Status quo post bellum and the legal resolution of the territorial dispute between China and Japan over the Diaoyu/Senkaku Islands

Abstract

The dispute over the Senkaku/Diaoyu Islands often is described as intractable. Japan is in possession by virtue of the San Francisco Peace Treaty (Peace Treaty) and Okinawa Reversion Treaty (Reversion Treaty). China denies the opposability of these treaties for it was not a party to them. China claims a right to possession based on historic title. The question is whether Japan's possession has a legal basis which is opposable to China. Most articles focus on historic titles and ancient maps. However, international tribunals disregard claims to historic title that are not supported by evidence of exercise of territorial sovereignty by the original title holder. They disregard ancient maps that are not integral part of an agreement. This article applies an alternative approach which relies on the status quo post bellum (status quo). The status quo is the relative legal position of the parties at the end of armed hostilities and the starting point of their future international relations. It is a useful tool for resolving territorial disputes. In Eritrea/Yemen and Qatar/Bahrain the status quo which prevailed at the end of armed hostilities precluded reversion to ancient title over disputed territory. In Argentina/Chile and Benin/Niger, territorial disputes among former colonies were resolved based on uti posseditis, which jurists equate to status quo post bellum. More importantly, in various instruments, China, Japan and the Allied Powers outlined the status quo in the East China Sea to guide them in the future disposition of the islands after the Second World War.