3.3  The East China Sea Conflict

1 February 2017

What is the Dispute About?

 

In the East China Sea, the dispute between China and Japan is over Diaoyu (钓鱼岛)/Senkaku (尖阁群岛) Islands which consist of eight tiny insular formations covering a total of less than 7 square kilometres.[1] They are located around 120 nautical miles northeast of Taiwan, 200 nautical miles east of China mainland and 240 nautical miles southwest of the Japanese island of Okinawa.[2] They sit on the edge of the continental shelf of mainland Asia and are separated from the Japanese Okinawa islands by a deep (2270 meter) sea trench.[3] Five of the eight islands are volcanic islands while three are just rocky formations. All the eight islands have a small and dry surface during the whole year and are inhabited. Only two had scant vegetation including palm trees. They are of little economic value except for some fishing and feather collecting activities.[4]

 

The islands, as part of Taiwan, were ceded to Japan in accordance to the Shimonoseki Treaty signed after China was defeated in the Sino-Japanese War in 1895. It remained in Japanese control until end of WWII when the US assumed administrative control in 1945, paying an annual rent of $11,000 to the son of the first Japanese settler, using the islands for targets practice. Neither China nor Taiwan raised any objection over the US control of the islands despite the various peace agreements stipulating the return of all territories seized previously by Japan to China.[5]

 

In 1971, US finally ceded control of Okinawa Island, including the rest of the Ryukyu Islands, over to Japan under the Okinawa Reversion Agreement. Since the Diaoyu/Senkaku Islands are located near the Ryukyu Islands, Japan considered the disputed islands to be returned by the Americans to the Japanese together with the Ryukyu Islands based on the agreement. In response, Taiwan issued an official protest while the official Chinese media voiced similar complaints. Both Taiwan and China rejected the Okinawa Reversion Agreement and claimed sovereignty over the islands. To be sure, the US government also did not see the transfer of the right of administration over the islands as equivalent to the transfer of sovereignty to Japan and declared that the matter was to be resolved by the relevant parties. It did however include the islands within the Treaty of Mutual Cooperation and Security signed with Japan thus obligating the US to come to Japan’s aid for the defense of the islands should China decide to take them by force.

 

The dispute is not only just a sovereignty dispute between China, Taiwan and Japan. Since the 1960s, two developments made it also about the rights of natural resources exploitation.

 

The islands had little economic value until 1968 when prospecting for mineral resources under the auspices of a UN commission revealed that “the continental shelf between Taiwan and Japan may be one of the most prolific oil reservoirs in the world”[6] with a potential supply estimated to be between 10 to 100 billion barrels.[7] They represent a value of about US$6 trillion, which is the equivalent of more than the US annual GNP. In addition to the oil, there is also an estimated reserve of 200 billion cubic meters of natural gas in the area.[8] The most valuable part of the East China Sea was determined to be a 200,000 sq km next to the Diaoyu/Senkaku Islands.[9] The findings led Japan, South Korea and Taiwan to lay claim to seventeen seabed oil zones in the Yellow and East Chinese Sea; thirteen of them overlapped the adjacent state’s claim.[10]

Another development that would have a bearing on the issue of Tiaoyu/Senkaku Islands dispute is the 1982 Third United Nations Convention on the Law of the Sea (UNCLOS) which legitimizes each coastal or island state to claim a 12-nautical-mile territorial sea and a 200-nautical-mile "exclusive economic zone" (EEZ) from the shore baseline. In addition, a coastal state can also claim a continental shelf out to 350 nm from the baseline based on the ‘natural prolongation’ doctrine.[11] The EEZ of 200 nautical miles around a small island works out to about 125,600 square nautical miles of ocean space”[12] In the event if the sea separating two countries is less than 400 nautical miles, maritime boundary conflicts will arise. In the case of the East China Sea, Japan and China are separated by only 360 nm of sea. International courts such as the ICJ have recognized that the most often applicable principle to resolve such conflicts is one of equidistance. In other words, both parties in a conflict will have approximately the same nautical miles of territorial sea and EEZ. [13]

Source: Marc Reina Tortosa. (2013). Pg 19.

As a continental state, China stands to gain from the most generous delimitation of its continental shelf. China’s claim over the Senkaku/Diaoyu Islands is therefore not just based on historical reasons, but also on what it is called continental shelf rights extended by ‘natural prolongation’ to the ‘Okinawa Trough’ plus the EEZ to the north and east of the Islands to an equidistant line with the proximate undisputed Japanese Island. In contrast, as an island state, Japan would seek to claim a maximum permissible area around it as the EEZ. If Japan’s claim is won, then its maritime jurisdiction would increase substantially in terms of EEZ even encroaching substantially on China's continental shelf.[14] It would undermine China’s argument that the trough creates a natural boundary.

