Nicholas Kristof at the New York Times has a guest post up by a Japanese professor, explaining the legal and historical arguments behind his country’s claim to the Senkaku/Diaoyu Islands.
Professor Nishi sets out the legal case against Chinese ownership of the islands:
Before 1970, the People’s Republic of China did not merely acquiesce to Japanese sovereignty over the Senkaku/Diaoyu Islands. China demanded self-determination for the U.S.-administered Ryukyu Islands, with an option of return to Japanese administration, while specifically including the “Senkaku Islands”. Thus, China agreed with the United States and Japan that, in the event of the Ryukyu Islands’ return to Japanese administration, the United States should also return the Senkaku Islands to Japan.
The common law doctrine of estoppel prevents a party from gaining by making an allegation or denial that contradicts what the party has previously stated as a fact.
According to Article 38 of the Statute of the International Court of Justice, if Japan and China ever agree to refer China’s claim to the Senkaku/Diaoyu Islands to the Court, the Court shall either apply the following four standards, or if the parties agree thereto, ignore them and decide the case ex aequo et bono (i.e., according to what is right and good, rather than according to the law):
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
The Court has applied the general principle of estoppel in a number of cases, including disputes over islands.
Professor Nishi’s piece was in response to Taiwanese scholar Han-Yi Shaw’s previous post on Kristof’s blog, “The Inconvenient Truth Behind the Diaoyu/Senkaku Islands“.