1 Introduction
The notion that Japan gave no consideration whatsoever to modern international law during the Edo Era (1603â1867), not even in the Eraâs final years, and that it only established foreign relations based on modern international law and accurately determined its territories in the Meiji period (1868â1912), is unlikely to be an accurate reflection of the facts. At the end of Edo Era, the ruling Tokugawa shogunate was in a situation where it had no choice but to be conscious of â(modern) States,â âborders,â and âterritoriesâ in the modern international legal sense. This can be seen in examples such as when the shogunate made Ezo (the historic term for lands to the north of the main Japanese island of Honshu, such as modern-day Hokkaido) into a directly controlled territory, delimited borders with Russia (the Kurile Islands and Karafuto (also known as Sakhalin)), dealt with the RyÅ«kyÅ« affiliation issue, and determined the attribution of the Ogasawara Islands or Bonin Islands (Mu-nin-jima or Bu-nin-jima, meaning uninhabited islands).
However, such attempts by the shogunate were still largely unsatisfactory, and it cannot be said that there was sufficient knowledge of modern international law at that time. At first, the Meiji Government also lacked sufficient knowledge of international law and was at times faced with confusing situations. However, before long, the Meiji Government was actively working to define Japanâs territories while also basing its foreign policy on revisions of the unequal treaties previously concluded by the shogunate. Some representative examples include the renaming of Ezo to Hokkaido, the RyÅ«kyÅ« disposition, and the incorporation of remote islands. During the Franko-Prussian War of 1870 and the Chishima-Ravenna collision incident of 1892, the definition and extent of âterritorial seasâ also became an issue.1
According to the theory of modern international law, there are two ways to incorporate a remote island into a territory: through the occupation of âterra nulliusâ and through the reaffirmation of territory (reaffirmation of territorial intent). âOccupationâ is a territorial title that has been claimed in place of âdiscoveryâ since the 17th century, and is a theory that is modeled after âoccupatio,â a method of acquiring property rights under ancient Roman law.2 In the latter half of the 19th century, terra nullius was considered to refer not only to areas uninhabited by humans, but also to areas inhabited by indigenous peoples that had a certain degree of social and political organization but had not yet reached a stage analogous to that of Western civilization. If a State effectively occupied such terra nullius with the intention of claiming it, then the State could incorporate the terra nullius into its own territory.
Reaffirmation of territory is an incorporation method in which an island that is considered to have originally been the territory of a State is reaffirmed as such, and the competent authorities and a name are determined. The basis for reaffirming that an island was originally territory is either that it was occupied at some point before the incorporation measures, or that it could be territory from before â it is often not specified when from â by some method other than occupation.
2 IÅ-tÅ
2.1 The Incorporation Process
IÅ-tÅ is one island in a volcanic archipelago (with the other islands being Kita-IÅ-tÅ and Minami-IÅ-tÅ) and is now a part of the Ogasawara Islands. The incorporation of IÅ-tÅ involved an extremely interesting process.
The existence of IÅ-tÅ was known to Europeans in the 16th century, but it was an isolated island in the middle of the ocean and remained uninhabited for many years. According to Tokyo Prefecture Documents, now held by the Tokyo Metropolitan Archives, the following is an account of the development of IÅ-tÅ by the Japanese. In November 1887, Tokyo Prefectural Governor Takasaki Goroku embarked on the ship Meiji Maru to survey and develop IÅ-tÅ and Tori-shima. Yokoo TÅsaku was in charge of surveying IÅ-tÅ, but at the time, it was determined that there were no prospects for colonization.3 Subsequently, in June 1889, Tanaka EijirÅ, Yorioka ShÅzÅ, and other private persons sailed there on the NanyÅ Maru, discovered a sulfur mine, left behind eight laborers, and began mining sulfur and fishing. On November 30, an agreement was exchanged between the entrepreneur Tanaka EijirÅ and the labor representative Arai Yoshikuni, and six more voyages were made until July 1890, during which time 3,300 bags of sulfur were mined. During this period, on March 24, 1890, Tanaka petitioned Governor Takasaki for a 50-year lease free of rent for sulfur mining and fishing. In response to this request, the General Affairs Division of the Tokyo Prefectural Government prepared a letter, âRequest for Lease of Islandâ from Governor Hachisuka Mochiaki to the Minister of Home Affairs SaigÅ JÅ«dÅ (prepared on April 5 and delivered on July 21; No. 4941). It stated, âThe island is uninhabited, and its location is completely recognized as being within the Empireâs territory.â4
The islandâs previous affiliation is unknown. ⦠Originally, this island was uninhabited, and its location shows that it is considered to be within the boundaries of the Imperial territory. Moreover, there is no evidence of foreign possession. Therefore, I request that it be determined that the island is affiliated with the Ogasawara Islands under the jurisdiction of this Prefecture.5
Although it is clear that these three islands are actually uninhabited islands with no known affiliation, there is no need to publicly announce that they are affiliated with the Ogasawara Islands, as there is currently no party with whom there would be a dispute about them. If anything, it would be extremely injudicious if such a thing were to be publicly announced by an Imperial Decree. Rather, from the beginning, these islands have been regarded as being affiliated with the Ogasawara Islands, and I therefore believe that it would be better for the Tokyo Prefectural Governor to make a request to the Minister of Home Affairs to name the islands, following the cases of DaitÅ-jima and Uokagi-jima [Uotsuri-jima] in 1885, the affiliation of which had not yet been decided and which were deemed to be affiliated with the Okinawa Islands.8
In the case of DaitÅ-jima and one other island,9 which were dealt with in 1885 by being deemed to be affiliated with the Okinawa Islands, at the time, a field survey of the islands, which already had the names of âDaitÅ-jimaâ and so on, was made and the Minister of Home Affairs provided a detailed report to the Grand Minister of State. However, the point of the attached request from the Minister of Home Affairs is as follows. The islands have until now been uninhabited, and there has therefore been no administrative problem without their affiliation and names. However, the number of people from mainland Japan who are traveling to the islands to engage in fishing and mining, etc., has been increasing, and it has therefore become necessary, for administrative purposes, to determine the islandsâ affiliation and name, in which case, the example of the DaitÅ-jima survey report cannot be used as a precedent. Therefore, it is recognized that the affiliation and name may be determined by an Imperial Decree as requested by the Minister of Home Affairs.
First, I expressed my agreement with the opinion of the Minister of Agriculture and Commerce, which I believe now to be appropriate. Furthermore, I believe that, in terms of the order of official work, it is not appropriate for the Secretary of the Legislation Bureau to so hastily refute the opinion of the Minister of Agriculture and Commerce, despite the Ministers of Finance, the Navy, and Justice having yet to disclose their opinions on the proposal.
It cannot be determined which Minister wrote the third note, but it says, âI also agree with the note by the Minister of Posts and Telecommunications about the order of official work. Nevertheless, I concur with the view of the Minister for Foreign Affairs that the request from the Minister of Home Affairs is appropriate.â10
Following this Cabinet Decision, Imperial Decree No. 190 was issued on September 9, stating âThe three islands spread between 24 degrees 0 minutes north latitude and 25 degrees 30 minutes north and between 141 degrees 0 minutes east longitude and 141 degrees 30 minutes east latitude off the south-southwest coast of the Ogasawara Islands under the jurisdiction of Tokyo Prefecture are affiliated with the Ogasawara Islands, with the one in the center being called âIÅ-tÅ,â the one to the south being called âMinami-IÅ-tÅ,â and the one to the north being called âKita-IÅ-tÅ.ââ11
I have reservations about the affiliation and name of IÅ-tÅ that were promulgated by Imperial Decree No. 190 in September of this year.
