Faculteit Rechtsgeleerdheid · 2014-12-17 · Faculteit Rechtsgeleerdheid Universiteit Gent...

Faculteit Rechtsgeleerdheid

Universiteit Gent

Academiejaar 2013-2014

SINO-JAPANESE RELATIONS:

THE DIAOYU/SENKAKU ISLANDS DISPUTE

Sovereignty, Maritime Delimitation and Resource Rights

Masterproef van de opleiding

“Master in de rechten”

Ingediend door

Marta Hermez

(studentennr. 00900881)

Promotor: Prof. Dr. Eduard Somers

Commissaris: Klaas Willaert

i

PREFACE

Having come to the end of my law studies at Ghent University, this master thesis symbols

both an end and a beginning. It is my greatest hope that the insights, methodologies and

knowledge this thesis has provided me with will contribute in developing my future career in

the international law sphere.

From the outset of my studies at the Law Faculty of Ghent University it became clear that

international law enjoyed my preference and would be the field I endeavor to further develop

in. Courses on international public law and the law of the sea triggered my interest in writing

my master thesis on a subject such as the Senkaku Islands. This master thesis has driven me to

widen my horizon and to scan my intellectual abilities. It has also offered me the opportunity

to scrutinize the limits of the law and has confronted me with the ‘law in context’. As a result,

I find myself enriched and keen to further look into the subject matter. This experience cannot

go without thanking certain people.

First of all, I would like to thank Professor Doctor E. Somers for approving me to write this

thesis under his promotorship. I consider it a great honor to have him as the promotor of this

work. I would also like to thank Jasmine Coppens, Professor Somers’ former assistant for her

guidance and input at the outset of this thesis, and Klaas Willaert for his guidance and

miticulous and constructive feedback.

Secondly, I am very grateful to my parents for having offered me the chance to pursue my

ambitions by studying law and for supporting me, financially, morally and intellectually along

the way. It is beyond doubt that their support, optimism, love and belief in me have made the

past five years into an enriching, inspiring and exciting journey.

Special thanks are in order to the people who have revised this work: my mother, my cousin,

Katrien and my boyfriend Pieter. Their linguistic input have made this master thesis more

refined and enjoyable to read. I also want to thank the three of them for their love and support.

Last but not least I would like to thank Dominique Miguel Borm for translating a Japanese

document for me so that I was able to analyse it in light of one of my research questions.

It is my deepest wish that any reader of this work, be it a scholar or a laic, enjoys reading it,

finds it interesting and reflects upon it.

Marta Hermez

Ghent, May 2014

iii

TABLE OF CONTENTS

Table of contents .............................................................................................................. iii

List of abbreviations ........................................................................................................ vii

Introduction ...................................................................................................................... 1

Chapter I

Historical background & vision of the parties .................................................................. 3

I.1. Historical background ..................................................................................... 3

I.2. People’s Republic of China’s position (PRC) ................................................. 5

I.3. Republic of China’s position (ROC) ............................................................... 7

I.4. Japanese position ............................................................................................ 9

I.5. American position ......................................................................................... 12

Chapter II

Role of ROC and USA .................................................................................................... 15

II.1. ROC ............................................................................................................. 15

II.2. USA ............................................................................................................. 15

Chapter III

Sovereignty: Who has a right to the Senkaku Islands? ................................................... 19

III.1. Territorial acquisition and loss of territory ................................................. 19

1. Discovery and occupation ............................................................ 19

A. Animus occupandi to the Senkaku Islands ............................. 21

B. Corpus occupandi to the Senkaku Islands ............................... 22

2. Transfer/cession ........................................................................... 23

3. Prescription .................................................................................. 24

4. Conquest ...................................................................................... 27

5. Accretion ...................................................................................... 27

III.2. Current stand of international case law ...................................................... 28

III.3. Declarations, agreements and treaties relating to the Senkaku Islands ...... 28

1. Cabinet Decision of 14 January 1895 .......................................... 28

2. Treaty of Shimonoseki of 17 April 1895 ..................................... 29

3. Cairo Declaration of 1 December 1943 and

Potsdam Declaration of 26 July 1945 .......................................... 30

4. San Francisco Peace Treaty of 8 September 1951 ....................... 31

5. Treaty of Peace Between the Republic of China and Japan

of 28 April 1952 ........................................................................... 34

6. Agreement Between the United States of America and Japan

Concerning the Ryukyu Islands and the Daito Islands

of 17 June 1971 ............................................................................ 35

III.4. Assessing sovereignty over the Senkaku Islands ....................................... 36

v

Chapter IV

Maritime Delimitation ..................................................................................................... 41

IV.1. Maritime delimitation principles under UNCLOS ..................................... 41

IV.2. The regime of islands under UNCLOS ...................................................... 42

IV.3. Overlapping claims .................................................................................... 44

1. Continental Shelf Convention of 1958 ............................................. 45

2. UNCLOS .......................................................................................... 46

3. Case law ............................................................................................ 47

IV.4. Maritime boundary delimitation and the Senkaku Islands ......................... 51

Chapter V

Resource Rights ............................................................................................................... 57

V.1. Oil ................................................................................................................ 57

V.2. Fish stocks ................................................................................................... 63

Chapter VI

Impact of actions taken by parties ................................................................................... 69

Chapter VII

Resolving the dispute ...................................................................................................... 75

VII.1. Means of dispute settlement ...................................................................... 75

VII.2. Alternatives and prospects ........................................................................ 76

1. Joint development zone .................................................................... 76

2. East China Sea Peace Initiative ........................................................ 77

3. Prospects ........................................................................................... 77

Conclusion ....................................................................................................................... 81

Bibliography .................................................................................................................... 85

Annexes ........................................................................................................................... 95

vii

LIST OF ABBREVIATIONS

APT ASEAN Plus Three

ASEAN Association of Southeast Asian Nations

EEZ Exclusive Economic Zone

ICJ International Court of Justice

ITLOS International Tribunal for the Law of the Sea

km kilometers

nm nautical miles

PCA Permanent Court of Arbitration

PCIJ Permanent Court of International Justice

PMZ Provisional Measures Zone

PRC People’s Republic of China

ROC Republic of China

SEAFDEC Southeast Asian Fisheries Development Centre

SEAFMO Southeast Asian Fisheries Management Organization

sq km square kilometers

sq nm square nautical miles

UK United Kingdom

UN United Nations

UNCLOS United Nations Convention on the Law of the Sea

USA United States of America

1

INTRODUCTION

Relations between Japan and China have historically been fragile and delicate, mostly due to

their historical legacies and more notably their war record. In 1978 the Treaty of Peace and

Friendship between Japan and the People’s Republic of China (hereinafter China) was

concluded, which served as the political basis to normalize the bilateral diplomatic relations.

However, bilateral political Sino-Japanese relations have remained frigid and are characterized

by various sensitive issues such as territorial disputes.

Territorial disputes have for long been one of the primary causes for belligerent unrest in the

world.1 Or as N. L. Hill said:

“The relations between modern states reach their most critical stage in the form of

problems relating to territory. Boundary disputes, conflicting claims to newly

discovered lands, and invasions by expanding nations into the territory of weaker

neighbours have been conspicuous among the causes of war”.2

States’ aims in territorial disputes can be twofold.3 The first category of aims is the genuine will

of a state to acquire the territory to strengthen the state. The increased strength might follow

from resources found in the area, the improved access to the sea, a better strategic position, etc.

The second category consists of aims that are made for purposes connected with domestic or

foreign policy.

The foregoing illustrates the setting of the Diaoyu/Senkaku Island dispute.4 The Islands have

been disputed throughout history and gradually the conflict has taken greater proportions. China

is involved in many territorial disputes in the region and the nations concerned place China’s

claims in the sphere of its urge for economic and territorial power over the region. Moreover,

in the late 1960’s a report, which indicated that there might be considerable amounts of oil and

fish stocks surrounding the Senkaku Islands, was released. The value of the Senkaku Islands

precisely lies in the area they cover: up to 20400 square nautical miles.

The proportions the conflict relating to the Diaoyu/Senkaku Islands has taken should always be

placed in this historical, political and economic context. Especially the historical relations

between the parties concerned can play a significant role. However, this contribution will

analyze this dispute from a juridical perspective but one must keep in mind that a juridical

solution does not always fully take into account the historical, economic and mostly political

aspects of the case, which might make resolving the dispute far more challenging.

1 D.-E. KHAN, “Territory and Boundaries” in B. FASSBENDER, A. PETERS, S. PETER and D. HÖGGER (eds.), The

Oxford Handbook of the History of International Law, Oxford, Oxford University Press, 2012, (225) 229. 2 N. L. HILL, Claims to Territory in International Law and Relations, Westport, Greenwood Publishing Group, Inc., 1976, 3. 3 For more details see: V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 99. 4 Concerning the appellation of the islands, see infra 1.

2

When dealing with a territorial dispute it is important to note that the location of a boundary

and the question of ownership of title to territory are two different issues. However, the law

governing the title to territory has implications for the delimitation of boundaries. Therefore it

is necessary to first assess the title to territory based on the international rules that govern the

acquisition of territorial sovereignty. Consequently, after having described the crucial historical

background of the dispute, the positions of the parties concerned and the specific role of the

Republic of China (hereinafter Taiwan), this paper will attempt to resolve the issue of

sovereignty over the Diaoyu/Senkaku Islands. Once sovereignty has been established, the

different modes of (maritime) boundary delimitation will be discussed in the light of the

concrete circumstances of this case. This maritime boundary delimitation is of great importance

since it can generate considerable acreages of economically valuable sea areas. Therefore, the

rights to the resources of these areas, mostly oil and fish, will be assessed. Since both China

and Japan signed the 1982 United Nations Convention on the Law of the Sea (hereinafter

UNCLOS) in 1996, it will be the starting point for examination of the relevant issues in this

paper. Finally a look must be had at the potential influence of the actions undertaken by both

China and Japan in solving the dispute and the possible ways of resolving the dispute. In

conclusion, this paper will attempt to assess the reasonably foreseeable future developments in

Sino-Japanese relations concerning the Senkaku Islands.

3

CHAPTER I

HISTORICAL BACKGROUND & VISION OF THE PARTIES

I.1. Historical background

1. The Diaoyu/Senkaku Islands are a group of small islets located in the East-China sea,

east of China’s Fujian province, northeast of Taiwan and southwest of Japan’s southernmost

prefecture, Okinawa. They are situated at a distance of approximately 330 km from China,

170 km from the Republic of China and 410 km from the most southern point of Japan’s

Okinawa prefecture.5 ‘Diaoyu’ is the name used by the People’s Republic of China, while

‘Senkaku’ is the Japanese designation. Since the islands are best known and documented under

their Japanese name and to avoid confusion, this paper will refer to the islands as ‘Senkaku

Islands’ for the sake of clarity and consistency. Nonetheless, it must be well understood that

this choice does not entail any form of partiality in favor of the Japanese position, nor is the use

of the term ‘islands’ determinative of whether the Senkaku’s qualify as islands or rocks under

UNCLOS.

2. It seems true indeed that for a long period in history China nor Japan showed much

interest in the Senkaku Islands nor did they show any intent of claiming them. When looking

through the checklist of archives of the Chinese Foreign Ministry from 1862 to 1927 no record

can be found concerning the Senkaku Islands under the topic ‘border affairs’.6 Although China

goes back as far as the 14th century to prove its sovereignty over the Senkaku Islands, the issue

relating to sovereignty over the Senkaku Islands, became most clear and more complex from

1895 onwards, after the First Sino-Japanese war. From 1895 to 1951 there is a chain of treaties

under which the Senkaku Islands may fall. On January 14 1895 a Cabinet Decision was adopted

by Japan to erect markers on the islands to include them in Japan’s territory. A couple of months

later, in April 1895, the Treaty of Shimonoseki ended the first Sino-Japanese war and China

was forced to cede the Pescadores (an island group West of Taiwan), the island of Formosa

(Taiwan) and all its appertaining islands to Japan. From 1937 to 1945 Sino-Japanese bilateral

relations further deteriorated with the Second Sino-Japanese War and the Nanking Massacre of

1937 where 300 000 Chinese were killed by the Imperial Army of Japan. After World War II,

the 1951 San Francisco Peace Treaty stated that “Japan renounces all right, title and claim to

Formosa and the Pescadores”.7 In the post-World War II era, the United States of America

(hereinafter USA) had administrative control over Okinawa Island and the surrounding Ryukyu

islands and islets until 1972, which is one of the reasons why a brief look must be taken at the

USA’s vision on this conflict. In the late 1960’s research revealed the potential presence of

significant oil resources near the Senkaku Islands. The U.S. Naval Oceanographic Office

concluded in 1968 that the sea floor under these islands may contain “the most prolific oil and

5 See Annex 1. 6 For an overview see: J.W. MORLEY (ed.), Sino-Japanese Relations 1862-1927, New York, Colombia University, 1965, 11-115. 7 Art. 2 Treaty of Peace with Japan of 8 September 1951, United Nations Treaty Series, vol. 136, 46; Infra 71-73.

4

gas reservoirs in the world, possibly comparing favorably with the Persian Gulf area”,

triggering the interest of both China and Japan and leading to an actual conflict with official

positions being taken by both China and Japan concerning the sovereignty over the Senkaku

Islands.8 The main point of argument between China and Japan relates to whether the Senkaku

Islands were terra nullius before 1895, as claimed by Japan, and whether they were included in

the scope of the Treaty of Shimonoseki, as claimed by China. Similar dissension exists in

relation to the San Francisco Peace Treaty. Both the Treaty of Shimonoseki and the San

Francisco Peace Treaty do not literally mention the Senkaku Islands, allowing the parties

concerned to argue about whether the islands fall under the scope of application of the said

treaties.

3. Besides China and Japan, Taiwan also claims sovereignty over the Senkaku Islands. For

the period before 1949, Taiwan’s claim is similar to that of China. Between 1895 and the end

of World War II, Taiwan (then Formosa) was under full Japanese sovereignty as a result of the

defeat by Japan of the Chinese Qing dynasty in the First Sino-Japanese War and the Treaty of

Shimonoseki. After World War II, the Chinese Civil War resumed between the Chinese

Communist Party of Mao Zedong and the Chinese Nationalists, led by Chiang Kai-shek. In

1949, the Nationalist Army was expelled to Taiwan and the communist People’s Republic of

China (PRC) was established. It is beyond doubt that the establishment of the PRC complicated

the dispute over the Senkaku Islands both politically and legally: China and Taiwan shared

sovereignty claims over the Senkaku Islands but for the period after 1949, China refused to

recognize the treaties concluded or recognized by Taiwan.9 Moreover, the San Francisco Peace

Treaty provided that Japan renounced all right, title and claim to Formosa.10 Consequently, for

the period after World War II, Taiwan refers to different treaties and agreements with Japan

than China does.

4. In the early years 2000, actions of both China and Japan were subject to controversy. In

2004, a Chinese nuclear submarine was suspected to have intruded Japanese territorial waters,

without respecting the requirement, laid down in UNCLOS, of surfacing and showing its flag

and was near the Senkaku Islands which lead a Japanese minister to link this incident to China’s

natural gas exploration near the islands.11 Japan itself on the other hand placed a lighthouse,

built on one of the islands, under control of its Coast Guard in 2005.12 Several rounds of

negotiations between China and Japan, trying to resolve the dispute, have all ended without a

clear outcome.

8 U. SUGANUMA, Sovereign Rights and Territorial Space in Sino-Japanese Relations: Irredentism and the

Diaoyu/Senkaku Islands, Honolulu, University of Hawaii Press, 2000, 129. 9 C. MANJIAO, “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review 2011, 163-189. 10 Infra 71-73. 11 Art. 20 United Nations Convention on the Law of the Sea of 10 December 1982, United Nations Treaty Series, vol. 1833, 3 (hereinafter UNCLOS); D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa

Clara Journal of International Law 2006, 134-168. 12 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168.

5

I.2. People’s Republic of China’s position (PRC)

5. Besides with Japan over the Senkaku Islands, China is involved in several territorial

disputes in East-Asia. Most notably with Vietnam over the Paracel Islands and with Taiwan,

the Philippines, Vietnam, Malaysia and Brunei over the Spratly Islands.

6. As a preliminary remark it is interesting to draw attention to the extensiveness of Japan’s

coverage concerning the Senkaku Islands in comparison to China. The website of the Chinese

Ministery of Foreign Affairs contains only a couple of concise documents relating to the

Senkaku Islands, whereas the Japanese Ministry of Foreign Affairs has a specific web page

concerning the Senkaku Islands, with leaflets in several languages, position papers, maps, etc.13

Nonetheless, Chinese former vice foreign minister Dai Bingguo said in 2004 that the Senkaku

Islands “have been China’s inherent territory since ancient times and China has indisputable

sovereignty over these islands”.14 Moreover, China states to enjoy undisputable sovereignty

over the natural resources in the affiliated sea areas.15 According to China, its sovereignty is

fully proven by history.

7. China’s claim to the Senkaku Islands has three distinct bases.16 Firstly, China argues

that its acts of prior discovery, use and ownership of the islands are sufficient to grant it legal

title. China substantiates this claim by putting forward evidence of the fact that the islets were

discovered by Chinese in 1372 and that as early as 1373 the islands were used by Chinese

envoys as navigational aids for voyages to the Ryukyu Islands (Okinawa, Japan).17 Besides as

a navigational aid, China also claims to have used the islands as a source of statice arbuscula,

a rare medicinal herb.18 Moreover, this use of some of the islands was mentioned in various

Chinese texts, especially in the fifteenth and sixteenth century and were incorporated into

China’s coastal defense system in 1562 by the Ming Government.19 In 1893, the Qing dynasty

Dowager Empress Cixi awarded property rights to three of the islets to a USA citizen of Chinese

ancestry, whereby the islands became private property.20

13 See MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Japan-China Relations: Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014) and MINISTRY OF

FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “Some Sensitive Issues”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/2722/t15974.shtml (retrieved 3 January 2014). 14 MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “Vice-Foreign Minister Dai Bingguo Once Again Lodges Solemn Representation over Japan’s Illegal Detention of Chinese Citizens Who Landed on Diaoyu Islands”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/2726/t80940.shtml (retrieved 3 January 2014). 15 MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “Some Sensitive Issues”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/2722/t15974.shtml (retrieved 3 January 2014). 16 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and

Policy Journal 2000, 1-22. 17 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168; W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific

Law and Policy Journal 2000, 1-22. 18 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and

Policy Journal 2000, 1-22. 19 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 20 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill

6

8. The Chinese Territorial Sea Law of 1992 asserted control over the islets, specifically

mentioning the ‘Diaoyu Islands’ and claims territorial seas around them since it regards those

islands as part of its land territory.21

9. China claims that these acts constitute an effective exercise of sovereignty and states

that the arrest near the Senkaku Islands of Chinese fishermen in 2013 by patrol boats of the

Japanese Coast Guard seriously violated China’s territorial sovereignty.22

10. Secondly, countering Japan’s claims to the islands, China asserts that Japan had

explicitly and tacitly acknowledged Chinese sovereignty over the islands up until the late

nineteenth century, in the lead up to the First Sino-Japanese War of 1894-1895.23 It substantiates

this claim by pointing to several official Japanese maps, namely of 1874 and 1877, which do

not include the islands as part of the Ryukyu Kingdom, as annexed by Japan.24 For example, in

1785, Japan published a map, on which different colours were used for the Senkaku Islands and

China on the one hand and the Kingdom of Okinawa on the other hand.25 Furthermore, the

official Japanese Government’s ‘Complete Ryukyu Islands Map’, published in 1874, and the

‘Okinawan Chronicles’, published in 1877, did not include the Senkaku Islands.26

11. China claims that only in the 1890’s Japan began to express an interest in the islands

when in 1894 the Japanese Interior Minister petitioned Okinawa Prefecture to erect national

markers on the Senkaku Islands, for which a resolution was passed by the Japanese Cabinet in

January 1895.27

12. Lastly, China claims that the islands were ceded to Japan as a part of Taiwan by the

Treaty of Shimonoseki in 1895 but that they were returned to China at the end of World War II

through the San Francisco Peace Treaty of 1951 and the 1952 Treaty of Peace signed between

the Republic of China and Japan.28 China points to the fact that during the Cold War, when U.S.

NV, 2009, (39) 61; D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of

International Law 2006, 134-168. 21 Art. 2 Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone of 25 February 1992, available at https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHN_1992_Law.pdf (retrieved 3 April 2014). 22 MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “China and Japan”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/ (retrieved 3 January 2014). 23 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168; W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific

Law and Policy Journal 2000, 1-22. 24 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 25 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and

Policy Journal 2000, 1-22. 26 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168; W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific

Law and Policy Journal 2000, 1-22. 27 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and

Policy Journal 2000, 1-22. 28 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168.

7

forces used the Senkaku Islands as bombing targets, they applied to the Taiwanese Government

for permission to substantiate its claim.29

13. In conclusion, China claims that Japan has historically acknowledged that the islands

were either a part of imperial China or of Taiwan. Therefore, China claims that the islands and

Taiwan were part of the same unit, which Japan acquired by conquest in war, coupled with

effective occupation through the Treaty of Shimonoseki. However, China argues that since

Japan relinquished its sovereignty through the San Fransisco Peace Treaty and the 1952 Treaty

of Peace, Japan cannot use the theories of cession and conquest to bolster its claims.30

14. With regard to the maritime boundary delimitation, China is of the opinion that the

Okinawa Trough proves that the continental shelves of China and Japan are not connected and

that the Trough serves as the boundary between them. As a result, the Trough should not be

ignored.31 China uses the natural prolongation theory, as it emerged from the North Sea

Continental Shelf case, to sustain its claim.32 Chinese scholars do however acknowledge that

the Senkaku Islands do not qualify to generate Exclusive Economic Zones (hereinafter EEZ)

and continental shelves under article 121, (3) UNCLOS.33

I.3. Republic of China’s position (ROC)

15. Taiwan’s position is similar to China’s position due to their common historical past.

Only concerning the agreements and treaties concluded with Japan after 1949 do their visions

diverge, due to political differences: with respect to treaties or agreements signed after 1949,

China refers to the Joint Communiqué between the People’s Republic of China and Japan,

signed in 1972 and the provisions of which are confirmed by the Treaty of Peace and Friendship

between the PRC and Japan of 1978, which states that Japan “maintains its stand under Article

8 of the Potsdam Proclamation”.34

16. Taiwan’s position consists of an active claim based on prior discovery and use on the

one hand and of challenging Japan’s prescription theory on the other hand.35 First of all, Taiwan

contends that the Senkaku Islands were discovered, named and recognized as islands

appertaining to Taiwan. Taiwan refers to the same Chinese historical records of the early 15th

29 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and

Policy Journal 2000, 1-22. 30 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 31 J. GUOXING, “Maritime Jurisdiction in the Three China Seas”, University of California Institute on Global

Conflict and Cooperation Policy Papers, 3-33, available at http://escholarship.org/uc/item/7rq2b069 (retrieved 2 January 2014). 32 Infra 102. 33 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 62; Infra 90-118. 34 H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168; Infra 70. 35 For Japan’s position, see infra I.4.; on the theory of prescription, see infra 54-61.

8

century to uphold that the Senkaku Islands were discovered, named and used by the Chinese,

mentioning mission records of the Chinese imperial envoys to the Ryukyu Islands and their

function as landmark on this navigation route.36 Taiwan also refers to several maps published

in the 17th century which incorporated the Senkaku Islands in its coastal defense zone and

territory, the official Map of Imperial China and Foreign Lands of 1863 and contends that in

1683, when Taiwan was officially incorporated into Chinese territory, the Senkaku Islands also

became a part of Qing territory since they were “an island group appertaining to Taiwan”.37

In that light, Taiwan contests Japan’s point of view that the Senkaku Islands were terra nullius

in 1885 and consequently argues that Japan’s claim by virtue of discovery and occupation is

invalid.38 Taiwan contends that Japan’s claim to sovereignty over the Senkaku Islands should

be considered cession since it contends that the Senkaku Islands were ceded to Japan pursuant

to article 2 of the Treaty of Shimonoseki (as “all the islands appertaining to or belonging to

the said island of Formosa”) of April 1895 and claims that the Cabinet Decision of January

1895 was merely an internal matter, not legally binding on Qing China, let alone on Taiwan

today.39 In relation to the alleged return of the islands after World War II, Taiwan contends that

the Senkaku Islands fell within the ambit of the post-World War II treaties and should have

been restored to the Republic of China.40

17. Concerning Japan’s sovereignty claim based on the theory of prescription, Taiwan

argues that Japan cannot use this principle to justify its occupation of the Senkaku Islands. For

the period of 1945-1972 Taiwan claims that the islands, while under USA government

trusteeship, were not ruled by Japan nor controlled by any other country and that therefore USA

trusteeship did not have significance in terms of sovereignty and further claims that it has

lodged diplomatic protests with Japan.41 Taiwan further argues that the USA does not have the

right to unilaterally decide who possesses sovereignty over the Senkaku Islands since the

36 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014). 37 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014). 38 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014). 39 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014). 40 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014). 41 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014).