 

The UNCLOS went into force in 1994. Both, China and Japan ratified the Convention in 1996 and are therefore bound by it. Inexorably, the new rulings under UNCLOS add a new dimension to the Diaoyu/Senkaku Island disputes between China and Japan. With the introduction of the concept of the EEZ and the broadening of the continental shelf margin in the LOS Convention, both countries can now maximize and expand their sovereign rights over the sea and natural resources with Japan invoking the median line principle while China relying upon the ‘natural prolongation’ doctrine.[15]

Incidents over the Islands

 

Disputes involving the construction of a lighthouse on Uotsuri Island and the intrusion of armed Chinese fishing boats into the waters off the Diaoyu/Senkaku Islands flared up in 1978 and threatened to scuttle the negotiations on a formal peace treaty. Restraint on both sides led to an amicable resolution and talks on the peace treaty were resumed in July. The Sino-Japanese Treaty of Peace and Friendship was signed on August 12 and came into effect October 23, 1978.

 

As bilateral ties improved, there was relative calm until 1990 when Japanese government accepted the Japanese activists’ application to declare the Uotsuri lighthouse official led to serious demonstrations and protests in front of the Japanese embassies. There were also attempts by Taiwanese activists to land on the Islands to leave an Olympic torch as a symbol.

 

By the second half of the 1990s, political tensions between the two countries grew increasingly pronounced. In 1996, detainment of fishing boats approaching to what Japan considered its territorial waters led to attempts by pro-China Hong Kong activists to land on the disputed islands. The crisis reached its highest point when one activist drowned after jumping into the water. To restore relations, the Japanese Prime Minister Hashimoto visited his counterpart Li Peng in Beijing in 1997. This was followed by seven rounds of bilateral negotiations which culminated in November that year in the signing of the Fisheries Agreement on shared management of fishery resources located in the Diaoyu/Senkaku Islands.

 

In 2004, the UNCLOS regulations were put to test when tensions flared over exploration activities of Chinese maritime research ships in the Chunxiao natural gas field, which falls not only on China’s continental shelf but also in an area of the East China Sea adjacent to the mid-point maritime demarcation line between Japan and China. Both China and Japan claims right of exploitation but since China does not recognize the mid-point line as a maritime boundary, as far as China is concerned, it has all rights to explore and exploit the Chunxiao natural gas field based on UNCLOS’s regulations. A year later, in an effort to calm Chinese activists, Japan “proposed to China the joint development of four natural gas fields, which straddle the median line suggested by Japan and lie between the two areas proposed by China.”[16] A final agreement was reached in June 2008. Despite so, nationalist feelings arising from sovereign claims over the disputed Islands continued to fester and attempts by activists from both countries trying to land on the islands were staged almost every year amid protests in front of embassies.[17]

 

Finally in 2012, soon after the launched of the US’ “Pivot to Asia” initiative, the Japanese government also purchased the contentious Daioyu/Senkaku Islands from a private Japanese owner in September 2012, bringing them under state control. To China, Japan’s nationalization of the islands, together with Philippines submission of its territorial claim for arbitration in 2013, was an integral element of the US’ containment strategy, designed to provoke China into taking a more aggressive stance in both the South China Sea and East China Sea, thus undermining its own claim of a peaceful rise. Inexorably, the Japan’s move stoked anger in China and contributed to worsening ties.

 

Tension was exacerbated by US response. Former US secretary of state Hillary Clinton, for example, supported Japan's nationalisation of the islands while reiterating the Washington security pact with Tokyo. Similar comments of backing Japan were later made by her successor John Kerry and most recently by Jim Mattis after he assumed the post of Defence Secretary in February 2017.[18] Not surprisingly, America's position triggered strong responses from China. In November 2013, China declared an air defense identification zone over the East China Sea in which the Diaoyu/Senkaku Islands were included. Since then, China has stepped up patrolling of water near the islands by its coast guard. In 2017, for example, there were 28 such patrols involving progressively more, bigger and better-equipped Chinese coast guard vessels. In response to Chinese actions, Japan has announced plan to upgrade its coast guard force in its defence budget slated for 2018.

 

Basis of China’s and Japan’s Claim

 

The Chinese claim of sovereignty over the Islands is mostly based on historical records.

