate Director of Studies (Paris).
Dr. Chansoria has authored five books including her latest work China, Japan, and Senkaku
Islands: Conflict in the East China Sea Amid an American Shadow (2017). She has written
many peer-reviewed research papers and articles in various edited book volumes and academic
journals. She is a regular participant in Track 1.5 & 2 diplomatic dialogues and contributes tonational and international dailies. Besides, she writes regular columns on foreign policy andstrategic affairs in newspapers published out of India and Japan, namely, The Sunday Guardianand The Sankei Shimbun.

4 International Law and Japan’s Territorial Disputes�������������26

Raul (Pete) Pedrozo
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 Centerfor 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 theUnder Secretary of Defense for Policy. The views expressed in this article do not reflect theviews of the U.S. Government, the Department of Defense, Department of the Navy, or the U.S.
Naval War College.

Documents: Japan’s Major Foreign Policy Statements (2017)����������512

Kazuhiro Nakatani

The South China Sea Arbitration Award (Philippines v. China)
and the Rule of Law at Sea
Professor Kazuhiro Nakatani
The University of Tokyo

Abstract
This paper summarizes the epoch-making findings in the South China Sea arbitration
award (Philippines v. China) on July 12, 2016. It also elaborates on potential implications ofnoncompliance with the arbitration award by China and argues that, in light of the rule oflaw, when a country loses a case it must comply with the international ruling.

T

he arbitration award for the South China Sea (Philippines v. China) on July 12, 2016has an epochal significance for the rule of law at sea. The award (together with the
October 29, 2015 ruling on jurisdiction and admissibility) positively affirms jurisdiction
and admissibility, advances the case, and rules that Chinaʼ s series of ambitious
statements and activities in the South China Sea are illegal and invalid under international law.
In the arbitration, first, regarding the historical rights and “nine-dash line” claims by China,
the award found that any such rights which are contrary to the United Nations Convention on the
Law of the Sea (UNCLOS) were nullified when the Convention came into effect, and that China
has no legal basis for claiming historical rights to resources in sea areas inside the “nine-dashline.” Second, with regard to standards for being classified as an “island” under Article 121 of
the Convention, the award found that an island must have the capacity to sustain either “a stablecommunity of people” or “economic activity that is not dependent on outside resources or purely
extractive in nature,” and that the high-tide features in the Spratly Islands are all “rocks” with noexclusive economic zone (EEZ) or continental shelf, and not “islands.”
Third, the award found that China ʼs activities in the South China Sea are in violation ofinternational law as follows: (1) China violated the sovereign rights of the Philippines with respect
to its EEZ and continental shelf by prohibiting the Philippines from fishing in the EEZ and byconstructing installations and artificial islands at Mischief Reef without the authorization of thePhilippines; (2) China violated the traditional fishing rights of Philippine fishermen by prohibiting
access to Scarborough Shoal; (3) China violated Articles 192–194 of the Convention, which makethe preservation and protection of fragile ecosystems and the habitats of endangered species
obligatory, by large-scale land reclamation and the construction of artificial islands; (4) China
violated UNCLOS Article 94 and the Convention on the International Regulations for Preventing
Collisions at Sea (COLREGs) by preventing Philippine vessels from approaching ScarboroughShoal, causing grave risk of collision at sea.
Because the arbitration award is legally binding (UNCLOS Annex VII Article 11), if China
does not implement the award, which she currently shows no signs of doing, it will be in violationof international law. The immediate cessation of constructing artificial islands, withdrawal of the“nine-dash line,” and other activities are now Chinaʼs obligation under international law.
In general, the res judicata of arbitration awards itself is limited to the concerned case andstates, but even when those states conduct diplomatic negotiations regarding the implementation
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Japan Review Vol.1 No.2 Winter 2017

The South China Sea Arbitration Award (Philippines v. China) and the Rule of Law at Seaof an arbitration award, they must not deviate from the overall framework of the award. Moreover,because of the universal value of the sea, countries other than the Philippines and China (especiallycountries which make major use of the South China Sea such as Japan) are not solely third
parties, but rather parties with legitimate interests in the Chinaʼs faithful implementation of thearbitration award as countries with direct interests.
The Joint Statement of the Philippines and China of October 21, 2016 (paragraph 40) reads,“[R]egarding the South China Sea … both sides also reaffirm the importance of … addressing
their territorial and jurisdictional disputes by peaceful means … through friendly consultations
and negotiations by sovereign states directly concerned, in accordance with universally
recognized principles of international law, including the Charter of the United Nations and the1982 UNCLOS.” While the expression “sovereign states directly concerned” is believed to show
Chinaʼs intent to exclude not only third countries but also Taiwan, both the Philippines and China
must recognize that “universally recognized principles of international law, including the Charterof the United Nations and the 1982 UNCLOS” include the arbitration award as a matter of course.
The Philippines requested the arbitration tribunal to adjudge and declare that “China shallrespect the rights and freedoms of the Philippines under the Convention, [and] shall comply withits duties under the Convention,” but the tribunal found such a declaration unnecessary, citing thefundamental principle of international law that “bad faith is not presumed.” Whether or not suchan arbitration award, whose implementation depends on the good faith of the countries involved,
is naive depends on the actions of the Chinese side. The good faith or bad faith of China has beenplaced under the scrutiny of the international community.
Because there is no systematic framework to ensure implementation of an arbitration
award, in cases like this, where the state that lost the case has no intention of implementation,
the arbitration award is inevitably ignored and not implemented. (Regarding judgments by
the International Court of Justice, UN Charter Article 94 Paragraph 2 states, “the Security
Council may … make recommendations or decide upon measures to be taken to give effectto the judgment,” but in cases where the country which lost the case is a permanent memberof the Security Council, the invocation of that paragraph cannot possibly be expected.) The
nonperformance of the April 18, 1977 Beagle Channel arbitration award in a territorial dispute
between Chile and Argentina is a serious precedent of noncompliance with an arbitration award
related to territory. Argentina, which effectively lost the case, was dissatisfied with the award
and refused to comply. When Chile, which was seeking implementation, proposed referring thecase to the International Court of Justice, Argentina refused, stating that would be casus belli,
and then began an invasion of Chilean islands on December 22, 1978. Pope John Paul II sensed acrisis and proposed mediation; this proposal was accepted by both countries on January 9, 1979.
The mediation was prolonged, during which the Falklands war took place, and a treaty of peaceand friendship between the two countries was finally signed at the Vatican on November 29, 1984,
resolving the conflict. In this treaty, the two countries agreed to essentially the same contents as
the original arbitration award, but a huge price was paid to arrive at that point. It would be in theinterest of the international community that China does not follow the negative precedent.
The Three Principles of the Rule of Law at Sea presented by Prime Minister Shinzo Abe at the
Asian Security Summit (“Shangri-La Dialogue”) on May 30, 2014i point out items that are a matterof course under international law. Moreover, these points are of particular importance today when
there are countries that do not observe international law and advance changes in the status quo
made through force. The sea is an area where it is particularly necessary to stress the rule of law
in the international community. There are great concerns that if the contents of the arbitrationi

Three principles of Rule at Law of Sea presented by Prime Minister Shinzo Abe from Shangri-la
Dialogue Speech 2014: Countries must: (1) make and clarify claims based on international law, (2) not
use force or coercion in trying to drive their claims, and (3) seek to settle disputes by peaceful means.

4Japan Review Vol.1 No.2 Winter 2017

Kazuhiro Nakatani

award are ignored, that will have a harmful effect on the rule of law in all other sea areas.
In relation to international adjudication, simply stated, following the “rule of law” means whena country loses a case it must comply with the international ruling. Japan effectively lost what is
known as the case concerning whaling in the Antarctic at the International Court of Justice, andimplemented the contents of that ruling “as a nation that respects the international legal systemand the rule of law as foundations of the international community.” As to whether or not China can
implement the arbitration award as a responsible nation, the ball is now in Chinaʼs court. Recallingthe words of the Joint Statement of the Japan and Philippines of October 26, 2016 (paragraph12), “With regard to the South China Sea Arbitral Award, the two leaders acknowledged theimportance of a rules-based approach to the peaceful settlement of maritime disputes without
resorting to the threat or use of force, in accordance with the 1982 United Nations Convention on
the Law of the Sea (UNCLOS), the UN Charter and other relevant international conventions,” thePhilippines should act in a manner that does not remove the backbone of the effective contents of
the arbitration award.
In relation to the “Declaration on the Conduct of Parties in the South China Sea” (DOC),
which was agreed on by the Association of Southeast Asian Nations (ASEAN) member states andChina in 2002, although the DOC is not legally binding, Chinaʼs actions in the South China Sea arein violation of the DOC. (For example, voicing objections to the navigation of U.S. warships is inviolation of Paragraph 3 which reaffirms respect for the freedom of navigation, and constructing
man-made islands and making the island habitable for humans are in violation of Paragraph 5, in
which the parties undertake to exercise self-restraint in action of inhabiting presently uninhabitedislands, reefs, etc.) In preparation for a future legally binding “Code of Conduct for the South
China Sea” (COC), from the perspective of the rule of law at sea, the arbitration award should be
used as a reference and caution exercised so the COC does not contradict the arbitration awardʼscontents.

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Japan Review Vol.1 No.2 Winter 2017

The Rule of Law and the Path to a Just and Lasting Peace in the South China Sea

The Rule of Law and the Path to a Just and Lasting Peacein the South China Sea
Paul S. Reichler
Partner, Foley Hoag LLP

Abstract
This article, by the lead counsel for the Philippines in the arbitration it brought against
China under the United Nations Convention for the Law of the Sea, which resulted, in
July 2016, in a unanimous award in favor of the Philippines on all key issues, sets forth theauthorʼs views on the critical findings by the arbitral tribunal, the impact of the award on
the parties to the dispute and on the rule of law generally, and how the award can lead to apeaceful and equitable solution for China and its neighbors rimming the South China Sea,
as well as a strengthening of the rules-based international order.

In this discussion of the South China Sea arbitration, in which I was privileged to serve as
lead counsel for the Philippines, I will first summarize the key findings in the case. Then I
will address its impact on the rule of law and the stability of the international legal system.
And finally, I will offer my thoughts on how the arbitral award can serve as the basis for anequitable and lasting solution to the conflict between China and its neighbors in the South China
Sea, as well as a strengthening of the rules-based international order as a whole.
The Philippines brought the case in January 2013 for two paramount reasons: First, China wasinsisting on exclusive jurisdiction over nearly all the waters and seabed of the South China Sea,
within a so-called “nine-dash line” and the exclusive right to all of the natural resources withinthat line. Chinaʼs claim extended more than 650 miles from its coast and within 50 miles of thePhilippinesʼ coast, and that is well beyond the 200-mile exclusive economic zone and continental
shelf, to which China is entitled under the Law of the Sea Convention and it is well within thePhilippines 200-mile entitlements. China depicted its nine-dash line claim in a map that it sent to
the United Nations in 2009.
Based on its nine-dash line claim, Chinese law enforcement and naval vessels prevented
Philippine fishermen from fishing in the waters encompassed by the nine-dash line and prevented
Philippine licensees from exploring for oil and gas within the perimeter of the nine-dash line,
while permitting Chinese nationals to carry out these activities.
The second principal cause of the Philippinesʼ resort to arbitration was Chinaʼs claimed
sovereignty over all of the Spratly Islands, in the southern part of the South China Sea. The
Spratly Islands consist of dozens of ver y tiny insular features, only a small number of which
are above water at high tide and most of which are also claimed by the Philippines, Vietnam, or
Malaysia. China occupied and built or started to build military facilities on top of seven of thesefeatures. Chinaʼs construction caused great environmental harm to these reefs and islands, whichwere previously some of the most pristine in the world. The Philippines claimed that Chinaʼs
activities destroyed the surrounding marine environment including important fish breeding andfeeding areas.
The Philippines had tried to address all of these issues with China by diplomacy over a
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Japan Review Vol.1 No.2 Winter 2017

