Peace In Northeast Asia: Resolving Japan's Territorial and Maritime Disputes With China, Korea and the Russian

Peace in Northeast Asia Peace in Northeast Asia Resolving Japan’s Territorial and Maritime Disputes with China, Korea ...

Author: Thomas J. Schoenbaum

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Peace in Northeast Asia

Peace in Northeast Asia Resolving Japan’s Territorial and Maritime Disputes with China, Korea and the Russian Federation

Edited by

Thomas J. Schoenbaum International Christian University, Japan and The George Washington University, USA

Edward Elgar Cheltenham, UK • Northampton, MA, USA

© Thomas J. Schoenbaum 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2008933679

ISBN 978 1 84720 665 7 Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall

Contents List of ﬁgures List of contributors Acknowledgment 1 2

3 4 5 6 7 8

vi vii viii

Introduction: resolving the disputes on the basis of peace, justice and international cooperation The politics of the East China Sea gas dispute: ongoing discussion between China and Japan Reinhard Drifte The legal aspects of Japan’s territorial and maritime disputes with neighboring states Options for dispute settlement Michael Hahn Finding solutions to the disputes between China and Japan Finding a solution to the Takeshima/Dok Island dispute between Japan and South Korea Solving the “Northern Territories” problem and concluding a peace treaty between Japan and Russia Security and cooperation in Northeast Asia

1 7

24 65 83 105 117 128 137

Index

v

Figures 1.1 1.2 2.1 5.1 5.2 5.3 6.1 7.1 7.2

Japan and neighboring countries Japan’s claimed maritime zones Resources and oil ﬁelds around the Senkaku Islands The Senkaku Islands The Libya/Malta Case demarcation (from ICJ judgment) Okinotorishima Takeshima The Northern Territories The Kuril Islands

vi

2 3 11 84 96 97 106 118 119

Contributors Reinhard Drifte, Professor Emeritus, University of Newcastle upon Tyne, UK. Michael Hahn, Professor, University of Waikato Law School, New Zealand. Thomas J. Schoenbaum, Research Professor of Law, The George Washington University, USA and Professor of Graduate Studies, International Christian University, Japan.

vii

Acknowledgment The assistance of Yamanaka Yoshiko, a law student at Aoyama Gakuin University, is gratefully acknowledged.

viii

1. Introduction: resolving the disputes on the basis of peace, justice and international cooperation Japan has three long-festering territorial and maritime disputes with its three closest neighbors, China,1 Korea2 and the Russian Federation (see Figure 1.1). The three disputes have very diﬀerent origins and are unrelated to one another. However, they have in common the fact that they are leftover remnants of Japan’s conﬂicts with neighboring countries during the last 150 years. They are rooted in history as well as contemporary power politics. During most of the post-war period—the last 63 years—Japan, as well as the other countries involved, chose to de-emphasize or ignore the matters involved in order to concentrate on more pressing priorities, such as economic development. The disputes in question involve relatively small pieces of territory and ocean space. In the last ten years or so, however, the disputes have become bound up with economic development and the national interests of the disputants, especially Japan. As a result, these disputes have become more dangerous and can no longer be ignored or “swept under the rug.” All three disputes have in common that they involve small islands and their surrounding maritime zones (see Figure 1.2). The three are as follows: ●

●

●

The disputes with China involve legal title to the Senkaku (Diaoyu) Islands and the maritime delimitation of the East China Sea; an unrelated dispute concerns the status of the Japanese island of Okinotorishima in the Paciﬁc Ocean. The dispute with Korea concerns legal title to the Takeshima (Dok/Dokdo/Tokdo) Islands and the maritime delimitation in the Japan Sea (East Sea). The dispute with Russia involves four disputed islands (known in Japan as the Northern Territories) north of Hokkaido, seized by the Soviet Union in 1945 at the end of World War II, as well as the surrounding maritime zones and maritime delimitation in this area. 1

2

Figure 1.1

Peace in Northeast Asia

Japan and neighboring countries

In 2007, Japan passed important legislation to assert its rights and to protect its interests in the maritime zone—known as the Exclusive Economic Zone (EEZ)—that it controls under the UN Convention on the Law of the Sea (UNCLOS). Japan also created a new cabinet minister in charge of maritime aﬀairs and policies. This new assertiveness increases the potential for conﬂict with neighboring countries because the maritime boundaries of Japan are not settled. The purpose of the series of essays in this volume is to set out the history and basis of all three disputes and to suggest concrete ways they may be resolved. An additional purpose of this work is to demonstrate how international law and international institutions can provide the basis for peaceful and harmonious settlement of sometimes dangerous international disputes. All too often, in ancient as well as recent history, states and individuals have resorted to violence and war as a means of dealing with international

Introduction

Figure 1.2

3

Japan’s claimed maritime zones

problems. This is no longer acceptable, and in fact, resort to war is now prohibited by the United Nations Charter (Article 2, paragraph 4). The United Nations Charter, Article 33, further provides a series of methods for the peaceful resolution of disputes that are likely to endanger international peace. Nevertheless, although most states and statesmen and stateswomen pay lip service to the principles of the United Nations Charter (adopted 26 June 1945), we see that in practice, states and their leaders often resort to the tired old game of emphasizing the necessity of asserting state interests and power to deal with any problems they may have with other countries. This way of dealing with international problems, known as “realism” (which comes in many varieties, such as classical [unalloyed] realism and “neorealism”), does, however, make an occasional bow in the direction of international institutions.

4

Peace in Northeast Asia

A purpose of this book is to deride the idea that disputes, such as the ones that Japan has with its closest neighbors, can be successfully dealt with by realism and the assertion of state interests and power by the states concerned. Such a course will only result in disaster. Thankfully, the disputes in question have not (yet) been treated with the medicine of realism, and peace has mainly prevailed, despite a few nasty incidents. Instead, the states concerned have mainly chosen to de-emphasize or even ignore the disputes, choosing to move on to more interesting and promising matters, such as increasing economic ties. This course of action (or inaction) preserves the peace, although uneasily, and is therefore superior to outright realism. But an even better course is to use international law and institutions, including recognized methods of dispute settlement, to confront and permanently resolve the disputes. This is the course urged by this book. Using international law and legal methods of dispute settlement is not now favored in the world. In another book (Chiba and Schoenbaum, 2008) I have referred to this method as “the path not taken.” In the current volume, I would accordingly like to demonstrate the utility of the international law approach by applying it to the concrete problem of maintaining (some would say establishing) peace in Northeast Asia. This book espouses three guiding principles in proposing solutions to the three disputes. First, the disputes must be resolved peaceably. This is fundamental because the peaceful resolution of disputes is enshrined in Article 33 of the United Nations Charter, to which all the disputants belong and have subscribed. Accordingly, the threat or the use of force by any state must under no circumstance be brought to bear on the disputes. Second, the disputes must be settled justly and fairly. Since the disputants are sovereign states, this means that international law should be an important basis for the settlement of the disputes. Only through adherence to principles of international law can justice be served for all sides in these matters. Third, international cooperation between the participants is an important principle that must be served if the solutions found are to be permanent ones rather than simply preludes to new conﬂicts. International cooperation between Japan and its neighbors is also long overdue. Unlike Europe, the other major theater of World War II, Northeast Asia has not developed multilateral and cooperative institutions to deal with contemporary problems. Fostering international cooperation to end the three disputes would arguably not only end the disputes themselves, but would start a needed path of ever-broader cooperative eﬀort to bring peace, prosperity and lasting goodwill among the peoples of Northeast Asia. The principle of international cooperation has the potential of turning the disputes from negative and disruptive irritations into sources of international harmony

Introduction

5

and friendship. A negative factor can be turned into a positive inﬂuence for the future of all four countries. Thus, I will propose not a one-time solution to each dispute, but a continuing process of cooperation. Only a continuing process of international cooperation can truly keep the peace. The key recommendation of this book is to propose that the three disputes in question be resolved through the conclusion of three separate negotiated agreements between Japan and each of its neighbors, whereby three separate Zones of Cooperation and Environmental Protection will be established in Northeast Asia. These three agreements would be international treaties with the purpose of establishing ongoing permanent cooperation in the three disputed areas. In addition, broader multilateral institutions of cooperation are needed, a matter addressed in the concluding Chapter 8. After this Introduction, the second chapter of this book, by Professor Reinhard Drifte, will set out in detail the political background of the most dangerous of the three disputes, the East China Sea dispute between Japan and China. Professor Drifte’s account shows that intensive discussion has been ongoing, but, for various reasons, has not yielded any concrete solutions. Both sides, however, have exercised admirable restraint, and their interest in a cooperative settlement is apparent. The stage is seemingly set for such a solution. Chapter 3 of this book, by the editor, Thomas J. Schoenbaum, details the legal background and the international law arguments of the three disputes. This chapter also evaluates the legal positions of the disputants concerning the issues involved and explores how international law can provide the basis for solutions to all three disputes. Chapter 4, by Professor Michael Hahn, explores the options that the parties have for peaceful settlement of the disputes. These options are very great: the parties can negotiate settlements in bilateral discussions; they can also choose to involve a third party as mediator or good oﬃces facilitator. A third option is international arbitration to settle the diﬀerences. Fourth, the parties could submit the disputes to an international tribunal for a judicial proceeding and result. Both the UN Tribunal for the Law of the Sea and the International Court of Justice may be utilized for this purpose. Thus, the options for peaceful resolution of the disputes are many. Thus far, only bilateral discussions have occurred between the parties to the disputes. Perhaps it is now time to try additional options. The solutions proposed herein may be appropriate as suggestions for bilateral resolution of the claims involved, but may be easier to accept if a third-party dispute settlement option were to be utilized. The next three chapters are detailed proposals for how the three disputes should best be resolved, keeping in mind the three criteria of (1) peace;

6

Peace in Northeast Asia

(2) justice; and (3) international cooperation. Chapter 5 proposes solutions for all three disputes Japan has with China; Chapter 6 proposes solutions to the disputes with South Korea; and Chapter 7 proposes a solution to the Northern Territories dispute with the Russian Federation. All these chapters are authored by the editor, Thomas J. Schoenbaum. The ﬁnal chapter, also by Thomas J. Schoenbaum, proposes the creation of two new international institutions as permanent security architecture for Northeast Asia: an Organization for Peace and Security Cooperation and an East Asian Economic Community.

NOTES 1. Technically the dispute is also with Taiwan, but for practical purposes, the People’s Republic of China is the only disputant involved. 2. This dispute is also potentially with North Korea as well as South Korea, but only the latter is really involved.

REFERENCE Chiba, S. and T.J. Schoenbaum (eds) (2008), Peace Movements and Paciﬁsm After September 11, Cheltenham, UK and Northampton, MA, USA: Edward Elgar.

2. The politics of the East China Sea gas dispute: ongoing discussion between China and Japan Reinhard Drifte 2.1

INTRODUCTION

The political, juridical and historical circumstances of the territorial dispute in the East China Sea (Senkaku/Diaoyu Islands, Exclusive Economic Zone (EEZ) delimitation) are very complex and with China’s relentless exploration eﬀorts and increasing military presence in the area, to which the Japanese side has now started to respond more strongly, any peaceful solution will have to ﬁnd a carefully calibrated balance of political and economic interests. This chapter will look at the economic stakes and how both sides have tried since 1968 to come to some agreement about joint development of the energy sources in the East China Sea (ECS). It is generally assumed that joint development without ﬁrst tackling the territorial claims of either side is the only way forward and both sides accepted this in 2006. However, as this chapter shows, China’s exploration eﬀorts as close as 5 kilometers (km) to the Japan-proposed median line have created political and economic faits accomplis that are diﬃcult to circumvent and both sides still try to score points for their legal position when making proposals for joint development areas. The economic stakes are also not equal and therefore make it more diﬃcult for Japan to compromise. Moreover, the political atmosphere between 2001 and 2006 as a result of Japanese Prime Minister Koizumi’s China policy has not been helpful, although the situation somewhat improved after Abe Shinzo became the new prime minister in September 2006. In conclusion, a compromise is probably more likely if China shows more willingness to compromise on the economic side, Japan is willing to be more conciliatory on the political side, and both show a greater inclination to focus on deﬁning a joint development area by genuinely putting territorial claims to one side without trying to score points for the latter. 7

8

2.2 2.2.1

Peace in Northeast Asia

THE ECONOMIC STAKES Estimates of Resources in the East China Sea

The resources in the East China Sea are for the time being mainly gas and oil, but one also has to add the availability of considerable ﬁsh resources (not to be dealt with here), as well as until now unknown quantities of seabed-based mineral nodules for which economical technologies of mining do not yet exist. Even quantifying gas and oil resources is very diﬃcult and existing information is often subject to commercial and/or state secrecy. Japan has hardly done any research on its side of the proposed median line in order not to antagonize China. Moreover, the exact geographic area of the various published estimates is never made clear. Attention started to be given to the area when the Committee for Coordination of Joint Prospecting for Mineral Resources in Asian Oﬀshore Areas (CCOP) under the auspices of the UN Economic Commission for Asia and the Far East (ECAFE) conducted a geophysical survey in 1968 and said in a report that the continental shelf between Taiwan and Japan may be extremely rich in oil reserves.1 According to a 1994 estimate by METI (Ministry of Economy, Trade and Industry), deposits of oil and natural gas on the Japan side of the East China Sea amount to 500 million kiloliters (kL) in crude oil volume.2 Selig Harrison mentions that Chinese estimates of potential ECS gas reserves on the entire shelf range from 175–210 trillion cubic feet (ft3) (Saudi Arabia alone has “proven and probable” gas reserves of 21.8 trillion ft3 and the United States 117.4 trillion ft3). Foreign estimates of potential oil reserves on the shelf have been as high as 100 billion barrels (Saudi 261.7 billion barrels, United States 22 billion barrels “proven and probable”). Harrison refers to Chinese estimates of “proven and probable” gas reserves of some 17.5 trillion ft3 on the Chinese side, much of it in the Xihu Trough. Both countries assume rich petroleum deposits in the seabed around the disputed Senkaku Islands where the Japanese government speaks of over 94.5 billion barrels of quality oil.3 2.2.2

Importance of the Oil and Gas Resources to Both Countries

Japan has reduced its oil dependence by a third since the oil crises in the 1970s, but it remains the world’s third largest consumer of oil (after China and the United States) as well as the world’s largest importer of liqueﬁed natural gas (LNG), accounting for 40 percent of total world imports. While its energy consumption growth is expected to level oﬀ, Japan will continue to import vast quantities of oil and gas. China, which has now become the

The politics of the East China Sea gas dispute

9

world’s second largest consumer of oil (it became a net oil importer in 1993), imports about 3 million barrels of oil per day (bpd), or roughly 50 percent of its total consumption. In 2006, China’s oil imports grew 14.5 percent over the previous year. According to statistics compiled by British Petroleum, Chinese consumption of oil exceeded that of Japan in 2003, with China becoming the second largest oil consumer in the world after the United States.4 In 2004, China accounted for 8.2 percent of the world’s energy consumption. It is predicted that its share will grow to more than 14 percent by 2025. In contrast, Japan’s share in 2004 was 6.3 percent. Gas only has a share of about 3 percent in China’s total energy consumption but is rising fast, driven by a deliberate policy of reducing the environmentally damaging high coal consumption. In 2007, despite its own growing gas production, China will start to import gas in the form of LNG. It is also relevant in our context that China’s leaders consider that control of foreign oil and gas ﬁelds is very important for guaranteeing a stable supply, rather than relying on market forces and diversiﬁcation like Japan. Clearly, the considerable oil and gas resources in the ECS would be important for both countries in terms of not only satisfying their absolute needs but also diversifying their import dependence, which is leaning heavily on the Middle East. China’s oil and gas consumption is increasing faster and growing higher than that of Japan. Some Chinese specialists are even using this circumstance to press their country’s territorial claims, arguing that as the bigger country it has the right to claim the whole continental shelf up to the Okinawa Trough for the delimitation of the EEZ. Implicitly, this contains the argument that as the bigger country with the greater need of energy resources, China has a greater right to these resources. This is very similar to China’s oﬃcial insistence that its continental shelf demand is in accordance with the UN Convention on the Law of the Sea (UNCLOS) because of the length of its coastal line and its population there—in contrast to the Okinawa island chain.5 However, there are purely economic and logistical reasons that in practice make the oil and gas reserves in the ECS more useful for China than for Japan. In the case of gas, which seems to be most abundant in the contested area, Japan imports gas only in the form of LNG and therefore a big land-based gasiﬁcation plant would have to be built. This would require building a pipeline, which would be uneconomical because it would have to lead to Japan’s major consumer centers, which are over 2000 km from the gas ﬁelds. Moreover, such a pipeline would have to traverse deep waters, including the Okinawa Trough.6 In the case of oil, opinions are more diverse because extracted oil could more easily be loaded on tankers, although using the existing Chinese pipeline structure to the Chinese mainland would be cheaper.

10

Peace in Northeast Asia

Obviously, one cannot conclude from these economic and logistical circumstances that Japan should abandon its territorial claims to facilitate a solution. There are no practical obstacles to Japan taking part in the exploitation of the oil and gas ﬁelds as well as sharing the proﬁts as part of a bilateral agreement.

2.3 CHINESE AND JAPANESE OIL AND GAS DEVELOPMENTS IN THE ECS 2.3.1

Chinese Activities in the ECS

As a result of China’s perception of its growing energy needs, later propelled by the internal dynamics of the small group of competing stateowned energy companies, and now also increasingly supported by a navy that is expanding its range towards the Paciﬁc Ocean, China’s exploration activities in the ECS started in the 1980s. In 1983 the Pinghu oil and gas ﬁeld was discovered by the then Ministry of Geology and Mineral Resources and preparation for exploration began in 1992.7 In July 1995 China discovered for the ﬁrst time oil in the Chunxiao ﬁeld group.8 In the early 1990s, China stepped up exploration in Japan’s claimed EEZ. In 1995–96 China launched test drilling in Japan’s EEZ about 570 meters (m) away from the median line, which was met with a protest from the Japanese government.9 Beijing insisted that operations by Chinese ships in the zone were legitimate academic research under the UN Convention. However, the Japanese government often discovered evidence of China conducting exploration into natural resources in violation of the Convention. These activities included drilling into mineral deposits and ﬁring air guns at the seabed. What was particularly alarming for the Japanese side was the sighting of the Chinese navy in the same areas. In May 1999, 12 Chinese warships conducted a maneuver in waters north of the Senkaku Islands. The exercise was the ﬁrst of its kind to be carried out by China in that region. In July 1999 and March 2000, China conducted a full-scale anti-submarine maneuver in those waters.10 In February 1996 the Japanese government discovered that China was test drilling in waters known today as the Chunxiao gas ﬁeld, which is only about 5 km from the median line.11 The Chunxiao gas ﬁeld is part of the Chunxiao group (Tengun in Japanese), which encompasses three gas ﬁelds: Tianwaitian, Chunxiao and Duanqiao. In November 1998 China started full operations of its ﬁrst crude oil and natural gas ﬁeld in the Pinghu ﬁeld, about 70 km on the Chinese side of the median line (see Figure 2.1). The Japanese government’s long-lasting tolerance of China’s energy activities is

11

The politics of the East China Sea gas dispute

Median line

Asunaro (Longjing) Kikyo (Pinghu) Kashi (Tianwaitian) Shirakaba (Chunxiao)

Kusunoki (Duanqiao)

360 km Okinawa Naha

Figure 2.1

Resources and oil ﬁelds around the Senkaku Islands

such that it even co-ﬁnanced in 1997–98, through its contribution to the Asian Development Bank (ADB) as well as directly through its Export– Import Bank (renamed in 1999 Japan Bank of International Cooperation), the two oil and gas pipelines from the ﬁeld to the Chinese mainland. Today, as we will see later, the government insists the Pinghu ﬁeld is within the contested ECS area as long as no agreement on the delimitation is reached because it lies within 200 nautical miles (nm) from the Japanese mainland. The Pinghu pipelines have also come again into focus because China has connected the pipelines of the Chunxiao ﬁeld with those of the Pinghu ﬁeld. At present (November 2007) it is not clear how close China is to starting production from the Chunxiao gas ﬁeld, which is the closest Chinese ﬁeld to the median line. There have been several Chinese announcements about the start but never any ﬁnal conﬁrmation. It seems that the Chinese side is withholding the start because it would force the now much more assertive Japanese government to take countermeasures and render any compromise even more diﬃcult. It is probable that the reports are a way for the China National Oﬀshore Oil Corporation (CNOOC) to put pressure on Beijing

12

Peace in Northeast Asia

to allow it to proceed. It is not in the Japanese government’s interest to divulge whether it has convincing evidence about the start of production because its options are limited and it is now seeking a compromise. 2.3.2

Japan’s Energy Explorations in the East China Sea

While China became increasingly active in exploring ECS gas and oil reserves, Japan has long held back, with the exception of the ill-fated exploration under the 1974 Japan–South Korea treaty (in force in 1978) (see Section 2.4.1). Several Japanese companies applied for exploration permits in the ECS in the 1970s but the Japanese government turned them down. It is reported that the Ministry of Foreign Aﬀairs did not want to upset China.12 The Ministry of Trade and Industry’s Energy Agency did geological research in the ECS between 1972–91 and 1996–2000,13 but the exact locations are not clear. Well into the 21st century the Japanese government was reluctant to allow Japanese companies to survey the ECS, and also abstained from publicly drawing attention to China’s exploration moves. Only Takemi Keizo, a Liberal Democratic Party (LDP) Upper House member, was concerned, since at least December 1995, when he asked the government in the Upper House Foreign Aﬀairs Committee about the issue of Chinese exploration vessels using air guns.14 Among the media, only those on the right of the political spectrum like the Sankei Shimbun newspaper and notably Shigeo Hiramatsu, a former researcher of the National Institute for Defense Studies (NIDS), paid attention to China in the ECS. Takemi’s lobbying led in April 2006 to the establishment of a study group between the LDP and New Komeito, later joined by the Democratic Party of Japan (DPJ), to study the establishment of a basic maritime law. One of the main aims of the new law is to protect the vessels used by marine resource explorers and ﬁshers in Japan’s EEZ. Two separate laws creating a basic maritime law and protecting Japanese activities in its EEZ were passed by the Diet in April 2007.15 Since 2003 the Japanese side has asked the Chinese side to hand over data on the Chunxiao ﬁeld but Beijing has refused since it considered the area part of its EEZ. In order to enhance its leverage the Japanese government decided in 2004 to collect its own geological information. From July to October 2004, a private company commissioned by the Energy Agency of the METI conducted on the Japanese side of the median line a geological survey to investigate whether China was tapping into gas reserves that straddle the median line. The survey area was a 210-km north–south strip with a width of 30 km, with the lower end facing the Chunxiao and Tianwaitian gas ﬁelds on the Chinese side.16 Incidentally, according to

The politics of the East China Sea gas dispute

13

Korean information, a northern segment of the survey area, approximately 45 km2, lies within the area earmarked for joint development with South Korea in 1978.17 China immediately reacted after the announcement of the survey and warned the Japanese side to “act with caution” in what it considered to be the Chinese EEZ.18 It was even reported that a Chinese surveillance vessel and later two warships tried to chase away the survey ship.19 The interim report of the survey in February 2005 concluded that it was highly likely that the Chunxiao and Duanqiao geological structures were linked with those on the Japanese side of the median line, which was conﬁrmed as deﬁnite in the ﬁnal report in April 2005.20 The Chinese side disputes any geophysical link between the two sides, maintaining that the geological faults near the two gas ﬁelds prevent such a link.21 In addition to this survey, the Japanese side decided in 2004 to increase its budget allocation for exploration activities, including the acquisition of a survey ship for gas exploration in the ECS.22 Pressure on Tokyo to react mounted again in January 2005 when the Japanese government announced the discovery of 12 exploration areas that had secretly been earmarked by China, three being entirely on the Japanese side of the median line and one straddling the line. During the ﬁrst round of the Japan–China Consultations Concerning the East China Sea and Other Matters (ECSOM) the Japanese government protested about this move but did not receive a clear answer from the Chinese side.23 After having conﬁrmed oﬃcially in April 2005 that the geological structures of the Chunxiao and Duanqiao gas ﬁelds extended onto the Japanese side of the median line, the Japanese government announced its intention to start the procedures to award test drilling rights to private companies.24 In July 2005 Teikoku Oil was given a license to drill in three areas, totaling 400 km2, which run along the Chunxiao and Duanqiao gas ﬁelds.25 To no one’s surprise, China had already declared beforehand that it would consider test drilling as constituting serious damage to its interests and to its sovereignty, thus reconﬁrming its position about China’s EEZ reaching to the Okinawa Trough.26 As of November 2007 Teikoku Oil has not yet started any test drilling.

2.4 JAPANESE–CHINESE ATTEMPTS AT JOINT DEVELOPMENT The stalemate in 2005 and the concern about an open-ended escalation of tensions must have convinced the Japanese government to look again at Chinese proposals for joint development. However, before analyzing these

14

Peace in Northeast Asia

new developments and exploring their potential for a breakthrough, it is necessary to look at the earlier attempts of joint development in the ECS. 2.4.1

Joint Development Proposals Before 2004

Proposals for joint development of oil and gas reserves in the ECS were ﬁrst ﬂoated in 1970 after the publication of the above-mentioned ECAFE report in 1969 about potential reserves around the Senkaku Islands (Figure 2.1) and the ECS in general. Beijing stated its claim to the Senkaku Islands for the ﬁrst time in 1970, after the Japanese government had protested to the government in Taiwan about its allocation of oil concessions in the East China Sea, including the area of the Senkaku Islands.27 However, at that time Japan did not yet have diplomatic relations with the People’s Republic of China (PRC), only with Taiwan (Republic of China). In March 1969 it began protracted negotiations with Taiwan and South Korea over claims to their continental shelves, leading to an agreement in principle in September 1970 to set up a joint development project.28 After switching diplomatic recognition from Taiwan to the PRC, Japan continued negotiations only with South Korea and only on the maritime area between the two countries. They drafted an agreement for an area of joint development where their claims completely overlapped, but China objected to this in 1974. As a result Japan deferred ratiﬁcation of the agreement on the continental shelf delimitation with South Korea until June 1977, when it ratiﬁed the agreement without regard to China’s continued opposition.29 The agreement came into force in June 1978 and is based on the median line principle. Both countries then concluded the Japan–South Korea joint development agreement, which demarcated a joint development zone. Japan and South Korea conducted seven explorations on three sites between 1980 and 1986 but without ﬁnding any economically viable ﬁelds.30 What is particularly interesting in our context, apart from China’s opposition to the Japan–South Korea agreements, is that most of the joint development zone is on the Japanese side of what Japan claims to be the median line,31 a position that Japan today in its negotiations with China wants to avoid. Moreover, as we have seen, some sections of the maritime area in which Japan did some survey work in 2004 is also part of the 1978 Japan–South Korea joint development area and some of the area being developed now by China in the north of the ECS (notably the Longqing ﬁeld) is considered by South Korea as adjacent to that joint development area.32 The maritime border between South Korea and China has still not yet been agreed upon. Since the late 1970s there have also been attempts between Japan and China to develop energy reserves in the ECS jointly. Deng Xiaoping,

The politics of the East China Sea gas dispute

15

leader of the PRC from 1978 to the 1990s, suggested in 1978 on the occasion of his trip to Japan, leaving the Senkaku Islands dispute for the next generation, referring to about ten years hence.33 In 1984 Deng Xiaoping considered solving certain territorial problems by jointly developing the disputed areas before discussing the question of sovereignty.34 There have been various other reports about Chinese joint development proposals for the continental shelf and/or the Senkaku Islands area but in each case Japan demanded ﬁrst a settlement of the maritime border or recognition of its title to the Senkaku Islands. The October 1980 proposal by Deputy Premier, Yao Yilin, for joint oil development around the Senkaku Islands is particularly intriguing since he mentioned that it could also include the United States. In the same year Japanese–Chinese negotiations on joint development of the area, including the area around the islands, foundered after a series of meetings.35 The Ministry of Foreign Aﬀairs asserts that these negotiations were only private, not between the two governments.36 On 12 October 1996 Foreign Minister, Qian Qichen, suggested to a Japanese media group in Beijing that the sovereignty issue over the Senkaku Islands should be shelved and the area jointly developed.37 However, the Japanese government restated that before any talks about joint exploration of the continental shelf could start, the issue of the delimitation would have to be settled.38 2.4.2 Japan’s Hardening Position in View of China’s Exploration Activities As is clear from the above, the Japanese side made any joint development dependent on the prior settlement of the ownership of the Senkaku Islands and the delimitation of the maritime border in the ECS according to the median line approach. Tokyo was encouraged in its insistence on the latter point by the fact that China had so far implicitly recognized the median line by not erecting any extraction structures on the Japanese side of the line although it had conducted extensive explorations there (including the use of a ﬂoating exploration rig) and is now suspected by Japan of extracting gas from straddling geological structures. However, in order to enhance its negotiating position, the Japanese government made clear to the Chinese side that as long as no compromise for the maritime border is found, even the maritime area up to 200 nm from the Japanese coast is contested and theoretically part of Japan’s claimable EEZ, including the Chinese ﬁelds in the Pinghu area, which lies on the Chinese side of the median line.39 The government has demanded therefore, since 2004, that the Chinese side stops all further development work until a compromise is found.40 To emphasize its claim to a potential 200-nm EEZ pending an agreement, in 2005 the

16

Peace in Northeast Asia

government gave Japanese names to the Chinese oil and gas ﬁelds in that area. From March 2006 Japan therefore also protested several times with the Chinese government when gas production was about to start in the Bajiaoting gas ﬁeld (6 km northeast of the Pinghu ﬁeld).41 Finally, faced with China’s relentless progress in the Chunxiao ﬁeld, the Resource Bureau of METI demanded in August 2003 from the Chinese side data about the ﬁeld, which was repeated by Foreign Minister Kawaguchi when she met her Chinese counterpart, Li Zhaoxing, on 21 June 2004. This Japanese demand is justiﬁed on the basis of Japan’s application of the continental shelf and the median line. In both cases the Chinese side refused to comply, and Li suggested instead shelving both sides’ diﬀerences and embarking on joint development.42 However, by the middle of the ﬁrst decade of the 21st century, Japan’s negotiating stance had become weakened by several circumstances that adversely aﬀect the chances for joint development. First, China has made much more progress in exploring the whole ECS and has actually started to produce oil and gas, at least on its side. This imbalance will be very diﬃcult for Japan to rectify by its own eﬀorts and China refuses to share its geological information. As a result of the imbalance of information and “sunk cost,” the 2003 agreement initially between China and the Philippines, later joined by Vietnam, to explore oil and gas resources in the South China Sea jointly, would therefore not be easy to apply because here China’s partners are more or less on an equal level while it is far from clear whether there will be joint extraction in future. Second, in contrast to the 1970s and 1980s, China is now technologically and ﬁnancially much more advanced and less dependent on foreign technology and capital. Third, the Chinese navy has become more developed and has extended its range to protect its energy installation in the whole area. Fourth, Japan cannot expect much help from the United States, which is interested in maintaining a workable relationship with China despite many bilateral problems and does not make any oﬃcial public statements on either side’s territorial claims. Finally, the overall Japan–China relationship has deteriorated and reached a low point under Prime Minister Koizumi (2001–06) when the territorial dispute reached its climax. China, on the other hand, does not tolerate Japanese test drilling even on Japan’s side of the median line and ﬁnds it diﬃcult to adjust to a much more assertive Japanese stance after so many years of Japanese deference. 2.4.3

Japan–China ECS Consultations Since October 2004

Rising tensions in their bilateral relationship and around the ECS in particular prompted both sides to relaunch their eﬀorts to ﬁnd a solution to

The politics of the East China Sea gas dispute

17

the territorial dispute. Tensions had not only risen because of the 2004 anti-Japan demonstrations during the Asian Soccer Games in China and other incidents such as Prime Minister Koizumi’s annual visits to the controversial Yasukuni Shrine, but also as a result of mounting concerns that China was eﬀectively going to tap oil and gas reserves in ﬁelds straddling the median line. In addition, the METI, notably under its very outspoken minister, Nakagawa Shoichi, tried to present itself as the true defender of Japanese interests in comparison with the MOFA, which had gained a reputation of being “soft” on China. The situation reversed when Nakagawa was replaced in October 2005 by the more pro-China politician, Nikai Toshihiro, whereas the new Foreign Minister, Aso Taro, took a more hard-line approach towards China, hinting at unspeciﬁed countermeasures if Beijing started production in the Chunxiao gas ﬁeld.43 From October 2004 the two countries began a new series of rounds under ECSOM. The ﬁrst new round was proposed by Foreign Minister, Li Zhaoxing, when he met his Japanese counterpart, Machimura, at the beginning of October in Hanoi.44 Earlier, on 21 June, at a meeting in Qingdao, he had suggested to his Japanese counterpart (then Kawaguchi Yoriko) joint development in the ECS, but Kawaguchi reiterated that Japan ﬁrst needed geological data from China.45 However, during the ﬁrst round there was no new proposal from Beijing and, confronted with the Chinese insistence on joint development, the Japanese side simply repeated its demand for data.46 A new development occurred only when, during the second round of the ECSOM in May 2005, the Chinese government proposed two speciﬁc areas for joint development. Both areas were, however, on the Japanese side of the median line.47 The Japanese side found this proposal unacceptable and insisted again on the provision of geological data of the area along the median line, threatening with their own geological survey. Beijing further complicated the matter by situating the two areas in the Senkaku Islands’ EEZ and near or possibly partly overlapping with the Japan–South Korea joint development zone. The geographic information from the Chinese side was not very precise and China later described the latter as “adjacent” to the Chinese Longqing ﬁeld.48 China considers that the uninhabited Senkaku Islands are not entitled to an EEZ whereas Japan takes the opposite stance. However, China’s position here is not consistent because it seems that based on the 1992 Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, Article 2, paragraph 2, China would claim an EEZ around the islets that it considers its own.49 At the next round in September 2005, it was Japan that created a new departure when, for the ﬁrst time, it called formally for joint development,

18

Peace in Northeast Asia

proposing an area equally divided by Japan’s proposed median line and including the Chunxiao, Duanqiao, and so on, gas and oil ﬁelds.50 For the ﬁrst time China oﬀered to provide geological data in case concrete progress on joint development was achieved, but refused to suspend its ongoing drilling on its side of the median line. Moreover, Japan protested China’s deployment of warships near the contested gas ﬁelds.51 China later rejected the Japanese joint development area proposals. The main achievement was, however, that both sides now agreed for the ﬁrst time on the concept of joint development as an interim arrangement that should not aﬀect future negotiations over territorial delimitation.52 This understanding was further developed when both sides agreed during the ﬁfth round in May 2006 to shelve the delimitation of the EEZ sea border because it would take too long to do so, and that the emphasis should now be on joint development instead.53 A further rapprochement of sorts between the two sides’ divergent positions occurred in March 2006 at the fourth round when China suggested joint development of two areas in the EEZ: one in the EEZ of the Senkaku Islands and the other in the north near the Longqing ﬁeld, but in contrast to its proposal in May 2005, only the area near the Senkaku Islands was on the Japanese side of the median line, whereas the northern area was located on the Chinese side of the median line.54 The proposal had the advantage for China of reconﬁrming its refusal of the median line, of excluding the most controversial gas ﬁelds around Chunxiao and Tianwaitian and thus turning down Japan’s proposal of September 2005, and making an indirect point about its claim to the Senkaku Islands. Moreover, while the location in the EEZ of the Senkaku Islands was bound to be rejected by Tokyo in order to prevent China gaining any foothold in the area, the other location met Japan’s demand that joint development ﬁelds should be on both sides of the median line. However, in order not to compromise its stance on the median line and on the Chinese explorations near the median line, Japan turned down both locations. During the next round in July 2006, only an agreement on establishing a panel of experts and a hotline to prevent incidents in future was agreed upon. With the arrival of Prime Minister Abe in September 2006 and an implicit agreement with the Chinese side during his October visit to Beijing not to visit the Yasukuni Shrine, prospects for an agreement have become brighter. During the next round on 29 March 2007 China apparently proposed an area for joint development that is north of the Senkaku Islands’ EEZ and south of the Japan–South Korea joint development zone, although on the Japanese side of the median line, the area is closer to that line than to the China-proposed Okinawa Trough line.55 However, even during Prime Minister Wen Jiabao’s Japan visit in April 2007 there was only