 

First, the Ryukyu Kingdom had tributary relations with China from the 14th to the mid-19th century. During this period, China sent imperial envoys to Ryukyu to legitimize new kings some twenty times.[19] It was found that, as early as 1372, the islands were discovered by the Ming Dynasty imperial envoy and were used as a navigation point from Fujian to Ryukyus (琉球群岛).[20] The island was specifically mentioned in a 15th-century document (顺风相送) now held at the Bodleian Library in Oxford.[21]

 

Second, in the mid-16th century the Ming dynasty established a coastal defense system against smugglers and Japanese pirates (倭寇).[22] Based on the documents and maps related to the coastal defence system, it was found that Diaoyu/Senkaku Islands were included in the coastal defense area.

 

Next, Chinese historians have also pointed out that, from ancient times, Chinese fishermen had fished in the sea surrounding the islands while using those islands as operational base.

 

Finally, records also show that Empress Dowager Cixi issued an imperial edict in 1893 to award three of the islands to a Chinese official so that he could collect medicinal plants there. The edict was dated about 2 years before the annexation of the islands by Japan in 1895.

 

China asserts that even though the islands were ceded to Japan based on the Shimonoseki Treaty (马关条约) after the First Sino-Japanese War (甲午战争), sovereignty should have reverted back to China based on the 1943 Cairo Declaration, the 1945 Potsdam Proclamation, the 1946 UN Decree 667, 1951 San Francisco Peace Treaty and the 1952 Sino-Japanese Peace Treaty.

 

Even though Daioyu Dao was not specifically mentioned, the 1943 Cairo Declaration was unequivocal in stating that “Japan shall be stripped off all the islands of the Pacific which she has seized or occupied” and that “all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa (Taiwan), and the Pescadores (Penghu Archipelago), shall be restored to the Republic of China.” In 1945, a few days just before atomic bombs were dropped in Hiroshima and Nagasaki, the Potsdam Declaration also specified that “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we (i.e. US, UK and China) determine.” Postwar Japan's territories are therefore basically limited to Japan's four main islands and all territories in dispute must be returned to the original countries based on the declaration issued jointly by the US, the UK and China. In 1946, UN Decree 667 also stated that Japanese territory should be limited to the five major islands including the Ryukyu Islands north of 30° degree of north latitude. It made no provisions for the Diaoyu/Senkaku Islands to be Japanese territory.[23] Finally, China also asserts that ownership of the Islands should have reverted to China upon the conclusion of the San Francisco Peace Treaty in 1951 and the Sino-Japanese Peace Treaty in 1952. In the treaties, Japan renounced “all right, title and claim to Formosa and the Pescadores” and recognized that “all treaties concluded before December 9, 1941 between China and Japan have become null and void”.[24]

 

In addition to the arguments based on historical record on territorial secession, the Chinese also argued that, geologically, the islands are located in their continental shelf that extends from its continental baseline to the Okinawa Trough. Hence, based on United Nations Convention on the Law of the Sea (UNCLOS), China would have exclusive control and rights to explore and exploit the seabed and subsoil of the continental shelf were the Islands are located.[25]

 

In contrast, the Japanese position is based more on the modern rules of international law on the acquisition of territory which stipulates that a claimant to a territory maintains its sovereignty over that territory in such a manner as will not allow any external interference in its ownership. Otherwise that territory may be considered as terra nullius (i.e. no one’s territory) and can be appropriated by another claimant who comes later with an ambition to deprive the original owner of its ownership – an instance of the ‘rule of capture’.[26]

 

According to the Japanese government, after the islands were discovered in 1884, the Okinawa prefecture government conducted many on-site surveys from 1885 onwards. The islands were only annexed in 1895 as terra nullius after the surveys and field inspections confirm there were no signs of control by the Qing Empire. Notably, no counterclaims were made by China at the time of annexation. The Japanese position was also strengthened by the absence of protest on the part of China against the subsequent granting of the lease of one of the Islands to a private person who wanted to gather sea-birds’ feather there.

 

Moreover, the annexation took place a few months before the conclusion of the First Sino-Japanese War when China ceded Taiwan to Japan in accordance to the Shimonoseki Treaty.[27] Japan therefore maintains that since this move was taken independently of the treaty ending the Sino-Japan war, there is no need to return the islands to China after WWII based on stipulations in the peace treaties signed by Japan after the war.

 

In short, Japan’s position is that it has had undisputed sovereignty over the Diaoyu/Semkaku Islands. Accordingly, it denies the existence of a territorial dispute over the islands.

 

Resolution Based on Customary International Law of Territorial Acquisition

 

To begin with, the Law of the Sea Convention (UNCLOS) does not deal in any way with sovereign claims based on China’s ‘historical titles’ and Japan’s ‘discovery rights’ arguments. There is no treaty, convention or covenant dealing specifically with territorial acquisition though customary international law of territorial acquisition has been proven effective in cases concerning sovereign rights gotten by discovery or historical reasons. By looking at case law and general principles recognized in customary international law, it may be possible to establish the legal basis of ‘historical titles and discovery’ claims.

