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.