The politics of the East China Sea gas dispute

19

a last-minute agreement on jointly exploiting oil and gas ﬁelds in “wide waters acceptable to both sides” and continuing negotiations.56

2.5

CONCLUSIONS

It is obvious that Japan’s ostrich approach to the ECS until very recently in full view of China’s relentless progress in exploring the ECS energy resources since the 1980s has contributed to the current diﬃcult situation. It has encouraged China to create a considerable number of economic stakes very close to the unilaterally established median line and to block any meaningful negotiations after the establishment of Exclusive Economic Zones by both countries in 1996. In the meantime Japan has lost considerable political and economic leverage (e.g., the lure of Japanese technical help in the 1980s would have been considerable!). It is generally accepted that common economic interests facilitate ﬁnding a compromise. Both sides are very dependent on energy imports and have a great interest in diversifying energy sources, although Japan’s energy requirements have reached a plateau while China’s are still rising dramatically. The gas resources of the ECS (which are more considerable than its oil resources) are closer to major consumer markets in China rather than in Japan, and at least in the case of gas more economical to transport to the Chinese coast. In addition, the ECS gas would considerably help China to reduce its dependence on highly polluting coal. At the same time the economic stakes of both sides in the ECS energy resources have been developed very diﬀerently: China is already extracting oil and gas from the ECS and may have already started (or at least may start any moment) extraction from ﬁelds that are extremely close to the Japan-proposed median line. Japan has so far hardly explored the area for oil and gas resources and has only recently started to take a stronger line on asserting its economic interests. This imbalance turns the economic stakes into a liability for a peaceful resolution of the territorial disputes around the EEZ delimitation and ownership of the Senkaku Islands and heightens the political requirements for a compromise. Moreover, the growing worldwide Japanese–Chinese competition for energy (e.g., Russia, Indonesia, Iran) and the absence of a developed system of regional energy cooperation also have a negative impact on the bilateral relationship. An acceptable compromise in view of sharing the ECS energy resources would therefore require greater concessions by China than by Japan. According to recent reports, Japan is willing to facilitate such a compromise by sharing costs of areas already developed by China, while Beijing has oﬀered to share geological data once concrete measures towards joint development have been taken.57 Moreover, in view

20

Peace in Northeast Asia

of the transport logistics and market situation, which are in favor of China, any compromise would most likely lead to most of the energy resources (in particular, gas) ending up in China. Both sides have now also agreed to put the legal aspects on hold while striving ﬁrst for joint development of the ECS energy resources. The most diﬃcult step is to ﬁnd an area for joint development that is considered equitable by both sides and that credibly cannot be interpreted as favoring or undermining the legal position of either side. Joint development demands clear and unambiguous geographic locations. The Japan–China Fisheries Agreement of 1997 circumvented the territorial disputes by excluding from the agreement the area south of 27° N, which means that the area around the Senkaku Islands was excluded, and by stating that this agreement does not aﬀect their legal positions. The Prior Notiﬁcation Framework Agreement of 2001 used very ambiguous geographic speciﬁcations that are up to either side to interpret. Both approaches cannot be a guide for joint development of energy resources: oil and gas explorations involve considerable investments in very speciﬁc locations over a long time, their economic value is very high and the economic gains are on a much higher scale than ﬁsheries. However, at least the ﬁsheries agreement can serve as a political inspiration. So far both sides have stuck to their legal positions and even tried to score points for them when proposing joint development areas. Although China’s proposal for the Longqing ﬁeld opened for the ﬁrst time an area on the Chinese side of the median line (thus satisfying a Japanese demand), it was poisoned by being paired with a proposal for an area on the Japanese side of the median line within the EEZ of the Senkaku Islands and the possibility of the northern ﬁeld conﬂicting with the Japan–South Korea joint development zone. The best scenario would therefore be an equal number of ﬁelds on either side of the median line (i.e., a minimum of a total of two ﬁelds), but suﬃciently far away from the Senkaku Islands, the Japan–South Korea joint development zone and the median line itself. For the sake of political convenience, symmetry could even be achieved by including areas that have not yet been explored, or that are even likely to be uneconomic. Second best would be one ﬁeld in the EEZ of the Senkaku Islands in exchange for China’s willingness to oﬀer a ﬁeld in the Chunxiao ﬁeld group. In the end both parties have to show much greater political willingness to compromise than shown so far. The political environment of the Japanese–Chinese relationship greatly suﬀered during the time of Prime Minister Koizumi and further encouraged nationalist surges on both sides. The Japanese side was unable to understand the willingness of the new Hu Jintao regime in 2002 to improve the bilateral relationship, and Hu was ﬁnally unable to continue his overtures towards Japan in the face of

The politics of the East China Sea gas dispute

21

internal disagreements over a more conciliatory Japanese policy in the face of a number of Japan–China incidents and Koizumi’s repeated visits to the Yasukuni Shrine. The Hu Jintao leadership is now more ﬁrmly in control after having ousted most of the remaining Jiang Zemin followers (known to be less positive towards Japan), which showed when Hu Jintao reacted very positively to the new Japanese Prime Minister, Abe Shinzo, by agreeing to invite him to China immediately after assuming power in October 2006. With Abe having been replaced in September 2007 by Fukuda Yasuo, a more pro-China leader, chances for a compromise for at least an agreement on joint development have further advanced. But even under these improved political circumstances, both sides have to show much greater leadership to overcome the political damage created in the past by their actions and to exit the current stalemate of their negotiations. Moreover, an outline agreement on joint development would only be an initial step towards actually squaring the diﬀerent exploration levels of both sides, let alone agreeing on a maritime border or even on the ownership of the Senkaku Islands.

NOTES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

Gao and Wu, p. 32. Yomiuri Shimbun, 28 August 2004. Harrison (2005, pp. 5–6). Yomiuri Shimbun, 13 April 2005. Interview with a senior Ministry of Foreign Aﬀairs (MOFA) oﬃcial, 19 October 2004. Goto Yasuhiro (2005, p. 38). Asian Development Bank Report (2004), Energy Resources in the East China Sea. Yomiuri Shimbun, 9 June 2004. Sankei Shimbun, 2 February 2000. Yomiuri Shimbun, 26 July 2001. Yomiuri Shimbun, 28 April 2005. Nomura, Japan Times, 8 September 2001, p. 68. www.yomiuri.co.jp/atmoney/special/47/naruhodo168.htm (in Japanese). Accessed 2 February 2008. Hiramatsu (2002, p. 113). Financial Times, 21 March 2007. Map in Kaijo Hoan Repoto 2006 (Japanese Coast Guard annual report), p. 38. Park (2006, p. 104). Interfax, 1 July 2004. Asahi Shimbun, 13 October 2004; Yomiuri Shimbun, 13 April 2005. Yomiuri Shimbun, 2 April 2005. Yomiuri Shimbun, 21 February 2005. Asahi Shimbun, 24 December 2004. Yomiuri Shimbun, 1 January 2005. Kaiyo Hakusho, p. 131. Asahi Shimbun, 15 July 2005. Financial Times, 14 July 2005. Austin (1998, p. 173).

22 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

Peace in Northeast Asia Yu (1992, p. 107). Gao and Wu (2005, p. 33). Korea Herald, 2 August 2002. Park (2005, p. 21). Park (2006, pp. 104–5). Yu (1992, p. 106). Ibid., p. 107. Drifte (2003, p. 59). 22 June 2007, e-mail from the China Division in the MOFA. Mohri (2006, p. 141). MOFA Press Conference, 15 October 1996. Yomiuri Shimbun, 28 April 2005; 9 November 2006. MOFA Press Conference, 22 May 2005. Interview with a high-ranking MOFA oﬃcial, 22 November 2006. Urano (2005, p. 219). Asahi Shimbun, 20 March 2006. The Japan Times, 27 October 2004. MOFA Press Conference, 22 June 2004. Interview with Kyodo News Agency in Beijing, 29 October 2004. The Japan Times, 1 June 2005; Asahi Shimbun, 30 September 2005. Yomiuri Shimbun, 11 March 2006. Correspondence with Prof. Miyoshi Masahiro, Professor at Kyoto University, Japan, 15 May 2007. Yomiuri Shimbun, 2 October 2005. The Japan Times, 2 October 2005. MOFA statement, 1 October 2005. Sankei Shimbun, 31 May 2006. Yomiuri Shimbun, 11 March 2006. Tokyo Shimbun, 4 April 2007. Asahi Shimbun, 13 April 2007. Financial Times, 21 March 2007.

BIBLIOGRAPHY Austin, Greg (1998), China’s Ocean Frontier: International Law, Military Force and National Development, Sydney: Allen and Unwin. Chung, Chien-peng (2004), Domestic Politics, International Bargaining and China’s Territorial Disputes, London: RoutledgeCurzon. Drifte, Reinhard (2003), Japan’s Security Relations with China Since 1989: From Balancing to Bandwagoning?, London: Routledge. Gao, Zhiguo and Wu Jilu (2005), “Key Issues in the East China Sea: A Status Report and Recommended Approaches”, in Selig Harrison (ed.) Seabed Petroleum in Northeast Asia: Conﬂict or Cooperation?, Washington, DC: Woodrow Wilson International Center for Scholars, pp. 32–8. Goto, Yasuhiro (2005), Kokusai Mondai, April. Harrison, Selig (ed.) (2005), Seabed Petroleum in Northeast Asia: Conﬂict or Cooperation?, Washington DC: Woodrow Wilson International Center for Scholars, www.wilsoncenter.org/index.cfm?topic_id=1462&fuseaction=topics. documents&group_id=132299. Accessed 2 February 2008. Hiramatsu, Shigeo (2002), Chugoku no senryakuteki kaiyo shinshutsu, Tokyo: Keiso Shobo.

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Kaiyo Seisaku Kenkyu Zaidan (2006), Kaiyo Hakusho (White paper concerning sea resources), Tokyo. Mohri, Kazuko (2006), Nitchu kankei. Sengo kara shinjidai e, Tokyo: Iwanami Shoten. Nomura, Hataru (2001), “The Senkaku Islands: gas under the sea”, The Japan Times, 8 September, p. 68. Nomura, Hataru (2005), “Senkaku shoto—Kaitei yuden”, Shokun, May: 64–72. Park, Choon-Ho (2005), “Seabed Boundary Issues in the East China Sea”, in Selig Harrison (ed.) Seabed Petroleum in Northeast Asia: Conﬂict or Cooperation?, Washington, DC: Woodrow Wilson International Center for Scholars, pp. 18–22. Park, Choon-Ho (2006), “Problems pertaining to the application of the Law of the Sea in the area surrounding the Korean peninsula”, Korean Observations on Foreign Relations, 8 (1): 96–116. Shimizu, Yoshikazu (2006), Chugoku ga “han Nichi” wo tsuteru hi, Tokyo: Kodansha. Urano, Tatsuo (2005), Senkaku shoto, Okinawa, Chugoku (Zohoban), Tokyo: Sanwa Shoseki. Yu, Hui (1992), “Joint Development of Mineral Resources—An Asian Solution?”, in Ko Swan Sik et al. (eds), Asian Yearbook of International Law, Vol. 2, pp. 87–112. Zhao, Liguo (2005), “Seabed Petroleum in the East China Sea”, in Selig Harrison (ed.) Seabed Petroleum in Northeast Asia: Conﬂict or Cooperation?, Washington, DC: Woodrow Wilson International Center for Scholars.

3. The legal aspects of Japan’s territorial and maritime disputes with neighboring states 3.1

INTRODUCTION

Japan currently has important territorial and maritime boundary disputes over various islands with all of its neighbors: China (including Taiwan), Korea (both South and North) and Russia (see Figures 1.1 and 1.2 in Chapter 1). To a great extent, these are problems left over from the tragic series of Asian wars beginning with the Sino-Japanese War of 1894–95 and ending with Japan’s defeat in World War II. These disputes are relatively unknown to the international community, and even among those in the know, they are generally considered bilateral problems, not worth signiﬁcant attention outside the countries concerned. All three disputes have produced recent worrisome and dangerous incidents between Japan and its neighbors: 1.

2.

3.

In August 2006 a Russian patrol boat opened ﬁre on a Japanese ﬁshing vessel oﬀ the northeast tip of Hokkaido, killing a Japanese ﬁsher, Mitsuhiro Morita with a shot to the head. Russia expressed regret, but defended its action, saying the Japanese boat was operating in Russian territorial waters. In April 2006 Japan and South Korea narrowly averted a high seas showdown near the contested islets known as Takeshima in Japanese and Dok (or Dokdo or Tokdo) Island in Korean. When South Korea moved to register underwater topographical features near the islets with Korean names, Japan announced a plan to survey the contested area. South Korea immediately threatened to capture the Japanese survey ships. Happily, cooler heads prevailed to defuse the crisis when Japan backed away from the survey plan and South Korea dropped its name registration idea. In October 2006 a Chinese ship manned with activists intending to plant the Chinese ﬂag on the Senkaku (Diaoyu) Islands in the East China Sea was forcefully turned away by the Japan Coast Guard. China accused Japan of injuring the activists and ramming their vessel. 24

Legal aspects of Japan’s territorial and maritime disputes

25

Japan’s disputes with its neighbors are serious, and military confrontation is not out of the question. At a minimum, they are irritants that have retarded the development of normal international relations between Japan and the three countries concerned, and the establishment of peace and security in East Asia. Now that Japan aspires to be a permanent member of the United Nations Security Council, the existence of these disputes is a major obstacle to attaining that status. Thus, they merit the attention of all members of the international community. Japan too must place the highest priority on ﬁnding solutions to these disputes. Not only are the disputes important to settle in themselves, but they also are important factors in the continuing tensions between Japan and its neighbors despite rich and fruitful economic ties. Japan will not be able to put the legacy of the wars of the 20th century behind it until these disputes are resolved. Although these disputes are political in nature, issues of international law dominate and point the way to possible solutions in each case. Nevertheless, although it would be possible to settle these disputes through the application of international law, this appears to be both impossible and unwise. A legal solution would entail the parties to each dispute agreeing to submit them to an international tribunal, such as the International Court of Justice at The Hague, for decision. Inevitably, however, this solution would produce winners and losers. The party on the losing side in each case would likely continue to feel wronged even if it accepted the decision of the Court. Thus, the best solution in each case is one in which both parties—both Japan and its neighbor—could claim victory. This can only be accomplished through negotiations that would produce a cooperative solution to each dispute. The purpose of this chapter is to deﬁne the disputes in question, to delineate the legal and factual issues involved, and to discuss options and opportunities for their resolution. My thesis is that the tools of international law analysis and dispute settlement may be helpful in understanding and resolving these diﬃcult problems. Legal issues dominate all of the disputes. Of course, the disputes are political as well, but the legal framework provides the key to political and diplomatic discourse and to dispute settlement. Japan, as well as its neighboring states, has accepted and ratiﬁed the UN Convention on the Law of the Sea (1982), which is therefore authoritative for all concerned. The expansion of national maritime zones as permitted under this treaty greatly exacerbates and magniﬁes the importance of these island disputes. Not only small, relatively insigniﬁcant islands are at stake, but also over 1 million square kilometers (km2) of ocean space. The peaceful and equitable resolution of these disputes will do much to establish peace and security as well as to enhance regional cooperation in Northeast Asia.

26

Peace in Northeast Asia

Final solutions acceptable to all parties can only come after long and undoubtedly hard bargaining between the parties to each dispute. This can and should be done through diplomatic contacts at appropriately high levels. Diplomacy in these cases may well necessitate an international mediator of great standing who would aid the parties and guide them toward amicable solutions in each case. An excellent mediator for this job would be Koﬁ Annan, the now retired Secretary General of the United Nations.

3.2 3.2.1

THE DISPUTES The Disputes with China

Japan and China have three distinct disputes: (1) a dispute over the maritime zones surrounding Okinotorishima (see Figure 5.2, Chapter 5); (2) a territorial dispute over the Senkaku Islands (see Chapter 5, Figure 5.1); and (3) a dispute over their lateral maritime boundary in the East China Sea. 3.2.1.1 Okinotorishima Since 2004 China has claimed the right to conduct marine research and other activities in what Japan claims is the Exclusive Economic Zone (EEZ) surrounding Okinotori Island (Okinotorishima), in the southernmost point of Japan. Japan claims an EEZ and an extended continental shelf on the basis that Okinotorishima is an island under the international Law of the Sea entitled to four maritime zones: a 12-nautical mile (nm) territorial sea measured from the baseline, normally the low-tide line; an additional 12-nm contiguous zone; a 200-nm EEZ measured from the baseline; and a continental shelf that may extend as far as 350 nm from the baseline. China contests the claims to an EEZ and continental shelf on the basis of Article 121(3) of the UN Convention on the Law of the Sea, which provides that a ‘rock’ that is above high tide but is unable to support human habitation or economic life cannot claim an EEZ or a continental shelf. This dispute is therefore over the factual and legal character of Okinotorishima. Okinotorishima is the southernmost point of Japanese territory and Japan’s only tropical island. It is located at 20.25° north latitude and 136.5° east longitude, 1200 km northwest of Guam and 1700 km south of Tokyo. Its Spanish name is Parece Vela and in English it is known as Douglas Reef. The Tokyo municipal government administers the island. Most of the island is a submerged coral (table) reef 4.5 km long and 1.7 km wide; it is shaped like a pear or eggplant with a circumference of 11 km. In addition,

Legal aspects of Japan’s territorial and maritime disputes

27

ﬁve islands above high tide existed until 1987, when three of these disappeared under the sea. At present two small, rocky islets exist: Higashi Kojima (6 cm above high tide) and Kita Kojima (16 cm above high tide). At one time, construction was started to make one island a lighthouse and the other an observatory, but this work was abandoned. The Japanese government has constructed some works to prevent erosion. Several times in recent years ships have landed or been stranded on the island, causing some damage. Before April of 2004, China not only admitted but also supported Japan’s claims. This changed, apparently because China realizes that in the event of a conﬂict over Taiwan, it must have open sea lanes between the East China Sea and the Paciﬁc Ocean. China’s interest is primarily over security concerns. There are various proposals to develop Okinotorishima. One idea is to construct an ocean thermal electric generating plant on the island; another is to establish ﬁshing and tourism; a third is to raise the coral by constructing polders. None of these projects have been ﬁnalized. 3.2.1.2 The Senkaku Islands Japan and China have a territorial dispute concerning the Senkaku (Diaoyu in Chinese; Pinnacle in English) Islands (see Chapter 5, Figure 5.1), small, uninhabited islands located in the East China Sea. They are 170 km north of the Ishigaki Islands (Japan); 170 km northeast of Keelung, Taiwan; and 410 km west of the Okinawa mainland. The group is 7 km2 of small, volcanic islands as follows: ● ● ● ● ●

Uotsuri-jima (Diaoyu Dao): 4.319 km2 Kuba-jima (Huangwei Yu); 1.08 km2 Taisho-jima (Chiwei Yu) Kita Kojima (Beixiao Dao) Minami Kojima (Nanxiao Dao)

And three rocks: Okino Kita-iwa (Dabeixiao in Chinese), Okino Minamiiwa (Dananxiao in Chinese), and Tobise (Feilaidai in Chinese). These islands are administered by Japan as part of Ishigaki City, Okinawa Prefecture, but are claimed by China as part of Toucheng Township, Yilan County, Taiwan Province. Of course, these islands are also claimed by Taiwan in its separate dispute with China. China claims these islands through records of discovery in 1372 and various contacts after that date, ranging from ﬁshing expeditions to gathering herbs on the islands. The records of these contacts have not been made public.

28

Peace in Northeast Asia

Japan claims the islands were terra nullius (vacant territory) until the late 19th century when, from 1885 on, they were thoroughly surveyed by the government of Japan. Japan’s claim rests on its eﬀective administration of the islands, which is well documented to begin in 1895 and was uncontested until 1970/71. The United States administered the islands after World War II until they were returned to Japan in 1971 at the same time as Okinawa. 3.2.1.3 The maritime boundary between China and Japan in the East China Sea The East China Sea is bounded by the Chinese mainland in the west, Japan’s Ryukyu Islands (Okinawa Prefecture) in the east, South Korea to the north and the island of Taiwan to the south. There is a Japan/South Korea joint development zone in the northern part of the East China Sea. The maritime boundary between China and Japan in the East China Sea is contested. The Asian continental shelf (the underwater prolongation of the continent) stretches hundreds of kilometers under the East China Sea, terminating at the Okinawa Trough, a deep-sea trench west of the Ryukyu Islands. Japan claims an Exclusive Economic Zone to a point equidistant between the Asian mainland and the Ryukyu Islands. China, however, claims its rights to the continental shelf, relying primarily on a natural prolongation idea that the physical shelf extends to the Okinawa Trough. Thus, there is a large overlap between the claim of Japan to an EEZ and China’s claimed continental shelf rights. Since the Senkaku Islands are located in the middle of the East China Sea and are features of the continental shelf, they are entangled in the maritime boundary dispute. Obviously, if these islands belong to one side or another the maritime boundaries are radically aﬀected. Thus, the resolution of the two disputes—the territorial dispute and the maritime boundary disputes—must be handled together. The question of dispute resolution has become urgent in recent months because there is every indication that valuable oil and gas deposits are present in the East China Sea. The state-owned China National Oﬀshore Oil Corporation (NOOC) has announced plans to begin exploratory drilling for oil near the Senkaku Islands near the equidistance line in August 2005. In its turn, Japan has announced plans to grant Japanese companies concessions to drill for oil on its side of the contested equidistance line (see Chapter 2). 3.2.2

The Dispute with Korea

Japan’s dispute with Korea (South and North) involves Takeshima (Korean names: Tokdo or Dokdo or Dok) Island, which is located in the Japan Sea

Legal aspects of Japan’s territorial and maritime disputes

29

92 km southwest of the South Korean island of Ururundo, and 157 km northwest of Japan’s Oki Island. Takeshima (see Figure 6.1, Chapter 6) has a total area of 0.23 km2, about the size of Hibiya Park in Tokyo, and no valuable resources are known to be present in the surrounding waters other than ﬁshing rights. Takeshima consists of two large rocks (the east and west islands) and several smaller rocks. It has no permanent inhabitants, although since 1954 South Korean police personnel have occupied it. Takeshima was known as Matsushima before 1905, and older maps and documents often confused Takeshima with two nearby islands, Ururundo and Takesho, both of which are South Korean. Takeshima also has an English name: Liancourt Rocks, adding to the confusion. This dispute over Takeshima intensiﬁed in 2004 when South Korea issued a Takeshima postage stamp and proclaimed a Takeshima memorial day. This drew a protest from Japan, and Shimane Prefecture also proclaimed a Takeshima memorial day. In April 2005 the South Korean Ambassador to Japan rejected the idea of submitting the Takeshima issue to the International Court of Justice. This is consistent with long-standing Korean policy. South Korea is in de facto control and the area is oﬀ-limits to Japan. 3.2.3

Dispute with Russia

Japan’s dispute with Russia involves the four so-called “Northern Territories”: Habomai, Shikotan, Etorofu and Kunashiri Islands at the southern end of the Kuril archipelago north of Hokkaido (see Figures 7.1 and 7.2, Chapter 7). These four islands (or island groups) were occupied by Soviet troops in August 1945 at the end of World War II, and many Japanese inhabitants ﬂed. In 1946 Russia annexed these islands and forcibly deported the remaining Japanese inhabitants. Russia still administers the islands as part of its own territory, although it has oﬀered to return the two smaller islands, Habomai and Shikotan, in connection with concluding a peace treaty with Japan. Russian military units have largely left the islands and visits by the former Japanese inhabitants are now permitted. Russia permits ﬁshing vessels from South Korea to ﬁsh in the EEZs of the islands, causing friction with Japan. In March 2005 Russia announced plans to develop mineral resources including oil and gas, gold, silver, sulfur, titanium, iron and precious stones. The provisional maritime boundary between Russia and Japan is the line of equidistance between Hokkaido and Kunashiri. By agreement, Japanese ﬁshing is permitted in return for paying a fee around Kaigara Island, a part of Habomai. Japan exercises no sovereign rights to the four islands or their surrounding maritime zones.

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3.3 THE INTERNATIONAL LAW OF TERRITORIAL SOVEREIGNTY Territorial sovereignty is one of the essential characteristics of the modern state and a requirement for statehood. The disputes between Japan and its neighbors involve diﬀerences of opinion concerning sovereignty over territory. Rather than boundary questions—the usual type of territorial dispute between neighbors, these disputes involve issues of the acquisition and loss of territorial sovereignty. Accordingly, we will brieﬂy review the international law on these matters. 3.3.1

The Acquisition of Territorial Sovereignty

There are several recognized modes of acquiring territorial sovereignty under international law. First, a state may acquire territory by cession, which is the transfer of territory, usually by treaty, from one state to another. Second, territory may be acquired by what is termed occupation. Occupation as a method of acquisition presumes, however, that the territory in question was terra nullius immediately before acquisition—that the territory belonged to no state. Furthermore, occupation giving rise to sovereignty has a technical meaning: eﬀective control with the intention and will to act as sovereign. Therefore, the state relying on this method must show a requisite number of what are termed eﬀectivités, speciﬁc factual instances of eﬀective control—to prove its case. Third, territory may be acquired by prescription, which also depends on showing eﬀective control. But the distinction between occupation and prescription is that in the latter case the territory in question was not terra nullius, but admittedly belonged to another state. Consequently, the eﬀective control in the case of prescription must be longer and more apparent than for occupation, because loss of territory by a former sovereign is not readily presumed. Fourth, conquest was a recognized method of acquiring territory in the past, and though it is not so today, the issue of conquest must still be considered. Fifth, an operation of nature may change territory, such as accretion, erosion or the appearance or disappearance of a volcanic island. Sixth, territory may be acquired by international adjudication of some sort. In the context of a court or arbitration decision, adjudication is not really a method of acquisition, but a method of determining existing rights; but an international boundary commission or the UN Security Council may be empowered to decide territorial questions that involve awarding as well as settling territorial rights.1 Five further observations are necessary. First, these acquisition methods do not exhaust all possibilities; they are simply the main methods that oﬀer useful analysis when territory is in dispute. Second, the above methods are

Legal aspects of Japan’s territorial and maritime disputes

31

interrelated in various ways in any particular case. Third, a state does not have to be prepared to prove its title to every square meter of its territory in terms of one of these methods; they are relevant only when title to territory is uncertain or disputed. Fourth, acquiescence and recognition of territory play a very important role in the acquisition of territory, although they are not strictly speaking modes of acquisition. Fifth, territorial sovereignty may also be lost through renunciation. Obviously, in the case of Japan’s disputes with its neighbors, several of these points and methods are not relevant. Accordingly, we will discuss only the relevant methods, which are: (1) occupation; (2) prescription; (3) conquest; (4) acquiescence/recognition; and (5) renunciation. We will also discuss several concepts closely related to territorial sovereignty: the concept of condominium or joint sovereignty, and “intertemporal law” (see Conquest below), the question of what is the eﬀect when the rules of acquisition change over time. We will also consider the impact of political arguments related to the question of territorial sovereignty. 3.3.1.1 Occupation Occupation is the method of acquiring sovereignty over territory that is terra nullius—claimed by no state. In the Status of Eastern Greenland Case (1933), the Permanent Court of International Justice (PCIJ) said that a claim to sovereignty based on occupation requires a showing of two elements: “the intention and will to act as Sovereign; and some actual exercise or display of such authority.”2 The question of the will to act as sovereign is a subjective element that can only be shown by objective acts, so in reality what counts is the second element, which is the requirement of eﬀective control. Acts of eﬀective control can also demonstrate the ﬁrst element if (1) the activity is not just by an individual, but is that of the state or its agents; (2) the activity is consistent with a governmental purpose. Thus, the cases resolving disputes over eﬀective control over territory turn on which party to the dispute can show concrete activities consistent with sovereign control. In the Island of Palmas Case (1928),3 the United States claimed a disputed island on the basis of cession from Spain, whose claim was founded upon discovery. But the arbitrator held that the discovery claim was trumped by the eﬀective control exercised by the Netherlands beginning in the 17th century and continuing to the outbreak of the dispute in 1906; relevant acts of sovereignty were exercised intermittently by the Dutch East India Company. The acts necessary to establish sovereign control are held to vary with the conditions of time and place, and the nature of the area involved. In the Clipperton Island Arbitration: France v. Mexico (1931),4 the inaccessibility and uninhabited nature of the island were taken into account so that

32

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an oﬀshore geographical survey, a landing by a small party and a declaration of sovereignty published in a Honolulu newspaper were held suﬃcient to uphold the claim of sovereignty by France. In the Status of Eastern Greenland Case (1933) the court awarded sovereignty to Denmark on the basis that Denmark had passed legislation relating to the uninhabited eastern section of the island and had granted concessions there. This was considered superior to the Norwegian actions, which involved the wintering of expeditions and the erection of a wireless station, against which Denmark protested. In addition, Norway had not claimed sovereignty until 1931. Acts of eﬀective control (also known by the French term eﬀectivités) will be considered more important if they are diverse in number and include legislative, regulatory or judicial acts. This was determinative in the Minquiers and Ecrehos Case (1953),5 a dispute over Channel Islands between France and the United Kingdom. The court appraised the relative strength of the opposing claims by considering the nature of the activities of each party. The court stated that it “attaches in particular probative value to . . . acts which relate to the exercise of jurisdiction and local administration and to legislation.” The United Kingdom was held to have the best claim because it had exercised criminal jurisdiction, held inquests, collected taxes, and placed the administration of the “Ecrehos Rocks” within the Port of Jersey, an uncontested UK territory. Similarly, in the Case Concerning Sovereignty over Pulau Ligatan and Pulau Sipadan (Indonesia/Malaysia) (2002),6 the International Court of Justice ruled in favor of Malaysia because “the activities relied upon by Malaysia . . . are modest in number but . . . are diverse in character and include legislative, administrative and quasi-judicial acts. Moreover, the Court cannot disregard the fact that at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest.” In the Eritrea–Yemen Arbitration (1998/99),7 which concerned disputed Red Sea islands, islets and rocks, the tribunal classiﬁed the respective acts (eﬀectivités) of government authority of the contending parties as follows: ●

●

●

evidence of intention to claim the islands, as shown by public claims to sovereignty and by legislative acts seeking to regulate activity on the islands; evidence of activities relating to the surrounding waters, including such matters as licensing various acts, ﬁshing vessel arrests, search and rescue operations, acts of patrol, and environmental protection; evidence of activities on the islands themselves, including landing parties, construction and maintenance of facilities, overﬂight, and administrative acts.

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33

The tribunal found, after weighing all the evidence, in favor of Yemen. In addition to weighing the quality and quantity of governmental activities, a court or tribunal will consider when these took place in relation to certain “critical dates,” which will, of course, vary in each case. Three such critical dates may be relevant. First, a tribunal may decide if possible the date before which the territory in question was terra nullius. This occurred in the Clipperton Island Case (1931), where the court determined that before 1858, when France ﬁrst proclaimed its sovereignty over the island, it was terra nullius. A second critical date that may be possible to establish is the moment the rights of the parties have crystallized so that activities after that date will not be taken into consideration. This was determined in the Indonesia/Malaysia Case (2002). A third critical date that may be relevant in a given case is when the dispute arose. In the Status of Eastern Greenland Case (1933) the fact that the dispute arose only in 1931 was relevant in that this was the date on which sovereignty must be found to have existed in one or another of the parties. By implication, activities after this date (which will inevitably be carried out under protest) cannot aﬀect the outcome. In summary, three factual points are especially important in order to assert sovereignty: (1) evidence of eﬀective occupation; (2) the exercise of governmental authority; and (3) recognition or acquiescence by other states. 3.3.1.2 Prescription The doctrine of acquisition of territory by prescription is very ill deﬁned. It operates when territory belongs or may belong originally to another state, and a diﬀerent state exercises continuous and undisturbed acts of sovereignty over it for a long period of time. The diﬃculty of application of this concept is obvious. Perhaps the greatest problem is there is no accepted period of time in international law for the application of the doctrine; it is held to vary in each case. The essence of the doctrine is the passage of time plus the implied acquiescence of the dispossessed sovereign.8 But there seems to be no case where territorial acquisition was squarely based on this method. Rather, cases such as the Chamizal Arbitration (US/Mexico) (1911)9 commonly hold that if a state protests sovereign acts over disputed territory, the doctrine of prescription cannot apply. Thus, one eﬀect of the doctrine is the fact that protests can prevent acts of control from having an eﬀect on territorial rights. The chief utility of the doctrine it seems is that a tribunal faced with competing claims can decide the case without ﬁrst making a deﬁnite ﬁnding that the area in question was terra nullius at some point. Thus the arbitrator in the Island of Palmas Case (1928), for example, did not make clear whether the island was under Spanish sovereignty before the Dutch began

34

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to exercise control. So the doctrine of prescription means that, when faced with competing claims, a tribunal may ﬁnd in favor of the party that can prove the greater degree of eﬀective control without basing its judgment on any speciﬁc mode of acquisition. 3.3.1.3 Conquest Under traditional international legal norms, conquest was a valid method of acquiring territory even without a treaty of cession as long as hostilities had ended and the conquering state declared its intention by annexation. But this rule was changed when restrictions were placed on the right to wage war. Therefore, at least since the date of the Covenant of the League of Nations (1919) conquest is no longer a valid method. This change in the law brings up the issue of what is called “intertemporal law”: the continuing validity of rights gained through acts that were once legal but now are illegal or invalid. The general rule is that acts are judged by international legal norms as they existed at the time, not as they exist at some subsequent time or today.10 But this is qualiﬁed by the famous distinction drawn by Judge Huber, the arbitrator in the Island of Palmas Case (1928): As regards the question which of diﬀerent legal systems prevailing at successive periods is to be applied in a particular case . . . a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, its continued manifestation, shall follow the conditions required by the evolution of the law.

