The Senkaku Islands and the Problem of Intertemporality

An underappreciated complexity in the dispute over the Senkaku Islands is that the merits of the competing claims don’t hinge exclusively on contemporary international law. One of the most central issues is whether the Senkakus were terra nullius when Japan annexed them in 1895. If they were, then Japan prevails on the merits. But in deciding this issue, we’re technically not supposed to look for guidance in recent ICJ opinions, recent scholarly articles and treatises, or recent state practice. The reason is something called the doctrine of intertemporality, which requires that the legality of events be judged in light of the law contemporaneous with their occurrence, rather than with the law in force at the time a dispute is ultimately resolved. The appropriate question, in other words, is not simply whether the Senkaku Islands were terra nullius under the doctrine of occupation, but whether they were terra nullius under that doctrine as it existed in the years leading up to the date of Japanese annexation in 1895. Twentieth and twenty-first century developments in the doctrine are, strictly speaking, irrelevant.

This refinement complicates the analysis in two ways. First, it creates a certain level of unavoidable indeterminacy. There was far less law on the doctrine of occupation back in the nineteenth century. No international tribunals had issued decisions on the matter by that point, and even scholarly treatments were fairly sparse. Once we acknowledge that the contemporaneous authorities didn’t provide substantial guidance on what constitutes effective control, it becomes hard to say with certainty whether China had established effective control over the islands prior to 1895.

A second and more fundamental problem is that it’s questionable whether it’s even appropriate to apply the doctrine of occupation in the first place, regardless of its variant intertemporal manifestations. Today we take for granted that international law applies universally, to all states. But it wasn’t always so. Originating in Western Europe, it took time for this body of law to migrate to other parts of the world. And as recent works by Shin Kawashima and Masaharu Yanagihara demonstrate, that migration didn’t reach China and Japan until the late 1800s. China, for example, didn’t have a single text on Western international law until 1865, and didn’t view itself as operating within the framework of that law until after the First Sino-Japanese War in 1894-1895. To the extent that Chinese officials utilized Western doctrines prior to that time, it was, according to Kawashima, purely tactical: the idea was to “gain[] the upper hand over the West by using the tools of the West.” Similarly, Yanagihara explains that Japan had no knowledge of Western international law prior to Commodore Perry’s arrival in 1853, and that there were no Japanese translations of any relevant texts prior to 1865.

This history carries real significance for the debate over Japan’s early occupation of the Senkakus. At a minimum, it calls into question the legitimacy of using an historically Western doctrine to ascertain the legal consequences of events that took place before the parties themselves accepted the doctrine’s relevance and binding force. As late as October 1874, while locked in a dispute with Japan over the status of Taiwan, China specifically rejected the applicability of the Western concept of terra nullius. In Yanagihara’s words, the Chinese Foreign Ministry asserted that “it was useless to talk about international law in cases concerning Taiwan and China” because “international law ha[d] been quite recently invented in Western countries.” The relevant conceptual framework, in China’s view, was instead the Sino-centric order that had predominated in East Asia for centuries—an order that would presumably resolve uncertainties about the “sovereign” (to the extent such a concept existed) status of proximate “territory” (to the extent such a concept existed) in favor of China itself.

These observations are problematic for an occupation-based Japanese claim to the Senkaku Islands. They don’t, however, do much of anything to a Japanese claim founded on acquisitive prescription, which would rely entirely on effective control that occurred after 1895 and after the two sides had adopted the framework of Western international law. For Japan, this is one of the reasons why acquisitive prescription seems to be a stronger argument than occupation.

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Residency Venue in Cases with Foreign Corporate Defendants

A few years ago, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, in part to resolve, as the title suggests, uncertainties concerning the old venue statute. The effort succeeded in various regards, but Congress seems to have unwittingly created a new problem in the course of correcting others. Specifically, it’s not clear how to determine residency venue under 28 U.S.C. § 1391(b)(1) when at least one of the defendants is a foreign corporation.