- A:These islands have traditionally been islands affiliated with Japan. The Imperial Decree merely established their jurisdiction and named them.
- B:These islands were not previously affiliated with Japan. Only after the Imperial Decree was issued did they become affiliated with Japan.
At the time that the Imperial Decree was issued, I believed that the primary purpose of the Cabinet Decision was based on the explanation in A. However, I have received applications for the operation of a mine on the island. The handling [of these applications] under the Mining Law differs depending on whether reading A or reading B is used, and it is therefore necessary, on this occasion, to clarify the Cabinetâs official opinion on this matter. I hereby request an immediate Cabinet meeting.12
In light of the principles of the law of nations and of a review of the islandâs history, the islands have until now been affiliated with the Empire, and it is not the case that they only became part of the Empire following Imperial Decree No. 190 of this year. As the competent authorities and the name of the islands were somewhat unclear, it is clearly the case that the decision to promulgate Imperial Decree No. 190 was made merely for that reason.
In other words, Imperial Decree No. 190 was not occupation, but rather a measure to reaffirm that the islands had always been âislands affiliated with
Thereafter, the Ministry of Agriculture and Commerce conducted an inquiry, including for applications that had temporarily been sent back to their petitioners,14 and finally, on May 19, the Minister of Agriculture and Commerce issued an order in response to the application for sulfur prospecting by Inoue Hisashi, the agent of Tanaka Shunsaku.15
2.2 Legal Issues
2.2.1 Reasons Why It Has Been Regarded as a Case of Occupation
As for the measures to incorporate IÅ-tÅ that followed the above process, two points will be discussed here. The first point is that in Island Occupation (Collection of Precedents in International Law, 2), October 1933, which was edited by the Treaty Bureau of the Ministry of Foreign Affairs, six examples, the Ogasawara Islands, IÅ-tÅ, Kumeaka-shima/Kuba-jima/Uotsuri-jima, Minami-Tori-shima, Oki-DaitÅ-jima, and Nakano-Tori-shima, are listed as âCases of Islands Occupied by the Empire,â which raises the question of why IÅ-tÅ is also listed as a case of occupation. Island Occupation mentions the Cabinet Decision on August 19, 1891 and Imperial Decree No. 190 from September 9, but does not mention the November 16 Cabinet Decision at all.16
Where primary historical materials were archived offers perhaps the strongest reason for this classification. Minister Mutsuâs reservations expressed on November 5, the Cabinet Decision of November 16 (stamped with the seal of Minister for Foreign Affairs Enomoto), and the August 13 opinion from the Legislation Bureau with the attached note from Minister Mutsu are all held only at the National Archives of Japan and not at the Diplomatic Archives of the Ministry of Foreign Affairs. It can be speculated that Island Occupation regarded IÅ-tÅ as a case of occupation because it was written based on primary
In the materials at the Tokyo Metropolitan Archives, as well as in the materials at the Diplomatic Archives of the Ministry of Foreign Affairs, Imperial Decree No. 190 from September 9, 1891 can be found, but none of the other documents can be found. Only Imperial Decree No. 190 is mentioned in a document (SÅ No. 83) sent from Chief of the Ogasawara Islands Kuwahara Kaihei to Governor Tomita Tsunosuke on January 23, 1892, and in a report sent by Governor Tomita to Minister of Agriculture and Commerce KÅno Toshikama on March 16.18
2.2.2 Criteria for Distinguishing Occupation from Reaffirmation of Territory
The second point is that, although it was clearly stated in Mutsuâs reservations on November 5 that there are two methods, occupation and reaffirmation of territory, the question is whether the criteria for distinguishing between them were clearly indicated at the time. Looking at primary historical materials from 1890 to 1891, there are both documents stating that IÅ-tÅ has been part of Japanâs territory (hanto) for a long time and documents stating that IÅ-tÅ could not be said to be within Japanâs territory.
On the other hand, as for those stating that IÅ-tÅ is not within Japanâs territory, the February 1, 1890 reply by an official from the Mining Bureau in the Ministry of Agriculture and Commerce, in response to an application by Kawani RijÅ«rÅ to lease an area, stated that, âIt is difficult to inquire into the matter as the affiliation [of the island] is unclear.â22 Furthermore, a draft proposal (that was discarded), dated July 29, 1890, and addressed to Chief of the Ogasawara Islands Akagawa KÅsuke from Ginbayashi Tsunao, the First Department Director of the Tokyo Prefectural Government, stated that, âThere is no definite place in the Imperial map [for the island]. Furthermore, we are currently only engaged in partial development, and there has been insufficient activity for occupation.â23
Furthermore, IÅ-tÅ was said to be an uninhabited island with an undetermined territory and an undetermined affiliation in the May 5, 1891 response from Chief of the Ogasawara Islands Kuwahara Kaihei to Tanaka EijirÅâs union request for travel to IÅ-tÅ,24 in the October 8, 1891 request from Chief of the Ogasawara Islands Kuwahara to Governor of Tokyo Prefecture Tomita Tetsunosuke titled âRequest for Approval for Scheduled Boat to IÅ-tÅ in Novemberâ (SÅ No. 574),25 in the March 16, 1892 report from Governor Tomita to Minister of Agriculture and Commerce KÅno,26 and, finally, in the May 2,
As per the above, the documents that describe IÅ-tÅ as being part of Japanâs territory are limited to those dated November 1890 or earlier. However, in the July 27, 1890 opinion from the First Department Director of the Tokyo Prefectural Government, which was quoted above, IÅ-tÅ was said to not be within Japanâs territory (although this draft was later discarded), so even at the time, there was not a unanimous opinion within Tokyo Prefecture.28
The November 16, 1891 Cabinet Decision stated only âIn light of the principles of the law of nations and of a review of the islandsâ history.â29 It is presumed that the theory that IÅ-tÅ is not terra nullius was formulated by examining the facts of the expedition/survey from four years prior (1887) and the sulfur mining from two years prior (1889) based upon âthe principles of the law of nations.â Additionally, on March 23, 1892, the year after the Cabinet Decision, Minister for Foreign Affairs Enomoto Takeaki sent a (confidential) letter to Nomura Yasushi, the Japanese Minister to France, which stated, âA few years ago, the Meiji Maru was dispatched to explore the area, and since then, our people have continued to live there.â30 It is a fact that inhabitants were present there.
Incidentally, the âhandling ⦠under the Mining Lawâ that is referred to in Minister Mutsuâs November 5 Reservations is understood to be the attribution of sulfur mining rights.31 In other words, if occupation was adopted as the basis for the affiliation of IÅ-tÅ and the mining rights on that island, then there were fears that all mining activities conducted prior to the measure of occupation would be considered to be legally meaningless.
The January 23, 1892 letter sent to Governor Tomita by Chief of the Ogasawara Islands Kuwahara (SÅ No. 83) is noteworthy when it comes to this point. It stated, âDue to the unclear jurisdiction over IÅ-tÅ at the time, the document was temporarily returned, but, as it was determined during September
From the above historical materials, it can be considered that the issue of sulfur mining rights, which were under the jurisdiction of the Minister of Agriculture and Commerce, was the reason for Minister Mutsuâs insistence on reaffirmation of IÅ-tÅ as Japanese territory rather than on IÅ-tÅ becoming Japanese territory through occupation.
