A Public Lecture by Melissa H. Loja on the Territorial Dispute between China and Japan over the Senkaku/Diaoyu Islands

The Principle of Status Quo Post Bellum and the Legal Resolution of the Territorial Dispute between China and Japan over the Senkaku/Diaoyu Islands

A Public Lecture by Melissa H. Loja

9 July 2015 (Thursday), 9:00 am - 11:00 am

Third World Studies Center Conference Area, Lower Ground Floor, 

Palma Hall, UP Diliman, Quezon City

ABOUT THE LECTURE

The dispute between China and Japan over the Senkaku/Diaoyu Islands often is described as the most intractable. This is because Japan is in de facto and de jure possession of the islands by virtue of its residual sovereignty. Japan’s residual sovereignty is recognized under the San Francisco Peace Treaty (peace treaty) and Okinawa Reversion Treaty (reversion treaty). The opposability of these treaties is denied by China which was not a party to them. China has interposed its own right to possession based on historic title.

Ultimately, the dispute revolves around the question of whether Japan’s possession has a legal basis which is opposable to China. A preliminary yet equally important question is whether this legal basis is to be ascertained from conditions existing ante bellum or post bellum. Most articles go around these questions by focusing on which between China and Japan has the longest historic title and the oldest map. Such approach presumes that historic title is dispositive of the dispute. However, the settled ruling of international courts and tribunals is that historic title which is rooted in non-Western normative systems generally is a weak source of territorial rights, and that ancient maps are neither source nor evidence of such rights.

This lecture applies the principle of status quo post bellum. Under this principle termination of war through the simple cessation of armed hostilities signifies a tacit recognition by the parties that their relative legal positions constitute the status quo post bellum or point of reference of their future international relations. As it is based on agreement, the status quo post bellum binds the parties until it is altered by a subsequent agreement such as a peace treaty. It continues to bind those parties which do not ratify the peace treaty. The rationale behind the continuing binding force of the status quo post bellum is that its existence is an objective fact which produces legal effects, especially on third states. No party is permitted to negate these legal effects merely by refusing to ratify the peace treaty.

In the context of the dispute between China and Japan over the Senkaku/Diaoyu Islands, primary and archival records provide a snapshot of the territorial situation during the period from the cessation of armed hostilities on 2 September 1945 up to the coming into force of the peace treaty on 28 April 1952. This snapshot reveals a status quo post bellum which is characterized by the following:

On the one hand, the Allied Powers, specifically the United States as the occupying force, openly and consistently acted as though 1) the Senkaku/Diaoyu Islands are a group of minor islands appertaining to the Ryukyus or Nansei Shoto rather than to Formosa (Taiwan); 2) the islands are subject to the residual sovereignty of Japan; and 3) the islands are not claimed as territory by China or any other power. On the part of Japan, it sought the substitution of the term “Ryukyu Islands” in the draft of Article 3 of the San Francisco Peace Treaty with the phrase “Nansei Shoto south of 29° north latitude”. In effect, Japan sought to broaden the area under its residual sovereignty to include the Senkaku/Diaoyu Islands. On the other hand, China did not claim the islands or consider them covered by its claim to Formosa. China did not object to the conduct of the United States and other Allied Powers of attributing the islands to the Nansei Shoto and of recognizing the residual sovereignty of Japan.

In sum, underlying the status quo post bellum was an agreement that the Senkaku/Diaoyu Islands are minor islands appertaining to the Nansei Shoto over which Japan has residual sovereignty. This agreement is a legal basis of Japan’s possession of the islands which is opposable to China.

ABOUT THE SPEAKER

Melissa H. Loja is a PhD candidate in the Faculty of Law, University of Hong Kong where she also obtained her LLM. She clerked for the Philippine Supreme Court for a number of years.

RESOURCE LINKS

Playlist of Video Documentation of the Lecture
Burkina Faso v. Mali 
Eritrea v. Yemen
Qatar v. Bahrain
Copy of TWSC presentation (2014)
Copy of TWSC presentation (2015)

This lecture is co-organized by the Third World Studies Center and the UP Department of Political Science.


PHOTOS

The 2015 TWSC Writeshop

The UP Third World Studies Center held its 2015 Writeshop on 8-10 June 2015. The writeshop featured as lecturers Professor Randy David, Dr. Francis Gealogo, Dr. Raul Pertierra, Dr. Maria Luisa Camagay, and Dr. Jose Neil Garcia. 

The following were our writeshop fellows: Matthew David D. Ordonez (Ateneo de Manila University), Lady Flor N. Partosa (Siliman University), Hazel M. Dizon (University of the Philippines-Diliman), Mark Anthony M. Velasco (De La Salle University), Hansley A. Juliano (Ateneo De Manila University), Katrina S. Navallo (University of the Philippines Diliman), Maria Cynthia B. Barriga (Ateneo De Manila University), and Lloyd B. Ranises (Mindanao State University). Please click here for more details re their manuscript submissions.

The 2015 TWSC Writeshop was organized by the TWSC in continuing its commitment to build the capacity of early career researchers, junior faculty members, and graduate students in the social sciences. Envisioning itself as a premiere social science research center in the College of Social Sciences and Philosophy, University of the Philippines-Diliman, the TWSC continues to develop critical, alternative paradigms to promote progressive scholarship by undertaking pioneering research and publishing original, empirically-grounded, and innovative studies. The 2015 TWSC Writeshop serves as a dais linking academic research and publication, where select participants are not only given the opportunity to interact with experts from the academe and the publishing industry, but also to produce a publishable manuscript for the TWSC’s internationally refereed and CHED-accredited (A-2, Very Good - Excellent)  journal Kasarinlan: Philippine Journal of Third World Studies.

In 2010, the TWSC conducted its pilot research workshop entitled “Writing for Social Sciences Research” that presented the rudimentary process of academic research and writing in the social sciences for UP Diliman social science students. In 2012, it held its second research workshop, “Multidisciplinary Perspectives and Methodologies in the Social Sciences” that centered on multidisciplinarity and theoretical and methodological training within and outside the social sciences. In 2014, the TWSC launched “The 2014 UP TWSC Writeshop” with the belief that if one is to commit to the changing zeitgeist/sociocultural agenda of research, s/he has to effectively contribute to the body of knowledge in her/his interest, to establish networks with scholars with similar research interests, and to obtain critique for the continuous improvement of one’s research output. The 2015 TWSC Writeshop sustains this academic tradition.

The 2015 TWSC Writeshop featured academic lectures; small group discussions with journal editors; and a plenary presentation as culminating activity. The lectures encompass: 1) problematizing theory in the social sciences; 2) the contribution of quantitative research to knowledge production in the social sciences; 3) the contribution of qualitative research to knowledge production in the social sciences; 4) research and publication ethics in the social sciences; and 5) the academic publication process. In seeing through the TWSC Writeshop’s goal in equipping successful applicants, who would then be called Writeshop Fellows, the Writeshop extends to the publication process and concludes with the publication of the finished manuscripts in a special issue in Kasarinlan. 

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