 

Specifically, customary international law recognizes at least five modes of territorial acquisition based on judicial decisions from the International Court of Justice (ICJ), other judicial organs, panels of arbitrators and state practices for the last few centuries. The five modes are: discovery and occupation, cession, prescription, conquest and accretion. Of the five, the first three are the most relevant modes in the case of Diaoyu/Senkaku Islands.

 

Discovery and occupation is probably the most important method of territorial acquisition of the three though controversies exist as to what constitutes occupation and the exercise of sovereignty over an island or land. The discovery principle was first used in the discovery of new territories by the colonial powers of the 15th and 16th centuries. Since then, however, the principle has evolved such that discovery per se is no more enough. For any state to claim sovereignty right today, it has to also show effective occupation. In the case of the Diaoyu/Senkaku Islands dispute, Japan claims discovery, acquisition of terra nullius, and can prove effective and continuous control over the islands. In contrast, China’s claim has been weakened by its failure to exercise continuous effective control since the Shimonoseki Treaty in 1884 until 1972, though precedents exist based upon which the Court seems to tolerate a time gap during which a claimant state failed to maintain continuity in control but was still awarded sovereignty rights. The snag to this for China is that it has to publicly reject or issue a counterclaim to Japan’s public declaration of its sovereignty rights. In this regard, Japan’s control over the Senkaku/Diaoyu Islands was public notice and China issued no public rejection. In short, based on the mode of discovery and occupation, it would appear that Japan has upper hand in its claim against China.

 

Next, cession is the voluntary renouncement of sovereign rights from a state in favour of another state. China claims that the Islands were included in the Shimonoseki Treaty, even though, they were not specifically mentioned. Japan, however, counterclaimed that the disputed islands were constitutionally annexed a few month before the Sino-Japanese war was concluded and they were therefore never part of the Shimonoseki Treaty. Hence, it had no obligation to return Diaoyu/Senkaku Islands together with Taiwan at end of the WWII as per stipulations in the various peace treaties.

 

The third method of territorial acquisition is prescription which stipulates that a claimant state may not get title rights over an island or piece of land if it fails to contest another state’s claim or annexation. As discussed above when considering sovereignty based on discovery and occupation, China has failed to contest Japan’s public notice of annexation of the disputed islands in 1895.

 

In conclusion, Japan would appear to be in a more favourable position if customary international law of territorial acquisition will to be applied to the Diaoyu/Senkaku Islands dispute.

 

China’s weakness in its claim based on customary international law can be traced back to a combination of its unique political culture and the fact that the country, for most part of its history, had been shut off from external influences.

As far back as the Middle Ages, the Middle Kingdom was the dominating power in Asia.[28] As early as in the Han Dynasty (206 B.C. – 220 A.D.) the Chinese erected a system of tributary in which vassal states owed political submission to the Chinese emperors in exchange for protection and material rewards.[29] For example, the Ryukyu Kingdom, to which the Diaoyu Islands belonged, had been such a vassal state to the Chinese emperor since 1372. Hence, unlike Western powers, China never sought to colonize other far-away territories and therefore was not a sea-power. In fact, to cut of undesirable external influence and to put an end to piracy as well as smuggling activities, Ming and Qing dynasties even imposed haijin (海禁 i.e. prohibitions on seafaring activities) banning external contacts. Because of such autarkic policies, China was cut off from external influences. As a result, during the late 19th century, unlike countries such as Russia and Japan, China did not understand the ways of the West. It had not been enlightened, for example, on how “treaties”, as a legal instrument, could be used to regulate countries’ behaviours so as to better secure its interests.[30] This lack of understanding of the Westphalian international system put China at a huge disadvantage when it was forced to open its door because its technologically backward military, an effect attributable also to the haijin policies, was no more able to defend its extended coastline.

 

In contrast, because of its successful Meiji Restoration, Japan had joined the ranks of Western countries as a modern sea-power state by the end of the 19th century. Among other things, Japan has acquired the proficiency in the language and applications of western international law. It was able to exploit that advantage to introduce a new Sino-Japanese lexicon translated from English to replace the Chinese legal terms of the Sinocentric order hitherto widely accepted in East Asia. In the end, Japan’s fluent use of terms to inscribe its claims as legal practice helped to undermine China’s central position in Asia while making its colonization legitimate in the eyes of the world.[31]

 

One example of an instance when a better understanding of the Westphalian international system could have benefited China is when the nationalist revolution in 1911 led to the creation of a new modern state of China. As a new state, it had the privilege of a fresh start by rescinding the treaty and obligations sealed by former governments. Unfortunately, the revolutionary forces led by Sun Yat Sen and later, the Yuan Shi-kai government, made a commitment to honour China’s undertaking of these treaty stipulations.[32] The easy solution would have been the overthrown of these treaty regimes to start afresh. Because of the failure of the nationalist government in understanding and exploiting the working of international treaty, China forfeited the chance to right the wrong suffered during the Qing Dynasty.