The statute appears to provide two contradictory solutions: First, venue is appropriate in a district only if at least one defendant resides there and all defendants—including the foreign corporation—reside in the state in which the district is located. In this analysis, 1391(c)(2) decides residency questions for all corporate defendants such that a foreign corporation, like any other, is a resident of the given state only if it is subject to personal jurisdiction there. Alternatively, venue is appropriate in a district only if at least one defendant resides there and all defendants—excluding the foreign corporation—reside in the state in which the district is located. Under this option, 1391(c)(2) only governs the residency of domestic corporations; foreign counterparts are “not resident in the United States” under 1391(c)(3) regardless of whether they are subject to personal jurisdiction in the state in which the district is located, and thus “may be sued in any district” and “disregarded” in determining whether venue is appropriate under 1391(b)(1).

The difficulty arises because it’s not clear whether 1391(c)(2) and (c)(3) operate on the same concept of residency. One would think they do. After all, there is no specific indication of different meanings, both provisions are part of 1391(c), and an accepted canon of construction holds that a term used more than once should typically carry the same meaning throughout a statute. But this would lead to a bizarre result: If 1391(c)(3) incorporates (c)(2)’s personal jurisdiction-based concept of residency, then “not resident in the United States” under (c)(3) means not subject to personal jurisdiction in the United States, and a foreign corporation may be sued “in any district” only if it is not subject to personal jurisdiction here. That amounts to a null set of venues in which federal courts can constitutionally adjudicate claims against non-resident corporate defendants.

We could avoid this problem by adopting a different interpretation of 1391(c)(3). One possibility is that the provision uses a narrower concept of residency, defined exclusively in terms of state of incorporation and principal place of business: a foreign corporation is “not resident in the United States” even if it’s subject to personal jurisdiction here, as long as it’s incorporated and has its principal operations abroad. On this view, 1391(c)(3) doesn’t become inapplicable simply because there’s personal jurisdiction over the defendant. Such an interpretation would not only render 1391(c)(3) more useful in the sense that it would facilitate venue in cases in which a district court can constitutionally exercise jurisdiction, it would also align with 1391(c)(3)’s approach to human defendants, which permits venue anywhere with respect to individuals who are domiciled abroad even when personal jurisdiction is present. A second possible interpretation is that 1391(c)(3) applies only to human defendants, leaving 1391(c)(2) as the sole basis for determining whether 1391(b)(1) applies in cases with any kind of corporate defendant.

But both of these options raise their own difficulties. For one, there is no clear textual justification for saying that residency under 1391(c)(3) means something different than it does under (c)(2), or for concluding that (c)(3) applies only to natural persons. On top of that, different meanings would make it hard to decide in principle which of the two provisions governs: Is a foreign corporate defendant a non-resident under (c)(3)? Or is it an entity under (c)(2)? There’s a sense in which it would be both, so neither provision would be more specific.

Uncertain about the proper resolution, I did a quick Westlaw search to see how courts and influential treatises have handled the issue. None of these sources provide any thorough analysis on point, but they do imply that 1391(c)(3) applies even when foreign corporations are subject to personal jurisdiction in the United States. Coupling this fact with the difficulty that accompanies the contrary interpretation, the best view seems to be that 1391(c)(2) and (c)(3) use different concepts of residency, with the latter pointing simply to entities that are incorporated and headquartered overseas.

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More Responses to the Dudden Op-ed

The New York Times just published a collection of thoughtful (and warranted) responses to Alexis Dudden’s recent op-ed on Japan’s territorial claims. I wrote earlier that Dudden’s piece disregards international law, and I stand by that. The responses contend that it also misinterprets the Japanese language and history (I agree on both points).

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Some Historical Perspective on Netanyahu’s Address to Congress

Today there’s some interesting news from the realm of foreign relations law: Israeli Prime Minister Benjamin Netanyahu will give an address to Congress next month on the topic of Iran’s nuclear program, presumably to encourage legislators to support a hardline stance and perhaps to undermine the President’s ongoing efforts to achieve a diplomatic solution. To me, the noteworthy part is not so much the address itself, but rather the process by which it was arranged: the White House had no role. In fact, the Administration didn’t even know about it until today. John Boehner says that he invited Netanyahu without consulting officials from the executive branch because “Congress can make [such a] decision on its own.” The President’s Press Secretary responded that it was a breach of protocol for Netanyahu to plan a visit without first contacting the White House.

