Do Not Rush the Territorial Issue＊ iAkira Kotera(Professor, University of Tokyo)
Hold fast to the “no dispute” position, beware of excessive expectations toward international
adjudication
Key points:• Acknowledging the existence of a dispute means accepting the other’s claim• International adjudication will not function without the common intention of both parties tosettle the dispute• The issue of territorial attribution should be put on hold until bilateral relations are stabilized
Japan and China are engaged in an ongoing battle of words over the attribution of theSenkaku Islands. The controversy between Japan and South Korea over the island of Takeshima
has somewhat calmed down compared to August, but it is as yet far from settled.
In recent weeks Hiromasa Yonekura, chairman of Keidanren (Japan Federation of Economic
Organizations)(at the time when this paper was written), remarked that Japan should
acknowledge the existence of a “territorial dispute” with China over the Senkaku Islands, while
Mayor Toru Hashimoto of Osaka City (at the time when this paper was written) made the casefor a legal settlement by the International Court of Justice (ICJ). Moving beyond the question of
the legitimacy of Japan’s title over the Senkaku Islands and Takeshima, arguments are emerging
about how Japan should cope with the current locked-horns situation with China and SouthKorea. It is somewhat doubtful, however, whether the proponents of these arguments fully
understand the implications of acknowledging the existence of a territorial dispute or what adispute settlement presented by the ICJ in accordance with international law entails.
South Korea denies that a territorial dispute exists over Takeshima, while Japan takes
the same position toward the Senkaku Islands. The question of the existence or absence of aterritorial dispute bears on whether one party finds a certain level of legitimacy in the other’s
territorial claim.
A good analogy can be found in land ownership rights. We will compare two cases: In case
1, passerby B shows up unannounced at the front door of homeowner A and claims ownershipof the house. Case 2 is an instance of double sales of land, in which owner X first sells the plot
to Y, then secretly sells the same plot to Z, throwing into doubt whether the land now belongs
to Y or Z. The right to a particular property is at stake in both cases, but the circumstances
dramatically differ between the two. B’s claim in case 1 is utterly groundless; in case 2, Y and Z
are both justified in making a claim for the property. A dispute exists in case 2, whereas there areopposing claims but no dispute in case 1.
Japan sees the Senkaku issue as a case 1 situation, while China considers it analogous to case＊ This article was originally published as “Ryodo mondai no shori isoguna” in Nihon Keizai Shimbun , October 9,2012, 13.

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Do Not Rush the Territorial Issue

2. The positions are reversed when it comes to Takeshima, with South Korea taking the case 1 view
and Japan siding with case 2. It is by no means inconsistent for Japan to believe that a territorial
dispute exists over Takeshima but not over the Senkaku Islands.
Acknowledging the existence of a dispute amounts to recognizing a degree of legitimacy in theother party’s territorial claim. Once this comes to pass, the opposing countries are expected to enter
into talks aimed at settling the dispute. This point is clearly demonstrated in the history between
Japan and the Soviet Union (now Russia) regarding the Northern Territories. The Japan-Soviet Joint
Declaration of 1956 stipulated that both parties would continue to hold consultations on the NorthernTerritories. But the Soviet Union later came to claim that the issue of the territorial attribution ofthe Northern Territories had already been settled, and it took patient negotiations on Japan’s partto overturn this claim. In the 1991 Japan-Soviet Joint Communiqué the Soviet Union admitted theexistence of a territorial dispute over the Northern Territories, and bilateral negotiations began on
the territorial attribution.
The Soviet Union’s acknowledgment of the existence of a territorial dispute was no less thanan recognition that all or part of the territory may belong to Japan. Should Japan be approaching
the Senkaku issue in the same manner? For Japan and China to have opposing views about theattribution of the Senkaku Islands, with China insisting that they are not a Japanese territory, is very
different from there being a territorial dispute.
Disputes, or funso in Japanese, in this sense are also called kokusai funso—literally “internationaldispute.” For this reason, international conflicts are sometimes confused with disputes. “Internationalconflict” refers to a state involving armed confrontation, whereas “dispute” is a state that isps shortof one. While a dispute can lead to conflict and armed confrontation, both can occur with or without
a dispute.
The Japan-US Security Treaty applies to armed confrontations but not to disputes. US forces
are bound to go into action if an armed confrontation should break out over the Senkaku Islands.
It would be hasty to assume, however, that the United States will take Japan’s side regarding theattribution of the islands. In fact, the US government has repeatedly remarked that it takes a neutral
position with respect to territorial sovereignty of the Senkaku Islands.
International dispute and conflicts between states are of international concern, as they affectpeace in the international society. The question of territorial attribution, by contrast, like landownership disputes on domestic field, is essentially a bilateral issue.
When considering the judicial settlement of a dispute, we must bear in mind the difference
between international adjudication and trial in a national court. In domestic disputes, the court has
the final say in a case referred to it by one of the parties, regardless of the other party’s intentions.
International adjudication, on the other hand, cannot take place without the agreement of bothparties. Although members of the international society are obliged to peacefully settle disputes
between them, going to the ICJ or other international courts for a dispute settlement in accordancewith international law is not part of the obligation.
A claimant in a domestic dispute can settle the question of ownership by appealing to court,
whether it is a case 1 or case 2 instance, but the same cannot be said of international disputes.