The application of this distinction is unclear, but logically Judge Huber’s distinction must be applied judiciously in order not to lead to instability. If carried to the extreme, every state would have to keep under constant review the title to each portion of its territory. And Judge Huber himself did not apply the principle to invalidate Spain’s title based on discovery. 3.3.1.4 Acquiescence/recognition Where territory is in dispute between two states, it will be relevant if one or the other can show that its title was recognized at some point by the other state. Recognition can be either in the form of a treaty or a unilateral declaration. Such recognition may be express, but it also may be implied from acquiescence—failure to object or protest.11 Also relevant is recognition by or from third states.12 3.3.1.5 Renunciation Territory can be lost in a variety of ways such as abandonment, cession and renunciation. Renunciation of territory must be express; abandonment

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35

may be inferred from conduct, such as the long-term absence of the exercise of sovereignty. Where renunciation of territory occurs by treaty, there may be questions as to the meaning of treaty language. Such questions must be answered with respect to the relevant principles of interpretation of the Vienna Convention. Article 31 of the Convention sets out the general rule that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Article 32 of the Convention sets out criteria for recourse to “supplementary” means of interpretation such as preparatory work and the circumstances of its conclusion. These can be used only when the interpretation according to Article 31 leaves the meaning ambiguous or obscure; or leads to a manifestly absurd or unreasonable result. Another issue that may arise is the question of whether a treaty may confer rights on third (non-party) states. As a general rule a treaty only applies between the parties to it. This precludes either an obligation or a beneﬁt for third states. However, Article 75 of the Vienna Convention states that this rule is “without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression.” 3.3.1.6 Condominia International law recognizes the possibility of condominium, which exists when two or more states exercise sovereignty conjointly over a territory.13 For example, the United Kingdom and Egypt had condominium over the Sudan between 1898 and 1956. The United Kingdom and France exercised condominium over the New Hebrides until this area gained independence as Vanuatu in 1980. Condominium, however, will not be imposed, and as a practical matter can only come into being by international agreement. In that case the particular regime of condominium will depend wholly on the agreement negotiated to establish it. 3.3.1.7 Political arguments The concept of territorial sovereignty involves extraordinary emotional fervor in certain cases. Political as well as legal arguments may be brought to bear in any particular case. Three main arguments are usually raised. First, one or more of the claimants may argue that the principle of geographical contiguity is in its favor. Second, historical continuity may be argued as a basis of title. Third, where an area is inhabited, the principle of self-determination may become involved.

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Peace in Northeast Asia

Although none of these arguments are considered to have determinative legal eﬀect,14 they can sway a decision in close cases. From a legal viewpoint, these arguments operate as presumptions—they can be taken into account, but are rebuttable by contrary legal evidence of sovereignty.15

3.4

ISLANDS AND INTERNATIONAL LAW

The UN Convention on the Law of the Sea (UNCLOS), Article 121, paragraph 1, adopts the following deﬁnition of an island: “An island is a naturally formed area of land, surrounded by water, which is above water at high tide.” This distinguishes “islands” from what are called “low-tide elevations.” Under Article 13 of the UNCLOS a naturally formed area of land that is above water at low tide, but submerged at high tide is not an “island” properly deﬁned. A low-tide elevation has no entitlement to any maritime zone, not even a territorial sea. However, as an exception to this rule, “where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial seas from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the territorial sea” (emphasis added). Article 121, paragraph 2 of the UNCLOS states that an island meeting the deﬁnition above is entitled to all four maritime zones speciﬁed for other land territory: (1) a territorial sea; (2) a contiguous zone; (3) an Exclusive Economic Zone; and (4) a continental shelf. Article 121, paragraph 3 qualiﬁes this by the statement that a certain category of “island,” namely a “rock” that “cannot sustain human habitation or economic life of [its] own shall have no exclusive economic zone or continental shelf.” By implication, then, a rock does possess the other two maritime zones: a territorial sea and a contiguous zone. The deﬁnition of when an island is a “rock” is somewhat problematic. The terms “economic life” and “human habitation” are directly linked to human activities. Since these terms are phrased in the alternative, one or the other is enough to posit an island not a rock. A rock must lack both. Furthermore, since human activities can and do change over time, the determination will depend on the status of the island at the time the claim is made. The travaux préparatoires for the UNCLOS show that it is relatively easy to claim island status. Human habitation need not be all year round; it can be temporary such as a shelter for seasonal ﬁshing. In addition, economic life may include exploitation of the living or non-living resources found in the territorial sea. There is no requirement of arable land or potable water to be an island and not a rock. Thus, the status of “island” when it comes

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37

to small features may vary over time and will depend on the human activities carried on in the area.16 The process of delineating maritime zones is complicated by the fact that all zones begin at what is termed the “baseline.” The baseline is normally the “low-water line along the coast” (UNCLOS, Article 5) and the closing lines of bays and river mouths (Articles 9–10). In the case of islands with fringing reefs, the baseline is the seaward low-water line of the reef, as shown by the appropriate symbol on charts oﬃcially recognized by the coastal state (Article 6). Under customary law and the UNCLOS, archipelagic states are permitted to draw straight baselines around the outermost points of islands and drying reefs of an archipelago. Japan, North and South Korea, China and Russia all have unilaterally claimed this option. The system of straight baselines increases, sometimes dramatically, the areas enclosed by maritime zones. Since these straight baselines are drawn unilaterally, the problem arises that diﬀerent nations use varying methods and standards. There is need for agreement both on whether straight baselines are permissible and how they should be drawn.17 In many cases the straight baselines claimed appear excessive and without justiﬁcation in international law.

3.5 THE INTERNATIONAL LAW OF MARITIME BOUNDARY DELIMITATION The problem of drawing maritime boundaries between states located opposite or adjacent to each other was greatly complicated by the UN Convention on the Law of the Sea (UNCLOS) (1982), which grants coastal states the rights to four separate maritime zones: a territorial sea of 12 nm; a contiguous zone of 12 nm; an EEZ of 200 nm; and a continental shelf of up to 350 nm. This tremendous extension in coastal state jurisdiction gave rise to many disputes, and there are now many agreements settling maritime boundaries as well as decisions of the International Court of Justice and various arbitral tribunals on the issues involved. As a result, the applicable legal principles, if not crystal clear, may be stated with reasonable certainty. Particularly relevant to the disputes between Japan and its neighbors are the legal principles relating to the maritime boundaries between two of the zones: the continental shelf and the EEZ. We concentrate on these delimitations in this chapter. It is particularly important to note that, while in theory each of these two maritime zones could have a separate delimitation settled under diﬀerent applicable principles, in practice—both in decisions of international tribunals and bilateral agreements—both delimitations are

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Peace in Northeast Asia

treated together by laying down a single maritime boundary without distinguishing between the diﬀerent zones. 3.5.1

Delimitation by Agreement

The preferred option under the UNCLOS is for the states concerned to agree on their maritime boundaries. Both Article 74, which concerns delimitation of EEZ boundaries, and Article 83, which concerns delimitation of continental shelf boundaries, are worded the same: “The delimitation . . . shall be eﬀected by agreement on the basis of international law . . . in order to achieve an equitable solution.” Both articles also provide that, in default of an agreement, “the States concerned shall resort to the procedures provided for in Part XV of the Treaty”—the procedures on the settlement of disputes. The rule of law that applies with respect to forging an agreement is “an equitable solution.” This is very general and imprecise; it is derived from the judgment of the International Court of Justice in the North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark) (1969), where the Court found that there was no governing rule of customary law, and, therefore, “delimitation is to be eﬀected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances.”18 To this end there is an obligation to negotiate in good faith. 3.5.2

Dispute Settlement

If states cannot agree on their maritime boundaries, they are obligated to resort to dispute settlement. This means they must submit to the jurisdiction of an international court or tribunal according to the provisions of the UNCLOS, Part XV. These provisions and dispute settlements in general are analyzed in the next section of this chapter. But ﬁrst we turn to the applicable law in such a case. The only rule of treaty law that governs dispute settlement is Article 6 of the 1958 Convention on the Continental Shelf, which posits that, in the absence of agreement, the maritime boundary is to be, in the case of opposite states (two states facing each other), the line of equidistance or median line equidistant from the nearest points of the opposing states’ shores, adjusted for “special circumstances.” What “special circumstances” are is limited. The principal drafters of Article 6, the International Law Commission, considered “special circumstances” to be only exceptional conﬁgurations of the coast and navigable channels.19 But this is a moot point, because none of the states involved in the maritime boundary disputes considered in this chapter are parties to the Convention on the Continental Shelf, so the rule of Article 6 does not apply.

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39

Thus, we must look to sources other than treaty law for the applicable rules of delimitation in contested cases. First, no rule of customary international law would seem to be at hand. The International Court of Justice in the North Sea Continental Shelf Cases (1969), after extensive analysis, found no applicable customary law rule, and none seems to have developed since these cases were decided. What has developed, however, is extensive judge-made law, which can be considered as binding since decisions of international tribunals are one of the recognized sources of international law.20 There is now an extensive body of international decisional law.21 In addition, we have the example of numerous agreements between states during the last 25 years.22 With these data it is possible to state the applicable legal rules in the absence of agreement between states. From a combination of state practice and decisional law, the applicable rule is, as stated in the Anglo-French Continental Shelf Case (1977), “the [maritime] boundary is to be determined on equitable principles.”23 Distilled from the cases a number of such “equitable principles” can be stated: ●

● ● ●

Even if both the EEZ and continental shelf maritime boundaries are in dispute, a single maritime boundary will be delimited. The reason for this is the practical one of avoiding complexities and overlap that can cause future diﬃculties.24 The starting point for determining the maritime boundary between opposite states will be the equidistance line. The equidistance line is subject to adjustment taking into account “all relevant circumstances.” “Equitable principles” does not mean that delimitation is an exercise in distributive justice whereby the existing resources are to be equally divided.

What “relevant circumstances” must be taken into account is very broad; it is wider in scope than “special circumstances” under the 1958 Treaty on the Continental Shelf. Relevant circumstances can include virtually any fact considered important in the particular situation involved. Some examples of “relevant circumstances” that have been used are the following: ● ● ●

Geographical circumstances such as concavity or a sudden change of direction in the coast. The presence of islands. If an island is very close to a foreign coast it may be enclaved or otherwise not given full value. The presence of navigable channels.

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Peace in Northeast Asia ●

● ● ●

There should be a reasonable degree of proportionality between the length of each party’s coastline and the area of continental shelf attached to it. Relative population densities of coastal areas may be taken into account. Security interests may be considered. The prior conduct of the parties.

Some factors that have not been considered relevant circumstances in recent cases include: ● ●

Socio-economic factors. The natural prolongation of the continental shelf. Geomorphology was ignored, for example, in the Tunisia/Libya Case (1982).

The court or arbitral tribunal will have wide discretion on how to weigh all of these factors in any particular case. This means it is diﬃcult to predict the outcome of any particular case.

3.6 INTERNATIONAL DISPUTE SETTLEMENT AND THE ROLE OF INTERNATIONAL ADJUDICATION The UNCLOS, Part XV, obligates parties to resolve disputes by peaceful means and to negotiate in good faith and to exchange views “expeditiously.” If agreement cannot be reached, the Convention allows the disputants to choose any procedure, judicial or non-judicial, to resolve the matter.25 Where settlement is not possible by means freely chosen by the parties, compulsory methods of dispute settlement come into play. Section 2 of Part XV details “compulsory procedures entailing binding decisions” that must be used. Where no means of dispute settlement has been designated or when parties to a dispute have designated diﬀerent methods, arbitration is the default compulsory dispute settlement procedure.26 These compulsory methods of dispute settlement are subject to signiﬁcant exceptions, however. Article 298 of UNCLOS allows a party to declare in writing at any time that it does not accept binding procedures with respect to certain categories of disputes, most importantly disputes relating to sea boundary delimitations. But if a delimitation dispute is not settled within a “reasonable time,” either state party may insist that the matter be referred to “compulsory conciliation.”27 This procedure, which

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41

is detailed in Annex V of the UNCLOS, involves the appointment of outside conciliators who consider the arguments of the parties and render a written report. The parties to the dispute are then obligated to settle the matter on the basis of the conciliators’ report or some other procedure.28 The disputes between Japan and its neighbors, China, South and North Korea, and Russia, involve both territorial and marine boundary issues. With respect to territorial claims, the only legal obligation is to resolve the disputes in a peaceful manner through good faith negotiations. Only with respect to marine boundary and Law of the Sea issues do the dispute settlement provisions of UNCLOS apply. 3.6.1

The Territorial Disputes

The three territorial disputes are fundamental and are separate and distinct both from each other and from their associated marine boundary disputes. The ﬁrst step in resolving each is to proceed to either agreement or international adjudication with respect to each separate territorial dispute. Japan should place a high priority on bilateral negotiations with respect to each of the three territorial disputes. Alternatively, each of the three territorial disputes should be submitted either to international adjudication or ad hoc arbitration.29 3.6.2

The Maritime Disputes

If the territorial disputes are resolved, it will be much easier to resolve the maritime boundary disputes between the parties. In fact, the maritime boundary disputes cannot be resolved prior to the territorial disputes except in the case of Okinotorishima, which involves only the Law of the Sea independent of any territorial dispute. 3.6.3

Options for Dispute Settlement

There appear to be several choices to be made in order to settle these disputes. One choice would be to separate the territorial and the maritime disputes, and to take a step-by-step approach, deferring the maritime boundary matters until after resolution of the territorial disputes; the other choice is to go for a comprehensive settlement between Japan and each of the three countries involved. The preference here would be to come to a comprehensive settlement with each country as a partial agreement would no doubt be impractical since it would solve very little. A further complication is the de facto existence of Taiwan and the fact that there are two

42

Peace in Northeast Asia

Koreas, North as well as South. But agreed settlements between Japan and China and South Korea would, as a practical matter, hold up and receive the backing of the international community. Another key decision is whether to go for negotiated, diplomatic solutions, on the one hand, or to submit the disputes to international arbitration or litigation. While such a decision can be made individually regarding each of the disputes, there does not appear to be any realistic possibility that any of the disputes will be submitted to an international court or arbitral tribunal. Thus, negotiated, diplomatic solutions between Japan and each of the neighboring countries seem to be the only practical method available at the present time. Although no international court will rule on the disputes, international law remains a key tool in conducting the necessary negotiations, since all parties will wish to start negotiations by asserting their international legal rights. After this, appropriate compromises can be struck if necessary. Diplomatic negotiations can be held between Japan and each party on a bilateral basis. But in one or more of the negotiations it may be helpful to employ a third party, such as an experienced expert of unquestioned standing and impartiality, to serve as a mediator or conciliator. Of course, this person would have no power to bind the parties or to compel any settlement, which it would be up to the parties themselves to fashion and accept.

3.7 3.7.1

EVALUATION OF THE DISPUTES Okinotorishima

China disputes Japan’s legal right to claim an EEZ and continental shelf of 200 nm surrounding Okinotorishima on the basis that this island is a “rock” under LOS Article 121(3), which limits its maritime zones to a 12nm territorial sea and a 12-nm contiguous zone. China’s position is dictated by military and political concerns. China has designated as its “First Security Line,” a line drawn between the Japanese archipelago and Nanseishoto to Taiwan;30 and its “Second Security Line,” a line drawn between Ogasawara-shoto to the Mariana Islands. China considers it important to keep open sea lanes for military use between the East and South China Seas and the Paciﬁc Ocean. This is directed not so much against Japan as against the United States, especially in a confrontation over Taiwan. China ﬁrst claimed these rights in April 2004 in reply to a Japanese protest over China’s unauthorized survey of the Okinotorishima EEZ. China rejected this protest and has repeatedly violated Japan’s EEZ claim by conducting research and survey activities from 2004 to the present.

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China’s current stance is a 180° change from the past. In 1988, for example, in the Chinese military publication, , the writer profusely praised Japanese eﬀorts to protect Okinotorishima from erosion.31 Until 2004, China carefully respected Japan’s EEZ claim and applied for advance permission to conduct research activities.32 Japan has responded to China’s change of policy by monitoring and protesting all Chinese violation of the Okinotorishima EEZ. Japan has also taken steps to protect against further erosion, including the installation of titanium bars surrounded by concrete around each of the protruding islets. To guard against ship-strandings and other navigational accidents, Japan has built a radar station and plans to construct a lighthouse. In addition, Japan and the Tokyo governmental administration plan to create several possible types of economic uses of Okinotorishima: ●

●

● ●

regeneration and possible exploitation of the coral resources since Okinotorishima includes not only the islets of Kita Kojima and Higashi Kojima, but also the surrounding coral reefs;33 construction of an electric generating facility capable of using the diﬀerences in water temperature on and under the island to generate electricity;34 ﬁshing activity;35 weather observation and material testing facilities.36

The legal basis of Japan’s claim to the maritime zones surrounding Okinotorishima depends on maintaining or creating two distinct factual characteristics of this place. First, Okinotorishima must continue to protrude above the surface of the sea at high tide. There is no question that this is the case today, but whether this fact can be maintained in the future is problematic. The present elevation of the two islets at high tide is only 16 cm for Kita Kojima and 6 cm for Higashi Kojima. Sea level has risen substantially in the past century and this is expected to continue with no end in sight. It appears Japan may be ﬁghting a losing battle against the sea to maintain the islets. Even if no further erosion takes place, sea level rise may doom the islets to become only low-tide elevations or to become completely submerged. In this case Okinotorishima would lose its island status and all its maritime zones. Of course Japan could construct an artiﬁcial structure over the islets, but this would not satisfy the legal conditions of LOS Article 121(1), which deﬁnes an island as a “naturally formed area of land.” An artiﬁcial structure would ﬂunk the test of being “natural.” Thus, the idea of regenerating the coral surrounding Okinotorishima may be the key to maintaining island status. The coral beds are a natural and integral part of the area, and growing coral to

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build the height of the land above the sea at high tide appears to be the best idea. The second legal issue facing Japan is to satisfy the condition of LOS Article 121(3) that Okinotorishima is not a “rock” because it is capable of sustaining human habitation or an economic life of its own. These are two separate matters, and both need not be satisﬁed. Thus, permanent human habitation is not necessary, but some self-suﬃcient economic use is required. Furthermore, the economic use must be centered on and not merely around the island. Fishing alone therefore would not be suﬃcient unless a ﬁsh processing plant or some other economic facility were located on the island. Of the alternative proposals to create an economic opportunity on Okinotorishima, the most feasible suggestion appears to be the construction of an electrical generating facility. This plant, although it would utilize temperature diﬀerentials in the waters under and around the island, would still require a building and machinery on the island itself. This may satisfy the requirement that the island have “an economic life of its own.” Nevertheless, the implementation of this idea would require great expense without much purpose; and China would no doubt regard it as inadequate. So Japan has two choices in dealing with this problem. First, Japan can continue its present policy of maintaining that Okinotorishima is an island not a rock. This policy would mean that Japan would continue to protest unauthorized Chinese incursions into the Okinotorishima EEZ; continue steps to halt erosion; take further steps to build up the island through regeneration of the coral reef; and try to create economic value on the island through establishment of an electric generating facility. This option is highly undesirable in two respects: (1) the dispute with China will be exacerbated rather than ended; and (2) very great and unnecessary expenditure would be required. A second more preferable option would be for Japan to pass legislation declaring and designating Okinotorishima and its surrounding waters out to 200 nm as a Maritime Protected Area of special value for its coral resources and marine life. At the same time Japan should negotiate an agreement with China that: 1.

2.

China pledge to recognize Japanese sovereignty over Okinotorishima and the surrounding territorial sea as the southernmost point of Japanese territory no matter if the two protruding parts of the island are eroded to the point where they are no longer above the level of the sea at main high tide; Japan recognize China’s right of innocent passage of Chinese vessels, including naval vessels, outside the territorial waters (12 nm) of the island; and

Legal aspects of Japan’s territorial and maritime disputes

3.

45

Japan and China agree on a management plan for the marine area outside the territorial sea that puts Japan in charge of management of ﬁsheries and other marine resources, but gives China special rights to ﬁsheries resources and to conduct marine research.

The management of the area beyond the territorial sea of Okinotorishima should be delegated to a Marine Commission composed of Japanese members with expertise in the area of marine resources appointed by the Japanese government. China would have the right to send observers to the meetings of this Commission. Both countries would agree to respect the designated purposes of the Marine Protected Area—to give priority to protection of the marine environment. This solution would maximize environmental protection of valuable coral resources and associated marine life; it would recognize Japanese sovereignty over the island; and it would end the dispute. 3.7.2

Senkaku/Diaoyu Islands

3.7.2.1 The territorial claims An objective application of the law of territorial acquisition and sovereignty over the Senkaku/Diaoyu Islands favors Japan. Under all of the relevant modes of territorial acquisition, Japan’s claim appears marginally stronger than China’s; but the matter is far from free of doubt. Most relevant is the law of occupation, which presumes that the territory in question was terra nullius, land belonging to no state and therefore capable of acquisition. Under the doctrine of occupation, discovery of lands is not enough; the claimant to sovereignty must show (1) an intention to act as sovereign and (2) actual exercise of administration and authority. The acts of control necessary to prove these two elements are often termed by the French word, eﬀectivités. Japan’s eﬀectivités over the islands began in 1879 after the Japanese government established Okinawa Prefecture upon the abolition of the Ryukyu Domain. Over a ten-year period, Japan surveyed the islands and came to view them as terra nullius. In 1895 a cabinet decision was taken to incorporate the islands into Okinawa Prefecture.37 From at least 1884 Japanese nationals were using the islands as ﬁshing bases, and in 1896 the Okinawa government formerly leased certain lands on the islands to Koga Shinshiru, a Japanese citizen. Shinshiru and his descendants maintained their ﬁshing activities on the islands and purchased four of the islands from Okinawa Prefecture in 1932. In the 1930s the family constructed several buildings and docks on Uotsuri Island. In 1940, however, the Shinshiru family abandoned their enterprise

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because of ﬁnancial diﬃculties. Since 1940 the islands have not been inhabited.38 At the end of World War II, in 1945, the islands came under the administration of the United States as a result of the US occupation of Japan. Under the terms of the 1945 Treaty of Administration on the Japanese islands between Japan and the United States, the Senkaku Islands were noted to be part of the Ryukyu (Nansei) Islands belonging to Japan.39 The 1951 San Francisco Peace Treaty between Japan and the United States continued American administration under the terms of the Peace Treaty.40 In 1971 the islands were returned to Japan by the Agreement between Japan and the United States Concerning the Ryukyu and Daito Islands .41 These eﬀectivités are speciﬁc and governmental in character, and would seem to qualify under the standards set in the Status of Eastern Greenland (1933)42 and Island of Palmas (1928) cases43 to show both Japan’s intention and will to act as sovereign and the actual exercise of Japanese sovereignty. Furthermore, even if the islands were not terra nullius in the 19th century, Japan’s claim may be validated under the doctrine of prescription. During the period from 1895 to 1971, China (including Taiwan) made no objection or protest over Japan’s exercise of sovereignty, and no complaint or claim was registered by China when the islands were the subject of two international agreements between Japan and the United States. Although no speciﬁc time period is accepted in international law for the running of prescription, the open administration of the islands by Japan and the United States over 76 years without objection seems more than suﬃcient to qualify under the prescription doctrine. Japan’s claim to the islands is also supported by the doctrine of acquiescence/ recognition. It is signiﬁcant that the United States as a third state has continuously recognized, in fact has taken for granted, Japanese sovereignty. China also recognized the legitimacy of Japanese sovereignty until 1971. In 1871, when Taiwanese people killed several Japanese nationals who accidentally landed on Taiwan, China rejected the resulting Japanese protest on the grounds that it had no administrative power over the area, including Taiwan. In 1920, after Japan rescued several Chinese nationals who were accidentally stranded on the islands, China sent Japan a certiﬁcate of appreciation stipulating that the islands belonged to Japan. In addition, oﬃcial Chinese maps published as late as 1970 designate the Senkaku Islands as Japanese territory.44 China’s modern claim to the Senkaku Islands dates only from 1971, and was made only after a United Nations survey team45 found potentially rich deposits of oil and gas under the seabed around the islands. The basis of China’s claim to the islands is twofold: ﬁrst, China relies upon evidence of

Legal aspects of Japan’s territorial and maritime disputes

47

its discovery in 1372, as well as subsequent visits by Chinese ﬁshing parties and expeditions to gather herbs and other plants. China therefore denies the islands were terra nullius in the 19th century. Second, China argues that Japan acquired the islands through cession under the 1895 Treaty of Shimonoseki, which ended the Sino-Japanese War. If this is the case, Japan lost the islands in Article 2 of the San Francisco Peace Treaty, which renounced all claims to “Formosa and the Pescadores.” However, there appear to be fatal weaknesses to the Chinese claim of sovereignty over the islands. First, the basis of the Chinese claim seems to be only discovery; there is no record of any eﬀectivités—the exercise of administration or government control. Under the customary law standards set out in cases such as Island of Palmas (1928), Indonesia/Malaysia (2002), and the Minquiers and Ecrehos (1953), discovery alone is not a suﬃcient basis for a claim of sovereign acquisition. A showing of government control and administration is also required. This appears to be lacking on the part of China. Second, there is no evidence the islands were acquired by cession to Japan in 1895. The Treaty of Shimonoseki does not mention the Senkaku Islands. Moreover, they were not speciﬁcally renounced or mentioned in the San Francisco Treaty. In fact, the subsequent practice of their administration by the United States is a deﬁnitive indication that the islands were considered by all concerned to belong to the Ryukyu (Nansei) Island group. Third, China acquiesced and even on occasion recognized Japan’s sovereignty from at least 1895 until 1971, which is the critical date the dispute arose. Under the authority of the Status of Eastern Greenland Case (1933), the respective rights of the parties had already crystallized so that protests and claims after that date cannot be taken into account. Therefore, international law is on the side of Japan’s claim to sovereignty over the Senkaku Islands. 3.7.2.2 Maritime boundary delimitation In the light of the putative resolution of the territorial dispute over the Senkaku Islands in favor of Japan, the full extent of the Sino-Japanese dispute over their maritime boundary delimitation in the East China Sea can be more fully illuminated. Three maritime boundary lines may be considered as relevant: 1.

Assuming Japanese sovereignty over the Senkaku Islands, Japan could claim an EEZ of 200 nm with the islands as the baseline. This would give maximum value to Japan’s sovereign claims and extend its maritime zone far into the East China Sea. This option was in fact considered and

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rejected by the Japan Foreign Ministry when Japan ratiﬁed the UNCLOS in 1995, reportedly “to avoid upsetting China.” 2. The line Japan did submit as its EEZ claim is the median line equidistant between the Chinese coast (with allowance for Taiwan) and the Ryukyu Islands. This median line encompasses the Senkaku Islands within Japan’s claim, but they are not given full value as far as Japan’s EEZ claim is concerned. This line thus represents a political decision by Japan to forego what it would arguably be entitled to claim under international law. The maritime boundary delimitation jurisprudence would dictate that the Senkaku Islands should be given some, but not full, value in an extension of Japan’s EEZ. Full value would be 200 nm toward the Chinese coast or to the equidistant line between the Senkaku Islands and this coast. But Japan has chosen to draw its EEZ boundary giving less than full value to the Senkaku Islands. 3. China’s claim to an EEZ in the East China Sea delimits a line based on the natural prolongation of the continental shelf to the edge of the Okinawa Trough. This line maximizes the possible Chinese claim and extends China’s EEZ to close proximity to the Ryukyu Island chain. It is evident that the rival claimants in the East China Sea have taken diﬀerent initial approaches. While Japan’s claim is rather conservative, China claims the absolute maximum. What is the proper delimitation under the international Law of the Sea? As we have seen, the Law of the Sea standard in delimitation disputes is a case-by-case determination of what is “equitable.” This standard is inherently vague and is therefore ﬂexible. Not even an expert in international law can render an opinion on this maritime boundary delimitation to which all will agree. We can, however, comment intelligently on the respective claims of the parties. First, the cases on maritime delimitation decided by international tribunals favor one demarcation line for both the EEZ and the continental shelf boundaries between opposite-facing coastal states. Second, the starting point is the equidistant line between the two coasts involved. Equitable factors are used only to adjust—to shift in one direction or the other—the maritime boundary line. Considering the possible equitable factors that might be relevant in this case, several stand out: ●

China draws straight baselines along the entire length of its coastal area. A coastal state cannot use straight baselines unless the coast is deeply indented or has a fringe of islands; thus, China’s straight

Legal aspects of Japan’s territorial and maritime disputes

●

●

●

●

49

baselines, drawn to produce an exaggerated EEZ, are not valid under the Law of the Sea. According to decisions of international tribunals in delimitation cases, the Chinese reliance on the natural prolongation theory is not correct. Although natural prolongation was accepted in early cases such as the North Sea Continental Shelf Cases (1969),46 recent cases, such as the Tunisia/Libya Case (1982),47 reject natural prolongation as an equitable factor when delimiting a contested EEZ. A point in China’s favor is the comparison of the relative length of the coastlines of China and Japan in the contested area. While Japan’s coast is a line of islands, China has a lengthy continental coast facing the East China Sea. Law of the Sea cases recognize proportionality of the respective coastal areas as an equitable factor that can be the basis for a greater claim to be made by a state with a proportionately longer coastline. China’s argument in favor of a greater share of the EEZ in the East China Sea also rests on socio-economic factors: China’s coastal area has a greater population than this part of the coastal area of Japan. But socio-economic factors are not given much weight in the jurisprudence on the Law of the Sea. A point in Japan’s favor is the presence of the Senkaku Islands, if these are recognized to be Japanese territory. While small, uninhabited islands such as the Senkakus cannot be the basis for a 200-nm zone, they clearly can be given some value, as was done by the tribunals in the Jan Mayan (1993) and St. Pierre and Miquelon (1992) cases. Alternatively, the Senkaku Islands may be enclaved in a future delimitation and given their own EEZ separate from that recognized for the Ryukyus.

Thus, although the delimitation line between China and Japan in the East China Sea cannot be precisely determined from international law principles, the line should probably be the equidistant line shifted in Japan’s favor in the vicinity of the Senkaku Islands, but shifted in China’s favor in the northern part of the East China Sea. In summary, China’s claim to an extensive EEZ/continental shelf beyond the equidistance line that is the limit recognized by Japan rests on two fallacious arguments: (1) the natural prolongation idea that a coastal state may claim the entire continental shelf as a physical structure; and (2) the idea that China’s greater population and size entitles it to a larger share than Japan. However, neither of these arguments is supported in the recent jurisprudence. Although the natural prolongation theory was emphasized in the North Sea Continental Shelf Cases (1969), later cases have uniformly

50

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rejected natural prolongation as an important and special circumstance.48 Similarly, socio-economic factors such as the population, wealth or land territory belonging to each party are also disregarded as important in the cases.49 Yet China can validly claim a greater proportional EEZ than Japan based on the relative proportional length of the coastal areas of the two countries bordering on the East China Sea. 3.7.2.3 Resolving the dispute While the possible solution to the dispute under strict international law is important, the parties should as a practical matter settle the dispute through negotiations and compromise. The time to work out such a negotiated solution is, however, growing short. China is proceeding to develop the maritime resources of the East China Sea. Since 2004 China has conducted extensive exploration of the area, and, according to the Japanese Foreign Ministry, some 22 “illegal” surveys have been conducted on the Japanese side of the equidistant line. China has also established several producing gas wells in close proximity to the putative equidistance line. In response, Japan has authorized exploratory energy development projects on its side of the line. Thus, both nations are developing what is essentially the same resource, creating a potentially explosive situation that cries out for a peaceful solution. The best way to resolve this dispute is, ﬁrst, for China and Japan to agree to submit the Senkaku Islands dispute to the International Court of Justice. Once this sovereignty dispute is settled, China and Japan should declare the disputed maritime area in the East China Sea to be a Maritime Zone of Cooperative Development and Environmental Protection to be jointly managed by both China and Japan. This can be done through concluding an international treaty with appropriate joint institutions that have proper management authority over the area concerned. The purposes of such an agreement, in addition to resolving the dispute, would be: ● ● ●

joint development of oil and gas oﬀshore resources; ﬁsheries conservation and exploitation; and protection of the marine and island environments of the East China Sea.