 

Even after the formation of the communist New China, Chinese legal awareness about Diaoyu/Senkaku Islands as a part of its territory did not take shape until the late 1960s. Japan thus questions China’s and Taiwan’s failure to assert claims to the islands while the islands were under US administration. Nor did Chiang Kai-shek, possibly because of his critical dependence on the US for support, raise the issue when Taiwan was returned to him, in accordance to the 1952 Treaty of San Francisco, without the Diaoyu/Senkaku Islands.[33] Formal claims were lodged only in 1971 after prospecting survey in 1968 found possible oil reserves in the area. Japan therefore draws the conclusion that China did acquiesce to Japanese sovereignty of the islands between 1945 and 1970 and the claim submitted in 1971 was motivated primarily by the possibility of major oil deposits.

 

In the eyes of international laws, Chinese ownership not through physical control but through vassalage may not constitute legal ownership but Japanese constitutional annexation of the islands in 1895, just before the Shimonoseki Treaty was signed, does. Hence, as far as Japan is concerned, its control over the territories today was acquired legally in the 19th century under the prevailing norms of the time while the case of China’s claim is built on arbitrary or at least un-western logic that international law of the Westphalian system is unfamiliar with.

 

In the words of Hui-Yi Tseng (2017),

“… efforts by Chinese scholars seemingly cannot address these incongruences between international law theories and Chinese behaviour….Instead, the Chinese approach sees international law more as serving an instrumental function, by using it as an expedient bargaining tactic in both international forums and on domestic occasions.

In short, “doing law” and “thinking about law” are two different things.

 

It is not to repudiate China’s legalist formalist approach. Yet there can be a risk in this approach. By not having a full and good grip on cultural and societal backgrounds on which this Westphalian international system is embedded, it is likely that China may misinterpret structural issues and misjudge certain critical junctures.

 

Only when China finds the nexus to bridge its history, cultural legacies and contemporary international law, will it be thus able to conciliate its long-gone past with an uncertain future, in a context that honours the Westphalian international system. Until then, the Diaoyu Islands dispute will continue…”

 

This explains Japan’s official stance, since the 1970s, that there is no issue of sovereignty over the disputed Islands as well as Chinese government’s distrust of international law in helping to resolve the Diaoyu/Senkaku Islands dispute.[34]

 

China’s unwillingness to seek resolution based on Customary International Law of Territorial Acquisition, drafted by the warring sea powers of the West without China’s participation, points to one of the deficiencies associated with some of the rules. For example, the peaceful and continuous occupation rule takes no account of the fact that China, as a weaker nation, was at the time subjected to unequal and unfair treaties and hence unable to assert its sovereignty over the disputed islands.

 

It therefore makes no sense for China to subscribe to such an unjust rule now that it is in a position of relative strength.

 

Resolution Based on United Nations Convention of Law of the Sea (UNCLOS)

 

Both, China and Japan ratified the UNCLOS in 1996. By ratifying it, both countries submit that conflicts regarding issues on seas, maritime boundaries, continental shelf, etc. will be subjected to UNCLOS law and its formal procedures of settlement of disputes. In that regard, Article 287 of the UNCLOS stipulates that a state shall be free to choose one or more of the following means for the settlement of disputes concerning the interpretation or application of the Convention: the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), and an arbitral tribunal.

 

Still, there are limitations as to how UNCLOS can help to solve the conflict over the Senkaku/Diaoyu Islands. Some of them are due to a lack of political willing, but others are related to the dispute settlement procedure established in the Convention. For example, many conflicts have not been included in the dispute settlement mechanism and hence cannot be solved thru the Convention. One such conflict is that of sovereignty, as is the case of the Diaoyu/Senkaku Islands dispute.

 

Another more important reason is that, at the time of ratifying the Convention, China made a reservation that it does not accept the ITLOS, the ICJ or any arbitral tribunal constituted in accordance with the UNCLOS jurisdiction to settle a dispute related to boundary delimitations of territorial waters, EEZ and continental shelf, or disputes related to historic titles.[35] This reservation makes it impossible for the ITLOS, the ICJ and arbitral courts/tribunals to intervene in the dispute. Notably, China has never recognized jurisdiction from the ICJ.