9

transfer of administration rights over the islands in 1971 was neutral in relation to sovereignty

and that it did not affect the position of any claimant.42

18. Taiwanese scholars have acknowledged that the Senkaku Islands do not qualify to

generate EEZs and continental shelves under article 121, (3) UNCLOS.43

19. In July 1970 Taiwan and the Gulf Oil Company signed a contract for the exploration

and exploitation of the hydrocarbon resources in a specified area of the sea northeast of Taiwan,

including the Senkaku Islands.44 Almost instantly Japan contested Taiwan’s action, asserting

that the islands belonged to Japan.45

I.4. Japan’s position

20. At the sixty-seventh session of the UN General Assembly in September 2012, Japan’s

representative said that the Senkaku Islands are clearly an inherent territory of Japan, based on

historical facts and international law.46

21. Japan’s claim to the Senkaku Islands also has three distinct bases: firstly, legal

possession of the islands, secondly, peaceful and continuously exercised sovereignty and

thirdly, acquiescence by China.47 Summarized, Japan’s claim rests on the theory of occupation

of terra nullius and the exercise of control over the islands based on the theory of prescription.48

22. Japan argues that the islets were discovered by Tatsushiro Koga, a Japanese national, in

1884. After various surveys conducted from 1885 the Japanese government concluded that the

islands possessed no sign of habitation or evidence of Chinese control or ownership and

42 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014). 43 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 62; Infra 90-118. 44 A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell

International Law Journal 2009, 441-474. 45 C.-h. PARK, East Asia and the Law of the Sea, Seoul, Seoul National University Press, 1983, 150. 46 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Statements made by H.E. Mr. Kazuo Kodama, Ambassador Extraordinary and Plenipotentiary, Deputy Permanent Representative of Japan to the UN in exercise of the right of reply, following the statement made by H.E. Mr. Yang Jiechi, Minister for Foreign Affairs of the People's Republic of China at the General Debate of the 67th Session of the UN General Assembly on 27 September, 2012”, http://www.mofa.go.jp/announce/speech/un2012/un_0928.html (retrieved 3 January 2014). 47 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and

Policy Journal 2000, 1-22. 48 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014); S. KAWASHIMA, “Japan” in The Oxford Handbook of the History of International Law, Oxford, Oxford University Press, 2012, (475) 491; D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of

International Law 2006, 134-168; on the theory of prescription, see infra 54-61.

10

therefore deemed the islets terra nullius, after which formal incorporation into Japanese

territory followed in 1895 by decision of the Japanese Cabinet to erect a marker on the islands.49

23. Between 1896 and 1918 Koga invested large amounts of capital in developing the

islands and attempted economic activity (fish and bird-canning, collecting bird feathers, etc.)

and in the same period Japanese immigrated to the islands, with a population peak of 248 in

1909.50 In 1932 the islands became private property when Koga’s son purchased four of the

islands from the Japanese government and after World War II, the American Civil

Administration of the Ryukyu Islands had a leasing contract with Koga for military use of the

islands.51 In the same period, the United States administered the islets and in accordance with

the Agreement Between Japan and the United States of America concerning the Ryukyu Islands

and the Daito Islands, which came into force in May 1972, the Senkaku Islands were included

in the areas whose administrative rights were reverted to Japan.52

24. Moreover, Japan argues that since it incorporated the Senkaku Islands separately in its

territory in 1895 and as they have since then remained an integral part of the Nansei Islands,

which are Japanese territory, they were never considered a part of Taiwan or its appertaining

islands and were therefore not included in the territory ceded to Japan pursuant to the Treaty of

Shimonoseki (concluding the Sino-Japanese War in 1895) nor in the territory which Japan

renounced under the San Francisco Peace Treaty after World War II.53 Furthermore, Japan

stresses that the Senkaku Islands were not specifically included in the San Francisco Peace

Treaty, which did not name any recipient for Japan’s relinquished territories: it gave the United

States authority to dispense with the islands and the Senkaku Islands were either included with

49 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Decision of 14 January 1895 and Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014); D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168; W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and Policy

Journal 2000, 1-22. 50 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 61; D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of

International Law 2006, 134-168. 51 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 52 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “The Basic View on the Sovereignty over the Senkaku Islands”, May 2013, http://www.mofa.go.jp/region/asia-paci/senkaku/basic_view.html (retrieved 3 January 2014); D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 53 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “The Basic View on the Sovereignty over the Senkaku Islands”, May 2013, http://www.mofa.go.jp/region/asia-paci/senkaku/basic_view.html (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014); D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168; W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and Policy

Journal 2000, 1-22.

11

Okinawa when the United States transferred it to Japanese control or the islands were never

transferred to any country.54

25. Secondly, Japan argues that, after having taken possession over the Senkaku Islands in

1895, it has exercised sovereignty over them. This claim is substantiated by the lease of the

islands to Tatsuhiro Koga, who built transportation facilities and imported seasonal workers to

the islands each year and by the fact that from 1958 the American Civil Administration in the

Ryukyu Islands paid rent to Koga’s son for occasionally using the islands.55 Other activities

sustaining Japan’s exercise of sovereignty include the formal incorporation of the islands into

Japan’s local government, surveys of land by government agencies, police investigations of a

plane crash on the islands and the building of weather stations.56 In 1968, the U.S. and

Okinawan government took several joint steps to govern and patrol the islands to prevent illegal

entry, while the U.S. administered the islands.57 After the U.S. returned the islands in 1972,

Japan claims to have continued exercising sovereignty over the Senkaku Islands with its Self-

Defenses forces regularly patrolling over the area and by permitting the erection of a heliport

and navigational lighthouses.58

26. Finally, Japan argues that China has acquiesced to its occupation of the Senkaku Islands.

According to Japan, China expressed no objections or reservations to Japan’s earlier surveys,

conducted in the late 19th century nor to Japan’s numerous uses of the Senkaku Islands from

their formal incorporation into Japan’s territory in 1895.59 Concerning the situation after World

War II, Japan argues that China did not object to the administration of the islands by the U.S.60

Japan states that for over a century China and Taiwan had never expressed objections until the

1970s when China first began marking its own assertions on territorial sovereignty over the

Senkaku Islands, after an academic survey indicated the possible existence of petroleum

54 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 55 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and

Policy Journal 2000, 1-22. 56 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and





Policy Journal 2000, 1-22.

12

resources on the surrounding seas.61 Consequently, Japan claims to possess the islands through

the theory of prescription.62

27. Moreover, Japan argues that besides the fact that until the early 1970s China and Taiwan

did not object to Japanese sovereignty, there are documents that indicate that China had been

recognizing the Senkaku Islands as Japanese territory, such as maps and a letter from the consul

of the Republic of China dated May 1920 expressing appreciation for the rescuing of thirty-two

Chinese fishermen who had to deal with contrary winds and drifted to “Wayo Island, Senkaku

Islands, Yaeyama District, Okinawa Prefecture, Empire of Japan”.63 This letter and its wording

are seen by Japan as an unmistakable example of Chinese authorities recognizing the disputed

islands to be under Japanese jurisdiction.

28. Japan maintains that these facts indicate that the Senkaku Islands are historically part of

the territory of Japan, having continuously been part of the Nansei Shoto Islands, which

themselves are part of the territory of Japan.64

29. Concerning the Okinawa Trough for maritime boundary delimitation, Japan argues that

the Okinawa Trough is just an incidental depression in a continuous continental margin between

the two countries and that any legal effect of the trough should be ignored.65

I.5. American position

30. The USA have a specific interest in the region and the conflicts in the East and South

China Sea for several reasons. Not only are China and Japan two of the largest economies in

the world and are the China Seas (both the South China Sea and the East China Sea) one of the

61 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Statements made by H.E. Mr. Kazuo Kodama, Ambassador Extraordinary and Plenipotentiary, Deputy Permanent Representative of Japan to the UN in exercise of the right of reply, following the statement made by H.E. Mr. Yang Jiechi, Minister for Foreign Affairs of the People's Republic of China at the General Debate of the 67th Session of the UN General Assembly on 27 September, 2012”, http://www.mofa.go.jp/announce/speech/un2012/un_0928.html (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014); D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 62 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 63 For the full letter of appreciation see: Annex 2 and H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of International Law and Affairs 2008, 95 (101); W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and Policy Journal 2000, 1-22; MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014). 64 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “The Basic View on the Sovereignty over the Senkaku Islands”, May 2013, http://www.mofa.go.jp/region/asia-paci/senkaku/basic_view.html (retrieved 3 January 2014). 65 J. GUOXING, “Maritime Jurisdiction in the Three China Seas”, University of California Institute on Global

Conflict and Cooperation Policy Papers, 3-33 available at http://escholarship.org/uc/item/7rq2b069 (retrieved 2 January 2014).

13

most important navigational routes in the world and thus of special, strategic interest to the

USA but after World War II the Senkaku Islands were administered by the USA as part of

Okinawa.66 Moreover, the USA and Japan have, as a result of World War II and in the light of

the imposed pacifist attitude of Japan, a security treaty according to which “the United States

of America should maintain armed forces of its own in and about Japan so as to deter armed

attack upon Japan” which implies that Japan is dependent of the USA for its self-defense.67

The USA has consistently supported Japan’s control over the Senkaku Islands. Immediately

after China announced in November 2013 that it was establishing an Air Defense Identification

Zone in the East China Sea Secretary of Defense Chuck Hagel made a statement in which he

expressed the USA’s concern on that development and regarded it as “a destabilizing attempt

to alter the status quo in the region”.68 He further stressed that the USA remain steadfast in

their commitments to their allies and partners, referring to Japan and the treaty they have with

Japan on mutual defense.69 In April 2013, he made clear that the USA do not take a position on

the ultimate sovereignty over the Senkaku Islands but that they do recognize that the islands are

under Japan’s administration and that they fall under their security treaty obligations.70 Most

recently Daniel R. Russel, assistant secretary of the Bureau of East Asian and Pacific Affairs,

stated before the House Committee on Foreign Affairs Subcommittee on Asia and the Pacific

that the Senkaku Islands are under the administration of Japan and that China should refrain

from taking actions which change the status quo and raise tensions. Moreover, he called China’s

announcement of an Air Defense Identification Zone “a provocative act and a serious step in

the wrong direction”.71

66 Supra 2. 67 Security Treaty Between the United States and Japan of 8 September 1951, available at http://avalon.law.yale.edu/20th_century/japan001.asp (retrieved 3 April 2014). 68 U.S. DEPARTMENT of DEFENSE, “Statement by Secretary of Defense Chuck Hagel on the East China Sea Air Defense Identification Zone”, 23 November 2013, http://www.defense.gov/releases/release.aspx?releaseid=16392 (retrieved 21 April 2014); Infra 145. 69 Infra 35. 70 U.S. DEPARTMENT of DEFENSE, “Press Conference with Secretary Hagel and Defense Minister Onodera from the Pentagon”, 29 April 2013, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=5230 (retrieved 3 April 2014). 71 U.S. DEPARTMENT of STATE, “Maritime Disputes in East Asia”, 5 February 2014, http://www.state.gov/p/eap/rls/rm/2014/02/221293.htm (retrieved 3 April 2014).

15

CHAPTER II

ROLE OF ROC AND USA

II.1. ROC

31. As can be discerned from the exposition on the visions of the parties concerned, the

issue of Taiwan is one of the many factors complicating both the dispute on sovereignty over

the Senkaku Islands and the maritime delimitation in the East China Sea. As was mentioned in

the relevant section of this contribution, for the period after 1949, Taiwan refers to other treaties

concluded with Japan than China does, complicating the legal framework of the Senkaku

Islands dispute.72 Moreover it should be noted that neither Taiwan’s nor China’s government

recognizes the other as a legitimate national government and that Taiwan is not a member of

the UN.

32. China upholds a ‘one China’ policy, implying that Taiwan is a part of China and that

the PRC is the only legitimate government of China.73 Concerning the UN, the ROC was a

founding member of the UN in 1945 and retained its membership until 1971. The ROC’s

membership was taken over by the PRC in 1971, when the UN General Assembly passed

Resolution 2758 recognizing the PRC as the only lawful representative of China to the UN.74

Taiwan has submitted several requests to regain membership of the UN, but due to China’s

strong opposition and international dissension such attempts have not yet been successful.

33. In relation to the Senkaku Islands dispute, Taiwan has been excluded from the

negotiations between China and Japan although it upholds its own claims and assertions in

relations to sovereignty over the islands and maritime delimitation in the East China Sea. The

contentious issue of its legal and political status leaves Taiwan with a dubious and ambiguous

role and importance in the Senkaku Islands dispute and the maritime boundary delimitation.

II.2. USA

34. The USA play a very specific role in the Senkaku Island dispute in two ways. Firstly,

after World War II the USA administered Japan’s Okinawa prefecture as a result of the San

Francisco Peace Treaty. It is clear that that administration also included the Senkaku Islands.

In 1971 however, although the islands were not mentioned by name, the Okinawa Agreement

reverted the territories administered by the USA back to Japan. However the USA have

responded to China and Taiwan’s objections to the Okinawa Agreement by saying that the USA

72 Supra 15. 73 Preamble Constitution of the People’s Republic of China of 4 December 1982, available at http://english.gov.cn/2005-08/05/content_20813.htm (retrieved 8 May 2014); Art. 2 Anti-Secession Law of 14 March 2005, available at http://www.china.org.cn/english/2005lh/122724.htm (retrieved 8 May 2014). 74 Resolution 2758 (XXVI) of the General Assembly of the United Nations (25 October 1971), UN Doc. A/RES/2758 (1971).

16

had only received rights of administration and not sovereignty and that therefore the Okinawa

Agreement only dealt with the transfer of administrative rights, not sovereignty.75

35. Secondly, the potential consequences of the Treaty of Mutual Cooperation and Security

between the United States and Japan (hereinafter 1960 Security Treaty) should be considered,

especially in the worst case scenario where China would attack the Senkaku Islands, turning

the dispute into an armed conflict. In 1947, Japan’s new constitution, reflecting Japan’s pacifist

attitude, was promulgated as an effect of its surrender at the end of World War II. Although one

of current Prime Minister Shinzo Abe’s main goals is to change this provision, article 9 of the

Constitution of Japan still provides:

“Aspiring sincerely to an international peace based on justice and order, the Japanese

people forever renounce war as a sovereign right of the nation and the threat or use of

force as means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as

well as other war potential, will never be maintained. The right of belligerency of the

state will not be recognized”.76

36. Since Japan had no means of defending itself pursuant to its constitution, the 1960

Security Treaty was concluded as a result of World War II and Japan’s imposed pacifist attitude,

providing an alternative defense system for Japan. This treaty implies that Japan is dependent

of the USA for its self-defense. Article V provides that

“each Party recognizes that an armed attack against either Party in the territories under

the administration of Japan would be dangerous to its own peace and safety and

declares that it would act to meet the common danger in accordance with its

constitutional provisions and processes. Any such armed attack and all measures taken

as a result thereof shall be immediately reported to the Security Council of the United

Nations in accordance with the provisions of Article 51 of the Charter. Such measures

shall be terminated when the Security Council has taken the measures necessary to

restore and maintain international peace and security”.77

37. It is understood that it follows from this provision that if China were to attack the

Senkaku Islands and the dispute would become an armed conflict, the USA would be obliged

to protect Japan. In November 2010, former Secretary of State Hillary Clinton announced that

the Senkaku Island fall within the ambit of the treaty.78 Moreover, in October 2010, the

75 C. MANJIAO, “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review 2011, 174. 76 Art. 9 Constitution of Japan of 3 May 1947, available at http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html (retrieved 3 April 2014). 77 Art. V Treaty of Mutual Cooperation and Security between the United States of America and Japan of 19 January 1960, available at http://www.mofa.go.jp/region/n-america/us/q&a/ref/1.html (retrieved 3 April 2014). 78 C. MANJIAO, “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review 2011, 163-189; Bloomberg News, “China Rejects Clinton’s Offer to Mediate With Japan Over Disputed Islands”, 2 November 2010, http://www.bloomberg.com/news/2010-11-02/china-rejects-clinton-s-offer-to-mediate-with-japan-over-disputed-islands.html (retrieved 8 April 2014).

17

Secretary of State had already offered to mediate three-way negotiations concerning the islands,

which was refused by China.79

38. In conclusion, it can be said that the involvement of the USA gives rise to another

complication in the Senkaku Islands dispute. Although the 1960 Security Treaty does not

literally mention the Senkaku Islands, the treaty de facto applies to the islands. Considering the

forgoing, resolving the dispute becomes an even bigger diplomatic task since it involves

interests of Japan, the USA and China, the world’s largest and strongest economies.

79 “China rejects US involvement in China-Japan island row”, 1 November 2010, http://www.bbc.com/news/world-asia-pacific-11671516 (retrieved 8 April 2014).

19

CHAPTER III

SOVEREIGNTY: WHO HAS A RIGHT TO THE SENKAKU ISLANDS?

III.1. Territorial acquisition and loss of territory

39. Traditionally there are five modes of territorial acquisition under international law:

discovery and occupation, transfer/cession, prescription, conquest and adhesion. Only the

relevant modes, as claimed by the parties concerned, will be discussed in detail. It should be

pointed out that most cases, just as the Senkaku Islands case, do not fall into clear theoretical

categories. In that light it should be noted that discovery and occupation will be discussed

separately from prescription although there are similarities between both concepts, since China

bases its claim specifically on prior discovery and use while Japan bases its claim primarily on

the theory of prescription. Consequently, this chapter will attempt to assess sovereignty in light

of the means of acquiring sovereignty put forward by the parties.

1. Discovery and occupation

40. As was set out in the parties’ positions, China claims sovereignty over the Senkaku

Islands based on prior discovery and use. Occupation is often preceded by discovery, the

realization or sighting of the existence of a particular piece of land.80 It is important to point out

that mere discovery of territory, evidenced only by physical disembarkation or visual

apprehension is not a sufficient basis for the title to terra nullius. Grotius already reasoned this

way and his view was put forward in the Island of Palmas case, where the arbitrator held that

discovery alone, without any subsequent act, cannot suffice to prove sovereignty.81 The Island

of Palmas case revealed that the effect of discovery alone merely gives an inchoate title which

has to be complemented by the effective occupation of the relevant region in order to become

opposable to others.82

41. Occupation was recognized in the Western Sahara case as an original mode of peaceably

acquiring sovereignty over territory.83 It is the method of acquiring territory which belongs to

no one and which may be acquired by a state in certain situations, primarily relating to

uninhabited territories and islands.84 The occupation is submitted to certain conditions: it must

be by a state and not by a private person, it must be effective and it must be intended as a claim

of sovereignty.85 Essential in the assessment of the acquisition of territory based on occupation

is determining whether the land concerned was terra nullius. In deciding on competing claims

80 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 504. 81 PCA, Island of Palmas case (United States of America v. Netherlands), Arbitral Award, Reports of International

Arbitral Awards 1928, 846. 82 D.-E. KHAN, “Territory and Boundaries” in B. FASSBENDER, A. PETERS, S. PETER and D. HÖGGER (eds.), The

Oxford Handbook of the History of International Law, Oxford, Oxford University Press, 2012, (225) 239; M. N. SHAW, International Law, Cambridge, Cambridge University Press, 504. 83 ICJ, Western Sahara, Advisory Opinion, ICJ Reports 1975, 39. 84 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 503. 85 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 503.

20

to sovereignty and in delimiting boundaries, tribunals and courts rely on factual evidence of

settlement, known as effectivités.86 Obviously, the complexity of the facts of each case will

influence the final outcome. The leading case law on this matter shows that the determination

of territorial disputes are often based on slender evidence of state activities.

42. In the Island of Palmas case, which has a quasi-oracular authority, judge Huber found

that “[…] the actual, continuous and peaceful display of State functions is in case of dispute

the sound and natural criterium of territorial sovereignty”.87 Furthermore, judge Huber took

into account the fact that no state had contested the existence of territorial rights and the absence

of protest against the exercise of those rights. The Island of Palmas case set forth the rule that

peaceful and continuous displays of authority provide a stronger basis for title than mere

discovery alone.88 However, judge Hubert found that “the fact that a State cannot prove display

of sovereignty as regards such a portion of territory cannot forthwith be interpreted as showing

that sovereignty is inexistent”.89 In other words: each case has to be assessed in accordance

with its particular circumstances.

43. One could argue that as China for a long time has not held a claim over the Senkaku

Islands, this non-contest may be interpreted as an acceptance of Japanese territorial rights.

However, there is a difference between the Island of Palmas case and the Senkaku Islands

dispute inasmuch as the Island of Palmas, although isolated, was inhabited so that it was

“impossible that acts of administration could be lacking for very long periods”.90 The Senkaku

Islands on the contrary are currently uninhabited, which renders it possible that acts of

administration can in fact be lacking for very long periods or even be unnecessary.

44. The Clipperton Island case approaches the Senkaku Islands dispute more closely, since

the island concerned was virtually uninhabited. King Emmanual III of Italy, acting as the sole

arbitrator in this case, found:

“Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the

first moment when the occupying state makes its appearance there, at the absolute and

undisputed disposition of that state, from that moment the taking of possession must be

considered as accomplished, and the occupation is thereby completed”.91

45. In other words: if an island is recognized as terra nullius, it is at the disposition of the

state that makes the first appearance there. However, it is clear from the relevant case law that

discovery of land that is terra nullius provides only a weak claim of title and does not confer

86 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 152. 87 PCA, Island of Palmas case (United States of America v. Netherlands), Arbitral Award, Reports of International

Arbitral Awards 1928, 840. 88 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 89 PCA, Island of Palmas case (United States of America v. Netherlands), Arbitral Award, Reports of International

Arbitral Awards 1928, 855. 90 PCA, Island of Palmas case (United States of America v. Netherlands), Arbitral Award, Reports of International

Arbitral Awards 1928, 855. 91 Clipperton Island case (France v. Mexico), Arbitral Award, reprinted in American Journal of International Law 1932, 394.

21

an absolute title unless substantiated by the exercise of effective control grounded in peaceful

and continuous sovereignty.92

46. It follows from the Clipperton Island case that a country claiming title to an island must

actively challenge other hostile claims, which Mexico did not do when France declared title to

the island in 1858. Applied to the Senkaku Islands dispute, there is no evidence in China’s

position that it challenged the Japanese Cabinet decision of 1895, incorporating the Senkaku

Islands in its territory. Secondly, in line with the Islands of Palmas case, the Clipperton Island

case points out that active displays of sovereignty are given greater weight than mere

declarations of prior possession of title. In the present dispute, both China and Japan claim that

they comply with this criterion. In that case, those acts must be balanced. Moreover, the

Clipperton Island case concluded that effective occupation may be unnecessary to prove actual

title where the territory claimed is an uninhabited island.93 In cases concerning uninhabited

islands, a much lower occupation (or even none at all) is required.

47. Already in this case of 1931 it was established that besides the animus occupandi, “the

actual, and not the nominal, taking of possession is a necessary condition of occupation”.94

This was further elaborated in 1933 in the Eastern Greenland case where the Permanent Court

of International Justice (hereinafter PCIJ) held that

“a claim to sovereignty based not upon some particular act or title such as a treaty of

cession but merely upon continued display of authority, involves two elements each of

which must be shown to exist: the intention and will to act as sovereign and some actual

exercise or display of such authority”.95

A. Animus occupandi to the Senkaku Islands

48. Since the criterion of animus occupandi refers to the intention and the will of a state, it

is naturally a subjective criterion. However, for evidence it depends on objective manifestations

of state authority. In other words: the line between animus occupandi and corpus occupandi is

not always clear and the two criteria are closely linked and intertwined. Nevertheless, animus

occupandi refers specifically to the demonstration that the activities undertaken are on behalf

of the state (à titre de souverain) rather than private acts. This subjective element also requires

that the evidence is referable to the hypothesis that sovereignty exists.96 Mostly this means the

enactment of legislation (e.g. the exercise of criminal jurisdiction) but this does not have any

absolute value.

92 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 93 Clipperton Island case (France v. Mexico), Arbitral Award, reprinted in American Journal of International Law 1932, 393-394. 94 Clipperton Island case (France v. Mexico), Arbitral Award, reprinted in American Journal of International Law 1932, 393. 95 PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, PCIJ Series A./B., n°53, 1933, 45-46. 96 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 156.

22

B. Corpus occupandi to the Senkaku Islands

49. Concerning the corpus occupandi it was found in the Clipperton Island case that “this

taking of possession consists in the act, or series of acts, by which the occupying state reduces

to its possession the territory in question and takes steps to exercise exclusive authority

there”.97 In the Eastern Greenland case the PCIJ stated that “legislation is one of the most

obvious form of the exercise of sovereign power […]”.98 Although this implies that the

enactment of legislation will provide evidence of the intention to act as sovereign, the actual

exercise of state authority must also be demonstrated by acts of administration and the execution

of government functions.99 Examples are legio: maintaining a registry of fishing boats, signal

posts and lighthouses, establishing meteorological stations, etc.100 The Islands of Palmas case

accepted acts such as the conclusion of contracts with local rulers, taxation of local people,

patrols by a warship and assistance given by the Dutch government after a typhoon as the

‘continuous and peaceful display of the functions of state’.101 In the Clipperton Island case, the

island was awarded to France based on a French lieutenant claiming the island on behalf of the

French government coupled with an alleged landing by French naval crew members, the

publication of a French declaration of sovereignty in a Honolulu journal by the French

Consulate in Hawaii and a protest to the USA following the discovery of a group of Americans

collecting guano on the island.102 In the Eastern Greenland case the promulgation of

administrative, hunting and fishing regulations and the mounting of scientific, mapping and

exploratory expeditions were found to demonstrate the intent and will to act as sovereign.103

The fact that Denmark did not purport to have exercised administrative control did not withhold

the Court from deciding in Denmark’s favor. It seems that the Court was more concerned to

ensure that the title be recognized in the state that was able to show the more comprehensive

acts of occupation.104

50. In the Minquiers and Ecrehos case, both parties substantiated their claims with evidence

of prior possession dating back to 1066 but the Court found such ancient evidence inconclusive

and unimportant and stated that what was determinative was “not indirect presumptions

deduced from events in the Middle Ages, but evidence which relates directly to the possession

of the Ecrehos and Minquires groups”.105 In other words, the Court focused upon more recent

97 Clipperton Island case (France v. Mexico), Arbitral Award, reprinted in American Journal of International

Law 1932, 393. 98 PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, PCIJ Series A./B., n°53, 1933, 48. 99 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 157. 100 For more examples see: V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 157. 101 PCA, Island of Palmas case (United States of America v. Netherlands), Arbitral Award, Reports of

International Arbitral Awards 1928, 829. 102 Clipperton Island case (France v. Mexico), Arbitral Award, reprinted in American Journal of International

Law 1932, 393. 103 PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, PCIJ Series A./B., n°53, 1933, 62-63. 104 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 155. 105 ICJ, The Minquiers and Ecrehos case (France v. United Kingdom), Judgment, ICJ Reports 1953, 57.

