By Nabel Akram
The Japanese and Chinese both have attempted to resolve the issues surrounding the East China Sea (ECS) dispute through international law, but there are two differing aspects of the dispute that need to be addressed under international law: the maritime delimitation of the continental shelf and the delimitation of the EEZ. Though this may sound deceptively simple, both issues fall under different legal systems (Wu & Zhang, 2010).
In regards to the maritime delimitation issue, Japan proposed and claimed that the maritime boundary would be established on the basis of a median line. This median line would be in waters less than 400 nautical miles in distance, but it is not supported by China (Wu and Zhang 2010). The Chinese believe that the maritime boundaries of the EEZ and the continental shelf should be decided separately under international law with consideration given to relevant factors such as history in order to achieve equity (United Nations 2013; Wu and Zhang 2010)
Under the Law of the Sea Convention (LOS) the Exclusive Economic Zones (EEZ) (enlarging 200 nautical miles beyond a country’s borders) of China and Japan overlap in the ECS(Goldstein A. , 2012).Law of the Sea is a body of international law that concerns the principles and rules by which public entities, especially states that when there are competing claims regarding EEZs, the two nations must use a median line that stands in the middle of the disputed waters until a compromise can be reached over the delimitation (Amer, 2011).While both countries have avoided diplomatically resolving the territorial dispute, they still claim that the territory is rightfully theirs. China maintains that Japan theft the territory at the time of Sino-Japanese war, when Japan claims to have integrated the islands into its territory likewise with international law.
Treaty of Shimonoseki
At the conclusion of the Sino-Japanese War, the Treaty of Shimonoseki stipulated that China would give Japan Taiwan and the Pescadores Islands; the Senkaku islands were not mentioned because Japan claims to have acquired the islands through the international legal principle of terra nullius a term that means “land belonging to no one”
According to Shigeyoshi (2010), a state can, in fact, acquire territory not belonging to any other state via occupation under international law. This is done through a “terra nullius,” a Latin phrase used to describe territory which no state has claimed or made subject to its sovereignty. Territory that is “terra nullius” may be acquired by a state through means of occupation. This international law would apply to both Japan and China at the time, signifying that either state could have legally acquired the islands by means of occupation, as the Japanese government did when it incorporated the Senkaku/Diaoyu Islands into the administrative authority of Okinawa (Shigeyoshi, 2010).Terra nullius has been used by Japan to argue that China never controlled the Senkaku. Japan argues that because it incorporated the islands into its territory through “acquisition through occupation,” they rightfully belong to Japan. However, China disputes this claim and does not recognize Japan’s actions through international law.
The legal claims were further complicated by World War II. The 1943 Cairo Declaration stated that Japan would “restore to the Republic of China all the territories Japan has stolen from the Qing Dynasty of China such as Manchuria, Formosa, and the Pescadores (Ikeda, Getting Senkaku History Right., 2013). Even if Japan had taken the island from China after the Sino-Japanese war, China argues that this agreement proves that Japan returned the island after the world war, even if the islands were not explicitly mentioned. However, Japan still maintains that it acquired the islands through international law, and thus these treaties do not matter. This disagreement is the basis for the conflict today.
Discovery of undersea resources in 1968
The dispute between and China and Japan over maritime delimitation in the ECS has primarily arisen since the discovery of vast undersea resources in 1968, validated through differing interpretations of the United Nations Convention on the Law of the Sea, ratified by both China and Japan in 1996. United Nations Convention on the Law of the Sea and use the law to interpret China and Japan’s differing interpretations. Context to the dispute will be given through a brief history of China and Japan’s historical claims to the ECS and by assessing undersea reserves of oil and natural gas that lay under the ECS and their impact on the disputed boundaries. This chapter will ultimately answer the question of how China’s interpretation of delimitation in the ECS is unique.
The UNCLOS of the Sea
The rights to and claims over open seas have been a challenge to societies for thousands of years. Over centuries, societies have produced common understandings and written agreements to help navigate the claims of liquid boundaries. The earliest maritime laws, the Rhodian Sea Laws, purportedly date back as early as 900 B.C. However, it was the seventeenth century freedom-of-the-seas doctrine – the principle that limited any country’s maritime jurisdiction and rights to a band along its coast, guaranteeing the freedom of the open seas that took the first tremendous step towards the international maritime laws that are recognized today.