 

Factors Making Any Resolution Complex if not Impossible

 

To make things worse, the Diaoyu/Senkaku Island dispute today is no more just about territorial sovereignty. Several other factors made its resolution extremely complex if not downright impossible.

 

Firstly, given China’s humiliating history of a century of semi-colonization by foreign powers, any territorial dispute involving Chinese land is very much about national pride. This is even more so, in the case of the Diaoyu/Senkaku Islands dispute, given the extreme atrocities inflicted on the Chinese by the Japanese military during the 1937 – 1945 Second Sino-Japanese War. Despite apologies and expressions of regrets offered by a few post-war Japanese prime ministers, the perception is that Japanese had so far not shown genuine remorse, as evidenced by their revisions of history textbooks to soften accounts of past Japanese aggression against China and by their politicians’ annual visits to the Yasukuni Shrine which honours fourteen Class A war criminals. Any resolution of the island dispute, if perceived to be inequitable by the Chinese people, can therefore lead to social and political unrest. Understandably, Chinese leaders are unwilling to leave the resolution of the dispute totally in the hands of an international arbitration court. The risk is simply too high when they had no control over the outcome.

 

The Diaoyu/Senkaku Islands dispute is also one of exploitation rights of natural resources. Oil is a critical strategic resource given its importance in economic development. Currently, China imports 39% of its oil demand from Middle East while Japan imports as much as 80%. The soaring of oil prices in recent years has revitalized the term “energy securitisation” as oil can more than ever be used as a bargaining power in world politics. For these reasons, all parties to the conflict strive for a diversification of their energy supplies. The disputed islands and their resources are therefore a key element in both countries' respective “self-reliance” strategy.[36]

 

Next, there are also national security implications national security implications over who the ownership of the islands. Under UNCLOS, the sovereignty over the Islands entitles the owner to 12 nautical miles of territorial sea but all ships are entitled to be granted an innocent passage within that 12 nautical miles zone. Both China and Japan, however, have established a national legislation going beyond the international agreement of UNCLOS 1982. Chinese Marine Law, for example, demands that transiting “foreign ships for military purposes” to give prior notification of their entry to the zone. Correspondingly, Japan also imposes restrictions on the movement of vessels carrying nuclear weapons through its territorial sea.[37] More generally, the busy sea lanes are important conduits for the sea-based export trades as well as imports of oil. Exclusive control of the sea lanes by any one country will have serious economic security implications on all other countries in the region. The issue is made more complex by the domineering presence of US 7th Fleet, and possibly also the 3rd Fleet by 2018, to safeguard American geopolitical interests in East Asia. Japanese, being dependant on the Americans for protection, take comfort in the presence of the US Navy but the Chinese sees it more as an attempt to contain the rise of China.

 

Finally, another factor complicating the settlement of the islands dispute is the unresolved ‘One China’ issue between Taiwan and China. Both governments claim to be the legitimate representative of the Chinese people. Most countries accept the principle of “One-China”. They have diplomatic relations with mainland China and see Taiwan as an integral part of China. That, however, has not stopped some Taiwanese people as well as the current government from trying to seek independence. One unsavoury implication is that, given that both Taiwan and China claims sovereignty over the Diaoyu/Senkaku Islands, the mainland Chinese government may seek unification first, by force if necessary, to remove any ambiguity about legitimacy in its claim, thus strengthening its case of recovering the disputed islands from Japan.

 

Resolution thru' Bilateral Negotiation Instead of Judicial Settlement

 

As explained above, judicial settlement is almost impossible in the conflict over the Senkaku/Diaoyu Islands. Instead, bilateral negotiations between China and Japan may be the best solution. Based on analysis of conflicts that took place between states during 1945 – 2003, it has been found that 77% of all conflicts were resolved by bilateral negotiations while 17% used a ‘nonbinding third party’. Only 6% were brought before a judicial mechanism.[38]

 

One advantage of bilateral negotiation is that interpretation of international law, codified treaties, conventions, and legal principles may become less important than in the case of judicial settlement. Very often, a lot of time is wasted on deciding what the real interpretation of international law is. For instance, despite the negotiation over the past two decades over the islands dispute, both China and Japan have not come to an agreement as to whether the First UNCLOS or the Third UNCLOS is applicable.[39]

 

Still, it is unrealistic to expect bilateral negotiations to resolve the opposing claims of sovereignty over the Diaoyu/Senkaku Islands, given the political sensitivities and the dynamics of domestic politics in both countries. Rather, the negotiations can be for the joint development of the sea-bed mineral resources around the islands, assuming for the sake of argument that the two countries can for the time being put aside the formidable issue of territorial sovereignty over the islands.