However, as far as the historical materials of the time are concerned, it is difficult to say that there is a clear indication of the criteria for distinguishing between occupation and reaffirmation of territory. For the reaffirmation of territory, it is necessary to clarify when IÅ-tÅ became a territory and on what kind of facts â such as âeffective controlâ â that claim is based on, but historical materials with that information have not been found. The July 21, 1890 document from Governor Hachisuka (No. 4941) only stated that IÅ-tÅâs location âis completely recognized as being within the Empireâs territory.â34 This is an assertion that IÅ-tÅ âgeographically, can naturally be said to be Japanese territory.â In addition to IÅ-tÅ, similar logic was used in the cases of Tori-shima35 and Okino-Tori-shima.36 However, it is not clear what exactly these criteria are. It is clear from the case of Okino-Tori-shima that they are not solely an islandâs proximity to mainland Japan. That the physical proximity of an island â that
As has already been stated above, the âislandâs historyâ recorded in the Cabinet Decision on November 16, 1891 refers to the expedition and surveys conducted four years earlier, to the fact of sulfur mining two years earlier, and to the presence of inhabitants. If being a ânearby islandâ is not the basis for IÅ-tÅ to be Japanese territory, then all that remains is the fact of such expeditions, surveys, sulfur mining, and the presence of inhabitants. If that is the case, it is possible to argue that IÅ-tÅ was Japanese territory from four years before, in 1887. Looking at the historical materials from the time, there is no evidence that this point was thoroughly discussed.
There are also questions about the extent to which Minister Mutsu had knowledge of the theory of occupation. There is no evidence to suggest that he, say, referred to literature on international law or consulted with experts in international law â for example foreign specialists employed by the Japanese Government such as Henry Willard Denison and Alessandro Paternostro, or officials in the Ministry of Foreign Affairs â when he made his proposal on November 5, 1891. Additionally, a note from August 14, 1891 stated that although IÅ-tÅ is an âuninhabited island with no known affiliation,â âthere is currently no party with whom there would be a dispute ⦠It would be extremely injudicious if such a thing were to be publicly announced by an Imperial Decree. Rather, from the beginning, these islands have been regarded as being affiliated with the Ogasawara Islands.â However, no rationale is given as to why IÅ-tÅ can be regarded as being affiliated with the Ogasawara Islands.38 Furthermore, the recommendation39 to follow the example from 1885, in which the islands of DaitÅ-jima and Uokagi-jima (whose affiliation was unknown) were deemed to
3 Minami-Tori-Shima
3.1 The Incorporation Process
In Japanâs Meiji Era, the theory of occupation was first discussed in a concrete case during the so-called âTaiwan Expeditionâ in 1874. It was Charles E. De Long, the US Minister to Japan, and Charles William Le Gendre, a French-born American, who âinstructedâ the Meiji Government on this theory. On September 23, 1873, in a dialogue with Minister for Foreign Affairs Soejima Taneomi, De Long stated that, âEven if China insists to have jurisdiction over it, unless Chinaâs orders are actually carried out there, said jurisdiction is essentially groundless, and it becomes the possession of whoever has taken it.â41 Le Gendre was a foreign specialist employed by the Japanese Government through De Longâs introduction, and in the first memorandum that Le Gendre submitted to the Japanese Government, in 1872, he wrote that, according to âuniversal laws of all nationsâ in uncivilized lands such as Australia, New Zealand, and California in the United States, âThere is the right to make an area oneâs territory if one exercises jurisdiction over said area by deciding on laws and establishing systems.â42
Referencing these opinions, and with Gustave Emile Boissonade de Fontarabie as a direct advisor, during the negotiations with the Qing between August and October 1874, the Japanese Government (Yanagiwara Sakimitsu and Åkubo Toshimichi) developed the argument that Taiwan was considered an âunoccupied and uncivilized land,â that Qing sovereignty did not extend to Taiwan, and that Taiwan could not be considered a part of Qing territory.43
Minami-Tori-shima (also known as Marcus Island or Wikks Island) was discovered by the Spaniard Bernardo de la Torre in 1543, but there are no records of subsequent visits to the island until 1864 by an American ship. In June 1889, Andrew Rosehill, the captain of an American ship, landed on the island. Recognizing the value of the uninhabited island as a source of palm oil and guano (bird droppings), he raised the American flag on a palm tree, returned to Honolulu (then the Kingdom of Hawaii), and made an application for collecting guano to the US State Department through the US Minister to Hawaii who was stationed in Honolulu. However, the application was not handled as an official procedure and was only kept on record in the US State Department.44
Mizutani Shinroku (1850â1921) is considered to be the first Japanese person to try and settle on Minami-Tori-shima. He landed on the island on December 3, 1896 and submitted an island discovery notification to Minister of Home Affairs Kabayama Sukenori and Tokyo Prefectural Governor Koga Michitsune on April 5. Mizutani wrote, âOn December 3, 1896, I scraped the bark off a tree and carved the characters âDecember 3, Meiji 29 (1896), Japanese, Mizutaniâ into the tree. This island is unaffiliated with any other country, is completely one of the Ogasawara Islands, and I believe it should belong to the territory of the Empire of Japan.â45 In response to this report, the Tokyo Prefectural
The first issue that was discussed within the Ministry of Home Affairs was whether the island that Mizutani claimed to have discovered was the same as the Marcus Island on the nautical charts held by the Hydrographic Office in the Navy. A document (TÅkÅ No. 70) prepared on June 5, 1897 by Ogata Koreaki, Prefectural Division Chief in the Ministry of Home Affairs, stated that a field survey should be conducted to determine the islandâs affiliation.46 Therefore, Mizutani visited the island again on June 25, took detailed astronomical observations, created a rough map, and, on September 13, submitted an âApplication to Lease an Islandâ to Minister of Home Affairs Kabayama, claiming that the island was the same as Marcus Island.47
In response to this, on October 8, the Minister of Home Affairs prepared the âCabinet Submission on the Affiliation of Marcus Island.â48 The subsequent incorporation process was complicated, going through three stages within the Japanese Government, and finally, on July 1 of the following year, a Cabinet Decision was made to incorporate the island into Japanese territory based on the theory of occupation. (The details of these three stages are discussed in the next subsection.) Additionally, on December 10, 1898, Tokyo Prefectural Governor Senge Takatomi gave Mizutani approval for a business plan for Minami-Tori-shima (2 Hei No. 2313), but the process leading up to this decision was also quite complicated.49
Four years after the Cabinet Decision was made, the so-called âMinami-Tori-shima Incidentâ occurred from July to August 1902. The aforementioned Captain Andrew Rosehill visited the island in 1902, 13 years after his first visit in June 1889. Captain Rosehillâs visit was done in accordance with the August 18, 1856 âGuano Islands Act,â which granted Americans the right to collect guano. Japan dispatched a cruiser, demanded that Captain Rosehill leave, and, after some exchanges, he left.50
Immediately afterwards, Professor Takahashi Sakuye of Tokyo Imperial University took up this incident in a seminar on international law at Tokyo Imperial University, and the results of the student debate were published in Kokka Gakkai Zasshi [The Journal of the Association of Political and Social Science].52 One of the students, Kijimoto TokizÅ (Professor at Kyoto Imperial University from 1908), examined the occupation method in detail. He argued that even if the United States had taken possession of the island by the fact that Captain Rosehill had raised the American flag, there was no continuation
Professor Takahashi himself also published a statement in the Yomiuri Shimbun newspaper, stating that the acquisition of land should be based on âpossessionâ rather than on âdiscovery,â and deemed that the United States lacked the legal grounds to protest Japanâs territorial sovereignty.54
3.2 Legal Issues
3.2.1 Legal Basis for Incorporation â Three Stages
There are a variety of legal issues surrounding the incorporation of Minami-Tori-shima, but the following two points will be focused on. The first legal issue is the grounds for the island being affiliated with Japan. Mizutani himself, given the location of the island, naturally regarded it as part of Japanâs territory, as shown in his âApplication to Lease an Islandâ that was addressed to the Minister of Home Affairs on September 13, 1897.55
The August 7, 1895 âDeclaration of the Delimitation of Borders between Japan and Spainâ was the first piece of evidence brought forth to support this geographical position. In response to the cession of Taiwan to Japan under the Treaty of Shimonoseki that was signed on April 17, 1895, this was a declaration made between Japan and Spain to prevent future disputes in the area around Taiwan and the Philippines.56 Article 2 of the Declaration stipulates that âThe Government of Spain declares that it shall not consider islands to the north and northeast of said demarcation line to be its own,â and Article 3 stipulates that âThe Government of Japan declares that it shall not consider islands to the south and southeast of said demarcation line to be its own.â In other words, it was a joint declaration that the Bashi Channel, located at 21 degrees 25 minutes
The location of the island is also within the bearing stipulated in Article 2 of the Declaration of the Delimitation of Borders between Japan and Spain, so there is no question that the island is affiliated with Japan. However, although the island was previously uninhabited and therefore not placed under the jurisdiction of any authorities, a person has now applied for a lease of said island. Thus, it is necessary to affirm the affiliation of the island, and it should therefore henceforth be affiliated with Tokyo Prefecture and be placed under the jurisdiction of the Chief of the Ogasawara Islands.59
Additionally, the October 14 opinion from Tanaka Zui, First Department Director of the Internal Affairs Division in the Tokyo Prefectural Government, also stated, as the opinion for the Tokyo Prefectural Government and based on the Japan-Spain Joint Declaration, that there is no doubt that Minami-Tori-shima
That being said, the Japan-Spain Joint Declaration was originally a joint declaration to establish the demarcation line between Taiwan, which became Japanese territory, and the Philippines, which was Spanish territory. It would therefore obviously be unreasonable to apply it to Minami-Tori-shima, more than 3,000 kilometers away.