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displays of sovereignty through possession and claims of ancient title were of little

determinative value.

51. The Court in the case concerning Land, Island and Maritime Frontier Dispute turned its

attention to specific acts that would constitute an exercise of sovereignty and to whether a

country acquiesced to such acts, focusing on displays of actual authority, such as actual

occupation and effective control.106 Quoting the Island of Palmas case the Court held that

“continuous and peaceful display of territorial sovereignty is as good as title”, relying upon

occupation coupled with acts constituting acquiescence.107

52. One must keep in mind that the manifestations of state authority are relative to each case

and their value depends on their strength counter-balanced with the evidence put forward by

the opposing state.108 In the case of the Senkaku Islands this could imply that, although China

brings forward historical evidence that goes back as far as the 14th century to prove its discovery

claim, this would not be determinative under modern international law and it might be found

that Japan has shown more effective displays of sovereignty, be it only through scarce action.

It should be noted here that neither China nor Japan disputes the fact that Japan has exercised

control over the islands since 1895.109

2. Transfer/cession

53. A valid title to territory may be acquired where one sovereign intends to transfer

sovereignty over all or part of its territory to another state by treaty.110 However, this mode of

acquiring territory is limited by the maxim ‘nemo dat quod non habet’ according to which a

state can cede no more rights than it has. Cession as a mode of transfer of territory has often

arisen where the treaty ceding the territory is a form of peace settlement after a war, such as in

the Island of Palmas case.111 Cession is based on the intention of the relevant parties to transfer

sovereignty, otherwise it cannot legally operate.112 In the case of the Senkaku Islands, it is

mainly China that argues that the Senkaku Islands were reverted to Japan by the Treaty of

Shimonoseki of 1895, ending the First Sino-Japanese War.113 China also points to the fact that

the Treaty of Shimonoseki was unilaterally imposed by Japan, as a victor, on China. Today,

article 52 of the Vienna Convention on the Law of Treaties of 1969 provides that a treaty is

void if it has been procured by threat or use of force, implying that a treaty of cession would

not be valid today were it obtained by force. However, security of title is preserved for territory

106 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 107 ICJ, Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Judgment, ICJ Reports 1992, 563-566. 108 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 158. 109 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168; Supra I.3 and I.4. 110 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 169. 111 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 170; M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 499. 112 M. N. SHAW, International Law, Cambridge, Cambridge Universitey Press, 2008, 499. 113 Supra 12.

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gained by cession by use of force prior to the 1945 UN Charter, which prohibits the use of force.

This implies that so long as the title was valid at the time is was acquired, it will remain valid.114

Since the Treaty of Shimonoseki dates from 1895, China could not invoke its invalidity by

referring to article 52 of the Vienna Convention on the Law of Treaties, even it were true that

it was imposed on China by the use of force.

3. Prescription

54. As was mentioned above, Japan claims sovereignty over the Senkaku Islands based on

the theory of prescription.115 Although strictly speaking prescription and occupation are two

different modes of acquisition of territory, there are several crucial factors which link the

concepts, both based upon the exercise of effective control.116 Prescription is a mode of

establishing title to territory which is not terra nullius and which has been obtained either

unlawfully or in circumstances wherein the legality of the acquisition cannot be

demonstrated.117 According to Prescott and Triggs, prescription arises where the state “has, in

fact, exercised its authority, in a continuous, uninterrupted, and peaceful manner over the area

concerned for a sufficient period of time, provided that all other interested and affected states

have acquiesced in this exercise of authority”.118 In other words: prescription is the

legitimization of a fact since it legitimizes a doubtful title by the passage of time and the

presumed acquiescence of the former sovereign.119 The difference with occupation lies in the

nature of the territory concerned: occupation requires the territory to have been terra nullius

before its occupation whereas prescription applies to territory which was not terra nullius but

under the authority of another sovereign. As a preliminary remark it should be noted that each

claim to prescriptive title depends upon the circumstances and no general rules can be discerned

as to the precise content of the title.120 However, it is clear that acquiescence and protest are

crucial elements of prescriptive title. Prescriptive title depends on the peaceful exercise of

authority and express or implied acquiescence by possibly affected third states.121

55. In the Kasikili/Sedudu Island case, the International Court of Justice (hereinafter ICJ)

rejected Namibia’s prescriptive claim over the island ruling that private acts without

governmental involvement could not be used to generate prescriptive title.122 This reasoning

was reiterated in the case concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan where

114 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 170. 115 Supra I.4. 116 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 502-503. 117 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 504. 118 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 163. 119 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 504. 120 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 163. 121 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 163. 122 ICJ, Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, ICJ Reports 1999, 1103-1106.

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the Court stated that “activities by private persons cannot be seen as effectivités if they do not

take place on the basis of official regulations or under government authority”.123

56. Concerning effectivités, a qualitative rather than quantitative approach is adhered. In the

Eastern Greenland case the PCIJ stated that

“it is impossible to read the records of the decisions in cases as to territorial sovereignty

without observing that in many cases the tribunal has been satisfied with very little in

the way of the actual exercise of sovereign rights, provided that the other state could

not make out a superior claim. This is particularly true in the case of claims to

sovereignty over areas in thinly populated or unsettled countries”.124

This reasoning was further elaborated in the Pulau Ligitan/Pulau Sipadan case where the ICJ

found that “in particular in the case of very small islands which are uninhabited or not

permanently inhabited – […] – effectivités will indeed generally be scarce”.125 Further

examining the activities invoked as effectivités, the Court found that

“the activities relied upon by Malaysia, […], are modest in number but that they are

diverse in character and include legislative, administrative and quasi-judicial acts.

They cover a considerable period of time and show a pattern revealing an intention to

exercise State functions in respect of the two islands in the context of the administration

of a wider range of islands”.126

57. Moreover, the Court’s decision attached importance to the fact that at the time the

relevant acts were carried out, no country expressed disagreement or protest.127

58. More recently, in the Territorial and Maritime Dispute case between Nicaragua and

Colombia, the ICJ reiterated, in relation to effectivités that

“acts and activities considered to be performed à titre de souverain are in particular,

but not limited to, legislative acts or acts of administrative control, acts relating to the

application and enforcement of criminal or civil law, acts regulating immigration, acts

regulating fishing and other economic activities, naval patrols as well as search and

rescue operations”.128

Specifically in relation to minor maritime features, the ICJ recalled – referring to the Nicaragua

v. Honduras case of 2007 – that sovereignty over such features “may be established on the basis

123 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Reports 2002, 683. 124 PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, PCIJ Series A./B., n°53, 1933, 45-46. 125 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Reports 2002, 682. 126 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Reports 2002, 685. 127 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Reports 2002, 685. 128 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 655.

26

of relatively modest display of State powers in terms of quality and quantity”.129 Lastly, the ICJ

pointed out that “a significant element to be taken into account is the extent to which any acts

à titre de souverain in relation to disputed islands have been carried out by another State with

a competing claim to sovereignty”, referring to the statement of the PCIJ in the Eastern

Greenland case.130

59. Under its analysis of effectivités, the ICJ will first determine the ‘critical date’, that is to

say, the date on which the dispute as to sovereignty between the parties concerned

crystallized.131 This date is of importance because the Court, in ascertaining which state has

sovereignty, will only take into account events occurring prior to the ‘critical date’.132 It is

evident that the Court cannot take into account events occurring after this date because a state

might take actions after the crystallization of the dispute to buttress its claim of sovereignty. Of

course, the ‘critical date’ depends on the facts of each case and the ICJ has chosen different

events as the ‘critical date’ such as the date on which states asserted competing claims, the date

at which the dispute was submitted to the Court, the date of a treaty, the date of independence,

etc.133 It can be said that the ‘critical date’ is a judicial invention which highly depends on the

assessment of the Court in light of the specific circumstances of each case.134

60. As was mentioned in the parties’ positions, both China and Japan refer to several maps

to sustain their respective claims.135 Therefore it is appropriate to concisely elaborate on the

evidentiary role of maps in territorial disputes.136 Especially to sustain a claim based on the

theory of prescription, maps can have a certain importance: they may be evidence of state

practice, of the intentions of a state, of acquiescence and of acts of sovereign jurisdiction or

administration.137 Nonetheless, maps do not of themselves constitute title to territory. It is

settled case law that maps are treated as secondary evidence of title to territory or the location

of a frontier. This was stated as a principle by the ICJ in the Frontier Dispute case (Burkina

Faso v. Mali) where it held that

“[…] whether in frontier delimitations or in international territorial conflicts, maps

merely constitute information which varies in accuracy from case to case; of themselves,

and by virtue solely of their existence, they cannot constitute a territorial title, that is, a

document endowed by international law with intrinsic legal force for the purpose of

establishing territorial rights”.138

The Court noted that in some cases maps may acquire legal force but that this force then stems

from the fact that “[…] such maps fall into the category of physical expressions of the will of

129 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 655. 130 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 655; Supra 56. 131 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 652. 132 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 652. 133 M. DIXON, Textbook on International Law, Oxford, Oxford University Press, 2013, 164-165. 134 M. DIXON, Textbook on International Law, Oxford, Oxford University Press, 2013, 164-165. 135 Supra Chapter I. 136 For an extensive elaboration see: V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 191-214. 137 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 193-214. 138 ICJ, Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment, ICJ Reports 1986, 582.

27

the State or States concerned”.139 This principle of the ICJ set out in the Frontier Dispute case

has since consistently been applied in the dictum of decisions of international tribunals.140

61. Under modern international law Japan may have a case for prescriptive title to the

Senkaku Islands mostly sustained by the fact that it is undisputed that Japan has had control

over the islands since 1895 and that China did not actively challenge Japan’s hostile claims by

not expressing any objections about Japan’s actions prior to 1885 (e.g. the research envoys),

during World War II and after World War II when China did not object to the administration

of the islands by the United States. All these elements could constitute acquiescence to Japan’s

claims.141 An analogy can be made with the Territorial and Maritime Dispute case between

Nicaragua and Colombia, where the ICJ found, inter alia, the lease of the right to extract guano

and collect coconuts, the maintenance of a lighthouse and rescue operations to be very strong

support for Colombia’s sovereignty claim over the disputed maritime features.142 In relation to

the Senkaku Islands, similar acts can be discerned.143 Concerning the ‘critical date’, either 1895

might be chosen, the date of the Treaty of Shimonoseki, but it is the contributor’s view that

choosing December 1970, when China asserted its first official claim to the Senkaku Islands

would be more appropriate in light of the circumstances of this particular case.144

4. Conquest

62. Since article 2 (4) of the United Nations Charter prohibits the threat or use of force

against the territorial integrity or political independence of any state, it is no longer possible to

acquire territory by the use of force alone.145 As such, sovereignty does not pass merely by

conquest although complex situations may arise where the legal status of the territory concerned

is in dispute prior to the conquest.146 Following an armed conflict, acquisition of territory would

require further action of an international nature, such as a treaty of cession, besides domestic

legislation to annex.147

5. Accretion

63. Accretion is, unlike the other modes of acquiring sovereignty over territory, a natural

process which implies that there has not been a previous legal sovereign over the land. It is the

geographical process by which new land is formed and becomes attached to existing land.148

For example, the UK recognized an island, emerged in the Pacific Ocean after an under-sea

139 ICJ, Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment, ICJ Reports 1986, 582. 140 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 203. 141 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 142 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 656. 143 Supra Chapter I. 144 Infra 68 and 83. 145 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 149. 146 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 501. 147 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 502. 148 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 498.

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volcano eruption, to be Japanese territory since it emerged within the territorial sea of the

Japanese island of Iwo Jima.149

III.2. Current stand of international case law

64. Concerning territorial disputes over islands, five basic points emerge under modern

international case law.150 First, already in 1928, the Island of Palmas case revealed that inchoate

title, as gained through discovery, does not confer an absolute title and mere discovery of terra

nullius provides only a weak claim of title.151 Second, an inchoate title must be substantiated

by a state through the exercise of effective control grounded in peaceful and continuous

sovereignty. Therefore, international courts, tribunals and arbitrators search for effectivités as

proof. Acts which can prove the display of state authority are manifold, the enactment of

legislation being the most obvious example. Notably, cases such as the Pulau Ligitan/Pulau

Sipadan case have indicated that in relation to sovereignty disputes over very small, uninhabited

islands, evidence of the exercise of state authority can be very minimal and a qualitative rather

than quantitative approach is upheld.152 Among others the enactment of legislation, fishery

regulations, naval patrols and rescue operations have been accepted as effectivités. It is clear

that examples of effectivités are legio and very differentiated but it is crucial that these acts be

carried out à titre de souverain. Third, any hostile claim to its territory must be protested by

that state. If that state does not protest the hostile claim, it risks this being taken as implied

acquiescence to the other state’s claim. Fourth, ancient claims of title are unlikely to be upheld

when they are not backed by acts evidencing long periods of continuous and peaceful

sovereignty. In that light, rather than old historical evidence, the recent historical record is taken

into account.153 Last, acts of private persons may not generate prescriptive title if they are not

carried out with state authority.

III.3. Declarations, agreements and treaties relating to the Senkaku Islands

1. Cabinet Decision of 14 January 1895154

65. As was mentioned above, the Japanese Government has consistently regarded the

Cabinet Decision of 14 January 1895 as the legal basis for its claim over the Senkaku Islands.155

As was also mentioned above, this Decision was adopted to erect markers on the islands after

Japanese surveys from 1885 onward had allegedly proven that the islands were terra nullius at

that time.

149 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 498. 150 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134 (154). 151 Supra 42 and 45. 152 Supra 56. 153 Supra 50. 154 See Annex 3. 155 Supra 22.

29

66. According to its text the Cabinet Decision “is aimed at the uninhabited islands named

Kubajima and Uotsurishima, located northwest of the Yaeyama island group which are part of

Okinawa Prefecture”.156 Kubajima and Uotsurishima are two of the five islands of the Senkaku

Islands. This decision recognizes them as being part of Okinawa Prefecture, Japan, and finds

that “[the cabinet] should authorise the petition of the same prefecture’s governor about the

matter of the construction of wooden markers by means of recognising the same islands as

[falling under] the jurisdiction of Okinawa Prefecture” and that “there is otherwise no

objection, so concerning this the cabinet meeting seems appropriate”.157

67. The validity of this decision is challenged by both China and Taiwan since both

countries maintain the position that at the time the Cabinet Decision was adopted, the Senkaku

Islands were not terra nullius since China had discovered and used them from the 14th century

onward.158

2. Treaty of Shimonoseki of 17 April 1895159

68. The Treaty of Shimonoseki, signed on 17 April 1895, ended the First Sino-Japanese

war. According to China, it was forced to sign this treaty after Japan had defeated it and the

Senkaku Islands were ceded to Japan under this treaty. Japan on the other hand argues that it

had already incorporated the Senkaku Islands into its territory through the Cabinet Decision of

January 1895 and that the Senkaku Islands could thus have not been included in the Treaty of

Shimonoseki. Article 2 of the Treaty of Shimonoseki stipulates:

“China cedes to Japan in perpetuity and full sovereignty the following territories,

together with all fortifications, arsenals, and public property thereon:—

(a) The southern portion of the province of Fêngtien within the following boundaries:

The line of demarcation begins at the mouth of the River Yalu and ascends that stream

to the mouth of the River An-ping, from thence the line runs to Fêng-huang, from thence

to Hai-cheng, from thence to Ying-kow, forming a line which describes the southern

portion of the territory. The places above named are included in the ceded territory.

When the line reaches the River Liao at Ying-kow, it follows the course of the stream to

156 Cabinet Decision of 14 January 1895 related to the construction of wooden markers, available at http://www.jacar.go.jp/DAS/meta/MetaOutServlet?GRP_ID=G0000101&DB_ID=G0000101EXTERNAL&IS_STYLE=eng&XSLT_NAME=MetaTop.xsl&RIGHT_XSLT_NAME=MetaSearchRefCode.xsl (retrieved 3 April 2014). An official English translation was not available and for this contribution an unofficial English version was used, translated by D. M. BORM, Master of Arts in Oriental Languages and Cultures UGent, obtained in 2013. 157 Cabinet Decision of 14 January 1895 related to the construction of wooden markers, available at http://www.jacar.go.jp/DAS/meta/MetaOutServlet?GRP_ID=G0000101&DB_ID=G0000101EXTERNAL&IS_STYLE=eng&XSLT_NAME=MetaTop.xsl&RIGHT_XSLT_NAME=MetaSearchRefCode.xsl (retrieved 3 April 2014). An official English translation was not available and for this contribution an unofficial English version was used, translated by D. M. BORM, Master of Arts in Oriental Languages and Cultures UGent, obtained in 2013. 158 Supra 7-13. 159 Treaty of Shimonoseki of 17 April 1895, available at http://www.taiwanbasic.com/treaties/Shimonoseki.htm (retrieved 3 April 2014) (hereinafter Treaty of Shimonoseki).

30

its mouth, where it terminates. The mid-channel of the River Liao shall be taken as the

line of demarcation.

This cession also includes all islands appertaining or belonging to the province of

Fêngtien situated in the eastern portion of the Bay of Liao-tung and the northern portion

of the Yellow Sea.

(b) The island of Formosa, together with all islands appertaining or belonging to the

said island of Formosa.

(c) The Pescadores Group, that is to say, all islands lying between the 119th and 120th

degrees of longitude east of Greenwich and the 23rd and 24th degrees of north

latitude”.160

It is undisputable that the Senkaku Islands are not a part of the Pescadores Group as described

in article 2 (c) of the Treaty: the Senkaku Islands are roughly situated on the 123rd degree of

longitude east of Greenwich and on the 25th degree of north latitude, falling outside the

definition of the Treaty of Shimonoseki of the Pescadores Group.161 Unfortunately, Qing China

and Japan failed to clearly define what exactly constituted “all the islands appertaining or

belonging to the said Island of Formosa”. This leaves the discussion on whether the Senkaku

Islands were subject to the Treaty of Shimonoseki unresolved: if the Japanese are right in

asserting that the Senkaku Islands were terra nullius, they could not have belonged to Taiwan

and therefore would be excluded from the Treaty of Shimonoseki. On the other hand, if the

Chinese are right in asserting that the islands belonged to Taiwan, Japan’s claim based on the

incorporation of terra nullius cannot be sustained and the legal basis for Japan’s claim would

be the cession of the islands to it by the Treaty of Shimonoseki.

3. Cairo Declaration of 1 December 1943 and Potsdam Declaration of 26

July 1945

69. As early as in 1943 the intent of the three allies, the USA, the UK and the Republic of

China (the People’s Republic of China was established in 1949) was that “[…] Japan shall be

stripped of all the islands in the Pacific which she has seized or occupied since the beginning

of the first World War in 1914, and that all the territories Japan has stolen from the Chinese,

such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of

China”.162

70. The Potsdam Declaration, of July 1945, defining Japan’s surrender, reiterated this point

by stating that “the terms of the Cairo Declaration shall be carried out and Japanese sovereignty

shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands

as we determine”.163

160 Art. 2 Treaty of Shimonoseki. 161 Infra 72. 162 Cairo Conference of 1 December 1943, available at http://avalon.law.yale.edu/wwii/cairo.asp (retrieved 14 April 2014). 163 Para. 8 Proclamation Defining Terms of Japanese Surrender of 26 July 1945, available at http://www.ndl.go.jp/constitution/e/etc/c06.html (retrieved 14 April 2014).

31

4. San Francisco Peace Treaty of 8 September 1951164

71. Much of the uncertainty surrounding the assessment of sovereignty over the Senkaku

Islands is a by-product of the post-World War II boundary decisions and dispositions of the

territories in East Asia.165 In 1951, the San Francisco Peace Treaty was signed between Japan

and the Allied Powers, formally ending World War II. However, neither China nor Taiwan

were invited to the conference due to the Civil War they were engaged in and neither of them

signed the Treaty. Taiwan concluded a separate peace treaty with Japan in 1952. The relevant

parts of article 2 of the San Francisco Peace Treaty, the ‘restoration provision’ and the most

crucial article for the Senkaku Island dispute, provides that

“[…]

(b) Japan renounces all right, title and claim to Formosa and the Pescadores.

(c) 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 5 September 1905.

(d) Japan renounces all right, title and claim in connection with the League of Nations

Mandate System, and accepts the action of the United Nations Security Council of 2

April 1947, extending the trusteeship system to the Pacific Islands formerly under

mandate to Japan.

[…]

(f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel

Islands”.166

As is clear from the wording of this article, the Senkaku Islands are not mentioned as such, just

as in the case of the Treaty of Shimonoseki. Whether the Senkaku Islands fall under the scope

of the San Francisco Peace Treaty depends on whether they are deemed islands appertaining to

the island of Formosa, as is the question in relation to the Treaty of Shimonoseki. Moreover, it

is unclear to whom Japan renounces all right, title and claim to Formosa: as was pointed out,

neither China nor Taiwan are a party to the Treaty and neither is mentioned in the Treaty. In

relation to China, there are only two provisions. The first is article 10, stating:

“Japan renounces all special rights and interests in China, including all benefits and

privileges resulting from the provisions of the final Protocol signed at Peking on 7

September 1901, and all annexes, notes and documents supplementary thereto, and

164 Treaty of Peace with Japan of 8 September 1951, United Nations Treaty Series, vol. 136, 46 (hereinafter San Francisco Peace Treaty). 165 S. LEE, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific

Rim Law & Policy Journal 2002, 63; C. MANJIAO, “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review 2011, 163-189. 166 Art. 2 San Francisco Peace Treaty.

32

agrees to the abrogation in respect to Japan of the said protocol, annexes, notes and

documents”.167

The second is article 21, which provides that “notwithstanding the provisions of Article 25 of

the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a)2; and Korea

to the benefits of Articles 2, 4, 9 and 12 of the present Treaty”, in no way implying that Japan

renounces the right, title and claim to the Senkaku Islands – if they were to be read into article

2, (b) – in favor of China, since the Treaty does not name it as the recipient.168 Rather, article 4

(b) provides that Japan shall recognize “the validity of dispositions of property of Japan and

Japanese nationals made by or pursuant to directives of the United States Military Government

in any of the areas referred to in Articles 2 and 3”.169 This wording offers Japan an additional

argument: if the Senkaku Islands were ceded by China to Japan by the Treaty of Shimonoseki,

they had become Japanese property and if they were subsequently covered by the San Francisco

Peace Treaty, according to the wording of article 4 (b) only the USA is legally entitled to

transfer title to the Senkaku Islands. Consequently, Japan could allege that the USA transferred

the islands along with the Okinawan Islands to Japan or in the case that the USA did not transfer

the islands along with the Okinawan Islands, it also did not include it with any other territory,

and in case of such ambiguity other legal theories such as prescription should be applied.170

Moreover, article 3, the ‘trusteeship provision’, provides that

“Japan will concur in any proposal of the United States to the United Nations to place

under its trusteeship system, with the United States as the sole administering authority,

Nansei Shoto south of 29deg. north latitude (including the Ryukyu Islands and the Daito

Islands), Nanpo Shoto south of Sofu Gan (including the Bonin Islands, Rosario Island

and the Volcano Islands) and Parece Vela and Marcus Island. Pending the making of

such a proposal and affirmative action thereon, the United States will have the right to

exercise all and any powers of administration, legislation and jurisdiction over the

territory and inhabitants of these islands, including their territorial waters”.171

72. Since the wording of the San Francisco Peace Treaty does not give a decisive answer

on whether the Senkaku Islands fall under its scope, recourse must be sought to the drafts of

the treaty. Three categories of provisions should be examined: provisions concerning the

territorial limits of Japan, provisions concerning the territorial disposition of Taiwan and the

U.N. trusteeship over the Senkaku Islands.

Firstly, the draft of the San Francisco Peace Treaty dated 19 March 1947 provided that

“the territorial limits of Japan shall be those existing on January 1 1894, subject to the

modifications set forth in Articles 2, 3. As such these limits shall include the four

principal islands of Honshu, Kyushu, Shikoku and Hokkaido and all minor offshore

167 Art. 10 San Francisco Peace Treaty. 168 Art. 21 San Francisco Peace Treaty. 169 Art. 4 (b) San Francisco Peace Treaty. 170 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 171 Art. 3 San Francisco Peace Treaty.

33

islands, excluding the Kurile Islands, but including the Ryukyu Islands forming part of

Kagoshima Prefecture”.172

This draft uses 1 January 1894 as the date of reference. Since Japan only claimed the Senkaku

Islands by the Cabinet Decision of 14 January 1895, it can be argued that the drafters of the San

Francisco Peace Treaty did not envision Japan as the rightful owner of the Senkaku Islands.173

Secondly, the basic format, maintained in the final version of the treaty, that “Japan renounces

all right, title and claim to Formosa and the Pescadores” also provided in the draft version of

the treaty of 5 August 1947 and 8 January 1948 that

“Japan hereby cedes to China in full sovereignty the islands of Taiwan (Formosa) and adjacent

minor islands, including Agincourt (Hoka Sho), Crag (Menka Sho), Pinnacle (Kahei Sho),

Samasana (Kasho To), Botel Tobago (Koto Sho), Little Botel Tobago (Shokoto Sho), Vele Reti

Rocks (Shichisei Seki), and Lambay (Ryukyu Sho); together with the Pescadores Islands (Hoko

Sho); and all other islands to which Japan had acquired title within a line beginning at a point

in 26° N. latitude, 121° E. longitude and proceeding due east to 122° 30’ E. longitude, thence

due south to 21° 30’ N. latitude, thence due west through the Bashi Channel to 119° E.

longitude, thence due north to a point in 24° N. latitude, thence northeasterly to the point of

beginning”.174

This specific listing of islands to be ceded to China and the delineation of Taiwan through

latitude and longitude, did not include the Senkaku Islands: the Senkaku Islands lie at 25

degrees 44 minutes to 56 minutes North Latitude and 123 degrees 30 minutes to 124 degrees

34 minutes East Longitude and are therefore not included in the area described in this draft.175

Consequently, the drafters did not include the Senkaku Islands within Chinese or Taiwanese

territory.

