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http://organizations.lawschool.cornell.edu/ilj/issues/42.3/CIN305.pdf
（結論：日本の主張に分あり）
"Sino-Japanese Cooperation in the EastChina Sea: A Lasting Arrangement?"
by Alexander M. Peterson
II. The Senkaku Islands Dispute
The Senkaku Islands currently are under Japanese control but China
claims them under the name “Diaoyu” Islands. The status of the islands
is a major issue in Sino-Japanese relations, despite the fact that the islands
are too small to appear on most maps. The importance of the Islands
stems from the rich seabed located directly beneath them and their potential
to serve as base points for an EEZ.
The Senkaku group consists of eight islands, each with a separate Japanese
and Chinese name, comprising a total land area of less than eight
square kilometers. The islands lie near the Sino-Japanese median in the
East China Sea, slightly on the Japanese side, situated just 90 nm north of
the Japanese Ryukyu Islands, 120 nm northeast of Taiwan, and 200 nm
southwest of Okinawa. The Senkaku lie east of the Okinawa Trough,
which is a geomorphic depression in the seabed at the eastern edge of the
continental shelf west of the Ryukyu Islands.
China claims that its continental shelf extends past the Senkaku, to
the edge of the Okinawa Trough, while Japan claims “that the seabed
between the Ryukyus and the mainland is a common prolongation of both
Japanese territory, i.e., the Ryukyus, and of the Chinese mainland,” and
that the Senkaku are part of the Ryukyu Islands. Japanese ownership of
the islands would seriously undermine China’s claim to a continuous continental shelf extending to the Okinawa Trough, hence China’s proposed
350 nm EEZ.
A survey in 1968 found potential hydrocarbon fields in the East China
Sea, drawing attention to the islands. Japan was the first country to issue
mining rights in the islands. In July 1970, however, Taiwan and the Gulf
Oil Company signed a contract for the exploration and exploitation of the
hydrocarbon resources in a specified area of the sea northeast of Taiwan,
which included the entire Senkaku area. In September 1970, Japan contested
Taiwan’s action, asserting that the islands belonged to Japan.
China claimed the islands and all the adjacent seabed oil deposits on
December 4, 1970. With China’s action, the dispute evolved into a threeparty
disagreement between China, Taiwan, and Japan.
A. Chinese Claims
China’s claim to the islands consists of four main arguments. First,
China argues that the Senkaku are situated on its continental shelf. Second,
China claims prior discovery and use of the islands. Third, China
relies on Japan’s prior acknowledgement of China’s ownership of the
islands. Finally, China asserts that Japan took the islands under the
Treaty of Shimonoseki, and, therefore, specifically ceded the islands back
to China after World War II.
China’s claim of prior discovery and use of the islands is strong. Chinese
sailors used the islands as a navigational marker as early as the fourteenth
century. The sailors fished in the waters surrounding the islands
and occasionally used the islands as shelter from storms. China even
incorporated the islands into a coastal defense system, and, at one point,
arguably granted ownership of three of the islands to a Chinese citizen.
Although scholars are still debating applicability of the private land
ownership issue, the fact remains that China maintained peaceful ownership
of the islands for an extended period of time. Japan recognized Chinese
influence over the islands. For example, in 1885, the Japanese
Foreign Minister, Kaoru Inoue, advised the Japanese government not to
“suddenly establish publicly national boundary marks” on the Senkaku, to
avoid “easily invit[ing] Chinese suspicion.” Inoue did not explicitly
acknowledge Chinese ownership of the islands but remarked that “those
islands are near the Chinese national boundary” and “there are Chinese
names on them.” Two Japanese maps, of 1783 and 1785, indicating Chinese
ownership of the islands also provide persuasive evidence that Japan
recognized the Senkaku as Chinese territory. Substantial evidence
proves China’s ownership of the islands until 1885, but from that year
onward Chinese ownership is vigorously disputed.
China claims that Japan took the Islands by force, officially gaining
ownership under the Treaty of the Shimonoseki, which ended the Sino-
Japanese war of 1895. The treaty sealed Japan’s victory over China,
granting Japan money and land, including Taiwan. The treaty established
that China would give Japan “[t]he island of Formosa, together
with all islands appertaining or belonging to the said island of Formosa.”
The Senkaku are not specifically mentioned anywhere in the treaty; however,
China maintains that the islands were part of the group belonging to
Taiwan, a position that Japan disputes. If China is correct that Japan
took the islands through the Treaty of Shimonoseki, the islands should
now belong to China. Upon surrender to the Allied Forces at the end of
World War II, Japan accepted the following condition set forth in the Cairo
Declaration of 1943: “[A]ll the territories Japan has stolen from the Chinese,
such as Manchuria, Formosa, and the Pescadores, shall be restored to
the Republic of China.” The San Francisco Peace Treaty of 1951 also
formally required Japan to relinquish its claim to Formosa, which is now
known as Taiwan. Moreover, the 1952 Treaty of Peace between China
and Japan certified that all pre-1941 Sino-Japanese treaties, including the
Treaty of Shimonoseki, were null and void. If China could prove that the
islands were given to Japan through the Treaty of Shimonoseki, China
would have a solid claim to the disputed islands, but because China has
not proven that link, it has a weak claim to the islands.
B. Japanese Claims
Japan puts forward four main arguments in its claim to the Senkaku.