Paul S. Reichler

number of years, but China was inflexible. It demanded that the Philippines accept Chinaʼs
exclusive rights over all of the resources of the sea and seabed within the nine-dash line as well
as Chinese sovereignty over all of the islands and other maritime features of the South China Sea.
This would have amounted to a renunciation of the Philippinesʼ rights under the Law of the Sea
Convention. With diplomacy frustrated and military action out of the question, legal recourse
became the only viable option for the Philippines.
But there were big challenges to bringing the case. First, an arbitral tribunal establishedunder the Law of the Sea Convention has no jurisdiction over questions of land sovereignty, andfor that reason the Philippines could not challenge Chinaʼs assertion of sovereignty over the
Spratly Islands or Scarborough Shoal, which represented a significant part of the conflict.
Second, the Philippines could not ask a tribunal to delimit a maritime boundary with China
because China had exercised its right under Article 298 of the Convention to exclude itself fromcompulsory arbitral jurisdiction in regard to sea boundary delimitation.
The solution for the Philippines, after much thought, analysis and internal debate, was to bringa case about maritime entitlements rather than about sovereignty over islands, or delimitationof boundaries. Maritime entitlements, that is, the entitlements to the sea and seabed generated
by coastal land territory -- including a 12-mile territorial sea and 200-mile exclusive economic
zone and continental shelf -- are specifically provided for in the Convention; and thus, unlike
sovereignty over coasts and islands, they do fall within the jurisdiction of an arbitral tribunal
established under the Convention.
Also, and this proved to be a critical point, maritime entitlements can be determined without
the need for engaging in the delimitation of boundaries. In fact, Law of the Sea tribunals must
determine the entitlements of the parties to a dispute prior to and separately from delimiting aboundary, because it is only when two Statesʼ entitlements overlap that a boundary needs to becreated. And this can be illustrated by example. When you have State A and State B separated
by a body of water that is greater than 400 miles, their respective 200 mile entitlements to an
exclusive economic zone and continental shelf will not overlap. Each will enjoy the exclusive
right to exploit the living and non-living resources in its own 200 mile zone. There is no need for adelimitation of a common boundary. By contrast, where States A and B are separated by less than
400 miles, their 200 mile zones will overlap, and a boundary will have to be drawn to separate
their respective zones.
In the South China Sea, with the exception of a small area to the northwest of the Philippinesʼ
northernmost islands (and southeast of Chinaʼs southern coast), the Philippines and China areseparated by more than 400 miles. Accordingly, except for that small area their 200 mile maritime
entitlements do not overlap, and there is no cause for boundary delimitation.
Accordingly, the Philippines believed that by asserting claims to establish its own maritime
entitlements and challenge those claimed by China based on the nine-dash line, it would
overcome Chinaʼs anticipated jurisdictional challenges. And this proved to be correct. Although
China did not formally appear in the arbitral proceedings, it submitted to the tribunal a written
pleading setting forth its jurisdictional objections. The tribunal accepted Chinaʼs written pleading
and considered it as Chinaʼs jurisdictional objections. Chinaʼs main arguments were that thetribunal lacked jurisdiction over matters of land sovereignty and boundary delimitation, but thetribunal was able to reject these arguments, unanimously, because the Philippines had been
careful not to raise issues of land sovereignty or boundary delimitation, but had presented its caseentirely as one regarding maritime entitlements.
On the merits, the Philippines claimed exclusive entitlements extending out to 200 miles fromits coasts in all of the areas that were beyond 200 miles from Chinaʼs coasts. This included theexclusive right to the resources of the sea and the seabed, meaning all of the fish, and the oil andgas beneath the seabed, in those areas.
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Japan Review Vol.1 No.2 Winter 2017

The Rule of Law and the Path to a Just and Lasting Peace in the South China Sea

The Philippines accepted that, as a par ty to the Convention, China enjoyed all of theentitlements guaranteed to it by the Convention, but that these did not extend beyond 200 miles
from its coasts; therefore, any Chinese claim beyond 200 miles was a violation of the Convention
and of the Philippinesʼ rights thereunder. The arbitral tribunal unanimously agreed with this
proposition.
In reaching this decision, the tribunal carefully considered Chinaʼs claim to the waters andseabed encompassed by the nine-dash line, based on Chinaʼs alleged historic rights beyond
those enumerated in the Convention. The tribunal found that Chinaʼs claim was unlawful on two
grounds: first, it determined that when States became parties to the Law of the Sea Convention,
they necessarily abandoned all claims to rights in the sea whether based on history or otherwisethat were contradictor y with the provisions of the Convention and, further, that they wereexpressly required by the Convention to withdraw all contradictory claims. Chinaʼs claims toareas of sea and seabed beyond 200 miles from its coasts were plainly contradictor y to theexpress terms of the Convention and therefore they were found to be unlawful.
Second, the tribunal found that even under preconvention international law, Chinaʼs historicrights claims were invalid. Under customary international law, a claim of historic rights may be
lawful only if a State has in fact exercised authority over the maritime area in question: under aclaim of right, continuously over a long period of time, and with the acquiescence of neighboring
States. Chinaʼs historic rights claim in the South China Sea satisfied none of these well-establishedcriteria. The evidence showed that China had never exercised authority over any maritime areas
beyond those very close to its mainland coast, let alone continuously for a long period of time,
and that no other State had ever acquiesced to Chinaʼs authority in these areas.
China claimed entitlements not only from its mainland coast, but also from the Spratly Islands
based on its alleged sovereignty over them. Consequently, another important issue in the casewas whether these features were capable of generating maritime entitlements; and if so, to what
extent.
This matter turned on the meaning of Article 121 of the Convention. The article provides
that islands generate the same maritime entitlements as mainland coasts including an exclusive
economic zone and continental shelf. However, there is an important exception in paragraph 3 ofthat article for islands that are considered uninhabitable, specifically features that are incapableof sustaining human habitation or economic life of their own. Those islands have a maritime
entitlement only to a 12-mile territorial sea. For that reason, the Philippines argued and presented
voluminous evidence that none of the Spratly Islands was habitable in its natural state and thatnone of the features therefore generated entitlements beyond 12 miles. This was the first casein which any international court or tribunal was required to interpret article 121, paragraph 3 ordetermine whether and on what basis an island should be deemed incapable of sustaining humanhabitation or economic life.
The tribunal delivered as part of its award an extensive analysis of the articleʼs text andthe manner in which it is to be applied. And it came to the conclusion, again unanimously, thatnone of the islands in question was habitable in its natural state and that none of them therefore
generated entitlements beyond 12 miles. The result was that, except for the area northwest of
the Philippinesʼ coast where the entitlements generated by the Philippinesʼ and Chinaʼs mainland
coast overlap slightly, and the 12-mile zones of some of the small islands claimed by China, thePhilippinesʼ exclusive economic zone and continental shelf are not overlapped by any entitlementsthat China may lawfully claim. On this basis, the tribunal ruled that it was unlawful for China todeprive the Philippines of the exclusive enjoyment of these areas of sea and seabed including theliving and nonliving resources located there.
In regard to the impact of China ʼ s island-building and other activities on the marine
environment, the tribunal retained its own independent experts to assess the harm caused
8Japan Review Vol.1 No.2 Winter 2017

Paul S. Reichlerby these activities. The arbitrators found that the harm caused by China was devastating andirreparable, as the Philippines had claimed.
Thus, the Philippines prevailed on all its central claims; but as many have asked, “what does
this mean if China does not comply with the award?” This is a legitimate question and one thatreaches beyond China in this particular case, and it brings me to the second part of my analysis.
Put more broadly, the question might be phrased, what does it mean for the law of the sea
and for the rule of law in general if States, especially great powers, refuse to comply with theirlegally-binding obligations under treaties to which they voluntarily became parties or with their
obligations under judicial judgments or arbitral awards rendered by duly constituted and fullycompetent international courts or arbitral tribunals?
My first observation is that given the nature of the case, it would be extremely detrimental
to the international legal order if China were to defy the arbitral award and if its defiance were
to be accepted by the international community, and especially by the more than 160 States thatare parties to the Law of the Sea Convention. This is a very special Convention. It was envisioned
by its framers, including China (which played a large part in its adoption), as a constitution for
the worldʼs oceans and seas, regulating virtually every activity, from navigation to environmental
protection, to boundaries, to maritime zones, to rights to resources, to undersea cables, todeep seabed mining, and more. It has been one of the most successful treaties in the history ofinternational law. It enjoys near-universal acceptance and it has kept peace and order on the seas
and facilitated the orderly and equitable exploitation of resources for more than a generation.
Chinaʼs statements and actions in defiance of the arbitral award could threaten the viability of
the Convention. If China can disregard the Conventionʼs most fundamental principles, then so canother States. This should not be acceptable to the international community and it should also be
worrisome for China. China itself has much to lose from the unraveling or weakening of the Lawof the Sea Convention. It has extensive rights in the South China Sea under the Convention that
it would certainly not want to be challenged by other States. It might one day find these rights
threatened by another great power with interests or naval forces in the South China Sea. In suchcase, the Law of the Sea Convention would protect China against the violation of its own rights
unless the Convention has been weakened by Chinaʼs actions.
The United Nations Charter gives a special role to certain of the worldʼs most powerful States,
including China. It makes them permanent members of the Security Council and it gives themveto power over council resolutions. But it does not exempt them from the rules set forth in
the Charter or any other rules of international law; nor do United Nations conventions or othermultilateral treaties make exceptions to their rules for the great powers. The same fundamental
legal rules and principles reflected in international agreements like the Law of the Sea Convention
or adopted by custom apply to all States, and it could not be otherwise. The majority of States
simply would not accept being bound by rules that exempted other States solely on the basis of
their size or power. They simply would not accept a system in which they are required to comply
with the binding orders of competent international tribunals – but other States, even great
powers, are not.
The great powers do set an example, however, and this can be either positive or negative.
If they refuse to honor their legal obligations, then so will other States. And soon enough,international adjudication will be a hollow exercise. In 2012, when Columbia defiantly told theInternational Court of Justice that it would not comply with the Courtʼs judgment delimiting its
maritime boundary with Nicaragua, it cited the United Statesʼ rejection of a judgment in an earlier
case brought by Nicaragua in the 1980s. China, too, cited the United States ʼ rejection of the
Nicaragua judgment in support of its attempt to dismiss the arbitral award in the Philippines case.
Fortunately, these acts of defiance of international courts and tribunals are, at least so far,rare exceptions. The vast majority of States in the vast majority of cases comply with judicial
9Japan Review Vol.1 No.2 Winter 2017

The Rule of Law and the Path to a Just and Lasting Peace in the South China Sea

judgments and arbitral awards, even in cases where they consider themselves to have lost. The
United States, despite the Nicaragua case, has a decent record of compliance with international
judgments and awards overall. And so too does China, at least in the context of World Trade
Organization panel rulings. There, China has generally complied with rulings that have gone
against it.
There are important reasons why States on the whole generally comply even with unfavorable
judicial or arbitral outcomes. First, there is an advantage in finally resolving a dispute withanother State. Even if the resolution is less than fully desirable, the alternatives -- prolongationof the conflict, tension, instability in the bilateral relationship and the imminent or eventual
possibility of armed conflict -- are often worse.
Second, neighboring States can never move out of the neighborhood. Geographical proximity
among States is permanent. Disputes between neighbors are inevitable. If State A doesnʼt comply
with the judgment or award resolving todayʼs dispute, how can it expect its neighbor, State B, tocomply with one in tomorrowʼs dispute? By refusing to comply, State A will have removed judicial
or arbitral recourse from the list of possible means of resolving a future dispute that cannot be
resolved diplomatically. What alternative does that leave it?
Third, there is the value of stature, prestige, and reputation, which translates into influenceon the international level. States enhance their stature and with it their influence when they
demonstrate that they are law-abiding, including by complying with international judgments andawards. For this reason, States inevitably seek to justify their actions on the basis of internationallaw. We see this in all kinds of situations, even where the reliance on international law seems
misplaced. China itself argued to the world that its nine-dash line claim was based on internationallaw, namely its alleged historic rights.
My point here is not that States correctly invoke international law to justify their policies
and actions, simply that they feel the need to invoke it as justification. And that is because
they consider it important to their own self-interest to be seen by their neighbors and by theinternational community as a whole as law-abiding and respectful of the rights of other States.
Finally, I believe that the majority of States understand that the alternative to a rules-based
international order is chaos. Respect for the rule of law not only ser ves ethical and moral
interests, including justice and fairness, but practical ones. It fosters predictability, stability,
security, and peace in international relations. These are goals shared by most States most of thetime.
Two recent examples illustrate the point. The case of Bangladesh against India was brought
under the same provisions of the Law of the Sea Convention as the Philippines ʼ case against
China. The arbitral award was widely viewed as more favorable to Bangladesh, and the arbitrator
appointed by India issued a strong dissenting opinion. Nevertheless, India quickly announced that
it would respect and comply with the award, and it has done so. The second example is Japanʼs
acceptance of the judgment of the International Court of Justice in the whaling case despite its
understandable disappointment with the result.
There can be no greater proof of a Stateʼs commitment to the rule of law than its compliancewith judgments and awards that displease it. There is also no better way to strengthen theinternational legal order generally. When States like Japan and India set positive examples likethese, other States are encouraged to follow. In fact, great powers may have the greatest interestin preserving the existing international order and their own privileged levels of influence underit. Maintaining and strengthening that order requires them to accept the consequences on thoseoccasions when its rules are applied against them. No great power can reasonably expect to win
its case automatically every time. There will be times when its behavior is found to be unlawful,
but that may present as much of an opportunity for strengthening the legal order as a challenge
to it.
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Paul S. Reichler

