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"China, which said it would keep a low profile without revealing what it could do (韜光養晦), has risen to be a big country to be reckoned with." This is my impression of the recent row over the Shenkaku (尖閣: a.k.a. Diaoyu in Chinese) Islands. When a horde of Chinese fishing vessels entered the Shenkaku waters that Japan had claimed to be their territory, and the marine surveillance ships of the CMS (China Marine Surveillance: Korea's equivalent of Coast Guard) stayed there for as many as seven hours under the pretense of 'sovereignty protection,' all Japan managed to do in response was to send in Japan Coast Guard patrol boats to remind the Chinese through the microphones, "You are in the territorial waters of Japan." And China went on to proclaim a territorial sea baseline there on September 10, 2012.

International law recognizes that in a state's territorial waters, vessels from other countries are entitled to the right of innocent passage, where 'innocent' means harmless to 'peace, security, and order in the coastal state" and as long as the passage of those vessels remain innocent, their right of passage should be recognized. And in principle, fishing vessels are not entitled to the right of innocent passage. To be entitled to the right of innocent passage, fishing vessels are required to house fishing gear, including net, before passage. The Chinese fishing vessels didn't meet this requirement, but Japan still failed to stop their passage by force. Is this situation temporary or permanent? As loss of effective control in a territorially disputed area means loss of sovereignty over it, how this situation will develop is something for us to watch with keen interest.

Three Instances of Resorting to Military Power for Resolution of Territorial Disputes

Since the Second World War, there have been three instances of using military force to resolve territorial disputes: India's invasion of Goa in 1961; China's invasion of the Paracel Islands in 1974; and Argentina's invasion of the Falkland Islands in 1982. India had acknowledged the legal status of Goa, Daman, and Diu under Indian Territory after their independence. Nevertheless, India occupied and incorporated these three areas into its own territory in 1961.

At the UN Security Council meeting at that time, the representative of India justified his country's action as exercise of the right of self-defense against 'permanent aggression.’ But most of the council members disagreed, and an resolution denouncing India and demanding restoration was almost adopted but vetoed by then the Soviet Union. The 1974 Chinese invasion of the Paracel Islands, taking place in the midst of the chaos before the impending downfall of the Saigon government of Vietnam, became a fait accompli without receiving attention from the world.

When the Falkland Islands were invaded in 1982, the UN Security Council was convened immediately, adopting a resolution denouncing Argentina and demanding withdrawal of the Argentine Army. Jordan and Uganda, then non-permanent member states, voted in favor of the resolution, simply because, as they explained, Argentina was in violation of the UN Charter prohibiting the use of armed force. They added that it was not that they hadn't understood the cause of that country.

Here we notice that the international community takes means to an end more seriously than an end itself. In the international community, an illegitimate means to an end is still considered illegitimate even if the end is justified. Good examples of this are attempts to resolve territorial disputes by armed force. International law in effect today prohibit any attempts to resolve territorial disputes with armed force.

"Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations" adopted as UN General Assembly Resolution No. 2628 has the following rule: "Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States." This is an authoritative interpretation of the Charter of the United Nations, and therefore recognized to be legally binding, even though it is a UN General Assembly resolution. The UN General Assembly resolution on the "Definition of Aggression" adopted in 1974 stating that "'The first use of armed force' by a State in contravention of the Charter shall constitute 'prima facie evidence of an act of aggression'" (Article 2) is also in line with this rule.

Why the Use of Armed Force in Resolving Territorial Disputes Is Prohibited

Why does international law prohibit the use of armed force in resolving sovereignty disputes? There is a similar system found in domestic law: protection of occupation. Domestic law acknowledges the right of occupation, and prohibits even the owner from violating the right of occupation by force without taking proper legal steps. The purpose of this is to ensure that legal stability is maintained. And this is also acknowledged in the international community; one is prohibited from attempting to restore the object by force even if one holds 'a better title' to it.

If a state that claims to have 'a better title' to a territorially disputed area considers effective control over that area as an ongoing aggression, is such a state entitled to attempt to reclaim that area by exercising its right of self-defense? This is a question raised upon India's invasion of Goa mentioned earlier, but it was not settled as then the Soviet Union exercised its veto power at the UN Security Council.

In my opinion, the use of armed force in this case may not be considered legitimate, either. The reason is as follows. Under the present international law, the use of armed force by an individual state is justified only in the case of self-defence, and the case of self-defence is acknowledged only with the occurrence of an ‘armed attack’ (refer to Article 51 of the UN Charter). And the situation described above may not qualify as one involving an armed attack.

As for what constitutes an armed attack, refer to the ICJ (International Court of Justice) judgment on June 27, 1986 on the Nicaragua vs. USA case, which stated, "an armed attack must be understood as including not merely action by regular armed forces across an international border, but also 'the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to' (inter alia) an actual armed attack conducted by regular forces, 'or its substantial involvement therein (Paragraph 195 of Judgment)."

There is no way to think that effective control over a territorially disputed area fits this description. Therefore, it is not allowed to resolve territorial disputes in the name of exercising the right of self-defence. Nor will any state claiming to have 'a better title' to a territorially disputed area be allowed to attempt to reclaim it by using armed force under the pretense that its own territory is subjected to "permanent aggression" when it is actually under effective control. The use of armed force cannot be justified in any territorial dispute.