Lastly, in drafts of 1949 of the San Francisco Peace Treaty, Japan’s renunciation of the Ryukyu

Islands south of 29° North latitude, which included the disputed Senkaku Islands, was provided

within the envisioned system of U.N. trusteeship.176 The draft of October and November 1949

provided that

“Japan hereby renounces all rights and titles to the Ryukyu Islands south of 29° North

latitude. The Allied and Associated Powers undertake to support an application by the

United States for the placing of these islands under trusteeship, in association with

172 S. LEE, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific

Rim Law & Policy Journal 2002, 124. 173 S. LEE, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific

Rim Law & Policy Journal 2002, 63-146. 174 S. LEE, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific

Rim Law & Policy Journal 2002, 124-125. 175 EMBASSY OF JAPAN IN ETHIOPIA, “Japan-China Relations: Current Situation Regarding the Senkaku Islands”, http://www.et.emb-japan.go.jp/pol_4.htm (retrieved 8 May 2014). 176 S. LEE, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific

Rim Law & Policy Journal 2002, 125.

34

Articles 77, 79 and 85 of the Charter of the United Nations, the trusteeship agreement

to provide that the United States shall be the administering authority”.177

The draft of December 1949 included that same provision and in turn provided that

“Japan hereby cedes and renounces all territory and all mandate and concession rights,

titles and claims outside the territorial area described in Article 3, and accepts the

disposition of these territories that has been made or that may be made by the parties

concerned, or by the United Nations in accordance with the trusteeship provisions of

Articles 77, 79 and 85 of the Charter of the United Nations”.178

The provision concerning the Ryukyu Islands south of 29° North latitude, crucial in relation to

the Senkaku Islands, was not mentioned in subsequent drafts except the draft dated 29

December 1949.

73. In conclusion, whereas an analysis of the drafts of the San Francisco Peace Treaty could

have given guidance in resolving the dispute over the Senkaku Islands by revealing whether

they were intended to fall under the scope of the treaty, these drafts do not provide a conclusive

answer. First of all, the name of the Senkaku Islands, be it their Japanese, Chinese or Taiwanese

appellation, Diaoyutai, did not appear in the drafts of the San Francisco Peace Treaty, nor in

the treaty itself. Secondly, the Senkaku Islands are not included by the drafters in the provisions

relating to Japan’s territory but neither are they included as Chinese/Taiwanese territory.

Thirdly, provisions possibly applicable to the Senkaku Islands dealt more with the introduction

of the UN trusteeship than with their territorial disposition. Article 3 of the San Francisco Peace

Treaty did however not define the territories that were placed within the trusteeship area, with

the USA as the sole administering authority, due to the fact that the boundaries of the Ryukyu

Islands had never been legally defined before and were subject to disputes as well.179 However,

according to Seokwoo Lee, visiting scholar in the East Asian Legal Studies Program at Harvard

Law School, there are strong presumptions throughout the drafts, especially the earlier ones,

that Japan would renounce all rights and titles to the Ryukyu Islands south of 29° North latitude,

an area which includes the Senkaku Islands.180

5. Treaty of Peace Between the Republic of China and Japan of 28 April

1952

74. As was mentioned above, since Taiwan was not a party to the San Francisco Peace

Treaty, a separate Treaty of Peace was concluded between Taiwan and Japan in 1952

(hereinafter 1952 Sino-Japanese Peace Treaty). Article 2 of that treaty is similar to the

restoration provision of the San Francisco Peace Treaty, stating that

177 S. LEE, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific


Rim Law & Policy Journal 2002, 126. 179 S. LEE, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific


Rim Law & Policy Journal 2002, 63-146.

35

“it is recognized under Article 2 of the Treaty of Peace with Japan signed at the city of

San Francisco in the United States of America on September 8, 1951[…] Japan has

renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores)

as well as the Spratly Islands and the Paracel Islands”.181

Beside the restoration provision, the 1952 Sino-Japanese Peace Treaty also included a

nullification provision according to which “all treaties, conventions and agreements concluded

before December 9, 1941 between China and Japan have become null and void as a

consequence of war”.182

75. Although the conclusion of this treaty could have served as an opportunity to clarify the

vagueness concerning the situation of the Senkaku Islands, the 1952 Sino-Japanese Peace

Treaty did not address the sovereignty nor trusteeship of the Senkaku Islands, since no clear

reference is made to the islands in the treaty. However, account should be taken of the political

and diplomatic context: at that time, Taiwan and the USA were allies, giving Taiwan no reason

to object to USA trusteeship over the islands and moreover, Taiwan could at that time not

predict that the USA would revert the islands to Japan in the 70’s.183

6. Agreement Between the United States of America and Japan

Concerning the Ryukyu Islands and the Daito Islands of 17 June 1971

76. As is clear from the historical background of the dispute and the parties’ positions, the

Senkaku Islands were administered by the USA as a part of Okinawa after World War II.184

USA trusteeship ended with the conclusion of the Agreement Between the States of America

and Japan concerning the Ryukyu Islands and Daito Islands (hereinafter Okinawa Agreement).

Article I of the Okinawa Agreement determines that

“with respect to the Ryukyu Islands and the Daito Islands, as defined in paragraph 2

below, the United States of America relinquish in favor of Japan all rights and interests

under Article 3 of the Treaty of Peace with Japan signed at the city of San Francisco on

September 8, 1951, effective as of the date of entry into force of this Agreement. Japan,

as of such date, assumes full responsibility and authority for the exercise of all and any

powers of administration, legislation and jurisdiction over the territory and inhabitants

of the said islands”.185

Unfortunately, the Senkaku Islands are once again not explicitly mentioned and paragraph 2 of

article I refers to article 3 of the San Francisco Peace Treaty. Since it remains unclear whether

the Senkaku Islands fall under the territories placed under USA trusteeship pursuant to article

181 Art. 2 Treaty of Peace Between the Republic of China and Japan of 28 April 1952, available at http://www.taiwandocuments.org/taipei01.htm (retrieved 7 April 2014). 182 Art. 4 Treaty of Peace Between the Republic of China and Japan of 28 April 1952, available at http://www.taiwandocuments.org/taipei01.htm (retrieved 7 April 2014). 183 C. MANJIAO, “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review 2011, 163-189. 184 Supra Chapter I. 185 Art. I Agreement Between the United States of America and Japan Concerning the Ryukyu Islands and the Daito Islands of 17 June 1971, available at http://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/docs/19710617.T1E.html (retrieved 3 April 2014).

36

3 of the San Francisco Peace Treaty, even the Okinawa Agreement does not give a clear cut

answer concerning the Senkaku Islands dispute. However, de facto the USA did ‘revert’ the

Senkaku Islands to Japan. It should be noted that this agreement was concluded after the

conclusion of the US Naval Oceanographic Office stating the potential richness of resources

near the Senkaku Islands. In that context it is not surprising that China and Taiwan this time did

promptly object to the USA’s action. The Taiwanese Ministry of Foreign affairs issued a

statement emphasizing that it could not accept the combined handing over of administration

rights over the Senkaku Islands and the Ryukyu Islands to Japan, and that the transfer would

not diminish its claim to sovereignty over the Senkaku Islands.186 China on its behalf also

objected to the conclusion of the Okinawa Agreement claiming sovereignty over the islands

and denying the effect of the agreement on China.187

III.4. Assessing sovereignty over the Senkaku Islands

77. In January of 1895, the Senkaku Islands were not terra nullius as Japan claims since

China had a long-standing title to the Senkaku Islands. Nonetheless, considering the modes of

acquiring territory and the subsequent requirements laid down in the international case law, it

seems that Japan has the stronger claim. Although China has a strong claim based on prior

discovery and use, it holds an inchoate title since international case law has established that an

inchoate title should be sustained by actual display and exercise of sovereignty which implies

that a state who has an inchoate title may lose that title if another state actually occupied or

exercised state authority over that territory.188 China’s claim primarily stems from historical

evidence rooted in the Ming and Qing dynasties. However, international case law has been very

skeptical towards historical evidence and its value in deciding on competing sovereignty claims.

Japan clearly holds the better claim concerning the exercise of sovereignty over the Senkaku

Islands since China had not solidified its inchoate title because it did not peacefully and

continuously display adequate authority over the islands. Moreover, one of the key elements,

the requirement of protest to that display of sovereignty was not fulfilled by China since it did

not protect its claim against actions of Japan by not disputing Japanese actions concerning the

Senkaku Islands. China did not protest the surveys conducted by Japan in the late 19th century,

nor did it object to the Japanese Cabinet Decision of 14 January 1895 to erect markers to

incorporate the Senkaku Islands into Japan’s territory. Although China peacefully used the

Senkaku Islands for some time, it did not exercise continuous authority over the islands.

78. It is very plausible that an international court or arbitrator would assess the situation of

the Senkaku Islands prior to 1895 in China’s favor, not deeming the islands terra nullius, since

186 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “Q&A on The Treaty of Peace between The Republic of China and Japan”, 25 April 2009, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/335e353b-278e-41ab-8e32-e5d5ddb5ed18 (retrieved 8 April 2014). 187 C. MANJIAO, “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review 2011, 173-174. 188 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and


37

China has evidence of prior discovery and use of the islands as far back as the 14th century. This

in turn would imply that China can sustain its claim that the islands were a part of Taiwan, ruled

by the China’s Qing Dynasty from the late 17th century until the defeat of the Qing Dynasty by

Japan in 1894 and that the Senkaku Islands consequently were ceded to Japan by the Treaty of

Shimonoseki. However, even if it were to be found that the Senkaku Islands were included in

the Treaty of Shimonoseki, Japan can argue that the Islands became Japanese territory before

the Treaty because of the, at that time uncontested, Cabinet Decision of 14 January, three

months prior to the conclusion of the Treaty in April 1895.

79. Concerning the fifty years between 1895 and 1945, it is unquestionable that the Senkaku

Islands were Japanese sovereign territory, either because Japan had previously incorporated the

islands into its territory or, most likely, because China relinquished the islands after the Sino-

Japanese war in 1895. During those fifty years, there is no trace of China having objected to

Japan’s exercise of authority.

80. For the period after World War II, the assessment is more difficult to make since China

claims that Japan stole the Senkaku Islands after the First Sino-Japanese war and was obliged

by the San Francisco Peace Treaty to return them after World War II while Japan argues that it

incorporated the islands before the Treaty of Shimonoseki (ending the Sino-Japanese war) and

therefore the islands are an integral part of Japan and not subject to the treaties obliging Japan

to return all lands stolen from China.189 In the event of an international court or ruling that the

Senkaku Islands were ceded to Japan by the Treaty of Shimonoseki as islands appertaining to

Formosa (Taiwan), that finding would imply that the right, title and claim to the Senkaku

Islands was relinquished by Japan through the San Fransisco Peace Treaty. A comparison of

the acts and omissions concerning the Senkaku Islands by both China and Japan, can give some

clarity in the assessment of sovereignty over the Senkaku Islands.

81. After the end of World War II, China still did not make any claims to the Senkaku

Islands. Only when the possibility of exploitable hydrocarbon deposits was announced, almost

25 years later, did it start making its own assertions. Furthermore, as can be derived from its

position, China did not significantly exercise peaceful and continuous authority over the islands

during this period since it only points to the request by the USA to the Taiwanese Government

concerning the use of the Senkaku Islands during the Cold War and a 1955 incident where

retreating Taiwanese troops erected a temporary garrison on the islands and fired upon

approaching Japanese ships.

82. Japan on the other hand can prove a peacefully and continuously exercised sovereignty:

it patrolled the islands jointly with the USA when they were under USA administrative control

and continued to do so after 1972, when the islands were returned and it built and maintained a

heliport and lighthouses. As is clear from the case law mentioned before, these acts can be

deemed sufficient to prove sovereignty, especially when uninhabited islands such as the

Senkaku Islands, are involved.

189 W. B. HEFLIN, “Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law and


38

83. Even if it were decided that the Islands were subject to the treaties obliging Japan to

return all territory to China, China’s (in)actions in the subsequent 25 years are not a sign of a

sovereign exercising authority over its territory. If the Senkaku Islands dispute were to be put

before an international court or arbitrator, a decision on sovereignty in favor of Japan is almost

certain since the controlling legal principle regarding sovereignty over an uninhabited island is

the peaceful and continuous exercise of authority. As is clear from the case law mentioned

above, such as the Minquiers and Ecrehos case, the ICJ would primarily look to the recent

historical record of the exercised authority by both parties and that being the case, the Court is

likely to find that China’s ancient historical claim is extinguished by Japan’s peaceful and

continuous exercise of authority over the islands after World War II.190 As is clear from the

case law of the ICJ, such as the Pulau Ligitan/Pulau Sipadan case, in case of small islands,

sparse evidence of ownership can be persuasive.191 In casu, Japan’s ownership of the Senkaku

Islands can be demonstrated by the building of lighthouses on the islands, the patrolling of the

waters around the islands, the inclusion of the islands in its censuses, etc. Not only are these

acts similar to the acts found to provide very strong support for Colombia’s sovereignty claim

in the Territorial and Maritime Dispute case, the ICJ further pointed to the contrast of the acts

of administration carried out by Colombia and the absence of evidence of acts à titre de

souverain by Nicaragua, which could also be remarked on the part of China in light of the

Senkaku Islands dispute.192 Moreover, Japan instantly objected to Taiwan’s contract with the

Gulf Oil Company to explore and exploit the hydrocarbon resources in the Senkaku area. China

on the other hand claimed the islands and the adjacent seabed oil only in December 1970, when

the issue of natural resources arose, four months after Taiwan’s contract with the Gulf Oil

Company and two months after Japan’s objection to Taiwan’s action.193 Moreover, while the

USA’s action relating to the Senkaku Islands after World War II, such as patrolling the islands,

does not change the legal sovereignty of the islands, it does bolster Japan’s case that the islands

were considered a part of Okinawa.194

84. Lastly, it should be noted that although there are several treaties which purportedly deal

with the legal status of the Senkaku Islands, none of them expressly mention the Senkaku

Islands, diminishing the helpfulness and value of the said treaties in resolving the dispute.

Considering this flaw and in light of the international case law significantly taking into account

the more recent history of a dispute, the acts proving a continuous and peaceful display of

authority and the (lack of) protest thereto are the important and determining factors in resolving

the present dispute.

85. Although the issue of whether the Senkaku Islands were subject to the Treaty of

Shimonoseki and the treaties, such as the San Francisco Peace Treaty, after World War II could

be assessed in China’s favor, awarding the Senkaku Islands to China, would ignore Japan’s

190 Supra 50. 191 Supra 56. 192 Supra 61. 193 A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell

International Law Journal 2009, 441-474. 194 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168.

39

peacefully and continuously exercised sovereignty over the Senkaku Islands since either more

than a hundred years (1895) or since 1945. Moreover, it seems that under the current stand of

the relevant case law, little decisive value would be upheld for old historical evidence, such as

the materials (maps, envoy reports, etc.) put forward by China to substantiate its claim based

on prior discovery and use and greater regard would be had for the situation after World War

II or the 1970’s, turning to Japan’s claim based on the theory of prescription.

41

CHAPTER IV

MARITIME DELIMITATION

87. According to the principle of ‘land dominating the sea’, maritime jurisdiction derives

from sovereignty of land territory.195 Consequently, once sovereignty has been established, one

has to delimitate the territory, both land and sea. As has been made clear, the value of the

Senkaku Islands lies in their potential to generate, under UNCLOS to which both China and

Japan are parties, considerable acreages of maritime zones, with an important economic value,

due to the (potential) presence of oil resources and fish stocks. It should be noted that maritime

delimitation in East Asia, in general, is a very complex and sensitive issue, characterized by

several overlapping maritime claims and complicated by many sovereignty disputes over small

islands. Therefore, this paper will only analyze the role and importance of the Senkaku Islands

in the maritime delimitation in East Asia. The East China Sea is only 360 nm across at its widest

point and with UNCLOS allowing states to claim an EEZ to a distance of 200 nm from the

coastal baseline, the geographical position of the Senkaku Islands leads to overlapping

claims.196 About three-quarter of the area in which the Senkaku Islands lay is located on the

continental shelf adjacent to the Chinese mainland and the remainder covers the continental

slope.197

88. The delimitation of maritime boundaries between states is governed by the international

law of the sea. This implies that whether or not the Senkaku Islands will generate advantageous

(economic) zones depends on their classification under UNCLOS. The provisions of the Law

of the Sea Convention in that regard are considered to be codified customary international

law.198 However, most cases are not solved solely by reference to UNCLOS but also by

reference to the relevant state practice and the case law of international courts and tribunals.199

IV.1. Maritime delimitation principles under UNCLOS

89. UNCLOS is based on the principle that a coastal state’s authority should be at a

maximum close to shore for adjacent seas but diminish farther out to sea, balancing the

195 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969, 51; Z. KEYUAN, “Implementing the United Nations Convention on the Law of the Sea in East Asia: Issues and Trends”, Singapore Year Book of International Law 2005, 37-53. 196 A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell

International Law Journal 2009, 441-474. 197 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 343. 198 C. SCHOFIELD, “The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary delimitation” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the

Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (19) 31. 199 C. SCHOFIELD, “The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary delimitation” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the

Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (19) 32.

42

traditional alternatives of mare liberum and mare clausum as advocated by respectively Hugo

Grotius and John Selden in the 17th century.200 UNCLOS defines the obligations and rights of

coastal states in relation to different zones, whose extension is determined by their distance

from the coastal state’s baseline. Principally the baseline is the low-water line.201 When a coast

however is ‘deeply indented and cut into’ or has ‘a fringe of islands in its immediate vicinity’,

the coastal state is allowed to draw a straight baseline between ‘appropriate points’ on the

condition that the straight baseline may not depart from the general direction of the coast and

that the covered sea area must be ‘closely linked to the land’.202 Moving outwards from the

coast (the internal waters are situated on the land inward side of the baseline), UNCLOS defines

the following zones of sea space. From the baseline, states are entitled to a territorial sea

extending up to 12 nm.203 The coastal state enjoys full sovereignty over this belt of sea as well

as over the air space above it and the bed and subsoil of the territorial sea.204 This ‘full’

sovereignty is only limited by the right of innocent passage of other countries’ vessels.205

Secondly, beyond and adjacent to the territorial sea and up to 200 nm from the baseline, states

are entitled to claim an EEZ, in which they enjoy sovereign rights for the exploration and

exploitation, conserving and managing the natural (living and non-living) resources of the

seabed, its subsoil and the waters superjacent to it.206 However, all states enjoy the freedom of

navigation, overflight or the laying of undersea cables in the EEZ of the coastal state.207 Finally,

states can claim authority over the seabed and subsoil of their continental shelf. Shelf rights are

similar to EEZ rights, since UNCLOS presumes that a country’s continental shelf extends

200 nm beyond the baseline, like its EEZ.208 However, a country can define a wider continental

shelf if the natural prolongation of a country’s landmass exceeds 200 nm.209 Beyond these zones

defined by UNCLOS, lie the high seas.210

IV.2. The regime of islands under UNCLOS

90. The main reason for disputes over islands is that under UNCLOS islands can generate

the same offshore jurisdictional zones as mainland territories under the condition that the

islands are not ‘rocks which cannot sustain human habitation or economic life of their own’.211

UNCLOS subsequently makes a distinction between islands, rocks and low-tide elevations.

200 C. RAMOS-MROSOVSKY, “International Law’s Unhelpful Role in the Senkaku Islands”, University of

Pennsylvania Journal of International Law 2008, 903-946. 201 Art. 5 UNCLOS. 202 Art. 7 UNCLOS. 203 Art. 3 UNCLOS. 204 Art. 2, (1)-(2) UNCLOS. 205 Art. 2, (3) j.° 17 UNCLOS. 206 Art. 56 and 57 UNCLOS. 207 Art. 58 UNCLOS. 208 Art. 76, (1) j.° 77 UNCLOS; C. RAMOS-MROSOVSKY, “International Law’s Unhelpful Role in the Senkaku Islands”, University of Pennsylvania Journal of International Law 2008, 903-946. 209 Art. 76, (1) UNCLOS. 210 Art. 86 UNCLOS. 211 Art. 121 UNCLOS.

43

91. An island is defined as a naturally formed area of land, surrounded by water, which is

above water at high tide.212

92. UNCLOS does not give a clear definition of a rock. Debates mainly center around the

question whether the term is to be understood in its ordinary meaning, being a hard part of the

earth’s crust, or whether a wider definition, which would include islets, barren islands etc.,

should be applied.213 However, judge Vukas has held that the latter interpretation is the correct

one and that all features that cannot sustain human habitation or economic life of their own fall

in this category because of the underlying purpose of establishing the EEZ.214 For the

requirement of human habitation to be fulfilled, permanent human settlement is not needed and

for the requirement for economic life it is not necessary that human life be sustained throughout

an entire year.215 Moreover, the requirement concerning economic life can be satisfied by the

existence of rich fishing waters or oil and gas deposits.216 Applied to the Senkaku Islands, this

implies that they have a potential to satisfy the criteria of UNCLOS and that possession of the

islands could widen EEZ claims since one of the islands possesses potable water, which may

be a sufficient basis for sustaining human habitation and that the criterion on economic life is

fulfilled, considering the report of 1968 on the presence of hydrocarbon resources near the

islands.217

93. According to article 121, (2) UNCLOS, the continental shelf of islands as well as their

EEZ are determined in the same way as those of the mainland. Accordingly, islands can

generate a territorial sea, contiguous zone, EEZ and continental shelf. However, according to

article 121, (3) rocks without human habitation or where independent economic live is

impossible, do not have a continental shelf, nor an EEZ. However, the Convention does not

give any clarification as to when a feature ‘cannot sustain human habitation’ nor does it define

‘economic life’. Considerable debate has been held on these issues, without a unanimous

outcome.218 Clarification must thus be sought in national legislation, state practice and case

law, although neither seem to be very helpful.219

212 Art. 121, (1) UNCLOS. 213 C. SCHOFIELD, “The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary delimitation” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the

Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (19) 26. 214 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 49; Infra 108. 215 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 136. 216 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 137. 217 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 137. 218 C. SCHOFIELD, “The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary delimitation” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the



44

94. As was mentioned in the section on the parties’ positions, China uses the natural

prolongation theory, which is derived from the ‘equitable solution/relevant circumstances’ rule,

to claim the continental shelf across the East China Sea as far as the Okinawa Trough and

subsequently claims a 350 nm EEZ.220 Japan on the other hand insists that China and Japan

should each maintain an EEZ only to the point at which their 200 nm EEZs intersect, adhering

to the ‘equidistance/special circumstances’ rule, resulting in the median line between Okinawa

and the Chinese coast constituting the boundary of its EEZ.221 Moreover, the natural

prolongation doctrine has been somewhat discredited as a basis for continental shelf

delimitation.222 The interest of China in adhering to the natural prolongation theory lies in the

fact that article 77 UNCLOS attributes to the coastal state sovereign, exclusive and inherent

rights for the exploration and exploitation of the natural resources of the continental shelf.

Consequently, the coastal state has jurisdiction of the continental shelf, no one may undertake

exploration or exploitation activities without the express consent of the coastal state and the

rights of the coastal state do not depend on occupation or any express proclamation.223 Since

the value of the Senkaku Islands precisely lies in the natural resources surrounding them, it is

obvious why China attempts to claim an extended ocean area.

95. When Taiwan ratified the Continental Shelf Convention it stated that in “determining

the boundary of the continental shelf of the Republic of China, exposed rocks and islets shall

not be taken into account”.224 According to Chinese professor Ji Guoxing, the position of China

is similar: “China holds that the Diaoyudao Islands are small, uninhabited, and cannot sustain

economic life of their own, and that they are not entitled to have a continental shelf”.225

IV.3. Overlapping claims

96. Although UNCLOS provides for a seemingly clear framework, maritime delimitation

can give rise to complex issues where the application of UNCLOS can be extremely difficult,

especially when the maritime claims of states overlap, for example in case of states with

220 Supra 14; A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell International Law Journal 2009, 441-474; H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of International Law and Affairs 2008, 95-168. 221 A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell

International Law Journal 2009, 441-474; H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of International Law and Affairs 2008, 95-168; D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 136. 222 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 59. 223 Art. 77 (2)-(3) UNCLOS. 224 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 62. 225 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 50.

45

opposite or adjacent coasts. Since UNCLOS allows coastal states to claim areas of 200 nm from

their baseline (or even further in case of the ‘natural prolongation’ principle), in any sea less

than 400 nm across areas of maritime jurisdiction will overlap. Very often, overlapping claims

lead to disputes and tensions between the states concerned. The Senkaku Islands dispute is an

example of such tensions: the East China Sea is only 360 nm across leading to overlapping

claims, especially since China uses the ‘natural prolongation’ theory to extend its maritime

jurisdiction.226 China strongly relies on the geomorphic constellation of the East China Sea to

claim a continental shelf of 350 nm, in accordance with article 76, (1) juncto article 76, (6)

UNCLOS. Japan on the other hand adheres to the equidistance principle. Since a coastal state

can exercise sovereign rights over its continental shelf and EEZ for the exploration and

exploitation of its natural resources (articles 56 and 77 UNCLOS), enforcing China’s position

would violate Japan’s declared median line.

