Resolving the Senkaku/Diaoyu Island Dispute: The Limitations of International Law

Memo #272

By  Keshav Kelkar – keshav.kelkar [at] alumni.ubc.ca

Among the many issues causing friction in Sino-Japanese relations, none has as great a potential for generating armed conflict as the dispute over the Senkaku, or Diaoyu Islands. And in attempts to resolve the impasse, international law has if anything proven to be a problem rather than a solution.

Although in recent years China and Japan have taken significant steps to integrate their economies and improve bilateral relations, the dispute over the islands has shown the international community how quickly Sino-Japanese relations can deteriorate when conflicting strategic interests are involved. The dispute over sovereignty has not been limited to verbal exchanges between Beijing and Tokyo; both sides have moved to physically assert their claims by positioning military and civilian vessels in the area, escalating the potential for clashes.

Outside parties, most notably the United States, have urged both sides to resolve the dispute peacefully in accordance with international law. To date this approach has yielded no tangible results. Indeed, relevant international law regimes, such as the Customary International Law of Territorial Acquisition, have hindered rather than helped the two sides reach a settlement, leading some observers to question whether international law will be effective in facilitating a resolution.

The Customary International Law of Territorial Acquisition stipulates that “Sovereign title can only be created by affirmative demonstration of intent to occupy (animus occupandi)” (Ramos-Mrosovsky, 914). Herein lies the problem of the customary law: “The international customary law governing the acquisition of territory encourages the display of sovereignty and penalizes for appearing to acquiesce in a rival state’s claim to disputed territory” (Ibid.). China, for example, has “regularised patrols of the territorial sea by its coast guard, announced base points around the islands and, most recently, and included the islands in its air defence identification zone (ADIZ) that encompasses much of the East China Sea” (BBC). Japan has countered China’s increasing presence near the Islands by “increasing its own coast guard patrols and putting them on 24/7 alert” (Smith). The customary law therefore not only fails to provide a clear verdict based on rival historical claims, it actually encourages both sides to engage in increasingly aggressive displays of ownership, which could potentially escalate to armed conflict. Beijing and Tokyo, it seems, may have to pursue alternative channels to resolve this seemingly intractable dispute.

About the Author:

Keshav Kelkar is a graduate student in the Master of Arts-Asia Pacific Policy Studies (MAAPPS) program at the University of British Columbia.

A Japanese coast guard vessel patrols the waters surrounding one of the disputed Senkaku/Diaoyu Islands (source: Al Jazeera).

Links:

• Carlos Ramos-Mrosovsky, “International Law’s Unhelpful Role in the Senkaku Islands,” University of Pennsylvania Journal of International Law 29:4 (2007)

• “Viewpoints: China air zone tensions,” BBC News, November 2013

• Sheila Smith, “A Sino-Japanese Clash in the East China Sea,” April 2013

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