On March 14, 1898, Minister of Home Affairs Yoshikawa Akimasa submitted a proposal to the Cabinet (TÅkÅ No. 140) for Prime Minister ItÅ Hirobumi that showed a different view. Although he recognized that âit is indisputable that Minami-Tori-shima is geographically affiliated with Japan,â without mentioning the Japan-Spain Joint Declaration, he noted that Mizutani had made a round trip voyage to the island, had explored the island, and had submitted an application to lease the island, and that it had become necessary to determine the islandâs affiliation, and proposed changing the islandâs name from âMarcus Islandâ to âMizutani Islandâ61 and affiliating it with Tokyo Prefecture from now on.62
However, upon examination, the island in question ⦠is an isolated island, so distant from the Ogasawara Islands that it is difficult to recognize it as a part of them. Moreover, there is an unaffiliated island called âGrampusâ63 between it and the Ogasawara Islands. Therefore, it seems
groundless to say that âMarcus Islandâ belongs to Japan as a matter of geography. Nevertheless, besides there being no evidence of foreign possession, according to reference books provided by an official from the Minister of Home Affairs, a Japanese citizen named Mizutani Shinroku has moved inhabitants to the island since December 1896, has built houses, has engaged in the capture of birds and fish and the cultivation of land, and is expected to be remarkably successful. As such, there exist the facts of so-called possession under international law, and there are no problems with the island being affiliated with Japan and being under the jurisdiction of the Chief of the Ogasawara Islands in Tokyo Prefecture.64
In other words, after clearly confirming that the geographical location of Minami-Tori-shima is not valid as a basis for it being affiliated with the Ogasawara Islands, the fact that there had been no possession by other countries, and that Mizutani had moved inhabitants to the island, built houses, and engaged in the capture of birds and fish and the cultivation of land were recognized as the âfacts of so-called possession under international law,â and so affiliated the island with Japan. This is deemed to be a determination of Japanese affiliation based on the occupation method.
No records could be found that show what discussions took place in the Home Office or in the Legislation Bureau 1) during the five months from Minister of Home Affairs Kabayamaâs preparation of the Cabinet submission on October 8, 1897 with the Japan-Spain Joint Declaration as the basis for affiliation, until the Cabinet submission by Minister of Home Affairs Yoshikawa on March 14, 1898, and 2) in the following four months until the Cabinet Decision on July 1. Although it is true that the Cabinet was different at each of the three stages (the second Matsukata Cabinet, the third ItÅ Cabinet, and the first Åkuma Cabinet), there is no record that the intentions of the respective Prime Ministers or the respective Ministers of Home Affairs (Kabayama Sukenori, Yoshikawa Akimasa, and Itagaki Taisuke) were reflected.
The Legislation Bureau (Shibata Kamon, Kanokogi KogorÅ, and other Counselors in the Legislation Bureau) probably referred to this information and kept in close contact with the Ministry of Home Affairs (Arakawa became the head of the Prefectural Government Bureau from January 21, 1898,67 while Inoue YÅ«ichi became the head of the Prefectural Division of the Prefectural Government Bureau from September 1897), and it is presumed that they abandoned the rationale of being âgeographically affiliated with Japanâ and changed to a basis that emphasized the facts of Mizutaniâs colonization, that is, a basis premised on âoccupation.â
This idea based on occupation is reflected in both the Minister of Home Affairs Directive from July 19 (Kun No. 653) and the Tokyo Prefectural Public Notice from July 24 (Tokyo Prefectural Public Notice No. 58), which state, âfrom now on affiliated with that Prefectureâ and âfrom now on affiliated with this Prefecture.â68
Incidentally, officials from the Ministry of Foreign Affairs were completely left out of the third and final stage. The Cabinet submission on October 8, 1897 was accepted by the Ministry of Foreign Affairs on October 29.69 On March 14,
Because the Ministry of Home Affairs was in charge of the issue of incorporating remote islands, and since the island was not considered to be the subject of dispute with other countries due to its position as terra nullius, it can be speculated that the Ministry of Foreign Affairs was not approached at all. As mentioned above, however, the Minami-Tori-shima incident occurred four years later, which put the Japanese diplomatic authorities into a rather difficult and confusing situation.73
3.2.2
3.2.2.1 Occupation as an Act of the State
The second issue is the âfacts of so-called possession under international lawâ described in the July 1 Cabinet Decision. Two points need to be argued about this concept. The first is whether the acts of private persons, who have not been mandated by the State, fulfill the occupation requirement that occupation must be an act of a State.
At the end of the 19th century, there was no dispute about the fact that the subject of occupation had to be the State. As typified by Emer de Vattelâs book in 1758, the basic view was that, even if voyagers in the âAge of Discoveryâ set out on an expedition, with or without a sovereign mandate, and encountered and occupied an island or other uninhabited land, sovereignty over that island or land could not be recognized without âpossession réelleâ (âreal possessionâ) by the State.74
However, in a paper published in 1902 at the time of the Minami-Tori-shima Incident, Shimizu Ken-ichirÅ argued that âpossessionâ requires an act of the State, distinguishing between the acts of an official appointed for the purpose of occupying an island and the acts of colonists, and that in the latter case, the act must be âratified by the State,â with this idea being said to be based on Walker.75 The work referred to here is considered to be Thomas Alfred Walkerâs 1895 work.76 Takahashi Sakuye noted that, in addition to Walker, Friedrich von Martens also expressed similar ideas.77 Kijimoto TokizÅ also cites Holzendorff.78
As stated above, even if it is not possible to determine the extent to which the idea of âratificationâ was common at the time, there is no doubt that it was advocated for by many influential scholars.