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Judicial settlement by international adjudication is merely one of the options for seeking a peacefuldispute settlement.
The government of Japan has proposed to South Korea that they refer the Takeshima issue to theICJ. But notifying South Korea that Japan aspires to settle the issue in accordance with internationallaw is nothing more than a “response” against the former’s actions; South Korea is neither legally
nor morally obligator y to accept the propose. For a time, media repor ts asser ted that South
Korean failure to accept the propose would put the burden of accountability on that country. This
is incorrect, as international adjudication is just one of the possible means of settling a dispute, if asignificant one.
Recent years have seen an increase in territorial issues being brought to the ICJ (see table). This
is not to say, however, that the way international courts get involved in such issues are changing.
Let us consider under what conditions an international court would be able to settle a territorial
issue. The first and foremost condition is the awareness that settling the issue is more important
than leaving it unsettled, even if all or part of the territory were to fall in the hands of the other party.
An example would be a situation where there is a prevailing sentiment that the attribution of theterritory is of little consequence and that it would not be good to let an outstanding territorial issuejeopardize bilateral relations.
Territorial Dispute Cases Submitted to the International Court of Justice in Recent Years
Year submitted

Claimants

Case description

2002

Benin
Niger

Frontier dispute (judgment in 2005)

El Salvador
Honduras

Application for revision of 1992 judgment on land, island, andmaritime frontier dispute (judgment in 2003)

2003

Malaysia
Singapore

Sovereignty over Pedra Branca and other territories(judgment in 2008)

2010

Burkina Faso
Niger

Frontier dispute (judgment in 2010)2011

Cambodia
Thailand

Request for interpretation of judgment on case concerning
the Temple of Preah Vihear (judgment in 2013)

Marine and mineral resources are often brought into coversation in relation to territorial issues.
But although Japan and South Korea are at odds over Takeshima, they have concluded bilateralagreements regarding fisheries and the development of the continental shelf between them.
Likewise, Japan and China have concluded an agreement on fisheries in the East China Sea, even as
the Senkaku issue lingers on. These instances indicate that addressing the issue of natural resourcesin the surrounding areas is possible without resolving the territorial issue.
Once a judgment is made that it is preferable to peacefully settle the territorial issue by whatevermeans, the focus will shift to the question of how to bring this about. Negotiating through to asettlement may be one approach. At times, meanwhile, having an independent judge make a final
decision in accordance with international law may seem less time-consuming and more conducive
to gaining the support of the public and other concerned parties—in short, more cost effective.

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A country that comes to this awareness will opt for a judicial handling of the case by international
adjudication. But if the odds of winning are overwhelmingly in the favor of one party, the other party
will have little incentive to refer the case to court.
To achieve a settlement of the Senkaku and Takeshima issues by ICJ, Japan, China, and South
Korea must believe that stabilizing bilateral relations is more impor tant than the attributionof the territor y and that the best way to settle the attribution issue is by judicial settlement. InChina, however, the tug-of-war over the Senkaku Islands has been conflated with anti-Japanesesentiment, and sovereignty over the islands is regarded as one of China’s core interests. Under thecircumstances, there is little momentum to deal with the issue by international adjudication.
As long as attribution of the islands remains a major political issue linked to nationalism, andunless we are willing to seek a forceful settlement, we must resign ourselves to the understandingthat it will be impossible to completely undo the animosity over the attribution issue before thecountries and peoples involved cool their heads and bilateral relations become stable. The only
way forward is to refrain from seeking conclusions about the legitimacy of both parties’ claims, puta freeze on it for the time being, and put off dealing with the issue until a positive atmosphere isfostered toward resolving the differences. Regarding the peaceful settlement of international issues
as a national policy is tantamount to not pursuing sweeping solutions.
(Akira Kotera was born in 1952 and graduated from the University of Tokyo’s Graduate School for
Law and Politics. His specialty is international law.)

This paper was translated by JIIA from Japanese into English with the author’s consent in 2017.
JIIA takes full responsibility for the translation.
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