97. Although maritime delimitation is in principle an aspect of territorial sovereignty,

agreement is required in cases where other states are involved.227 Both treaty law and case law

have established means of settling such disputes.

1. Continental Shelf Convention of 1958228

98. The Continental Shelf Convention of 1958 provided in its article 6 in first instance that

delimitation should be reached by agreement. Consequently, states remain fully free to

delimitate their respective continental shelf in whatever way. Only where no agreement can be

attained, will the boundary, in cases of opposite coasts, be laid on the median line of which

every point lies at an equidistance from the nearest points of the baselines used for the

delimitation of the territorial sea. However, according to article 6, divergences from this

principle are possible whenever special circumstances justify another boundary line.

99. Although the Continental Shelf Convention allowed a flexible resolution of possible

delimitation issues, the application of the equidistance principle can undisputedly lead to

iniquities. In its judgment of February 20th 1969 the ICJ came to the conclusion that the

equidistance rule is not an obligatory rule of international customary law.229 Moreover, the

Court found that there is no other delimitation method which is compulsory in all

circumstances. In this particular case, the Court was of the opinion that an agreement had to be

reached on an equitable basis whilst taking into account all the relevant circumstances so as to

give every party as much disposal as possible over the totality of the continental shelf, which is

the natural prolongation of its territory, without infringing the natural prolongation of the

territory of the other. The equidistance method and the issue of the ‘special circumstances’ have

been examined extensively both in the North Sea Continental Shelf case and the British-French

Arbitration of 1977. The goal seems to be the attainment of an equitable solution. The ‘special

circumstances’ mostly refer to geographical circumstances but can also relate to other relevant

226 Supra 14 and infra 102. 227 M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 590. 228 United Nations Convention on the Continental Shelf of 29 April 1958, United Nations Treaty Series, vol. 499, 311 (hereinafter Continental Shelf Convention). 229 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969, 3.

46

factors such as the economic importance of an island.

Out of these two cases it can be concluded that in the absence of an agreement, the attainment

of an equitable delimitation enjoys priority over the automatic application of either delimitation

method, especially over the principle of equidistance.230 The relevant case law and state practice

show that generally the equidistance rule is applied, in an adapted version if need be.231 The

Court of Arbitration has held that “the obligation to apply the equidistance principle is always

one qualified by the condition ‘unless another boundary is justified by special

circumstances’”.232 However, this does not mean that there is a hierarchy between the different

delimitation methods, but that the principle of equidistance in combination with the ‘special

circumstances’ should be seen as a whole.

2. UNCLOS

100. The same starting point is maintained by the UNCLOS. After some discussions about

the text of the new provision, the outcome is a solution which tempers the somewhat privileged

delimitation method of equidistance. By consequence, UNCLOS is quite vague about how to

solve overlapping EEZ or continental shelf claims. For instance, no reference is made to the

special or relevant circumstances of the area nor to the equidistance principle. Concerning the

delimitation of EEZ’s and continental shelves between states with opposite coasts, articles 74

and 83 respectively state that “the delimitation […] between states with opposite or adjacent

coasts shall be effected by agreement on the basis of international law, […], in order to achieve

an equitable solution” and that “if no agreement can be reached within a reasonable period of

time, the States concerned shall resort to the procedures provided for in Part XV”, referring to

procedures before the International Tribunal for the Law of the Sea (hereinafter ITLOS), the

ICJ or an arbitral tribunal.233 It seems nonetheless difficult to maintain that the influential

factors of the Continental Shelf Convention of 1958 have lost their significance in attaining an

equitable solution, especially for what concerns the presence of islands. Since there is no

explicit preferred method of delimitation indicated, the provisions relating to maritime

boundary delimitation provide only limited guidance, which can imply a bigger scope for

disputes but on the other hand it also brings about a considerable flexibility for coastal states to

solve their dispute.234 Nonetheless, equidistance lines carry the advantage of objectivity,

mathematical precision and lack of ambiguity.235 However, it is inevitable that issues related to

coastal geography are critical in the construction of equidistance lines and may complicate the

dispute. This is especially the case for islands (mostly significantly far offshore) since islands

can generate the full range of maritime zones, which makes the claim that more crucial to a

state. A flexible approach to equidistance allows to take into account the disproportionate effect

230 E. SOMERS, Inleiding tot het internationaal zeerecht, Mechelen, Kluwer, 2004, 158. 231 Infra 101-107. 232 Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and

the French Republic (United Kingdom v. France), Decision, Reports of International Arbitral Awards 1978, 45. 233 Art. 74 and 83 UNCLOS. 234 C. SCHOFIELD, “The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary delimitation” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the



47

of geographical features such as islands and as will be discussed below, islands are not always

accorded ‘full effect’ in maritime boundary delimitations.

3. Case law

101. Keeping in mind that the provisions relating to overlapping EEZ or continental shelf

claims are quite vague under UNCLOS, the relevant case law is of significant importance.

Remarkably, both China’s and Japan’s view on maritime delimitation can find support in legal

provisions as well as in case law since both the ‘equitable principles/relevant circumstances’

rule and the ‘equidistance/special circumstances’ rule derive from the 1958 Convention on the

Continental Shelf and UNCLOS and from several cases of the ICJ. However, the wide

discrepancy between the two rules has led to a deadlock between the Chinese and the Japanese

and ambiguity in international jurisprudence.236

102. China’s ‘equitable principles/relevant circumstances’ theory (and subsequently the

‘natural prolongation’ theory) emerged from the North Sea Continental Shelf case of 1969. But

in the Continental Shelf case (Libya v. Malta) the ICJ stated that

“since the development of the law enables a State to claim that the continental shelf

appertaining to it extends up to 200 miles from its coast, whatever the geological

characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe

any role to geological or geophysical factors within that distance either in verifying the

legal title of the States concerned or in proceeding to a delimitation as between their

claims”.237

The ICJ’s reasoning implies that in cases in which two states’ 200 nm EEZ intersect, the concept

of natural prolongation should not be taken into account, since each of both states has the right

to explore and exploit the resources up to 200 nm from its baseline. In that concrete case the

ICJ rejected a ‘rift zone’ as a natural boundary between Libya and Malta arguing that

“since the distance between the coast of the Parties is less than 400 miles, so that no

geophysical feature can lie more than 200 miles from each coast, the feature referred

to as the ‘rift zone’ cannot constitute a fundamental discontinuity terminating the

southward extension of the Maltese shelf and the northward extension of the Libyan as

if it were some natural boundary”.238

The ICJ also ascertained that

“landmass has never been regarded as a basis of entitlement to continental shelf rights,

and such a proposition finds no support in the practice of States, in the jurisprudence,

236 H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168. 237 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Reports 1985, 35. 238 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Reports 1985, 35.

48

in doctrine, or indeed in the work of the Third United Nations Conference on the Law

of the Sea”.239

103. The ICJ, whilst stressing that there is no obligatory delimitation method, here marked

the starting point from which the alternative ‘equidistance/special circumstances’ rule, as

adhered to by Japan, gained prominence in case law and prevailed in several cases following

the Libya/Malta case such as the Jan Mayen case in 1993, the Eritrea/Yemen arbitration in 1999

and the 2001 Qatar v. Bahrain case.240 In the Jan Mayen case, the ICJ pointed out that there is

no material difference between article 6 of the Continental Shelf Convention and the ‘equitable

principles’ rule, holding that

“if the equidistance-special circumstances rule of the 1958 Convention is […] to be

regarded as expressing a general norm based on equitable principles, it must be difficult

to find any material difference – at any rate in regard to delimitation between opposite

coasts – between the effect of Article 6 and the effect of the customary rule which also

requires a delimitation based on equitable principles”.241

104. In the Qatar v. Bahrain case the ICJ upheld the same reasoning and concluded that it

would “first provisionally draw an equidistance line and then consider whether there are

circumstances which must lead to an adjustment of that line”.242 Those ‘special circumstances’

already had been defined by the ICJ in the Jan Mayen case describing them as

“those circumstances which might modify the result produced by an unqualified

application of the equidistance principle. General international law, as it has developed

through the case-law of the Court and arbitral jurisprudence, and through the work of

the Third United Nations Conference on the Law of the Sea, has employed the concept

of ‘relevant circumstances’. This concept can be described as a fact necessary to be

taken into account in the delimitation process”.243

105. Moreover, the ICJ in the Jan Mayen case emphasized that there is an inevitable tendency

towards assimilation between the ‘special circumstances’ of article 6 of the Continental Shelf

Convention and the ‘relevant circumstances’ under customary law since both concepts are

intended to facilitate the achievement of an equitable result.244

106. More recently, the ICJ once again, in the Maritime Delimitation in the Black Sea case,

began the delimitation process by drawing a provisional equidistance line between the adjacent

239 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Reports 1985, 41. 240 H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168. 241 ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, ICJ Reports 1993, 58. 242 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, ICJ Reports 2001, 111. 243 ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, ICJ Reports 1993, 62. 244 ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, ICJ Reports 1993, 62.

49

and opposite coasts of Romania and Ukraine and then examined whether there were factors

calling for the adjustment of that equidistance line in order to achieve an equitable result.245

107. Although UNCLOS is quite vague in relation to the settlement of overlapping claims

and does not impose a specific delimitation method, which was confirmed as early as the North

Sea Continental Shelf case, where the ICJ held that there was no compulsory single method of

delimitation, it seems that the ICJ maintains the equidistance line or median line as a basic

starting point in maritime boundary disputes. The ICJ favors an approach in different stages

according to which it first defines a provisional equidistance or median line and then considers

whether there are factors which require an adjustment of that line, in order to achieve an

equitable result. In the last stage, the ICJ will verify whether there is a disproportion between

the ratio of the respective coastal lengths and the ratio between the relevant maritime area of

each state by reference to the delimitation line. This approach was recognized as the standard

method of delimitation in the Maritime Delimitation in the Black Sea case and the Territorial

and Maritime Dispute case (Nicaragua v. Colombia).246 On a side note, in cases of adjacent

coasts an equidistance line will be drawn provisionally whereas in cases of opposite coasts a

provisional median line will be drawn. The difference in use of the terms ‘equidistance line’

and ‘median line’ has no legal implications since the method of delimitation in both cases

involves constructing a line each point on which is an equal distance from the nearest points on

the two relevant coasts.247

108. The presence of islands can seriously complicate maritime boundary delimitation issues

since, under UNCLOS, islands can potentially generate own maritime zones.248 Japan has

tended to take the position that all islands and islets, no matter how small, should be able to

generate extended maritime zones (to the full 200 nm boundary limit) without regard to their

size or habitability.249 The Japanese government has nonetheless never produced an official

map showing the full extent of its claims and therefor the exact extent of the Japanese EEZ

remains unclear. However, the ‘full effect’ given to the Senkaku Islands in determining the

median line is inconsistent with rulings of the ICJ and arbitral tribunals in which small islands

are generally given ‘limited effect’ if their zones would reduce the size of zones created by

adjacent or opposite continental land areas. This was the case in both the Eritrea/Yemen

arbitration and the Qatar v. Bahrain case, where small islands were given ‘zero effect’.250 In the

Eritrea/Yemen arbitration the PCA held, concerning the island of al-Tayr and the island group

al-Zubayr, that “[…] their barren and inhospitable nature and their position well out to sea,

245 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, 61. 246 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, 101-103; ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 695. 247 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, 101. 248 Supra 93. 249 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 51; H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan)

Yearbook of International Law and Affairs 2008, 95-168. 250 PCA, Eritrea/Yemen (Eritrea v. Yemen), Arbitral Award, Reports of International Arbitral Awards 1999, 335; ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, ICJ Reports 2001, 40.

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[…], mean that they should not be taken into consideration in computing the boundary line

between Yemen and Eritrea”, concluding that “for these reasons, the Tribunal has decided that

both the single island of al-Tayr and the island group of al-Zubayr should have no effect upon

the median line international boundary”.251 In the second phase, concerning maritime

delimitation, of the dispute between Qatar and Bahrain, the ICJ ignored Qit’at Jaradah, a very

small and uninhabited island without vegetation, situated midway between the two countries,

explaining that taking that island into account would give a disproportionate effect to an

insignificant maritime feature on the maritime delimitation line (in casu an equidistance line).252

This case law was confirmed in the Maritime Delimitation in the Black Sea case between

Romania and Ukraine of 2009. Although the ICJ did not provide a definitive definition of ‘rocks

which cannot sustain human habitation or economic life of their own’ (article 121, (3)

UNCLOS), the Court reconfirmed that small uninhabited islands will generally have limited or

no impact on delimitations and that such features should not generate extended maritime

zones.253 The Court reiterated that “the Court may, should relevant circumstances so suggest,

adjust the provisional equidistance line to ensure an equitable result” and that in that phase

“the Court may be called upon to decide whether this line should be adjusted because of the

presence of small islands in its vicinity”.254 The Court however noted that it “may on occasion

decide not to take account of very small islands or decide not to give them their full potential

entitlement to maritime zones, should such an approach have a disproportionate effect in the

delimitation line under consideration”, referring to cases such as the Continental Shelf case,

the Qatar v. Bahrain case and the Nicaragua v. Honduras case.255 In the latter case, of 2007,

both countries informed the ICJ, that although the disputed islets have periodic inhabitation,

they had agreed not to make any claim that they could generate any maritime areas beyond the

territorial sea.256 This case serves as an example of the state practice where countries have

agreed that small islets are not entitled to generate exclusive EEZ’s and should be ignored in

maritime boundary delimitation, although it is not always clear whether they fall under article

121, (3) UNCLOS. The limitation of the ability of uninhabited insular features to generate

extended maritime zones is linked to the rationale for creating such extended zones, which was

explained by Judge Vukas in relation to the Volga case before the ITLOS: he argued that the

purpose for giving exclusive rights over offshore resources to coastal states through the

establishment of the EEZ is to protect the economic interests of the coastal communities that

depend on the resources of the sea but that this reasoning does not apply to uninhabited islands

since they have no coastal fishing communities that require such protection.257

251 PCA, Eritrea/Yemen (Eritrea v. Yemen), Arbitral Award, Reports of International Arbitral Awards 1999, 368. 252 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, ICJ Reports 2001, 104-109. 253 J. M. VAN DYKE, “The Romania v. Ukraine Decision and its Effect on East Asian Maritime Delimitations”, Ocean and Coastal Law Journal 2010, 261-283. 254 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, 122. 255 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, 122. 256 ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, 702. 257 ITLOS, The “Volga” case (Russian Federation v. Australia), Declaration of Vice-President Vukas, available at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_11/decl.Vukas.E.pdf (retrieved 3 April 2014).

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109. In the light of the evolving international jurisprudence, attributing ‘limited’ or ‘zero’

effect to small islands in maritime delimitation, the inconclusive debate on whether the Senkaku

Islands constitute islands or rocks under the UNCLOS regime becomes less important. In the

broader East China Sea maritime delimitation, the Senkaku Islands are therefore no longer a

key factor.258 Moreover, when ratifying the 1958 Continental Shelf Convention, Taiwan issued

a reservation declaring that in “determining the boundary of the continental shelf of the

Republic of China, exposed rocks and islets shall not be taken into account” and China

supposedly similarly holds “that the Diaoyudao Islands are small, uninhabited, and cannot

sustain economic life of their own, and that they are not entitled to have a continental shelf”.259

Consequently it is clear that the Senkaku Islands are likely to be ignored in the East Asian

maritime delimitation process, with the nuance that they might receive a 12 nm territorial sea

(as was the case in the Nicaragua v. Honduras case and the Maritime Delimitation in the Black

Sea case).

IV.4. Maritime boundary delimitation and the Senkaku Islands

110. Before assessing the maritime boundaries in relation to the Senkaku Islands, the

positions of China and Japan should be repeated. For China, the Okinawa Trough, situated in

the eastern East China Sea between the Chinese mainland and the Japanese Ryukyu Islands,

running 1200 km, starting south of Japan’s Kyushu island, along and off the Ryukyu Islands,

constitutes the natural boundary between China and Japan’s continental shelves.260 Therefore,

China relies upon the natural prolongation theory to claim a continental shelf up to the Okinawa

Trough, resulting in a claim well beyond 200 nm from its coast. In order to use the Okinawa

Trough in the maritime boundary delimitation in the region, China argues for the delimitation

of the continental shelf rather than of the EEZ, considering that UNCLOS sets the boundary of

the EEZ at 200 nm, without the possibility to extend that distance whilst allowing for states to

claim a continental shelf of either 200 nm but with the possibility to extend that claim up to

350 nm in case of natural prolongation. Japan on the other hand insists on drawing an

equidistance line between the coasts of China and Japan, delimiting a single boundary in the

East China Sea. Moreover, Japan contends that the Okinawa Trough is only a casual indent

which cannot disrupt the unity of the continental shelf in the East China Sea.261 Therefore it can

be said, as professor Ji Guoxing put it, that whereas the territorial dispute is a legacy of history,

the demarcation dispute is mainly due to differing interpretations of the law of the sea.262

258 H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168. 259 Supra 95. 260 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75; Supra 14. 261 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75; Supra 29. 262 J. GUOXING, “Maritime Jurisdiction in the Three China Seas”, University of California Institute on Global

Conflict and Cooperation Policy Papers 1995, 3-33, available at http://escholarship.org/uc/item/7rq2b069 (retrieved 2 January 2014).

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111. Although neither UNCLOS nor the relevant international case law prescribe an

obligatory method of maritime delimitation in case of overlapping claims, it is apparent from

that case law that drawing a provisional equidistance line is the starting point in most cases.

After this line has been drawn, account will be taken of circumstances which require an

adaptation of that line in order to achieve an equitable result. The presence of small islands can

be regarded as such a relevant circumstance to adapt the equidistance line but in many cases

such features will not play a determinative role in maritime delimitation.263 Another factor

which can justify an adaptation of the provisionally drawn median line, is the access to natural

resources. However, this factor is treated cautiously and only in exceptional cases will it be

accepted as a relevant consideration.264

112. Considering the case law of the Continental Shelf case (Libya v. Malta), which was

skeptical towards ‘natural boundaries’ and the importance of natural prolongation, since

landmass is not a factor in shelf delimitation, it is likely that China’s claim based on natural

prolongation and the Okinawa Trough as the natural border between China and Japan would

not be adhered to by an international judge or arbitral tribunal. On a related matter, it should be

pointed out that the ICJ, in the Territorial and Maritime Dispute case (Nicaragua v. Colombia),

rejected Nicaragua’s argument that the location of Colombian islands on Nicaragua’s

continental shelf should be given weight in adjusting the provisionally drawn median line,

reasoning that “it has repeatedly made clear that geological and geomorphological

considerations are not relevant to the delimitation of overlapping entitlements within 200 nm

of the coasts of states” and that in reality, the Nicaraguan mainland and fringing islands and the

Colombian islands are located on the same continental shelf, a fact which cannot “in and of

itself, give one State’s entitlements priority over those of the other in respect of the area where

their claims overlap”.265

113. Concerning Japan’s single boundary point of view, it should be noted that in the Qatar

v. Bahrain case the ICJ observed that

“[…] the concept of a single maritime boundary does not stem from multilateral treaty

law but from State practice, and that it finds its explanation in the wish of States to

establish one uninterrupted boundary line delimiting the various – partially coincident –

zones of maritime jurisdiction appertaining to them”.266

This observation of the ICJ could strengthen the argument that, although the delimitation of the

EEZ and of the continental shelf are closely linked and that there is a trend towards coinciding

EEZ and continental shelf boundaries, there is no provision in UNCLOS, nor a customary

international rule prescribing single boundary as the only right course of action.267 In that regard

263 Supra 108. 264 ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area, (Canada v. United States of America), Judgment, ICJ Reports 1984, 342; For an analysis in relation to the oil and gas fields near the Senkaku Islands, see infra 126. 265 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 703. 266 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, ICJ Reports 2001, 93. 267 See for example: R. R. CHURCHILL and A. V. LOWE, The Law of the Sea, Manchester, Manchester University Press, 1999, 196.

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it should be noted that the ICJ, in the Territorial and Maritime Dispute case, reaffirmed,

referring to the Qatar v. Bahrain case, that articles 74 and 83 of UNCLOS, on the delimitation

of the EEZ and the continental shelf, have crystallized into customary international law.268 For

the first time, the ICJ explicitly stated that article 121, on the regime of islands, also has the

status of customary international law.269 It is true that article 74 and article 83 of UNCLOS

envisage that each maritime zone be delimited separately, implying that, as such, there is no

obligation to draw a single maritime boundary. On the other hand it must be observed that in

practice, overlapping maritime delimitation claims are settled by drawing a single maritime

boundary to obtain an equitable solution, starting by drawing a provisional equidistance line

and in a second stage considering factors, necessitating adjustment of that line.

114. The Libya-Malta reasoning further undermines China’s claim because it held that, in an

enclosed sea less than 400 nm across, states should not be able to claim over 200 nm, which

China, claiming an area of 350 nm, does. Moreover, it has become well established that an

essential element of boundary delimitation is the calculation of the relative lengths of the

relevant coastlines and, where the ratio is not roughly comparable to the ratio of the

provisionally-delimited maritime space allocated to each country, an adjustment will be made

to bring the ratios into line with each other.270 The outcome will be evaluated based on the

proportionality of the length of the coastlines of the two countries and the equitableness of the

result.271 Already in the North Sea Continental Shelf case of 1969, the ICJ dealt with the

proportionality principle, describing the proportionality factor in terms of:

“a final factor to be taken account of is the element of a reasonable degree of

proportionality which a delimitation effected according to equitable principles ought to

bring about between the extent of the continental shelf appertaining to the States

concerned and the lengths of their respective coastlines […]”.272

In the Continental Shelf case (Libya v. Malta), the ICJ took into account the lengths of the

coastlines of the parties as relevant circumstances to adjust the initial median line it had

drawn.273

115. In the Maritime Delimitation in the Black Sea case, the Court after having drawn a

provisional equidistance line and having secondly examined whether there were factors calling

for an adjustment of that line, also examined whether the drawn line led to“[…] an inequitable

result by reason of any marked disproportion between the ratio of the respective coastal lengths

and the ratio between the relevant maritime area of each state by reference to the delimitation

line”.274 The disparity in the lengths of the relevant coastlines was also considered a factor

268 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 673-674. 269 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 673-674. 270 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 59. 271 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Reports 1985, 53-54. 272 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969, 52. 273 ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Reports 1985, 56. 274 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, 103.

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necessitating an adjustment of the provisional median line in the Territorial and Maritime

Dispute case in favor of Nicaragua.275 It should be noted that the ICJ in this case emphasized

that only a substantial disparity in the length of the relevant coastlines calls for an adjustment

of the provisional line.276 This case law is of significant importance for China: it has the fourth

longest coastline in the world, but if the Japanese median approach would be adopted, it would

only have the tenth largest maritime resource zone.277 Considering that great discrepancy and

the richness of the maritime area around the Senkaku Islands, it is clear why China so strongly

resists the Japanese approach.

116. In the Maritime Delimitation in the Black Sea case, concerning the role of Serpent’s

Island, the ICJ did not respond to the contentions of Romania and Ukraine on whether the

islands should be qualified as ‘a rock incapable of sustaining human habitation or economic life

of its own’ but it simply ruled that the island was entitled to a 12 nm territorial sea but that it

had no other impact on or relevance to the maritime delimitation between the two countries.278

Therefore, in light of the case law concerning the presence of islands in maritime delimitation

issues, which often attributes ‘limited’ to ‘zero’ effect to small, especially uninhabited islands,

it is unlikely that the full effect given by Japan to the Senkaku Islands in the construction of its

median line would stand but rather that the islands would be disregarded in the maritime

delimitation between China and Japan. Moreover, disregarding the Senkaku Islands in the

maritime delimitation would most likely lead to the most equitable result since attributing the

islands to China (and allow the islands to generate the full set of maritime zones) would result

in China owning most of the southern portion of the East China Sea Basin, with Japan retaining

only the eastern margin of the basin. If Japan owns the Senkakus, much more of the basin would

fall to it. In case the islands are disregarded, the southern portion of the East China Sea would

be split relatively evenly.279

117. In the case of the Senkaku Islands the application of the discussed case law would imply

that China’s natural prolongation approach would not stand entirely but neither would Japan’s

strict equidistance approach: China could consider accepting the ‘equidistance/special

circumstances’ rule with special consideration given to the ‘proportionality principle’ and Japan

could consider giving up using the Senkaku Islands as a baseline for continental shelf/EEZ

delimitation.280 In other words, Japan’s proposed median line would be accepted but with

certain adjustments based on the ‘proportionality principle’.281 Concretely, the boundary line

275 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 702. 276 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 702. 277 A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell

International Law Journal 2009, 441-474. 278 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, 122-123. 279 J. GUOXING, “Maritime Jurisdiction in the Three China Seas”, University of California Institute on Global

Conflict and Cooperation Policy Papers 1995, 3-33, available at http://escholarship.org/uc/item/7rq2b069 (retrieved 2 January 2014). 280 H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168. 281 H.-y. SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, (95) 159.

55

would be moved eastward from the equidistance line towards Japan’s islands in order to reflect

‘a reasonable degree of proportionality’ between the respective lengths of their coastlines.282

As a result China would get more ocean space than Japan, but presumably less than the distance

to the Okinawa Trough, as China seeks.283

118. Concerning the Chinese Territorial Sea Law of 1992 it should be noted that it is true that

the delimitation of the territorial waters is a unilateral act and that only the coastal state is

competent to undertake it.284 However, when third states are involved, unilateral delimitations,

although valid in domestic law, will not be binding upon third states.285 Consequently, China’s

incorporation of the Senkaku Islands in its Territorial Sea Law of 1992 does not affect the

maritime delimitation concerning the Senkaku Islands.