First, Japan claims that there were no signs of Chinese ownership when
Japan studied and later annexed the islands before the Sino-Japanese war in
1895. Second, Japan points out that China did not protest when the
United States gained control over the islands under the Treaty of San Francisco. Third, Japan argues that China printed maps indicating that the
islands were non-Chinese territory. Finally, Japan argues that it has
peacefully governed the islands for at least the last thirty-seven years and
has actively protested any foreign encroachment on the islands during that
time.
Japan argues that the Senkaku were terra nullius when it took control
of the islands in 1895. Japan claims that it conducted repeated
surveys between 1885 and 1895 which confirmed “that the islands were
not only uninhabited but without any trace of control by China.” Japan
further asserts that a Cabinet Decision on January 14, 1895 (and not the
Treaty of Shimonoseki signed on April 17, 1895) formally incorporated the
islands into Japanese territory. Japan, therefore, claims that the Senkaku
were not acquired through aggression or treaty.
International agreements after World War II substantiate Japan’s
claims. Japan lost administrative capabilities of the islands in the after-
math of World War II, demonstrating the ability both to lose temporarily
the right to control the Senkaku and also to regain that privilege. The
San Francisco Peace Treaty stipulated the transfer of the Senkaku from Japanese
to U.S. control. The U.S. Department of State denies that its temporary
administration of the Senkaku affected the territoriality of the
islands. Despite the United States’ claim of neutrality, neither the San
Francisco Peace Treaty nor the Cairo Declaration returned the islands to
China or Taiwan. Furthermore, neither China nor Taiwan protested
Japan’s relinquishing control of the Senkaku to the United States. In fact,
neither China nor Taiwan officially protested the exercise of U.S. or Japanese
sovereignty over the Senkaku until 1970, almost twenty years after a
proclamation transferred the islands to U.S. administration. The
Senkaku were even included in official Chinese government maps and textbooks
as non-Chinese territory. In 1972, after the dispute had begun,
the United States returned the islands to Japan. Since then, Japan has
asserted sovereignty over the islands by building a lighthouse, making
numerous official visits, and closely patrolling the islands with its Self-
Defense Forces. Japan contends that continued and active control over a
territory is a major criterion for demonstrating ownership.
The Senkaku dispute is by no means settled. It still is debated among
scholars, and international courts have not made any official ruling
about the islands’ true ownership.
C. Determining Ownership of the Senakaku
1. Legal Standard for Disputed Island Ownership
The Pulau Ligitan and Pulau Sipadan case, decided by the International
Court of Justice (ICJ) in 2002, exemplifies an accepted rule of international
law regarding island disputes: active occupation and effective
control over territory supersedes ambiguous ancient title. The case
involved a territorial dispute between Indonesia and Malaysia over two
small islands, both located in the Celebes Sea, northeast of Borneo.
Each state claimed ownership through succession to previous claims.
In this case, as well as in the preceding cases supporting this ruling, the ICJ
examined modern control of the relevant islands to determine claims of
historical title. Displays of sovereignty are essential to prove ownership.
Also, failure to protest another state’s occupation of claimed territory
is seen as a de facto acceptance of the other state’s ownership. The
ICJ focused on which state actually occupied and administered state functions
over the disputed islands as well as to what extent the states acquiesced
to the other’s authority. Accordingly, the ICJ awarded both
Ligitan and Sipadan to Malaysia, because Malaysia had exercised authority
over the islands.
The ruling illustrates what constitutes ownership under ICJ standards.
Indonesia claimed ownership of the islands because Dutch and Indonesian
navies patrolled the area and Indonesian fishermen were active around the
islands. The ICJ rejected Indonesia’s claim of ownership based on
patrols by the Dutch and Indonesian Navies and the activities of Indonesian
fishermen around the islands. In addition, the ICJ viewed Indonesia’s
failure to use the islands as base points when drawing baselines for
the territorial sea as evidence against ownership. In contrast, the ICJ
held that Malaysia owned the islands because it licensed boats to use the
islands, constructed and maintained lighthouses on the islands, and
collected sea turtle eggs from the islands. Further, the ICJ noted that in
cases of small islands, even sparse evidence of ownership can be
persuasive.
The ICJ applied what has become a litmus test for island ownership:
occupation and a rapid protest against foreign encroachment on land indicate
ownership. Failure to execute those two actions results in forfeiture
of possible title.
2. Japan’s Superior Claim over the Senkaku
In applying the ICJ standard from the Pulau Ligitan and Pulau Sipadan
case, it becomes clear that Japan has a superior claim over the Senkaku
Islands. Japan has maintained sovereignty over the Senkaku and has
peacefully governed the islands for the last thirty-seven years without dispute. Japan demonstrated ownership by including the Senkaku in its
national censuses and building lighthouses on the islands. According
to the ICJ’s principles, exercise of these duties indicates ownership.
China waited almost twenty years to protest Japanese control of the islands,
and did so only when the issue of natural resources arose. Even if
China previously used the islands, “discovery” is not tantamount to effec-
tive “occupation” and cannot generate valid territorial title. Japan’s
peaceful and effective occupation of the islands, therefore, indicates a superior claim.
Japan’s ownership of the Senkaku Islands greatly strengthens its
boundary claim, although whether the islands are base points depends on
whether the islands are considered “habitable” and whether they are
indeed “islands” and not “rocks.” If Japan were declared the legal owner
of the islands, the Japanese EEZ would expand at least to the claimed
median and probably further. If China were declared the legal owner of the
islands, its claim of a continuous continental shelf would be greatly
strengthened.
http://organizations.lawschool.cornell.edu/ilj/issues/42.3/CIN305.pdf
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