There might be no better way to promote the rule of law than for a great power like the UnitedStates or China to accept and comply with an adverse judicial judgment or arbitral award. In
fact, they have done so at least from time to time because they understand that there is no viable
alternative to a rules-based system that will protect over the long-term their interests in a moreorderly and secure world.
We may have an imperfect international legal order, but it is far better than having no rulesbased system at all. The great powers may be powerful enough to get away with defying court
orders and arbitral awards from time to time, but this is not a sufficient reason to legitimize such
behavior by granting them exemptions from the rules, or adopting a policy of not seeking to holdthem accountable for their unlawful acts. To the contrary, it is preferable to have a legal systemthat occasionally proves too weak to contain the lawless excesses of the most powerful States,
rather than an even weaker system that, in formal recognition of its weakness, tolerates suchexcesses and avoids treating them as unlawful, or, worse yet, have no system at all.
In my opinion, the response to the imperfections of the international legal order should be
to continue working to make the system better and stronger, and the rules more universallyenforceable. There is, to be sure, a long way to go, but since the end of World War II great
progress has been made, and there is no reason to give up the effort to make all States, including
the most powerful, accept legal accountability for their breaches of the applicable rules.
In addition to these systemic considerations, there are particular reasons why, in regard to
the South China Sea, China, with the passage of time, the dilution of passions, and the soberminded reflection of an enlightened leadership, might come to see the award in the Philippines
case as more of an opportunity for gain than as a defeat. And these bring me to the final part of
my discussion: how the award may serve as a basis for peaceful and permanent resolution of theconflict.
First, China may come to appreciate that its core interests in the South China Sea have notbeen affected by the award. Chinaʼs claim of sovereignty over all the islands, which it apparently
considers vital to its strategic interests, is unaffected by the award because the tribunal did nothave jurisdiction to address questions of sovereignty over islands. Accordingly, China can comply
with the award without relinquishing either its sovereignty claim in general or its control overthe small islands and rocks it currently occupies. Likewise, the award does not diminish Chinaʼs
freedom of navigation or overflight, or its ability to conduct naval exercises or other militaryactivities in the South China Sea.
Under the award, the Philippines is obligated to respect Chinaʼs freedom of navigation andoverflight within the Philippinesʼ own exclusive economic zone. Chinaʼs freedoms of navigationand overflight, including for its naval and air-forces, are therefore fully protected.
What have been affected by the award, principally, are access to resources and protectionof the marine environment. China may no longer lawfully claim for itself exclusive entitlement
to the resources within the nine-dash line, but must respect the exclusive economic zone andcontinental shelf of the Philippines and, by implication, those of the other coastal States in theregion. China also may not lawfully continue to destroy environmentally-sensitive coral reefs andtheir ecosystems for the purpose of building and expanding artificial islands.
But these should not be difficult consequences for China to accept. Until now, China andits neighbors along the South China Sea have been engaged in a competition for resources,
especially fish and hydrocarbons. Chinaʼs claim of exclusive entitlement to these resources
based on the nine-dash line was explicitly rejected by all of the other coastal states even before
the arbitration. China had to resort to shows of force on various occasions against vessels andnationals of the Philippines, Indonesia and Vietnam to enforce its claims. The risks of open
conflict were growing. The award provides an equitable basis for a peaceful solution of thisconflict. To be sure, it reinforces the positions of the Philippines, Indonesia and Vietnam among
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The Rule of Law and the Path to a Just and Lasting Peace in the South China Sea

others on the unlawfulness of Chinaʼs nine-dash line claim and it encourages them to continue
to assert their rights as against China within their own 200-mile exclusive economic zones andcontinental shelves. But at the same time, the award provides a path for China to negotiate its way
out of a dangerous impasse of its own making and avoid a prolonged and destabilizing conflict not
only with the Philippines, but with Vietnam, Indonesia, and others.
This certainly raises the benefit for China in ultimately finding an accommodation with its
largest Southeast Asian neighbors, all of which have rejected Chinaʼs nine-dash line claims andare unlikely ever to accept them. And such an accommodation should be possible. First, on issues
like protecting the marine environment, China and its neighbors would appear to have common
interests. All of the relevant States have strong interests in promoting the sustainability of fishstocks, which are an important source of nutrition for all of the local populations. On other issues,
compromise should also be possible. Unlike sovereignty over land or islands, natural resources
and access to them, whether fish or hydrocarbons, are more easily divisible. By recognizing thatits neighbors too have rights as set forth in the Convention and reaffirmed in the arbitral award,
China would be able to free itself to negotiate equitable sharing arrangements in regard to fish
catches and oil and gas development.
China can thus become an indispensable partner to its neighbors in these activities. It is
the only coastal State along the South China Sea with the financial and technological capacity
to facilitate exploitation of hydrocarbons without participation from western or other extraregional players. Good faith negotiations based on respect for the legal rights of all coastal States,
including Chinaʼs own, could produce a settlement favorable to every one of them.
For these reasons, I believe the arbitral award offers China as well as the Philippines and theother coastal States along the South China Sea the best path toward a secure, just, and lastingarrangement for the peaceful and equitable enjoyment of the sea and its resources. And this is
why I believe there is reason to hope that China, in its wisdom, will ultimately come to the sameconclusion and find an honorable way to reach a reasonable accommodation with its neighboring
States based on its recognition of their and Chinaʼs own fundamental rights under the Law of the
Sea Convention as spelled out in the arbitral award.
Such an agreement, in my view would serve the interests of China, the Philippines, the othercoastal States in the region, and the international community as a whole. It would strengthen
the Law of the Sea Convention and the international legal order generally. For this to happen, it
requires mainly for China to come to the enlightened conclusion that its long-term interests, likethose of most other States, are best served by respecting, promoting, and strengthening the ruleof law and recognizing the legal rights of all States, and by working with neighboring States inpartnership for the sustainable and equitable enjoyment of the South China Sea and its resources.
This is an outcome that an enlightened Chinese leadership may come to see as a win-win
situation for both China and its neighbors, and one that the international community would be
wise to encourage.

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Monika Chansoria

Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean,
East China Sea, South China Sea, and the Western Pacific
Monika Chansoria *Abstract
Given the concept of a broader Asia that is fast transcending geographical boundaries andlines, the emerging proximities render the prospects for collective and cooperative regional
security mechanisms, more deliverable than ever before. With the notion of the greater
Indo-Pacific beginning to eclipse the limited spheres of influence of the Indian Ocean,
East China Sea, South China Sea, and the Western Pacific, regional players are expected
to make prudent choices, whilst pursuing a sovereign foreign policy path that best suits
their national security interests. Indubitably, greater onus shall lie on the regional liberal
democracies that have perennially demonstrated respect for the rule of internationallaw, norms, and agreements and showcase their strategic sagacity in the emerging
scenario developing in the Indo-Pacific. This paper intends to outline the pragmatist policy
approach to be undertaken by India, Japan, Australia and the US towards a cooperative andconsultative working framework to address common threats and challenges to regional
peace and stability.

Collective Security, conceptually, provides rationality for international organizations tomaintain and uphold international peace and stability.1 Immanuel Kant presented thisidea in his book Perpetual Peace towards the end of the 18th century, in which he stated,
2“The law of nations will be based on one federation of free states”. Making cooperative
security a major mode of interaction in the international system demands that states build a
range of capabilities to implement international agreements, address transnational threats, andprevent or resolve conflicts.3 Impediments to enhanced cooperative security involve differencesin perceptions of key actors. However, it is statesʼ perceptions of multiple security threats which
could make them more reluctant to pursue cooperative security.4
Since the end of the Cold War, the term cooperative security became a catch–phrase usedgenerally to describe a more peaceful approach to security through increased international
cooperation. The cooperative security model embraced four concentric and mutually reinforcing*

Dr. Monika Chansoria presently is a Senior Visiting Fellow at The Japan Institute of International Affairs(JIIA), Tokyo. Besides, she is Senior Fellow and Head of the China-study program at the Centre forLand Warfare Studies, New Delhi. Her most recently authored book (2017) is titled China, Japan, andSenkaku Islands: Conflict in the East China Sea amid an American Shadow.

1

Stefan Aleksovski, et al., “Collective Security – The Role of International Organizations: Implications inInternational Security Order,” Mediterranean Journal of Social Sciences, vol. 5, no. 27, December 2014.

2

Immanuel Kant, Perpetual Peace (Cambridge: Cambridge University Press, 1991), pp. 93-130.

3

Michael Moodie, “Cooperative Security: Implications for National Security and International Relations,”
Occasional Paper/14, Cooperative Monitoring Center, Sandia National Laboratories, January 2000.

4

Ibid.

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Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean, East China Sea, South China Sea, and the Western Pacific“rings of security”: Individual Security, Collective Security, Collective Defense, and Promoting
Stability.5 What gained primacy among these was the traditional aspect of collective security– defending the integrity of member states. In 1992, American strategists ̶ Ashton Carter,
William Perr y, and John Steinbruner spoke about cooperative security in terms of providing
new avenues toward world peace, and said, “Organizing principles like deterrence, nuclear
stability, and containment embodied the aspirations of the cold war ... Cooperative Security is thecorresponding principle for international security in the post–cold war era.”6 Two years later, in
1994, former Australian Foreign Minister Gareth Evans described cooperative security as tending“ ... to connote consultation rather than confrontation, reassurance rather than deterrence,transparency rather than secrecy, prevention rather than correction, and interdependence rather
than unilateralism.”7
In the contemporary and evolving understanding of cooperative security, promotion of stability
outside the boundaries of the states has been regarded as an integral component that constitutes
the cooperative security system. Cooperative Security can be described as a “strategic system,”as it does not easily fit the generic accepted definition of a “strategy” which has been describedas “the integrated application of means to achieve desired ends.”8 The word “system” implies thatthe concept cannot be fully realized in abstract, and should be based on existing or newly-created,
and resilient institutions.9 The starting point for cooperative security would be creation of a strong
normative base.10 New age collective security can be inferred as an understanding/commitment
among groups of nations with commonality of interests and values to protect the security interestsof the individual members within their joint spheres of interest. This, to a large extent, applies toliberal democracies that demonstrate a respect for the rule of international law.11
The term “collective security” has been cited as a principle of the United Nations, and the
League of Nations and can be seen in reference to getting triggered when a threatened nation,
exercising its inherent right of collective self-defense, can call on others for help.12 The ʻringʼof maintaining peace embodies the concept of collective security, per se, i.e., protection fromthreats and aggression. The cooperative security system is seen to be proactive and prepared toengage in collective diplomatic, economic, and, if necessary, military action in areas outside theircommon space which may threaten their own security and stability. Commenting on ʻstatus quoʼas a concept, Hans Morgenthau opined, “The policy of the status quo aims at the maintenance ofthe distribution of power as it exists at a particular moment in history.”13 As few nations become
ever more revisionist, expansionist, and combative, the essential tenets of new age cooperative
security, i.e., to reduce the risk of war [or conflict] which are not directed towards a specific5Richard Cohen, “Cooperative Security: From Individual Security to International Stability” in Richard
Cohen and Michael Mihalka, Cooperative Security: New Horizons for International Order, The MarshallCenter Papers, no. 3, The George C. Marshall European Center for Security Studies, 2001.

6

Ashton B. Carter, William J. Perry, and John D. Steinbruner, A New Concept of Cooperative Security,(Washington, DC: The Brookings Institution Press) 1993.

7

Gareth Evans, “Cooperative Security and Intra–State Conflict,” Foreign Policy, no. 96, Fall 1994.

8

Cohen, n. 5.

9

Ibid.

10

Moodie, n. 3.

11Aleksovski, et al., n. 1.

12Speech by U.S. Permanent Representative to the United Nations, Madeleine K. Albright, Transcript,
Building a Collective Security System (US Department of State Dispatch, May 10, 1993.).

13

Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 5th ed. (New York:
Alfred A. Knopf, 1978) p. 46.