282 J.M. VAN DYKE, “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, (39) 60; G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The International Journal of Marine and Coastal Law 2008, 39-75. 283 Supra 14 and 94. 284 ICJ, Fisheries case (United Kingdom v. Norway), Judgment, ICJ Reports 1951, 116. 285 Supra 97.

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CHAPTER V

RESOURCE RIGHTS

119. One of the main reasons that the dispute is taking great proportions is the presence of

resources such as fish and petroleum around the Senkaku Islands.

The coastal state exercises sovereign rights over the continental shelf for the exploration and

exploitation of the natural resources thereof.286 This implies that the coastal state is entitled to

promulgate legislation and has jurisdiction on that matter. The rights concerned are exclusive

inasmuch as no one can explore nor exploit the continental shelf without express consent of the

coastal state. Article 77, (4) UNCLOS provides a definition of the concept ‘natural resources’:

it encompasses mineral and other non-living resources of the seabed and subsoil together with

living organisms belonging to sedentary species. On the one hand ores, petroleum and gas are

minerals but on the other hand it seems clear that swimming fish species do not fall within the

scope of the sedentary species. A separate analysis of both resources is therefore needed. In

cases of disputes concerning natural resources, the definitive solution is of course maritime

delimitation. As long as maritime delimitation itself is a disputed issue, recourse must be sought

to other, temporal remedies.

V.1. Oil

120. In the context of the economic growth of both China and Japan and their tie through

bilateral trade, the need for oil is a key issue in the Senkaku Islands dispute. Both countries are

highly dependent upon foreign oil and their economic growth is threatened by scarcity and

rising oil prices.287 Keeping this in mind and considering the report on the presence of oil and

gas reservoirs of the U.S. Naval Oceanographic Office, it is evident why both countries attach

great importance to the Senkaku Islands and mostly the areas of sea surrounding them.288

121. Two influential factors explain why more often than not the delimitation and

management of oil and gas deposits is subject to problems and disputes: the nature of the rights

of coastal states over hydrocarbon deposits in a disputed continental shelf area and the

vagueness and generality of the law governing maritime boundary delimitation.289 Under

UNCLOS the coastal state enjoys sovereign, exclusive and inherent rights over the continental

shelf. The fact that UNCLOS refers to sovereign rights instead of sovereignty serves the

purpose of distinguishing the legal regime of the continental shelf from that of the territorial

seas and implies that the regime of the continental shelf cannot be assimilated with that of the

286 Art. 77 UNCLOS. 287 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 288 Supra 2. 289 D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804.

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territorial sea.290 In maritime delimitation issues, the inherent and exclusive nature of the coastal

states’ sovereign rights tend to complicate the delimitation process. The exclusivity of the rights

of the coastal state guarantees that it does not lose its rights to exploit and explore the continental

shelf to another state, in case the coastal state itself does not explore or exploit the continental

shelf and its resources and that no other state can explore or exploit the continental shelf

concerned without the express consent of the coastal state.291 Moreover, the rights of the coastal

state over the continental shelf are inherent to the coastal state, meaning that they exist ipso

facto and ab initio by virtue of its sovereignty over the land territory.292 Consequently, under

UNCLOS the acquisition of the coastal state’s sovereign rights over the continental shelf does

not depend on any form of occupation or any express proclamation.293 This inherent and

exclusive nature of a coastal state’s right over the continental shelf causes problems in the

delimitation and managing of (oil) deposits on the continental shelf because international law

assumes that these sovereign rights extending to at least 200 nm from the baseline are allocated

among all the coastal states of the world, which evidently and automatically creates even bigger

problems in cases of overlapping claims since all claims of 200 nm over the continental shelf

are seemingly valid by virtue of the coastal state’s inherent and sovereign rights which cannot

be lost by neglect.294

122. UNCLOS establishes guidelines concerning the parties’ conduct in cases of disputed

continental shelves and EEZ’s. Firstly, it provides, in articles 74, (3) and 83, (3) respectively,

that

“pending agreement […], the States concerned, in a spirit of understanding and

cooperation, shall make every effort to enter into provisional arrangements of a

practical nature, and during this transitional period, not to jeopardize or hamper the

reaching of the final agreement” and that “such arrangements shall be without

prejudice to the final delimitation”.295

Secondly, and specifically relating to semi-enclosed seas, such as the East China Sea (article

122 UNCLOS), article 123 stipulates that

“States bordering an enclosed or semi-enclosed sea should cooperate with each other

in the exercise of their rights and in the performance of their duties under this

Convention” and that “to this end they shall endeavour […]: to coordinate the

management, conservation, exploration and exploitation of the living resources of the

sea; to coordinate […] the protection and preservation of the marine environment;

[…]”.296

290 E. SOMERS, Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 177. 291 Art. 77, (2) UNCLOS. 292 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969, 22. 293 Art. 77, (3) UNCLOS. 294 D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. 295 Art. 74, (3) and 83, (3) UNCLOS. 296 Art. 123 UNCLOS.

59

123. Although these provisions are useful guidelines in cases of disputes, UNCLOS is quite

vague in its wording and it can be argued that UNCLOS does not establish an obligation to

enter into binding transitional arrangements nor does it establish a duty to jointly develop the

East China Sea.297 This can be derived from the use of wordings such as ‘make every effort’

and ‘endeavour to cooperate’, which was confirmed by the ICJ in 2002 when it held that

“[…]Articles 74 and 83 of the United Nations Law of the Sea Convention do not require that

delimitation negotiations should be successful” and that “[…] the negotiations have to be

conducted in good faith”.298 Moreover it should be noted that article 123 concerns cooperative

efforts for activities in relating to conservation of marine resources, protection of the marine

environment and coordination of marine scientific research. Consequently, this article does not

relate to the joint development of non-living resources such as hydrocarbon resources, as in the

case of the Senkaku Islands. Most scholars agree that UNCLOS establishes a general obligation

to cooperate to reach provisional agreements but not a specific duty to jointly develop disputed

continental shelf deposits.299

124. In cases of disputes ‘joint development’ has often been applied, also in the East China

Sea. Although there is no unified definition of the concept, ‘joint development’ can be

understood as

“an agreement between two States to develop so as to share jointly in agreed

proportions by inter-State cooperation and national measures the oil and gas in a

designated zone of the seabed and subsoil of the continental shelf to which both or either

of the participating States are entitled in international law”.300

Several characteristics can be discerned from this definition: it concerns an agreement between

two countries, to jointly develop mineral resources, relating to overlapping boundary maritime

areas, which is of a provisional nature pending the settlement of the boundary delimitation

dispute.301 It should be noted that there is a less common alternative where a joint development

297 A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell

International Law Journal 2009, 441-474. 298 ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Judgment, ICJ

Reports 2002, 424. 299 See for example: A. E. BASTIDA, A. IFESI-OKOYE, S. MAHMUD, J. ROSS, T. WÄLDE, “Cross-Border Unitazation and Joint Development Agreements: An International Law Perspective, Houston Journal of International Law 2007, 355-422; A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell International Law Journal 2009, 441-474; D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. 300 Z. KEYUAN, “Implementing the United Nations Convention of the Law of the Sea in East Asia: Issues and Trends”, Singapore Year Book of International Law 2005, 37 (40) quoting British Institute of International and Comparative Law. For other definitions see: Y. M. YUSUF, “Is Joint Development a Panacea for Maritime Boundary Disputes and for the Exploitation of Offshore Transboundary Petroleum Deposits?”, International

Energy Law Review 2009, 130-137. 301 Z. KEYUAN, “Implementing the United Nations Convention of the Law of the Sea in East Asia: Issues and Trends”, Singapore Year Book of International Law 2005, 37 -53.

60

zone is created as a part of the final boundary settlement but usually states tend to unitize the

oil or gas fields concerned where boundaries are delimited.302

125. As was mentioned above, it can be argued that UNCLOS does not impose an obligation

to establish a joint development zone in cases of dispute. However, to date it is still uncertain

whether there exists such an obligation under customary international law, especially in cases

of overlapping claims where the rights of the interested states are uncertain since the legal status

of the area is uncertain.303 The debate on whether there exists a customary obligation to

cooperate is extensively written upon by scholars and consequently this contribution will only

highlight the main aspects and summarize the conclusions of some scholars. According to

several scholars some UN Resolutions and the Charter of Economic Rights and Duties of States

of 1974 enshrine general obligations to cooperate and indicate the willingness of the

international community to be guided by the principle of cooperation.304 Moreover, it is beyond

doubt that international case law favors cooperation in cases of disputed areas. Already in the

North Sea Continental Shelf cases of 1969 the ICJ ruled that parties should solve their

delimitation differences by agreement or equal division of the overlapping areas in case they

fail to reach an agreement “or by agreements for joint exploitation, the latter solution appearing

particularly appropriate when it is a question of preserving the unity of a deposit”.305 In 2001

the PCA in the Eritrea/Yemen arbitration recalled this statement by the ICJ and noted that this

was of particular relevance for Eritrea and Yemen.306 In the aftermath of the Continental Shelf

case between Tunisia and Libya, the two countries signed three agreements of which the second

one designated a joint exploration zone and prescribed measures for a joint development

undertaking.307 There are many more examples of state practice on joint development in differ

regions of the world and it can be seen as a continuing trend.308 Japan itself can be mentioned

as an illustration since it concluded a joint development agreement with South-Korea for the

part of the continental shelf extending southwards into the northern part of the East China Sea

maritime agreements with South-Korea.309 In conclusion, the findings of many scholars reveal

302 A. E. BASTIDA, A. IFESI-OKOYE, S. MAHMUD, J. ROSS, T. WÄLDE, “Cross-Border Unitazation and Joint Development Agreements: An International Law Perspective, Houston Journal of International Law 2007, 355-422. 303 D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. 304 A. E. BASTIDA, A. IFESI-OKOYE, S. MAHMUD, J. ROSS, T. WÄLDE, “Cross-Border Unitazation and Joint Development Agreements: An International Law Perspective, Houston Journal of International Law 2007, 355-422; D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804; Y. M. YUSUF, “Is Joint Development a Panacea for Maritime Boundary Disputes and for the Exploitation of Offshore Transboundary Petroleum Deposits?”, International Energy Law Review 2009, 130-137. 305 ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969, 52. 306 PCA, Eritrea/Yemen Arbitration (Eritrea v. Yemen), Arbitral Award, Reports of International Arbitral Awards 1999, 335. 307 D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. 308 For an overview of state practice see: A. E. BASTIDA, A. IFESI-OKOYE, S. MAHMUD, J. ROSS, T. WÄLDE, “Cross-Border Unitazation and Joint Development Agreements: An International Law Perspective, Houston

Journal of International Law 2007, 355-422. 309 A. E. BASTIDA, A. IFESI-OKOYE, S. MAHMUD, J. ROSS, T. WÄLDE, “Cross-Border Unitazation and Joint Development Agreements: An International Law Perspective, Houston Journal of International Law 2007, 355-

61

that for the time being there is no duty under customary international law to establish a joint

development zone in cases of disputes but it is clear that considering the increasing frequency

and consistency in international case law and state practice, there is a trend towards an

international consensus on such a practice and a customary obligation might be emerging.

Nonetheless joint development can be seen as a favorable path to be chosen in most cases of

disputes over shelf deposits. Moreover, Ong has argued that there might exist a regional rule of

customary international law on joint development in regions where state practice on the subject

prevails, such as the East China Sea. He argues that the acceptance of the states concerned of

the requirement to cooperate with a view toward joint development and the subsequent state

practice is accorded special weight in assessing the legal status of an alleged customary rule.310

126. It should be recalled that the access of natural resources can in principle be a relevant

circumstance to adjust the provisionally drawn median line.311 Consequently the presence of or

the access to oil or gas deposits can theoretically be taken into account in delimiting the

maritime boundary. However, for a number of reasons, it is the contributor’s view that this is

not preferable in the case of the Senkaku Islands. First of all, international courts and tribunals

have been very cautious in accepting this factor as a relevant circumstance. Secondly, in

resolving problems of common deposits straddling a boundary line, the principle of respect for

the preservation of the ‘unity of the deposit’ plays an important role, which is reflected by many

bilateral practices of entering into cooperative agreements.312 Last but not least, considering the

complex East China Sea situation, the fragility of Sino-Japanese relations and the importance

of the resources for both China and Japan, adjusting the median line in either direction based

on the hydrocarbon resources does not seem conducive in stabilizing bilateral relations and

solving the dispute.

127. Considering the complicated nature of the situation in the region, joint development for

now seems the only feasible means for regional cooperation. However, since it is based on an

agreement between the parties concerned, all these parties must agree to the cooperation and be

willing to cooperate, a difficult and sensitive issue in East Asian and Sino-Japanese relations.

Since 2004, China has created four gas fields in its – undisputed – territory in the East China

Sea, one of which only lies 4 km from the median line, namely the Chunxiao gas field.313 Eleven

rounds of negotiations on the East China Sea delimitation followed, some of them marking

serious turning points in Sino-Japanese relations.314 After Japan had refuted China’s offer for

joint cooperation in exploring the potential reserves a couple of times from 2004 to 2006, Sino-

422; D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. 310 D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. 311 Supra 111. 312 A. E. BASTIDA, A. IFESI-OKOYE, S. MAHMUD, J. ROSS, T. WÄLDE, “Cross-Border Unitazation and Joint Development Agreements: An International Law Perspective, Houston Journal of International Law 2007, 355-422; D. M. ONG, “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. 313 A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell

International Law Journal 2009, 441-474. 314 “Ball game at China-Japan summit”, 29 December 2007, http://news.bbc.co.uk/2/hi/asia-pacific/7164089.stm (retrieved 16 April 2014).

62

Japanese relations started improving in late 2006.315 China initially had only proposed joint

exploration of the disputed area on Japan’s side of the median line since its claim extends to the

continental shelf which includes Taiwan.316 A major breakthrough followed in June 2008, when

a joint announcement – although separately in Beijing and Tokyo – was made concerning a

principled consensus on the limited joint development of maritime resources, concerning three

main areas, the second and third relating to the locations where joint efforts would take place.317

It should be noted that a distinction was made between areas of joint development and areas of

development through cooperation: joint development would take place in an area of 2700 sq km

straddling the median line declared by Japan, whereas the area west of the median line, where

the Chinese-operated Chunxiao oil and gas field lies will be subject to development through

cooperation.318 The difference between the regime of these two areas lies in the impact of the

national laws of both parties in the region concerned: in the joint development zone, the laws

of neither country are applicable whereas in the area under development through cooperation

both Chinese and Japanese companies would conduct activities but in accordance with Chinese

laws.319 It should be noted that the area of 2700 sq km subject to joint development is rather

small relative to the overall maritime boundary disputes but Japan has probably accepted the

arrangement concerning the Chunxiao oil and gas field on the one hand because it is situated

west of the Japanese declared median line and thus, in the absence of an agreed, definitive

border, in theory on the Chinese side of the line and on the other hand because Japan has been

suspicious that China has taken advantage of the location of the field’s close location to the

median line, tapping seabed resources on the Japanese side.320 Lastly, it is important to note

that the agreed cooperation was only a transitional measure, pending agreement on definitive

delimitation.321


International Law Journal 2009, 441-474; TAN, D., “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 316 TAN, D., “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 317 H.-y., SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168; A. M. PETERSON, “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell International Law Journal 2009, 441-474. 318 H.-y., SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168; MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Joint Press Conference by Minister for Foreign Affairs Masahiko Koumura and Minister of Economy, Trade and Industry Akira Amari (Regarding Cooperation between Japan and China in the East China Sea)”, 18 June 2008, http://www.mofa.go.jp/announce/fm_press/2008/6/0618.html (retrieved 15 April 2014). 319 H.-y., SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168. 320 H.-y., SHAW, “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese (Taiwan) Yearbook of

International Law and Affairs 2008, 95-168; TAN, D., “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168; G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The International Journal of Marine and Coastal Law 2008, 39-75. 321 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Joint Press Conference by Minister for Foreign Affairs Masahiko Koumura and Minister of Economy, Trade and Industry Akira Amari (Regarding Cooperation between Japan and China in the East China Sea)”, 18 June 2008, http://www.mofa.go.jp/announce/fm_press/2008/6/0618.html (retrieved 15 April 2014).

63

128. In light of the absence of a concrete, legally binding obligation in relation to cooperation

and joint development in disputed areas, withdrawal from the arrangement of 2008 would not

constitute a violation of UNCLOS, especially since negotiations in relation to the East China

Sea have been going on since 2004 implying that ‘every effort’ that is tolerable would

presumably still be made.322

129. In conclusion, it can be observed that, although the Sino-Japanese arrangement of 2008

was a major breakthrough in the East China Sea issue and in Sino-Japanese relations, it has, in

practice, not significantly changed the situation.323 Failure to fully execute the plan can be

attributed to worsened bilateral relations under conservative, right-wing nationalist prime

ministers of Japan and the different positions on maritime delimitation of China and Japan.

Moreover, UNCLOS does not require that an actual binding agreement to jointly develop the

East Asia Sea (and consequently the resources surrounding the Senkaku Islands) is reached

between China and Japan.

V.2. Fish stocks

130. The Senkaku Islands are of important economic value not only due to the potential

presence of hydrocarbon resources but also because the waters surrounding the islands contain

significant fish stocks. The East China Sea is of dense biodiversity and high productivity, with

plenty of biological resources, which cherish more than 800 fish species, of which 40 to 50 are

of commercial fishing value.324 Moreover, it is well known that China is a big marine fishery

country and that marine fishery is even more important for Japan since it is a maritime country

which strongly relies on fisheries as a nutrition source for its population. After the end of World

War II, acquisition of marine resources from the sea was one of the important means for

subsistence and development for both China and Japan. After the establishment of the PRC in

1949, China carried out an encouraging fishery policy, with Chinese fishermen taking more fish

from the sea while Japan in the meanwhile also encouraged its fishermen to go fishing along

the Chinese coasts.325 Consequently, clashes between fishermen of both countries were

inevitable and in order to avoid such conflicts and to maintain a normal fishing order in the East

China Sea, discussions on the fishery matters were started between China and Japan leading to

several non-governmental – there was no official diplomatic tie – fishery agreements.326 After

the normalization of diplomatic relations in 1972, China and Japan started consultations on a


International Law Journal 2009, 441-474. 323 G. XUE and L. ZHANG, “Maritime Disputes in Northeast Asia and escalation of the Sino-Japan Islands Dispute: Implications and Prospects”, University of Hawaii Law Review 2013, 459-484; G. RONGXING, “Territorial Disputes and Seabed Petroleum Exploitation: Some Options for the East China Sea”, http://www.brookings.edu/~/media/research/files/papers/2010/9/east%20china%20sea%20guo/09_east_china_sea_guo.pdf (retrieved 16 April 2014); M. LAVELLE and J. SMITH, “Why Are China and Japan Sparring Over Eight Tiny, Uninhabited Islands?”, 26 October 2012, http://news.nationalgeographic.com/news/energy/2012/10/121026-east-china-sea-dispute/ (retrieved 16 April 2014). 324 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 89. 325 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 90. 326 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 90.

64

governmental fishery agreement and in 1975 the Agreement between the Government of the

People’s Republic of China and the government of Japan was signed, introducing more rigid

protective measures and establishing conservation zones and fishing closed zones.327

131. Traditionally the law of the seas provides on a customary law basis a twofold regime

for fishery: on the one hand fishing in the territorial waters is principally reserved for the coastal

state; on the high seas on the other hand, freedom of fishery is the rule.328 However, due to an

economically changed situation, freedom of fishery has become more restricted in order to

prevent the demise of fish stocks and coastal states have gained exclusive rights over larger

areas.

132. The coastal state exclusively regulates fishery in the territorial sea based on its

sovereignty. With the introduction of the concept of the EEZ, an end was put to the traditional

twofold regime for fishery and the adoption of UNCLOS significantly changed the marine legal

regime.

133. According to UNCLOS, in the territorial sea both China and Japan would regulate

fishery sovereignly and in their respective EEZ’s they would enjoy sovereign rights for the

exploration, exploitation, conservation and management.329 In case the continental shelf would

be delimited between China and Japan, article 77 UNCLOS determines that the coastal state

enjoys sovereign rights for the exploration and exploitation of its natural resources. Natural

resources are defined by UNCLOS as

“the mineral living and non-living resources of the seabed and subsoil together with

living organisms belonging to sedentary species, that is to say, organisms which, at the

harvestable stage, either are immobile on or under the seabed or are unable to move

except in constant physical contact with the seabed or the subsoil”.330

Concerning fisheries, this definition implies that all swimming fish species are not covered by

the definition of the sedentary species and by consequence, the coastal state cannot exercise

sovereign rights over these species.331

134. Two treaty requirements are particularly important for the management of fisheries in

the East China Sea, demanding efforts from both China and Japan.332 First, article 63 requires

states to seek, directly or through appropriate subregional or regional organizations, to agree

upon the measures necessary to coordinate and ensure the conservation and development of

stocks, either the same stock or stocks of associated species, occurring within the EEZ of two

or more coastal states or both within the EEZ and in an area beyond and adjacent to the zone.333

Second, article 123 UNCLOS requires states bordering a semi-enclosed sea, such as the East

China Sea, to cooperate. Accordingly, they shall endeavor, directly or through an appropriate

327 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 91. 328 E. SOMERS, Inleiding tot het internationaal zeerecht, Mechelen, Kluwer, 2004, 431. 329 Art. 56, (1), (a) UNCLOS. 330 Art. 77, (4) UNCLOS. 331 E. SOMERS, Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 180. 332 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 92. 333 Art. 63 UNCLOS.

65

regional organization, inter alia, to coordinate the management, conservation, exploration and

exploitation of the living resources of the sea. Consequently three obligations can be discerned:

an obligation to cooperate, an obligation to enter into negotiations and an obligation to regulate

by agreement. Fishery management is one of the aspects on which China and Japan, bordering

the semi-enclosed East China Sea, can cooperate so as to reach a goal of sustainable

development of marine living resources.334

135. As is the case for the hydrocarbon resources, the issue on fisheries would to some extent

be solved through the determination of the maritime boundary delimitation. Transboundary fish

stocks and migratory species on the other hand would require cooperation and separate

agreement.

136. In 1996 China and Japan ratified UNCLOS and enacted laws and regulations on the

territorial sea and the EEZ. These new circumstances made new arrangements for fisheries

necessary and late 1997 agreement was reached between China and Japan regarding the

fisheries management in the East China Sea, which came into force on 1 June 2000.335 In its

article 2 the agreement provides for reciprocal fishing rights and its article 10 states that both

parties shall cooperate for scientific research concerning fisheries and for the conservation of

marine living resources. The agreement also establishes a Provisional Measures Zone (PMZ),

located in the middle of the East China Sea, for which both parties shall establish, based on

decisions made by the Sino-Japanese Fishery Committee appropriate measures for conservation

and quantity in order to protect marine living resources from the harm of being overexploited.336

It should be noted that the applicable water area in the agreement is the EEZ of both China and

Japan but that the agreement is not applicable to the entire EEZ of both countries.337 Inter alia,

the area where the Senkaku Islands are located does not fall within the scope of the

agreement.338 Besides the territorial dispute over the Senkaku Islands, the implementation of

the fishery agreement is also affected by the maritime boundary delimitation issue. When China

and Japan started negotiations in 1995 on the delimitation of the EEZ and continental shelf,

both sides realized that delimitation would take a long time and agreed to negotiate the fishery

agreement first. Although the agreement can have implications for the final delimitation, it can

be regarded as a provisional arrangement in that respect. The implications for future EEZ

delimitation lies in the fact that the agreement can be regarded as narrowing the disputed area

in the East China Sea between China and Japan.339 Nonetheless, discussions in relation to the

PMZ and the areas not covered by the agreement, such as the area in which the Senkaku Islands

are located, will remain a major issue.

334 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 93. 335 Fishery Agreement between the People’s Republic of China and Japan of 11 November 1997, translated by Z. Keyuan in Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 175-180. 336 Art. 7 Fishery Agreement between the People’s Republic of China and Japan of 11 November 1997, translated by Z. Keyuan in Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 175-180. 337 Art. 1 Fishery Agreement between the People’s Republic of China and Japan of 11 November 1997, translated by Z. Keyuan in Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 175-180. 338 Art. 6, (2) Fishery Agreement between the People’s Republic of China and Japan of 11 November 1997, reprinted in Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 175-180. 339 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 105.

66

137. In East Asia there are several bilateral fisheries agreements since there is no regional

institution or organization relating to fisheries management.340 For example, Japan has an

agreement not only with China but with South Korea as well and China has an agreement on

fishery cooperation with Vietnam. Considering that these are bilateral agreements only

regulating bilateral relations, it should be noted that they are of limited scope, do not cover all

the areas of the East China Sea, and do not regulate the fishing activities of third parties. It

should be pointed out that many fishery resources in the East China Sea are migratory species

implying that effective conservation and management of these resources would require a

regional and multilateral arrangement.341 Moreover, UNCLOS itself prescribes cooperation

through (sub)regional organizations.342 Considering the foregoing, in relation to the Senkaku

Islands and the East China Sea in general, a regional and multilateral fishery arrangement is

much needed in order to effectively conserve and manage the concerned fishery resources.343

138. One could think of the Association of Southeast Asian Nations (ASEAN), and in

particular of the ASEAN Plus Three (hereinafter APT, including China, Japan and South Korea)

as an ideal organization through which the (South)East Asian states could regulate and

cooperate in relation to marine resources and which could also help in resolving the geo-

political tensions between different states, such as China and Japan, in the region. Alternatively

and specifically in relation to fisheries, M. George of the Law Faculty and Institute of Ocean

and Earth Sciences of the University of Malaya puts forward the establishment of a Southeast

Asian Fisheries Management Organization (SEAFMO).344 She argues that the SEAFMO should

be established under the UN Fish Stocks Agreement of 1995 to handle the conservation and

sustainable development of the fisheries and that its geographical scope should encompass not

only the South China Sea (as is the case of the Southeast Asian Fisheries Development Centre

(SEAFDEC)) but also, inter alia, the East China Sea. Concerning the personal scope,

M. George proposes an extension of SEAFDEC’s ASEAN states by embracing in addition

China, Taiwan and Japan. It is the contributor’s view that although the establishment of a new

regional fisheries management organization, as proposed by M. George, could certainly be

useful for the complex situation in the East China Sea, its influence should not be overestimated.