The establishment of this cooperative regime would require China and Japan to create a new binational institutional structure to manage this area. This is not new; scores of binational and multinational management structures exist that might be used as models. At least 24 joint development petroleum agreements exist and are operating worldwide.50 A possible management structure could include a designated authority responsible for

Legal aspects of Japan’s territorial and maritime disputes

51

day-to-day administration; a joint commission responsible for regulation and policy matters; and a ministerial council with ultimate authority that would meet only once or twice a year. Each body would be composed of members, half of which would come from each country. The substantive details of this agreement would have to be ﬁlled in by the parties, but some important matters would be (1) an agreement for full sharing of information and research; (2) an agreement on the technicalities of unitization of deposits and a joint petroleum development code; and (3) an agreement on sharing of revenues and resources. Under this cooperation agreement the delimitation of the maritime boundary of the two countries could be suspended for an agreed period, perhaps for 50 years. Such a cooperative agreement would break new ground by combining environmental protection with exploitation of energy resources. 3.7.3

Takeshima/Dok Island

3.7.3.1 The territorial dispute The territorial dispute over Takeshima dates from 1952, shortly after the 1951 San Francisco Peace Treaty between the United States and Japan. South Korea asserted its claim after it became aware that, at Japan’s insistence, Takeshima was excluded from territory renounced by Japan. By acceding to this request, the United States, which had included Takeshima in the draft treaty, admitted the possibility that Takeshima was part of Japan. In response, South Korea on 18 January 1952, declared the so-called Yi Syngman Line, which formally claimed Takeshima as part of South Korea. In response, Japan took a cabinet decision on 28 January 1952, formally protesting the Yi Declaration and reaﬃrming that Takeshima was under the jurisdiction of Shimane Prefecture.51 South Korea’s claim to Takeshima has a long history. South Korea argues that historical documents recognize Takeshima as part of Korea as early as 512. At an early age the island was known as Usando ( ) and was considered to be a part of a territory known as Ullungdo. Both were also referred to by the name Usan-koku. According to Korean scholars, Usan-koku was acquired by the Korean kingdom of Shilla in 512.52 Japan’s claim to Takeshima dates from 1618, when the Tokugawa shogunate permitted the Murakawa and Ohya families to use Ullungdo including Takeshima as ports of anchorage for ﬁshing activities. By at least 1661 the Tokugawa shogunate had authorized these families to possess feudal tenure over the island.53 Their use of the area continued until 1696 when, as a result of disputes between Japanese ﬁshers and the islands’ inhabitants,

52

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the Japanese government declared the area oﬀ-limits except for Takeshima proper.54 Japan took formal action to incorporate Takeshima into Japan in 1905. On 22 February 1905, Public Notice No. 40 was published (in one local newspaper and only in Japanese) by Shimane Prefecture, formally annexing Takeshima. This action had been quietly authorized in January 190555 at a secret cabinet meeting by the central government. Apparently this was done quietly to avoid adverse reactions by other countries. There was no oﬃcial reaction from Korea, and there is no evidence that Korea was even aware of Japan’s action. At this time Japan was involved in war with Russia (the Russo-Japanese War of 1904–05). In January 1905, Japan captured the Russian stronghold of Port Arthur after a seven-month siege, and went on to win a victory at Mukden in central Manchuria. In May 1905 the Japanese navy won an historic victory when a Russian relief ﬂeet was destroyed near the island of Tsushima. Thus, the annexation of Takeshima was a relatively unimportant part of the policy of territorial expansion to the north and on the Asian mainland. In the Treaty of Portsmouth (1905) Russia ceded southern Sakhalin and Port Arthur together with its surrounding territory to Japan. As a result of its victory and the defeat of China ten years before, Korea became a Japanese protectorate and was formally annexed by Japan in 1910. The ﬁrst “critical date” in the Takeshima dispute is accordingly 1905, the date of its formal annexation by Japan. A key legal question is what was the status of Takeshima immediately prior to Japan’s action at this time? Was the island the territory of Korea or Japan? The answer to these questions depends on an analysis of the eﬀectivitiés of each country with respect to Takeshima. As stated above, neither Korea nor Japan paid much attention to Takeshima before 1905. Japan’s administrative acts beginning in the 17th century appear to be more vigorous than Korea’s administration, but Korea’s was much earlier in time. Comparing these two claims, it appears that Korea’s actions incorporating Takeshima into Shilla in the 6th century meet the standard set in the Clipperton Island Arbitration (1932). In that case the arbitrator took into account the inaccessibility and the uninhabited nature of the island to uphold the French claim despite its minimal character. This is similar to Korea’s actions concerning Takeshima. Another important factor is that two Japanese government maps published respectively in 1875 (army) and 1876 (navy) clearly show Takeshima to belong to Korea. In 1877 the government of Japan, in reply to a query from Shimane Prefecture whether Ullungdo and “one other island” (presumably Takeshima) should be included on the oﬃcial prefectural map, declared that “Ullungdo and the other island are Korean territory, and Japan has nothing to do with these islands.”56

Legal aspects of Japan’s territorial and maritime disputes

53

In addition, when the Korean government in 1900 approved Imperial Ordinance 41 designating Ullungdo as an independent county of Kangwon Province, Tokdo was mentioned apparently as “Sokdo,” and considered part of Korean territory.57 This evidence clearly favors a ﬁnding that Takeshima was Korean territory until Japan’s annexation in 1905. The next question is the eﬀect of Japan’s 1905 annexation—was this action illegal? At ﬁrst glance the annexation of Takeshima by Japan appears clearly illegal; after all, a nation cannot annex the territory of another state in secret and without permission. Takeshima was clearly not terra nullius. But Japan has always maintained up to the present that the annexation of Korea was not contrary to international law.58 In fact, the Korean government accepted the Protectorate Treaty oﬀered by Japan in 1905 as well as the Treaty of Annexation in 1910. According to this line of reasoning, Takeshima was an integral part of the territory of Japan as conﬁrmed by the Annexation Treaty of 1910, and while after World War II Japan renounced “all right, title and claim” to Korea in the San Francisco Peace Treaty, Takeshima was speciﬁcally excluded from the territory returned to Korea. Thus, Takeshima is today a part of Japan. However, this line of reasoning cannot withstand scrutiny. First, the annexation of Takeshima in January/February 1905 was separate from the process of annexation of Korea by means of the Protectorate Treaty ﬁrst and then the Annexation Treaty. The annexation of Takeshima was purely unilateral and done in secret; the Korean government certainly did not consent and was probably unaware of this action. Second, the annexation of Korea was illegal under international law norms. The treaties of protection and annexation were clearly forced on Korea. Japanese oﬃcials arranged the assassination of the Korean queen in 1895, and through military pressure installed a puppet government that was induced to dissolve the Korean army and accept annexation. Coercion of a state or its representatives is one of the grounds for invalidity of a treaty,59 and Japan’s actions at this time meet this test. A further ground for considering Japan’s annexation illegal is the international law rule that conquest is not a valid method of territorial acquisition. Although this rule was not fully in force in 1905, and Japan’s annexation was not accomplished by military means, subsequent events must inevitably be taken into account under the principle of intertemporal law as expressed by Judge Huber in the Island of Palmas Case (1928). The exclusion of Takeshima in the 1951 San Francisco Peace Treaty from territories renounced by Japan does not aﬃrm that this island belongs to Japan. The history of US post-war policy toward Japan shows that the Americans regarded Takeshima as Korean territory. Shortly after

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Peace in Northeast Asia

the Japanese surrender, on 29 January 1946, the American occupational government issued a decree, SCAPIN No. 677,60 which deﬁned the territory of Japan to exclude Takeshima as well as Ullungdo . This was the operational policy of the United States throughout the occupation.61 The draft San Francisco Peace Treaty of 1951 also listed Takeshima as territory excluded from Japan. And this provision was removed after US political adviser to Japan, William J. Sebald, lodged a protest. But there is no indication the Americans intended to incorporate Takeshima into Japan; the provision was removed only because the situation was unsettled. Moreover, Korea immediately reacted to the exclusion of Takeshima from the 1951 Peace Treaty, as stated above, by issuing the Yi Syngman Declaration of 18 January 1952, claiming Tokdo as part of the territory of South Korea. In summary, an objective analysis of the legal issues concerning the Takeshima territorial dispute yields the conclusion that this island belongs to Korea, not Japan. Although the Korean claim is relatively slight, while Japan’s claim rests on more substantial administration, Korea’s claim to Takeshima is valid based on the analogy with the Clipperton Island Case (1932), where the more substantial but later Mexican claim did not take precedence over the earlier, relatively slight actions taken by France. 3.7.3.2 Maritime boundary delimitation Under the assumption that Takeshima is South Korean territory, what are the maritime boundary implications? In 1999 Japan and South Korea established a Joint Fishing Zone in the Japan Sea including the area around Takeshima.62 However, despite this agreement, Korean army vessels now patrol the seas around Takeshima, and Japanese vessels are oﬀ-limits. Settlement of the territorial dispute should be accompanied by a new Joint Fishing Agreement that would clearly recognize Japanese ﬁshing and management rights in this area. In addition, with the settlement of the dispute over sovereignty, the maritime boundary between South Korea and Japan could be deﬁnitively established. Takeshima, as territory of South Korea, would have its own maritime zones, but since Takeshima is unquestionably only a “rock” under Article 121(3) of the UNCLOS, its maritime area would be limited to a 12-nm territorial sea and a 12-nm contiguous zone; Takeshima lacks eligibility for an EEZ. Moreover, because of Takeshima’s distance from both Japan and Korea, it would be an enclaved maritime area in the Japan Sea. If the Joint Fishing Zone were continued, recognition of Takeshima as Korean territory would have little practical eﬀect, and Japan would gain new economic rights in the disputed area.

Legal aspects of Japan’s territorial and maritime disputes

55

The deﬁnitive delimitation of the maritime boundaries in the Japan Sea, however, will require cooperative and good faith negotiations between all four of the bordering states—Japan, both Koreas and Russia. The key to a successful negotiation will be for all four states to agree on a common converging point for each of their boundaries.63 3.7.3.3 Resolving the dispute Since South Korea has long refused to submit the Takeshima dispute to the International Court of Justice or some other international tribunal, this matter can be settled only through bilateral negotiations. Several factors dictate that Japan may consent to a negotiation where the end result is renunciation of a claim to the island. First, Japan’s legal case is quite weak. If the dispute were to be submitted to a court, Japan would in all likelihood lose. Second, the stakes in play are quite minor. Takeshima has no resources other than ﬁshing, and access to ﬁshing and other economic or navigational advantages can likely be secured by Japan in the negotiation. Thus, Japan will lose little by renouncing its territorial claim; only abstract considerations of “sovereignty” and nationalism are really at issue. But these can properly be sacriﬁced in order to end a dispute that has festered for over a century and continues to poison Korean–Japanese relations. Japan may in fact reap great goodwill from Korea and countries around the world by handling this matter in a diplomatic manner. Ending this dispute may inaugurate a much-needed era of friendly relations between Japan and its closest neighbor. However, recent discussions between Japan and South Korea have failed to come to agreement on the resolution of the maritime boundary dispute because South Korea claims Takeshima/Dok Island as a base point for an EEZ claim. This claim is without justiﬁcation. Takeshima is a rock ineligible for an EEZ or continental shelf. In order to resolve this dispute South Korea should give up its claim of an EEZ in return for Japan’s concession on sovereignty. Then South Korea and Japan should agree to designate a large portion of the Japan Sea as a Zone of Cooperation and Environmental Protection. Such a zone could be managed by a Joint Commission composed of nationals of both parties. 3.7.4

The Northern Territories

3.7.4.1 The territorial dispute Japan’s dispute with Russia over the so-called Northern Territories has a tangled but interesting history. Russia and Japan both laid claim to the Kuril (or Kurile) Island chain (see Figure 7.2, Chapter 7) and parts of Sakhalin in the 18th century. These conﬂicting claims were resolved in the

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19th century by the conclusion of two agreements. First, the 1855 Treaty of Commerce, Navigation and Delimitation (known as the Shimoda Treaty) provided in Article 2 that “henceforth the boundary between the two nations shall lie between the islands of Etorofu and Uruppu. The whole of Etorofu shall belong to Japan, and the Kuril Islands lying to the north of and including Uruppu shall belong to Russia. With regard to Sakhalin Island, rather than establishing a boundary, historical precedent shall be observed.” The Shimoda Treaty therefore divides the Kurils into a northern group of 18 islands and a southern group (Minami chishima in Japanese) of two islands, Etorofu and Kunashiri. Two of the presently disputed islands, Habomai and Shikotan, were not considered part of the Kuril Islands and were considered Japanese territory. The second agreement was the 1875 St. Petersburg Treaty for the Exchange of Sakhalin for the Kuril Islands. Article 2 of this agreement eﬀects an exchange: Japan ceded its rights in Sakhalin to Russia in exchange for title in the 18 northern Kuril Islands. Under this agreement the frontier between Japan and Russia was the middle of the strait between the peninsula of Kamchatka and the northernmost of the Kurils, the island of Shumushu. This boundary settlement held until the Russo-Japanese War of 1904–05. As a result of this war, which was won by Japan, the Portsmouth (New Hampshire) Peace Treaty of 1905, Article 9, provided that Russia “cede(s) to the Imperial Government of Japan, in perpetuity and full sovereignty, the southern portion of the island of Sakhalin, and all the islands adjacent thereto. . . . The ﬁftieth degree of north latitude shall be . . . the northern boundary of the ceded territory.” So things stood until 1943, toward the end of World War II, when the Cairo Conference ﬁrst raised the question of the post-war fate of wartime territorial acquisitions. The three allies—the United Kingdom, France and United States—issued a declaration that “Japan will . . . be expelled from all . . . territories which she has taken by violence and greed.” This declaration set post-war policy on this issue. The question of the Kuril Islands was ﬁrst speciﬁcally raised at the subsequent Teheran Conference, which was attended by Joseph Stalin on behalf of the Soviet Union. US President Roosevelt was reportedly64 told incorrectly by Under Secretary of State, Sumner Welles, that the Kuril Islands had been awarded to Japan in the Treaty of Portsmouth; thus he was receptive to Stalin’s proposition that both Sakhalin and the Kurils should be awarded to the Soviet Union after the war. Next came the Yalta Conference in February 1945, only two months before Roosevelt’s death, at which the allies agreed that “the Soviet Union shall enter the war against Japan . . . on condition that . . . the Kuril Islands

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shall be handed over to the Soviet Union.” It should be pointed out that this promise by the allies to the Soviet Union is without legal eﬀect under the rules of international law. As provided in the Vienna Convention on the Law of Treaties, 1969 (customary law in 1945), Article 34: “A treaty does not create either obligations or rights for a third state without its consent.” The next relevant action was President Truman’s General Order No. 1, which came after the Japanese surrender. The ﬁrst version of this order on 15 August 1945 ordered Senior Japanese Commanders to surrender to Soviet Forces in the Far East “within Manchuria, Korea north of 38 degrees north latitude and Karafuto [Sakhalin].” On 16 August Stalin sent Truman an urgent message reminding him of the Yalta Declaration and stating that “all the Kuril Islands” must be inserted into General Order No. 1. Stalin also asked Truman to include in the “region of surrender . . . to Soviet troops” the northern portion of the island of Hokkaido. As a compromise, the ﬁnal version of General Order No. 1 issued on 23 August 1945 ordered: “all of the Kurile Islands” (but not Hokkaido) “shall surrender to the Commander in Chief of the Soviet Forces in the Far East.” Soviet troops immediately took over Etorofu and Kunashiri; during 1–4 September 1945, they also occupied the Habomai Islands and Shikotan. Moscow justiﬁed the latter move on the basis that the Habomais and Shikotan were part of the Kurils. On 20 September 1945, the Soviet Union unilaterally declared that all four islands were now Soviet territory. On 25 February 1947 language was inserted into the Soviet Constitution that the Kurils were an “integral component of the Russian Federated Socialist Republic.” The Soviet government’s annexation of the four Northern Territories was clearly illegal. First, as we have seen, the Yalta Agreement was totally incapable of aﬀecting Japan’s territorial rights. Second, General Order No. 1, even as revised to include “all of the Kurile Islands,” was not and could not have been an authorization of annexation. This order merely determined the areas where Japanese forces would surrender to the Soviets as opposed to American forces. It was not intended nor could it have any impact on territory. This is obvious when one considers that if this order did have territorial impact, the Soviets could have annexed Manchuria and North Korea as well. Third, Soviet annexation of occupied Japanese territory was contrary to international law. The Geneva Convention No. IV (1949), Article 47 (a restatement of customary international law and the Hague Convention, No. IV, of 1907, Articles 42–56), which speciﬁes the duties of an army occupation and an occupying power, prohibits “annexation . . . of the whole or part of the occupied territory.” Moreover, by expelling the Japanese inhabitants of the islands, the Soviets committed grave violations of the humanitarian laws of war.

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The most diﬃcult issue concerning the Northern Territories’ current status grows out of Article 2(c) of the 1951 San Francisco Peace Treaty signed by Japan, the United States and 47 other nations. This Article provides that: “Japan renounces all right, title, and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905.” Although Japan’s Prime Minister, Shigeru Yoshida, protested, the language was not altered. Russia argues that this provision conﬁrmed its title to at least two of the Northern Territories, Etorofu and Kunashiri. But Russia cannot claim any right to the Northern Territories ﬂowing from Article 2(c). The Soviet Union did not sign the 1951 Peace Treaty; in fact, the Soviet negotiators walked out in protest. Article 25 of the Treaty speciﬁes that “the present Treaty shall not confer any rights, titles or beneﬁts” on any allied power that does not sign and ratify it. This accords with the general international law rule that a treaty cannot create either rights or obligations for non-parties. The US government also issued an interpretation that the Japanese renunciation in Article 2 was not intended to include any of the four Northern Territories. A ﬁnal point concerns the equity of the matter; it would be a gross injustice if the Soviet Union and its successor, Russia, were permitted to use the San Francisco Treaty as a justiﬁcation of its obvious violations of the laws of war following World War II. Japan and the Soviet Union began bilateral talks in 1955 to normalize relations and to negotiate a treaty of peace. Of course, the question of the four Northern Territories loomed large in the discussions. The Soviets softened their position and were fully prepared to return Habomai and Shikotan to Japan. The Japan Foreign Ministry for its part began to prepare to accept the return of only two of the islands in return for a peace treaty. Then in August 1956 occurred the now-famous “Dulles Threat Incident.” John Foster Dulles, the US Secretary of State, at a meeting with Japanese Foreign Minister, Mamoru Shigemitsu, brought up the subject of Article 26 of the San Francisco Peace Treaty, which states: “Should Japan make a peace settlement with any state granting that state greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty.” Dulles suggested, “The Japanese might tell the Soviets that if they were forced to give up the Kuriles they would have to give up the Ryukyus as well.”65 What Dulles was saying was that if Japan gave up the Kuriles the “United States might remain forever in Okinawa.”66 Scholars still debate Dulles’ intent in making this statement. Some believe it was a threat to annex the Ryukyus;67 others, particularly Russian scholars, believe that Dulles’ intent was to derail the peace negotiations.68

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Newly declassiﬁed US government documents, however, show that Dulles’ intent was to strengthen Japan’s hand in dealing with the Soviets. This was the age of the Cold War, and US policy toward the Soviet Union was “containment.” Dulles wanted to discourage Japan from giving up on the return of Etorofu and Kunashiri Islands.69 Dulles’ ploy worked to perfection. Tokyo went back to its insistence on the return of all four islands. On 19 October 1956 Japan and the Soviet Union issued a Joint Declaration, which ended the state of war and resumed diplomatic relations, but was not a treaty of peace. The Joint Declaration stated: “The Union of Soviet Socialist Republics and Japan agree to continue . . . negotiations for the conclusion of a Peace Treaty . . . . In this connection, the Union of Soviet Socialist Republics, desiring to [sic] wishes of Japan . . . agrees to transfer to Japan the Habomai Islands and the Island of Shikotan, the actual transfer to take place after the conclusion of a Peace Treaty.” Some have argued that in signing this Joint Declaration Japan again renounced its claim to Etorofu and Kunashiri,70 but it is readily apparent this was not done. Rather, Japan simply acknowledged Russian willingness to hand over two of the islands, but insisted on the return of all four. The fact that the dispute involves all four islands— Etorofu and Kunashiri included—was admitted by Russia in 1993 when President Boris Yeltsin signed the Tokyo Declaration, which called for the resolution of the territorial issues involving all four islands. The Tokyo Declaration was followed by a bilateral summit meeting in Krasnoyarsk in 1997 at which both nations pledged to make “utmost eﬀorts” to conclude a treaty of peace by the year 2000. Of course, the situation remains deadlocked to the present time. In summary, Japan’s claim to the Northern Territories is unequivocal and clear under international law. Japan should continue to insist on the return of all four islands in talks with Russia. Japan should also enlist the international community to exert pressure on Russia to end this dispute and to sign a formal treaty of peace with Japan. 3.7.4.2 Maritime boundary delimitation If the territorial dispute over the Northern Territories is resolved, the maritime boundary question can be relatively easily resolved. The principle of equidistance appears to be quite adequate for the purpose of drawing new maritime boundaries in the area between Russia and Japan. 3.7.4.3 Resolving the dispute On the surface, it would seem quite easy to resolve this dispute considering the vast amount of territory enjoyed by Russia. However, Russian reluctance to give in stems from the fact that giving the islands back to Japan

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might induce China to ask for the return of areas along the Russian– Chinese border that the Soviets took over before and during World War II. In addition, the rich ﬁshing grounds of the Kurils provide a great proportion of the ﬁsh consumed in Russia as well as a source of revenue. Moreover, the Northern Territories may have substantial mineral wealth. Japan should pressure Russia to submit this dispute to an international tribunal. Failing this, bilateral negotiations are the only option, and Japan will undoubtedly have to oﬀer substantial economic inducement to gain the islands’ return. An alternative proposal would be for Russia and Japan to agree on the return of Habomai and Shikotan, while at the same time agreeing to declare Etorofu and Kunashiri and their surrounding waters a Maritime Protected Area to be managed by a joint commission of Japanese and Russian oﬃcials.

3.8

CONCLUSIONS

In conclusion, Japan should place a high priority on the settlement of territorial and maritime boundary disputes with neighboring countries. The existence of these disputes casts a negative spell on international relations in East Asia. All of these disputes date from the bleak period of war and unrest prior to 1945. Japan should seek to put these disputes in the past in order to concentrate on a new future in the 21st century. The disputes with China, Korea and Russia have very diﬀerent origins and involve diﬀerent political considerations. All, however, involve small islands and their surrounding maritime areas. Analysis of the legal aspects of these disputes oﬀers an opportunity for Japan and the Japanese people to evaluate their negotiating position and the chances of ultimate success. This chapter oﬀers not only an evaluation of the legal aspects of the disputes, but also suggestions on how to resolve them. The disputes between Japan and China involve islands in the East China Sea and their maritime zones. The legal position of Japan is relatively strong in these disputes. China as a rising great power is seeking to maximize its maritime position in the East China Sea. The presence of oil and gas resources in this area also leads China to assert broad claims to the area. Japan’s legal title to the Senkaku Islands is stronger than China’s claim. Japan can also control its destiny with regard to future development of Okinotorishima, the southernmost island of Japan. It is important for Japan to establish an economic facility on Okinotorishima in order to assure Japan’s maritime area on its southern border. The dispute between Japan and Korea involves Takeshima, a small, uninhabited island in the Japan Sea. Takeshima has little value or resources other

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than ﬁshing. Japan’s claim to Takeshima is based on feudal rights granted to Japanese nationals and other uses primarily for ﬁshing dating from the 17th century. Korea, however, appears to have an even older claim dating from the 6th century and the Shilla government. Japan may wish to negotiate with South Korea in order to secure economic and ﬁshing concessions in return for renouncing Japan’s claim as a gesture of peace and goodwill. The dispute between Japan and Russia over the Northern Territories has its roots in the 18th and 19th centuries when both nations explored and utilized the Kuril Islands and Sakhalin. Although various treaties established the 19th-century border between Japan and Russia, these were changed by the wars of the late 19th and early 20th centuries. At the end of World War II, the Soviet Union as an occupying power acted contrary to international law by expelling Japanese inhabitants and annexing the four northern islands into Soviet territory. Japan has a strong and unequivocal claim for the return of these islands under international law. However, Japan has little bargaining power in the matter and may have to settle for a solution that ends the dispute without unequivocal recognition of Japanese sovereignty. A part of the solution to the disputes with all three countries may well be the Joint Declaration and administration of Cooperative Zones of Economic Development and Environmental Protection. Hopefully, the resolution of these disputes will remove irritants that, while minor, impede friendly relations between Japan and its neighboring countries. The disputes should be resolved peacefully and in accord with accepted principles of international law. This may open the way to closer regional cooperation among East Asian nations and the establishment of an East Asian Community.

NOTES 1.

2. 3. 4. 5. 6. 7. 8. 9.

For example, the UN Security Council in the exercise of its powers under Chapter VII of the UN Charter determined the border between Kuwait and Iraq in 1991 after the Gulf War. See Report of the International Boundary Demarcation Commission, 32 ILM 1425 (1993). PCIJ Ser. A/B, No. 53, 3 Hudson, World Ct. Rep. 148 (1933). PCA, 2 UN Rep. Int’l Arb. Awards 829 (1928). 26 AJIL 390 (1932). ICJ Rep. (1953) 47. ICJ Rep. (2002) 90. PCA, http://www.pca-cpa.org/showpage.asp?pag_id=1056. Accessed 2 February 2008. See Brownlie (1998, pp. 152–3). 5 AJIL 782 (1911). See also the Case Concerning Kaskili/Sedudu Island (Botswana/Namibia), IJC Rep. (1999) 39; 39 ILM 310 (2000), which applied the same principle.

62 10. 11. 12.

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See Brownlie (1998, p. 127). Preah Vihear Temple Case (Cambodia/Thailand), ICJ Rep. (1962) 6. Status of Eastern Greenland Case, op. cit. Norway was also held to have recognized Denmark’s title by its actions. 13. Brownlie (1998, p. 114). 14. United States v. The Netherlands (Island of Palmas), PCA (1928) 2 UN Rep. Int’l Arb. Awards 829. 15. See Jennings (1962). 16. See Charney (1999). 17. See Roach and Smith (2000). 18. ICJ Rep. (1969) 3, 87. 19. ILC Yearbook (1956) II, 300. 20. Statute of the International Court of Justice, Article 38. 21. In addition to the North Sea Continental Shelf Cases (1969), the ICJ was called upon to decide the Continental Shelf Case (Tunisia/Libya) (1982) ICJ Rep. 18 (1982); Continental Shelf Case (Libya/Malta) (1985) ICJ 12 (1985); Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayan (Denmark v. Norway) (1993) ICJ Rep. 38 (1993); Land, Island and Maritime Frontier Dispute (El Salvador/Honduras with Nicaragua intervening) (1992) ICJ Rep. 351 (1992); Gulf of Maine Case (US/Canada) (1984) ICJ 246 (1984). In the Aegean Sea Continental Shelf Case (Greece v. Turkey) (1976) ICJ Rep. 3 (1976), the ICJ found that it lacked jurisdiction. A number of cases have also been decided by arbitral tribunals: Anglo-French Continental Shelf Case (1977), RIAA, Vol. XVIII, p. 1; Dubai/Sharjah Border Arbitration (1981), arbitral award of 19 October, International Law Reports, Vol. 91, p. 574; Guinea/Guinea Bissau Maritime Boundary Case (1985) 25 ILM 252 (1986); and the Case Concerning the Delimitation of Maritime Areas Between Canada and the French Republic (St. Pierre and Miquelon) (1992) 31 ILM 1149 (1992). 22. For a review see Colson (2003). 23. 18 ILM 421 (1979). 24. See Franckx (1996). 25. LOS Convention, Article 283. 26. Ibid., Articles 286–287. 27. Ibid., Article 298. 28. This procedure has not yet been employed, perhaps because of the ambiguity of the “reasonable time” standard. 29. For the diﬀerences and the advantages and disadvantages of each see Bilder (1987). 30. See Hiramatsu (2004). 31. Ibid. 32. Sankei Shimbun, 5 August 2001. 33. The Ministry of Agriculture and Fisheries budgeted 400 million yen in 2005–06 for this purpose. The idea to use the coral was put forth by Associate Professor Kayane Hajime of Tokyo University. See http://nippon.zaidan.info/seikabutsu/2004/00004/contents/ 0005.htm (in Japanese). 34. This idea was put forth by Professor Ikegami Yasuyuki of Saga University. See http:// nippon.zaidan.info/seikabutsu/2004/00004/contents/0017.htm (in Japanese). Accessed 8 February 2008. 35. On 31 January 2005, Ishihara Shintaro, a governor of Tokyo-to, announced Tokyoto will start ﬁshing activity around Okinotorishima (Nikkei Shimbun, 31 January 2005). 36. This is already underway. 37. See Urano (2002, pp. 14–15). 38. Ibid., p. 136. 39. Article 1. 40. Article 3. 41. Urano (2002, p. 14). 42. Supra note 8. 43. Supra note 8.

Legal aspects of Japan’s territorial and maritime disputes 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

63

The author has obtained copies of these maps and they are in the author’s possession. UN ECAFE (UN Economic Commission for Asia and the Far East), Annual Report of 1970. Op. cit. supra. Op. cit. supra. See also the Libya/Malta Continental Shelf Case (1985) ICJ Rep. (1985) 13; Tunisia/Libya Continental Shelf Case (1982) ICJ Rep. (1982) 18. See the Tunisia/Libya Case, pp. 77–8; the Libya/Malta Case, pp. 40–1; the Greenland/Jan Mayen Case, pp. 73–4 in note 21 above. Cameron (2006). See Onishi (2003, pp. 93–110). See Shin (1997, p. 25). See Kawakami (1996, pp. 70–82). Ibid., pp. 92–3. The cabinet decision notes that Takeshima is “an uninhabited island that had no traces of ownership by any country.” See Shin (1997, p. 147). Ibid., pp. 101–5. Ibid., pp. 132–42. See the statement of Prime Minister Tomiichi Murayama to the Diet, 11 October 1995 as reported in the International Herald Tribune, 12 October 1995, p. 4. Vienna Convention on the Law of Treaties, Articles 51–2. SCAPIN No. 677 (Supreme Commander for the Allied Forces [SCAP] Instruction) provides islands’ names which will exclude them from Japanese territory, as follows: (a) Utsuryo (Ullungdo) Island, Liancourt Rocks (Take Island) and Quelpart (Saishu or Cheju) Island. For example, SCAPIN No. 1033 reads as follows: “1(b) Japanese vessels or personnel thereof will not approach closer than twelve (12) miles to Takeshima (37°15 North Latitude, 131°53 East Longitude) nor have any contact with said island.” See Sun (2004, pp. 253–67). Kim (1997). See Rees (2003, pp. 61–2). US Department of State (1955–57). Ibid. See Vishwanathan (1973). See Markov (1996). See Elleman, Nichols and Ouimet (1998–99, p. 489). See Clarke (2005, p. 23).

BIBLIOGRAPHY Bilder, Richard B., “International Dispute Settlement and the Role of International Adjudication” in Lori Damrosch (ed.) International Dispute Settlement at the Crossroads, p. 155. Brownlie, Ian (1998), Principles of Public International Law, 5th edition, Oxford: Clarendon Press, pp. 152–3. Cameron, P. (2006), “The rules of engagement: developing cross-border petroleum deposits in the Porth Sea and the Caribbean”, International and Comparative Law Quarterly, 55(3): 559–86. Charney, Jonathan, I. (1999), “Rocks that cannot sustain human habitation”, American Journal of International Law, 93: 861. Chee, Choung Il (1997), “Legal status of Dok Island in international law”, Korean Journal of International and Comparative Law, 25(1).

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Clarke, Gregory (2005), “Northern territory dispute highlights ﬂawed diplomacy”, Japan Times, 16 April. Colson, David A. (2003), “The delimitation of the outer continental shelf between neighboring states”, American Journal of International Law, 97(2003): 91. Elleman, Bruce A., Michael R. Nichols and Matthew J. Ouimet (1998–99), “A historical reevaluation of America’s role in the Kuril Islands dispute”, Paciﬁc Aﬀairs, 71(4): 489–504. Fern, Sean (2005), “Tokdo or Takeshima? The International Law of Territorial Acquisition in the Japan–Korea Island Dispute”, Stanford Journal of East Asian Aﬀairs, 5(1): 78–89. Franckx, Erik (1996), “Finland and Sweden complete their maritime boundary in the Baltic Sea”, Ocean Development & International Law, 27(1996): 291–314. Hiramatsu, Shigeo (2004), “Okinotorishima wo meguru nihon to shugoku no hunso”, Mondai to Kenkyu, 7(2004): 44–57. Jae-Hyung, Lee (2002), “China’s expanding maritime ambitions in the Western Paciﬁc and the Indian Ocean”, Contemporary Southeast Asia, 24(2002): 549–68. Jennings, R.Y. (1962), The Acquisition of Territory in International Law, Manchester/New York: Manchester University Press/Oceana. Kawakami, Kenzo (1996), Takeshima no Chirigakuteki Kenkyu, Tokyo: Kokon Syoin. Kim, Young-Koo (1997), “Maritime boundary disputes in Northeast Asia”, Korean Journal of International and Comparative Law, 25(1997): 49. Markov, A.P. (1996), Rossiia–Iaponiia v poiskahk soglassiia (Russia–Japan in Search of Agreement), Moscow: Russkiy Mir. Morgan, Joseph and Mark J. Valencia (eds) (1992), Atlas for Marine Policy in East Asian Seas, Berkeley, CA: University of California Press. Ohnishi, Toshiteru (2003), Nihonkai to Takeshima, Tokyo: Toyo syuppan. Rees, David (1985), The Soviet Seizure of the Kuriles, New York: Praeger. Roach, Ashley J. and Robert W. Smith (2000), “Straight baselines: the need for a universally applied norm”, Ocean Development & International Law, 31(1): 47–80. Shin, Yong-Ha (1997), Korea’s Territorial Rights to Tokdo: A Historical Study, Tokdo Research Association. Sun, Pyo Kim (2004), Maritime Delimitation and Interim Arrangements in Northeast Asia, The Hague: Nijhoﬀ. Unryu, Suganuma (2000), Sovereign Rights and Territorial Space in Sino-Japanese Relations: Irredentism and the Diaoyu/Senkaku Islands, Honolulu: Association for Asian Studies, University of Hawaii Press. Urano, Tatsuo (2002), Senkakusyoto, Ryukyu, Chugoku, Tokyo: Sanwa Syoseki. US Department of State (1955–57), Foreign Relations of the United States 1955–57, Vol. 23, Part 1, pp. 202–3. Vishwanathan Savitri (1973), Normalization of Japanese–Soviet Relations 1945– 1970, Tallahassee: The Diplomatic Press.

4.

Options for dispute settlement Michael Hahn1

This chapter presents, in a nutshell, the procedural avenues available under international law to settle by peaceful means the disputes2 between Japan and its neighbors.3 Given that the major actors in these disputes have been (and, as shall be seen, remain) highly reluctant to use adjudication, either through binding arbitration or procedures before international courts and tribunals, the following discussion shall also include diplomatic procedures.4 In fact, from the perspective of general international law, it is fair to say that diplomatic solutions are the “normal” approach for sovereign states, as “no state can, without its consent, be compelled to submit its disputes . . . to arbitration, or any other kind of paciﬁc settlement.”5 Indeed, the Permanent Court of International Justice (PCIJ) described proceedings before it as merely “an alternative to the direct and friendly settlement of such disputes between the parties.”6 Given that maritime delimitations have been appropriately characterized as a “legal-political operation”,7 the importance of “non-lawyerly” methods is worth emphasizing.8 Thus, for example, the Charter of the United Nations (Charter hereafter) does not address the issue of interstate dispute resolution by encouraging the use of its main judicial organ in The Hague, but rather commands that all Member states “shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.”9 While hope might be voiced that the disputes in question do not precisely fall under Article 33 Charter,10 that provision establishes the duty of all Members to seek solutions by “negotiation, inquiry, mediation, conciliation, arbitration judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice.” The Friendly Relations Declaration of 197011 underlines that duty for any kind of dispute. The identical lists of options in both Article 33 Charter and in the Friendly Relations Declaration exclude only one option: the use of force. Given the history of this region and the fact that some of the major military powers in the Paciﬁc have interests at stake, including the interest to protect operational freedom for their naval forces,12 this exclusion is worth emphasizing. It is an encouraging aspect that several parties to the disputes have been prepared to advance along this path with regard 65

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to other disputes related to the South China Sea,13 and to aspects of the disputes analyzed further in this volume.14 Given the institutional void in East Asia with regard to dispute settlement mechanisms, particular attention will have to be paid to the United Nations Convention on the Law of the Sea (UNCLOS),15 which has been ratiﬁed by China, Japan, the Republic of Korea and Russia. UNCLOS provides for a comprehensive16 and, in principle, mandatory dispute settlement mechanism. Thus, all state parties to UNCLOS that are involved in disputes on the delimitation of maritime boundaries are bound not just by UNCLOS’ substantive rules (discussed elsewhere) but, in addition, by the procedural rules.17 Article 279 UNCLOS, restating the state of play of general international law for intra-systemic purposes, commands that: State parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3 of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.

While this is clearly not an obligation of result—parties only promise that they will seek a solution—it is more than an undertaking to make pro forma moves. All obligations between states are to be performed in good faith; this is also true for obligations deriving from an international treaty (Articles 26, 31 Vienna Convention on the Law of Treaties [VCLT]) and speciﬁcally for obligations contained in UNCLOS (see Article 300 UNCLOS).18 Thus, it is fair to say that a failure to undertake in good faith and in earnest a peaceful solution to the disputes analyzed elsewhere would be a violation of general international law obligations and, if applicable, UNCLOS obligations. As such, it would constitute an internationally wrongful act. To the extent UNCLOS was applicable, such refusal to seek an amicable solution in good faith would fall under the provisions of Part XV of UNCLOS and could therefore ultimately be challenged before a third-party binding dispute settlement procedure, as the exception contained in Article 298 (and examined elsewhere) would not apply. While it would be naive to assume that this would be an easy path, it is also clear that counsel on both sides will have to advise against obvious refusals to engage in meaningful eﬀorts to achieve an amicable solution, if only to avoid a politically costly pertinent declaratory judgment.

