Sep 12
25
The Debacle In The East China Sea
The Senkaku/Diaoyu Islands
We’ve all been hearing a lot about the Senkaku/Diaoyu Islands lately, what with all the demonstrations in China after the Japanese government purchased the islands from the Japanese owner. Meanwhile, Taiwan is adding their opinion into the mix since three governments claim this territory. So, what’s really going on? What laws govern island ownership? Who has the more legitimate claim, Japan, China or Taiwan? How much of this is covered by international treaty, how much is demagoguery and how much is simply gunboat diplomacy? I haven’t been impressed with media accounts; most reporters have not done their homework and mix up the various justifications so I’ll break it down as best I can.
First, let’s take a look at the United Nations Convention on the Law of the Sea (UNCLOS). This is an international agreement spelling out the various ramifications of sea law as it pertains to littoral zones, islands and archipelagos. Japan and China are both signatories to UNCLOS so it is very important to understand what the agreement says. Taiwan, as a de facto but not a de jure country, was not able to ratify the treaty. For the purposes of the UNCLOS argument, we’ll ignore Taiwan at this time.
The territorial sea for each country is 12 miles from baseline. So are these islands considered baseline? If either China or Japan was an archipelagic State, they would so what is an archipelagic State?
(a) “archipelagic State” means a State constituted wholly by one or
more archipelagos and may include other islands;
(b) “archipelago” means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so
closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political
entity, or which historically have been regarded as such.
OK, so can these islands be considered for baseline status? There is also a provision in UNCLOS covering this situation.
3. Rocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf.
The Senkaku Islands (I’ll refer to them as the Senkakus for simplicity since they are currently under Japanese control) cannot sustain human habitation or economic life of their own. They have no water source, can grow no food nor can they provide human habitation. They are essentially rocks sticking out of the ocean, the largest being less than 3.5 kilometers long and slightly more than 1 kilometer wide. Therefore, under UNCLOS, they don’t count in regard to having an exclusive economic zone. What this means is that by international agreement, whoever owns the islands doesn’t get any treaty benefit from them.
Now let’s look at the contiguous zones and exclusive economic zones for each nation. The contiguous zone is defined as 24 miles from baseline, so this again does not apply. However, the exclusive economic zone does matter. Let’s look at the definition.
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living
or non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this
Convention with regard to:
(i) the establishment and use of artificial islands, installations
and structures;4
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;1. The continental shelf of a coastal State comprises the seabed and
subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge of
the continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where the
outer edge of the continental margin does not extend up to that distance.
2. The continental shelf of a coastal State shall not extend beyond the
limits provided for in paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the
land mass of the coastal State, and consists of the seabed and subsoil of the
shelf, the slope and the rise. It does not include the deep ocean floor with its
oceanic ridges or the subsoil thereof.
4. (a) For the purposes of this Convention, the coastal State shall
establish the outer edge of the continental margin wherever the
margin extends beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, by
either:
(i) a line delineated in accordance with paragraph 7 by
reference to the outermost fixed points at each of which
the thickness of sedimentary rocks is at least 1 per cent of
the shortest distance from such point to the foot of the
continental slope; or
(ii) a line delineated in accordance with paragraph 7 by
reference to fixed points not more than 60 nautical miles
from the foot of the continental slope.
(b) In the absence of evidence to the contrary, the foot of the
continental slope shall be determined as the point of maximum
change in the gradient at its base.
5. The fixed points comprising the line of the outer limits of the
continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i)
and (ii), either shall not exceed 350 nautical miles from the baselines from
which the breadth of the territorial sea is measured or shall not exceed
100 nautical miles from the 2,500 metre isobath, which is a line connecting
the depth of 2,500 metres.
6. Notwithstanding the provisions of paragraph 5, on submarine ridges,
the outer limit of the continental shelf shall not exceed 350 nautical miles
from the baselines from which the breadth of the territorial sea is measured.
This paragraph does not apply to submarine elevations that are natural4
components of the continental margin, such as its plateaux, rises, caps, banks
and spurs.
7. The coastal State shall delineate the outer limits of its continental
shelf, where that shelf extends beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, by straight lines not
exceeding 60 nautical miles in length, connecting fixed points, defined by
coordinates of latitude and longitude.
8. Information on the limits of the continental shelf beyond
200 nautical miles from the baselines from which the breadth of the territorial
sea is measured shall be submitted by the coastal State to the Commission on
the Limits of the Continental Shelf set up under Annex II on the basis of
equitable geographical representation. The Commission shall make
recommendations to coastal States on matters related to the establishment of
the outer limits of their continental shelf. The limits of the shelf established
by a coastal State on the basis of these recommendations shall be final and
binding.