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Monika Chansoria

country or coalition of countries14 shall be sought after. In order to develop the spirit of a common
future, and promotion of stability, the system of cooperative security should seek for democratic
countries to cooperate mutually for regional peace and security. The future success of cooperative
security will hinge upon common systems, institutions and values that foster a sense of security
based on global rules and commons.

Maritime Security and Stability in the Indo-Pacific: Charting a Sovereign Path
The term Indo-Pacific depicts centrality vis-à-vis approaches that regional nations seem tobe adopting toward security competition/cooperation in maritime Asia. In fact, the proactiverole and official policy positions adopted by major stakeholders in the region clearly reflects
the primacy of the Indo-Pacific. These include the United States ʼ “Rebalance/Pivot to Asia”,
Chinaʼs “Maritime Silk Route Initiative”, Japanʼs “Confluence of the Two Seas”, Indiaʼs “Act East
Policy”, and Australiaʼs official embrace of the term Indo-Pacific in most policy documents andpronouncements. Maritime security, safety and cooperation within ocean spaces and its linkages
to forging closer foreign policy ties between nations sharing converging ideals is well recognized.
For that matter, numerous policy statements coming from Japan have indicated that security
issues in the Indian Ocean, Pacific Ocean, South China Sea, and East China Sea cannot be treatedseparately, or, as stand-alone issues alone.
The strategic realities have become far more pertinent, given the rising centrality of the IndoPacific to regional security and stability. The renewed focus of Indiaʼs active engagement in theregion within the ambit of its “Act East” policy initiative compliments Japanʼs “Free and Open
Indo-Pacific Strategy”. Both these policy initiatives seek to nurture an open and transparent IndoPacific maritime zone as part of a broader Asia. This concept of a broader Asia is fast transcending
geographical boundaries, with the Pacific and Indian Oceansʼ mergence becoming far more
pronounced and evident. These emerging proximities render the prospects for collective andcooperative regional security mechanisms, more deliverable than ever before. Commensuratewith the ʻAct Eastʼ policy announcement and consequent re-orientation of Indiaʼs strategic focus,
establishing security norms and rules across the stretch of the Indo-Pacific region will be a vital
objective for both India, and Japan. The two nations today, depict strong and united leadershipwith a determination to persevere, by virtue of sharing basic freedoms and democratic values.
Given the post-war identity as a state unconstrained by great-power relationships, Indiaʼs broader
approach resonates and dovetails neatly with the omnidirectional pragmatism15 of the combinedleadership of Prime Ministers, Shinzo Abe and Narendra Modi.
At its heart, a strategic system can be understood as a set of geopolitical power relationships
among nations where major changes in one part of the system affect what happens in the otherpar ts. 16 The contemporar y Indo-Pacific means recognizing the accelerating economic andsecurity connections between the Western Pacific and the Indian Ocean region in creating asingle strategic system. The 2013 Australian Defense White Paper defines Southeast Asia as

14

Aleksovski, et al., n. 1.

15John Nilsson-Wright, “Creative Minilateralism in a Changing Asia: Oppor tunities for Security
Convergence and Cooperation between Australia, India and Japan,” Asia Programme, Chatham House(The Royal Institute of International Affairs) July 2017.

16

Rory Medcalf, “The evolving security order in the Indo-Pacific Professor,” in David Brewster, ed., IndoPacific Maritime Security: Challenges and Cooperation, National Security College Crawford School of
Public Policy ANU College of Asia & the Pacific, The Australian National University, July 2016; also see,
Rory Medcalf, ʻThe Indo-Pacific: Whatʼs in a Name?ʼ The American Interest, vol. 9, no. 2, Nov/Dec 2013,
pp. 58-66.

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Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean, East China Sea, South China Sea, and the Western Pacificthe ʻgeographic centerʼ of the Indo-Pacific.17 The Indo-Pacific system is defined in part by thegeographically expanding interests and reach of rising big powers, i.e., China, and the continued
strategic role and presence of the United States, in both, the Pacific and Indian Oceans. A
major driver of the interconnection between the Pacific and Indian Oceans, economically andstrategically, has been the extension of Chinese interests and presence, south and west across theseas.18
Symbolizing acknowledgment of the economic and strategic dependence on developments
across a much wider maritime region, Indo-Pacific prioritizes allocation of resources, security
partners, membership and agendas of regional diplomatic and security institutions.19 This alsosuggests that the Indo-Pacific region will remain central in achieving its foreign policy objectives,
whilst also underscoring that the histor y, geo-economics, geopolitics and strategic cultures
amongst major players represents a fundamental clash of interests that would pose as a major
obstacle to their co-existence.20
The historical patterns of commercial, cultural and strategic interaction suggests that theartificial division of maritime Asia into East Asia and South Asia, the Indian Ocean and the Pacific,
was something of a post-1945 anomaly, not a permanent state of affairs.21 With around 15.5 million
barrels (i.e., 2/3rds of global oil shipments) passing through the Gulf of Hormuz, more than 40
percent of the global seaborne bulk cargo trade passing through the Strait of Malacca, and, 11
million barrels of oil passing through the Malacca and Singapore Straits, the regionʼs significanceand vitality can be judged by the statistics themselves. By 2030, the Indo-Pacific is expected toaccount for 21 of the top 25 sea and air trade routes. According to predictions, by 2050, half of theworldʼs top 20 economies will belong to the Indo-Pacific region.22
Other select indicators underscoring the dramatic shift in power relativities is China thatis predicted to overtake the United States by 2030 as the world ʼs largest economy in market
exchange rate terms; and India, expected to become the worldʼs third largest economy in US
dollar terms by 2030. Further, The Economist predicts that by 2050, Indonesia will leap frombeing the 16th largest economy into the top 10 economies; Vietnam may become one of the fastest
growing large economies; and; established economies such as Japan, South Korea and Australia
will likely drop in relative GDP rankings. Thus, the Indian Ocean doubling up as a geopoliticaland geo-economic nerve center remains critical to the regional construct, and its primacy. To
a large extent, the Indian Ocean has significantly replaced the Atlantic in order to become theworldʼs busiest and strategically most significant trade corridor.23 Consequently, the major
economies of East Asia have acute dependence on the oil imports across the Indian Ocean from
the Middle East and Africa. The region can be labeled as the artery carrying the resources that
17

Commonwealth of Australia, Defense White Paper 2013, p. 69, available at http://www.defence.gov.au/
whitepaper/201318

Medcalf, n. 16.

19

Rory Medcalf, “Reimagining Asia: From Asia-Pacific to Indo-Pacific,” The Asan Forum, June 26, 2015,
available at http://www.theasanforum.org/reimagining-asia-from-asia-pacific-toindo-pacific/

20

For a detailed debate on India-China relations, see Mohan J. Malik, China and India: Great Power
Rivals, (First Forum Press, Boulder, 2011) p. 9.

21

Medcalf, n. 16.

22

Speech by Australian Minister for Defence, Kevin Andrews, “Australiaʼs Defence Policy and Relationshipwith India,” September 2, 2015, available at https://www.minister.defence.gov.au/minister/kevinandrews/speeches/minister-defence-australias-defence-policy-and-relationship-india

23

Justin Jones, “Submarines and Maritime Strategy – Part 1,” The Strategist, Australian Strategic Policy
Institute, Januar y 29, 2013; and see Commonwealth of Australia, Defense White Paper 2013, p. 13,
available at http://www.defence.gov.au/whitepaper/2013

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Monika Chansoria

fuel the growth of regional economies. However, dependence of this nature can simultaneously
take shape of becoming a strategic vulnerability that could well influence regional partnershipbuilding and diplomatic relations.

Theor y of Liberal Institutionalism and Confidence-Building Measures
There is a need for regional players in the Indo-Pacific to promote security cooperation in a free
and flexible way. Confidence-building through exchanging official dialogue and information
sharing, and consultative frameworks are among the broad generic characterization of confidencebuilding measures (CBMs) being a set of unilateral, bilateral, or multilateral procedural actions
that primarily are put in place to decrease military tensions. Consultative mechanisms include
pre-notification requirements and joint military exercises. CBMs serve as an effective tool tomake a breakthrough towards the larger goal of maintaining stability and conflict resolution.
CBMs, thus, are not necessarily an end in themselves, but rather useful steps to negotiate andimplement processes that could help in securing conditions of stability and preser vation of
status quo in a limited or extended sphere. CBMs, defense cooperation and military engagement
can be clubbed under the liberal institutionalist school, arguing that international cooperation
is not only possible, but also highly desirable, since it reduces transaction costs and makes
interstate relations more predictable. Institutional liberalism, or liberal institutionalism, claims
that international institutions and organizations have aided the possibility of cooperation between
states.24 In this reference, CBMs have emerged as an attractive option because they are low-costand low-risk activities.25 Besides, they can be implemented with limited resources and calculatedrisks. As CBMs are usually reciprocal in nature, they display goodwill26 that will reflect regionally.

Growing Centrality of the Indo-Pacific and Emerging Challenges
Back in 1967, the Australian National University held a conference on the theme, India, Japan,
Australia: Partners in Asia? The conference delegates thought ʻthe future in would be determinedby how China behaved, and how others behaved towards Chinaʼ and were concerned about
Washingtonʼs actions in the region and securing lasting economic growth.27 Fifty years on, thenotion of enhanced cooperation between Australia, India and Japan is back, driven once moreby the challenges posed by Beijing.28 The Indo-Pacific region is undergoing a prolonged anddramatic period of flux and transformation bringing in its own set of opportunities and challenges,
which require flexible and swift mechanisms for cooperation to manage change in the region.29
More than anything else, it perhaps is uncertainty that is becoming the defining feature of
the region with predictions that by 2020, the combined military budgets within the Indo-Pacificwill exceed $600 billion, matching military spending in North America for the first time ever.
The Indo-Pacific is expected to drive 60 per cent of the global increase in defense acquisition,
research and development with 19 countries in the region accounting for one third of global
24

Robert O. Keohane and Lisa L. Martin, “The Promise of Institutionalist Theory,” International Security,
vol. 20, no. 1. p. 39.

25

Simon JA Mason, and Matthias Siegfried, “Confidence Building Measures in Peace Processes,” inManaging Peace Processes: Process Related Questions—A Handbook for AU Practitioners, vol. 1, African
Union and the Centre for Humanitarian Dialogue, 2013, pp. 57-77.

26

Ibid.

27

Ian Hall, “The Australia–India–Japan trilateral: converging interests… and converging perceptions?” The
Strategist, Australian Strategic Policy Institute, March 17, 2017.

28

Ibid.

29

Transcript, “Indo-Pacific Security Paradigm- Australiaʼs Choices,” Australian High Commissioner to
India's Address, National Defence College, New Delhi, May 8, 2017.

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Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean, East China Sea, South China Sea, and the Western Pacificdefense budgets by 2020.30 A prominent projection is that of Chinaʼs likelihood of building 30 new
submarines and another new aircraft carrier.31 These in turn, can be interpreted as vital indicatorsof Beijingʼs strategic priorities that lean towards the entire Indo-Pacific region per se. Beijingʼsmaritime priorities are not likely to remain limited to the “near seas” off Chinaʼs eastern seaboard.
Recall the 2015 Defense White Paper which suggested China not necessarily remaining confined
to East Asian waters, adding the role of “open seas protection” to the PLA Navyʼs existing taskof “offshore waters defense”. Additionally, the Chinese terminology of turning to the “far seas”
is increasingly apparent in the South China Sea stretching till the Indian Ocean with instancesof repeated deployments in the recent past. Not surprisingly, regional concerns are mounting
regarding the rise of China, the direction and intent of which, continues to remain ambiguous.
All of this is to say that there are numerous challenges at a time of great transition in statesʼ
economic activity, strategic weight and international ambitions. Crises and transnational issues
donʼt respect the boundaries of traditional groupings or stay neatly in a single region.32 Therefore,
smaller group diplomacy / ʻminilateralismʼ will matter more over time in the Indo-Pacific because
every strategic issue that the region is confronted with, is different and will engage different
countries in different combinations.33
Teng Jianqun, Director of the Depar tment for American Studies at China Institute ofInternational Studies, presents the case for an understanding of Chinaʼs maritime policy which
requires at least two approaches: a historical one and a ʻrealisticʼ one (i.e. an approach thatcombines interests and pragmatism). For centuries, there has been a debate in China whether
the country should ʻgo to seaʼ or should ʻremain on the continentʼ. This essentially implies theʻblueʼ vs ʻyellowʼ civilization argument. Teng highlights that China eventually would become astrong maritime power, when former President Hu Jintao told the National Congress, “We should
enhance our capacity for exploiting marine resources, develop the marine economy, protect themarine ecological environment, resolutely safeguard Chinaʼs maritime rights and interests, andbuild China into a maritime power.”34 According to the Chinese perspective, the maritime policyof China today, hinges on sovereignty issues and protection of its maritime interests and rights.
After China adjusted its maritime policy under the current leadership of President Xi Jinping, themajor transformation visible today is that of China placing security and sovereignty right on topof its foreign policy agenda.35 Teng further asserts that “no matter whether they like it or not, theUnited States and other countries should have a new vision towards China ... The reason for sucha change is simple: this is not an era of spheres of influence.”36
In the above reference, to an extent, it is the expansion of Chinaʼs interests, diplomacy andstrategic reach especially into the Indian Ocean that defines the Indo-Pacific most of all. It isnotable that Chinaʼs own overarching geo-economicsʼ thrust since 2013 – with the Belt and Road
initiative – includes an ambition to extend China-centric infrastructure and strategic partnerships
into and through the Indian Ocean. The PRCʼs preference for combining military intimidation andstealth economic infiltration in redrawing borders and rewriting history is visible the world over,with its nearly uniform policy of injecting investments and reaping disproportionate economic
30

For more details see, Deloitte Global Defense Outlook 2016, Shifting Postures and Emerging Fault Lines.

