China-Japan
cally eroding China’s regional influence through drawn-out territorial disputes. Moreover, because China’s territorial claims are largely grounded in historical delimitations, and therefore more anti- quated than modern applications of international law, formal adjudication before an international tribunal appears imprudent.
Modern international law suggests that for states to acquire sovereign territory there must be “an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis.” Indeed, states may acquire sovereign territory through accretion, cession, conquest, prescrip- tion, and effective occupation for a reasonable period of time. Here, China appears to be using “legalized international institutions to achieve strategic ends,” namely, resolving its maritime ter- ritorial disputes. By using international institutions and deliberate exercises of military power, China has tacitly challenged Japan’s administrative con- trol over the East China Sea.
In The Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan, Indonesia and Malay- sia disputed sovereign claims over two islands in the Celebes Sea. The International Court of Jus- tice (ICJ) rejected both states’ claims that they were granted sovereignty through a succession of titles. Instead, the ICJ recognized that Malaysia exercised “legislative, administrative and quasi- judicial acts [over the islands for]… a considerable period of time and show[ed] a pattern revealing an intention to exercise state functions in respect of the two islands.” Finding for Malaysia, the ICJ wrote:
A claim to sovereignty based not upon some particular act or title such as a treaty of ces- sion but merely upon continued display of authority, involves two elements each of which must be shown to exist: the inten- tion and will to act as sovereign, and some actual exercise or display of such authority. Another circumstance which must be taken
into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.
Therefore, China’s ADIZ poses two undesirable security outcomes. First, regular compliance with China’s ADIZ requirements establishes the prece- dent, and eventually the customary law, for China’s unilateral expansion of sovereignty over disputed territories. Alternatively, should an incident occur while China’s ADIZ is largely disputed or ignored, the ADIZ functions as a legal defense. This would arm China with the tools to either absolve itself of blame or to politically escalate the crisis.
Resolutions and Moving Forward
Foremost, since both China and Japan rely on similar bodies of international law to resolve their territorial disputes, bringing a case before the ICJ appears prudent. Because ADIZs cannot intrude upon sovereign territory, a binding judgment on the Senkaku Islands dispute would formally shield the victor from frivolous challenges; however, while Japan has exhibited a willingness to bring a case before the ICJ with respect to territorial disputes with South Korea, it has been particularly reluctant to do so with respect to China.
Apart from an ICJ decision, increased communi- cation between China and affected states would also be beneficial, especially considering the con- troversy borne from the Chinese government’s mixed messages. Dialogue is particularly relevant because the Chinese Foreign Ministry has already expressed plans to create a second ADIZ in the South China Sea, in violation of the 2002 Declara- tion on the Conduct of Parties in the South China Sea. While China has expressed a willingness to rely on international legal institutions to resolve its disputes, the geopolitical tensions underlying its claims, combined with a distinct lack of dialogue, renders the future of China’s territorial claims un- clear.
. ILSA Quarterly » volume 22 » issue 3 » February 2014
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