 

The sovereignty of the Islands became really an issue for China and Japan only in the early 1970s after the sea-bed in East China Sea has been found to be endowed with rich mineral resources. With the two countries equitably sharing the ‘spoils’ from the sea-bed based on negotiations, there will be at least one less ‘thorn in the flesh’ for both countries, hopefully making future resolution of opposing sovereignty claims less contentious.

 

In any case, both countries are not new to bilateral negotiation with regard joint development of the resources around the islands.

 

In 1997, for example, after seven rounds of negotiations, the two countries signed the Fisheries Agreement which established two different fishing zones where different fisheries regimes applying as well as a management body, the Joint Fisheries Commission, to manage and enforce the agreement. The experience of the Fisheries Agreement can serve as a template for how bilateral negotiations can help both countries reach a bigger agreement on the islands dispute.

 

In 2004, as tensions rose when Chinese maritime research ships started exploration in the Chunxiao natural gas field, an area of the East China Sea adjacent to the mid-point demarcation line which Japan recognizes as the maritime boundary, Japan proposed to China the joint development of four natural gas fields, which straddle the median line suggested by Japan.[40] After a series of bilateral negotiations, a final agreement on joint development between the two countries was reached in 2008.

 

Given the importance of energy sources to both countries’ economic development, the experience from the negotiations of the 1997 and 2008 joint development agreements can be used to devise similar plans for joint sea-bed development.

 

Conclusion

 

To sum up, given that judicial mechanisms based on both customary international law and UNCLOS are unlikely to be accepted as mechanisms by both China and Japan to resolve the dispute, the only mechanism left is bilateral negotiations leading particularly to joint development of natural resources in the East China Sea. Meanwhile, however, both countries are likely to continue stepping up their efforts to upgrade their military and increase their patrolling activities in the water near the islands. This can be seen either as a prelude to bilateral negotiations as both sides up their ante to shore up their bargaining power or as preparations for resolution by force in the event that one or both sides refuse to come to the negotiation table. The wild card in this game play is the US which has all to gain from the break out of a military conflict, either in the form of weapon sales or in seeing China drained and weakened by a conflict.

 

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REFERENCES

[1] Taiwan, which named the islands Diaoyutai (钓鱼台) also claims sovereignty over the islands. This writing, however, will deal with only the claims from China and Japan because Taiwan basically used the same argumentation as China.

[2] Ramos-Mrosovsky, Carlos (2008), “International Law’s Unhelpful Role in the Senkaku Islands”, University of Pennsylvania Journal of International Law, Volume 29, Issue 4, p. 903. Cited in Marc Reina Tortosa. (2013). Pg 5. Note: The Ryukyu Islands (琉球群岛) are a chain of Japanese islands that stretch southwest from Kyushu to Taiwan: the Ōsumi, Tokara, Amami, Okinawa, and Sakishima Islands (further divided into the Miyako and Yaeyama Islands), with Yonaguni the southernmost. The larger are mostly high islands and the smaller mostly coral. The largest of the islands is Okinawa.

[3] Daniel Dzurek. ( ) “The Senkaku/Diaoyu Islands Dispute.”

[4] Wei Su, Steven, “The Territorial Dispute over the Tiaoyu/Senkaku Islands: An Update,” Ocean Development & International Law, 2005, p. 46  

[5] See Ankit Panda (2017. “Mattis: Senkakus Covered Under US-Japan Security Treaty.” The Diplomat. February 6, 2017.

[6] See Martin Lohmeyer. (2008). Pg 84; Joint Prospecting for Mineral Resources in Asian Offshore Areas (CCOP). (1969).UN Economic Commission for Asia and the Far East. 1969. CCOP Technical Bulletin, 2, 1-9.

[7] There are various estimates by different agencies from different countries. It is hard to come up with a definite figure because the area is underexplored due to territorial disputes. More explorations need to be carried out before an accurate estimate can be arrived at. See Marc Reina Tortosa. (2013). Pg 10 – 11.

[8] Jean-Marc F. Blanchard. (2000). “The U.S. Role in the Sino-Japanese Dispute over the Diaoyu (Senkaku) Islands, 1945-1971.” No. 161 China Quarterly (2000), 95; Curtin, Sean J. () “Stakes rise in Japan, China gas dispute”, University of Alberta:, accessed on July 24th, 2007

[9] Victor H. Li, “China and Offshore Oil: The Diaoyu Tai Dispute” Vol. 10 Stanford Journal of International Studies (1975), 143

[10] Choon-Ho Park, ”China’s Maritime Jurisdictions: The Future of Offshore Oil and Fishing”, in Harrison Brown (ed.) China among the Nations of the Pacific (1rst ed., 1982), 107

[11] The ‘natural prolongation’ doctrine was propounded by the International Court of Justice in its judgment in the North Sea Continental Shelf cases of 20 February 1969.