3.2.2.2 What Does âPossession Réelleâ Refer to, and Does It Differ Depending on the Area in Question?
Another point to be discussed regarding the concept of âfacts of so-called possession under international lawâ concerns âpossession réelleâ itself as a requirement for âoccupationâ to be established. Whether it is the act of an authorized official or of a private person who has not been furnished with such authority, the question is the extent to which, if any, ârealâ possession actually exists, and whether it has been considered to vary depending on the era or on the area in question (e.g., whether it is an isolated island in the middle of the sea).
According to the International Declaration Regarding Occupation of Territories by the Institute of International Law, which was adopted on September 7, 1888, âTaking possession is accomplished by the establishment of a responsible local power (pouvoir local responsable), provided with sufficient means to maintain order and assure the regular exercise of its authority within the limits of the occupied territory. These means may be taken over from the institutions existing within the occupied territory.â80
That being the case, before the aforementioned International Declaration in 1888, what kind of facts did theories deem âpossession réelleâ to refer to? An examination of the five scholars81 cited in Memorandum No. 5 of Boissonadeâs âBosshi Shushi Sho,â i.e., Emer de Vattel,82 Georg Friedrich von Martens,83 Henry Wheaton,84 August Wilhelm Heffter,85 and Johann Kaspar Bluntschli,86 shows that they mostly agree that the fact that an island is discovered and visited is not enough, and that the fact that an island is under oneâs âactual and de factoâ authority is necessary. However, none of them specifically referred to the âestablishment of a responsible local power.â87
What about the point that âpossession réelleâ may have been regarded differently depending on the area in question? In an 1896 work, the French professor of public law Gaston Jèze wrote that scholars of international law of the late 18th and 19th centuries were unanimous in their opinion that âpossession réelleâ meant âactual possessionâ (posséder réellement).91 Jèze further considers that this âactual possessionâ depends on the nature of the area in question. In the case of barren islets, for example the island of Perim (a volcanic island at the entrance to the Red Sea), the deployment of a garrison constituted effective control, while in the case of Aden for Britain or Obock for France, the establishment of a coal storage station was sufficient, and the mining of guano
Similar ideas were expressed in Salomonâs work, which was published seven years before Jèzeâs. Salomon argues that âeffectivenessâ (âeffectivitéâ) can vary greatly from case to case, and that actions such as building a lighthouse on an isolated rock in the ocean, setting up a coal depot on an island along a busy shipping route, mining guano formations (see the Guano Islands Act passed by the US Congress on August 18, 1856), and so on constituted actual, rather than feigned, possession.93
The examples given by Salomon and Jèze â the establishment of a coal depot, the mining of guano formations, the construction of a lighthouse, and the stationing of missionaries, etc. â suggest that the âestablishment of a responsible local powerâ may not always be required in cases such as isolated islands, and that, in some cases, even actions by private persons may fall under possession réelle.94
3.2.2.3 What Kind of Concept Is the âFacts of So-Called Possession under International Lawâ?
Considering all of the above points about theories from the time, the following five possibilities can be envisioned for the relationship between âpossession
- a)Facts that fall under possession réelle must be performed by the State itself. In no case can the acts of private persons satisfy the requirements of occupation.
- b)Facts that fall under possession réelle must also be performed by the State itself, but, based on acts such as colonization and emigration that are performed by private persons, the State itself ratifies those acts of private persons ex post facto in the sense of the âestablishment of a responsible local powerâ or the âestablishment of power (national rights).â
- c)The acts of private persons are not sufficient for the mere act of taking possession, and there is a need for âsomething more than the mere act of taking possessionâ by private persons, specifically, colonization, and, further, there must be a declaration by the private person that the colonized land belongs to their home country. Then, the Stateâs âsimple adoptionâ of such acts by private persons satisfies the two requirements necessary for occupation: the âfact of possessionâ and the expression of the intent to possess.95
- d)Acts falling under possession réelle â not âestablishment of a responsible local power,â but mediated facts, for example, emigration, building houses, capturing birds and fish, and cultivating the land, etc., may be conducted by private persons, and then the State merely âapprovesâ (âratifiesâ) such actions by private persons ex post facto to complete its âoccupationâ as a territorial title.
- e)The occupation requirement for effective prior possession is satisfied by a private person conducting acts that fall under possession réelle â the aforementioned mediated acts. Based on the fact that these are the acts of private persons, a Cabinet Decision is made, and a directive is issued to express that Stateâs territorial intent. In other words, a State âoccupiesâ islands that are terra nullius by satisfying the two requirements of âpossession réelleâ through the actions of private persons and the Stateâs issuance of a âdeclaration of territorial intent,â after which the islands are incorporated into the Stateâs territory.
There are no documents to support that officials in the Legislation Bureau and the Ministry of Home Affairs examined in detail these possibilities for the incorporation of Minami-Tori-shima and worked out the legal grounds
4 Conclusion
Needless to say, even in the early Showa Era, the concepts of exclusive economic zones and continental shelves did not exist, and the substantive benefits of incorporating remote islands far from the Japanese mainland were that of emigration where the environment was habitable (depending upon land size, the possibility of crop cultivation, the existence of drinking water, and easy access via ship, etc.; islands such as the Ogasawara Islands and Minami-DaitÅ-jima/Kita-DaitÅ-jima are those cases.), and otherwise the main economic value was in albatross feathers, guano, fishery resources, and minerals such as sulfur and phosphate ore. Although there are cases (uninhabited islands in the waters near Okinawa Prefecture) where it is possible that there were national defense factors that required crackdowns on a Stateâs own âterritoryâ amidst heightened tensions between States, as can be inferred via the confidential orders from Minister of Home Affairs Minister Yamagata Aritomo in 1885,96 it was only in the case of Okino-Tori-shima in 1931 that military interests were clearly brought to the forefront.97 As examined in this chapter, economic benefits were the main factors for IÅ-tÅ and Minami-Tori-shima.98
This chapter examined the two cases of IÅ-tÅ and Minami-Tori-shima, which are regarded as seminal, albeit inadequate, in terms of the legal status of Japanâs measures incorporating them into its territory. The analysis of the implications of such considerations for the legal status of the Senkaku Islands, Takeshima, and the Northern Territories will be left to future works. The two cases of IÅ-tÅ and of Minami-tori-shima are important for the analysis. As for the Senkaku Islands, the point is whether the Japanese Government took into consideration the case of IÅ-tÅ, which makes it clear that a distinction should be made between islands that were previously affiliated with Japan and islands that were not previously affiliated with Japan and only became so by the issuance of an Imperial Decree. As for Takeshima, which âreferencedâ the case of Minami-Tori-shima, which is considered an example of occupation, is the current position of the Japanese Government, which considers the Takeshima case as one of reaffirmation of territory rather than of occupation, legally feasible and desirable from a policy standpoint?100 In discussing these points, it
On the latter issue, there is one last thing that should be confirmed here. The case of Minami-Tori-shima was referenced not only for Takeshima, but also for the cases of Oki-DaitÅ-jima and Nakano-Tori-shima. For Takeshima, Nakai YÅzaburÅ âmoved to the island and engaged in fishing,â101 while for Nakano-Tori-shima, Yamada TeizaburÅ âdiscovered the island and conducted field surveys ⦠and engaged in the business of mining phosphate ores and capturing birds,â which were regarded as âfacts of possession under international law.â102 As for Oki-DaitÅ-jima, although the term âfacts of (so-called) possession under international lawâ is not used by the Government of Japan, the fact that Nakamura Jissaku âcircumnavigated the island in question and explored the islandâs interiorâ was taken as the basis.103 For Takeshima, Oki-DaitÅ-jima, and Nakano-Tori-shima, the legal basis for incorporation was based on the concept of âthe facts of (so-called) possession under international lawâ with regard to the acts of private persons, following the example of Minami-Tori-shima.