4.1

APPLICABLE PROCEDURAL LAW

Under general international law the means listed in Article 33 Charter— negotiation, inquiry, mediation, conciliation, arbitration judicial settlement,

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resort to regional agencies or arrangements, or other peaceful means of their choice—can be freely chosen by states: the order in which Article 33 Charter lists the diﬀerent means to settle disputes does not prescribe a mandatory sequence of steps. However, negotiations are unavoidably the ﬁrst step in any peaceful resolution of an international dispute: even if the parties share the wish to submit a dispute to binding third-party dispute settlement procedures, negotiations will necessarily be the very ﬁrst step, even if those negotiations only deal with the details of the desired arbitral or judicial procedure ahead. However, some international agreements, such as the WTO Agreement and, more relevant here, UNCLOS, do prescribe negotiations as a mandatory ﬁrst step in discharging the duty to settle interstate disputes peacefully. Thus, it seems appropriate to visit the sources of procedural law applicable to the disputes in question. 4.1.1

UN Charter and Statute of the International Court of Justice

What is called Law of Maritime Delimitation is, by and large, a rather recent creation: the consolidated pertinent case law of the International Court of Justice (ICJ) since the 1969 North Sea Continental Shelf Cases.19 Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice (Statute hereafter).20 However, only Japan has recently accepted the jurisdiction of the Court in accordance with Article 36, paragraph 2 of the Statute,21 accepting the Court’s jurisdiction for disputes “arising on or after 15 September 1958” and making its acceptance of the Court’s jurisdiction dependent on a reciprocal commitment of opposing parties. Of course, the Court’s jurisdiction might, in accordance with Article 36:1 of the Statute, be created due to a referral in another international treaty or a special agreement by which parties consent to the jurisdiction of the Court.22 4.1.2

United Nations Convention on the Law of the Sea 1982

UNCLOS contains a very elaborate regime for the peaceful settlement of disputes, laying down not just avenues to three diﬀerent third-party binding decision-making bodies, but also addressing the “soft options” preceding and hopefully replacing them. Part XV Section 2 UNCLOS (Articles 286–296) sets up a comprehensive regime for the settlement of disputes, comparable with other modern and highly successful international dispute settlements. Part and parcel of this development is the creation of the specialized International Tribunal for the Law of the Sea (ITLOS),23 whose

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jurisdiction, however, is not exclusive. Rather, the parties have the choice between ITLOS, the ICJ and—as a default choice—international arbitration. If parties to a dispute have not expressed a preference (and most states have not)24 or have expressed non-identical preferences, UNCLOS mandates that the smallest common denominator, that is, binding arbitration, kicks in. With certain exceptions, most notably Japan’s dispute with Russia over the Kuriles (or Kurils), the main reason for most disputes analyzed here is access to and control over the sea and exploitation of the continental shelf. Nevertheless the “hook” for the majority of these claims is the alleged or disputed sovereignty over islands, islets or rocks. Thus, there is an argument for excluding such mixed disputes—dealing with both maritime delimitation and the sovereignty over islands or rocks—from the realm of UNCLOS’ chapter on dispute settlement.25 Such an argument does not, however, withstand closer scrutiny: the question of delimitation of zones of inﬂuence and control over maritime areas is inseparable from the determination of sovereignty over terra ﬁrma and its status (island or rock). The substantive law determining maritime delimitation always emphasizes sovereignty over territory: the very concepts of territorial sea, EEZ and preferential access to the continental shelf refer back to the deﬁnition of who is the sovereign of the adjacent coast in question. Thus, when determining the delimitation of potentially competing claims over maritime areas (see, e.g., Articles 15, 74 and 83 UNCLOS) rocks and islands must necessarily be included. Thus, it is fair to say that all issues of sovereignty over land that are linked or ancillary to questions of maritime delimitations fall in principle under Part XV UNCLOS on dispute settlement.26 This conclusion is further mandated by the provision of Article 298 UNCLOS, which states that in the case of a (possible) declaration excluding jurisdiction of binding third-party dispute settlement bodies, the automatic referral to the second-best solution of mandatory conciliation does not include cases and controversies “that necessarily involve . . . the concurrent consideration of any unsettled dispute concerning the sovereignty or other rights over continental or insular land territory.” While the Convention thus pays tribute to the fact that territorial disputes touch upon vital interests of Members by exempting them from procedures aﬀecting their sovereignty, UNCLOS also makes abundantly clear that the issues of maritime and territorial delimitation are, as a matter of course, to be considered as a single complex. This approach is also supported by ancillary considerations such as judicial (and diplomatic) eﬃciency.27 In the Southern Blueﬁn Tuna Cases (1999), ITLOS accepted the view that the applicability of UNCLOS’ dispute settlement provisions applied despite the fact that the substantive law to be applied was not exclusively determined by UNCLOS provisions

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but also rather, by the Convention on the Conservation of Southern Blueﬁn Tuna.28 4.1.3 Special Agreements, Peace Treaties, Treaties of Friendship, Commerce and Navigation. . . Of course, Japan and its neighbors can and should, provided they will not be able to solve the matter through direct negotiations, set up a customtailored special agreement. Given the history of mutual skepticism towards submitting state sovereignty to a third party’s verdict, one would expect that any acceptable procedure would put a premium on conﬁdentiality and on a modus that—at least pro forma—would leave the ultimate responsibility to the sovereign nation-states involved. Maybe a WTO minus procedure29 could serve as a starting point: a court-like panel of independent jurists could submit a proposal that would quasi-automatically transform into a binding decision, unless (all?) parties were to reject the proposal.

4.2 THE DIFFERENT METHODS OF DISPUTE SETTLEMENT 4.2.1

Negotiations

Negotiations are a “ﬂexible and eﬀective means of peaceful settlement” of disputes.30 Their major strength—direct involvement of the parties, ﬂexibility and secrecy—is, of course, also their major weakness: there is no externalization of costly decision-making: whenever a position is given up, the ensuing “loss” can be attributed to individual negotiators who are typically answerable to their hierarchy and, ultimately, to their government. This full internalization of costs typically entails a stiﬂing eﬀect. As a matter of fact, sometimes even as a matter of law, states sometimes counter that systemic weakness by putting high-level negotiators in charge, sometimes even at the ministerial or government level.31 Article 283, paragraph 1 UNCLOS speciﬁes: “When a dispute arises between State Parties concerning the interpretation or application of this convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiations or other peaceful means.” As one of the purposes of the Convention is to contribute to the maintenance of peace and justice, it would seem appropriate not to give a narrow reading to this provision: thus, for the purposes of Article 283 UNCLOS, a dispute would “arise,” when and if a state party would notify a fellow state party that, based on the applicability of UNCLOS, it held a

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divergent view of what the relevant maritime delimitations are or should be. The fact that some of these disputes have been occupying the energy of foreign ministries and naval forces headquarters for decades, if not centuries, should not pre-empt UNCLOS to make that contribution to peace and stability in ocean-related matters. The only systemic argument against such a view that comes readily to mind would be the possible encroachment on the sovereignty of the state parties by creating an artiﬁcial acceptance of, albeit weak, dispute settlement provisions, when in reality that was not on the mind of state parties. However, in the context of Article 283 UNCLOS this argument seems hardly tenable: the potential infringement on state sovereignty is minimal, while the potential beneﬁts can be huge. It is interesting to note that the ITLOS has accepted the view that an exchange of correspondence relating to the dispute under UNCLOS would be suﬃcient to meet the requirements of Article 283 UNCLOS.32 Once negotiations have started, Japan and its neighbors are under an obligation, both under UNCLOS and general international law, to negotiate in good faith. The ICJ described that process as “not merely . . . a formal process of negotiations as a sort of prior condition” but rather as an “obligation so as to conduct themselves so as the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modiﬁcation of it”:33 in the German External Debts Case (1972), the arbitral tribunal emphasized that the legal duty to negotiate implied “that serious eﬀorts” will be made to achieve a meaningful result.34 4.2.2

Negotiations Involving Good Oﬃces and Negotiations

Of course, parties may avail themselves of a third party that could support the parties to ﬁnd ways and means to reach a mutually satisfactory solution. However, despite the ancient institutions of good oﬃces and mediation, reﬂected in the Hague Conventions of 1899 and 1907 and a rich history of successful involvements of third parties,35 there are not many indications that point at a pertinent interest by Japan and its neighbors. Nevertheless the fact that the UN Secretary-General, Presidents of Courts and other august personalities have in the past contributed to solutions with advice and mediation may serve as an inspiration.36 A method of dispute settlement often mentioned in this context is Commissions of Inquiry.37 However, in the present context it seems unnecessary to address them separately. Third-party fact-ﬁnding and determination in bilateral relationships38 has in the past only played any importance in accident-type situations: the classic case is the Dogger Bank Incident (Permanent Court of Arbitration, 1906), which is often quoted as

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a starting point for the move from fault-based liability to objective liability. As cases like the ones under discussion do not suﬀer from a lack of access to information but rather from diﬀerences in evaluating it, it seems a fair assumption that Japan and its neighbors will not resort to Commissions of Inquiry. 4.2.3

Third-party Conciliation

Third-party conciliation involves a third party—be it an individual or a plurality of personalities—in examining the factual and legal aspects of a dispute and proposing a settlement. To what extent the parties are involved in that process, thus infusing the process with negotiation elements (and making it hardly distinguishable from the prior category), is completely up to the parties. Conciliation attracted a lot of scholarly attention between the two World Wars, not least due to an emergence of conciliation clauses in a number of bi- and multilateral treaties, without them being used as often as one had expected when drafting the pertinent provisions.39 The following precedent might encourage the parties to choose that route: Iceland and Norway chose a conciliation procedure to solve their dispute over the continental shelf delimitation between Iceland and Jan Mayen in which conciliation procedures and negotiations were conducted in parallel.40 The conciliation agreement emphasized the non-binding character of any report. In this spirit of search for an amiable solution, the Commission, taking notice of the pertinent international jurisprudence, proposed a Joint Development Zone, thus clearly going beyond what could have been mandated in a decision. The fact that this outside-the-box proposal was accepted by the parties highlights the beneﬁcial potential for unconventional dispute settlement procedures. In this sense, conciliation might be an option worth considering for Japan and its neighbors. 4.2.3.1 Article 284 UNCLOS (Part XV Section 1—“Settlement of Disputes. General Provisions”) Article 284 UNCLOS, which is not aﬀected by the declarations under Article 298 UNCLOS of China, the Republic of Korea and Russia,41 opens an avenue to this potentially promising method, which could be customtailored to accommodate the pronounced political and cultural sensitivities that have contributed to the failure of reaching an amicable solution so far. The provision reads: 1. A state party which is a party to a dispute concerning the interpretation or application of this convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure.

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Peace in Northeast Asia 2. If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure. 3. If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated. 4. Unless the parties otherwise agree, when a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure.

The strong emphasis put on state consent becomes even more obvious when reading Annex V: Article 1 [Institution of Proceedings] If the parties to a dispute have agreed, in accordance with article 284, to submit it to conciliation under this section, any such party may institute the proceedings. . . Article 5 [Amicable Settlement] The commission may draw the attention of the parties to any measures which might facilitate an amicable settlement of the dispute. Article 7 [Report] 1. The commission shall report within 12 months of its constitution. . . . 2. The report of the commission, including its conclusions or recommendations, shall not be binding upon the parties.

While Article 7, paragraph 2 re-emphasizes the point that the conciliation report will be non-binding, it is also clear that if the standard procedure was to be applied there would be a certain pressure on the parties to accept the proposal, as the report is made at least partially public by being mandatorily deposited with the Secretary-General of the United Nations.42 It would be surprising if that was a viable option for Japan and its neighbors; rather, it would seem likely that procedures either guaranteeing conﬁdentiality or, to the contrary, providing transparent procedures would be preferred by the parties in question. 4.2.3.2 Compulsory submission to conciliation procedure according to Annex V, Section 2 UNCLOS (“pursuant to Section 3 of Part XV UNCLOS”) Other than conciliation under Part XV, Section 1 UNCLOS (and speciﬁcally Article 284), Japan and its neighbors could ﬁnd themselves bound to enter into conciliation, as a consequence of one of the parties to the dispute asking for the initiation of the mandatory dispute settlement procedures under Part XV, Section 2 UNCLOS (Articles 286–296).43 Such mandatory conciliation is UNCLOS’ second-best substitute for these procedures if and to the extent that they are exceptionally excluded as a consequence of the parties’ right to opt out of the system: three parties to the disputes—China, the Republic of Korea and Russia—have made declarations that they do not accept dispute settlement for disputes listed in

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Article 298, paragraph 1(a) UNCLOS.44 This would entail the obligation of the parties to accept mandatory conciliation pursuant to Section 2 of Annex V of UNCLOS (Articles 11–14).45 Article 298 UNCLOS provides that state parties to UNCLOS may declare in writing that they do not accept any of the binding dispute settlement mechanisms provided for in Section 2 with respect to: (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2.

Thus, UNCLOS, while creating an optional safety valve for disputes typically aﬀecting vital interests of states oﬀers a mandatory substitute that does encroach substantially less on state parties’ sovereignty: the mandatory conciliation procedure contained in Annex V, Section 2: Article 11 Institution of proceedings 1. . . . 2. Any party to the dispute, notiﬁed under paragraph 1, shall be obliged to submit to such proceedings. Article 12 Failure to reply or to submit to conciliation The failure of a party or parties to the dispute to reply to notiﬁcation of institution of proceedings or to submit to such proceedings shall not constitute a bar to the proceedings. Article 13 Competence A disagreement as to whether a conciliation commission acting under this section has competence shall be decided by the commission.

Article 298, paragraph 1 UNCLOS contains an exception from the exception, which applies here: “[A]ny dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission.” The disputes in question involve that most sensitive category, which UNCLOS’ signatories excluded completely (including the substitute) from any mandatory dispute settlement mechanism, thus highlighting the reluctance of sovereign states to submit this category of disputes to third-party binding dispute settlement. Thus, conciliation procedures between Japan and its neighbors will take place only if prior consent to submit the disputes in question has been established.

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4.2.4 Binding Dispute Settlement through the ICJ, ITLOS or an Arbitral Tribunal 4.2.4.1 The International Court of Justice46 As all Members of the United Nations are at liberty to agree any time to submit a dispute to the Court, the disputes could be submitted to the Court through three avenues: ﬁrst, by an ad hoc agreement between parties to the dispute, in which the parties could leave it to the Court to decide their dispute or any factual or legal aspect of such dispute. For all practical purposes, they could determine the bench that would sit upon the judgment, a practice that has proven extremely successful among state parties. The second avenue, a declaration under Article 36:2 of the Statute is foreclosed, as only Japan has made such a declaration.47 Finally, the parties being Members of UNCLOS could have declared the ICJ their preferred option for mandatory dispute settlement. In Article 287 UNCLOS the choice of procedure is regulated: 1. . . . a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea . . .; (b) the International Court of Justice; (c) an arbitral tribunal constituted . . .; (d) a special arbitral tribunal . . . . 4. If the parties to a dispute have accepted the same procedure . . . it may be submitted only to that procedure, unless the parties otherwise agree. 5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.

Japan, China and the Republic of Korea have made no choice under Article 287:1 (a)–(d) UNCLOS, the latter two having availed themselves of the possibility of excluding binding third-party dispute settlement under Article 298 UNCLOS; Russia has made a choice under Article 287 UNCLOS that does not include the ICJ. Thus, according to Article 287:5 UNCLOS a special agreement would be required to deviate from the predetermined default option, arbitration in accordance with Annex VII. 4.2.4.2 The International Tribunal for the Law of the Sea Only one state, the Russian Federation, has expressed a preference for ITLOS, and this only with regard to matters relating to the prompt release of detained vessels and crew.48 Thus, the ITLOS is not competent to hear cases brought by the parties to the disputes analyzed in this book, unless by special agreement.49

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4.2.4.3 Arbitration Under Article 287:5 UNCLOS, the default choice for disputes between parties is an arbitral tribunal constituted in accordance with Annex VII. However, Japan’s disputes with its Northeast Asian neighbors will not be heard under Article 287:5 UNCLOS by an arbitral tribunal, such as the Permanent Court of Arbitration,50 if Section 2 of Part XV UNCLOS (setting up the mandatory dispute settlement mechanism) is not applicable. The two most pertinent intra-systemic exceptions and limitations to the applicability of UNCLOS’ general dispute settlement mechanism can be found in Section 3 of Part XV, in particular Articles 297 and 298. Article 297 deals with certain categories of disputes that are per se not subject to the normal dispute settlement regime.51 To the contrary, Article 298 is squarely applicable. According to paragraph 1, a state may, without prejudice to the obligations arising under Section 1, declare that it does not accept the procedures provided for in Section 2 with respect to certain enumerated categories of disputes. China, the Republic of Korea and Russia have done so, the former as late as 2006.52 They have all opted for a full usage of the optional clause. Thus, they have in particular taken advantage of Article 298:1 (a) (1) and (b), which read: (a) (1) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; ... (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.

Under these circumstances, the states having made these declarations are free from being subjected to a third-party arbitral dispute settlement mechanism. In addition, they are barred from bringing a case under these provisions against any other party that has not taken advantage of the optional clause of Article 298 UNCLOS. Having said that, UNCLOS restates the position of general international law: states are at any time and under any circumstance at liberty to agree

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on submitting a dispute to a binding decision by the judicial and quasijudicial bodies mentioned in Article 287 UNCLOS. Article 299 speciﬁes: 1. A dispute excluded under article 297 or excepted by a declaration made under article 298 from the dispute settlement procedures provided for in section 2 may be submitted to such procedures only by agreement of the parties to the dispute. 2. Nothing in this section impairs the right of the parties to the dispute to agree to some other procedure for the settlement of such dispute or to reach an amicable settlement.

Thus, Article 298 UNCLOS clearly highlights that maritime delimitations were considered too sensitive by state parties to be irrevocably subject to binding third-party dispute settlement.53 The emphasis on the will of the state parties is therefore not just de facto but de jure—cf. Article 299 UNCLOS—the key to bringing the dispute before a court or tribunal.

4.3

CONCLUSION

Not surprisingly, this tentative tour d’horizon has come up with the recognition that Japan and its neighbors will not be able to externalize the political costs for a solution to their disputes. Rather, they will have to come up with on their own a solution to the dispute or at least agree on a third-party dispute settlement procedure, knowing full well that the outcome might be less than desirable for one of the parties. Then again, the costs of not ﬁnding a solution are without any doubt higher than a less than fully satisfactory amicable solution. If politics in the region are a rational exercise, some of the abovesketched procedures will receive closer attention by pertinent decisionmakers. In that, Japan and its neighbors should be motivated by the recognition that there is no alternative to a negotiated solution: the competencies of the United Nations Security Council, while on paper54 considerable, particularly under Chapter VI of the Charter (Articles 33ﬀ), are, for all practical purposes unhelpful, given that two of the ﬁve Permanent Members are parties to the disputes and that the other Members will be highly reluctant to allow the use of Chapter VI to pursue one-sided, hegemonical policies.

NOTES 1.

Professor of Law, University of Waikato Law School, Hamilton, New Zealand, [email protected]; Visiting Professorial Fellow (2008), University of New South

Options for dispute settlement

2. 3. 4. 5. 6. 7.

8. 9. 10.

11. 12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22.

23. 24.

77

Wales Law School, Sydney, Australia. Sincere thanks are due to Karin Oellers-Frahm and Alberto Costi. For a deﬁnition of “dispute” see Brownlie (2003, pp. 449ﬀ). See generally Oellers-Frahm and Zimmermann (2001); Zimmermann, Tomuschat and Oellers-Frahm (2006). For more speciﬁc information on Japan’s disputes, see Lee (2002, p. 63); Allcock et al. (1992, pp. 438–9, 497–519); Colson (1998); Price (1993, p. 395). This is in line with the tradition of international law textbooks; see, for example, Shaw (2003, Chapter 18, pp. 914ﬀ). Status of Eastern Carelia, Adv. Opinion, PCIJ Ser. B, No. 5 (1923), 19. Free Zones of Upper Savoy and the District of Gex Case, PCIJ Ser. A, No. 22 (1929), 13. Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Rep. (1984), 246, 56. See in this context the China–ASEAN Declaration on the Conduct of Parties in the South China Sea, 4 November 2002, available at www.aseansec.org/ 13163.htm. See Merrills (1998, pp. 24ﬀ); de Waart (1973); Rogoﬀ (1994, pp. 141ﬀ). Article 2:3 Charter. Article 33 Charter reads: “(1) The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, ﬁrst of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. (2) The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means” (emphasis added). It is to be hoped that the disputes are not of the quality referred to in Article 33, paragraph 1. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, GA Res. 2625 (XXXV), adopted by the UN General Assembly without a vote on 24 October 1970. See Schoenbaum (2006, p. 197). An unoﬃcial English text of the Boundary Agreement is found in Keyuan (2005, pp. 22–4). Sun (2004, passim); see in that context Gao (2006, p. 748) (in Chinese) as summarized by Ju (2007, p. 515). United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397, ILM 21 (1982), 1261. Boyle (2005, p. 563). Cf. Treves (2006, p. 63). “State Parties shall fulﬁl in good faith the obligations assumed under this Convention”; concerning the importance of negotiations in good faith see Case Concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovak Republic), judgment of 25 September 1997, ICJ Rep. (1997), 7, 78f quoting its decision in the North Sea Continental Shelf Cases (1969). North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark), (Federal Republic of Germany/Netherlands), ICJ Rep. (1969), 3ﬀ; see comprehensively Kwiatkowska (2002) and Lucchini (2006, pp. 1–18). According to Article 93 Charter; the Statute is inter alia published at www.icj-cij.org. See the Japanese declaration of 9 July 2007, published at the ICJ’s website www.icjcij.org. Article 36:1 Statute: this, of course, leaves the door open for future agreements on the Court’s jurisdiction; an example for an ad hoc agreement can be found in the Minquiers and Ecrehos Case (France/UK), ICJ Rep. (1953), 47. Interestingly, the parties concluded their compromis (see Oellers-Frahm (2001) despite them both having accepted jurisdiction under the optional clause. Established in accordance with UNCLOS Annex VI. For the full texts of the declarations submitted by China, the Republic of Korea and the Russian Federation, see http://untreaty.un.org/ENGLISH/bible/englishinternetbible/ partI/chapterXXI/chapterXXI.asp, accessed 11 February 2008; cf. also the overview at http://www.un.org/Depts/los/settlement_of_disputes/choice_procedure.htm, accessed

78

25. 26.

27. 28. 29. 30. 31.

32.

33. 34. 35. 36.

37.

Peace in Northeast Asia 11 February 2008, “Settlement of disputes mechanism under the Convention: Choice of procedure under article 287 and optional exceptions to applicability of Part XV, Section 2, of the Convention under article 298 of the Convention.” Part XV, Settlement of Disputes, Articles 279–299 UNCLOS. In this sense also see the very distinguished ITLOS Judge Tullio Treves in Treves (2006, pp. 63 and 71ﬀ). The ITLOS has been underused in the ten years of its existence—legal advisors in foreign ministries tend to speak of the “Court of prompt release and provisional measures” when they refer to ITLOS, thus alluding to the rather pedestrian legal problems having found their way to Hamburg. Meanwhile, the ICJ’s primary function in the last 20 years seems to have become the further development of the law of maritime delimitations (and not being a World Court). While the argument in favor of ITLOS jurisdiction might thus also be motivated to present the quick and eﬃcient ITLOS procedure as an alternative to the Hague Court, the merits of the arguments are not aﬀected. See statement by H.E. Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea to the Informal Meeting of Legal Advisers of Ministries of Foreign Aﬀairs, New York, 23 October 2006, pp. 5f. Southern Blueﬁn Tuna Cases (New Zealand v. Japan; Australia v. Japan) (1999), http://www.itlos.org/case_documents/2001/document_en_116.pdf, paragraph 51, 56, accessed 21 November 2007. Cf. Klein (2005, p. 65). Of course the WTO’s procedure itself draws on the rich history of international dispute settlement mechanisms. See paragraph 10 of the operative part of the Manila Declaration on the Peaceful Settlement of International Disputes, GA Res. 37/10, http://www.un.org/documents/ga/ res/37/a37r 010.htm. Accessed 11 February 2008. See, for example, the institutional set-up in the European Union in which major changes need, more often than not, the input of heads of states and governments: the practice of summits between the heads of states and governments of the Member states of the European Communities (practiced since 1974) has been institutionalized in Article 4 of the Treaty on the European Union, creating the European Council as an über-council. See also Article IV, paragraph 1 WTO Agreement (“a Ministerial Conference . . . shall meet at least once every two years”). Johnston (1988, pp. 262f) lists 11 diplomatic options regarding maritime delimitations: Do-nothing Policy, Agreement to Disagree, Agreement to Designate, Agreement to Consult, Agreement of Access, Preliminary Joint Enterprise Policy, Operational Joint Development Policy, Agreement on Sharing Services, Agreement on Limited Joint Management Arrangements, Agreement of Permanent Joint Management, Final Boundary Treaty. The Mox Plant Case (Republic of Ireland v. United Kingdom of Great Britain and Northern Ireland) (2001), Case No. 10—Request for Provisional Measures, paragraph 56f; the Order of the Tribunal can be accessed on the ITLOS website at http://www.itlos.org. See Forster (2003, p. 611). See also Klein (2005, p. 64). ICJ Rep. (1969), 3, 47; see also ICJ Rep. (2002), 244, Cameroon/Nigeria. Kingdom of Greece v. F.R. of Germany, Arbitral Tribunal for the Agreement on German External Debts, ILR (1972), 47, 418, 454; see also Gabcíkovo-Nagymaros Project (Hungary/Slovak Republic), judgment of 25 September 1997, ICJ Rep. (1997), 7, 78f. Schücking (1923), Berber (1977, pp. 37–40). A case in point is the boundary delimitation dispute between Argentina and Chile concerning the maritime delimitations in the Beagle Channel, associated, as in the disputes under discussion, with territorial disputes over islands and islets. After Argentina had rejected the award in January 1978, armed hostilities between the two countries seemed imminent. The late Pope John Paul II oﬀered his good oﬃces. The negotiations eventually led to the signing of a Treaty of Peace and Friendship in 1984 (ILM [1985], 11), which was successfully presented to the Argentinean electorate in a referendum; see Sun (2004, p. 13) with further references. See, for example, Article 9 of the 1899 Hague Convention for the Paciﬁc Settlement of International Disputes, 32 Stat. 1779 and its 1907 successor, 36 Stat. 2221.

Options for dispute settlement 38.

39. 40. 41.

42. 43. 44.

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Fact-ﬁnding exercises started at the conclusion of major humanitarian tragedies are a diﬀerent matter, see, for example, SC Res. 780 (1992) establishing a Commission of Experts to Investigate Violations of Humanitarian Law in former Yugoslavia; see also SC Res. 384 (1975) concerning East Timor. According to Merrills (1998, p. 64), more than 200 conciliation clauses had been included in treaties before the start of World War II on 1 September 1939. See ILM 20 (1981), 797 and ILM 20 (1981), 1222. In 1988 aspects of the dispute were presented to the ICJ: ICJ, Maritime Delimitations in the Area Between Greenland and Jan Mayen, ICJ Rep. (1988), 66. These declarations only have relevance for the arbitration procedures regulated in Section 2 and potentially for the mandatory conciliation procedure under Annex V, Section 2, which is normally a substitute for the mandatory third-party dispute settlement mechanism: see immediately infra sub 2. Article 8, Annex V. See Churchill and Lowe (1999, p. 455); Boyle (1997, pp. 37, 54). Article 298 UNCLOS reads in full: Optional exceptions to applicability of section 2 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; (ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree; (iii) this subparagraph does not apply to any sea boundary dispute ﬁnally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties; (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3; (c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention. 2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure speciﬁed in this Convention. 3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party. 4. If one of the State Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure speciﬁed in such declaration.

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45. 46. 47. 48.

49. 50. 51. 52.

53. 54.

Peace in Northeast Asia 5. A new declaration, or the withdrawal of a declaration, does not in any way aﬀect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree. 6. Declarations and notices of withdrawal of declarations under this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the State Parties. Cf. Treves (1998, pp. 611ﬀ). Shaw (2003, pp. 959ﬀ). See Japan’s ICJ declaration to accept the ICJ’s jurisdiction as compulsory of 9 July 2007, http://www.icj-cij.org/jurisdiction/index.php?p 1=5&p 2=1&p 3=3&code=JP. Accessed 11 February 2008. For rich case material involving Russia see, for example, The Volga (Russia/Australia) (Prompt Release), Judgment of 23 December 2002, reprinted in ILM 42 (2003), 159; see also Case No. 14, The “Hoshinmaru” Case (Japan v. Russian Federation) (Prompt Release), Case No. 15, The “Tomimaru” Case (Japan v. Russian Federation) (Prompt Release), http://www.itlos.org/start2_en.html. Accessed 11 February 2008. Article 287:5 UNCLOS. See the Decision of 11 April 2006, ILM 45 (2006), 800 in the case Barbados/Trinidad and Tobago, also available at www.pca-cpa.org, reviewed by Kwiatkowska (2007). The text of UNCLOS can be visited at www.un.org/Depts/los/convention_agreements/ convention_overview_convention.htm. Accessed 11 February 2008. China’s declaration under Article 298 was made on 25 August 2006 and reads: “The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.” See http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/trea ty6.asp. Accessed 11 February 2008. See with interesting insights into the drafting history Adede (1987, pp. 277ﬀ). See Articles 24 (according to which the Security Council possesses primary responsibility for the maintenance of international peace and security), Article 36 (according to which the Security Council may, at any stage of a dispute, recommend appropriate procedures or measures of adjustment), Articles 34, 35, 37.

REFERENCES Adede, A.O. (1987), The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea, The Hague: Martinus Nijhoﬀ. Allcock, J. et al. (eds) (1992), Border and Territorial Disputes, 3rd edition, Harlow, UK: Longman. Berber, F. (1977), Lehrrbuch des Völkerrechts, Vol. III: Streiterledigung, Kriegsverhütung, Integration (Treatise on International Law, Vol. III: Dispute Resolution, Prevention of War), Munich: Beck. Boyle, A. (1977), “Dispute settlement and the Law of the Sea: problems of fragmentation and jurisdiction”, International and Comparative Law Quarterly, 46(1): 37, 54. Boyle, A. (2005), “Further development of the Law of the Sea: mechanisms for change”, International and Comparative Law Quarterly, 54(3): 563. Brownlie, I. (2003), Principles of Public International Law, 6th edition, Oxford: OUP. Churchill, R.R. and A.V. Lowe (1999), The Law of the Sea, 3rd edition, Manchester: Manchester University Press.

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Colson, D. (1998), “Island Disputes in East Asia”, in M. Nordquist and J.N. Moore (eds), Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation, The Hague: Martinus Nijhoﬀ. de Waart, P. (1973), The Element of Negotiations in the Paciﬁc Settlement of Disputes Between States, The Hague: Martinus Nijhoﬀ. Foster, M. (2003), “The Mox Plant Case–provisional measures in the International Tribunal for the Law of the Sea”, Leiden Journal of International Law, 16(3): 611. Gao, J. (2006), “Analysis of the disputes between China and Japan in the East China Sea from the perspective of international law”, Global Law Review, 6(2006): 748. Johnston, D.M. (1988), The Theory and History of Ocean Boundary Making, Montreal: McGill-Queen’s University Press. Ju, Fu (2007), “Review of Chinese reviews: selected articles recently published in Chinese”, Chinese Journal of International Law, 6(2): 515. Keyuan, Zou (2005), “Sino-Vietnamese agreement on the maritime boundary delimitation in the gulf of Tonkin”, Ocean Development and International Law, 36(2005): 22–4. Klein, N. (2005), Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge: CUP. Kwiatkowska, B. (2002), Decisions of the World Court Relevant to the UN Convention on the Law of the Sea, The Hague/London/New York: Kluwer. Kwiatkowska, B. (2007), “Barbados/Trinidad and Tobago”, American Journal of International Law, 101(2007): 149. Lee, S. (2002), “The 1951 San Francisco Peace Treaty with Japan and the territorial disputes in East Asia”, Paciﬁc Rim Law and Policy Journal, 11(2002): 63. Lucchini, L. (2006), “La Délimitation des Frontières Maritimes dans la Jurisprudence Internationale: vue d’Ensemble” (The Delimitation of International Maritime Boundaries in International Jurisprudence: A Synthesis), in R. Lagoni and D. Vignes (eds) Maritime Delimitations, Netherlands: Koninklijke Brill. Merrills, J.G. (1998), International Dispute Settlement, 3rd edition, Cambridge: CUP. Oellers-Frahm, K. (2001), “Dispute settlement in the Law of the Sea”, in Encyclopedia of International Law, Vol. I, pp. 712ﬀ. Oellers-Frahm, K. and A. Zimmermann (eds) (2001), Dispute Settlement in Public International Law: Texts and Materials, Berlin: Springer Verlag. Price, G. (1993), “Comment: legal analysis of the Kurile Island dispute”, Temple International and Comparative Law Journal, 7(2): 395. Rogoﬀ, M. (1994), “The obligation to negotiate in international law: rules and realities”, Journal of International Law, 16(1994): 142ﬀ. Schoenbaum, T. (2006), “Resolving Japan’s territorial and maritime disputes with its neighbours—problems and opportunities”, The Journal of Social Science, Mitaka, Tokyo: International Christian University Social Science Research Institute, 57(COE Special Edition): 197. Schücking (1923), Das völkerrechtliche Institut der Vermittlung, Kristiania: H. Aschehaug. Shaw, M. (2003), International Law, 5th edition, Cambridge: CUP. Sun, P.K. (2004), Maritime Delimitations and Interim Arrangements in North East Asia, The Hague: Martinus Nijhoﬀ. Treves, T. (1998), “Compulsory Conciliation in the U.N. Law of the Sea Convention”, in V. Goetz et al. (eds) Liber Amicorum Gunther Jaenicke—Zum 85 Geburtstag, Heidelberg: Springer.

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Treves, T. (2006), “What have the United Nations Convention and the International Tribunal for the Law of the Sea to Oﬀer as Regards Maritime Delimitation Disputes?”, in R. Lagoni and D. Vignes (eds) Maritime Delimitations, Netherlands: Koninklijke Brill. Zimmermann, A., C. Tomuschat and K. Oellers-Frahm (eds) (2006), The Statute of the International Court of Justice: A Commentary, Oxford: OUP.

5. Finding solutions to the disputes between China and Japan Although most accounts of Japan’s disputes with China focus on the ongoing exploitation of natural gas by China in the East China Sea and the disputed maritime boundary in this area, the reality of the situation is more complex. The maritime boundary is only one aspect of the territorial and maritime disputes in the region. In actuality, Japan and China have three separate disputes concerning various lands and waters. Although these three disputes are analytically distinct, I believe they can best be resolved through ﬁnding a compromise and cooperative solution by considering all three together. The advantage of considering them together is that it is then possible for one side to concede on some points in order to gain concessions on other points and so develop a classic compromise solution to all the outstanding issues. Brieﬂy, the three disputes are as follows: ● ● ●

China and Japan both claim sovereignty over the Senkaku (Diaoyu) Islands in the southern part of the East China Sea. China and Japan have overlapping claims to the resources of the East China Sea. China disputes Japan’s claim to a 200-nautical mile (nm) Exclusive Economic Zone surrounding the uninhabited Paciﬁc Ocean island known as Okinotorishima.

These three disputes will be discussed in turn.

