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Wednesday, February 26, 2014

China is (Rightly?) Ignoring the Law of Discovery

Writing for Slate, Eric Posner has a look at the dispute between China and Japan over who ownes the the Senkaku/Diaoyu Islands.  The short article has a great passage about the relationship between property and power:

The international law that governs territorial disputes favors Japan. When no one occupies or controls a piece of territory, it is deemed terra nullius (“land belonging to no one”). That was the status of the islands before 1895. The ancient Chinese texts do not establish Chinese control. A typical example is a diplomatic record from 1534 that says, “The ship has passed Diaoyu Island.” The ship was carrying a Chinese official, but passing by an island and calling it Diaoyu does not establish sovereignty. A country does that by showing it has seized a territory through an official act and then exerted control over it or that its government has controlled it as long as anyone can remember. Since China did not control the islands before 1895, Japan had the right to seize them. It then lawfully maintained sovereignty over them by ruling them. [...]

And yet that’s hardly the last word on the matter. The rules of international law to which both sides appeal embody the power relationships that existed at the time of their emergence centuries ago. At that time, the great powers raced around the world claiming territories that were either unoccupied or occupied by native tribes. With a lot of territory to snap up, it made sense for them to implicitly agree not to contest one another’s conquests so that they could all concentrate on seizing the areas that were up for grabs. This raised some significant questions. Could one seize an entire continent by placing a flag on a tiny piece of it? Could one conquer an island by sailing by it and putting it on a navigation chart? To the contrary, the rough norms that evolved required more significant control—perhaps a post office or a military garrison. This ensured that a country could own territory only if it was powerful enough to control it.

In 1895, Japan was on the cusp of great-power status, while China was beset by internal turmoil and foreign pressures. Japan could control the islands; China could not. Now China has the upper hand and is unhappy with the 19th-century division of spoils. Why should it go along with territorial allocations that result from rules that favored strong nations a century ago?

http://lawprofessors.typepad.com/property/2014/02/china-is-rightly-ignoring-the-law-of-discovery.html

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