However, the Cabinet Decision documents not just for Minami-Tori-shima, but also for Takeshima and Nakano-Torishima, are not held in the Diplomatic Archives of the Ministry of Foreign Affairs.104 Island Occupation (Collection of Precedents in International Law, 2) was compiled by the Treaty Bureau in the Ministry of Foreign Affairs in 1933, and explains the cases of Minami-Tori-shima and Nakano-Tori-shima, but does not refer to the respective Cabinet Decisions at all, and there is no explanation for the concept of the âfacts of (so-called) possession under international law.â Neither Shimizu, Kijimoto, nor Takahashi, who published papers on the Minami-Tori-shima case, made any evaluation of the âfacts of so-called possession under international law.â The cases of Minami-Tori-shima and Nakano-Tori-shima are taken up in a paper by Tachi SakutarÅ in 1933,105 and the same is true there. It is speculated that he did not know about the concept in the first place.
Location of the bilateral demarcation line and Marcus Island according to the 1895 declaration of the delimitation of borders between Japan and Spain. Japan center for Asian historical records (jacar), Ref. B03041152600 (4th image). Teikoku Hanto Kankei Zakken (1.4.1.7)
diplomatic archives of the ministry of foreign affairs of japan
Refer to Yanagihara Masaharu
However, âoccupation of owner-less propertyâ under ancient Roman law relates to the ownership of movable property, not to land. For example, refer to R. Lesaffer, âArgument from Roman Law in Current International Law: Occupation and Acquisitive Prescription,â European Journal of International Law, vol. 16, no. 1 (2005): 40â41.
Refer to Tokyo Metropolitan Government (ed.), TÅkyÅ ShishikÅ Shigaihen Dai 72
Tokyo Prefecture Documents (Tokyo Metropolitan Archives Collection) 619.C2.19: Nr.7: 45(1)â48, 63; 619.C2.19: Nr.10: 168; 619.C6.02: Nr.6: 160(1)â162, 215(1). The reason it took more than three months from preparation by the General Affairs Division to delivery to the Minister of Home Affairs is presumed to be that it took time to coordinate within the Tokyo Prefectural Government, including the opinion by the Agriculture and Commerce Division. When citing documents from the Tokyo Prefecture Documents, only the classification number, binding number, and page number will be noted. For types, titles, and departments in charge, refer to Tokyo Metropolitan Archives (ed.), TÅkyÅto KÅbunshokan ShozÅ Mokuroku 1 (TÅkyÅhu Bunsho â Meiji)
Japan Center for Asian Historical Records (jacar) Ref. A15112383800 (from the 4th image), KÅbun RuishÅ«
jacar: B03041152400 (from the 3rd image).
jacar: A15112383800 (from the 2nd image); B03041152400 (5th image).
jacar: A15112383800 (from the 9th image). This note has GotÅ ShÅjirÅâs seal on it, so it is assumed that GotÅ agreed with Mutsuâs opinion (see GotÅâs note below).
âDaitÅ-jima and one other islandâ is understood to refer to two islands, Minami-DaitÅ-jima and Kita-DaitÅ-jima.
jacar: A15112383800 (from the 11th image). GotÅâs note is signed by Mutsu Munemitsu.
jacar: A15112383800 (from the 3rd image); B03041152400 (8th image); KanpÅ
jacar Ref. A15112383900 (from the 1st image), KÅbun RuishÅ«
jacar: A15112383900 (from the 3rd image).
Refer to âNotification of Application for Lease of Landâ on January 23, 1892 from Chief Kuwahara to Governor Tomita (SÅ no. 83). Refer also to the December 21, 1891 letter addressed to Governor Tomita by the Secretary of Home Affairs (in Shin no. 486). Tokyo Prefecture Documents 619.C6.02: Nr.6: 228.
Tokyo Prefecture Documents 619.C2.19: Nr.8: 74.
Ministry of Foreign Affairs Treaty Bureau (ed.), TÅsho Sensen (KokusaihÅ Senrei IshÅ«, 2)
The July 4th Cabinet submission is stored in the Diplomatic Archives of the Ministry of Foreign Affairs, but the August 19th Cabinet Decision itself is not. Akiyama Masanosuke and Kurachi Tetsukichi, former officials of the Ministry of Foreign Affairs, also mentioned IÅ-tÅ as an example of occupation, but made no mention of the November Cabinet Decision. Akiyama Masanosuke
Tokyo Prefecture Documents 619.C2.19: Nr.10: 118; 619.C6.02: Nr.6: 242.
Tokyo Prefecture Documents 619.C6.02: Nr.6: 161(1), 215(1).
jacar: A15112383800 (from the 4th image); B03041152400 (7th image); Tokyo Prefecture Documents 619.A8.02: Nr.9: 245â246.
Tokyo Prefecture Documents 618.B5.13: Nr.1: 4.
Tokyo Prefecture Documents 619.C2.19: Nr.10: 214.
Tokyo Prefecture Documents 619.C6.02: Nr.6: 216. The February 4 document was also similar. Tokyo Prefecture Documents 619.C6.02: Nr.6: 222.
Tokyo Prefecture Documents 619.C2.19: Nr.7: 41.
Tokyo Prefecture Documents 619.A2.08: Nr.35: 296.
Tokyo Prefecture Documents 619.C6.02: Nr.6: 242.
Tokyo Prefecture Documents 619.C2.19: Nr.7: 39 (2).
Refer also to the Tokyo Prefecture Documents âNotification of Sulfur Prospecting by Omita Toshiyoshi,â (Hei no. 124). Tokyo Prefecture Documents 618.B5.13: Nr.1: 6; 619.C2.19: Nr.12: 248.
jacar: A15112383900 (4th image).
jacar: B03041152400 (19th image).
The November 21, 1891 âIÅ-tÅ Inspection Reportâ (SÅ no. 697) to Governor Tomita from Chief of the Ogasawara Islands Kuwahara stated that âI certify that, besides the business of collecting sulfur, this is not an island where the promotion of new industry should be planned.â Tokyo Prefecture Documents 619.A2.08: Nr.35: 289. Refer also to âThe History of Tokyo City, Town Edition, vol. 82â (1991), 261.
Tokyo Prefecture Documents 619.C2.19: Nr.10: 118.
Tokyo Prefecture Documents 619.C2.19: Nr.10: 213. Refer also to the December 15, 1891 âReport on Request for Sulfur Prospecting on IÅ-tÅ and the Ogasawara Islandsâ to Mutsu from Yorioka, etc. Tokyo Prefecture Documents 619.C2.19: Nr.10: 165.
Tokyo Prefecture Documents 619.C6.02: Nr.6: 161(1), 215(1).
jacar Ref. A15113117100 (from the 9th image), KÅbun RuishÅ«
jacar Ref. A14100246500 (from the 3rd image), KÅbun RuishÅ«
Dialogue with Minister for Foreign Affairs Terashima Munenori on November 5, 1875. Dai Nihon GaikÅ Bunsho
In a note attached to the August 19 Cabinet Decision, Minister for Foreign Affairs Enomoto Takeaki explains, âThe Minister of Agriculture and Commerceâs assertion that it would be âinjudiciousâ is likely a sentiment in reference to foreign countries. If that is so, I consider it to be an unwarranted concernâ (jacar: A15112383800 [12th image]). However, it is not clear what he means specifically.
jacar: A15112383800 (10th image).
