East Asian and European Notions of Territor y ＊Masaharu Yanagihara(Professor, Kyushu University)
The concept of territory in modern European international law
Territor y comprises that area over which a state exercises exclusive control or, in otherwords, the area over which territorial sovereignty extends. Issues in relation to the acquisitionof an area (composed of land as principal and sea and air as accessory) as state territory aredebated within the legal framework of territorial title. By contrast, according to international law,no matter the means by which a new state is formed—annexation, separation, division, etc.—
the territory of that state has been explicated on completely different theoretical grounds toterritorial title. The area effectively controlledi by a new state is regarded as that state’s territory
as of the point at which that state becomes a state under international law. In other words, thetheoretical grounds for a new state’s territor y have rested on the reality of effective control
and recognition as a state by other countries (although the constitutive view of recognition anddeclaratory view of recognition are opposed on the effect of state recognition).
Where an area is regarded as territory, another form emerges in addition to the two above—
namely, state territory already in existence at the point when international law was formulated.
The existence of international law is premised on the existence of a group of states, with theexistence of a group of states and the existence of international law essentially two sides of thesame coin. The territory of those states, too, must be treated as a given. It is rational to represent
the core territories of England, France, etc., in this manner (see also the concepts of original title,
inchoate title, and historical title discussed below).
The history of theories of territory
The above concepts of territory, territorial sovereignty, and territorial title were originallyelaborated in the latter half of the 19th century and the beginning of the 20th century. Territorial
title is not discussed by Vitoria, Grotius, or Vattel—the foremost scholars in the 16th, 17th, and18th century respectively—or indeed by any other scholars. In the case of Vitoria and Grotius,even the modern concept of territory had yet to mature. While Vattel advances something close
to the modern concept of territorial sovereignty, he does not systematically address the causes ofterritorial acquisition and loss.
In the 19th century, the notion of (state) territory as falling under the exclusive reach of statesovereignty (variously called state ownership, state territorial right, territorial sovereignty, etc.)
gradually became predominant (although there was no consensus as to whether that sovereignty
was of an ownership or an authority nature). At the same time, the practice of debating all＊ This article was originally published in Kokusai Mondai (International Affairs) No. 624, September 2013.
i Effective control or occupation means an actual taking of possession of an area through state activities toexercise exclusive authority there. Concrete terms and degree of state activities establishing effective control
are richly diverse according to the geographical or social circumstances of that area such as a distance from themainland, if it is an island, or whether that area remains without population.

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The Japan Institute of International Affairs / Resource LibraryEast Asian and European Notions of Territor yquestions of the way in which territory was acquired within the categories of the mode of acquisitionof state territorial right, or else title to state territory, had become virtually standard. However, aclose look at international legal theory at the time as well as British Law Officers’ Reports in relation
to territorial acquisition reveals that, while there was almost complete agreement on occupation,cession, and conquest as means of acquiring territorial title, opinions were hugely divided on allother modes, with no standard theory yet to emerge. It is certainly not the case that the “traditional”
theor y of five modes of acquisition of territorial title comprising occupation, accretion, cession,
subjugation, and prescription dominated international law as of the mid-19th century.
Different concepts of “territory”
Does the modern state as the above-defined territorial state differ in essence from other “states”—
the city states of ancient Greece (Athens, Sparta, etc.), the ancient Roman Empire, China’s dynasties(Qin, Han, Yuan, Ming, etc.), the Islamic dynasties (the Umayyad and Abbasid Caliphates, etc.), and“Japan” prior to the Meiji Restoration, for example?
These “states,” too, were certainly political entities that controlled certain territories in one
form or another. However, they do not appear to have shared the concept of territory in the sense
discussed above. For example, the ancient Chinese concepts of 疆域 (jia-ngyù; territor y withinboundary), 版図 (bǎntú; territory), and 邦土 (ba-ngtǔ; domain) as well as pre-modern Japan’s notionsof 版図 (hanto; territory), 所領 (shoryo-; territory), 化外の地 (kagai no chi; lands outside imperialinfluence) and 異国境 (ikokusakai; the area next to a foreign country) did not correspond to modern
Europe’s ideas of “territor y” and “borders.” Non-Western countries, and particularly Easterncountries such as the Ottoman Empire, Persia, Siam, China, Korea, and Japan, each existed within
their own world order, but contact with the West around the beginning of the 19th century createdpressure to apply to their own states the concepts of territory and borders as defined under modern
European international law. In other words, faced with the West’s overwhelming military superiority,
non-Western countries were forced to conduct their relationships with the West based on modern
European international law. These states received modern European international law along with its
concept of territory, reforming themselves into the territorial states of todayii.
In that case, is the fact that the various states had their own particular notions of territory simply
a matter of historic interest that in no way presents a real and serious problem today?
The “inherent territory” argument
As there is no space to go into detail on this issue in this short essay, I will limit myself to a simple
explanation of the “inherent territory” argument put forward by Japan (and, more recently, Korea).
There are differences of emphasis however in actual application of this argument—in the case of theNorthern Territories, for example, the claim is that the Japanese people have inherited the territory
as the land of their forefathers, and it has never once in history become foreign territory, whilein the case of Takeshima/Dokdo, the Japanese claim is rather that the Koreans have presented
ii For more on this point, see Masaharu Yanagihara, Bakumatsuki Meiji shoki no ryōiki gainen ni kan suru ichikōsatsu[Some Thoughts on the Concept of Territory in the Late Edo and Early Meiji Periods] in Takeo Matsuda et al, Gendaikokusaihō no shisō to kōzō I: Rekishi, kokka, kikō, jōyaku, jinken [The Thought and Structure of Modern International
Law I: History, States, Organizations, Treaties, and Human Rights], Tōshindō, 2012, pp. 45-73.

