WHEN ARE ISLANDS NOT ISLANDS: THE PROBLEMS OF ESTABLISHING SOVEREIGNTY OVER THE SENKAKU / DIAOYU ISLANDS

Abstract

ABSTRACT The article takes a critical look at the sovereignty claims surrounding the Senkaku / Diaoyu Islands. The dispute has long plagued Sino-Japanese relations and is considered one of the key regional security hotspots, with the People's Republic of China mounting an active challenge to Japanese administrative control. This article reviews the case for sovereignty under both the discovery and the prescription principles. However, the article concludes that one cannot find a compelling case for sovereignty under either principle in favour of either claimants. The paper argues that this is due to the traditional insignificance of the islands prior to UNCLOS establishing exclusive economic zones. Rather, the article suggests that to facilitate a resolution to the disputes, the islands should not be classified as islands under UNCLOS as they do not meet the legal threshold for such a classification, either today or historically. If anything, the weakness of claims that contributes to the intractability of the dispute today shows that traditionally neither China nor Japan has considered these territories as islands in a manner that would be in the spirit of UNCLOS. While such a reclassification would not immediately resolve the dispute, it would be a significant step to remove incentives for the further pursuit of conflicting sovereignty over the islands.