As of 1885, decisions over jurisdiction and the erecting of national markers for Uokagi-jima (which is considered to be Uotsuri-jima), as well as for Kuba-jima and Kumeaka-shima, were postponed.
Dai Nihon GaikÅ Bunsho
Waseda University Institute of Social Sciences
Refer to the âExcerpt of Public Laws,â a note attached to the âRebuttal to the Reply from the Qing Prime Minister Yamenâ from Åkubo to Qing Prime Minister Yamen, Dai Nihon GaikÅ Bunsho
Refer to B. Welsch, âWas Marcus Island Discovered by Bernardo de la Torre in 1543?,â Journal of Pacific History, vol. 39, no. 1 (2004): 109â122. For the list of surveys and studies on Minami-Tori-shima, even though the information is a little old, refer to Hiraoka Akitoshi
jacar Ref. B03041152600 (from the 7th image), Teikoku Hanto Kankei Zakken (1.4.1.7) (Diplomatic Archives of the Ministry of Foreign Affairs); Ref. C06091185100 (from the 24th image), 1898, KÅbun BikÅ [Public Documents Remarks], Doboku [Civil Engineering], 2nd, vol. 22 (National Institute for Defense Studies, Ministry of Defense); Tokyo Prefecture Documents 625.D4.19: Nr.22: 452. Refer to the hand-drawn figure that accompanies this chapter, Figure 1.1.
jacar: C06091185100 (42nd image).
jacar: C06091185100 (from the 18th image); Tokyo Prefecture Documents 625.D4.19: Nr.22: 398(1)â399(1).
jacar: B03041152600 (from the 1st image); C06091185100 (from the 3rd image); Tokyo Prefecture Documents 625.D4.19: Nr.22: 432â433.
Refer to the documents in Tokyo Prefecture Documents 625.D4.19.
Refer to Ishii Kenji
jacar Ref. B03041152800 (images 12 to 13), Teikoku Hanto Kankei Zakken (1.4.1.7) (Diplomatic Archives of the Ministry of Foreign Affairs). It should be noted that the US Governmentâs favorable attitude toward Japanâs measures on this issue may be attributed to the moderate Japanese claims in the Japan-US negotiations over the Midway Islands from 1899 to 1901 and Wake Island in 1902, as stated by the Ministry of Foreign Affairs of Japan. Treaty Bureau, supra note 16, 63. Refer also to endnote 73.
âMinamitorishima Jikenâ
Kijimoto, supra note 52, 113â116.
âMinamitorishima no SenryÅken (Takahashi HÅgaku Hakase no Iken)â
jacar: C06091185100 (19th image); Tokyo Prefecture Documents 625.D4.19: Nr.22: 398(1).
Refer to the Privy Councilâs âInspection Report,â (July 26, 1895). jacar Ref. A03033941100 (5th image), SÅ«mitsuin Ketsugi 1 [Privy Council Resolution 1], Minami TaiheiyÅ ChÅ« ni aru Nichisei RyÅkoku Hanto no KyÅkai ni kansuru Sengensyo [Declaration Concerning the Boundaries of Japan and Spain in the Western Pacific], Resolution of July 30, 1896 (National Archives of Japan).
jacar: B03041152600 (4th image). Refer also to jacar: C06091185100 (10th image).
jacar: C06091185100 (43rd image). Arikawa was also of the opinion that, âEven if Marcus Island is taken as a special island, if we look at it from its general location, then it is only natural that it belongs to Japan.â Arikawa began working in the Hydrographic Office in the Navy around 1893, and on October 26, 1897, he became captain of the TenryÅ«. Given his background, he does not appear to have been particularly familiar with international law. Refer to, for example, Hikone ShÅzÅ
jacar: B03041152600 (3rd image); C06091185100 (5th image); Tokyo Prefecture Documents 625.D4.19: Nr.22: 432â433.
Tokyo Prefecture Documents 625.D4.19: Nr.22: 431.
On May 20, 1898, Tokyo Governor Okabe Nagamoto sent a letter to Director Arakawa of the Prefectural Government Bureau in the Ministry of Home Affairs (1 Hatsu no.541), proposing that the name Minami-Tori-shima was appropriate because it was located to the south (minami in Japanese) of Tori-shima, and later the islandâs name was changed to Minami-Tori-shima. Tokyo Prefecture Documents 625.D4.19: Nr.22: 428â429.
jacar Ref. A15113186700 (from the 4th image), KÅbun RuishÅ«
Grampus Island is said to have been discovered by the Ferris (Captain: John Meares) in 1788, with Japanese and American nationals continuing to explore it from 1888. In 1900, a survey by the KongÅ of the Japanese Navy confirmed that it did not exist, and it was removed from nautical charts. Refer to Hasegawa RyÅichi
The decision was made on July 14 and then the Ministry of Home Affairs was notified. jacar: A15113186700 (from the 1st image); Ref. A15113320500 (from the 3rd image), KÅbun RuishÅ«
jacar: A15113186700 (images 7 to 12).
jacar: A15113186700 (images 3 to 4).
After working for the Ministry of Home Affairs, Arakawa KunizÅ served as the Governor of Fukui Prefecture from 1892 to 1897, and on January 21, 1898, he was appointed as the Director of the Prefectural Government Bureau. When he was younger, Arakawa co-translated a textbook on international law by August Wilhelm Heffter, and it is surmised that he had sufficient knowledge of both national and international law. (August Wilhelm Heffter, Kaishi Bankoku KÅhÅ
Tokyo Prefecture Documents 302.D3.17: Nr.35: 68; 302.D3.17: Nr.34: 67. The July 24 announcement by Tokyo Prefecture was published in the Yomiuri Shimbun and the Miyako Shimbun on the same day.
Refer to the note attached to the Cabinet submission. jacar: B03041152600 (2nd image).
jacar Ref. B03041152700 (1st image), Teikoku Hanto Kankei Zakken (1.4.1.7) (Diplomatic Archives of the Ministry of Foreign Affairs).
jacar: B03041152700 (from the 11th image).
jacar: B03041152700 (from the 10th image).
A July 21 document prepared by Major Sanada Tsurumaru, a member of the First Section of the Military Affairs Bureau in the Ministry of the Navy, stated that, âIt became purely Imperial territory,â but the legal basis for this is not clearly stated. However, the document denies any right of discovery that the United States may claim, stating that Japanese have resided in the area since 1898, and that âIt can be positively declared that this is Japanese territory, and I believe that no one in the world can dispute this.â However, it also notes that, âAt that time, it would have been appropriate to publicly announce to the world that the island will be incorporated into Japanese territory. (This was the case with IÅ-tÅ, which is associated with the Ogasawara Islands.) The announcement in Tokyo Prefecture alone cannot be said to be an announcement to the world.â jacar: B03041152800 (16th image). This clearly shows dissatisfaction with the measures taken by the Government of Japan in 1898.
E. de Vattel, Le droit des gens, ou principes de la loi naturelle, appliqués à la conduite & aux affaires des nations & des souverains (Londres: Apud Liberos Tutior, 1758), Liv.1. Chap. 18. § 207.
Shimizu, supra note 52, 109â110.
Th. A. Walker, A Manual of Public International Law (Cambridge: University Press, 1895), 27. Westlake also notes the need for timely ratification before other countries intervene. J. Westlake, International Law: Part 1: Peace (Cambridge: University Press, 1904), 99.