First of all, concerning the personal and geographical scope, both China and Japan are part of

the APT, implying that in that regard the establishment of the SEAFMO would not be

innovative. Secondly, it remains uncertain what position and attitude both China and Japan

would take in this newly established organization and in how far the organization would have

effective powers. Since the SEAFMO would be established under the UN Fish Stocks

Agreement of 1995 and implementing provisions of that agreement, while China has signed but

not yet ratified the said agreement, the added value of the creation of the SEAFMO in relation

to the East China Sea remains very hypothetical and idealistic. Therefore, regulation and

340 Z. KEYUAN, “Implementing the United Nations Convention of the Law of the Sea in East Asia: Issues and Trends”, Singapore Year Book of International Law 2005, 37-53. 341 Z. KEYUAN, “Implementing the United Nations Convention of the Law of the Sea in East Asia: Issues and Trends”, Singapore Year Book of International Law 2005, 37-53. 342 Supra 134. 343 Z. KEYUAN, Law of the Sea in East Asia, Oxon, Routledge, 2005, 108. 344 M. GEORGE, “Fisheries Protection in the Context of the Geo-Political Tensions in the South China Sea”, Journal

of Maritime Law and Commerce 2012, 112-121.

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cooperation through the existing framework of APT or integration of ASEAN, seems more

realistic and feasible.

69

CHAPTER VI

IMPACT OF ACTIONS TAKEN BY PARTIES

139. On 7 September 2011 the Japanese Coast Guard arrested and detained fifteen Chinese

fishermen and their fishing vessel in waters near the Senkaku Islands which forced China to

take necessary measures in response.345

140. Since the 2000s, the dispute has escalated at several occasions. Conflicts and

confrontations between Chinese and Japanese (fishing) vessels have not been uncommon. In

September 2010, a Chinese fishing boat collided with Japan Coast Guard ships within 12 nm

of the Senkaku Islands, resulting in the arrest of the captain of the Chinese boat by Japan.346

This incident lead to a diplomatic dispute, which ultimately came to an end with the release of

the Chinese captain.347 Since then several other incidents have occurred involving the Senkaku

Islands. In July 2011, China lodged a remonstration with Japan concerning the fishing activities

of Japanese boats near the Senkaku Islands.348

141. In September 2012 the Japanese government nationalized three of the Senkaku Islands

by purchasing them from a private citizen, raising tension in the East China Sea.

142. Private persons do not have the capacity at international law to appropriate territory

unless they have been given a mandate to do so by their sovereign.349 In the Pulau Ligitan and

Pulau Sipadan (Indonesia/Malaysia) case, the ICJ emphasized that private acts are not

effectivités for the purpose of a claim to sovereignty.350

143. At the Sixty-Seventh session of the UN General Assembly the representative of China

stated that the so-called purchase of the islands was nothing more than money-laundering and

was intended to confuse the international public opinion and that it was a serious encroachment

of China’s sovereignty.351

345 MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “China and Japan”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/ (retrieved 3 January 2014). 346 A. RAMZY, China-Japan Tensions Grow After Shipping Collision, 13 September 2010, http://content.time.com/time/world/article/0,8599,2017768,00.html (retrieved 17 April 2014). 347 R. BUERK, “Japan frees Chinese boat captain amid diplomatic row”, 24 September 2010, http://www.bbc.com/news/world-11403241 (retrieved 17 April 2014). 348 X. SUN and L. LIU, “China warns Japan over trespassing ins waters off Diaoyu Islands”, 5 July 2011, http://www.globaltimes.cn/DesktopModules/DnnForge%20-%20NewsArticles/Print.aspx?tabid=99&tabmoduleid=94&articleId=664582&moduleId=405&PortalID=0 (retrieved 17 April 2014). 349 V. PRESCOTT and G.D. TRIGGS, International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 156. 350 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, ICJ Reports 2002, 683. 351 UNITED NATIONS DEPARTMENT OF PUBLIC INFORMATION, “Shared goal of Middle East Peace at centre of General Assembly Debate, but leaders chart divergent paths to its achievement”, Sixty-seventh General Assembly, Plenary, GA/11295, 27 September 2012, http://www.un.org/News/Press/docs/2012/ga11295.doc.htm (retrieved 30 April 2013).

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144. According to a position paper of the Ministry of Foreign Affairs of Japan, the decision

of the Government to purchase the three islands (Uotsuri Island, Kitakojima Island and

Minamikojima Island) which transferred ownership from a private citizen, who had acquired

the property rights in 1932, to itself under domestic civil law, was part of an effort to minimize

a negative impact on the bilateral relations.352 For Japan, this act was simply a transfer of

property rights within Japan’s territory from the former private owner to the Government of

Japan under a domestic legal procedure and it should thus not raise any issues with other

countries or regions.353

145. More recently, in November 2013, China set up an Air Defense Identification Zone

around the Senkaku Islands, once again raising tensions in the area, angering both Japan and

the USA, which reminded China that the Senkaku Islands are covered by the 1952 Security

Treaty between Japan and the USA and that the USA remains steadfast in its commitments.354

Only a couple of days later, China sent warplanes into the disputed airspace, after Japanese

airplanes flew through the areas without informing China, once again leading to an escalation

of the conflict since a Japan government spokesperson stated that they would not change their

activities.355

146. As was mentioned previously, Japan is not the only country with which China is

engaged in a dispute over islands. In January 2013 the Philippines instituted arbitral procedures

with the Permanent Court of Arbitration against China with respect to the dispute concerning

sovereignty over the Nansha Islands and maritime delimitation in the South China Sea.356 China

however has stated not to accept the arbitration and consistently adheres its position that it has

full sovereignty over the islands: after the Philippines had served China with a Notification of

Statement and Claim, China presented a diplomatic note in which it described its position on

the South China Sea issues and rejected the Philippines Notification.357 Consequently China

has refused to take part in the arbitration and warned the Philippines that their action will

352 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Position Paper: Japan-China Relations Surrounding the Situation of the Senkaku Islands”, November 9 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/position_paper_en.html, (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html, (retrieved 3 January 2014). 353 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014). 354 S. TISDALL, “China escalates islands dispute with Japan”, 25 November 2013, http://www.theguardian.com/world/2013/nov/24/us-warns-beijiing-island-dispute-senkanus (retrieved 17 April 2014). 355 J. KAIMAN and T. BRANIGAN, “China sends warplanes into disputed airspace in East China Sea”, 28 November 2013, http://www.theguardian.com/world/2013/nov/28/japan-south-korea-chinese-air-zone-islands (retrieved 17 April 2014). 356 “The Republic of the Philippines v. The People’s Republic of China”, http://www.pca-cpa.org/showpage.asp?pag_id=1529 (retrieved 2 April 2014); PCA Press Release, “Arbitration between the Republic of the Philippines and the People’s Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable”, http://www.pca-cpa.org/showpage.asp?pag_id=1529. 357 “The Republic of the Philippines v. The People’s Republic of China”, http://www.pca-cpa.org/showpage.asp?pag_id=1529 (retrieved 2 April 2014); PCA Press Release, “Arbitration between the Republic of the Philippines and the People’s Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable”, http://www.pca-cpa.org/showpage.asp?pag_id=1529,

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damage their bilateral ties.358 Although under Annex VII to UNCLOS the failure of a party to

show up or to cooperate does not bring the proceedings to a halt, China has sent a clear and

straightéforward message through its rejection to all countries with whom it is involved in

territorial, maritime disputes. The issue at stake is very similar to the one concerning the

Senkaku Islands. As China has made clear that it will not accept the arbitration, one could

expect that China will adhere to the same approach and position if the case concerning the

Senkaku Islands were ever to be brought before an arbitral instance or court.

147. Since the inauguration of prime minister Shinzo Abe, Japan has been trying to diverge

from its post-war pacifist attitude. Under Shinzo Abe, Japan’s attention is directed to China:

Japan has to be ready to defend itself and stand up against Asia’s superpower, which has

significantly increased its defense budget over the last years. It is well known that Shinzo Abe’s

primary political goal is to change the provision in the constitution which states that Japan can

never have an army again, except for self-defense purposes. The defense budget has been

increased and the proposal to change the constitution has already been submitted but is subject

to a plebiscite. The new defense strategy of Abe came shortly after the Senkaku Islands dispute

burst out and its main aim was to address the threat from China head on, which was first and

foremost the threat to the Senkaku Islands.359 In the same trend, Abe has decided to lift the

prohibition on the export of weapons, also imposed by the post-war pacifist constitution.360 This

is an important step in Japan’s evolution to become a ‘normal’ country that can fully participate

on the international scene. Moreover, by exporting weapons it can further develop its military

ties in the region. It remains to be seen if and when this change in course will be accomplished

and what the consequences will be, specifically for Sino-Japanese bilateral relations and

conflicts.

148. Other actions by Shinzo Abe tend to further deteriorate Sino-Japanese relations: in

March 2014 it was announced that the Japanese government considers to withdraw its official

excuses from 1933 for the exploitation of sex slaves in army brothels during World War II;

according to Japanologist and Sinologist Ian Buruma a statement inspired by populist national

political motives but which risks to isolate Japan internationally and worsen relations with

China.361 The visit Abe paid to the Yasakuni shrine, which honors Japan’s war dead from World

358 MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “Remarks by Foreign Ministry Spokesperson Hong Lei on the Philippines' Submission of a Memorial to the Arbitral Tribunal in Relation to Disputes with China in the South China Sea”, 30 March 2014, http://www.fmprc.gov.cn/eng/xwfw/s2510/t1142356.shtml (retrieved 2 April 2014); “Philippines files case to UN in South China Sea dispute”, 31 March 2014, http://www.bbc.com/news/world-asia-26781682 (retrieved 2 April 2014). 359 “Japan's military revolution hints at Shinzo Abe's nationalist aims”, 17 December 2013, http://www.bbc.com/news/world-asia-25414430 (retrieved 3 April 2014); for the full strategy see: “National Security Strategy”, 17 December 2013, http://japan.kantei.go.jp/96_abe/documents/2013/__icsFiles/afieldfile/2013/12/17/NSS.pdf (retrieved 3 April 2014). 360 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Press Conference by Minister of Foreign Affairs Fumio Kishida”, 1 April 2014, http://www.mofa.go.jp/press/kaiken/kaiken4e_000059.html (retrieved 3 April 2014); “Japan to relax arms export ban”, 1 April 2014, http://www.bbc.com/news/world-asia-26830504 (retrieved 3 April 2014). 361 I. BURUMA, “Excuses voor wat?”, 13 March 2014, http://www.standaard.be/cnt/dmf20140312_01022098 (retrieved 3 April 2014).

72

War II including convicted war criminals also infuriated China and is likely to render the

bilateral relations even tenser than they were before.

149. Most recently, Japan’s Ministry of Foreign Affairs launched a new website on the

Japanese Territory in order to strengthen overseas relations regarding the territory of Japan,

mainly focused on the Senkaku Islands.362 However, considering the importance of the ‘critical

date’ in assessing sovereignty claims, acts like this will not be taken into account in the

settlement of the dispute by an international court, tribunal or arbitral instance.363

150. The question has often been raised whether the tensions between China and Japan

concerning the East China Sea and the subsequent provocative actions by both parties could or

would lead to a military conflict. In this respect, account must be taken to the broader scheme

of Sino-Japanese relations. Both China and Japan find themselves in an era of significant

economic growth. They are economically dependent on one another if they want that success

to last. A direct confrontation is therefore not likely since in most cases economic incentives

take the lead in diplomatic, political and military strategies. Moreover, China currently has one

of the largest armies in the world while Japan’s constitution for now still determines that Japan

cannot have an army, except for self-defense purposes. This implies that in theory Japan would

have to wait for China to undertake military action and that it could not be the first to undertake

military action. On the other hand, in April 2014 Japan began construction of a radar station

and deployment of more than one hundred soldiers and personnel on an island located only

150km from the Senkaku Islands.364 Supposedly, during a ceremony marking the start of the

project, defense minister Onodera stated that he wants “to build an operation able to properly

defend islands that are part of Japan’s territory”.365 Although no clear reference is made to the

Senkaku Islands nor to China as an adversary or possible threat, it is understood that the project

is set up in the light of the Senkaku Islands dispute and actions taken by China such as the

establishment of the Air Identification Zone. It remains to be seen whether the geo-political

context will take the upper hand over economic incentives and if so, whether this would lead to

an armed escalation of the conflict.

151. It is beyond doubt that although not all the actions taken by both China and Japan may

directly be linked to the Senkaku Islands dispute, they do not create an environment which

promotes and facilitates the settling of conflicts, including the one concerning the Senkaku

Islands. It is well known that the dispute can only be solved under the right political and

diplomatic climate. On the other hand agreements such as the one regarding cooperation in the

East China Sea of June 2008 should be encouraged and show that improved Sino-Japanese

362 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Japanese Territory”, 4 April 2014, http://www.mofa.go.jp/territory/index.html (retrieved 11 May 2014). 363 Supra 59. 364 I. TORRES, “100 Self-Defense Force soldiers to be deployed to islands near Senkakus”, 18 April 2014, http://japandailypress.com/100-self-defense-force-soldiers-to-be-deployed-to-island-near-senkakus-1847489/ (retrieved 21 April 2014); “Japan to build military site near disputed Senkaku Islands”, 19 April 2014, http://www.bbc.com/news/world-asia-27089658 (retrieved 21 April 2014). 365 “Japan to build military site near disputed Senkaku Islands”, 19 April 2014, http://www.bbc.com/news/world-asia-27089658 (retrieved 21 April 2014); “Japan risks angering China with military expansion”, 19 April 2014, http://www.theguardian.com/world/2014/apr/19/japan-china-radar-station-near-taiwan (retrieved 21 April 2014).

73

relations can lead to favorable outcomes.366 However, the task to agree upon a final settlement

remains sensitive and complex, complicated and obstructed by actions and statements of both

sides and depending on the nature of the bilateral relations at the time when the parties gather

to negotiate.

366 Supra 127.

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CHAPTER VII

RESOLVING THE DISPUTE

152. Of course, a state is not bound to seek judicial determination of a territorial dispute.

Ideally, such a dispute is settled through negotiations. The failure to seek international

adjudication might imply the failure to pursue a claim rigorously. In other words, in the latter

case, the states concerned know that they have little or no juridical, weighty evidence to sustain

their claim.

VII.1. Means of dispute settlement

153. For obvious reasons, diplomacy is the most preferable way of settling a dispute over

territory, especially concerning maritime boundaries. The advantage of a negotiated solution

lies in the fact that it is almost certain that there will be a compromise to the benefit of both

parties. When a dispute is settled in court, there is the possibility that one party will ‘win’ and

the other will ‘lose’. Another important aspect concerns the stabilization of the relations. A

negotiated solution is always softer on the parties’ relations. Considering the foregoing, it is not

surprising that both the Charter of the United Nations and UNCLOS favor that the parties

concerned settle their dispute through negotiations. In the case of the Senkaku Islands however,

numerous rounds of negotiations between China and Japan concerning the Senkaku Islands

have not resulted in a breakthrough.367

154. Besides negotiations, or where negotiations have not been fruitful, parties to a dispute

could also initiate proper litigation before an international court, tribunal or arbitrator.

Concerning territorial disputes, the ICJ plays the leading role and has an extensive case history

on that matter with leading cases such as the Minquiers and Ecrehos case, the Land, Island, and

Maritime Frontier Dispute, the Maritime Delimitation and Territorial Questions between Qatar

and Bahrain case, the Jan Mayen case, etc. In its rulings the Court has used past resolutions of

territorial disputes and they reflect prevailing international law.368 Many disputes concerning

sovereignty over islands have been resolved in recent years through resort to international

arbitration or the ICJ.

155. Apart from the ICJ, parties to a conflict could also rely on the PCA or an ad hoc

arbitrator. Many disputes concerning sovereignty over islands have been resolved in recent

years through resort to international arbitration or the ICJ, such as the Minquiers and Ecrehos

367 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 368 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168.

76

case and the Pulau Ligitan/Pulau Sipadan case. Specifically in relation to maritime boundary

delimitation disputes, parties can also rely on the ITLOS for the settlement of their dispute.

156. Parties to a dispute could also have recourse to the UN for the settlement of their dispute

under Chapter VI of the Charter of the United Nations. It should be noted that, if the UN were

to resolve the kind of dispute such as the Senkaku Islands issue, they may likely refer to case

law established under the ICJ.369 Interesting to note is that the question was asked why the

Secretary-General does not bring the matter of the Senkaku Islands to the attention of the

Security Council, under article 99 of the Charter of the United Nations. The spokesperson

argued that this was the case because there already is regional discussion and that dialogue in

the region is the best way to handle the issue before it escalates to a more global international

organization.370

157. Although the above mentioned means of dispute settlement have almost systematically

led to the peaceful settlement of sovereignty disputes and delimitation issues, it is uncertain

whether this would also be the case for the Senkaku Islands and China and Japan. As will be

explained below, China has made a reservation according to which it does not accept the

provision of UNCLOS referring to litigation before the ICJ, ITLOS or an arbitral tribunal.371

Consequently, it is rather unlikely that either China or Japan will resort to the ICJ but its case

law may nonetheless be influential in resolving the dispute.

VII.2. Alternatives and prospects

1. Joint development zone

158. As is the case for maritime delimitation, reaching an agreement on joint development

depends on the political will to negotiate and to reach such an agreement. It is clear that the best

option is to agree upon the maritime boundaries and, where such an agreement cannot be

reached (yet), joint development is the most viable temporary solution. However considering

the nature of current bilateral relations between China and Japan, both a maritime boundary

agreement and the execution of a joint development agreement seem hard to be attained. The

principled consensus of June 2008 was a great step towards cooperation. It gave hope that the

dispute could be overcome and that China and Japan could, at least temporarily, cooperate in

some way. However, the obstinate views of both parties relating to maritime boundary

delimitation seem to constitute differences which cannot be overcome under the current

political climate. Nonetheless, the steps taken by China and Japan resulting in the principled

consensus of 2008 and their continuous negotiations should be seen as a positive signal,

showing that they are seemingly ready to make concessions.

369 D. TAN, “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of International Law 2006, 134-168. 370 UNITED NATIONS DEPARTMENT OF PUBLIC INFORMATION, “Daily Press Briefing by the Office of the Spokesperson for the Secretary-General”, 4 January 2013, http://www.un.org/News/briefings/docs/2013/db130104.doc.htm (retrieved 30 April 2013). 371 Infra 161.

77

2. East China Sea Peace Initiative

159. In response to the rising tension in the East China Sea and the controversy over the

Senkaku Islands, the government of Taiwan launched the East China Sea Peace Initiative

(hereinafter the Initiative) in August 2012.372 The proposal is based on the principle of

‘safeguarding sovereignty, shelving disputes, pursuing peace and reciprocity, and promoting

joint exploration and development’ and proposes five points, according to which the parties

concerned should refrain from taking any antagonistic actions, shelve controversies and not

abandon dialogue, observe international law and resolve disputes through peaceful means, seek

consensus on a code of conduct in the East China Sea and establish a mechanism for cooperation

on exploring and developing resources in the East China Sea.373 The proposal was followed by

implementing guidelines, in order to enhance the effectiveness and impact of the

Initiative.374These guidelines provide for a two-stage implementation of the Initiative.375 The

first stage consists of peaceful dialogue and mutually reciprocal negotiations to address the key

East China Sea issues in order to bolster mutual trust and collective benefit. The second stage

involves the institutionalization of all forms of dialogue and negotiations, the implementation

of substantive cooperative projects and the establishment of mechanisms for joint exploration

and development of resources. In order to render the East China Sea a ‘sea of peace and

cooperation’, the above mentioned goals are to be realized by moving from three parallel tracks

of bilateral dialogue (between Japan and China, China and Taiwan, and Japan and Taiwan) to

one track of trilateral negotiations.376

160. Certainly, this initiative taken by Taiwan can be seen as a positive evolution towards

peace, stability and solving disputes in the East China Sea. However, strong and official support

from the Japanese, Chinese and even American government will be the key for the successful

implementation of the Initiative. Moreover, it is the contributor’s view that the part of the slogan

of the Initiative referring to ‘safeguarding sovereignty’ is problematic since safeguarding every

party’s sovereignty over the same ground is impossible.

3. Prospects

161. UNCLOS refers, in its part XV, to several procedures for the settlement of disputes.

However, article 298, (1), (a), (i) allows a state to declare that it does not accept any one or

more of the procedures provided for by UNCLOS (ICJ, ITLOS, arbitral tribunal), in relation to

372 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “East China Sea Peace Initiative”, 15 August 2012, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsIndex/?opno=cc7f748f-f55f-4eeb-91b4-cf4a28bbb86f (retrieved 9 May 2014). 373 Y.-H. SONG, “Conflicting Outer Continental Shelf Claims in the East and South China Seas: Proposals for cooperation and Peaceful Resolution”, University of Hawaii Law Review 2013, (485) 528-530. 374 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “East China Sea Peace Initiative Implementation

Guidelines”, 7 September 2012, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/9d66bed6-16fa-4585-bc7c-c0845f2dfc39 (retrieved 9 May 2014). 375 Y.-H. SONG, “Conflicting Outer Continental Shelf Claims in the East and South China Seas: Proposals for cooperation and Peaceful Resolution”, University of Hawaii Law Review 2013, (485) 528-530. 376 MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “East China Sea Peace Initiative Implementation

Guidelines”, 7 September 2012, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/9d66bed6-16fa-4585-bc7c-c0845f2dfc39 (retrieved 9 May 2014).

78

disputes concerning sea boundary delimitations. On 25 August 2006, China opted out of the

compulsory procedures entailing binding decisions contained in UNCLOS, declaring that

“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”.377

However, according to article 298, when a state has made such a declaration, a dispute can still

be submitted by the other party to the dispute to compulsory conciliation if four conditions are

met.378 First of all, the dispute must concern the delimitation of the territorial sea, EEZ or

continental shelf of states with opposite or adjacent coasts or historic bays or titles. Secondly,

the dispute must have arisen subsequent to the entry into force of UNCLOS. Thirdly, no

agreement must have been reached within a reasonable period in negotiations between the

parties. Lastly, the dispute cannot necessarily involve the concurrent consideration of any

unsettled dispute concerning sovereignty or other rights over continental or insular land

territory. In order to establish whether Japan can still request conciliation, these conditions must

be examined one by one for the maritime delimitation in the East China Sea (and the Senkaku

Islands in particular).

162. Concerning the first condition, the conciliation commission would have competence

regarding the delimitation of the EEZ and the continental shelf but not to consider a single

boundary line since this issue is not provided for by UNCLOS, unless the parties agree

thereto.379

163. Considering the presumption against retroactivity in the law of treaties, the second

condition does not only exclude disputes that arose prior to the entry into force of UNCLOS in

general, but also disputes that arose prior to the entry into force of UNCLOS for the states

concerned in the particular dispute.380 For both China and Japan UNCLOS entered into force

in 1996.381 A distinction must be made between the dispute concerning EEZ delimitation and

continental shelf delimitation. Professor G. Jianjun argues that the dispute concerning EEZ

delimitation can be deemed arisen subsequent to the entry into force of UNCLOS for both

parties since China did not proclaim its EEZ claim formally when ratifying UNCLOS and Japan

only adopted its EEZ law in 1996.382 Concerning continental shelf delimitation, he argues that

the dispute arose in 1974 when China protested against the Japanese-Korean Joint Development

377 Declarations and Reservations United Nations Convention on the Law of the Sea of 10 December 1982, https://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#EndDec (retrieved 18 April 2014). 378 Art. 298, (1), (a), (i) UNCLOS. 379 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75. 380 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75. 381 Ratification status United Nations Convention on the Law of the Sea of 10 December 1982, https://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#EndDec (retrieved 11 April 2014). 382 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75.

79

Agreement, much earlier than the entry into force of UNCLOS for China and Japan in 1996.383

Consequently, only the dispute concerning EEZ delimitation could potentially be subject to

conciliation.

164. The third condition relates to the requirement that a reasonable period of time has

elapsed. Professor Jianjun argues that since China and Japan have held more than twenty rounds

of negotiations since 1996 and the Arbitral Tribunal in the Barbados v. Trinidad and Tobago

case concluded that the nine rounds of negotiations between the parties between 2000 and 2003

constituted a reasonable period of time, it can be said that no agreement has been reached within

a reasonable period of time.384

165. In relation to the fourth condition, a distinction must be made between the part of the

East China Sea that does not involve the Senkaku Islands and the part which does. The

delimitation in the northern part of the East China Sea does not involve the disputed Senkaku

Islands and could therefore be considered by the conciliation commission. The conciliation

commission should decide whether the delimitation in the southern part of the East China Sea

“necessarily involves the concurrent consideration of any unsettled dispute concerning

sovereignty […]”.385 If it decides that no effect should be given to the Senkaku Islands in the

delimitation, it will be able to carry out the conciliation since it can do so without necessarily

touching upon the disputed sovereignty over them. On the other hand, if the commission is

inclined to give some effect to the Senkaku Islands in the maritime delimitation, it would have

to consider the sovereignty issue, obliging it to declare that it has no competence to conciliate.386

166. In conclusion, for the northern part of the East China Sea, which is not influenced by

the Senkaku Islands dispute, the maritime delimitation concerning the EEZ between China and

Japan could be submitted to the conciliation procedure. This is not the case for the continental

shelf delimitation in the northern part of the East China Sea since that dispute arose before the

entry into force of UNCLOS. Concerning the maritime delimitation in the southern part of the

East China Sea, which is complicated by the dispute over sovereignty over the Senkaku Islands,

the situation is more uncertain. First of all, for the same reason as for the northern East China

Sea, only the issue of EEZ delimitation could potentially be subject to conciliation.387 Secondly,

there is no certainty of whether the fourth condition for conciliation, relating to the necessity to

touch upon the sovereignty issue, is met. If the conciliation commission follows the current

stand of international case law, it may decide that no effect should be given to the Senkaku

Islands in the delimitation, implying that is does not have to deal with the issue on sovereignty

and that it therefore is competent to carry out the EEZ delimitation. It is not certain though that

the commission would reason that way and it might give some effect to the Senkaku Islands in

maritime delimitation, implying that it would have to declare itself incompetent. Even if the

383 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75. 384 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75. 385 Art. 298, (1), (a), (i) UNCLOS. 386 G. JIANJUN, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The

International Journal of Marine and Coastal Law 2008, 39-75. 387 Supra 163.