5.1 5.1.1

THE SENKAKU/DIAOYU ISLANDS1 The Dispute

Japan and China both claim sovereignty over the Senkaku/Diaoyu Islands, a group of small, uninhabited volcanic islands in the East China Sea (see Figure 5.1). These islands are located 170 kilometers (km) northeast of Keelung, Taiwan and 410 km west of Okinawa. In total these islands comprise a territory of about 18 km2 and include ﬁve islands and three 83

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Figure 5.1

The Senkaku Islands

small “rocks.” The two largest islands are Uotsuri-jima (Diaoyu Dao in Chinese), with an area of 4.319 km2 and Kuba-jima (Huangwei Yu in Chinese), which is 1.08 km2. These islands have apparently never been inhabited and are vacant today except for a lighthouse constructed on the largest island by Japan in 2005. Obviously the great tension that the issue of sovereignty of these islands provokes today does not stem from controversy over the islands themselves; rather, the importance of the sovereignty question is because whoever has these islands also has control over possible vast expanses of surrounding ocean space. These surrounding ocean waters are the real prize. The East China Sea is believed to contain rich deposits of oil and natural gas and is a productive ﬁshery as well. 5.1.2

Historical Considerations

The history of discovery, exploration and administration of the Senkaku/Diaoyu Islands is obviously relevant to the resolution of the dispute. Both China and Japan rely on historical priorities, and the history has been extensively studied by scholars.2 So the main points are clear, although no forum has required an objective presentation to be made to prove the historical data. It is uncontested that Chinese mariners ﬁrst discovered the islands, although the record-proof of exactly when this occurred has not been

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convincingly demonstrated by the Chinese side. Perhaps as early as 1372, during the early years of the Ming Dynasty (1368–1644), Chinese ﬁshers recorded visits to the islands, and Chinese ﬁshing vessels regularly visited the islands. During the Ming Dynasty there were also apparently regular visits to the islands by Chinese people, and the islands may have been considered important as defensive posts against “pirates” from Japan who sometimes plundered the coastal areas of China during this time.3 In contrast, Japan’s claim to the islands arises only from various visits and activities beginning in the 19th century. From at least 1884, Japanese ﬁshing vessels were using the islands as ﬁshing bases and in 1896, after they were proclaimed to be part of Japan, the government of Okinawa leased certain lands on the islands to a Japanese citizen, Koga Shinshiro. Shinshiro had been exploiting resources such as shells and the wildlife on the islands for some time before this date, and after the leases were concluded, he made a series of improvements, including building houses, piers, reservoirs for water and drainage systems. By 1909 the islands had a total population of 248 people. During this time Shinshiro and his descendants maintained their activities on the islands under the administration of the Japanese government, which carried out several surveys of the islands’ resources. In 1918, Koga Shinshiro died, but his businesses were carried on by his son, Zenji. In 1932 four islands were purchased by the family from the Okinawa government. By 1940 the family had abandoned the islands because of ﬁnancial diﬃculties and the outbreak of war. During World War II the islands were apparently ignored by all sides and did not have strategic value. In 1945 the islands came under the administration of the United States, which used the islands as a convenient shooting range. Article I of the Treaty of Administration (1945) between Japan and the United States notes that the islands are considered to belong to the Ryuku (Nansei) Islands, and the San Francisco Peace Treaty of 1951 continued the American administration of the Ryukyus. In 1971 the islands were returned to the administration of Japan under the terms of the Agreement between Japan and the United States Concerning the Ryukyu and Daito Islands (1971). Japan has administered the islands since 1971 as an integral part of Ishigaki City, Okinawa Prefecture (although they are 170 km removed from Ishigaki). Since 1971 the Japan Coast Guard has kept watch over the islands and Chinese activists who from time to time try to visit the islands have been forcibly repelled. When Chinese vessels “intrude” into the surrounding waters, Japan responds with protests. Japan constructed a lighthouse on Uotsuri Island in 2005. Thus, Japan has consistently administered the islands for over 100 years with a hiatus during and after World War II.

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China’s ﬁrst modern claim to the islands was made only in 1971, after a United Nations survey team found potentially rich deposits of oil and natural gas in the surrounding waters. Before this time oﬃcial Chinese maps marked the islands as territory of Japan. In 1920, after the Japanese navy rescued several Chinese citizens who were accidentally stranded on the islands, the Chinese government sent an oﬃcial note of “thank you” that stated the islands belonged to Japan. China now claims that the islands are an integral part of Toucheng Township, Yilan County, Taiwan, but Taiwan makes no oﬃcial claim, and former President, Lee Teng-hui, has stated that the islands belong to Japan. Taiwan, therefore, has not supported China’s sovereignty claim. 5.1.3

China’s Sovereignty Arguments

China relies on two separate but complementary arguments in asserting that it enjoys territorial sovereignty over the Senkaku/Diaoyu Islands: the ﬁrst is based on the fact that Chinese discovered and used the islands centuries before Japan; and the second is based upon Japan’s renunciation of territories it acquired by warfare. The records of Chinese discovery and use of the islands begin in 1372 and extend for several hundred years after that date. The islands were regularly used as navigational aids and as bases for ﬁshing and later for coastal defense against pirates. Chinese records apparently show that the islands were part of the Ming Dynasty’s coastal defense network, and during the Qing Dynasty (1644–1911) the islands were considered part of China, especially after the annexation of Taiwan in 1683. Japanese maps of the time do not include the islands as part of the Ryukyu Kingdom, which was annexed by Japan.4 Two oﬃcial maps of Japan issued by the Japanese government in 1874 and 1877 do not include the islands. In addition, Chinese activities continued into the late 19th century. In 1893 the Qing government issued an Imperial Edict granting the islands to a private Chinese citizen in order to collect herbs, including some for the Dowager Empress Cixi.5 China then says that Japan gained control of the islands through the Treaty of Shimonoseki, which was concluded at the end of the SinoJapanese War in 1895. This treaty ceded Taiwan and the Pescadores (about 90 small islands located west of Taiwan) to Japan. This cession, under which Japan ruled Taiwan, was formally repudiated and ended by Japan after World War II. In Article 2 of the San Francisco Peace Treaty of 19516 Japan renounced all claims to “Formosa and the Pescadores.” Although neither China nor the Republic of China (Taiwan) were parties to the San Francisco Treaty, Japan’s renunciation was reaﬃrmed in the 1952

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Sino-Japan Treaty, which cites Article 2 and states that all treaties and agreements concluded with China before 1941 have become “null and void.” China maintains that since at the time of the Treaty of Shimonoseki, Taiwan included the Senkaku/Diaoyu Islands, this renunciation had the eﬀect of returning the islands to China. Thus, China argues that the islands constitute Chinese territory. 5.1.4

Japan’s Sovereignty Arguments

Japan’s claim of sovereignty over the Senkaku/Diaoyu Islands dates from 1885 when the Japanese government ﬁrst began a series of surveys of the islands. Japan claims that these surveys were carried out without protest and that there was no sign of Chinese or any other government control. Japan claims that the islands were annexed into Japanese territory and administration in 1895 as part of the Nansei Shoto, the Ryukyu Islands group, and were not considered part of Taiwan. Thus, the islands were not covered by the Treaty of Shimonoseki, which in fact does not mention them at all. Accordingly, the islands were not part of the territory Japan renounced in the San Francisco Peace Treaty in 1951. Japan’s claim of sovereignty rests on the uninterrupted administration of the islands by Japan from at least 1895 to the present time. The administration by the United States after World War II until 1971 is considered by Japan to be part of the US occupation so that the islands were validly returned to Japan in 1972 with the return of Okinawa to Japan. Japan maintains that China acquiesced in its exercise of sovereignty during this period. Oﬃcial Chinese maps during the 20th century depict the islands as Japanese, and oﬃcial government acts by China make clear their attitude that the islands belonged to Japan. The ﬁrst protest and Chinese claim dates only from 1971, after news of important oil and natural gas deposits in the surrounding waters. 5.1.5

The International Law of Territory and Sovereignty

Sovereignty is a basic concept of international politics and international law. The function of the concept of sovereignty is to ensure and legitimize the eﬀective exercise of power over territory and the people and the resources within the territory. Sovereignty is recognized internationally as synonymous with independence, the right to rule without answering to any higher power. Sovereignty is also linked with territory in that sovereignty is to be exercised within deﬁned territorial limits. Territory is one of the fundamental requirements of statehood, so that sovereignty is also an attribute of a state, the fundamental international political unit. A corollary of the

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concept of sovereignty is the principle of the equality of states as well as the principle of territorial integrity and political independence, rights that must be respected under international law. However, sovereignty also carries state responsibility and the duty not to abuse sovereignty. These duties of sovereignty are increasingly recognized in international law in such ﬁelds, for example, as environmental protection and protection of human rights. The dispute over the Senkaku/Diaoyu Islands is a dispute over sovereignty and territory. Since the islands are not part of the ancestral territory of either nation, the international law relating to the acquisition of territory is relevant to sorting out their respective claims according to the principles of justice and fairness. There are ﬁve recognized ways of acquiring territory under international law: (1) cession; (2) occupation; (3) conquest; (4) prescription; and (5) operation of nature. Cession is the acquisition of territory by willing sale or transfer, usually by means of concluding a treaty with another state, the ceding state. This method is not relevant to the dispute. Occupation is a method that can be used only to claim territory that was previously unclaimed—termed terra nullius. Discovery of such a territory may start the process, but discovery alone is not enough. What is also required is eﬀective control of the territory with the intention and will to act as sovereign. This requires a showing of some acts of government administration of the territory in question—what are termed eﬀectivités, the French word traditionally used in international law. This method of acquisition is relevant to the dispute and will be discussed below. Conquest is a traditional method of acquiring territory, but since the early 20th century, this method has been illegal because of the recognized limits in international law on the use of force. It is disputed as to exactly when conquest became illegal. Certainly it became universally illegal in 1945 with the signing of the United Nations Charter. But a case can be made that conquest became illegal earlier with the creation of the League of Nations in 1919 and the signing of the Kellogg–Briand Pact against war in 1928. As far as the Senkaku/Diaoyu Islands are concerned, conquest is not relevant because Japan has renounced all territories gained by conquest and war. Thus, Japan cannot claim the islands by right of conquest.7 Prescription is an ill-deﬁned doctrine that holds that if a state exercises administrative control over a territory that is not terra nullius and is not technically open to occupation and such administration is exercised openly and without objection by the other sovereign involved for a suﬃciently long period, the territory is lost to the ﬁrst sovereign and becomes the territory of the sovereign exercising administrative control. However, there is no

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period of time that is recognized under international law as deﬁnitive for the application of the doctrine. A leading case is the Island of Palmas Case (United States v. the Netherlands) (1928),8 in which the arbitrator ruled that the exercise of territorial rights by the Netherlands from before 1700 to 1906 prevailed over the US claim, which was based on prior discovery of the island by Spain. The arbitrator also rejected the argument of contiguity of the island to the Philippines, then an American colony. There appears to be no case in international law in which a territory was awarded to a state purely on the basis of the doctrine of prescription. Operation of nature is a method of acquisition whereby a natural event such as a storm or accretion or erosion changes a natural feature that is a recognized boundary marker between two states. This method is not relevant to the present dispute. 5.1.6

An Evaluation of the Parties’ Positions

Evaluation of the parties’ arguments under international law is not easy: this is a close case. Both China and Japan have points in their favor. The relevant bodies of law to this case are “occupation” and “prescription.” We can proceed by considering carefully and comparing the previously decided cases under these doctrines of law. The Chinese claim is supported most substantially by the Clipperton Island Case,9 a dispute between France and Mexico over an uninhabited island situated approximately 1078 km oﬀ the southwest coast of Mexico. France’s claim was based on the discovery of the island by a French naval oﬃcer in 1858. After making detailed notes concerning the island, and landing brieﬂy on it, he notiﬁed French and Hawaiian oﬃcials of his discovery and published a declaration of French sovereignty in a Hawaiian newspaper. After this time France took no action until 1897, when it lodged a protest with the United States over the unauthorized presence of three Americans on the island. Mexico claimed Clipperton Island on the basis that it was part of Mexico during the Spanish colonial period, and in 1897 protested the French claim by sending a gunboat to the island. The arbitral tribunal ruled that the island belonged to France. Mexico had not proved Spanish discovery or occupation, and the island was terra nullius in 1858, as France claimed. Although France’s administration of the island was minimal, the actions taken by France were all that was required for proof of occupation under the circumstances, considering the fact that the island was not inhabited and was far from any other land area. The Clipperton Island Case (1928) supports the Chinese claim because, presumably, China can prove prior discovery of the Senkaku/Diaoyu Islands and various acts of administration such as incorporating the

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islands in its coastal defense system against pirates as well as leasing the resources of the islands. However, the Japanese claim appears to be supported most strongly in international jurisprudence. Even if the islands were not terra nullius at the time Japan started its surveys and administrative activities in 1885, Japan’s administration beginning in 1895 was substantial, public and peaceful, and there is no record of any protest or disagreement by the Chinese government during the time of Japanese occupation and administration until 1971. Moreover, it is not clear from the proofs oﬀered by China to what extent the activities concerning the islands carried on during the Ming and Qing periods were governmental in nature. Activities of private persons cannot be considered eﬀectivités that satisfy the requirements necessary to qualify for title through occupation.10 International case law concerning occupation and prescription consistently emphasizes that long and recent displays of sovereignty without protest or objection by any state will take precedence over ancient title claims. For example, the Island of Palmas Case (1928)11 ruled that the US inchoate title through Spanish discovery of the island in question could not prevail over proof by the Netherlands of long and continuous peaceful and open displays of sovereignty. Similarly, in the Minquiers and Ecrehos Case (1953),12 involving a dispute between France and the United Kingdom over two groups of islands located in the English Channel, the International Court of Justice found the ancient evidence was too speculative and inconclusive to sort out territorial rights, and focused instead on recent displays of sovereignty and administration in awarding the islands to the United Kingdom. In the Case Concerning Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) (1992),13 the International Court of Justice determined sovereign rights with respect to several uninhabited islands located near the borders of El Salvador, Honduras, Nicaragua and Costa Rica. Since all four countries were successors to lands once ruled by Spain, the islands were not terra nullius. The Court awarded sovereignty over the islands in question (two to El Salvador and one to Honduras) on the basis of recent displays of sovereignty without objection, stating that, “continuous and peaceful display of territorial sovereignty (peaceful in relation to other states) is as good as title.”14 Finally, in the Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia) (1999),15 the International Court of Justice considered and set out the necessary criteria for title by prescription: (1) possession exercised by reason of state authority; (2) the possession must be peaceful and uninterrupted; (3) the possession and claim must be public; and (4) the possession must endure for a substantial period of time. Although the Court applied these criteria in this case to rule that Namibia did not have prescriptive title, in the case of the Senkaku/Diaoyu

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Islands, these criteria appear to be satisﬁed by the continuous administration of the islands by Japan from 1895 to the present time. There was no objection to Japan’s actions until 1971, and the US occupation was clearly by reason of the occupation of Japan after World War II. It would also appear that China’s argument that the islands were part of the Taiwan/Pescadores is questionable because the Senkaku/Diaoyu Islands are located many kilometers distant from these lands. Accordingly, the islands appear not to belong to either Taiwan or the Ryukyus but are sui generis, independent of any other area. In summary, as far as the principle of justice is concerned, the territorial dispute over the islands should be resolved in favor of Japan. This is also the conclusion of other recent legal commentators.16 Yet it is premature to make this a recommendation for several reasons: ﬁrst, China will obviously not accept this conclusion; second, it would not seem appropriate to resolve such a diﬃcult and close case on a one-oﬀ, “winner take all” basis; third, we must look not only to justice to solve this dispute, but also to the values of peace and international cooperation. The Senkaku/Diaoyu Islands dispute should not be considered in isolation; rather, this dispute is closely connected with the natural resources in the East China Sea and the issue of delimitation of the maritime boundary between China and Japan. It is to these issues that we now turn.

5.2 MARITIME BOUNDARY DELIMITATION IN THE EAST CHINA SEA 5.2.1

The Dispute

Japan and China are two states with opposite coasts facing each other across the East China Sea. The width of this body of water varies from 180 nautical miles (nm) at its narrowest points to 360 nm at its widest; it is 702 nm in length from north to south. There is accordingly a serious overlap in the maritime zones in the East China Sea. The UN Convention on the Law of the Sea (UNCLOS) recognizes and provides coastal states with several maritime zones measured from the baselines of their respective coasts. Most relevant here are the two maritime zones known as the Exclusive Economic Zone (EEZ) and the Continental Shelf (CS). The EEZ comprehends the surface of the ocean and the water column and extends a distance of 200 nm;17 the CS concerns rights of control over the seabed extending at least 200 nm and possibly out to 350 nm if this distance coincides with the physical structure of the shelf itself.18 In the East China Sea, therefore, the maritime zones of Japan and China

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overlap substantially. Japan can theoretically claim control of a maritime zone (both the EEZ and CS) measured 200 nm from the baseline of the Ryukyu Islands and Okinawa; China claims not only an EEZ of 200 nm measured from its baseline on the Chinese mainland, but also claims a CS out to the foot of the Okinawa Trough, which is the physical endpoint of the Asian Continental Shelf. Japan has proposed a maritime boundary that would be the equidistant line halfway (as measured by Japan) between the Japanese and Chinese coastlines, but this proposal was rejected by the Chinese side. China has also begun exploitation of the natural gas resources found in the seabed (see Figure 2.1, Chapter 2). Several producing wells have been authorized, many within a few kilometers of the equidistant line recognized by Japan. Since the oil and gas resources underlying the East China Sea are pools embedded in sedimentary rocks, drawing down these resources on the Chinese side will likely deplete resources on the Japanese side of the equidistant line. To protect its interests, Japan has authorized exploratory work drilling for oil and gas on its side of the equidistant line. As both sides gear up to exploit the resources of the East China Sea, the potential for conﬂict is now greater than ever. It is also readily apparent that the unresolved territorial dispute over the Senkaku/Diaoyu Islands is intimately connected to the maritime boundary dispute. For without resolving this dispute the maritime boundary cannot be delimited in the southern part of the East China Sea. China and Japan have both signed and ratiﬁed UNCLOS and both derive their claims and arguments from that Convention. However, the two nations have very diﬀerent interpretations of the provisions of UNCLOS that involve the delimitation of maritime boundaries. Article 74 of UNCLOS, which concerns delimitation of the EEZ between states with opposite or adjacent coasts, states that delimitation shall be made “by agreement on the basis of international law . . . in order to achieve an equitable solution.” And if no agreement can be reached within a reasonable period of time, the parties “shall resort to the procedures provided for in Part XV (Settlement of Disputes).” Identical language is contained in UNCLOS Article 83 on delimitation of the Continental Shelf between states with opposite or adjacent coasts. 5.2.2

China’s Claims

China argues that the median or equidistant line claimed by Japan is not the correct legal standard to be used under UNCLOS. In lieu of the equidistant line, which was the standard in the 1958 UN Convention on the Continental Shelf,19 the 1982 UNCLOS adopts “equitable solution” as the applicable standard in both Articles 74 and 83. Thus, China argues that

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“equitable” factors entitle it to more than the equidistant line with respect to both the EEZ and the CS. In particular, China points to the following “equitable” factors as being in its favor: ●

● ● ● ●

The natural prolongation of the Continental Shelf extends out to the Okinawa Trough (China refers to this feature as the Sino-Ryukyu Trough). The Asian Continental Shelf is very broad, and is a natural unity that must be respected in any delimitation of the seabed. The Japanese shelf is much narrower, stemming from the Ryukyu Islands and their natural underwater extensions. The trough is a natural discontinuity that is a natural boundary marker. China’s coastal area on the East China Sea is proportionately much larger than Japan’s opposite coastal area. The population of China’s coastal area bordering the East China Sea is much greater than Japan’s population in Okinawa. The ongoing coastal socioeconomic activity on the Chinese side is much greater than on the Japanese side. The conﬁguration of the respective coasts favors China: the Chinese coast is a substantial continental coast, while Japan’s coast in this area consists of a chain of small islands.

Accordingly, China argues that international law entitles it to the major part of the East China Sea. 5.2.3

Japan’s Claim

Japan’s claim is based only on the fairness and natural equity of dividing the maritime area into two equal halves based on the equidistant principle. Japan maintains that the two coasts are roughly opposite each other and the fact that one is continental and the other an island coast should not make any diﬀerence. Moreover, Japan’s claim to the Senkaku/Diaoyu Islands strengthens its claim because these islands allow Japan to argue that the Okinawa Trough is not a natural dividing point since Japanese territory extends into the East China Sea. 5.2.4

Evaluating the Competing Claims

The evaluation of the competing claims must begin with the treaty language of UNCLOS Articles 74 and 83, which says the standard of “equitable solution” applies to the settlement of the dispute. But this legal standard is obviously exceedingly vague and is subject to diﬀering interpretations. To shed light on what this phrase means we must turn to the

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extensive jurisprudence on maritime boundary delimitation over the last 40 years and more. This includes the following cases: ● ● ● ● ● ● ● ● ● ● ●

North Sea Continental Shelf Cases (Denmark, Germany and the Netherlands) (1969).20 Continental Shelf (Tunisia v. Libya) (1982 and 1985 [revision]).21 Continental Shelf (Libya v. Malta) (1985).22 Gulf of Maine (US v. Canada) (1984).23 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) (1991).24 Land, Island and Maritime Frontier (El Salvador v. Honduras, Nicaragua intervening) (1992).25 Maritime Delimitation Jan Mayen (Denmark v. Norway) (1993).26 Maritime Delimitation (Qatar v. Bahrain) (1995).27 Land and Maritime Boundary between Cameroon and Nigeria (1998).28 Case Concerning Passage through the Great Belt (Finland v. Denmark) (1992).29 Delimitation of the Maritime Area between Canada and France (St. Pierre and Miquelon) (1992).30

According to commentators and reading these cases, the matter of what is “equitable” cannot be interpreted in the abstract.31 Each maritime boundary delimitation case stands on its own, and what is equitable is a case-bycase matter. Furthermore, none of the cases listed above closely resembles the East China Sea situation. Thus, what is equitable cannot be reduced to a formula. Nevertheless, certain principles can be deduced from this jurisprudence. First, no case has delimited the EEZ boundary on a diﬀerent basis than the CS. Rather, the dividing line has consistently been the same for both. Thus, in applying equitable principles they should produce one boundary solution, not two. This seems to be the only practical course to follow. It would be very diﬃcult, if not impossible, for two coastal states to administer two boundary lines, one for the water surface and the water column (the EEZ), and another diﬀerent boundary for the seabed and its resources. Two boundary lines would pose problems of access that would be insurmountable, since use of either resource commonly entails the other resource as well. Thus, equitable principles demands that one maritime boundary should apply in the East China Sea. Second, the natural prolongation principle has not found favor in recent cases. Only in the North Sea Continental Shelf Cases (1969) did the International Court of Justice rely on this principle, and these cases did not involve an island coast such as Japan’s. In cases such as Tunisia/Libya (1982/1985) and Libya/Malta (1985), natural prolongation was not considered important. Libya/Malta (1985) is particularly relevant to the

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China/Japan case since this delimitation similarly involved a continental coast and an island coastal area. Third, neither populations nor socioeconomic diﬀerences have been given particular weight in the cases. In the Libya/Malta (1985) case the Court stated that neither the relative land mass sizes of the parties or their relative economic development were applicable equitable factors. Fourth, the Court did not respect natural underwater features such as the presence of a trough in the Gulf of Maine Case (1984). Similarly, the Court ignored a “rift” in the seabed in the Libya/Malta Case (1985). Geological features do not play a signiﬁcant role as equitable features. Fifth, the presence of small islands such as the Senkaku/Diaoyu Islands will not have much impact on the overall delimitation. The Court has consistently refused to grant small islands that are idiosyncratically situated close to a foreign coast. For example in the Libya/Malta Case (1985) the Court disregarded the eﬀect of a small, uninhabited island belonging to Malta. Sixth, geography is the paramount equitable interest considered relevant including the natural direction of the coasts involved and their proportionate length with respect to each other. For example, in the Libya/Malta Case (1985) the Court stated that “there is a considerable disparity between their [coastal] lengths, to a degree which . . . constitutes a relevant circumstance which should be reﬂected in the drawing of the delimitation line.”32 On this last point, China indisputably has an important equity on its side, which redounds to the disadvantage of Japan. Yet the Court in the Libya/Malta Case (1985) declined to say that the delimitation line should reﬂect the ratio of the coastal lengths of the contesting parties. The Court simply made an “adjustment” to the equidistant line as depicted in Figure 5.2. This adjustment appears to be rather arbitrary. The Court merely considered the maximum extent of the Libya claim—a shift to the north of 24º latitude— and granted Libya an adjustment to the north of three-quarters of this claim or 18º. In summary, the equities of the delimitation favor China over Japan, but it is unclear how much weight to give these equities in departing from the equidistance line.

5.3 THE DISPUTE CONCERNING OKINOTORISHIMA’S MARITIME ZONE 5.3.1

The Dispute

A third dispute between China and Japan concerns the maritime zone that is to be properly allotted to Japan’s southernmost island, Okinotorishima

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14º Sicily

MALTA

36º

36º

13º 50´ 15º 10´

13º 50´ 34º

15º 10´

34º

Ras Ajdir

LIBYA Ras Zarruq Median line Adjusted line

32º 12º

32º 14º

Figure 5.2 The Libya/Malta Case demarcation (from ICJ judgment) (Figure 5.3). Located in the Paciﬁc Ocean approximately 1200 km northwest of Guam and 1700 km south of Tokyo, Okinotorishima is Japan’s only tropical island. Shaped like a pear, most of the island is a submerged coral reef 4.5 km long and 1.7 km wide. Most of the island has eroded to the point that now only two small rocky islets protrude above mean high tide: Higashi Kojima (6 cm) and Kita Kojima (16 cm).

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Figure 5.3

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Okinotorishima

The ﬁrst record concerning Okinotorishima dates from 1789 when the island was discovered by the English vessel, Iphigenia. In 1790 the island was named Douglas Reef. Japan investigated the island in 1922 and 1925, and in 1931, after ascertaining that it was unclaimed by any state, annexed it as part of the Ogasawara Islands south of Tokyo. Okinotorishima is currently administered by the City of Tokyo. The dispute over Okinotorishima has to do with the breadth of its surrounding maritime zone. Japan contends that the island has a full EEZ of 200 nm measured from the baseline, the area exposed at low tide. China claims that the island only has a 12-nm territorial sea and has no right to a 200-nm EEZ. This diﬀerence is important, because if the Chinese position is correct, the seas surrounding Okinotorishima beyond 12 nm are “high seas” to which all nations have rights under the UNCLOS. China, for example, would be free to conduct marine research or even to stage military exercises within 12 nm of Japanese territory. On the other hand, if these waters are part of Japan’s EEZ, Japan can claim signiﬁcant administrative

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control over large areas of the seas south of the Japanese islands (see Figure 5.3). The Okinotorishima EEZ is potentially 400 km2, an area larger than the area of Japan itself. The key to understanding the dispute over Okinotorishima is that this area is potentially an important sea corridor for American naval vessels, including submarines, in the event of a military conﬂict over Taiwan. China wants to conduct research to make an accurate map of the seabed in this area and undoubtedly wants the ability to station vessels there to confront the United States in the event of war. Somewhat surprisingly, China’s contention that Okinotorishima is a “rock” dates only from 2004. Before this time, China conceded Japan’s claim to an EEZ.33 5.3.2

An Evaluation

The solution to this dispute depends upon the application of Article 121 of the UNCLOS, which provides as follows: Regime of islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

Applying this provision to the present condition of Okinotorishima, it seems clear that this island cannot now claim an EEZ or CS. In its present state, no one could possibly live on the island, and it has no economic life of its own. However, Governor Shintaro Ishihara of Tokyo, supported by the central government, has announced his intention of investing in Okinotorishima so that it may acquire the status of an island with an economic life of its own. If this can be done then the island would presumably qualify as the base of a surrounding EEZ. Various proposals for improvements and investment on the island are currently under study. These include: building a lighthouse; exploitation of the coral and sand on the island; promoting tourism; and building an ocean thermal energy electrical generating facility. The latter proposal, which would utilize diﬀerences in the temperature of ocean waters to generate electricity, seems to have the most potential for providing the island with an “economic life.” The expense to construct and maintain this facility will be enormous. No ﬁnal decision has been taken on this and the status of Okinotorishima remains ambiguous at best.

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The island remains a ﬂashpoint for Sino-Japanese relations. Japan has constructed a sophisticated radar system on the island to detect vessels in the surrounding waters; however, China continues to survey the area and refuses to stop its naval surveys or seek permission from Japan. Undoubtedly Japan is closely monitoring Chinese activities but little is disclosed to the public.

5.4

EFFORTS TO RESOLVE THE DISPUTES

As members of the United Nations, both China and Japan are obliged to resolve these disputes peacefully. In addition, both countries have ratiﬁed the UN Convention on the Law of the Sea, which contains an elaborate scheme on how to settle disputes. Thus, both states are well aware of their options and their obligations under international law. UNCLOS Article 283 requires parties to a dispute to “expeditiously” exchange their views with respect to the matter. Article 284 provides for conciliation as an optional dispute settlement method. In addition, Article 287 provides a menu of options for so-called compulsory dispute settlement: ● ● ●

the International Tribunal for the Law of the Sea; the International Court of Justice; arbitration.

UNCLOS also allows parties to agree on any method of dispute settlement if these are insuﬃcient or undesirable in a particular case. Since neither Japan nor China opted for any particular method of dispute settlement at the time it ratiﬁed UNCLOS, Article 287(3) provides that both states “are deemed to have accepted arbitration in accordance with Annex VII” as their compulsory dispute settlement method. Annex VII is a procedure for binding arbitration by a panel of ﬁve arbitrators. However, neither Japan nor China has chosen to invoke this provision or any other method of international dispute settlement. Instead, the two states have chosen to handle these three disputes bilaterally through periodic and essentially ad hoc negotiations. In between rounds of bilateral negotiations, particularly over the maritime boundary dispute, both sides have carried out unilateral acts that seemingly are calculated to assert their claims, but to avoid directly antagonizing the other side. While military conﬂict has been avoided, as Professor Drifte’s chapter details, there have been diﬃcult moments and ugly incidents. Both sides are playing a dangerous game. As of 2007, China has constructed two oil and gas pipelines to oﬀshore oil and gas ﬁelds and has begun extracting oil and gas from four ﬁelds that

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straddle the equidistance line that marks the boundary of Japan’s claimed EEZ. For its part, Japan has authorized exploration, but has not yet begun to produce any oil or gas. With the passage in 2007 of the Basic Maritime Law and the creation of a cabinet-level ministry in charge of maritime aﬀairs, Japan clearly intends to formulate a series of policy steps to protect its interests. Thus, the disputes will potentially grow more dangerous in coming years. In April 2007, Chinese Premier, Wen Jiabao, on a three-day visit to Japan, signed an agreement with Japanese Prime Minister, Shinzo Abe, that oﬃcially called for joint development of the oil and gas resources in the East China Sea by the two countries.34 However, the agreement simply called for joint development of the oil and gas ﬁelds in the “wide waters” of the area, and no progress has been made in specifying the details of the joint development plan. In meetings after the agreement was signed, each side reiterated its positions on the maritime boundary and territorial issues and no agreement has been reached.

5.5

PROPOSED SOLUTIONS TO THE DISPUTES

These three territorial and maritime disputes now overshadow the otherwise relatively good international relations between China and Japan. What should be done? The two states have allowed these problems to fester for years, taking the chance that they will not erupt into confrontation, which neither side wants. Yet the strategy of deferring the disputes and ignoring them is increasingly out-of-date and out-of-touch with reality. It is urgent that serious eﬀorts be made on both sides to come to an equitable solution. Considering the three disputes, it seems clear that the two East China Sea matters are intimately connected and that a solution must be found simultaneously to the territorial problem of the Senkaku/Diaoyu Islands and the maritime boundary delimitation. With regard to these two disputes one cannot be solved while the other remains. However, the Okinotorishima dispute can be and should properly be considered separately, since this island is far removed physically from the East China Sea. I propose a solution for each problem in turn. 5.5.1

The East China Sea

Chinese Premier, Wen Jiabao, stated in April 2007 his proposal to turn the East China Sea into a “sea of peace, cooperation and friendship.” How shall this admirable idea be implemented? I propose a solution based on peace, justice and international cooperation to make this idea a reality. The

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best way this can come about is through bilateral diplomacy and negotiations. This suits both sides as neither country has sought to involve third parties or to employ the available forms of dispute settlement under the UNCLOS. In order to satisfy the criterion of peace the proposed solution must be one that is acceptable to both parties. There cannot be a “winner” and a “loser.” Rather, both states must ﬁnd the solution to be in their interest. Both will accordingly willingly accept the solution. Neither side will believe the solution was forced upon it. The criterion of justice means that the proposed solution must be one in accordance with international legal norms. While law cannot dictate or provide a ﬁnal solution, law can and should be the starting point and point the way toward a ﬁnal, just solution. The criterion of international cooperation means that the solution must not be a one-oﬀ matter, but rather should set the stage for ongoing cooperation between the two states. What solution will satisfy all three criteria? The following solution is proposed: 1.

2.

3.

4.

China agrees to recognize Japanese sovereignty over the Senkaku/ Diaoyu Islands. This comports with justice because, although the sovereignty issue is somewhat clouded, Japan clearly has the better case. China should recognize this. Japan and China agree on a maritime boundary in the East China Sea that is modeled after the Libya/Malta (1985) solution (see Figure 5.2). The maritime boundary accordingly should not be the equidistant line, but should be drawn parallel to the equidistant line to the east, approximately halfway east of the distance between the equidistant line and the Okinawa Trough. This would give China the largest share of the seabed of the East China Sea since both China’s EEZ and Continental Shelf would be approximately twice as large as Japan’s. But as we have seen in the discussion above, this result comports with justice and with international law because the equitable factors are clearly on China’s side. The maritime zones surrounding the Senkaku/Diaoyu Islands should be limited to a territorial sea of 12 nm. This result comports with Article 121(3) of the UNCLOS since the Senkaku/Diaoyu Islands are presently uninhabited and have no economic life of their own. In order to reassure China, Japan should agree not to claim any additional maritime zone in the future as well. China and Japan, after agreeing on precise maritime boundaries according to the foregoing agreements, should establish joint development

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zones for oil and gas and other mineral resources of the Continental Shelf of the East China Sea. Such joint development zones should at minimum cover areas where geological investigations show that mineral deposits are likely overlapping both nations’ maritime zones. Of course, China and Japan have failed up to now to agree on such joint development zones. But this failure is due to the misguided strategy on the part of both sides to designate the zone of joint development without ﬁrst agreeing on a delimitation plan for the EEZ and the Continental Shelf. If the delimitation of the shelf is agreed, the designation of joint development zones should be much easier and will fall into place. The designation of joint development zones will entail ongoing cooperation and the creation of appropriate joint institutions that will be necessary to manage the resources of the East China Sea. China and Japan should ﬁnally negotiate and adopt a Comprehensive Plan for the Protection and Development of the East China Sea. This Comprehensive Plan should cover not only the joint development area but also the unilaterally administered areas of the East China Sea. The Comprehensive Plan should create legal mechanisms for regular consultations, the resolution of disputes and the sharing of information. This Comprehensive Plan should not only provide for exploitation of the resources but should be in accordance with the principles of sustainable development and protection of the environment.