Under the UNCLOS, international maritime laws are currently established and better regulated than at any other time in history. However, as new challenges arise, such as rights and claims to undersea oil and gas, and interpretations of laws and maritime boundaries are challenged, maintaining order and peace in the world’s ocean and seas is an ongoing challenge. Chinese vessels and aircraft Nationalism increases pressure on both governments China has yet to achieve, legitimacy for its interpretation of international law (Dimond, 2014).
Critically important to the third convention was the issue of sovereignty over sea and ocean beds. With rapid developments in technology, undersea oil and gas deposits were becoming exploitable for the first time. Previous maritime discussions and disputes had been primarily focused on surface issues such as shipping lanes and fishing rights. The potential black gold rush for undersea oil in the 1960s heralded a new age in international maritime disputes. The issue was of such concern that the United Nation’s Seabed Committee was created as part of the third convention and it was decided to rewrite international maritime law to take into account that widening diversity of claims on different zones of open waters. The third convention specifically defined the following maritime zones: the territorial sea, the contiguous zone, the EEZ, the continental shelf, the high sea, the international sea-bed area and archipelagic waters (Noyes, 2016).
As this thesis moves to examine legal perspective of the ECS, it is important to look at the specific legal text from which countries have based their claimed boundaries. At a 2010 Conference hosted by the U.S. Naval War College, one Chinese speaker, Maj Gen Peng, stated that “China is active and firm in defending its legitimate rights and interests. Chinese people will not compromise any vital interests related to national sovereignty and security. Respect for sovereignty and jurisdiction is a basic principle of international law.” October 2010 meeting of Japanese ministers “reaffirmed that that there is a need to establish a communication mechanism at sea between the defense authorities of China and Japan as soon as practical.” In the convention under part II, section II, article 3 of the convention as; “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” Additionally, “this sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.” A nation’s territorial sea and contiguous zone is where it maintains the greatest control. It is in the adjoining exclusive economic and continental shelf zones that a nation’s power is less defined and that boundary contention arises (Dimond, 2014).
According to part V, article 57 of the convention; “The EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” According to part V, article 56Rights, jurisdiction and duties of the coastal
State in the exclusive economic zone:
In the exclusive economic zone, the coastal State has:
- sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
- jurisdiction as provided for in the relevant provisions of this Convention with regard to:
- the establishment and use of artificial islands, installations and structures;
- marine scientific research;
- the protection and preservation of the marine environment;
- other rights and duties provided for in this Convention.
Unlike the territorial sea and contiguous zone, ships and planes originating from other nations have the right to navigate a nation state’s exclusive economic zone.
Lastly, the boundary of a nation’s continental shelf zone is defined in part VI, article 76.1 as “ the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” This is further outlined in articles 76.5, 76.6 and 76.7.
The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the2,500 metreisobath, which is a line connecting the depth of 2,500 metres.
Notwithstanding the provisions of paragraph, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.
The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude (Dimond, 2014).
UNCLOS and the ECS
The ECS encompasses an estimated 480,000 square miles and forms coastline on the countries of China, Japan, Taiwan and South Korea. Spurred by an extensive and difficult history between Northeast Asian countries, there have long been disputes over the sovereignty of the sea’s boundaries and resources. Currently, the greatest rivalry over the ECS has been between China and Japan. With a long and troubled past, UNCLOS has become a new ground for these two nations to take opposing sides. UNCLOS’s emergence as a formal, diplomatic mechanism has given nations the means to make direct assertions of maritime claim (Tanaka, 2015).
In bodies of water where claimed boundaries overlap, this has led to diplomatic hotbeds around the world. However, few can compare to the spiraling tensions between China and Japan and their competing claims over the ECS.
