Five tiny uninhabited islands slumber in the Pacific Ocean a short distance from Taiwan, China, and Japan. The Japanese call them the Senkaku Islands. The Chinese call them the Diaoyu Islands. Japan controls the islands, but China wants them. While international law favors Japan, it would be a mistake to think the law will stop China from grabbing them. That means that even though no one uses the islands currently for anything, if World War III takes place anytime soon, this is where it will start—implausible as that may sound.
Japan argues that the islands were vacant until 1895, when the Japanese government laid claim to them. Japanese nationals used and lived on them in the following decades—a fish-processing plant owned by a Japanese national once chugged away here. China did not dispute Japan’s claim to the islands during this period. Nor did China object when the United States took control of them during the occupation of Japan starting in 1945. The U.S. handed the islands back to Japan in 1972.
But since the early ’70s, China has argued that Japan seized the islands in violation of international law. China argues it owned the islands before 1895, based on some ancient Chinese texts and maps that it says show that the Chinese regarded the islands as theirs, which would mean Japan’s seizure of the islands violated China’s rights. Also, in China’s view, Japan obtained control over the islands as a result of a treaty that ended the First Sino-Japanese War in 1895. Japan took control of the islands, via the treaty, when it forced China, which lost the war, to cede Taiwan to Japan—and in China’s view, the islands are part of Taiwan. When Taiwan was returned to China after World War II, the islands should have gone back with it. Except that by that time, Japan was occupied by the United States, which took administrative control over the islands (without claiming sovereignty) and then returned control of the islands to Japan in 1972.
The international law that governs territorial disputes favors Japan. When no one occupies or controls a piece of territory, it is deemed terra nullius (“land belonging to no one”). That was the status of the islands before 1895. The ancient Chinese texts do not establish Chinese control. A typical example is a diplomatic record from 1534 that says, “The ship has passed Diaoyu Island.” The ship was carrying a Chinese official, but passing by an island and calling it Diaoyu does not establish sovereignty. A country does that by showing it has seized a territory through an official act and then exerted control over it or that its government has controlled it as long as anyone can remember. Since China did not control the islands before 1895, Japan had the right to seize them. It then lawfully maintained sovereignty over them by ruling them.
If Japan had illegally seized the islands from China, then surely China would have said so in the years after 1895. It would have objected when Japanese nationals lived there, asserted ownership, and sold property on the islands to one another. It would have objected when the U.S. occupation zone encompassed the islands. But it never did. China did not express any interest in the islands until 1971, shortly after explorers discovered significant hydrocarbon resources below the sea around them. The most careful scholarship I have found, including a lucid paper by the East Asia expert Reinhard Drifte, concurs that Japan’s title is stronger.
And yet that’s hardly the last word on the matter. The rules of international law to which both sides appeal embody the power relationships that existed at the time of their emergence centuries ago. At that time, the great powers raced around the world claiming territories that were either unoccupied or occupied by native tribes. With a lot of territory to snap up, it made sense for them to implicitly agree not to contest one another’s conquests so that they could all concentrate on seizing the areas that were up for grabs. This raised some significant questions. Could one seize an entire continent by placing a flag on a tiny piece of it? Could one conquer an island by sailing by it and putting it on a navigation chart? To the contrary, the rough norms that evolved required more significant control—perhaps a post office or a military garrison. This ensured that a country could own territory only if it was powerful enough to control it.
In 1895, Japan was on the cusp of great-power status, while China was beset by internal turmoil and foreign pressures. Japan could control the islands; China could not. Now China has the upper hand and is unhappy with the 19th-century division of spoils. Why should it go along with territorial allocations that result from rules that favored strong nations a century ago?
China is not the only country that thinks this way. Argentina went to war against the United Kingdom in 1982 in order to seize the Falkland Islands, which are 300 miles from Argentina and 8,000 miles from Britain. Much of the world sided with Argentina at the start of the war even though British nationals lived on the Falkland Islands along with lots of British sheep. The world didn’t care because colonial outposts had faded from fashion. The British retained the Falkland Islands by force, but only because Argentina, a basket case then as now, could not take advantage of the fact that it was 7,700 miles closer.
Another historical precedent is even more apt. In 1823, the United States announced the Monroe Doctrine. The great powers of that time did not take seriously our puny country’s declaration that they must not interfere in our hemisphere. But as the United States became more powerful, it began to pick fights with the big players (Britain, Spain), along with the weaker countries in Latin America like Mexico. During the next 150 years, the U.S. established its dominion over Latin America by force, while advancing interpretations of international law every bit as dubious as China’s claim to the Senkaku/Diaoyu Islands. The United Kingdom wisely gave in for the sake of mutually beneficial coexistence. Other countries that resisted—Spain, Mexico—paid a price.
Like the United States, China began by asserting claims it could not enforce and then started acting on those claims as it gained power. Since 2008 Chinese fishing trawlers have aggressively plied the waters around the islands, in some cases colliding with Japanese coast guard vessels. In 2012, China sent in military vessels. Last November, China declared that foreign aircraft would be required to notify the Chinese government when they fly through the airspace above the islands.
This clearly violates Japan’s rights. But such is the weakness of international law that it doesn’t matter. More than a century of diplomatic efforts to subject territorial disputes to judicial resolution lies in shambles. International courts do exist, but China has shown no interest in using them, and no one can force it to.
In the end, whether Japan should resist or retreat is a military and political question, not a legal one. If China’s ambitions extend only to the tiny unoccupied islands in the region, yielding these fisheries and hydrocarbons may be worth it to keep the peace. But if this is the first step in a larger march of conquest, then there’s a strong case that Japan (and the U.S. as its ally) should counter force with force.