These are the key articles pertaining to the controversy between Japan and China. Let’s say we took a line from the Chinese mainland to the islands in the Ryukyu’s that are habitable. This would create a line that ends up very close to the Senkaku Islands. However, China has another card to play. There is an exception to the normal baseline and that is the continental shelf and the continental margin. So now it’s time to look more closely at the East China Sea.
As you can see in the photo above, the continental shelf extends from China to the Senkaku Islands but between the Senkakus and the Ryukyu Islands is a deep oceanic trench. Therefore, China is very interested in UNCLOS as it applies to the exclusive economic zone in accordance with continental shelf provisions. Under these provisions, China controls the exclusive economic zone out to 200 miles from her coast which is a line just west of the Senkakus. This doesn’t help her much when it comes to the area in question, it does increase China’s exclusive economic zone compared to having a line drawn between Japan and China and using the halfway point as the boundary. Under those conditions, Japan would possess considerably more territory. However, this reading still puts most of the Chunxiao gas field in Japan’s sphere of influence since it is outside the continental shelf and closer to Japanese territory.
So why all the fuss about a few relatively tiny rocks in the ocean if they don’t give anyone fishing, mineral or oil/gas rights? This is where we break away from UNCLOS and look at other ways to claim ownership.
The first is historical. This one is tricky specifically because the islands are uninhabitable. Throughout history, fishermen from China, Japan and Taiwan have all used these waters. Whose claim is the best? Well, that’s the rub because none of these nations have a clear advantage. They can all rightfully claim to have fished in these waters for millennia. Since no one wants to submit to UNCLOS arbitration, the solution is negotiation among themselves, either that or go to war. Since going to war, though possible, isn’t much of a solution, negotiation should be the best course.
But because something is logical doesn’t mean it is the most appealing. This has become a nationalistic tug-of-war and neither government can be seen as being ‘soft’ on the issue. China is going through a leadership transition along with an economic slowdown and some messy political trials so the government cannot be seen as weak. Japan’s government is also in a precarious position with party leaders coming and going, a weak economy and populist candidates who are boosting their popularity by championing this cause. The two most obvious are Tokyo’s mayor, Shintaro Ishihara, and the mayor of Osaka, Toru Hashimoto. In fact, the recent friction was started by Ishihara, who tried to buy the Senkakus from their owner in order to up the ante by inhabiting the islands. The Japanese government thought they were defusing the situation by buying the islands outright and keeping them vacant but it was in the Chinese government’s interest to play the ‘nationalism’ card and create a controversy out of what really is the status quo.
Gunboat diplomacy is another factor. China has been sending vessels into the area but none of them have been People’s Liberation Army Navy (PLAN) vessels, so as not to push things too far. Japan has responded by sending more naval vessels into the area and as posted earlier, the Japan Maritime Self-Defense Force is quite formidable. It’s a game of bluff since no one wants a shooting war, yet there is always the chance that things could get out of hand, one vessel fires upon another and a conflict does break out. Then throw in Taiwan’s recent incursion that was turned away with water cannons and the issue becomes even more complex.
The other factor to consider is this: There are gas and oil deposits between the surface that both countries want to exploit. However, regardless of who exploits them, the only logical shipping terminus is in China. The sea floor between these deposits and China is quite shallow while the sea floor between these deposits and Japan is very deep and not suitable for a pipeline. So even if Japan ends up developing the fields, their logical buyer is China so they need to negotiate a solution that works for each side. My guess is that both sides eventually employ joint development. I think this would have already happened if not for political and nationalistic considerations on the China side.
So to sum it up, all this talk about the Senkakus is, in the long run, much ado about nothing. The islands themselves have no value except being a port in a storm. This is all about political posturing and perception, not international agreements or actual benefits. Each government gets to stoke nationalist sentiment with their own populations and paint the other side as the ‘bad guy’.
In the same vein, the conflict in the Paracel and Spratly Islands, though not exactly the same, also shares many commonalities with the Senkakus, and appeals to the same nationalistic sentiments. So the next time you read an article about any of these islands, think back to what UNCLOS actually states and it might make more sense.
*** In today’s Stratfor appeared this article, Understanding the China-Japan Island Conflict. It helps explain both the political and geopolitical implications of the conflict rather than in legal terms. Highly recommended…
