The Drafting History of the Treaty of Shimonoseki

One of the many contested issues in the sovereignty dispute over the Senkaku / Diaoyu Islands is whether China ceded title to Japan in the Treaty of Shimonoseki. In this post, I’ll briefly explain the competing textual arguments under the Treaty and then explore the question of meaning from an angle that is often overlooked: whether a first-hand, historical account of the Treaty negotiations from a Japanese official named Munemitsu Mutsu favors the contemporary position of either party. Mutsu’s account is valuable to the ongoing debate because he wrote it shortly after the negotiations concluded and, as the Japanese foreign minister and Tokyo’s chief representative at Shimonoseki, he possessed intimate and unsurpassed knowledge of the discussions that occurred. I obtained the account from Kenkenroku: A Diplomatic Record of the Sino-Japanese War, 1894-95, which was edited and translated by Gordon Mark Berger in 1982.

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Why China’s ADIZ Has No Legal Significance

There’s been an avalanche of news on the East China Sea over the past week. As I discussed in my previous post, China recently announced a new Air Defense Identification Zone (“ADIZ”), thereby requiring foreign aircraft flying over the Sea to provide navigation plans and means of identification to Chinese authorities, and to follow any instructions from the same. China’s armed forces “will adopt defensive emergency measures” against any aircraft that fails to cooperate. The reactions have been uniformly negative. Australia, Japan, South Korea, Taiwan, and the United States have all expressed opposition, while Japan, South Korea, and the United States each sent military aircraft into the ADIZ without notifying China or otherwise complying with the announced rules. Sensing that they had overreached, Chinese authorities subsequently exempted U.S. aircraft as long as they do not “go too far.” Japan, however, is still subject to the ADIZ. My last post explained that the legality of all of this hinges on whether China has title to the Senkaku / Diaoyu Islands that are located within the ADIZ, and on how aggressively China chooses to enforce the measure.

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