2The Japan Institute of International Affairs / Resource LibraryEast Asian and European Notions of Territor yno clear evidence that Korea had effective control over Takeshima prior to Japan taking effectivecontrol of the island and establishing territorial right, which is argued to have occurred at latest by
the mid-17th century, i.e., the early Edo period. However, if the “inherent territory” argument claims
that territorial right was established prior to Japan’s receiving modern European international law
in the mid-19th century and establishing territory in line with the concept of territory espoused bymodern European international law, this immediately presents the problem of whether concepts
from modern European international law such as territorial right, territorial sovereignty, and borders
can be applied directly to other eras and regions.
These ages and regions each had their own awareness of territor y and borders. The issue
is whether these concepts and the modern European concept of territorial right can really beunderstood as a continuum.
Legal resolution of territorial disputes
There have been a growing number of cases in recent years where territorial disputes andmaritime border delimitation disputes are brought before international courts for resolution. To
resolve a dispute in court, the first hurdle is for the countries that are related to the dispute torecognize the existence of a dispute. The second hurdle is for them to agree to recourse the disputeto a court. Even if these hurdles are cleared, the next issue is which international legal doctrines
or framework to apply. The failure of the theory of territorial title to serve almost any useful role incourt has been long bemoaned.
In addition, as noted in relation to the “inherent territory” argument, there is the difficult questionof which perspective to use in evaluating historical claims. This is particularly the case with nonWestern countries. The traditional view of territory, 疆 域 (jia-ngyù; territory within boundary) andthe traditional Chinese world order that China appears to be asserting in the case of the Senkaku
Islands and the Spratly Islands can be interpreted within this contextiii. In international courts, it has
been addressed in the context of how to evaluate original title, inchoate title, and historical title.iv
It is no easy matter to find a legal resolution to a territorial dispute. A comprehensive approachneeds to be taken which also gives sufficient consideration to historical perspectives. In so doing,
we should not underestimate the role played by international law as it stands but, at the same time,
we must not forget to envision what international law ought to be as lex ferenda. International law isneither a chimera, a mythical beast nor a panacea; it is “just one institution among others which wehave at our disposal for the building up of a saner international order”v.

iii See Yoshirō Matsui, Senkaku shotō ni tsuite kangaeru—Kokusaihō no kanten kara (2) [Thinking about the Senkaku
Islands from the Perspective of International Law], Hōritsu Jihō Vol. 85(2), 2013, pp. 67-69.
iv The International Court of Justice (ICJ) decision in the 1953 Minquiers and Ecrehos Case, the ICJ decision in the1992 El Salvador-Honduras Land, Island and Maritime Frontier Dispute, the 1998 Eritrea-Yemen Arbitration: Phase 1,the ICJ decision in the 2008 Pedra Branca Case, etc.
v J.L. Brierly, Law of Nations , 1928.

This paper was translated by JIIA from Japanese into English with the author’s consent in 2017.
JIIA takes full responsibility for the translation.
3The Japan Institute of International Affairs / Resource Library