31

Ibid.

32

Transcript, n. 29.

33

Ibid.

34

President Hu Jintao, Report to the 18th National Congress, Chinese Communist Party, November 8,
2012.

35

Teng Jianqun, “Understanding Chinaʼs Maritime Policy: 21st Century Maritime Silk Road,” in Brewstered., n. 16.

36

Ibid.

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Monika Chansoria

and strategic benefits out of it.37 Strikingly reminiscent of mercantilism, this protracted endeavor
led to a steep rise in Beijingʼs capacity to invest further and hold unprecedented foreign exchange
reserves. The mercantilist policy approach adopted by Beijing can be credited for it becoming
a global economic powerhouse that is launching strategic ambitions well beyond its immediate
territory and shores.38
China ʼ s much pronounced Maritime Silk Road strategy initiative needs to be read in
conjunction with the cumulative maritime activity of the PLA Navy (PLAN) and its mounting
forays into the Indian Ocean ̶ the third-largest water body in the world. The expanding strategic
naval footprint in the Indian Ocean by means of acquiring more maritime bases and berthingfacilities is a core pillar of Chinaʼs ports policy. The PLA Navy could well build as many as 18
overseas naval military bases in the greater Indian Ocean area39. The long shadow of Chinaʼs
ports policy in the Indian Ocean being currently driven and characterized by both, state- andprivate-sponsored “infrastructure investment” foretells strategic ramifications militarily, as thesefacilities shall end up becoming communication and surveillance facilities, in addition to being
repair and replenishment centers for the Chinese Navy. This underscores the intransigent courseof Beijingʼs influence in South Asia and the Indian Ocean.40 Palpably, Rory Medcalf terms the
Maritime Silk Road as the ʻIndo-Pacific with Chinese characteristicsʼ.41

Indo-Japan Defense Framework
As far as India is concerned, its resolute posture and approach highlights the growing
convergence of political, economic and security interests with stakeholders in the Indo-Pacificand Indian Ocean Regions that remain critical to Indiaʼs strategic objectives. The momentum atwhich the Indo-Pacific has assumed focus in New Delhiʼs strategic thinking is unmistakable, bothcharacteristically and substantively. And Japan, surely, remains among the key frontal pivots ofthis focus. Japanese Prime Minister Shinzo Abe and Indian PM Narendra Modi have long beenin agreement to secure stability in the Indo-Pacific region, which remains indispensable to Tokyo
and New Delhiʼs national security. Indiaʼs growing regional standing has influenced its integration
with key stakeholders in the Indo-Pacific region. Re-orientation of Indiaʼs strategic focus from a“Look East” to an “Act East” policy, finds manifestation in the ensuing approach, by and large,
towards the Indo-Pacific. What seems more pronounced is that New Delhi is likely to continue
to pursue a sovereign foreign policy path and undertake decisions that best suit its national
security interests in light of the hard-power priorities of naval modernization by nations in theregion. Recall an Indian Defence Ministry statement five years ago, which argued, “As risingnations ... become more powerful, emerging risks require greater attention ... India remains
conscious and watchful of the implications of Chinaʼs militar y profile in the immediate and37

Monika Chansoria, “In Africa, it is China vs India and Japan,” The Sunday Guardian, July 8, 2017.

38

Ibid.

39

According to reports in the Chinese media, Walvis Bay will be one of 18 naval bases that will beestablished in various regions; this has been cited in The Namibian, “Chinese naval base for Walvis Bay,”
November 19, 2014, available at https://www.namibian.com.na/index.php?id=130693&page=archiveread ; also see, China Daily Mail, “China to build 18 naval bases in the Indian Ocean,” November 22,
2014, available at https://chinadailymail.com/2014/11/22/china-to-build-18-naval-bases-in-indianocean/ ; and see, Kwame A. Insaidoo, China: The New Imperialists & Neo-Colonialists in Africa? (Author
House Publishers, 2016); also see, Monika Chansoria, “China eyes 18 overseas naval bases,” The
Sunday Guardian, August 15, 2015, available at http://www.sundayguardian.com/analysis/china-eyes18-overseas-naval-bases

40

Monika Chansoria, “China eyes 18 overseas naval bases,” The Sunday Guardian, August 15, 2015.

41

Medcalf, n. 19.

19Japan Review Vol.1 No.2 Winter 2017

Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean, East China Sea, South China Sea, and the Western Pacificextended neighborhood.”42 Besides, in a public interaction during his 2014 Tokyo official visit,
Prime Minister Modi remarked on the presence of 18th century ʻexpansionist mindsetʼ amongcertain regional actors – that of encroaching upon other countries, intruding in othersʼ waters,
and capturing territory. This was widely interpreted as an oblique reference to Chinaʼs recent andrecurring actions in the East China Sea and South China Sea.
The September 2014 Tokyo Declaration on the Special Strategic and Global Partnership
acknowledged converging global interests and critical maritime inter-connections between
India and Japan. It was in this declaration that both sides attached special importance to theregularization of bilateral maritime exercises as well as Japanʼs continued participation in the
India-US Malabar series of naval exercises. Speaking many years back while addressing theIndian Parliament in August 2007, Prime Minister Shinzo Abe averred, “ ... a strong India is in
the best interest of Japan, and a strong Japan is in the best interest of India.” The role of India
and Japan for stability, prosperity and engagement in the Indo-Pacific region by means of the “ActEast Policy,” and “Free and Open Indo-Pacific Strategy” shall further be consolidated throughbilateral and multilateral security and defense cooperation mechanisms. The entry into forceof the two Defense Framework Agreements concerning the Transfer of Defense Equipment
and Technology and concerning Security Measures for the Protection of Classified Militar y
Information was considered a welcome move. Japanʼs readiness to provide its state-of-the-art
defense platform, US-2 amphibian aircraft is a key development and shall be an important bilateral
security benchmark.
Further, the defense engagement needs to be expanded through greater two-way collaborationand technology cooperation, co-development and co-production, by expediting discussions
for determining specific items through the Joint Working Group on Defense Equipment andTechnology Cooperation.43 Former Japanese Vice-Minister of Defense, Masanori Nishi has
pointed out that Japanese Maritime Self-Defense Force (MSDF) deployment has significant
reliance on Indian logistical support that would provide more opportunities for Japanese vessels
to visit Indian ports during voyages across the Indian Ocean. Nishi opines that Japan could
play an active role in stabilizing the Indian Ocean and reinforcing a rules-based order in areas
including: 1) Engagement with key Bay of Bengal states such as Myanmar, Bangladesh and Sri
Lanka through investments in infrastructure and capability-building; 2) Support for emerging
regional institutions in the Indian Ocean such as the Indian Ocean Rim Association and the Indian
Ocean Naval Symposium; 3) Maritime capacity-building among Indian Ocean island states andother developing states in the Indian Ocean, with a focus on blue economy; and 4) Enhanced role
for the Japanese Coast Guard.44
This emergent realpolitik reflected yet again in the November 2016 joint statement between
Prime Ministers Abe and Modi that highlights safeguarding global commons in the maritime,
space and cyber domains. Tokyo and New Delhi remain committed to respecting freedomof navigation and over flight, and unimpeded lawful commerce, based on the principles ofinternational law, as reflected notably in the United Nations Convention on the Law of the Sea(UNCLOS), which establishes the international legal order of the seas and oceans. In this context,
all parties need to resolve disputes through peaceful means without resorting to threat or use offorce and exercise self-restraint in the conduct of activities, and avoid unilateral actions that raise
42

Indian Ministry of Defence, Annual Report 2011-2012, Government of India, 2012, available at http://india.gov.in/outerwin.php?id=http://mod.nic.in/reports/welcome.html pp. 6-9.

43

Japan-India Joint Statement, November 11, 2016, Ministry of Foreign Affairs, Tokyo; also see, Annual
Report 2015-16 Ministry of Defence, Government of India.

44

Masanori Nishi, “The role of Japan in Indian Ocean security: A Japanese perspective,” in Brewster, ed., n.
16.

20Japan Review Vol.1 No.2 Winter 2017

Monika Chansoria

tensions. Japan and India are in agreement that effective implementation of the 2002 Declarationon the Conduct of Parties in the South China Sea and early conclusion of the negotiations toestablish a Code of Conduct in the South China Sea in accordance with universally recognizedprinciples of international law. What featured prominently in the Japan-India Joint Statement
was underscoring the UNCLOS, freedom of navigation and over flight and unimpeded lawfulcommerce in international waters. The ongoing strategic upheaval in the South China Sea caused
by unilateral actions such as massive land reclamation of submerged reefs, and militarizationof that converted land has notched up regional tensions, and the criticality of the sea lanes ofcommunication, that underpin vitality of seeking to ensure continuing stability in the Indo-Pacific.
This resonates well with the larger goal of cooperative security – which is not the creation ofstability at any price.45
During the latest India-Japan Annual Defense Ministerial Dialogue, held in September 2017,exchanges between Japan Ground Self Defence Force and the Indian Army were agreed upon,
especially to develop counter-terrorism as a key area of common interest. In the context ofenhanced co-operation between the two ground forces, it was decided to explore a joint field
exercise in the field of counter-terrorism between the Indian Army and the JGSDF in 2018. In
the maritime realm, the success of Japan-India-US Trilateral Maritime Exercise Malabar 2017
held in July was welcomed and Japan expressed its intention to have state-of-the-art Japanese
assets including P-1 to participate in the Malabar 2018. The two sides shall also consider inclusionof Anti-Submarine Warfare (ASW) training to expand cooperation and pursue exchanges andtraining by ASW aviation units such as P-3C. The Japanese side proposed inviting the Indian Navyto mine-countermeasures training held by the JMSDF.46 The two countries agreed to encourage
equipment collaboration including defense and dual-use technologies and identified specificareas of collaboration in the field of defense equipment and technology cooperation, includingcommencing technical discussions for research collaboration in the areas of unmanned groundvehicles and robotics.47

Consultative Trilateral Mechanisms and Joint Maritime Maneuvers in the IndoPacific
The steady upward trajector y in formal and informal cooperation between India, Japan, andAustralia has been shaped by economic complementarity, as well as by political fundamentals
such as the tradition of supporting the rule of law and international norms, including respect
for state sovereignty and multilateral cooperation, democratic governance [in that, them being
functioning liberal democracies] and multilateralism.48 In addition to their geography, eachcountry is strongly embedded in the Asian region in terms of history and contemporary interests,
but equally, each has a national identity that incorporates an extra-regional identity.49
With the “Indo-Pacific Region” featuring prominently in the very title of the 2025 joint visionstatement between India and Japan, the writing on the wall is apparent. A vital demonstrationof Indiaʼs growing maritime focus extending beyond the Indian Ocean comes with Japanʼ sparticipation in the trilateral maritime exercise [Malabar] between India, US and Japan. The
bilateral Indo-US Malabar naval maneuvers got a boost in 2014, after being upgraded to a trilateral
45

Moodie, n. 3.

46

For more details see, Joint Press Statement on India-Japan Annual Defence Ministerial Dialogue, Press
Information Bureau, Government of India, Ministry of Defence, September 6, 2017, available at http://
pib.nic.in/newsite/PrintRelease.aspx?relid=170560

47

Ibid.

48

Nilsson-Wright, n. 15.

49

Ibid.