A couple of quick points. First, addresses of this type have a long historical pedigree. Consider these facts from the Office of the Historian of the House of Representatives, which has a fun website on the subject:

  • The House initiated the practice in 1824 by inviting an address from the Marquis de Lafayette.
  • In 1874, King David Kalakaua of Hawaii became the first foreign dignitary to receive an invitation to address a joint meeting of Congress.
  • Since 1874, approximately 115 foreign leaders and dignitaries have addressed joint meetings of Congress. This group includes people such as Nelson Mandela, Winston Churchill, Margaret Thatcher, Angela Merkel, Queen Elizabeth II, King Hussein I, and Yitzak Rabin.
  • Dignitaries from France and the United Kingdom have given the most joint-meeting addresses, followed by dignitaries from Israel (7), Mexico (7), Italy (6), Ireland (6), the Republic of Korea (6), Germany (5), India (4), Canada (3), Argentina (3), Australia (3), and the Philippines (3).
  • Single-chamber addresses were the norm initially, but addresses to joint meetings became standard after World War II.

The second point is that all of this practice implicates the separation of powers, particularly the President’s authority over official diplomacy. Whether it’s constitutional seems to depend heavily on your preferred method of interpretation. Originalists and textualists would probably have a hard time identifying the basis for it. Invitations might generally be ok if you think that customary practice can inform the separation of powers, but it’s unclear whether there’s any precedential support for the specific idea that Congress can invite foreign leaders without consulting the President and even against the President’s wishes. Most of the historical practice appears to have involved at least some coordination with the executive branch.

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A Short Response to the Dudden Op-Ed

The New York Times published an op-ed today by University of Connecticut history professor Alexis Dudden, who criticizes the Japanese government for starting or at least intensifying territorial disputes with China, Korea, and Russia. Dudden contends that Japan’s territorial claims are “expansionist” and “distort[] history” in a way that undermines the country’s major interests. In my view, she fails to justify this conclusion in two respects.

First, Dudden makes an implicitly legal argument in suggesting that Tokyo’s claims are expansionist, but never engages with the law of territorial sovereignty. She does not discuss the doctrines of acquisitive prescription and occupation, for example, even though they are central to the merits of the competing claims. The op-ed refers at times to UNCLOS, but also acknowledges its irrelevance by saying that the treaty “does not determine sovereignty over land.” In a common maneuver, Dudden focuses instead on history and the Japanese government’s actions during the late nineteenth and early twentieth centuries. But of course that alone is little help—one cannot resolve a dispute over title simply by reference to historical events; sovereignty is a question of law, and history is relevant only insofar as the law says so, and in the way that the law specifies. To credit or discount one party’s position without applying relevant legal doctrine and precedent is to say, in essence, that international law does not matter. Of course, Dudden and others are perfectly free to make that argument. But they should do so explicitly, rather than act as if the law is relevant while simultaneously declining to apply it.

Second, Dudden’s argument is too categorical in the sense that it treats the various territorial disputes as an undifferentiated whole. The law of territorial sovereignty is highly fact-dependent. Small variations in the degree and duration of effective control can make a big difference in determining title, so Japan could easily have the better argument in some of the disputes even if it has the weaker argument in others. You can’t draw conclusions about the merits of Japan’s position on the Senkaku Islands, for example, even if you are convinced that Japan’s claim to Takeshima/ Dokdo is frivolous, or vice versa.

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The Senkakus in the ICJ

The Japan Times published an article today reporting that, in Jerome Cohen’s view, Japan should take the dispute over the Senkaku Islands to the International Court of Justice. From Tokyo’s perspective, this could be a win-win: either China consents to jurisdiction, in which case Japan likely prevails on the merits, or China refuses to consent, in which case Japan has achieved a significant diplomatic victory by coming across as the only party sufficiently confident in its claim to seek a resolution before an international tribunal. Why hasn’t this happened? One possibility is that the Japanese government simply doesn’t want to run the risk that the ICJ will rule against it, however unlikely that may be. Another possibility is that litigation would require a reversal of Tokyo’s longstanding position that there’s “no dispute” to begin with–one cannot simultaneously litigate a claim and deny that there’s anything to litigate–and Tokyo fears that the change will weaken national credibility. Still another concern might be that recognizing the existence of a dispute will create unwanted opportunities for China. Beijing might respond, for example, by demanding bilateral negotiations and using its steadily increasing leverage to insist upon a series of painful concessions.

