Law Office of Jiangsu
Zhou Guanggui
Optimus Prime Japanese dispute over the Diaoyu Islands have been four if starting from 1971 years of history, if starting from 1951 has six years of history, from the Sino starting, the dispute has been over 100 years time. Recently, the Japanese fishing boat captain arrested in China, the fierce dispute between the two countries to an unprecedented extent, between the two countries has affected the political and economic relations. Fortunately, adhere to the principle of China, while emphasizing the friendly relations existing between the two countries hard-won, the Japanese also take into account the international and domestic situation, China decided to back the captain Zhanqi Xiong. Showed the captain back into the political wisdom of the two governments, but also a lot of follow-up questions, the Chinese ship to the Diaoyu Islands fishery fishing protection routine, but the repeated interference of the SDF, how to deal with this situation, the Chinese government there must be follow-up action. Diaoyu Islands issue is a political issue, territorial sovereignty, but also a legal issue, as the Chinese law, has the responsibility of the legal issues in China.
First, the origin of the dispute over the Diaoyu Islands. Back in the early Ming Dynasty
, fishing islands as Chinese territory had been clear, Ming and Qing dynasties were the fishing islands designated as within the scope of our jurisdiction. In 1895 the Qing government of Japan to take advantage of the Sino licked, in the 1943, 12 months, the United States and Britain issued the Central in 1945, the Soviet Union, the United States and Britain of the four countries signed the In the same year in August, Japan accepted the But the September 8, 1951, Japan has signed with the United States, The Chinese Government declares that there is no Republic of China to participate in the San Francisco Peace Treaty of Peace with Japan alone, is not only a comprehensive peace, and totally not real peace. The Chinese Government considered to be illegal, invalid, and therefore must not be recognized. June 17, 1971, Japan and the U.S. signed the In this regard, China's Ministry of Foreign Affairs on 30 December 1971 issued a statement strongly condemning the U.S. and Japanese governments openly to my fishing islands classified as Chinese people absolutely can not tolerate. sovereignty. Nationalist government in Taiwan was the In the United States, Chinese and Chinese communities in various ways to express
Second, the effectiveness of four documents.
on the Diaoyu Islands issue relates to the four well-known file (declaration, announcement, peace,UGGs, agreements), are: the Cairo Declaration, Potsdam Proclamation, the San Francisco Peace Treaty, the return of Okinawa agreement. Cairo Declaration provides that Potsdam Proclamation announced the so, Japan's territory is limited to the four islands of this Part and the Cairo Declaration, Potsdam Proclamation and declared the Cairo Declaration and Potsdam Proclamation have China to participate in, these two documents are the support and recognition around the world, even Japan has also accepted the Potsdam Proclamation, therefore, the effectiveness of the Cairo Declaration and Potsdam Proclamation, no doubt, in accordance with the Declaration and Notice to the Diaoyu Islands There is no doubt China's territory, Japan was in 1945 returned to the Diaoyu Islands in China.
returned to China over the Diaoyu Islands, China is still in state of civil war, failed to take into account the tiny Diaoyu Islands. After the Civil War, the Kuomintang retreat to Taiwan, China set up the People's Republic of China, there were two governments, an objective opportunity to the United States and Japan. At that time, the occupation of Okinawa by the United States for long-term occupation of the military importance, the United States and Japan in the absence of the participation of China, in 1951, signed in San Francisco Diaoyu Islands and Okinawa will be hosted by the United States, without the participation of China, Japan and the United States sovereignty over the Diaoyu Islands in China had a San Francisco Peace Treaty committed two errors,bailey UGG boots, a wrong to the Diaoyu Islands as Japanese territory, the second is wrong to Diaoyu Islands to the United States the right to rule. The defeat of Chiang Kai-shek in Taiwan, can not take the matter to the San Francisco Peace Treaty could only swallow to Chiang Kai-time position, he was not to make irresponsible remarks on the United States and Japan. In this juncture, the newly established government of the PRC Yizhengciyan to attacks carried out against the San Francisco Peace Treaty, on the content and effectiveness and about the negative, reflecting no concessions on the issue of sovereignty.
time turn in 1971, when Japan has the world's second largest economy, in sync with the U.S. strategy, and twenty years ago, the Japanese have been quite different, for in Japan and efforts, the United States and Japan also signed the the Of this agreement, the People's Republic of course objected that the agreement is a blatant violation of Chinese territory, the Chinese people will never accept.
the above analysis we can see the effect of the Cairo Declaration and Potsdam Proclamation can not be overthrown, the United States and Japan's China has no binding effect on a word, the Diaoyu Islands from the legal perspective, both the history of the Chinese territory, not Japanese territory.