80

conciliation commission would declare itself competent to conciliate in the EEZ delimitation

between China and Japan, the prospects are not very promising. Once the conciliation

commission has presented its report, the parties are required to negotiate an agreement based

on that report.388 In case those negotiations do not result in an agreement, the parties shall by

mutual consent resort to the compulsory procedures entailing binding decisions.389 However,

since China has opted out of those compulsory procedures, they are not available for maritime

delimitation in the East China Sea (and consequently the Senkaku Islands) and given the fact

that China is unwilling to agree on submitting the issue to an international judicial institution,

settlement of the dispute through international courts or tribunals is very unlikely to happen.390

167. Moreover, there is no prospect that China will change its attitude, since it has reiterated

its view on those procedures in light of the case filed against China by the Philippines with the

PCA.391 This fact implies that, at least concerning maritime delimitation and the hydrocarbon

resources, negotiations are the only viable means to settle the dispute. If China and Japan are

unwilling to make concessions in their negotiations, no agreement can be reached on maritime

delimitation or (joint) development of the hydrocarbon resources near the Senkaku Islands.

168. Considering the foregoing, Taiwan’s peace proposal could be the path to follow in

resolving the issues of the East China Sea. Considering the complexity of the situation in the

East China Sea, the contributor is of the view that negotiations and cooperation are the best way

to solve the disputes, as suggested by the East China Sea Peace Initiative. It is clear that the

proposed trilateral negotiation track has many advantages compared to three bilateral tracks: it

avoids confusion, no party is excluded and each party concerned can defend its view and in a

spirit of understanding and equality. However, it remains to be seen if China will accept this

trilateral track since Taiwan has been excluded from negotiations so far because of the ‘one

China’ issue.392 Consequently, Taiwan ought to approach China, Japan, the USA and the

ASEAN member states bilaterally in order to find a way by means of a special arrangement to

partake in the official discussion. It is beyond doubt that the effectiveness of Taiwan’s proposal

in promoting maritime cooperation and helping resolve disputes will depend on the support of

China, Japan and the USA.

388 Art. 298, (1), (a), (ii) UNCLOS. 389 Art. 298, (1), (a), (ii) UNCLOS; Supra 161. 390 Supra 161. 391 Supra 146. 392 Supra 32.

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CONCLUSION

‘The trouble with islands’ mostly lies within the fact that recognition of a feature as an ‘island’

under article121 UNCLOS can generate the full suite of maritime zones, which can give rise to

large state claims over considerable areas of ocean and its resources. Consequently, states may

have an significant interest in claiming sovereignty over at first sight insignificant maritime

features. The ambiguous fashioning of article 121 UNCLOS allows multiple interpretations and

has given states and international courts and tribunals the opportunity to find numerous and

innovative ways to solve disputes concerning maritime delimitation and achieve equitable

solutions. Considering the forgoing, it seems that there are multiple ways of solving issues

concerning islands and maritime delimitation and that those issues can be overcome. This paper

has attempted to solve the issues of sovereignty over the Senkaku Islands, of the maritime

boundary delimitation and of the resource rights.

Taking into account the evolution and current standard in international case law on sovereignty

over disputed islands, this contribution has revealed that, although China can prove prior

discovery and use of the Senkaku Islands, Japan has a stronger sovereignty claim than China,

since it can prove effective control and display of sovereignty, without it being timely protested

by China. An international court, tribunal or arbitral instance would most likely attach little

decisive value to China’s ancient historical evidence, dating back to the 14th century, but would

rather turn to the more recent history of the dispute. This implies that the dispute would

primarily be assessed in light of the post-World War II situation, with the San Francisco Peace

Treaty as a crucial element since it (re)defined the territories in East-Asian. Pitifully, the

declarations, treaties and agreements, including the San Francisco Peace Treaty, that

purportedly apply to the Senkaku Islands, do not seem to offer any decisive outcome to the

sovereignty issue. It seems that the flaw of the Treaty of Shimonoseki, id est not clearly defining

what is to be understood as islands that appertained to Taiwan, was maintained throughout all

the subsequent relevant treaties, most likely because many territories and boundaries were

disputed or on the contrary not an issue at the time. Since treaty-law reveals to be unhelpful in

resolving the sovereignty issue, recourse must be sought to other instruments and evidence

sustaining the parties’ respective claims. It is clear that in the post-World War II era, Japan has

peacefully and continuously exercised control over the Senkaku Islands, be it together with the

USA for some time. Only in 1970 did China start to formally object to Japan’s claims and

action. Consequently, Japan’s claim to a prescriptive title is likely to be successful.

Whereas the territorial dispute is a legacy of history, the demarcation dispute is mainly due to

differing interpretations of the law of the sea. Solving the maritime delimitation issue will be

an extremely complex exercise and will require flexibility of the parties concerned. The East

China Sea maritime delimitation is complicated by overlapping claims by several countries and

by several disputes over sovereignty over islands, such as the Senkaku Islands. This

contribution has pointed out however that the issue of whether the Senkaku Islands qualify as

rocks or islands under UNCLOS will be of little importance since the international case law

attributes ‘limited’ to ‘zero’ effect to such small features in maritime delimitation.

82

Consequently, Japan’s attempt to use the Senkaku Islands as a basis for its baseline should not

find many support with the ICJ or an arbitrator. It is nonetheless possible that an international

court, tribunal or arbitral instance would award a 12 nm territorial sea to the Senkaku Islands.

The most favorable and in the contributor’s view equitable solution is to reconcile China’s

‘equitable solution/relevant circumstances’ and ‘natural prolongation’ theory, arising from the

North Sea Continental Shelf case, with Japan’s ‘equidistance/special circumstances’ view,

currently the more prominent view in international case law. This would result in a median line

delimiting the boundaries but with certain adjustments considering the proportionality

principle, giving China a larger part of the ocean and placing the median line slightly more

towards Japan’s coastline. However it should be noted that in case China and Japan fail to reach

an agreement themselves, not many litigation options are available since China has opted out

of the procedures provided for by UNCLOS.

Concerning the resources, establishing a joint development zone, be it as a temporary measure

or as a part of a maritime boundary agreement, would be a solution from which both parties

would benefit. This is all the more so considering the importance of the resources for both China

and Japan and their dependence on them. Yet, the attempt of China and Japan to establish such

a zone following the ‘principled consensus’ of 2008 was unsuccessful for reasons of national

policies and politics and different views on maritime delimitation. However, the fact that both

parties could agree on a principled consensus proves that reconciliation is possible and that their

differences can be overcome. On the other hand, as long as such initiatives fail to be put in

practice and be maintained, the issue relating to resource rights will depend on the solution

obtained for the maritime boundary dispute. Taiwan’s East China Sea Peace Initiative should

be deemed another step in the right direction in solving the disputes in the East China Sea and

ought to encourage parties to keep up the negotiations in a spirit of mutual respect,

understanding and a will to cooperate.

This contribution has illustrated the limits of international law and the importance of the ‘law

in context’, since a crucial – and in some cases, such as the present case of the Senkaku Islands,

problematic – key to solving the dispute is the very much needed political will of the states

concerned. For the three main areas examined by this contribution, sovereignty, maritime

delimitation and resource rights, international law provides several solutions. Implementing

those solutions in a specific context or in tense bilateral relations appears to be a far more

challenging task. Although an escalation to an armed conflict is not very likely to happen, it

can be deplored that China has rejected mediation initiatives and that so far, numerous rounds

of negotiations have not resulted in a possible solution to this dispute. On the other hand,

initiatives such as the ‘principled consensus’ of 2008 should serve as a beacon of hope that both

parties will continue their negotiation efforts in order to come to an understanding, and in doing

so avoiding international litigation with a deteriorating effect on their bilateral relations.

However, whether China and Japan can move toward greater cooperation in the East China Sea

and will be able to solve this – and many other – dispute, will depend on the future development

and state of their delicate bilateral relations.

Whatever solution is envisaged, preferable or plausible, its final conclusion will require the

appropriate political climate. Considering the actions taken and statements made by both

83

parties, the current political climate is not one encouraging or facilitating the resolution of a

dispute on sovereignty and maritime delimitation, let alone supporting cooperation concerning

resources, especially not in the complex East China Sea situation. Therefore, whichever option

is chosen by the claimants to settle the dispute, be it through agreement, cooperation or third

party assistance, all the parties should refrain from any military and economic activities,

renounce the use of force and avoid confrontation in order to not further complicate the

situation.

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Books

CHURCHILL, R. R. and LOWE, A. V., The Law of the Sea, Manchester, Manchester University Press, 1999, 494. DIXON, M., Textbook on International Law, Oxford, Oxford University Press, 2013, 432. HILL, N. L., Claims to Territory in International Law and Relations, Westport, Greenwood Publishing Group, Inc., 1976, 248. KAWASHIMA, S., “Japan” in B. FASSBENDER, A. PETERS, S. PETER and D. HÖGGER (eds.), The Oxford

Handbook of the History of International Law, Oxford, Oxford University Press, 2012, 475-499. KEYUAN, Z., Law of the Sea in East Asia, Oxon, Routledge, 2005, 240. KHAN, D.-E. “Territory and Boundaries” in B. FASSBENDER, A. PETERS, S. PETER and D. HÖGGER (eds.), The Oxford Handbook of the History of International Law, Oxford, Oxford University Press, 2012, 225-249. MORLEY, J.W. (ed.), Sino-Japanese Relations 1862-1927, New York, Colombia University, 1965, 228. PARK, C.-h., East Asia and the Law of the Sea, Seoul, Seoul National University Press, 1983, 445. PRESCOTT, V. and TRIGGS, G.D., International Frontiers and Boundaries, Leiden, Koninklijke Brill NV, 2008, 504. SCHOFIELD, C., “The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary delimitation” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes,

Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, 19-37. SHAW, M. N., International Law, Cambridge, Cambridge University Press, 2008, 1542. SOMERS, E., Inleiding tot het internationaal zeerecht, Mechelen, Kluwer, 2004, 478. SOMERS, E., Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 491. SUGANUMA, U., Sovereign Rights and Territorial Space in Sino-Japanese Relations: Irredentism and

the Diaoyu/Senkaku Islands, Honolulu, University of Hawaii Press, 2000, 316. VAN DYKE, J.M., “Disputes Over Islands and Maritime Boundaries in East Asia” in S.-Y. HONG and J.M. VAN DYKE (eds.), Maritime Boundary Disputes, Settlement Process and the Law of the Sea, Leiden, Koninklijke Brill NV, 2009, 39-75.

Journals

BASTIDA, A. E., IFESI-OKOYE, A., MAHMUD, S., ROSS, J., WÄLDE, T., “Cross-Border Unitazation and Joint Development Agreements: An International Law Perspective”, Houston Journal of International

Law 2007, 355-422. HEFLIN, W.B., “Diayou/Sankaku Islands Dispute: Japan and China, Oceans Apart”, Asian-Pacific Law

and Policy Journal 2000, 1-22.

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GEORGE, M., “Fisheries Protection in the Context of the Geo-Political Tensions in the South China Sea”, Journal of Maritime Law and Commerce 2012, 85-122. GUOXING, J., “Maritime Jurisdiction in the Three China Seas”, University of California Institute on

Global Conflict and Cooperation Policy Papers 1995, 3-33, available at http://escholarship.org/uc/item/7rq2b069 (retrieved 2 January 2014). JIANJUN, G., “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The International Journal of Marine and Coastal Law 2008, 39-75. KEYUAN, Z., “Implementing the United Nations Convention on the Law of the Sea in East Asia: Issues and Trends”, Singapore Year Book of International Law 2005, 37-53. LEE, S., “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific Rim Law & Policy Journal 2002, 63-146. MANJIAO, C., “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review 2011, 163-189. ONG, D. M., “Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?”, American Journal of International Law 1999, 771-804. PETERSON, A. M., “Sino-Japanese Cooperation in the East China Sea: A Lasting Arrangement?”, Cornell International Law Journal 2009, 441-474. RAMOS-MROSOVSKY, C., “International Law’s Unhelpful Role in the Senkaku Islands”, University of

Pennsylvania Journal of International Law 2008, 903-946. RONGXING, G., “Territorial Disputes and Seabed Petroleum Exploitation: Some Options for the East China Sea”, http://www.brookings.edu/~/media/research/files/papers/2010/9/east%20china%20sea%20guo/09_east_china_sea_guo.pdf (retrieved 16 April 2014). SHAW, H.-y., “Revisiting the Diaoyutai/Senkaku Islands Dispute: Examining Legal Claims and New Historical Evidence under International Law and the Traditional East Asian World Order”, Chinese

(Taiwan) Yearbook of International Law and Affairs 2008, 95-168. SONG, Y.-H., “Conflicting Outer Continental Shelf Claims in the East and South China Seas: Proposals for cooperation and Peaceful Resolution”, University of Hawaii Law Review 2013, 485-538. TAN, D., “The Diaoyu/Senkaku Dispute: Bridging the Cold Divide”, Santa Clara Journal of

International Law 2006, 134-168. VAN DYKE, J. M., “The Romania v. Ukraine Decision and its Effect on East Asian Maritime Delimitations”, Ocean and Coastal Law Journal 2010, 261-283. XUE, G. and ZHANG, L., “Maritime Disputes in Northeast Asia and escalation of the Sino-Japan Islands Dispute: Implications and Prospects”, University of Hawaii Law Review 2013, 459-484. YUSUF, Y. M., “Is Joint Development a Panacea for Maritime Boundary Disputes and for the Exploitation of Offshore Transboundary Petroleum Deposits?”, International Energy Law Review 2009, 130-137.

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Other Policy documents Ministry of Foreign Affairs of Japan MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Joint Press Conference by Minister for Foreign Affairs Masahiko Koumura and Minister of Economy, Trade and Industry Akira Amari (Regarding Cooperation between Japan and China in the East China Sea)”, 18 June 2008, http://www.mofa.go.jp/announce/fm_press/2008/6/0618.html (retrieved 15 April 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Statements made by H.E. Mr. Kazuo Kodama, Ambassador Extraordinary and Plenipotentiary, Deputy Permanent Representative of Japan to the UN in exercise of the right of reply, following the statement made by H.E. Mr. Yang Jiechi, Minister for Foreign Affairs of the People's Republic of China at the General Debate of the 67th Session of the UN General Assembly on 27 September, 2012”, http://www.mofa.go.jp/announce/speech/un2012/un_0928.html (retrieved 3 January 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Position Paper: Japan-China Relations Surrounding the Situation of the Senkaku Islands”, November 9 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/position_paper_en.html, (retrieved 3 January 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Japan-China Relations: Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Decision of 14 January 1895 and Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “The Basic View on the Sovereignty over the Senkaku Islands”, May 2013, http://www.mofa.go.jp/region/asia-paci/senkaku/basic_view.html (retrieved 3 January 2014). “National Security Strategy”, 17 December 2013, http://japan.kantei.go.jp/96_abe/documents/2013/__icsFiles/afieldfile/2013/12/17/NSS.pdf (retrieved 3 April 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Press Conference by Minister of Foreign Affairs Fumio Kishida”, 1 April 2014, http://www.mofa.go.jp/press/kaiken/kaiken4e_000059.html (retrieved 3 April 2014). MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Japanese Territory”, 4 April 2014, http://www.mofa.go.jp/territory/index.html (retrieved 11 May 2014). EMBASSY OF JAPAN IN ETHIOPIA, “Japan-China Relations: Current Situation Regarding the Senkaku Islands”, http://www.et.emb-japan.go.jp/pol_4.htm (retrieved 8 May 2014). Ministry of Foreign Affairs of the People’s Republic of China MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “Some Sensitive Issues”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/2722/t15974.shtml (retrieved 3 January 2014).

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MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “China and Japan”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/ (retrieved 3 January 2014). MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “Vice-Foreign Minister Dai Bingguo Once Again Lodges Solemn Representation over Japan’s Illegal Detention of Chinese Citizens Who Landed on Diaoyu Islands”, http://www.fmprc.gov.cn/eng/wjb/zzjg/yzs/gjlb/2721/2726/t80940.shtml (retrieved 3 January 2014). MINISTRY OF FOREIGN AFFAIRS OF THE PEOPLE’S REPUBLIC OF CHINA, “Remarks by Foreign Ministry Spokesperson Hong Lei on the Philippines' Submission of a Memorial to the Arbitral Tribunal in Relation to Disputes with China in the South China Sea”, 30 March 2014, http://www.fmprc.gov.cn/eng/xwfw/s2510/t1142356.shtml (retrieved 2 April 2014). Ministry of Foreign Affairs of the Republic of China

MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “Q&A on The Treaty of Peace between The Republic of China and Japan”, 25 April 2009, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/335e353b-278e-41ab-8e32-e5d5ddb5ed18 (retrieved 8 April 2014). MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “East China Sea Peace Initiative”, 15 August 2012, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsIndex/?opno=cc7f748f-f55f-4eeb-91b4-cf4a28bbb86f (retrieved 9 May 2014). MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “East China Sea Peace Initiative

Implementation Guidelines”, 7 September 2012, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/9d66bed6-16fa-4585-bc7c-c0845f2dfc39 (retrieved 9 MAY 2014). MINISTRY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CHINA, “The Republic of China’s Sovereignty Claims over the Diaoyutai Islands and the East China Sea Peace Initiative”, http://www.mofa.gov.tw/EnOfficial/Topics/TopicsArticleDetail/fd8c3459-b3ec-4ca6-9231-403f2920090a (retrieved 9 April 2014). U.S. Departments

U.S. DEPARTMENT of DEFENSE, “Press Conference with Secretary Hagel and Defense Minister Onodera from the Pentagon”, 29 April 2013, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=5230 (retrieved 3 April 2014). U.S. DEPARTMENT of DEFENSE, “Statement by Secretary of Defense Chuck Hagel on the East China Sea Air Defense Identification Zone”, 23 November 2013, http://www.defense.gov/releases/release.aspx?releaseid=16392 (retrieved 21 April 2014). U.S. DEPARTMENT of STATE, “Maritime Disputes in East Asia”, 5 February 2014, http://www.state.gov/p/eap/rls/rm/2014/02/221293.htm (retrieved 3 April 2014). Press releases “Ball game at China-Japan summit”, 29 December 2007, http://news.bbc.co.uk/2/hi/asia-pacific/7164089.stm (retrieved 16 April 2014). A. RAMZY, “China-Japan Tensions Grow After Shipping Collision", 13 September 2010, http://content.time.com/time/world/article/0,8599,2017768,00.html (retrieved 17 April 2014).

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R. BUERK, “Japan frees Chinese boat captain amid diplomatic row”, 24 September 2010, http://www.bbc.com/news/world-11403241 (retrieved 17 April 2014). “China rejects US involvement in China-Japan island row”, 1 November 2010, http://www.bbc.com/news/world-asia-pacific-11671516 (retrieved 8 April 2014). Bloomberg News, “China Rejects Clinton’s Offer to Mediate With Japan Over Disputed Islands”, 2 November 2010, http://www.bloomberg.com/news/2010-11-02/china-rejects-clinton-s-offer-to-mediate-with-japan-over-disputed-islands.html (retrieved 8 April 2014). X. SUN and L. LIU, “China warns Japan over trespassing ins waters off Diaoyu Islands”, 5 July 2011, http://www.globaltimes.cn/DesktopModules/DnnForge%20-%20NewsArticles/Print.aspx?tabid=99&tabmoduleid=94&articleId=664582&moduleId=405&PortalID=0 (retrieved 17 April 2014). UNITED NATIONS DEPARTMENT OF PUBLIC INFORMATION, “Shared goal of Middle East Peace at centre of General Assembly Debate, but leaders chart divergent paths to its achievement”, Sixty-seventh General Assembly, Plenary, GA/11295, 27 September 2012, http://www.un.org/News/Press/docs/2012/ga11295.doc.htm (retrieved 30 April 2013). M. LAVELLE and J. SMITH, “Why Are China and Japan Sparring Over Eight Tiny, Uninhabited Islands?”, 26 October 2012, http://news.nationalgeographic.com/news/energy/2012/10/121026-east-china-sea-dispute/ (retrieved 16 April 2014). S. TISDALL, “China escalates islands dispute with Japan”, 25 November 2013, http://www.theguardian.com/world/2013/nov/24/us-warns-beijiing-island-dispute-senkanus (retrieved 17 April 2014). J. KAIMAN and T. BRANIGAN, “China sends warplanes into disputed airspace in East China Sea”, 28 November 2013, http://www.theguardian.com/world/2013/nov/28/japan-south-korea-chinese-air-zone-islands (retrieved 17 April 2014). “Japan's military revolution hints at Shinzo Abe's nationalist aims”, 17 December 2013, http://www.bbc.com/news/world-asia-25414430 (retrieved 3 April 2014). UNITED NATIONS DEPARTMENT OF PUBLIC INFORMATION, “Daily Press Briefing by the Office of the Spokesperson for the Secretary-General”, 4 January 2013, http://www.un.org/News/briefings/docs/2013/db130104.doc.htm (retrieved 30 April 2013). I. BURUMA, “Excuses voor wat?”, 13 March 2014, http://www.standaard.be/cnt/dmf20140312_01022098 (retrieved 3 April 2014). “Philippines files case to UN in South China Sea dispute”, 31 March 2014, http://www.bbc.com/news/world-asia-26781682 (retrieved 2 April 2014). “Japan to relax arms export ban”, 1 April 2014, http://www.bbc.com/news/world-asia-26830504 (retrieved 3 April 2014). “The Republic of the Philippines v. The People’s Republic of China”, http://www.pca-cpa.org/showpage.asp?pag_id=1529 (retrieved 2 April 2014). PCA Press Release, “Arbitration between the Republic of the Philippines and the People’s Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable”, http://www.pca-cpa.org/showpage.asp?pag_id=1529 (retrieved 2 April 2014).

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I.TORRES, “100 Self-Defense Force soldiers to be deployed to islands near Senkakus”, 18 April 2014, http://japandailypress.com/100-self-defense-force-soldiers-to-be-deployed-to-island-near-senkakus-1847489/ (retrieved 21 April 2014). “Japan to build military site near disputed Senkaku Islands”, 19 April 2014, http://www.bbc.com/news/world-asia-27089658 (retrieved 21 April 2014). “Japan risks angering China with military expansion”, 19 April 2014, http://www.theguardian.com/world/2014/apr/19/japan-china-radar-station-near-taiwan (retrieved 21 April 2014).

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ANNEXES ANNEX 1: LOCATION OF THE SENKAKU ISLANDS ANNEX 2: LETTER OF APPRECIATION FROM THE CONSUL OF THE REPUBLIC OF CHINA (MAY 1920) ANNEX 3: CABINET DECISION OF 14 JANUARY 1895 RELATED TO THE CONSTRUCTION OF WOODEN

MARKERS

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ANNEX 1: LOCATION OF THE SENKAKU ISLANDS393

393 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Japan – China Relations: Current Situation of Senkaku Islands”, http://www.mofa.go.jp/region/asia-paci/senkaku/index.html (retrieved 3 January 2014); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014).

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ANNEX 2: LETTER OF APPRECIATION FROM THE CONSUL OF THE REPUBLIC OF CHINA (MAY

1920)394

394 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014).

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ANNEX 3: CABINET DECISION OF 14 JANUARY 1895 RELATED TO THE CONSTRUCTION OF WOODEN

MARKERS 395 Original

(Unofficial)Translation 28th year of Meiji, 14th day of the first month Cabinet Secretary [Signed (order: left to right, top to bottom):] Prime Minister, Chief Cabinet Secretary, Minister of Foreign Affairs, Minister of Finance, Minister of the Navy, Minister of Education, Minister of Communications, Home Minister, Minister of War, Minister of Justice, Minister of Agriculture and Commerce. The cabinet meeting [called by] the home minister [discussed] in this accompanying sheet is aimed at the uninhabited islands named Kubajima and Uotsurishima, located northwest of the Yaeyama island group which are part of Okinawa Prefecture. Recently, concerning the demand for regulation to use [these islands] to try [using them for] the fishing industry amongst others, [the cabinet] should authorise the petition of the same prefecture’s governor about the matter of the construction of wooden markers by means of recognising the same islands as [falling under] the jurisdiction of Okinawa Prefecture. There is otherwise no objection, so concerning this the cabinet meeting seems appropriate. Directive Cabinet meeting about the matter related to the construction of wooden markers. 28th year of Meiji, 21st day of the first month.

395 MINISTRY OF FOREIGN AFFAIRS OF JAPAN, “Fact Sheet on the Senkaku Islands”, November 2012, http://www.mofa.go.jp/region/asia-paci/senkaku/fact_sheet.html (retrieved 3 January 2014), translated by translated by D. M. BORM, Master of Arts in Oriental Languages and Cultures UGent, obtained in 2013.

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