21
Japan Review Vol.1 No.2 Winter 2017

Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean, East China Sea, South China Sea, and the Western Pacificinitiative, this time including the Japanese navy. Since 2014, Exercise Malabar has involved thenavies of India, and the United States, along with Japanʼs Maritime Self-Defense Forces. The
trilateral exercises held in 2014, 2015, 2016, and most recently in 2017, have witnessed greaterinter-operability and integration between the three navies. With the involvement of three aircraft
carriers, the 2017 Malabar naval initiative was by far the biggest, since this exercise was firstlaunched in 1992. Common political values, principles, democratic systems and convergence onregional and world views, renders the Malabar exercises carrying a political message that seeks
to convey India, US and Japanʼs orientation towards the future of security in maritime Indo-Pacific.
A priority area for trilateral cooperation lies in intelligence, sur veillance and reconnaissance(ISR) to improve maritime domain awareness, and expanding nascent links between therespective Coast Guards of these nations. The vastness of distances across the Indian Ocean
makes tracking of vessels and aircrafts a difficult task, which is beyond the resources of a single
country.50 To increase involvement in the existing maritime surveillance systems, such as the
Malacca Straits Patrol (MSP) and the Regional Cooperation Agreement on Combating Piracy
and Armed Robbery against Ships in Asia (ReCAPP), Secretary General of the Japan Institutefor National Fundamentals, Seiji Kurosawa, suggests setting up a new maritime sur veillanceframework in which Indo-Japanese armed forces can assume a leading role.51 Prioritizing creationof a continuous surveillance system, and expanding the scope of the multilateral Malabar naval
maneuvers by expanding Japanʼs defense role and capability and anti-submarine warfare drills are
the next vital steps in the way forward.
To an extent, a shared experience of having operated in the shadow of great-power politics,
often in a subordinate or supporting role to more influential actors has helped in facilitating
this trilateral cooperation.52 A report by the United States Studies Centre titled Australia, India
and the United States: The Challenge of Forging New Alignments in the Indo-Pacific argues that
Canberra must promote a trilateral security relationship with Washington and Delhi, focusedon the Indian Ocean. The idea of an Indo-Pacific ʻstrategic arcʼ reinforces Indiaʼs role as a key
regional partner that could eventually rank alongside Australiaʼs traditional partners in the Asia
Pacific.53 The Japan-India-US Foreign Ministersʼ Trilateral Dialogue as well as the inaugural
Japan-India-Australia Trilateral Dialogue strongly echoes the twin themes of regional connectivity
and maritime security. These trilateral dialogue mechanisms will contribute to a balanced, open,
inclusive, stable, transparent and rules-based economic, political and security architecture in the
Indo-Pacific region.54 The recurring strains on durability of the regional and international ordermake it more incumbent upon India, Japan, and Australia to develop new forms of cooperation to
hedge against uncertainty, consolidate and widen their existing bilateral partnerships, and explore
new opportunities for trilateral cooperation.55 This ʻcreative minilateralismʼ as John Nilsson-Wrightstates, could best be put into practice in case of the Malabar naval exercises along with the US.
As key regional stakeholders, Tokyo, Canberra and New Delhi should look towards capitalizingon the positive momentum of their strategic and defense relationship, deepening engagement
and increasing consistency and complexity of activities. For India to consolidate its position in
50

David Brewster, “Security in the Indo-Pacific Needs Indiaʼs Helping Hand,” The Wire, September 5,
2016.

51

Seiji Kurosawa, “Challenges in Maintaining the Rules-based Maritime Order in the Indo-Pacific,” JapanIndia Bilateral Dialogue, May 23, 2017, available at http://en.jinf.jp/news/archives/4898

52

Ibid.

53

Brewster, n. 50.

54

As cited by the Press Information Bureau, Government of India, Prime Minister's Office, November 11,
2016.

55

Nilsson-Wright, n. 15.

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Monika Chansoria

the Indo-Pacific, Japan and Australia for sure, will have to find greater prominence, both at thebilateral and multilateral levels. Multilaterally, India, Australia and Japan, notwithstanding theirvery substantive differences in population and economic power56, share an identity informallydefined as ʻmiddle powersʼ. This identity is less rooted in raw, quantifiable expressions of global
and/or regional influence, but more in a common preference for pragmatic decision-making,rejection of doctrinaire policymaking, and support for humanitarian and non-traditional security
cooperation, including a commitment to constructive dispute management and mediation.57
The Third Japan-Australia-India Trilateral Dialogue was held in Canberra in April 2017 toexchanging views on wide ranging issues including regional affairs in the Indo-Pacific and more
specifically on Japan-Australia-India trilateral cooperation. The trilateral arrangement (JapanAustralia-India) will prove to being among the most significant vehicle for shoring up regional
stability, norms and institutions. Expanding cooperation among the partners and synchronizing
capacity building efforts and outreach across the region shall remain future steps that thetrilateral can take to bolster the regional order. A rules-based order should be upheld, but soshould processes, by means of which, all get a say in suggesting how those rules should be set.
Beijing cannot be allowed to undermine a rules-based order, by seeking to replace ʻrule of lawʼand enforce ʻrule of forceʼ. Upholding values of liberalism and democracy should be the ultimate
objectives of the trilateral mechanisms. Perhaps the most vital area where the rule of law needs
to be enforced at present is in the maritime realm – i.e., in maintaining a rule-based maritime
order.58
Co-opting Japan as a permanent member of the Malabar Trilateral Initiative and Indiaʼsaccreditation of its Ambassador to a separate and dedicated diplomatic mission at the ASEAN
are manifestations of Delhiʼs intent. Moreover, India and Japan remain committed to strengthen
the East Asia Summit (EAS) and make it a more dynamic proactive process and platform to
discuss regional political, economic and security issues. New Delhi and Tokyo also are working
towards convening the EAS Ambassadorsʼ meeting in Jakarta and establishment of the EAS Unit
within the ASEAN Secretariat. Maritime cooperation and regional connectivity within the EAS
framework needs to be enhanced further. This only highlights the significance and vitality ofregional architecture through ASEAN-led fora such as ASEAN Regional Forum, ASEAN Defense
Ministersʼ Meeting Plus, Expanded ASEAN Maritime Forum and their coordination to tackle
global and regional challenges including maritime security.59
Corresponding with the “Act East” policy approach and course, the regular dispatch ofwarships, including frontline destroyers and stealth frigates on long overseas deployment to
the Indian Ocean and South China Sea verify Indiaʼs renewed maritime intent.60 The noticeable
presence of the Indian flag on these strategically vital points, reiterates that New Delhi is fully
cognizant of the ongoing movements in its strategic backyard, being a major stakeholder there,
and is all set to emerge as a geared up player on the scene, and not a reluctant one. Given its
7,500 km coastline, 1,200 islands and 2.4 million sq km exclusive economic zone (EEZ), Indiaʼsreorientation and demonstration of being a consistent security partner for the region highlights
56

Pricewaterhouse Coopers LLP (2015), The World in 2050. Will the shift in global economic power
continue? p. 3, available at https://www.pwc.com/gx/en/issues/the-economy/assets/world-in-2050february-2015.pdf

57

T. Wilkins, “Australia and middle power approaches to Asia Pacific regionalism,” Australian Journal of
Political Science, vol. 52, n. 1, 2017.

58

Hall, n. 27.

59

Japan-India Joint Statement, November 11, 2016, Ministry of Foreign Affairs, Tokyo; also see, Annual
Report 2015-16 Ministry of Defence, Government of India.

60

Annual Report 2016-17, Ministry of Defence, Government of India.

23
Japan Review Vol.1 No.2 Winter 2017

Regional Cooperative Security in the Indo-Pacific:
Synergizing Consultative Mechanisms across the Indian Ocean, East China Sea, South China Sea, and the Western Pacificits maritime interests and stakes in the larger Indo-Pacific. Notably, Indiaʼs first Tri-Ser viceAndaman and Nicobar Command in the southeast corner of the bay – lies just 90 miles (145kilometers) from Indonesiaʼs Aceh Province, bordering the strategically vital Strait of Malacca.
The Indo-Japanese-US equation should work towards integrating Australia in the existing
Malabar Trilateral and upgrade it to a Quadrilateral Initiative. The term Indo-Pacific brings India, Japan, Australia and the US into the strategic frame of regional interests, stakes, and reflects
greater institutional involvement. It is well accepted that policy dialogue works best when supported by practical cooperation including the existing bilateral frameworks for security cooperation that should be discussed and promoted to trilateral and quadrilateral initiatives to create aregional order that is flexible, resilient and vital to secure a collective future.61 Australia is alreadyseeking to join this grouping, where it has previously held non-permanent membership. During
a visit to Tokyo in April 2017, Australian Defense Minister, Marise Payne publicly acknowledged
Canberraʼs desire to join the naval maneuvers stating, “Australia is very interested in a quadrilateral engagement with India, Japan and the United States.”62 As the strategic games unfold in theregion, incorporating Australia will prove to being an invaluable asset, and India, US, and Japan
should not hand over a quasi-walkover to nations which are attempting to alter/change the existing status quo in the region, be it in the East China Sea, the South China Sea, or the Himalayanborderlands. It has been confirmed that India will be participating in Australiaʼs multi-lateral air
Exercise Pitch Black in northern Australia in 2018, and Australiaʼs request of participating in themultilateral Malabar maritime exercise to be undertaken by India, Japan, and the United States,
should positively be accepted at the next available opportunity.
The ominous shadow of China has been looming large on the “Quad” since 2007 when
Australiaʼs then government led by Kevin Rudd took the call of withdrawing from the exercises
and accompanying security talks following negative feelers received from Beijing. Today, adecade later, the situation can result differently by means of prudent and futuristic scenariobased thinking and approach. Australian Prime Minister Malcolm Turnbullʼs government has
been known to throw its support behind a Japanese initiative to re-establish a security dialogue
between the US, India, Japan and Australia. This underscores that an Indo-Pacific security
structure might just be evolving in reference to another such strengthening equation – namely
between China and Russia. The 2016 Joint Sea naval exercise conducted by Russia and China
was interpreted as maritime signaling by Beijing and Moscow that involved PLAʼs Nanhai Fleet
and was Chinaʼs biggest naval drill with Russia. Also, it was the first time that Russian andChinese naval contingents met for combat drills in the South China Sea, shortly following the
pronouncement of the verdict by the Permanent Court of Arbitration at The Hague, on the South
China Sea Arbitration initiated by The Philippines. The Russian Navy has co-opted China as a ʻcore
partnerʼ in its new maritime doctrine, indicating shifting realignments in the regional balance ofmaritime politics.

Conclusion
In the above setting, managing Chinaʼs rise shall remain the foremost challenging task forstakeholders. Although, the Peopleʼs Republic of China is more integrated into, and supposedly
more cooperative with global political and economic systems than ever before in its histor y,
growing uneasiness in the Indo-Pacific region are indicators of Chinaʼs increasing economic

61

Transcript, n. 29.

62

Minister for Foreign Affairs statement, Transcript released by the Australian Embassy, Tokyo, April 20,
2017.