Takahashi, supra note 54, 371. Friedrich von Martens, KokusaihÅ JÅkan
Kijimoto, supra note 52, 96. Holzendorff argues that when a State assumes a private law title that was acquired by a subject via terra nullius, the State can be found to have âpublic law recognition, ex post facto approval, or ratification in the sense that the former private law relationship is transferred into the domain of public law (öffentlich rechtliche Genehmigung oder nachträgliche Anerkennung, oder eine Ratification).â F. v. Holzendorff, âNeuntes Stück. Das Landgebiet der Staaten,â Id. (Hrsg.), Handbuch des Völkerrechts. Auf Grundlage europäischer Staatspraxis. Zweites Band: Die völkerrechtliche Verfassung und Grundordnung der auswärtigen Staatsbeziehungen (Hamburg: J. F. Richter, 1887), 258.
W. E. Hall, HÅru Shi Kokusai KÅhÅ
Annuaire de lâInstitut de droit international, tome 10 (1888/89), 201â204. Refer also to M. Hébié, âThe Acquisition of Original Titles of Territorial Sovereignty in the Law and Practice of European Colonial Expansion,â M. G. Kohen and M. Hébié (eds.), Research Handbook on Territorial Disputes in International Law (Cheltenham: Edward Elgar, 2018), 81â85; TaijudÅ Kanae
Four individuals other than Wheaton are featured in âExcerpt of Public Lawsâ (September 27, 1874). Dai Nihon GaikÅ Bunsho
Vattel, supra note 74, Liv.1. Chap. 18. §§ 207â208.
G. F. v. Martens, Précis du droit des gens moderne de lâEurope fondé sur les traités et lâusage (2e éd., Gottingue: Librairie de Dieterich, 1801), Liv.2. Chap.1. § 37. The corresponding section is not in the first edition from 1789.
H. Wheaton, Elements of International Law: With a Sketch of the History of the Science (Philadelphia: Carey, Lea & Blanchard, 1836), Part 2. Chap.4. § 5, 138.
A. W. Heffter, Das europäische Völkerrecht der Gegenwart (Berlin: E. H. Schroeder, 1844), 125â126.
J. C. Bluntschli, Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt (3.Aufl., Nördlingen: Beck, 1878), 170â171.
Refer also to E. Ortolan, Des moyens dâacquérir le domaine international ou propriété dâÃtat entre les nations, dâaprès le droit des gens public, comparés aux moyens dâacquérir le propriété entre particuliers, dâaprès le droit privé; et suivis de lâexamen des principes de lâéquilibre politique (Paris: Amyot, 1851), 45â46.
W. E. Hall, A Treatise on International Law (3rd ed., Oxford: Clarendon Press, 1890), 116â117.
J. Westlake, Chapters on the Principles of International Law (Cambridge: University Press, 1894), 139. However, in the narrative that follows, Westlake stated that âwe should certainly be going too far if we said that authority must always be present when its action is required,â and that the need for âauthorityâ depends on the nature and rapidity of the stream of emigration or enterprise (165â166). Takahashi Sakuye argues that âoccupation must be effectively established,â and although there are different theories as to what kinds of acts constitute occupation, he agrees with Westlakeâs theory that âin general, it is sufficient if there is a latent ability to maintain order.â Takahashi, supra note 54, 374â378. Takahashi is citing Westlake, KokusaihÅ YÅron
In his 1904 work, Westlake examined in detail Articles 34 and 35 of the General Act of the Conference of Berlin, and in conclusion, the 1894 work, with its limitations, is presented almost verbatim. Westlake, supra note 76, 108â109. (The then-most current consensus of opinion is the International Declaration of 1888, 110â111.) The second edition from 1910 has the same description. J. Westlake, International Law: Part 1: Peace (2nd ed., Cambridge: University Press, 1910), 110â113. Refer also to Holzendorff, supra note 78, 258; Walker, supra note 76, 27, etc. However, Oppenheimâs 1905 work lists possession and administration (establishment of a responsible authority) as requirements for effective occupation. L. Oppenheim, International Law: A Treatise. vol.1: Peace (London: Longmans, Green, 1905), 276â277.
G. Jèze, Ãtude théorique et pratique sur lâoccupation comme mode dâacquérir les territoires en droit international (Paris: V. Giard & E. Brière, 1896), 229â230.
Ibid., 237â238.
Ch. Salomon, Lâoccupation des territoires sans maître: Ãtude de droit international (Paris: A. Giard, 1889), 307â310, 317â319.
Jèze, supra note 91, 237â238, 382â384; Salomon, supra note 93, 318â319. In addition, in a work by Senga TsurutarÅ in 1903, five years after the Minami-Tori-shima measures were taken, he clearly stated that, âFor an uninhabited island or a small island with a few villages, even if only a single lighthouse is set up, it can be considered to have already been occupied.â Senga TsurutarÅ
Hall, supra note 79 [1880], 90. It is understood that Hall regarded this âsimple adoptionâ as âratification.â There is room for different interpretations as to whether Hall regarded the declaration of a private person as a requirement for occupation.
Refer to âInquiry Concerning Patrol Interrogation Procedures on DaitÅ-jimaâ by Deputy of Okinawa Prefectural Governor Nishimura SutezÅ and Okinawa Prefecture Grand Secretary Mori Nagayoshi. DaitÅjima Torishirabesho
The June 23 Cabinet Decision includes the expression, âAs the island is of great military and fishery importance, it is now confirmed that the area is affiliated with Japan.â jacar: A14100246500 (from the 3rd image).
From January to February 1892, various newspapers in Spain and the Philippines (under Spanish rule at the time) reported that the incorporation of IÅ-tÅ would further promote âViscount Enomotoâs colonialism,â and successive articles concerned about the impact on the Mariana islands were published. In response to this, a March 23 letter from Minister for Foreign Affairs Enomoto Takeaki to Nomura Yasushi, the Japanese Minister to France, stated that, âIt has never been an aggression on foreign territory as by the incorporation the administrative jurisdiction is decided and the name is defined.â Regarding this matter, there are no documents indicating that the Spanish Government made a formal protest to the Japanese Government. jacar: B03041152400 (from the 9th image); Ref. C10125184600 (from the 1st image), 1892, KÅbun ZasshÅ« [Public Record Collection], vol. 10 Tochi [Land] (National Institute for Defense Studies, Ministry of Defense).
jacar Ref. B03041152900 (from the 29th image), Teikoku Hanto Kankei Zakken (1.4.1.7) (Diplomatic Archives of the Ministry of Foreign Affairs).
For a discussion on this point, refer to, for example, Park Bae-geun
jacar Ref. A01200222600 (from the 1st image), KÅbun RuishÅ«
jacar: A15113659900 (from the 2nd image).
jacar: A15113320500 (from the 1st image).
While the Minister for Foreign Affairs was concurrently serving as the Prime Minister when the Cabinet Decision was made on Minami-Tori-shima (Åkuma Shigenobu), it does not mean that the Ministry of Foreign Affairs was opposed to the respective Cabinet Decisions on Takeshima and Nakano-Tori-shima because the Cabinet documents on these islands bear the seal of the Ministers for Foreign Affairs (Komura JutarÅ and Terauchi Masatake).
Tachi, supra note 17, 44â48.
Akiyama Masanosuke cites âfacts of ownership,â âfacts of possession,â and âde facto possessionâ as requirements for occupation. Akiyama, supra note 17, 42; Id., KokusaihÅ KÅgi Heiji (Meiji HÅritsu GakkÅ 33 Nendo 3 Gakunen KÅgiroku)
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