[12] See Robert W Smith & Bradford Thomas (1998). “Island Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation of Disputes.” Maritime Briefing, Volume 2(4). Pg 14.

[13] See Marc Reina Tortosa. (2013). Pg 19.

[14] See Koji Taira. (2004). “The China-Japan Clash Over the Diaoyu/Senkaku Islands.” The Asia-Pacific Journal. June 25, 2004.

[15] See Dong Manh Nguyen. (2006). “Settlement of disputes under the 1982 United Nations Convention on the Law of the Sea: the case of the South China Sea Dispute.” University of Queensland Law Journal, Vol. 25 (1), Pg 173.

[16] Min Gyo Koo (2009). “The Senkaku/Diaoyu dispute and Sino-Japanese political-economic relations: cold politics and hot economics?” The Pacific Review, 22:2. Pg.227  

[17] Robert W Smith and Bradford Thomas. (1998). “Island Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation of Disputes.” Maritime Briefing, Volume 2(4). Pg.2

[18] See Ankit Panda (2017. “Mattis: Senkakus Covered Under US-Japan Security Treaty.” The Diplomat. February 6, 2017.

[19] See Miyoshi Masahiro. (). “Seabed Petroleum in the East China Sea: Law of the Sea Issues and the Prospects for Joint Development.” Pg 3.

[20] Tao Cheng. (1973). “The Sino-Japanese Dispute over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition.” Vol. 14 V.J.I.L (1973), 253. TMW: No journal name; Sina News. (2005). “中国领土钓鱼岛地理历史资料.”

[21] See Baidu Baike. “顺风相送.”

[22] Zhongqi Pan (2007). “Sino-Japanese dispute over the Diaoyu/Senkaku Islands: The pending controversy from the Chinese perspective.” Journal of Chinese Political Science, vol. 12:1, Pg.77.  

[23] Read Martin Lohmeyer. (2008). The Diaoyu / Senkaku Islands Dispute: Questions of Sovereignty and Suggestions for Resolving the Dispute.” to also understand the detailed involvements of other major powers like US, UK and Russia as well as Taiwan in the tussle over the sovereignty of the disputed islands.

[24] See Marc Reina Tortosa. (2013). “The Conflict over the Senkaku/Diaoyu Islands: A Joint Development Approach.”

[25] See Article 77 of the United Nations Convention on the Law of the Sea.  Cited in Marc Reina Tortosa. (2013). Pg 8.

[26] See Miyoshi Masahiro. (). Pg 4.

[27] Zhongai Pan (2007), however, countered that the Japanese claim of terra nullius is wrong because in 1883 – one years before Japan ‘discovered them’ – “Dowager Empress Cxi (Tsu Hsi) of Qing dynasty issued an imperial edict, by which she awarded the Diaoyu Islands to a Chinese alchemist who had gathered rare medical herbs on the islands”.

[28] Jacques Gernet, A History of Chinese Civilisation (1rst ed., 1982), 722

[29] Chen Zhimin, ”Nationalism, Internationalism and Chinese Foreign Policy”, Vol. 14 Journal of Contemporary China, 37

[30] See Hui-Yi, Tseng. (2017). Pg. 238.

[31] See Dudden, Alexis. (2006). “Japan's Colonization of Korea: Discourse and Power.” University of Hawaii Press

[32] Tseng Hui-Yi. (2017). “Revolution, State Succession, International Treaties and the Diaoyu/Diaoyutai Islands.” Cambridge Scholars Publishing

[33] See BBC News. (2012). "Q&A: China-Japan islands row." 11 September 2012

[34] See Linus Hagström. (2005). “Japan’s China Policy” (First ed.). Pg. 129.

[35] See Marc Reina Tortosa. (2013). Pg 27.

[36] See Martin Lohmeyer. (2008). Pg. 23

[37] See Martin Lohmeyer. (2008). Pg. 23

[38] Krista E. Wiegand & Emilia J. Powell. (2011). “Past Experience, Quest for the Best Forum, and Peaceful Attempts to Resolve Territorial Disputes.” Journal of Conflict Resolution, 55(1). Pg 46.

[39] Krista E. Wiegand & Emilia J. Powell. (2009). “Legal Systems and Peaceful Attempts to Resolve Territorial Disputes.” Conflict Management and Peace Science, Vol. 26(5). Pg 5 – 6.

[40] Min Gyo Koo (2009). “The Senkaku/Diaoyu dispute and Sino-Japanese political-economic relations: cold politics and hot economics?” The Pacific Review, 22:2. Pg.227