III, Legal.
Japan, Meanwhile, Japan's hands,
history has entered the twenty-first century, the settlement of territorial disputes can not simply rely on force or threat of force, not only between countries than in the modern economic strength and military power than political power, diplomatic power, cultural power , history, strength, and soft power. Between China and Japan do not want to force to resolve territorial disputes,UGG boots clearance, only a military solution can be conducted under the authority of the United Nations, and the use of force to resolve disputes between States last resort. In fact the Diaoyu Islands is a small, uninhabited island, the Diaoyu Islands on the two sides, the political significance than economic significance. On the Diaoyu Islands issue, in addition to not compromise on the outside of the political (war of words continue to fight, fishery continue fishing protection), but also by the relevant national mediation (or the Cairo Declaration and Potsdam Proclamation by the good offices of the participating countries), should also be in the law As a
the Japanese in the hands of two files, we can identify the following aspects to be invalid.
1, the international treaty than a contract between nations. As mentioned earlier, the Cairo Declaration and Potsdam Proclamation, when the victors of World War II, the post-war international order to regulate a common set of universal binding the United States, Soviet Union, Britain reached the four countries. These two international treaties has not only been recognized around the world, has also been recognized by the defeated countries. Because of its representative at the time of the world trend and human justice, continues to this day the effect of two documents, those who deny these two documents will meet against the peoples of the world. Therefore, these two international treaties are essentially Look at the United States during the day, . Constraints among countries signatory to the contract only, not binding on third States and the effectiveness of international law, a contract between the State did not Therefore, compared with the Cairo Declaration and Potsdam Proclamation, the San Francisco Peace Treaty and the return of Okinawa, the effect of lower agreement, or words, if the United States and Japan between is a legal sense, needless to repeat them.
2, a State's sovereignty could not help him dispose of the country. Diaoyu Islands are Chinese territory, from the first account in principle, from the Ming Dynasty found in China and manage the Diaoyu Islands, 400 years earlier than Japan, even Japanese scholars do not deny. Vested from the geological point of view, the Diaoyu Islands should belong to Taiwan, is Taiwan's geology is a natural extension. Treaty of Shimonoseki was abolished, the Diaoyu Islands and return to its motherland, the Americans would not doubt it. China did not participate in, and knowledge of the United States and Japan to form a private contract between two countries will dispose of China's territory, contrary to the fundamental principles of international law, have been deprived of the disposal and impact. The principles of international law and other legal is the same, that is not involved in the case of others, disposed of the rights of others is invalid. Disposal of United States and Japan to form the Chinese territory without a contract, not only can not confront China, nor against the world.
3, sued the Court finds that contract invalid. All along, the International Court of The Hague is the contempt that the Western-controlled institutions are institutions, whether the composition, mode of rule-making and hearing officers to control by the West, and the International Court of Justice ruling has no coercive power, as long as a States do not perform, his ruling is empty. In fact, China is a permanent member of the United Nations has accepted the part, accepted the Therefore, greater integration into the world as we attach importance to this work to our advantage harmless.
known to give an example, the world's largest island Dispute over the two countries, coordinated by the parties concerned, both sides agree the dispute referred to the League the following Permanent Court of International (formerly International Court of Justice) treatment. In the trial, the two sides doing all the evidence of proof of responsibility, both the International Tribunal carefully reviewed the evidence and to conduct a field survey, the final sovereignty of the International Tribunal will award all Danish Greenland. After the verdict, although the views of Norway, but to accept. So Greenland is the world's largest island of Denmark, the decision has been universally recognized. Just think, if there is no international court's ruling, the two countries do not know how many years for the controversial territorial issues, fix and may resort to arms. Frankly, if resort to arms, Denmark, Norway is by no means the opponent. Denmark rely on international court area will be an area of more than 50 times its own island in the bag (an area of more than forty thousand square kilometers of this Part, Denmark, Greenland, over two million square kilometers), no war, no smoke, no hatred for generations, by What? By the law.