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Monika Chansoria

and military power, and lack of Chinaʼs adherence to regional and international norms.63 The
region, by and large, views the problem of Chinaʼs rising power as a root source of instability
in the greater Indo-Pacific region. With a rising regional and global footprint, coupled with astrategic outreach that is being backed by a strong and robust militar y characterized by the
Chinese leadership as being essential in achieving great power status, China today is far more
focused and adept at supporting missions beyond its immediate periphery. This includes power
projection, development and focus of Chinaʼs naval capabilities for long-range naval deployments.
Issues pertaining the South China Sea including land reclamation, landing civilian aircraft andmilitary transport aircraft, and the continued constructions at Chinaʼs military outposts in thisregion shall definitely be the highlight among numerous tensions. Besides, investments in ports
across various locations in the Indo-Pacific stretching from Southeast Asia to the Indian Ocean
Region have critical strategic ramifications that shall likely shuffle security alignments regionally.
All these coupled with pure military strategies such as anti-access/area-denial capabilities, longrange precision strikes, and surface and undersea operations, will render tensions across the
Indo-Pacific to only rise further.
What seems more and more apparent and ostensible, is Chinaʼs management of leveraging its
growing economic and military power to assert over sovereignty claims with repeated attempts
to change or alter the existing status quo, below the threshold of actual conflict, and bid to create
a new/fresh status quo situation – be it over features in the East China Sea, South China Sea, orover the Himalayan borderlands. By means of balancing and mobilizing economic, technological,
and human resources to translate into military/strategic power64, Chinaʼs domestic politics, has
witnessed pressure on the central government to craft a strong Chinese national identity.
Based on the above geo-strategic graph of events, the Indo-Pacific, calls for enhanced security
cooperation between regional democracies, i.e., India, Japan and Australia. Ensuring that dialogue
participation will remain the lynchpin for mapping out a shared vision for a futuristic Indo-Pacificstrategy, the trilateral must work together to build the political, economic and military capacity ofregional states to retain and exercise their autonomy, defend their interests and identify common
regional security challenges that straddle a geographic space extending from the Indian Ocean to
the Pacific Ocean, and incorporate risks in South, Southeast and Northeast Asia.
Cooperative security shall only be realized when nations develop a sense of a common future,
based upon shared political systems, forms of representation and governance, institutions andvalues that foster a sense of a security based on global commons and rules. Regular militaryand political dialogue, confidence-building and deterrence-enhancing regional exercises will be
crucial in offsetting traditional security threats and challenges. Maritime security and stability
in the Indo-Pacific can be rendered more effective with converging themes in the realms ofmaritime security and cooperation. These will constitute to being the benchmark in identifying
potential challenges in the Indo-Pacific that remain common to major players. Also, it will be
critical in analyzing gaps in the corresponding domestic and regional policy frameworks. Growing
symmetry in defense cooperation will help creating stronger capabilities to deal with common
maritime threats and challenges in the Indo-Pacific region – through enhanced disaster response
and mitigation capacities. Exploring and emphasizing the potential arenas of maritime stability
and security between India and Japan amid the respective triangular equations, i.e., India-JapanUS, and Japan-Australia-India, will be the major regional equations that shall determine thebalance of power and future roadmap of Indo-Pacific security and stability.

63

Alastair Iain Johnston, “Is China a Status Quo Power?” International Security, vol. 27, no. 4, Spring 2003,
pp. 5-56.

64

Ibid.

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Japan Review Vol.1 No.2 Winter 2017

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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International Law and Japan’s Territorial Disputes

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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International Law and Japan’s Territorial Disputes

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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Raul (Pete) Pedrozo

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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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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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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International Law and Japan’s Territorial Disputes

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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Documents: Japan’s Major Foreign Policy Statements (2017)[Japan-U.S.] Joint Statement *February 10, 2017

President Donald J. Trump and Prime Minister Shinzo Abe held their first official meeting
today in Washington D.C. and affirmed their strong determination to further strengthen the U.S.Japan Alliance and economic relationship.

U.S.-Japan Alliance
The unshakable U.S.-Japan Alliance is the cornerstone of peace, prosperity, and freedom
in the Asia-Pacific region. The U.S. commitment to defend Japan through the full range of
U.S. military capabilities, both nuclear and conventional, is unwavering. Amid an increasingly
difficult security environment in the Asia-Pacific region, the United States will strengthen its
presence in the region, and Japan will assume larger roles and responsibilities in the alliance.
The United States and Japan will continue to implement and expand defense cooperation as laidout in the 2015 U.S.-Japan Defense Guidelines. The United States and Japan will further enhancecooperation with allies and partners in the region. The two leaders underscored the importanceof maintaining international order based upon the rule of law.
The two leaders affirmed the commitment of the United States and Japan to the realignmentof U.S. forces in Japan, to ensure the long-term, sustainable presence of U.S. forces. They
affirmed that the United States and Japan are committed to the plan to construct the Futenma
Replacement Facility at the Camp Schwab/Henoko area and in adjacent waters. It is the only
solution that avoids the continued use of Marine Corps Air Station Futenma.
The two leaders affirmed that Article V of the U.S.-Japan Treaty of Mutual Cooperation and
Security covers the Senkaku Islands. They oppose any unilateral action that seeks to undermine
Japan's administration of these islands. The United States and Japan will deepen cooperation
to safeguard the peace and stability of the East China Sea. The two leaders underscored theimportance of maintaining a maritime order based on international law, including freedom ofnavigation and overflight and other lawful uses of the sea. The United States and Japan oppose
any attempt to assert maritime claims through the use of intimidation, coercion or force. The
United States and Japan also call on countries concerned to avoid actions that would escalate
tensions in the South China Sea, including the militarization of outposts, and to act in accordancewith international law.
The United States and Japan strongly urge North Korea to abandon its nuclear and ballistic
missile programs and not to take any further provocative actions. The U.S.-Japan Alliance is fully
capable of ensuring the security of Japan. The United States is fully committed to defending its
homeland, forces, and allies, through the full range of U.S. military capabilities. The two leaders*

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51Japan Review Vol.1 No.2 Winter 2017

Documents: Japan’s Major Foreign Policy Statements (2017)affirmed the importance of an early resolution of the abductions issue. They also affirmed theimportance of trilateral cooperation among the United States, Japan and the Republic of Korea.
The United States and Japan are also committed to rigorous implementation of the U.N. Security
Council resolutions on North Korea.
The United States and Japan will strengthen their bilateral technological cooperation on
defense innovation to meet the evolving security challenges. The United States and Japan will
also expand bilateral security cooperation in the fields of space and cyberspace. The United States
and Japan also strongly condemn terrorism in all forms and manifestations and will enhance ourcooperation to fight against terrorist groups that pose a global threat.
The two leaders instructed their foreign and defense ministers to convene a Security
Consultative Committee (SCC: “2+2”) meeting to identify ways to further strengthen the U.S.-Japan
Alliance, including through the review of the respective roles, missions, and capabilities of thetwo countries.

U.S.-Japan Economic Relations

The United States and Japan represent 30 percent of the worldʼs GDP and share an interest in
sustaining a strong global economy, ensuring financial stability, and growing job opportunities. To
advance these interests, the President and the Prime Minister reaffirmed their commitments tousing the three-pronged approach of mutually-reinforcing fiscal, monetary, and structural policies
to strengthen domestic and global economic demand.
The two leaders discussed opportunities and challenges facing each of their economies andthe need to promote inclusive growth and prosperity in their countries, the Asia-Pacific region,and the world. They emphasized that they remain fully committed to strengthening the economic
relationships between their two countries and across the region, based on rules for free and fairtrade. This will include setting high trade and investment standards, reducing market barriers,
and enhancing opportunities for economic and job growth in the Asia-Pacific.
The United States and Japan reaffirmed the importance of both deepening their trade andinvestment relations and of their continued efforts in promoting trade, economic growth, andhigh standards throughout the Asia-Pacific region. Toward this end, and noting that the UnitedStates has withdrawn from the Trans-Pacific Partnership, the leaders pledged to explore how best
to accomplish these shared objectives. This will include discussions between the United States
and Japan on a bilateral framework as well as Japan continuing to advance regional progress on
the basis of existing initiatives.
In addition, the two leaders expressed interest in exploring cooperation across sectors that
promote mutual economic benefits to the United States and Japan.
The two leaders decided to have their countries engage in an economic dialogue to discussthese and other issues. They also reaffirmed their intent to continue cooperation in regional andglobal fora.

Invitations to Visit Japan
Prime Minister Abe invited President Trump for an official visit to Japan during the course ofthis year, and also welcomed an early visit of Vice President Pence to Tokyo. President Trump
accepted these invitations.

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24th Japan-EU Summit Joint Statement *Brussels, 6 July 2017
Mr. Shinzo Abe, Prime Minister of Japan, Mr. Donald Tusk, President of the European
Council and Mr. Jean-Claude Juncker, President of the European Commission, met in Brussels
today for the 24th Summit between Japan and the European Union (EU) and issued the following
statement:"We, the leaders of Japan and the EU, met today in Brussels to reaf firm the strength of ourStrategic Partnership and to demonstrate our resolve to work together for peace, prosperity and arules-based international order. We remain united by our common values of democracy and the ruleof law and by our determination to promote together an open and fair global economy that benefits
everyone. These are the foundations of our political and economic Strategic Partnership for peace,
prosperity and a rules-based international order – serving to unite us bilaterally and also to make us
stronger internationally.
Today marks the beginning of a new chapter in the Strategic Partnership between Japan andthe EU as we celebrate the agreement in principle of the Economic Partnership Agreement and theStrategic Partnership Agreement at political level.
The highly ambitious and comprehensive Economic Partnership Agreement will consolidate oursolid and evolving trade and economic partnership and pave the way for the future. It will bring our
two economies closer by addressing issues related to market access for goods, services and investment,
procurement including railways, as well as those related to non-tariff measures and the protection ofgeographical indications as well as intellectual property rights. This agreement will allow us to renew
and strengthen our joint commitment to international standards for an even closer cooperation in the
future. At the same time, with this agreement in principle of the Economic Partnership Agreement,
Japan and Europe demonstrate to the world - and to our citizens - that free trade, with clear andtransparent rules fully respecting and enhancing our values, remains an important tool to promote
prosperity in our societies. The Japan-EU Economic Partnership Agreement will constitute the basis
for a strategic partnership for free and fair trade, against protectionism.
We tasked our respective negotiating teams with a rapid finalisation of the agreement that would
allow for the internal procedures to start soon, both in Japan and the EU.
With shared responsibility for achieving peace, stability and prosperity of the world, Japan and theEU also reached agreement in principle of theStrategic Partnership Agreement. This will provide a framework for an even deeper and morestrategic Japan-EU cooperation that enables our partnership to grow and to face new types ofchallenges.
At a time where the rules-based international order is under increasing pressure, the Economic
Partnership Agreement and the Strategic Partnership Agreement recapture the shared values andcommon principles that form the foundation of the Japan-EU partnership, including human rights,
democracy and the rule of law.
We took the opportunity before attending the G20 Hamburg Summit tomorrow to discuss ourcooperation in other important areas, including on our joint efforts to address the global threat ofclimate change and other international challenges."*

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Documents: Japan’s Major Foreign Policy Statements (2017)

Japan-UK Joint Vision Statement *Japan and the UK are global strategic partners, sharing common interests as outward-looking
and free-trading island nations with a global reach, committed to the rules-based international
system. We share the fundamental values of freedom, democracy, human rights and the ruleof law. Building on our historic ties, we have today committed to elevating our security andprosperity partnership to the next level, focusing on the following areas.

Ensuring International Security

Japan and the UK are each otherʼs closest security partners in Asia and Europe respectively,
and security and defence is a cornerstone of our relationship. We strongly oppose any unilateral
actions that seek to increase tension or change the status quo by force or coercion. In light ofsuch serious challenges, including the unprecedented threat posed by North Korea, we arecommitted to elevating our security cooperation to the next level, and to tackling our sharedchallenges together globally, and particularly in the Indo-Pacific region.
That is why today we have issued the “Japan-UK Joint Declaration on Security Cooperation” toenhance our coordinated response to challenges to the rules-based international system, throughour increased security and defence cooperation in such areas as joint defence forces exercises,
defence equipment and technology, capacity- building of developing countries, cyber security,
space, countering terrorism and violent extremism internationally, including aviation security, andcombating serious and organised crime, including modern slavery. To support this, Japan andthe UK will build on the Acquisition and Cross-Servicing Agreement (ACSA) and, as a priority,
work on a framework to improve administrative, policy and legal procedures to facilitate joint
operations and exercises.
We will cooperate to ensure the security and success of the Rugby World Cup 2019 andOlympic and Paralympic Games Tokyo 2020, building upon the recent experience of the UK in
hosting such major international events.

Enhancing Economic PartnershipJapan and the UK are among the strongest global champions of free trade. It is more
important now than ever that we work together to promote rules-based free and fair trade, for the
benefit of our own people and economies, and in support of global prosperity.
Building on our strong existing bilateral trade and investment relationship, we have today
decided to enhance Ministerial engagement to realise our shared long-term vision to deepen ourbilateral prosperity relationship. We have set out how we will achieve this shared ambition in our“Japan-UK Joint Declaration on Prosperity Cooperation”.
We will continue to champion the early signature and entr y into force of the Japan-EU
Economic Partnership Agreement. This will be our immediate priority. As the UK exits the EU,
we will work quickly to establish a new economic partnership between Japan and the UK basedon the final terms of the EPA.
The UK is clear that it wants a smooth and orderly transition to its new relationship with the
EU and our key partners, including Japan.
The UK welcomes the many high value and high profile Japanese investments in the UK, andwill work closely with Japanese business and government to build on these investments in future.

