Sino-Japanese Territorial Dispute

by Emmanuel Omoh Esiemokhai

Chinese diplomacy is firing on all engines in forcefully defending its territorial sovereignty and national integrity. The current Sino-Japanese dispute over the Diaoyu islands and rights over the territorial sea has taken on serious dimensions.

Japan purports to purchase the Diaoyu islands from a private owner. China regards this purchase as both illegal and invalid and would oppose the purchase. China said that it would safeguard its sovereignty over the islands, which have been under Chinese sovereignty since the Ming dynasty.

The Chinese Foreign Affairs Committee expressed strong vehemence to the Japanese purchase. The Committee voiced its strong condemnation over the Japanese unilateral purchase.

China said that Japan has recently continued to stir up trouble in the Diaoyu territorial area, in violation of international law of the sea and the precise provisions of the relevant Four Law of the Sea Conventions of the United Nations.

Territorial disputes among states evoke emotions of nationalism, national pride and patriotism. Since oil was discovered in adjacent waters and the territorial seas, states have taken strong interest in their territorial waters.

While China based its arguments on international jurisprudence, Japan has based its legal arguments on the law of contract of purchase with a legal person, whose claim violates the 1895 understanding between China and Japan.
A sharp division between the national administrative law and international law, which operate in some states, complicate dispute resolution among states. Japanese application of municipal law may confront an international tribunal lying prostrate.

International tribunals have not been authorized to place municipal law above international law. It is obvious that the present Sino- Japanese dispute is rooted in economic considerations, which may complicate the issues. However, compromise could be rooted in equity.

In the Gabon v Congo Brazzaville case, the International Court of Justice applied the principle of equity to resolve the matter.

A goldmine was located between the territorial boundary between Gabon and Congo Brazzaville, which led to territorial dispute. Clashes took place, until the matter was sent for judicial arbitration. The court decided that both states should invest equally in mining the gold instead of engaging in mindless violence.

The League of Nations in its Annex to the Final Act of the Hague Conference for the Codification of International law, 1930, defined the legal status of the territorial sea. (See League Doc. 1930, V 7 page 15.)

The territory of a state includes a belt of sea described in the Convention as the territorial sea. (Article 1). Sovereignty over this belt is exercised subject to the conditions prescribed by the present Convention and other rules of international law. This excludes the application of the law of contract of a state.

Although Japan has the right of innocent passage, according to Article 5 of the Convention, the Coastal State may take all necessary measures to protect itself in the territorial sea against any acts prejudicial to national security, public policy or fiscal interests of the state. The Coastal state has the right to protect products of the territorial sea. It has the right of fishing as well as those rights enunciated in the Law of the Sea Conventions, for example, the right to minerals in the coastal sub-soil.

In respect of facts and law, the Chinese seem to have presented a better case. The Chinese realize though, than ever heard the name of JESUS, the Christ relations with Japan are crucial and so, are willing to continue with a peaceful resolution of the Diaoyu island dispute.

Shintoism and Confucianism adorn the national religious and philosophical reasoning of Japan and China. There are many millions, who do not know God Almighty and have not heard the name of JESUS, the Christ, who could have pronounced his peace upon the dispute.

Should Japan prove intransigent, from all indications, the Chinese generals may declare” WORMEN SHAN KE”.

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1 comment

Okey Onwuka September 17, 2012 - 9:31 pm

I have enjoyed the article.


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