The Diaoyu/Senkaku Islands
The Diaoyu/Senkaku Islands are easily the most divisive and publicized point in the ECS. There are two primary issues concerning the Diaoyu/Senkaku Islands: what nation the islands are part of and whether the islands can legally be considered as inhabitable. Though claimed by China, Japan, and Taiwan, it is the competing claims between China and Japan that have raised regional tensions to a boiling point over that past few decades.
According to the China Senkaku Islands is condensed by Matsui, Yoshiro, China’s three primary historical claims are;
First, the Ryukyu Kingdom (now Okinawa) had tributary relations with China from the 14th to the mid-19th century, and China sent investiture missions to Ryukyu to legitimize new kings some twenty times during this period. These missions used the Diaoyu Islands as navigational aids and some of their reports referred to the islands by that name;
Secondly, in the mid-16th century the Ming dynasty established a coastal defense system against the then active Japanese pirates or smugglers (wako in Japanese). The documents and maps concerning this system included the Diaoyu Islands within the coastal defense area of China;
Thirdly, fishermen from China fished in the sea areas surrounding the islands from ancient times and used them for shelter in bad weather; and
Fourthly, Empress Dowager TsuHsi issued an Imperial edict in 1893 to award three of the islands to a private person for collecting medical plants there (Matsui, International law of territorial acquisition and the dispute over the Senkaku (Diaoyu) islands).
Although historical grounds have been used to solve disputed territorial claims in other cases, China suffers in being unable to produce evidence that the country has ever expressed an unambiguous will to possess the islands (Dimond, 2014). (Lee, 2011).
Unless a claim to territory is corroborated by an act to display the claimant’s will to occupy it, it is considered as terra nullius, no one’s territory. In the understanding of the Japanese Government no such corroboration had been provided by China when it incorporated the Senkaku Islands in the Japanese territory in 1895. The Japanese position was strengthened by the lack of protest on the part of China against their incorporation and the subsequent granting of the lease of one of the Islands to a private person who wanted to gather sea-birds’ feathers there. Hence the Japanese position that it has had undisputed sovereignty over them, and that there is no territorial dispute over them (Dimond, 2014).
In 1968, following the discovery of nearby underwater natural resources in the 1960s, the islands that were previously considered unimportant to either nation became incredibly valuable and sparked competing claims. On September 27, 1972 the third summit of the Sino-Japanese diplomatic normalization talks were held in Beijing. During the summit, Japanese Prime Minister Tanaka Kakuei asked “What do you think about the Senkaku Islands (Diaoyu Islands in Chinese)? There are people who come to me with various comments about the issue.” Chinese Premier Zhou Enlai answered: “It is not good to discuss this at this time. This has become an issue because of (the discovery of) oil (in the region). Neither Taiwan nor the Unites States would pay any attention (to the issue) if it were not for oil.” (Zhai, 2014). (Ikeda, 2013).
Historically, the islands were mostly uninhabited, used as navigation points and camping sites for fishermen. The exception being that the Japanese sparsely inhabited the islands from 1895 until immediately before the start of World War II – the population of one of the islands, Uotsuri, topped 200 at one point. (Ikeda, 2013)..
Since World War II, the status of the islands has returned to uninhabited. It is as yet unclear whether or not the islands could be recognized by international law as inhabitable. Although the islands were clearly inhabited at one point in time, it is unclear whether they could be inhabited by modern standards or sustain an ‘economic life of their own.’
International Court of Justice and Islands dispute
Although the International Court of Justice can hear a case of the islands dispute between China and Japan, there are several difficulties to use the ICJ for the dispute. First, Japan insists that “there exists no issue of territorial sovereignty to be resolved concerning the Senkaku Islands (MOFA, 2016). Initiating the ICJ procedure by Japan might conflicts 69 with the current Japan’s position because if Japan files a law suit to the ICJ, the world would recognize that Japan considers that there is a territorial issue between China and Japan.
China also does not seem to be motivated to file this case to the ICJ. China clearly denied participating to the similar territorial dispute case filed by the Philippines to the PCA. We can assume that China is not willing to use the current international court procedures to resolve territorial disputes in the East and South China seas. Secondly, although ICJ decisions have the force of law, they are not always fully respected by parties. There is no enforcement mechanism (Kurokawa, 2017).