Promoting Innovation and Growth
Our vision for a deepened prosperity partnership will also harness our shared strengths in*

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54Japan Review Vol.1 No.2 Winter 2017

innovation, to deliver world-leading economies and societies that work for all in the 21st Century.
We will drive industrial productivity, lead the worldʼs digital economy, build on our strategic
partnership in the civil nuclear energy area, show the way for clean energy, and promote quality
infrastructure with open and fair access for enhanced regional connectivity, as well as pioneer andshare new approaches to demographic and health challenges, and ensuring gender equality.
We will also work together to tackle shared global challenges, including achieving the
Sustainable Development Goals. We are committed to the Paris Agreement on climate change
adopted at COP21 in 2015. We are determined to increase collaboration between our world-classresearch and development institutions.
Japan and the UK are committed to delivering on the above through our elevated security andprosperity partnership.
Tokyo, 31 August, 2017
Mr. Shinzo Abe
Prime Minister of JapanRt Hon Theresa May
Prime Minister of the UK

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Japan-India Joint Statement *Toward a Free, Open and Prosperous Indo-Pacific
H.E. Shinzo Abe, Prime Minister of Japan is paying an official visit to India from 13 September
to 14 September, 2017 at the invitation of H.E. Narendra Modi, Prime Minister of India. On 14
September, the two Prime Ministers held strategic discussions on a wide range of issues under
the Special Strategic and Global Partnership between the two countries.
1. The two Prime Ministers welcomed significant deepening of bilateral relations in the past
three years and the growing convergence in the political, economic and strategic interests, basedon the firm foundation of common values and traditions, as well as on an emerging consensus
on contemporary issues of peace, security and development. They decided to work together toelevate their partnership to the next level to advance common strategic objectives at a time when
the global community is faced with new challenges.
2. The two Prime Ministers affirmed strong commitment to their values-based partnership inachieving a free, open and prosperous Indo-Pacific region where sovereignty and internationallaw are respected, and differences are resolved through dialogue, and where all countries, large
or small, enjoy freedom of navigation and overflight, sustainable development, and a free, fair, andopen trade and investment system.
3. The two Prime Ministers underlined that India and Japan could play a central role insafeguarding and strengthening such a rules-based order. To this end, they pledged to reinforce
their efforts to:- align Japanʼs Free and Open Indo-Pacific Strategy with Indiaʼs Act East Policy, including
through enhancing maritime security cooperation, improving connectivity in the wider IndoPacific region, strengthening cooperation with ASEAN, and promoting discussions between
strategists and experts of the two countries;- enhance defence and security cooperation and dialogues, including the MALABAR and otherjoint exercises, defence equipment and technology cooperation in such areas as surveillance andunmanned system technologies, and defence industry cooperation.
- ensure par tnerships for prosperity through the Japan-India Investment Promotion
Par tnership, speedy implementation of key infrastructure projects including the Mumbai
Ahmedabad High Speed Railway (MAHSR), and advancing cooperation in the fields of energy,
smart cities, information and communication technology, space, science and technology, biotechnology, pharmaceuticals and health.
- strengthen people-to-people and cultural ties through enhanced Japanese language teachingin India and collaboration in the fields of tourism, civil aviation, higher education, women ʼs
education, skills development and sports;- work together on global challenges such as proliferation of Weapons of Mass Destruction(WMDs), terrorism, space and cyber security, United Nations Security Council (UNSC) reform,
climate change and environment;- strengthen trilateral cooperation frameworks with the United States, Australia and othercountries.

*

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Reinforcing Defence and Security Cooperation
Para.4 through 9

Working Together for a Better Connected World
Para.10 through 14

Partnership for prosperity
Para.15 through 47

Working with Partners on Regional and Global Challenges
Para.48 through 60

Conclusion
Prime Minister Abe thanked the Government and the people of India for their warm
hospitality and extended a cordial invitation to Prime Minister Modi to visit Japan at a mutuallyconvenient time for the next annual summit meeting. Prime Minister Modi accepted the invitation
with appreciation.
Prime Minister of Japan

Prime Minister of the Republic of India

Signed at Gandhinagar, Gujarat on 14 September 201757
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Documents: Japan’s Major Foreign Policy Statements (2017)

Address by Prime Minister Shinzo Abeat the Seventy-Second Session of the United Nations General Assembly *September 20, 2017
New York
1.
Mr. President, ladies and gentlemen,
Today, I had intended first of all to tell you of the sincerity with which Japan is implementing the
SDGs. I also had hoped to introduce to you the innovative ways by which we have been fostering
public awareness within Japan towards those goals.
I wanted to tell you why the Women Entrepreneurs Finance Initiative, or “We-Fi,” is important tome personally as well as to the Government of Japan.
I have been saying we will make universal health coverage part of the “Japan brand.” We will holda major conference this December in Tokyo taking up UHC as the theme.
The list of things I would have liked to raise here is long indeed -- our contributions towards therule of law; our determination to undertake the Paris Agreement in a steadfast manner; our policyof addressing global infrastructure demand through quality investments.
Moreover, what Japan wants to safeguard in every respect is the free, liberal, open international
order and multilateral frameworks.
The world certainly holds high expectations towards the UN as the flagbearer upholding these.
That is exactly why the Security Council should be reformed without delay, in response to thedemands of the times.
Japan will strive together with its friends to achieve these reforms. I had intended to state thatJapanʼs abiding determination is to play an active role for world peace as a permanent member of
the Security Council.
However, I have no choice but to focus my remarks on a single issue, that of North Korea.

2.
North Korea conducted a nuclear test on September the 3rd. Whether or not it was a hydrogenbomb test, its scale far exceeded that of previous tests.
Both before and after that, on August 29, and again on September 15 before the ink on Resolution
2375, passed by the Security Council to impose sanctions on North Korea, was even dry, North
Korea launched missiles.
Both of these were launched to fly over Japan and make a display of their cruising range.
The gravity of this threat is unprecedented. It is indisputably a matter of urgency.
North Korea is attempting to dismiss with a smirk the efforts towards disarmament we haveassiduously undertaken over the years.
The non-proliferation regime is about to suffer a serious blow from its most confident disrupter
ever.
Mr. President, distinguished colleagues,This recent crisis is of an altogether different dimension qualitatively than those we have eluded
every time some dictator has attempted to acquire weapons of mass destruction.
North Koreaʼs nuclear weapons either already are, or are on the verge of becoming, hydrogenbombs.
Their means of delivery will sooner or later be ICBMs. Over the more than 20 years since theend of the Cold War, where and when else, and to what dictators, have we allowed such self*

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58Japan Review Vol.1 No.2 Winter 2017indulgence? As it turns out, it is only towards North Korea that this has been allowed.
That is the reality we find before us.
And, it was absolutely not a lack of dialogue that gave rise to this situation.

3.
Dialogue dissuaded North Korea from pursuing its nuclear ambitions. Dialogue has afforded
many of us the relief that the world had been saved from a crisis. Believing thus, many of us havefelt relieved, well, not just once, but twice.
The first time was in the early 1990s.
At the time, the threat that North Korea imposed amounted to little more than openly displaying
its withdrawal from the IAEA and other inspection regimes.
However, tensions were felt by those of us who surmised the intent of that.
After many twists and turns, in October 1994, what is known as the “Agreed Framework” wasrealized between the U.S. and North Korea.
Under the framework, North Korea would be made to abandon its nuclear plans. In exchange, wewould provide incentives to North Korea.
Towards that end, Japan, the U.S., and the ROK formed the Korean Peninsula Energy
Development Organization, or “KEDO,” in March the following year.
Taking KEDO as the implementing agent, we pledged to build and hand over two light-water
reactors (LWRs) to North Korea and also provide 500 thousand tons of heavy fuel oil annually as
a stopgap measure for its energy demand.
This was all carried out accordingly. However, as time went by, it came to be known that North
Korea had been continuing steadily with its uranium enrichment.
From the start, North Korea had never intended to abandon its nuclear ambitions. This had
become readily apparent to all.
After 2002, seven years after it was founded, KEDO suspended its operations.
During that period, it can be said that North Korea defrauded the U.S., the ROK, and Japan ofassistance.
Countries that recognized value in the KEDO framework of providing incentives to change North
Koreaʼs actions gradually came to join KEDO -- the European Union, New Zealand, Australia,
Canada, Indonesia, Chile, Argentina, Poland, the Czech Republic and Uzbekistan.
North Korea betrayed the good faith of all those KEDO members.
As one of the organizationʼs founding members, Japan had pledged to give a non-interest loan to
KEDO and had fulfilled roughly 40 percent of that.
The pledged amount was 1 billion US dollars, with about 400 million fulfilled.

4.
The second crisis occurred in 2002 when KEDO suspended its operations and North Korea,
saying it would end the freeze on its nuclear-related facilities, expelled IAEA inspectors.
The concern was again that North Korea was continuing its uranium enrichment. And again wechose the path of defusing the situation through dialogue.
North Korea, China, and Russia joined the three founding members of KEDO, Japan, the U.S.,
and the ROK, to launch the Six-Party Talks. That was in August 2003.
Subsequently, after two years of twists and turns, through the summer of 2005 into the fall, theSix Parties once reached an agreement, resulting in the release of a joint statement.
North Korea committed to abandoning all nuclear weapons and existing nuclear programs andreturning to the NPT and to IAEA safeguards.
Moreover, two years after that, in February 2007, an agreement was concluded regarding what
each of the Six Parties should do towards implementing the joint statement.
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A group of IAEA inspectors that had entered North Korea verified the shutdown of the nuclearrelated facilities in Yongbyon, and in return, North Korea received heavy fuel oil.
The series of events made people think that tenaciously continuing dialogue had this time finallycaused North Korea to change its actions.
But what actually happened?
In February 2005, while the Six-Party Talks were underway, North Korea declared unilaterallythat it was already in possession of nuclear weapons. Moreover, in October 2006, it openly carriedout its first nuclear test.
Its second nuclear test was in 2009. Ultimately that same year, North Korea announced its
withdrawal from the Six-Party Talks, stating it will “never again take part in such talks.”
Furthermore, around this time it was firing ballistic missiles on a repeated basis.

5.
Mr. President, distinguished colleagues,
Over the course of more than a decade beginning in 1994, the international community continued
its efforts towards dialogue with North Korea with great perseverance, first through the Agreed
Framework, and later through the Six-Party Talks.
However, what we had to learn is that during the time this dialogue continued, North Korea had
no intention whatsoever of abandoning its nuclear or missile development.
For North Korea, dialogue was instead the best means of deceiving us and buying time.
More than anything else, the following fact demonstrates that.
In 1994, North Korea had no nuclear weapons and even its ballistic missile technology was far
from mature. Yet it is now working to attain hydrogen bombs and ICBMs.
Again and again, attempts to resolve issues through dialogue have all come to naught.
In what hope of success are we now repeating the very same failure a third time?
We must make North Korea abandon all nuclear and ballistic missile programs in a complete,verifiable, and irreversible manner.
What is needed to do that is not dialogue, but pressure.

6.
Mr. President, distinguished colleagues,
On November 15, already 40 years will have passed since a 13-year-old girl named Megumi
Yokota was abducted by North Korea.
Megumi and many other Japanese remain abducted in North Korea even to this day.
I will continue to do all possible efforts so they can set foot on Japan's soil as soon as possible,
until the day when they will finally be in the arms of their parents, and their family members.
Japan will face up to North Koreaʼs nuclear and missile threat through the Japan-U.S. Alliance andthrough Japan, the U.S. and the ROK acting in unity.
We consistently support the stance of the United States: that “all options are on the table.”Also, I appreciate the unanimous adoption by the Security Council of UNSC Resolution 2375 on
September 11, which imposes strict sanctions against North Korea.
That clarified our intention to further intensify pressure on North Korea in order to force it toundertake a fundamental change in its path forward.
But I must make an appeal to you.
North Korea has already demonstrated its disregard of the resolution by launching yet anothermissile.
The resolution is nothing more than the beginning.
We must prevent the goods, funds, people, and technology necessary for nuclear and missile
development from heading to North Korea.
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We must make North Korea comply fully with the repeated resolutions.
We must ensure the strict and full implementation of the series of Security Council resolutions by
all UN member nations.
What is necessary is action.
Whether or not we can put an end to the provocations by North Korea is dependent upon thesolidarity of the international community.
There is not much time left.

7.
Mr. President, ladies and gentlemen,
North Korea is in a truly fortunate location, adjoining the growth region of Asia and the Pacific. It
has an industrious labor force as well as underground resources.
If it were to make use of those, there could be a path towards North Korea dramatically growing
its economy and improving public welfare.
That is where North Koreaʼs bright future lies.
By failing to resolve the abduction, nuclear weapons and missiles issues, and by becoming athreat to all humanity, there is absolutely no future that North Korea can open up for itself.
In order to change North Korea's policies, we must strengthen our unity.
Thank you very much.

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Issues Involving the Korean Peninsula

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