should be noted that the reason the Tribunal awarded the Danish Greenland, the most important is based on facts and written records for hundreds of years, the International Court held that the evidence in Denmark than in Norway, evidence of an advantage, more convincing, therefore, the sovereignty of the islands awarded to Denmark. From this we can see that the Tribunal did not we think
According to this case, combined with the Diaoyu Islands, and if the dispute over the Diaoyu Islands by an organization (such as the International Court of) treatment, as long as the holding of public ruling, we are confident that a satisfactory result. Because the Chinese discovered the Diaoyu Islands in the six hundred years ago, after five years on the Diaoyu Islands were effectively managed, but also legal support for international treaties, an international organization which can Diaoyu Islands Although the Treaty of Shimonoseki after the change of ownership of the Diaoyu Islands, but that is extremely ceded under normal circumstances. After World War II, the Treaty of Shimonoseki was abolished, the Diaoyu Islands and returned to China, these are indisputable facts. Although Japan has a facility on the Diaoyu Islands, China has never recognized any of the Japanese claim to sovereignty over the island. Sino-Japanese diplomatic relations, both sides agreed to the Diaoyu Islands issue until later, is actually putting aside disputes and to resolve as soon as conditions are ripe. Japan, despite the facts, despite international treaties and diplomatic communiques, unilaterally set up facilities in the Diaoyu Islands, its behavior is illegal and invalid, reflecting the consistent nature of the aggressors. Therefore, both sides agreed to by the international organization centered decisions that may have unintended consequences, dealing with territorial issues through the international legal process,UGG shoes, reducing both the between the territorial dispute. If the day of the Diaoyu Islands issue be resolved through international organizations, to the great powers to resolve territorial disputes by peaceful means had brought a good start.
handled by the relevant international organizations, should make careful arrangements, a detailed argument and thorough analysis. Prosecution can be asked to confirm an entry point between the U.S. and Japan are two contract invalid, it can be directly asked to confirm the Diaoyu Islands are Chinese territory, these two points of legal prosecution and the end result is basically the same aspirations.
Fourth, the principle limitation does not apply the Diaoyu Islands.
starting from 1971, the Japanese on the Diaoyu Islands, When the Sino-Japanese diplomatic relations, the two sides agreed to temporarily shelve the territorial dispute over the Diaoyu Islands, the time is ripe to resolve. Since then, China is Japan's Consistent in accordance with international cases, there are five ways to acquire territory, including the first account, timeliness, appended, conquest, cession, where sovereignty over the territory. The reason why possession of up to four years in Japan over the Diaoyu Islands, the idea of playing is the time, Japan believes that through the ongoing
In fact, on the Against those who deny that aging of the territory as a way to obtain the legitimacy of this argument that way, is sovereignty. Consistent in accordance with existing international cases, Three conditions in the core of the condition is Regardless of In fact Japan is in the precarious management of the Diaoyu Islands, as has always been whether the central government or local authorities of Taiwan, the Diaoyu Islands in China has opposed Japan's sovereignty and steal the issue of the Diaoyu Islands, are very firm and clear and consistent. Japanese right-wingers to set the lighthouse on the Diaoyu Islands, the Japanese government to the lighthouse, official support of civil society activities are carried out to protest, especially diplomatic protest. Japan's occupation of the Diaoyu Islands, regardless of the length of time, can not obtain legal rights. The behavior of the Japanese occupation of the Diaoyu Islands as the lack of Therefore, the Japanese attempt to
solve the Diaoyu Islands issue can not be emotional, be rational treatment. Fortunately, China-Japan relations have undergone three years of development, has a foundation, especially civil and friendly forces can effectively prevent the initiation of national sentiment, it is encouraging situation. As a legal person, according to the law we stand, reasonable and appropriate to address the core interests of the dispute between the two countries touched on, I believe the two leaders have enough political wisdom to solve this problem.
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