Although the U.N. Security Council can talk about its non-compliance, China is a permanent member of the U.N. Security Council. Hence, if the ICJ‟s decision about the islands dispute does not favor China, it would be hard to force China to obey with the ICJ decision. If no enforcement is available, the dispute will not be resolved in the real world. Thirdly, the ICJ reviews some types of factors regarding adjudicating territorial claims; geography, treaty law, culture effective control, economy, history, and ideology. In these nine factors, only the three of them have consistently been considered as a basis for decisions by the ICJ: treaties, recognized historical boundaries and evidence of effective control(Center, 2010). About the islands dispute between China and Japan, the ICJ would review San Francisco Peace Treaty, China’s historical records, Japan’s claim of terra nullius, and recent maritime activities by Chinese vessels. Although China would bring Shimonoseki treaty and other legal documents at the end of WWII as evidences, Japan would oppose the evidence as irrelevant.
The ICJ will make a decision based on these arguments, but the ICJ cannot address the issue of nationalistic attribution. Thus, since the ICJ only can decide which country has a legally recognized claim based on the treaty, historical boundaries, and evidence of effective control, the ICJ cannot reconcile the psychological issue of the nationalistic attribution between Chinese and Japanese. If the ICJ makes a decision, either Chinese or Japanese would experience a feeling of losing. This feeling would strengthen their members‟ nationalistic attribution.
Alternate Future Policy Proposals
The highly contentious nature of the Sino-Japanese conflict has led many scholars to consider possible solutions. One proposed solution is structured co-development. There is already a history of cooperation, as China and Japan have previously agreed to jointly develop the Chunxiao gas field while the two government explored possibilities for delimitation.
Specifically, the two sides agreed upon a specific block of the ECS in which they would be allowed to jointly extract resources. While China would control extraction rights, it would allow Japanese consultants to help determine drilling sites. Then, Japan and China would equally share the profits. While this agreement seemed like a huge step towards reconciliation, cooperation eventually fell apart. In mid-2015, Japan accused China of unilaterally extracting resources in the ECS. Japan released evidence of Chinese drilling platforms that they claimed were placed without the consultation of the Japanese government, thus violating the 2008 agreement for joint development.
In response, China claimed that their development was “fully justified and legitimate,” thus ending both sides’ observation of the agreement. The collapse of the agreement stemmed from both countries having differing views regarding what the agreement entailed. In particular, because China does not observe the median line in accordance with international law, it often develops areas it believes are within its sovereignty. The agreement also exposed another fundamental problem with current joint development programs.
While Japan attempts to adhere to international law protocol, China does not observe the same restrictions. These fundamental disagreements over what the two countries should do while the delimitation has not been agreed upon are the root of many recent disputes. For delimitation talks to proceed, the countries cannot continue to have peripheral conflicts. As a result, a solution that will quell these conflicts is a necessary prerequisite for an ultimate binding agreement over the currently disputed territory.
Academics have proposed solutions beyond just the attempts at resolution by China and Japan. The most obvious solution, used for territorial disputes like the one over the ECS, is the International Court of Justice (ICJ). However, since the dispute involves not only politics but also economics and history, China has declared its unwillingness to allow international arbitration. Additionally, a ruling by the ICJ may have implications for China’s other territorial claims such as the Spratly islands in the South China Sea. Again, this result would be detrimental to Chinese interests.
(Valencia, 2007), took a different approach to resolving the Sino-Japanese dispute in the ECS: economics. Even though the dispute has substantially hurt relations between the two countries, trade steadily increases every year. This trend means that even if the countries are at odds politically, they are increasingly reliant economically; they even cooperate over fisheries in the ECS in order to support their fishing industries.
The ECS has become increasingly polluted, potentially hurting industries in both countries. Increased cooperation on environmental issues could help reduce tensions and ultimately lead to a solution over the delimitation. (Valencia, 2007).
Nabel Akram: Master of philosophy in Political Science and Former Research Assistant at University of Management and Technology Lahore. Research Interests Include Asia Pacific, China’s Foreign Policy. Can be reached Via email [email protected]