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Thoughts on Proposals for a Sino-Japanese Bargain

Commentary on the longstanding contest over the Senkaku/ Diaoyu Islands may be entering a new and more conciliatory phase. A lot of early scholarship focused on the zero-sum question of who has proper title under international law, but more recent analyses have started to explore paths toward a cooperative resolution. Last month, Akikazu Hashimoto, Michael O’Hanlon, and Wu Xinbo offered a multi-pronged plan under which China and Japan would promise not to raise new territorial disputes in the future, the parties would agree to decouple EEZ determinations from sovereignty over the Islands themselves, each side would acknowledge the other’s territorial claim, and Japan would delegate rights of administration to a joint oversight board with authority to regulate patrols and use. The authors view their approach as “designed to respect the core interests and nonnegotiable demands of both claimants to the islands.” Under a separate proposal by Mark Rosen, Tokyo would concede that the islands are not entitled to an exclusive economic zone (EEZ), Beijing would pull back excessive straight baselines along the coast of the Chinese mainland and acquiesce to Japanese effective control over the Islands, and the two sides would divide the sea space opened up as a result of their respective concessions. Rosen frames his plan as a simple application of international law and asserts that it will resolve tension by “tak[ing] the Senkaku off the table in terms of the effect that those islands have in establishing a maritime boundary in the East China Sea.”

These scholars share a commitment to the idea that a grand bargain is the most likely path to a peaceful resolution, and their proposals are admirably creative. But they also share a common problem in that they misapply international law in ways that uniformly disfavor Japan. Consider two key points:

First, Japan has a superior claim to title over the Islands. I acknowledge that it may be difficult for readers to view this argument as anything other than yet another partisan salvo in what has become a tired and seemingly intractable debate. But the characteristics of the debate itself should not obscure the fact that the law supplies a doctrinal resolution. The best answer to the question of title is not an unknowable mystery, obscured by rhetorical heat, high stakes, and history, but a simple puzzle very similar to dozens of others that international tribunals have resolved over the course of the twentieth and twenty-first centuries. And on balance, the best solution to that puzzle is that the relevant historical facts and legal doctrines favor Japan, which has exercised effective control over the Senkaku Islands for over a century, with prolonged periods of Chinese acquiescence. Those who remain skeptical should consider the views of other thoughtful analysts (here and here) who have reached the same conclusion.

Second, the Senkaku Islands probably create an EEZ. Article 121(3) of the UN Convention on the Law of the Sea provides that land features have no EEZ if they are “[r]ocks which cannot sustain human habitation or economic life of their own,” but the Senkakus do not appear to be rocks of that type. It is widely acknowledged that Tatsuhiro Koga—a longtime lessee of the Islands—brought scores of seasonal workers to live there and operate businesses processing bonito and collecting albatross feathers in the early twentieth century. In carrying out those activities, Koga demonstrated that the Senkakus are capable of sustaining both human habitation and economic life of their own. To conclude that the Islands are rocks despite this history, one must find that they are no longer capable of fulfilling functions that they previously fulfilled for extended periods of time. I have seen no evidence to support such a finding.

These observations suggest that the recent proposals for a grand bargain are unfair to Japan. Equipped with the better legal argument, why would Tokyo agree not only to acknowledge the Chinese claim but also to delegate administrative rights? And given that the Islands probably add significantly to Japan’s EEZ, why would Tokyo accept that they do not? For advocates of conciliation, the answer is that Japan would win concessions in return. O’Hanlon has emphasized that Japan could gain a Chinese promise not to raise additional territorial disputes or contest Japan’s rights of administration, while Rosen proposes that Japan could win Beijing’s agreement to pull back straight baselines along the coast of the Chinese mainland. But from a legal perspective, these are sour deals for Tokyo. None but the most ardent Chinese nationalists think that the PRC has anything better than a frivolous claim to other territories currently administered by Japan, and even Rosen describes the Chinese straight baselines as “excessive.” In truth, what these commentators are proposing is that Japan give up comparatively strong legal claims in exchange for China’s abandonment of comparatively weak claims. This might be sensible for any number of reasons, including the trajectory of the regional balance of power, but none of those have anything to do with international law. If the parties achieve a diplomatic solution, it will be in spite of the law, rather than with its assistance.

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