5.5.2

Okinotorishima

Okinotorishima should be considered and treated separately from the East China Sea disputes. Including this issue in the East China Sea matters would be counterproductive as an already complex situation would be made hopelessly complex by interjecting an unrelated dispute into the mix. Yet the Okinotorishima dispute is serious and should not be ignored. Is it soluble? The key to an amicable and cooperative solution to the Okinotorishima dispute is to compromise in a manner so as to satisfy the essential interests of both China and Japan. What is the essential interest of Japan? Okinotorishima is the southernmost point of Japanese territory, and Japan wants to protect its sovereignty and its territorial integrity. It is essential for this reason that Japan be free to upgrade and protect Okinotorishima and to declare a 200-nm EEZ that eﬀectively connects this island to the other Japanese islands and to the main islands themselves. Therefore, China should recognize and respect a Japanese EEZ for Okinotorishima. On the other hand, Japan should recognize and attempt to satisfy China’s main concern—that it will have adequate information about the

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seas around Okinotorishima in the event of a conﬂict over Taiwan. Japan should recognize this interest by allowing China to conduct marine research in the EEZ surrounding Okinotorishima. This would in eﬀect create a special privilege for China, but it would not adversely aﬀect Japan if certain conditions, such as prior notiﬁcation and limits as to the time and manner of the research, could be negotiated. At present under the UNCLOS, China has the right of innocent passage and overﬂight throughout the EEZ. Even military vessels and planes enjoy these rights. Extending this to marine research would not be a major infringement of Japanese sovereignty, but would provide China with the reassurance and the security it deems necessary to satisfy its interests. Accordingly, to conclude a solution to the Okinotorishima dispute, China and Japan should agree as follows: 1.

2.

China agrees to recognize that Okinotorishima is an island under Japanese sovereignty with a 200-nm EEZ to which Japan has rights as speciﬁed in the UNCLOS treaty. China and Japan agree to undertake and implement a plan for cooperative marine research in the Okinotorishima EEZ. This joint research project would give special rights to China for a speciﬁed period and Japan and China would agree to share all information and to mount joint as well as separate research activities.

NOTES 1. 2. 3. 4. 5. 6. 7.

8. 9. 10. 11. 12. 13.

According to Pinyin Romanization the name of the islands is spelled Diaoyu Tai in Chinese. See especially Inoue (1972) and Murada (2004). See Murada (2004). Unryu (2000, pp. 86, 87, 99). Ibid., pp. 88–9. September 8 1951, 3 UST 3169. Also relevant is the doctrine of intertemporal law—that sovereignty be considered in the light of the rules of international law that prevailed at the time at which the claim of sovereignty is based and not the rules of international law prevailing at the time the dispute is being adjudicated. However, this is qualiﬁed by the distinction between the creation of rights and the existence of rights. This distinction requires that rights once created are subject to the continuing evolution of law so that subsequent legal developments can aﬀect rights created in the past. 2 R. Int’l Arb. Awards 829 (Perm. Ct. Arb. 1928). ibid. Sovereignty over Pulau Ligatan and Pulau Sipadan (Indonesia v. Malaysia) (2002) ICJ 102 (Dec. 17). Op. cit., pp. 845–6. (1953) ICJ 47 (Nov. 17). (1992) ICJ 351 (Sept. 11).

104 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

Peace in Northeast Asia Ibid., p. 563. (1999) ICJ 1045. See, for example, Dai Tan, (2006, pp. 134–68). UNCLOS Articles 56–57. UNCLOS Article 76. 499 UNTS 311. (1969) ICJ 3. (1982) ICJ 18; (1985) ICJ 192. (1985) ICJ 13. (1984) ICJ 246. (1991) ICJ 53. (1992) ICJ 351. (1993) ICJ 38. (1995) ICJ 6. (1998) ICJ 275. (1992) ICJ 348. (1992) 31 ILM 1149. See Charney (1994, pp. 227, 233). Libya/Malta Case, op. cit., paragraph 68. Hiramatsu, (2004, pp. 44–57); Yukie (2005, pp. 13–45). Asahi Shimbun, April 4 2007 (English edition), p. 1.

REFERENCES Charney, Jonathan I. (1994), “Progress on international maritime boundary delimitation”, American Journal of International Law, 88(1994): 227, 233. Dai Tan, J.D. (2006), “The Diaoyu/Senkaku dispute: bridging the cold divide”, Santa Clara Journal on International Law, 5(1): 134–68. Hiramatsu, Shigeo (2004), “Okinotorishima wo meguro nihon to chugoku nohunso” (The dispute between Japan and China concerning Okinotorishima), Mondai to Kenkyu, 7(2004): 44–57. Inoue, Kiyoshi (1972), “The history of and title to Diaoyu Tai”, Historical Studies, 381(January). Murada, Takayoshi (2004), Senkaku retto sogi (The Disputes over the Senkakus), Tokyo: Kyohosha Press (in Japanese). Unryu, Suganamu (2000), “Review of sovereign rights and territorial space”, in Sino-Japanese Relations: Irredentism and the Diaoyu/Senkaku Islands, Honolulu: Association for Asian Studies, University of Hawaii Press. Yukie, Yoshikawa (2005), “Okinotorishima: just the tip of the iceberg”, Harvard Asian Quarterly, 11(4): 13–45.

6. Finding a solution to the Takeshima/Dok Island dispute between Japan and South Korea 6.1

INTRODUCTION

Takeshima—Dok (Dokdo or Tokdo) Island in Korean—consists of two small rocky islets surrounded by 33 smaller rocks located 215 kilometers (km) from the eastern coast of the Korean peninsula and 92 km east of South Korea’s Ullung (or Ullungdo) Island. Takeshima/Dok Island is 157 km northwest of Japan’s Oki Islands.1 The west islet, Suhdo, is a steep-sided rock about 100 meters (m) high, and the east islet, Dongdo, is 174 m high. The total area of Takeshima/Dok Island is 0.186 km2, about 56 acres. These rocks are located about 200 m apart, and they are used extensively by pelagic birds for nesting and as resting places. The Republic of Korea (South Korea) has designated these rocks as Natural Monument No. 336. The islets have no permanent population but are occupied (since 1954) by the Korean Coast Guard. There is a small heliport and a lighthouse on West islet (see Figure 6.1).

6.2

THE DISPUTE BETWEEN KOREA AND JAPAN

There are two facets to the dispute over Takeshima/Dok Island. First, there is a territorial dispute over which nation—South Korea or Japan—has sovereignty over the island. Second, there is overlap between the Exclusive Economic Zones (EEZs) claimed by both countries in the Japan Sea (Korean name—East Sea). Takeshima/Dok Island is the main point in this dispute because until the territorial issue is resolved, the EEZ dispute cannot be settled. Both South Korea and Japan ratiﬁed the UN Convention on the Law of the Sea in 1996. In negotiation over the extent of their respective EEZs from 1996 to 2000 South Korea claimed as its EEZ a maritime boundary that is the equidistant line between Ullung Island and Japan’s Oki Islands. Japan rejected this line because of its claim to Takeshima. Thus, the two countries could not come to any agreement. In 2005 new EEZ negotiation began, and 105

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Source: From the website of Ministry of Foreign Aﬀairs of Japan.

Figure 6.1

Takeshima

South Korea now claims an EEZ boundary based on the equidistant line between Dok Island and the Oki Islands. This would give South Korea a much larger EEZ in the Japan Sea than it claimed before. The news media in South Korea and Japan have attributed this change of view to rising nationalism in Korea.

6.3

THE HISTORY OF TAKESHIMA/DOK ISLAND

Apparently what is now Takeshima/Dok Island was ﬁrst mentioned in Korean documents that refer to the Korean Shilla Dynasty and describe the islands as part of the independent island kingdom of Usankuk (Ullung Island), which was incorporated into the Shilla Kingdom in 512 CE. Shilla was succeeded by the Koryo Dynasty in 917. During the Koryo Dynasty, according to Korean sources, Takeshima/Dok Island was known as Wusan Island and was considered a part of Ullung Island.2 In 1393 the Koryo Dynasty was succeeded by the Chosun Dynasty, and in 1417, Ullung Island was declared to be uninhabited territory, and their settlement by Koreans was prohibited. The reasons for this are stated to be: (1) the long and dangerous sea voyage to the islands and (2) the fact that the islands were frequented by Japanese “pirates,” which apparently made them unsafe.3 While Koreans could not live on Ullung Island, apparently Korean ﬁshers continued to visit the island. The Korean government visited Ullung Island periodically to enforce the settlement ban.

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The ﬁrst clash between Japan and Korea over the islands occurred beginning in 1693, when Japanese authorities asked the Korean government to prohibit visits to Ullung (and perhaps Takeshima) by Korean ﬁshers. The Korean government rejected this demand, and instead asked Japan to forbid Japanese ﬁshers from visiting Ullung. In 1696 the Tokugawa shogunate apparently acceded to Korea’s demand as part of its policy of forbidding Japanese people from going abroad, and Japanese were forbidden to travel to Ullung.4 It is unclear whether the ban included Takeshima/Dok Island. Thus, by separate action of both the Japanese and the Korean governments, both for diﬀerent reasons, settlement and visits to Ullung and Takeshima/Dok Island were forbidden. Takeshima/Dok Island was discovered by Europeans and was registered on shipping charts after a French ship explored the Sea of Japan in 1787. Named “Boussole” after one of the French ships, Takeshima was later known as “Liancourt Rocks” to the French, British and Russian sailors who frequented this area in the 19th century. The longstanding ban on settlement in the area was lifted by both the Japanese and Korean governments at about the same time. After 1868 Japan no longer enforced the ban against travel abroad, and Japanese ﬁshers began to visit Takeshima/Dok Island. In 1881 Korea, perhaps in response, began to permit Koreans to settle Ullung Island.5 At the same time, Korea noticed that Japanese were visiting Ullung Island and lodged a protest with the Tokyo Foreign Ministry and the acting Minister, Ueno Kagenori. In response, Japan issued a decree prohibiting Japanese ﬁshers from going to Ullung Island.6 In 1900 Korea issued Royal Edict No. 41 (Chikryung 41 in Korean), which reorganized Ullung as a part of Kangwon Province. This Edict named and included two islands adjacent to Ullung—Juk Island and Sok Island. Korea maintains that “Sok” Island refers to “Dok” Island since the word “sok” in Korean means “rock,” which is also the meaning of “dok” in Korean (Dokdo in Korean can mean either Lonely Island or Rock Island depending on which Sino-Korean character is used for the word “dok”).7 The reason for this Edict was to tighten up the administration of this area under Korean sovereignty. Governmental action relating to Takeshima/Dok Island by Japan was precipitated by a Japanese ﬁsher, Nakai Yazaburo, a resident of the Oki Islands, who in September 1904 requested exclusive rights to ﬁsh and hunt sea lions on Takeshima. He in fact believed this island to be Korean, and was going to submit his request to Korea, but the Japanese Fisheries Bureau Director, Bokushin Maki, dissuaded him from doing so. In a coordinated action, the Governor of Shimane Prefecture proclaimed Takeshima to be part of Shimane Prefecture on 22 February 1905. This action had

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been previously approved at a meeting of the Japanese Cabinet in January 1905. On 17 May 1905, Japanese oﬃcials entered Takeshima’s name on the State Land Register for Okinokuni, District 4. Japan administered Takeshima from this time until 1945. Of course this was an expansionist period in Japanese history. Later in 1905, after defeating Russia in a major war, Japan crafted a treaty with the Korean government (17 November 1905)8 making Korea a Japanese “protectorate.” In 1910 Korea was formally annexed by Japan and was ruled by Japan until 1945. During the American military occupation of Japan after 1945, the ultimate authority was the Supreme Commander for the Allied Powers, known as SCAP. A SCAPIN (SCAP instruction) No. 677 issued on 29 January 1946 excluded Takeshima/Dok Island as well as Ullungdo and Quelpart Island (Chejudo) from Japanese territory. Japan was deﬁned in this directive as follows: Japan is deﬁned to include the four main islands of Japan (Hokkaido, Honshu, Kyushu, and Shikoku) and the approximately 1000 smaller adjacent islands, including the Tsushima Islands and the Ryukyu (Nansei) Islands north of 30 degrees North Latitude (excluding Kuchinoshima Island) and excluding (a) Utsuryo (Ullung) Island, Liancourt Rocks (Take Island) and Quelpart (Saishu or Cheju) Island, (b) the Ryukyu (Nansei) Islands south of 30 degrees North Latitude (including Kuchinoshima Islands), the Izu, Nanpo, Boni (Ogasawara) and Volcano (Kazan or Iwo) Island Groups, and all other outlying Paciﬁc Islands (including the Daito (Chigashi or Oagari) Island Group), and Parece Vela (Okinotori), Marcus (Minamitori), and Ganges (Nakano-tori) Islands, and (c) the Kurile (Chishima) Islands, the Habomai (Hapomaze) Island Group (including Suisho, Yuri, Akiyuri, Shibotsu and Taraku Islands) and Shikotan Island.

SCAPIN 677 added that “The deﬁnition of Japan contained in this directive shall also apply to all future directives, memoranda and orders from headquarters unless otherwise speciﬁed.” Another provision of SCAPIN 677 states that “Nothing in this directive shall be construed as an indication of Allied policy relating to the ultimate determination of minor islands referred to in Article 8 of the Potsdam Declaration.”9 Yet, although the deﬁnition of Japanese territory in SCAPIN 677 was revised on two occasions,10 no subsequent revision was made to include Takeshima/Dok Island. Another SCAPIN directive, No. 1033 issued on 22 June 1946, prohibited Japanese nationals from approaching closer than 12 nautical miles (nm) to Dok Island. In June 1947, Japanese authorities appealed to the US occupation to recognize Japanese sovereignty over both Takeshima and Ullungdo, but the Americans took no action. A reference to Takeshima was deleted from the San Francisco Peace Treaty of 1951, and this instrument did not address the sovereignty issue.

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On 18 January 1952, the South Korean President, Yi Seung-man (Syngman Rhee), unilaterally announced the establishment of a line in the Sea of Japan known as the Rhee Line or the Peace Line, and of course Dok Island was on Korea’s side of this line. In the early 1950s there were several incidents of military conﬂict over Takeshima/Dok Island, including a bombing incident on 15 September 1952, when Japanese vessels tried to approach and land on the island. Angry notes over Takeshima/Dok Island were exchanged between the governments of the two countries in 1953 and 1954. In 1954 Korea built a concrete lighthouse and a helicopter landing pad. Ever since this time, the islands have been under the protection of the South Korean Coast Guard. Japan has periodically continued to protest Korean occupation, maintaining that the islands are an integral part of Japan. In 1965 South Korea and Japan signed a Basic Relations Treaty normalizing their diplomatic relations. The issue of Takeshima/Dok Island was deliberately left out of the treaty text, and no formal “peace line” was speciﬁed as the territorial boundary between Korea and Japan. The issue of Takeshima/Dok Island ﬂares up from time to time to mar the otherwise good relations between Japan and South Korea. In 1996 Japanese Foreign Minister, Yukihiko Ikeda, publicly reaﬃrmed Japan’s territorial claim after South Korea declared its intention to build a dock on the islands. The two countries later engaged in separate military exercises near the islands designed to assert each country’s “rights.” The dock was completed in 1997, and a manned lighthouse and monitoring facility were constructed in 1998. In negotiations over their respective maritime zones in the Japan (East) Sea, from 1996 to 2000, the two countries have been unable to ﬁnd common ground because of the Takeshima/Dok Island dispute. In 2005, South Korea issued a “Dok Island” commemorative stamp, and Shimane Prefecture, Japan retaliated by designating 22 February as “Takeshima Day.” In 2006 Japan also decided to carry out a marine survey near the islands, drawing a South Korean protest and threats of military confrontation. After diplomatic negotiations Japan backed down and instead the two countries decided to conduct a “joint survey.” But the area around Takeshima/Dok Island was excluded from the survey at South Korean insistence. When Korean ships conducted research activities near the islands, Japan issued a diplomatic protest. An attempt to delineate the maritime boundary between Japan and South Korea continues, but the position of each contestant is now heavily inﬂuenced by news of possible rich resources in the area. Not only do relatively good ﬁshing grounds surround the islets, the seabed may hold several million tons of gas hydrates (natural gas condensed into semi-solid form).

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This rich deposit can be made into highly valuable liquid natural gas (LNG). Yet exploitation presents diﬃcult and dangerous problems if the maritime boundary cannot be ﬁrst settled.

6.4 JAPAN’S ARGUMENTS ASSERTING SOVEREIGNTY OVER TAKESHIMA Japan’s assertion of sovereignty over Takeshima is based on “historical facts and international law.”11 Japan thus maintains that Takeshima is an integral part of Japanese territory and that the occupation by the Republic of Korea is an illegal occupation undertaken with no basis whatsoever: ● ●

● ● ● ●

Japan claims that the Japanese government has “long known” about Takeshima as depicted on maps and in documents. During the Edo period “at the latest by 1661” the Ohya and Murakawa families were granted feudal tenure over Ullung Island, and this also included the use of Takeshima as a stopover port and for ﬁshing. In 1696 the shogunate prohibited vessels going to Ullungdo but not to Takeshima. In 1905 Japan “reaﬃrmed” its claim to Takeshima by incorporating the islets into Japanese territory. Japan administered the islets from 1905 to 1945.12 Mention of Takeshima/Dok Island was taken out of the San Francisco Peace Treaty of 1951. Thus, Japan claims that Takeshima was not part of the territory of Korea that it renounced in this treaty.13

Japan also claims that the annexation of Takeshima in 1905 was valid because at this time Takeshima was terra nullius—land under no state’s sovereignty.14

6.5

SOUTH KOREA’S CLAIM OF SOVEREIGNTY

South Korea claims sovereignty over Dokdo based on historical records going back to 512 and the Shilla Kingdom and continuing in the subsequent Koryo and Chosun Dynasties. It is obvious in this regard that South Korea considers Takeshima as contiguous to and essentially a part of Ullungdo, so that documents that refer only to Ullungdo also refer to Takeshima. However, there is also apparently some record of Dokdo in the historical record.

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South Korea also argues that in 1696 the Japanese prohibition of Japanese ships applied not only to Ullungdo but also to Dokdo. However, Japan says this prohibition did not apply to Dokdo. This is a factual diﬀerence that cannot be resolved unless all relevant documents are produced and studied by experts. South Korea’s claim to Dok Island is also based on the fact that South Korea patrolled the area regularly during the years settlement was prohibited on Ullungdo. These patrols tend to show continued Korean administration and attention to the area. South Korea also argues that the prohibition by Japan in 1881 of Japanese ﬁshers going to Ullung Island included Dok Island. This, of course, is disputed by Japan. Finally, South Korea’s claim is based on the 1900 Royal Edict No. 41, which does name—although somewhat ambiguously—Dok Island as well as Ullungdo. If South Korea’s argument is correct, the administration of Dok Island by Japan from 1905 to 1945 was an integral part of Japan’s administration and occupation of Korea as a whole. Of course, this occupation and administration was ended and renounced by Japan in 1945 and this was conﬁrmed in the 1951 San Francisco Peace Treaty although mention of Takeshima/Dok Island was left out of the text of the treaty. South Korea argues that the fact that the Peace Treaty did not mention Dok Island was irrelevant because SCAPIN 677 issued by the US occupation in 1946 deﬁned the territory of Japan as excluding Dok Island, and this was the basis on which Japanese sovereignty was re-established at the end of the US occupation.15

6.6 AN EVALUATION OF THE CONTENDING POSITIONS As a threshold matter it must be admitted that no deﬁnitive evaluation of the parties’ respective arguments can be made in the absence of an examination of the documentation of the factual claims of both sides. This cannot be done unless the parties agree to submit their claims to a court or an arbitrator who has the capacity to require production and analysis of all relevant documents. Such an examination of relevant documents may not, however, clarify an all-important point that is at the center of the dispute: whether Dok Island was historically considered to be contiguous to and a part of the Ullung Island group or not. This problem is fundamental to both parties’ arguments: South Korea claims that all the documents and actions with reference to Ullung Island also took in Dok Island. Japan, on the other hand, consistently maintains that Takeshima/Dok Island was

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always considered and treated as separate and distinct from Ullung Island. It is hoped that this ambiguity can be settled by examination of the documentation, but more likely is the case that even after a close and rigorous examination of the documents, this ambiguity will remain. In this case, even a totally objective decision-maker would have to rely on educated “guesswork” to come to a decision. Even despite the ambiguities and the closeness of the argumentation, it is possible to make an evaluation of which side has the better case. Both South Korea and Japan base their claims to sovereignty over Takeshima/Dok Island on the international law of eﬀective occupation of territory. As exempliﬁed in the leading case, the Island of Palmas Arbitration16 of 1928, to prove eﬀective occupation of territory as a basis of sovereignty, it is necessary to show acts of governmental administration and control; a showing of discovery alone is not suﬃcient. While settlement and peaceful administration are one way of establishing eﬀective occupation, governmental acts short of settlement may be suﬃcient depending on the circumstances. In the Clipperton Island Case (1932),17 for example, it was suﬃcient to satisfy the requirements for eﬀective occupation that France landed a small party, made a geographical survey and published its claim in a newspaper. This case involved a small, uninhabited island, and under this circumstance, very limited governmental actions were suﬃcient to establish sovereignty. Thus, the question of sovereignty over Takeshima/Dok Island can be analyzed in terms of two questions: (1) Which state ﬁrst plausibly made governmental acts with respect to the islands? And (2) were the governmental acts in question suﬃcient compared with the Clipperton Island standard? In answering these questions it must be kept in mind that the actions of private persons—be they Japanese or Korean—in visiting the islands or doing other acts there are not relevant. Only governmental acts count toward satisfying the standard of eﬀective occupation. When the history of human dealings with Takeshima/Dok Island is analyzed it is highly probable that South Korea would be able to prove the ﬁrst acts of governmental character with regard to Takeshima/Dok Island. South Korea claims that the islets are mentioned in various government and military reports as well as maps beginning in 512. Korea appears to have enforced its ban on settlement of Ullung Island by governmental patrols that included Dok Island. Korea seems to have consistently protested the presence of Japanese nationals on both Ullung and Dok Islands. Korea also took steps to preserve its claim to both Ullung Island and Dok Island in the 19th century when Korean–Japanese rivalry resumed. Korea also issued Royal Edict No. 41 in 1900 in an eﬀort to tighten its administration of the islands including Dok Island.

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In contrast, the only Japanese governmental action that is alleged to have occurred before the decree of annexation in 1905 was the grant of feudal tenure to two Japanese families during the Edo Period. But there is the question whether this feudal grant really included Takeshima, and, even assuming that it did, the subsequent action of the Tokugawa government forbidding Japanese to visit the islands could be interpreted as revoking this feudal tenure as well as the Japanese claim. The governmental acts of Korea, on the other hand, also appear suﬃcient under the Clipperton Island standard to establish sovereignty. Korea appears to have accurately charted Dok Island and to have regulated visits there from an early time. These acts, combined with Korea’s consistent and public claim to control access to the islets, are suﬃcient considering that Dok Island consists of two uninhabitable rocks. By the time of the annexation of Takeshima by Japan in 1905, and no doubt many years before this date, Korea had already established sovereignty. Thus, the annexation by Japan in 1905 had no legal eﬀect. Several additional arguments support Korea’s claim. First, Japan’s claim is self-contradictory. On the one hand Japan claims by reason of eﬀective occupation in the 17th century; on the other hand, Japan claims Takeshima by reason of the 1905 decree of annexation of the islands as terra nullius. Thus, the Japanese claim is logically inconsistent. Second, the Japanese claim is very closely associated with Japan’s domination and annexation of Korea. The timing is too close to believe that the annexation of Takeshima was totally unrelated to the treaty concluded later in 1905, making Korea a Japanese protectorate and the Treaty of Annexation of Korea in 1910. Third, oﬃcial Japanese maps and charts during the 1880s and 1890s depict both Ullung Island and Dok Island as Korean territory. Fourth, the fact that the SCAPIN 677 directive deﬁned Japan as not including Takeshima/Dok Island, and that this deﬁnition was intended to be oﬃcial and operative as to the re-establishment of both Korea and Japan after World War II, tends to favor Korean sovereignty over Dok Island. In summary, South Korea seems to have the better case for sovereignty over Dok Island.

6.7

THE OPTIONS FOR DISPUTE SETTLEMENT

The options available for dispute settlement with regard to the Takeshima/ Dok Island dispute include bilateral negotiation and submission of the dispute to a court or an international arbitral tribunal. In 1954 Japan made an oﬃcial request to South Korea to submit the dispute to the International

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Court of Justice, but this was rejected by South Korea at that time. It is the position of the South Korean government that there is no dispute over Dok Island because it is South Korean territory and is controlled by South Korean police. From South Korea’s point of view there is only a failure to agree on the maritime boundary between the two countries. Negotiations over this boundary are ongoing, but are stalemated largely due to the impasse over the sovereignty issue. Japan for a long time took the view that the dispute over Takeshima could be safely ignored by both sides in favor of developing good relations on more important matters. While this was perhaps the best policy in the past, ignoring the problem is becoming increasingly more diﬃcult and dangerous. Takeshima/Dok Island may not have much importance in itself, but sovereignty over the island is the key to control over an indeterminate maritime area that may hold important resources—not only ﬁshing but oil and gas deposits of undetermined value. Thus, it is best for both countries to take steps to end the dispute and to establish the maritime boundary in the Sea of Japan. In view of the legal nature of the dispute and because resolution of the dispute ideally requires the production of documents and their analysis by experts, a judicial setting would seem to be the best forum for dispute settlement. However, a territorial dispute such as Takeshima/Dok Island cannot be submitted to the International Court of Justice or any other international tribunal without the consent of both parties. Since South Korea is adamant in rejecting such a court submission and the jurisdiction of the International Court of Justice, this option is not available now and does not seem realistic at any foreseeable future time. This means that the only realistic method of dispute settlement is the continuation of bilateral discussions and negotiations. However, such discussion has taken place since 1996 to no avail. It appears necessary for one side or the other to propose a bold solution. One such solution is put forward in the following section.

6.8 A PROPOSED SOLUTION: THE MARITIME BOUNDARY IN THE SEA OF JAPAN/EAST SEA The Sea of Japan is shared by four states: Japan, South Korea, North Korea and the Russian Federation. Obviously all four states must agree to deﬁnitively draw the maritime boundaries in this sea. In 1986 North Korea entered into an agreement with the Soviet Union (now the Russian Federation) to establish their maritime boundary in the Sea of Japan. This boundary ends (at the southernmost point) at a point in the Sea of Japan

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that is 181.8 nm from Ullung Island; 187.7 nm from the Noto Peninsula of Japan; and 183.9 nm from Povorotny at the tip of Peter the Great Bay in Russia.18 This point seems to be a fair and useful one to mark the northern end of a proposed maritime boundary between Japan and South Korea. If this were to be accepted by South Korea and Japan, this point would serve as a kind of maritime lynchpin—it would be a common converging point in the Sea of Japan for the maritime boundaries of all four states. How should the maritime boundary be drawn between South Korea and Japan in the context of the Takeshima/Dok Island dispute? Clearly it is impossible to resolve the boundary question without addressing the sovereignty issue. The following solution is proposed as a diplomatic compromise that both nations can accept. The guiding principles that illuminate this proposed solution are three: (1) the maintenance of peace; (2) justice; and (3) international cooperation. Peace means that there must be a solution that both states willingly accept; justice means that the solution must comport with equity and international law; and international cooperation means that the solution should not be a “one-oﬀ” matter, but should commit the two states to continued peaceful and mutually beneﬁcial international cooperation. Thus, it is proposed that South Korea and Japan enter into a formal Treaty Concerning the Maritime Boundary and Other Matters Concerning the Sea of Japan/East Sea.19 The parties should agree as follows: ●

●

That Dok/Takeshima is part of the sovereign territory of the Republic of Korea. This comports with justice since it appears that South Korea has the better of the legal argument in favor of sovereignty. The maritime boundary between South Korea and Japan will be recognized to begin at the point recognized in the 1986 Treaty between North Korea and the Russian Federation and to continue southward to follow the equidistant line between the land areas of the two states. For the purpose of drawing the equidistant line both Ullung Island on the Korean side and the Oki Islands on the Japanese side should be given full value so the line is equidistant from each of these islands. But for purposes of the maritime boundary Dok/Takeshima Island shall be given no eﬀect. This coincides with the principle of justice since in cases such as the Libya/Malta judgment, as detailed in Chapter 5, uninhabited islands are given no eﬀect when drawing maritime boundaries. Thus the equidistant line in the Sea of Japan will pass very close to Dok/Takeshima Island, which will be on the Korean side of the boundary line. This maritime boundary line will be similar to the Rhee Line of 1952.

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South Korea and Japan will also agree on long-term cooperation to deal with all matters that may be relevant to the protection and exploitation of the Sea of Japan. This may include future joint exploration and exploitation of oil and gas resources, ﬁshing and pollution control. This agreement should be open to Russia and North Korea to join as well. Japan and South Korea should agree to form a Joint Management Authority that meets on a regular basis to discuss issues and to manage and resolve any future disputes.

NOTES 1. 2 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

The exact position is 37° 14´ 45´´ N and 131° 52´ 30´´ E. The English name is Liancourt Rocks. Chee. (1997, 25(1): 2). Ibid., p. 3. Taijudo (1966, p. 112, in Japanese). Chee, op. cit., p. 5. Park (1965). Ibid. An earlier treaty in August 1904 between Korea and Japan granted Japan the right to appropriate Korean territory for military purposes. This Article restricted the deﬁnition of Japanese territory as comprising the main islands and undetermined “minor islands.” In 1946 and 1952 the deﬁnition of the territory of Japan was revised to include additional small islands. Ministry of Foreign Aﬀairs of Japan, The Issue of Takeshima, http://www.mofa.go.jp/ region/asia-paci/takeshima/index.html. Accessed 14 February 2008. Ibid. Taijudo, op. cit., p. 129. The decree of annexation itself in 1905 states that the islets were terra nullius. Chee, op. cit., pp. 31–4. The Netherlands v. United States, 2 RIAA (1928) 829. 26 AJIL (1932) 390. For more detail see Young-Koo (1997, pp. 62–4). Both names can and should receive oﬃcial and international recognition.

REFERENCES Chee, Choung Il (1997), “Legal status of Dok Island in international law”, Korean Journal of International and Comparative Law, 25(1): 2. Park, Kyung Re (1965), A Study of the Legal and Historical Aspects of Dok Island, Seoul: Korean Public Opinion Corporation. Taijudo, Kanae (1996), “Take shime funso” (Take Island dispute), Kokusaiho gaiko sashi, 64(1996): 112 (in Japanese). Young-Koo, Kim (1997), “Maritime boundary issues and island disputes in Northeast Asia”, Korean Journal of International and Comparative Law, 25(49): 62–4.

7. Solving the “Northern Territories” problem and concluding a peace treaty between Japan and Russia 7.1

INTRODUCTION

For over 60 years the dispute over the four islands oﬀ Hokkaido that in Japan are referred to as the “Northern Territories”1 has impeded normal international relations between Japan and at ﬁrst the Soviet Union and now the Russian Federation. The failure to resolve this territorial problem means that Japan cannot enter into normal relationships with one of its closest neighbors. The existence of this dispute is the main reason why no peace agreement has been concluded between these two states that were bitter enemies before Japan’s defeat in World War II. Since the end of the Cold War, relations between Japan and Russia have been correct but not cordial. Although trade between Japan and Russia reached a record high of US $13 billion2 in 2006, this is an anemic sum compared with Japan’s trade with other comparable countries. Similarly, Japan and Russia are cooperating after a fashion on North Korea, Iran, and on the problem of climate change (both nations have ratiﬁed the Kyoto Protocol), but Russia has shown little sympathy or understanding of Japan’s main interests. Japan is a natural market for the energy resources of the Russian Federation, but in this sphere little has been agreed. The Northern Territories dispute casts a pall over every meeting and all eﬀorts to cooperate between these two important neighbors. Peace in East Asia clearly requires that this dispute be ended amicably and fairly and a peace treaty that is preliminary to broad cooperation be concluded as soon as possible.

7.2

THE DISPUTE

The dispute between Japan and the Russian Federation is a purely territorial issue. Unlike the disputes between Japan and China and between Japan and South Korea, maritime boundary issues are not directly involved. However, it is obvious that the Northern Territories issue also involves the 117

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Figure 7.1

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The Northern Territories

right to control large areas of ocean space. This fact makes the resolution of the dispute much more complex and diﬃcult than it would be if only territory were involved. The nub of the dispute is over which state enjoys sovereignty over four island areas north of Hokkaido. The four islands are: the Habomai group; Shikotan; and the two southernmost islands that are in the Kuril (or Kurile) Islands chain: Etorofu and Kunashiri (see Figures 7.1 and 7.2) All four islands were indisputably part of Japan until 1945. In the closing days of World War II, however, Soviet troops invaded and occupied all four islands. In 1946 the Soviet Union expelled all the Japanese residents who remained and unilaterally annexed these islands, making them an integral part of the Soviet Union. Ever since that time up to the present, the Soviet Union and now the Russian Federation has continued to administer all four islands as Russian territory. Russian people have been allowed to inhabit the islands. A provisional maritime boundary is enforced as well—the equidistance line between the southern edge of the islands and the Japanese island of Hokkaido.3 The Russian Federation claims that these four islands are an integral part of its sovereign territory. Japan also claims sovereignty over all four islands and declares that they were illegally annexed by the Soviet Union following World War II.

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Figure 7.2

119

The Kuril Islands

7.3 THE HISTORICAL BACKGROUND OF THE DISPUTE The roots of the dispute over the four islands known as the Northern Territories go back in time. In the 18th century, Russian adventurers explored the beautiful and lightly inhabited island of Sakhalin and the Kuril Islands. At the same time, Japanese ﬁshers and hunters were doing the same. These two very diﬀerent cultures apparently had little direct contact, but the governments of both countries laid claim to these areas on the basis of the explorations made by their respective nationals. The native aboriginal population, the people now known as the Ainu, was ignored by both Japan and Russia. The ﬁrst attempt to deal with the conﬂicting claims and to delineate a boundary between Japan and Russia was the 1855 Treaty of Commerce,

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Navigation and Delimitation, known as the Shimoda Treaty. Article 2 of this agreement speciﬁed that the boundary line between Japan and Russia “shall lie between the islands of Etorofu and Uruppu.” According to this determination all four “Northern Territory” islands were Japanese, while the northern group of 18 Kuril Islands, all located to the north of Etorofu, belonged to Russia. The Shimoda Treaty did not deﬁnitively settle the matter of Sakhalin, apparently because the parties could not agree. Instead, with regard to Sakhalin, the treaty merely speciﬁed that “historical precedent shall be observed.” In 1875 a second agreement was signed, the St. Petersburg Treaty for the Exchange of Sakhalin for the Kuril Islands. This treaty settled the Sakhalin matter by eﬀecting an exchange of lands between Japan and Russia. Japan ceded its rights in Sakhalin in exchange for title and sovereignty over the northern group of 18 Kuril Islands. This placed the boundary between Japan and Russia in the middle of the strait between the Kamchatka Peninsula and the northernmost Kuril Island of Shumushu. This boundary was observed until the Russo-Japanese War of 1904–05, which was won by Japan. The Portsmouth Treaty of 1905, mediated by the United States, speciﬁed a new boundary line because Russia ceded to Japan the southern half of Sakhalin south of 50º latitude. The acceptance of this treaty sparked protest demonstrations in Japan because many Japanese believed that Japanese sovereignty should extend over the whole of Sakhalin. If Japan had insisted on this at the time, this probably would have been the case, since Russia was in no position to defend its interests. During World War II, the Soviet Union saw its chance to regain what it considered its lost territories. At the Cairo Conference of the wartime allies in 1943, the United States, the Soviet Union and the United Kingdom resolved to expel Japan from “all territories which she has taken by violence and greed.” At the Teheran Conference of the allies in 1944, the Soviet Premier, Joseph Stalin, argued that at the end of the war, Japan should be forced to cede Sakhalin as well as the Kuril Islands to the Soviet Union. This proposition was formally accepted at the Yalta Conference in February, 1945: to reward the Soviet Union for entering the war against Japan, the allies speciﬁed that “the Kuril Islands shall be handed over to the Soviet Union.” This was followed up in August 1945 by President Truman’s General Order No. 1, which initiated the post-war dealings with Japan. As ﬁnally issued on 23 August 1945, this Order stated that Japanese armed forces on “all of the Kuril Islands shall surrender to the Commander in Chief of the Soviet Forces of the Far East.” A main point of this Order at the time was to reject the demand of Joseph Stalin to include Hokkaido within the sphere of Soviet control. Little thought or concern was given to the Kurils or what are now the Northern Territories, and the Soviets imme-

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diately occupied these areas. On 20 September 1945, the Soviet Union unilaterally declared that all four islands were now Soviet territory. This declaration was inserted into the Soviet Constitution in 1947. The issue of the return of the four islands to Japan ﬁrst arose in 1955 in connection with bilateral talks between Japan and the Soviet Union to conclude a treaty of peace. These talks almost succeeded in establishing a compromise wherein Japan would regain Habomai and Shikotan, but give up all claim to Etorofu and Kunashiri. Before any agreement could be concluded, however, the United States intervened. As a part of the policy of “containment” of its Cold War adversary, Secretary of State, John Foster Dulles, in a meeting with the Japanese foreign minister, cast cold water on the deal, saying that if Japan was prepared to give up the Kurils to the Soviet Union, “the United States might remain forever in Okinawa.” This caused Japan to return to rethink its policy and to return to its position that it would accept nothing less than return of all four islands. This was unacceptable to the Soviet Union, and in their Joint Declaration of 19 October 1956, both governments agreed to continue negotiations on a peace treaty, and the Soviet Union reiterated its intention to transfer Habomai and Shikotan to Japanese sovereignty “after the conclusion of a peace treaty.” The end of the Cold War produced another round of eﬀorts to deal with the dispute and to conclude a Treaty of Peace. In 1993 Russian President, Boris Yeltsin, and the Japanese Prime Minister signed the “Tokyo Declaration,” which called for urgent negotiations to resolve the territorial issues with respect to all four islands, implying that the matter of Etorofu and Kunashiri, the two Kuril Islands, was still on the table. Furthermore, in 1997 at a Summit Meeting at Krasnoyarsk, the two nations agreed to make “utmost eﬀorts” to conclude a treaty of peace and to resolve the islands dispute. Nothing came of this, however, and since Vladimir Putin assumed the Presidency of Russia in 2000, the Russian attitude has hardened into a new nationalism that precludes any territorial concessions in particular with Japan. In June 2007, Russian Foreign Minister, Sergei Lavrov, told the Japanese press that “forming a solution [to the islands problem] is not yet in view.”4 In addition, Russia has imposed a ban on the export of live crabs to Japan. President Putin charged in June 2007 that “the volume of crabs and other seafood that is unloaded in Japanese ports exceeds by far the volume we have listed in our customs documents,” implying that much live seafood is being smuggled into Japan from the Northern Territories.5 On 8 June 2007, at the Group of Eight Summit in Germany, in a sideline meeting with Japanese Prime Minister, Shinzo Abe, President Putin agreed to consider as “appealing and constructive” an initiative submitted by Japan for cooperation in the ﬁelds of energy, transportation, data transmission, environmental protection, security and investment. Japan

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would especially like to participate in the development of eight oil and gas ﬁelds in the Russian Far East and Eastern Siberia. President Putin avoided any response when asked about the territorial issues.6

7.4

THE RUSSIAN CLAIM TO THE ISLANDS

The Russian Federation claim to the islands is based on the Yalta Conference agreement of February 1945, which stated that “the Soviet Union shall enter the war against Japan . . . on condition that . . . the Kuril Islands shall be handed over to the Soviet Union.” Russia also argues that this agreement was conﬁrmed by President Truman’s General Order No. 1, which authorized the Soviets to accept the Japanese surrender in the Kuril Islands and north of Hokkaido. Russia also claims the islands under the authority of Article 2(c) of the 1951 San Francisco Peace Treaty, which provides that: “Japan renounces all right, title, and claim to the Kuril Islands and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905.” Adding further weight to the Russian claim is the joint declaration of 19 October 1956, which expressed Russian willingness to return Habomai and Shikotan, and the fact that this proposal was acceptable to Japan until the American intervention. It can be argued that Japan, in the negotiations leading up to the signing of this joint declaration, renounced its claim to Etorofu and Kunashiri.7

7.5

JAPAN’S CLAIM TO THE ISLANDS

Japan’s claim to the four islands essentially goes back to the Shimoda Treaty of 1855, which was the original boundary agreement with Russia. At that time all four islands were conﬁrmed as Japanese. In so doing, Japan is willing to disregard the 1875 St. Petersburg Agreement as well as the Portsmouth Treaty of 1905. Japan argues that the Yalta Agreement carries no weight because this was an agreement to which Japan was not a party, and the allies had no right under international law to dispose of Japanese territory without Japan’s consent. As for Truman’s General Order No. 1, this was not intended to authorize the disposition of Japanese territory, but was only intended to specify who would take over the duty of accepting the surrender of Japanese military forces after World War II. Furthermore, under the provisions of Geneva

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Convention No. IV, Article 47 (1949), an occupying power after a war is prohibited from annexing occupied territory “in whole or in part.” As for the provision renouncing the Kuril Islands in the 1951 San Francisco Peace Treaty, Japan argues that since the Soviet Union was not a party, Russia has no rights or beneﬁt from this provision. In fact, Article 25 of the San Francisco Treaty provides that: “The present Treaty shall not confer any rights, titles or beneﬁts on any allied power that does not sign and ratify it.” The Soviet Union not only did not sign the San Francisco Treaty but its negotiators walked out in protest. Japan therefore maintains that Russia cannot claim any beneﬁt from this Treaty.

7.6

THE MERITS OF THE CLAIMS

On balance, Japan has the better legal claim to sovereignty over all four disputed islands. Prior to World War II, Japan possessed uncontested sovereignty over all of the Kurils as well as the southern half of Sakhalin. The loss of these territories is directly the result of events during and immediately after World War II over which Japan had no control. The ﬁrst of these events was the Cairo Conference in 1943, which set the policy of expelling Japan from “all territories which she has taken by violence and greed.” This ambiguous formulation is obviously subject to multiple interpretations. Does this mean all the territory Japan conquered beginning with the Meiji Restoration in 1868, or is this limited to territories conquered in the 1930s and 1940s? The Soviet Union and its leader Joseph Stalin obviously desired to apply this policy to Sakhalin and the Kurils, and the United States at this time saw no reason to object. The United States was intent only on winning the war both in Europe and the Paciﬁc; American leaders had no brief whatsoever to look out for Japan’s interests and were little concerned with what would happen after the war. The Americans also failed to understand the true intent of the Soviet leadership and had little knowledge of the history of northeast Asia. Thus, the United States readily acceded to the Soviet demand that the 1905 Treaty of Portsmouth be undone. This led to a formal agreement at the Yalta Conference in 1945 that all of the Kuril Islands would be turned over to the Soviet Union at the end of the war. But Japan was not a party to this agreement and the United States and the allies had no power or authority to award the Kurils or to transfer sovereignty over legitimate Japanese territories. Thus, the Yalta Agreement is without legal eﬀect, and the Russian claim is unjustiﬁed. The Russian annexation of the Northern Territories in 1945 is also without legal eﬀect. Although the occupation of the islands by Soviet forces was legally correct, an occupying power under the Geneva Conventions has

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a duty to control the area under occupation as well as to provide for the civilian population. Geneva Convention (No. IV) of 1949, which states the applicable prevailing law as formulated earlier in the Hague Convention (No. IV) of 1907, in fact speciﬁcally prohibits annexation of territory by the occupying power. Thus, the Soviet annexation in 1945 was clearly illegal. Annexation was beyond the permitted scope of US President Truman’s General Order No. 1 as well. In annexing the Northern Territories as well as in expelling thousands of Japanese residents of the territories, the Soviet Union committed a clear breach of the international law of war as well as international human rights laws. During the American occupation of Japan, the territory of Japan was consistently deﬁned to include all four islands that comprise the so-called Northern Territories. SCAPIN No. 677 deﬁned Japan to include Etorofu and Kunashiri as well as the Habomai group of islets and Shikotan.8 Perhaps due to careless drafting, the 1951 San Francisco Peace Treaty provided in Article 2 that Japan “renounces all right, title and claim to the Kurile Islands.” This fact gives the Russian Federation its strongest argument that its sovereignty is legitimate. The Russian claim cannot be upheld on these grounds, however, because the Soviet Union was not a party to the San Francisco Treaty. Under international law a treaty does not carry either rights or obligations as far as a non-party is concerned. This is explicitly stated in Article 25 of the Treaty, which excludes “any rights, titles, or beneﬁts” for non-parties. The US government also issued an interpretation that the renunciation of Article 2 was not intended to include any of the Northern Territories. It would also be a gross injustice if Russia were allowed to derive a beneﬁt from the obvious and egregious breaches of international law that occurred in 1945 with the expulsion and annexation committed by Soviet forces.

7.7

OPTIONS FOR DISPUTE SETTLEMENT

The dispute over the Northern Territories is dominated by legal considerations and conﬂicting legal interpretations. Russian President, Vladimir Putin, is reported to have stated that “Russian sovereignty over the four northern islands (Etorofu, Kunashiri, Habomai and Shikotan) is guaranteed by international law as a result of World War II.”9 The Japanese government also sees this dispute as governed by legal considerations. Therefore, the best way to resolve the matter would be for both parties to agree to refer the dispute either to the International Court of Justice or to an ad hoc arbitral tribunal for a decision on the legal merits of the case. Regretfully, this does not seem possible. The International Court of Justice or an arbitral tribunal cannot claim jurisdiction unless both gov-

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ernments agree to submit to a judicial forum. While Japan would probably agree to such a course of action, the Russian Federation, which is secure in its administration of the four islands, has even refused to discuss the matter seriously. Thus, there seems to be no prospect of submission of the dispute to an international court or tribunal. At the time of writing the current Russian policy is to reject even serious bilateral talks over the sovereignty of the four northern islands. In June 2007 when Japanese Prime Minister, Shinzo Abe, suggested such talks, Russian President, Vladimir Putin, diplomatically declined, saying the discussions over the islands should be limited to the question of ﬁsh exports and controlling illegal export of ﬁsh products to Japan.10 This stance by the Russian government is consistent with a new realism in foreign policy under Putin’s administration. Russia is intent on controlling oil and gas resources and using energy as a diplomatic bargaining chip in order to assert Russian power and inﬂuence in Asia and in the world. Russia regards the four islands as valuable for the potential resources they contain and for their strategic location. Putin’s realistic foreign policy approach contrasts with former President Boris Yeltsin’s more accommodating manner. In 1993 Yeltsin agreed to serious negotiations involving all four disputed islands by signing the Tokyo Declaration at the conclusion of a Russo-Japanese Summit Meeting. In 1997, Russia and Japan agreed to make “utmost eﬀorts” to deal with the islands’ dispute and to conclude a Peace Treaty. Yet these goals were not met. If they could not be accomplished under President Yeltsin, it appears much less likely under President Putin or his successor. Japan appears to have little leverage to spur Russia to agree to serious talks. Japan can hold out only two things: the prospect of a Treaty of Peace and economic aid. Neither of these incentives appears to hold much attraction for the Russian government. Japanese economic aid would not amount to much and probably is not needed in an increasingly prosperous Russia. Similarly, a Treaty of Peace would not add signiﬁcantly to the trade and investment already ongoing between the two countries. Thus, the prospect of serious discussions between the two governments in the foreseeable future appears to be dim.

7.8 A PROPOSED SOLUTION: THE KURIL ISLANDS WORLD HERITAGE PARK Despite the lack of serious negotiations over the northern islands and the fact that the Russian Federation is not willing to consider either referring this dispute to an international tribunal or negotiating a bilateral solution, a solution to end the dispute can be suggested that may appeal to both

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countries. Such a solution must be bold and innovative to create the appropriate incentive to end the stalemate over this issue, which has endured for over 60 years. Accordingly, the following solution is proposed, which is intended to appeal to both sides. Inevitably, the proposed solution must be tilted in favor of the Russian side, however, given the fact that, while the equities may be with Japan, the negotiating bargaining chips are overwhelmingly on the Russian side. The proposed solution—which could be hammered out either in bilateral negotiations or with the aid of an international mediator—would have several parts: 1. 2. 3.

4.

5. 6.

7. 8. 9.

Japan would agree to give up its sovereign rights with respect to the two southernmost Kuril Islands, Etorofu and Kunashiri. Russia would transfer the remaining two northern islands—the Habomai island group and Shikotan—to Japanese sovereignty. Russia would agree to designate Etorofu and Kunashiri as the Kuril Islands World Heritage Site National Park. This would be accomplished by making application and gaining the approval of the United Nations Educational, Scientiﬁc and Cultural Organization (UNESCO), which is the competent authority under the International Convention Concerning the Protection of the World Cultural and Natural Heritage (1972).11 Russia would adopt a management plan for Etorofu and Kunashiri that would provide for sustainable development of the islands’ resources, but would emphasize environmental protection and recreation. Procedures would be adopted to allow Japanese citizens and residents to freely visit Etorofu and Kunashiri for recreational purposes. The maritime boundary between Japan and Russia would be delimited on the basis of the principle of equidistance, giving each country equal maritime shares. Appropriate arrangements would be agreed to accommodate Russian, Japanese and third-party ﬁshing interests. Russia and Japan would sign a Treaty of Peace, Friendship and Cooperation. Russia and Japan would agree to create a bilateral Boundary Commission to deal with possible future questions and disputes. This Commission would be a permanent body with membership drawn equally from both sides.

This proposed solution is intended to be realistic and at the same time satisfy the basic interests of both Russia and Japan. Japan would be giving up important and long-standing sovereign claims, but this is probably

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inevitable given the current state of aﬀairs. Russia has always been willing, at least in principle, to transfer the two non-Kuril Islands—Habomai and Shikotan—to Japan. Russia may accept the World Heritage Park idea assuming that it retain full sovereign rights and control. Russia would gain in terms of worldwide publicity and goodwill and would gain uncontested sovereign control of the entire Kuril archipelago as well as the advantage— economic and political—of a Treaty of Peace with Japan. The Japanese people would gain privileged access to Etorofu and Kunashiri and the respective ﬁshing rights and interests of both sides could be addressed and settled. Ongoing cooperation would be established through the Boundary Commission, which would address future questions that are sure to arise.

NOTES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

This chapter employs the term “Northern Territories” as well as the more neutral term “northern islands” as the subject of the dispute. About 150 Japanese companies have oﬃces in Russia. Both Nissan and Toyota are building factories in Russia. Japanese ﬁshing vessels are permitted to ﬁsh around Kaigara Island, a part of Habomai, in return for payment of an annual fee. The Japan Times, 4 June 2007, p. 2. The Japan Times, 5 June 2007, p. 4. Russia accuses Japan of turning a blind eye to poaching and smuggling of seafood. The Japan Times, 9 June 2007, p. 1. See Gregory Clark, former Australian diplomat and Vice President of Akita International University, The Japan Times, 16 April 2005, p. 23. See Chapter 6. Address on Russian state television 27 September 2005, as reported in The Japan Times, 8 November 2005, p. 13. The Japan Times, 13 June 2007, p. 1. UNESCO’s world heritage mission is to ensure the protection and conservation of sites of great natural beauty and cultural signiﬁcance. Many island areas are already designated and approved as World Heritage Sites. For example, New Zealand has designated its Sub-Antarctic Islands; Russia has designated the Natural System of Wrangel Island Reserve; and Australia has designated the Heard and McDonald Islands as World Heritage Sites.

8. Security and cooperation in Northeast Asia While the point of this book of essays is to grapple with some of the concrete disputes in Northeast Asia and to propose methods and substantive solutions for their resolution, ending disputes alone is not enough to create real conditions for peace in this troubled region of the world. Ending these and other disputes will not establish a real peace. We cannot ever, in fact, end all disputes once and for all. In our small world and in the crowded region of Northeast Asia, we can expect that there will always be international points of controversy, just as in the domestic sphere in every country—indeed in every neighborhood—there are always ongoing problems and diﬀerences of opinion. Similarly, peace cannot be deﬁned simply as an absence of war or even an absence of interstate violence. Rather, peace is a positive state of what is termed in Japanese as kyosei, sometimes deﬁned in English as “conviviality,” but with the meaning of solidarity in mutual sympathy and respect as well as helpful engagement with other peoples.1 We may accordingly with Murakami2 and Chiba3 identify four basic requirements of peace through kyosei: (1) plurality—the recognition of the existence of human variety and the preciousness of distinct human cultures and identities; (2) toleration— the aﬃrmation and respect for this variety and respect for their existence and values; (3) fairness—due recognition of this plurality in terms of the necessity for just treatment of all peoples; and (4) conviviality—in the sense of shared commitment and engagement for the betterment of conditions for other peoples. This idea of kyosei may be termed a “grand theory” of the conditions for peace in the sense that positive values and engagement are emphasized rather than simply a negative state of the absence of war, conﬂict and violence. In particular, this grand theory of positive peace does not rule out conﬂicts and diﬀerences of opinion. As we have seen, there will always be conﬂicts and diﬀerences as long as there are human beings on this earth. To establish peace does not mean the elimination of conﬂict. In fact, recognition of plurality in the world and in Northeast Asia in particular means that conﬂicts will not be ignored; rather, diﬀerences will be dealt with openly and fairly. The question is—how can this best be done? 128

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In order to establish positive peace in Northeast Asia, ongoing institutions of cooperation and dispute settlement are necessary. This area of the world, unlike Europe, another scene of great conﬂict and devastation in the 20th century, has not created multilateral institutions that are necessary to establish a positive peace. For example, beginning in the early 1950s, six European states including the former bitter enemies Germany and France, began to set up multilateral institutions of cooperation, such as the European Coal and Steel Community (ECSC), European Atomic Energy Community (EURATOM), and the European Economic Community. These three institutions in the economic sphere paved the way for greater political cooperation, and in 1992 the Europeans established the European Union, a political and monetary union that now has a membership of 27 European states, many of which were at war with each other. These and additional pan-European institutions have contributed greatly to the present friendly and peaceful relations between European countries that fought numerous wars against each other in the recent past. In contrast to the European situation, no multilateral institutions exist speciﬁcally for Northeast Asia. Although some larger groupings have been established, such as APEC, the Asian-Paciﬁc Economic Cooperation forum with its 21 member states, no institution exists in which the nations of Northeast Asia can discuss and deal with speciﬁcally Northeast Asian concerns. This is true despite the burgeoning trade and investment between Japan, China and South Korea, and the growing interest on the part of the Russian Federation in its Asian territories. Accordingly, two new multilateral groupings should be created in order to remedy this deﬁciency: (1) the Northeast Asia Forum for Security and Development; and (2) the Asian Economic Community. The question is—how can this be done? In order to create these organizations and to establish positive peace and cooperation, the driving force should be the three key states of Japan, China and South Korea. The two proposed organizations would have diﬀerent purposes and, necessarily, diﬀerent memberships. On the one hand, the purpose of the Northeast Asia Forum for Security and Development would be to deal with security issues common to the region as well as development through cooperative projects and aid. This organization would focus on direct governmental cooperative action. On the other hand, the purpose of the East Asian Community would be to develop trade and investment, focusing on private business development. These two proposed organizations will be discussed in turn.

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8.1 THE NORTHEAST ASIA FORUM FOR SECURITY AND DEVELOPMENT Northeast Asia is in need of new and permanent security architecture to ensure peace and stability in this potentially volatile area of the world. To this end the creation of a regional security forum as an international organization with a full-time multinational secretariat would be a great advance. This organization could be called the Northeast Asia Forum for Security and Development (NEASD) and modeled after the highly successful Organization for Security and Co-operation in Europe (OSCE). The OSCE is a security organization for Europe established in 1975, and now has a membership of 56 states, including not only European states but also states in North America. Since the Russian Federation is a member, “Europe” extends over much of Asia as well. Japan and South Korea have observer status at the OSCE. The driving force behind the creation of a new NEASD, if this is feasible, will necessarily be the three most active Asian powers, China, Japan and South Korea. Additional states that should be included are the Russian Federation, the United States and North Korea. A temporary grouping of these states has been in existence for several years in order to deal with various problems posed by North Korea, including most importantly its nuclear development program. These “Six Party Talks,” as they are termed, have led to what appears to be a successful outcome. In September 2007, the parties agreed on a process whereby North Korea would fully declare its nuclear programs and would fully disable all its nuclear facilities. While these talks are still ongoing and many issues still must be resolved (such as the abduction issue—North Korea’s admitted past program to secretly kidnap Japanese nationals), it is not too early to contemplate institutionalizing these Six Party Talks into a permanent multilateral organization. While the Six Party Talks are concerned with one set of issues—the security problems posed by North Korea’s nuclear arms program, a new NEASD would obviously have an expanded mandate and agenda. An idea of the possible mandate of such an organization in Asia can be grasped by study of the mandate and activities of the OSCE, which is based in Vienna.4 The OSCE activities fall broadly into three categories: (1) political and military; (2) economic and environmental; and (3) the human dimension. Certainly the most important aspect of the OSCE is the political– military facet of its activities. At its founding in 1975, well before the end of the Cold War, this work was the organization’s biggest challenge. The OSCE became an important forum for the discussion of a wide range of military and political issues that helped to preserve the peace and helped bring an end to the Cold War. From the outset conﬁdence-building mea-

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sures and arms control as well as increased transparency and predictability of military activities were crucial to avoiding war. The Conference on Conﬁdence- and Security-building Measures and Disarmament in Stockholm in 1984–86 agreed on standards for the prior notiﬁcation of military activities, provision for observer missions, and on-site inspection of military facilities. In 1990 these agreements were improved by provisions for exchanges of information on the status of military forces and obligatory invitations to airbases. At the Budapest Summit of the OSCE in 1994 there was agreement on a Code of Conduct on political and military aspects of security. States agreed on political norms governing the conduct of armed forces and democratic and civilian control of armed forces and respect for humanitarian law norms in the event of armed conﬂict. Additional agreements covered standards for Conventional Arms Transfers and enhancement of reporting on arms, including small arms and light weapons. Weekly meetings of working groups within the OSCE provide an ongoing security dialogue among members. Combating terrorism was added to the agenda of the OSCE after the events of 9/11 in the United States. Such activities could and should be some of the goals to be undertaken by the NEASD in the context of East Asia. As when the OSCE was created, the Cold War still lingers in East Asia. Just as this was not an obstacle to the creation and operation of the OSCE, it should not be an impediment for the operation of the NEASD. In fact, the existence of possible conﬂicts because of the past and present potential hostilities provides urgency for the formation of the NEASD. Preventing terrorism and cooperation in identifying and apprehending potential terrorists is a shared concern in Northeast Asia as well. A second focus of the OSCE is economic and environmental matters. In this regard the participating states work on joint initiatives to control air, water and soil pollution. Obviously environmental pollution is a growing concern in Northeast Asia. For example, the economic growth of China and its reliance primarily on coal-ﬁred power-generating plants are creating transboundary air pollution in the Koreas and Japan. Yet there is no international mechanism for discussion of transboundary pollution in Northeast Asia. In the area of economics the primary task of the OSCE is to facilitate exchange of information and the coordination of economic policies. This is also needed in Northeast Asia. The third area of OSCE cooperation is the human dimension. This includes such matters as anti-traﬃcking—combating the illegal international movement of human beings, drugs and weapons. The OSCE also fosters positive initiatives in education, democratization and human rights. While some of these matters are controversial in Northeast Asia, human

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dimension programs of particular relevance to Northeast Asian countries can be identiﬁed and programs of cooperation can and should begin. The NEASD, like the OSCE, should have permanent institutions, and a secretariat with a permanent seat of operations. A city in South Korea would seem to be suitable as a seat of operations both from a geographical and political point of view. As far as institutions are concerned, like the OSCE, the NEASD should have a Chairperson-in-Oﬃce (CiO) held on a rotating annual basis by the foreign minister of a member state. The current CiO should be assisted by both the preceding and incoming CiOs to constitute a “troika” of international cooperation. Additional useful institutions would include a Permanent Council of the members, a Forum for Security Cooperation and various working groups that would consider particular problems and issues. One of the key institutions of the OSCE is the Conﬂict Prevention Centre (CPC), which was created on 21 November 1990 and operates in Vienna, Austria. The work of the CPC is conﬂict prevention and early warning so that diplomatic or peacekeeping missions can be dispatched to areas of potential conﬂict. The CPC has been particularly active in the territories of former Yugoslavia where in Kosovo and Bosnia ﬁeld operation teams engage in mechanisms to promote the peaceful resolution of disputes and technical assistance. In a newly created NEASD, conﬂict prevention would perhaps take diﬀerent forms, such as multinational working groups to deal with such issues as the North Korean abduction of Japanese nationals in the 1970s and 1980s, the question of the accuracy of textbooks in various countries and the issue of the “comfort women” who were allegedly compelled to provide sexual services during World War II. An Asian-style CPC could also take up issues such as regional transboundary air and water pollution, which is becoming a serious problem in Asia.

8.2 THE ASIAN ECONOMIC COMMUNITY In Europe close economic ties forged over the past half-century through multinational and supranational institutions have not only helped to keep the peace but have also led to unprecedented prosperity for the nations of the European Union. In Asia for various reasons similar developments were not possible, and Asia has taken a diﬀerent path, relying mainly upon bilateral cooperation and the multilateral eﬀorts of such organizations as the World Trade Organization and the International Monetary Fund. Recent developments, however, such as the economic growth of the region, the rise of China as a world economic power and the commitment of the Association of Southeast Asian Nations (ASEAN) to form a free trade

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area, make the creation of an Asian Economic Community now a realistic hope and possibility. Since 2000 Japan has in fact changed its long-standing policy of avoiding regional and preferential trade agreements and has negotiated free trade agreements with Singapore, Mexico, Thailand, Australia and South Korea. Now the time has arrived to create closer economic cooperation in Asia on a multilateral basis by creating an Asian Economic Community. An Asian Economic Community would necessarily diﬀer from the European versions of economic integration. Historical and geographical diﬀerences between East Asia and Europe mean that the European experience cannot be duplicated in Asia. Nevertheless, an Asian-style economic community can be fashioned that would contribute to peaceful growth for all states concerned. Such a community could also create an ongoing process for improvement of economic and political relations between member states. An Asian Economic Community should, initially at least, be a free trade area not a customs union. A free trade area agreement would mean that most trade between member states would be duty free, but that member states would retain complete autonomy with respect to duties and economic policies toward non-member states. Thus, for example, China and Japan could be members of a free trade area, but maintain diﬀerent tariﬀs with respect to imports from the United States. Moreover, the formation of a free trade area does not mean that free trade must be immediately implemented by all parties. Rather, free trade can be phased in gradually over a period of 10 or 15 years to allow an adjustment process. The membership of an Asian Economic Community will be somewhat controversial, but the most logical step would be to use the “ASEAN plus three” formula already favored by ASEAN and China. ASEAN plus three means the ten members of ASEAN as well as Japan, China and South Korea. Japan at the East Asia Summit in December 2005 proposed to add Australia, New Zealand and India to the membership list, but this was opposed by most states. Thus, it would seem best to build the Community around the consensus membership states of ASEAN plus three. After the Community is functioning, enlargement could be considered as has been the case with the European Economic Community and the EU. The Asian Community free trade agreement itself should be modeled on the North American Free Trade Agreement (NAFTA), which has operated successfully between the United States, Mexico and Canada since 1994. The NAFTA Agreement not only eliminates tariﬀs and quotas for almost all products made in North America, it also deals with a variety of additional economic matters. Regional standards are in place for investment, intellectual property and competition policy. Several dispute resolution

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mechanisms operate as well, and the record of compliance with rulings is good. In addition, NAFTA includes side agreements that cover workers rights and protection of the environment.

8.3 A CONCLUDING WORD: THE BENEFITS OF MULTILATERAL COOPERATION A fundamental tenet of this book is that international law has a unique power in many cases to solve international disputes peacefully and fairly. This chapter takes this proposition one step further by arguing that international organizations (IOs) can play a key role in maintaining the peace and in preventing and resolving disputes and diﬀerences between states. A legitimate question is to ask why this is so. Why do ancient and powerful states such as Japan, China and South Korea need to work through international organizations? Would it not be more eﬀective and easier to rely on bilateral diplomacy and contacts to improve relations and to resolve disputes? The answer to these questions lies in explaining why IOs are necessary to enable states to achieve their own ends. Formal IOs have played critical roles in international politics for the last half-century not because states were forced to use them but rather because states have found them indispensable to achieving desired results. For example, in cases of ﬁnancial crises, states work through the International Monetary Fund. Where rules are needed to govern world trade, states look to the World Trade Organization. Increasingly, even in cases where states decide to use force— for example in 1991 in the case of Iraq—even the most powerful states turn to the United Nations Security Council.5 Thus, IOs are used by states and the number and quality of IOs have proliferated because of the functions they perform and the characteristics of IOs that enable them to perform these functions. IOs are used as vehicles of cooperation for several reasons. First, IOs oﬀer the needed centralization of collective and cooperative activities because they have concrete and stable organizational structures and supportive administrative secretariats. Such centralization of cooperative activities cannot be provided by any state alone because other states will not accept one state’s control of joint and cooperative endeavors. Second, IOs allow states to cooperate using a structure that is independent of the control of any particular state. This characteristic of independence is particularly important in establishing cooperation and carrying out joint activities. Third, IOs oﬀer states a readily available forum for discussions and decisions on such matters as goals and methods with respect to any particular matter. Fourth, IOs oﬀer in most cases a certain credibility and objectivity with respect to data and

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policies that will not be possible for any state political apparatus. Fifth, IOs oﬀer a “multiplier eﬀect” with respect to policies and decisions. A unilateral decision will have the backing only of one state, while an IO has the ability to coordinate the wills of many states, aligning them together to eﬀect maximum possible impact and to bring to bear the maximum possible resources on the matter at hand. In summary, IOs play a major role today in fostering interstate collaboration. IOs now formulate common norms and practices and allow states to achieve goals that cannot easily be accomplished on a unilateral basis. It is time for Asia to create regional IOs capable of dealing with common problems and achieving common goals for this region.

NOTES 1. 2. 3. 4. 5.

This concept is further elaborated in Murakami (2008). Ibid. Chiba and Schoenbaum (2008). For fuller information see www.osce.org. See generally Abbot and Snidal (1998, pp. 3–32).

REFERENCES Abbot, Kenneth and Snidal, Duncan (1998), “Why states act through formal international organizations”, Journal of Conﬂict Resolution, 42(1): 3–32. Chiba, Shin and T.J Schoenbaum (eds) (2008), Peace Movements and Paciﬁsm After September 11, Cheltenham, UK and Northampton, MA, USA: Edward Elgar. Murakami, Yoichiro (ed.) (2008), A Grand Theory for Peace and Reconciliation: Achieving Kyosei in East Asia, Cheltenham, UK and Northampton, MA, USA: Edward Elgar.

Index International Law 25, 137 International Tribunal for the Law of the Sea 67, 99 Iran 117 Ishigaki City, Okinawa 85

Abe, Shinzo 7, 21, 121, 125 Ainu people 119 Asian Economic Community (proposal) 129, 132–3 Asia–Paciﬁc Economic Cooperation Forum (APEC) 129, 132 Association of Southeast Asian Nations (ASEAN) 132 Australia 133

Japan, 1, 2, 4, 9, 12, 25, 31, 42, 45, 48, 49, 83–7, 91–5, 109–10, 113–15, 117, 120–22, 129–32, 133, 134

Canada 133 China 1, 7, 8, 9, 12–14, 24, 27, 46–9, 60, 84–7, 91, 92, 95, 117, 132, 133, 134 China National Oﬀshore Oil Corporation 28 Chosun Dynasty (Korea) 106, 110 Cixi, Empress 86 Denmark 32 Dispute settlement methods 69–74 Dulles, John Foster 121 East China Sea Disputes 1, 7 Joint development 13–20 Maritime boundary 47–9, 91–95 Oil and gas 10–12 Resource 8 EuropeanEconomicCommunity122,129 European Union 129 France 31, 35, 89, 107 Geneva Convention No. IV 123–24 Harrison, Selig 8 Hokkaido 24, 118 Hu, Jintao 21 Ikeda, Yukihiko 109 International Court of Justice 25, 67, 114, 124

Kamchatka Peninsula 120 Koga, Shinshiro 85 Koga Zenji 85 Koizumi, Prime Minister 7, 20 Korea 1, 28, 42, 60–61, 105–107, 108–13 Koryo Dynasty (Korea) 110 Kurile (Kuril) Islands 68 Lavrov, Sergei 121 Lee, Teng-hui 86 Libya/Malta case 95–6, 115 Mexico 89, 133 Ming Dynasty 85, 86, 90 Morita, Mitsuhiro 24 Nakai, Yazaburo 107 North American Free Trade Agreement (NAFTA) 133 North Korea 117, 130 Northern Territories (Etorofu, Habomai, Kunashiri, Shikotan) 1, 24, 55–60, 117–27 Oki Islands 105–6, 107 Okinotorishima 26–7, 42–5, 83, 95, 97–9, 102–103 Organization for Security and Cooperation in Europe (OSCE) 130–32

137

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Permanent Court of International Justice 31, 65 Philippines, The 89 Portsmouth Treaty 120, 122 Putin Vladimir 121, 122, 125 Qing Dynasty 86, 90 Russian Federation (Russia) 1, 24, 60, 68, 108, 114, 117–26 Russo–Japanese War 120 Ryuku (Nansei) Islands 85, 86 St. Petersburg Agreement 122 Sakhalin 120, 123 San Francisco Peace Treaty 85, 86, 87, 108, 123 Senkaku (Diaoyu) Islands 1, 7, 24, 27–8, 45–7, 83–92, 101–116 Shilla Dynasty (Korea) 106, 110 Shimane Prefecture (Japan) 106–107, 109 Shimoda Treaty 120 Shimonoseki, Treaty of 86, 87 Singapore 133 Sino-Japanese Treaty 87 Sino-Japanese War 24 South Korea 6, 24, 28, 29, 60, 105, 109–116, 132, 133

Soviet Union 1, 29, 114, 120–121 Stalin Joseph 120, 123 Taiwan 24, 83, 86, 91 Takeshima (Tokdo/Dokdo) 1, 24, 28–9, 51–5, 105 Thailand 133 Truman, President 120, 122, 124 Ullung Island 106–108, 110, 115 United Kingdom 32, 35 United Nations Charter 3, 4, 65, 67 United Nations Convention on the Continental Shelf 92 United Nations Convention on the Law of the Sea (UNCLOS) 2, 25, 26, 36–7, 38, 40, 54, 66, 67, 68, 71, 91–2, 98, 105 United Nations Security Council 30, 134 United States 85, 87, 89, 108, 123 Vienna Convention on the Law of Treaties 35, 66 World War II 4, 29, 87, 91, 120 Yalta Conference 120, 122 Yeltsin, Boris 121 Yi, Seung-man (Syngman Rhee) 109