By Mark E. Rosen
China’s recent declaration that aircraft flying over a large swath of nearby ocean now must report in to Beijing added new heat to the warming political kettle of the East China Sea. The U.S. response – sending two B-52 bombers through the new Air Defense Identification Zone – underscored the seriousness of this latest escalation. It’s time to settle things down, and that means resolving the seemingly intractable Sino-Japanese dispute over the Diaoyu/Senkaku islands. The key may lie in somewhat similar disputes on the other side of the globe.
A Series of Troubling Events
On Nov. 23, the People’s Republic of China established a large Air Defense Identification Zone (ADIZ) encompassing a large amount of the East China Sea. Such zones are hardly uncommon; the United States, for example, has a large ADIZ belt along its coastlines to ensure that approaching aircraft are properly identified and, when appropriate, challenged. Yet the circumstances surrounding the Chinese ADIZ are different. A Chinese Embassy spokesperson says it was aimed to safeguard China’s national sovereignty: “Diaoyu Island and its affiliated Islands are integral parts of China’s territory.” The zone, then, has little to do with regulating air traffic destined for the Chinese mainland and everything to do with the dispute with Japan over the Diaoyu/Senkaku islands.
It is, in fact, a dangerous escalation in a struggle between political and military heavyweights who each appear to be allowing nationalist sentiments within their governments to drive a game of one-upmanship. Troubling developments in this year alone include the Japanese arrest of a Chinese fishing vessel captain near the disputed islands, China’s illegal attempt to declare various small islets a formal archipelago, Chinese threats to stop exporting rare earth minerals to Japan, and close-aboard contacts between Coast Guard and fishing vessels of both countries.
Against this backdrop, China’s declaration of a new ADIZ that could encumber international civil aircraft flying to points unconnected with the PRC drew a quick response by the United States. The day after Bejing’s announcement, DoD sent two B-52 bombers into the disputed area. Such flights, known as Freedom of Navigation (FON) operations, make the legal point that no nation need acquiesce to such zones. The U.S. usually uses less potent aircraft to make such statements, so the stern response spoke volumes about Washington’s view of China’s attempt to change the status quo in a disputed region.
There would seem to be little to fight over; the Diaoyu/Senkaku islands comprise five uninhabited islets and about seven square kilometers of barren rocks. And indeed, no one gave a second thought to particular features until the 1970s, when oil and gas prospecting in the areas suggested the presence of hydrocarbons. In 1982, the UN Convention on the Law of the Sea (UNCLOS) allowed countries to assert rights to fisheries and mineral rights out to 200 nautical miles from their coastlines – defined loosely as places that are inhabitable or have an economic life of their own. States shortly thereafter began to “rediscover” long-ignored island territories.
UNCLOS failed to set legal standards for establishing ownership, nor can it force states to arbitrate their conflicting claims. Consequently, Asia’s seas have become littered with territorial disputes. One of the most extreme examples is Okinotorishima, an uninhabited island that is barely above water at high tide. The only completely dry structures are manmade. There is no fresh water, no vegetation and no conceivable way that a person would be able to inhabit it. Yet by claiming that this feature constitutes an “island” under UNCLOS, Japan is able to exploit all of the resources in an area of roughly 125,000 square nautical miles.
As for the Diaoyu/Senkaku islands, China says it should have regained them after the 1945 Potsdam Declaration required Japan to return all territory it acquired through force and aggression. Meanwhile, Japan, which does not even concede that China might have a claim worth discussion, recently purchased the islands from private landowners, presumably, to bolster its own claims.
There are reports of some meetings between military and diplomatic officials between the countries. These would seek to “make nice” and, perhaps, negotiate something like the 1972 Incidents at Sea (INCSEA) agreement, designed to prevent military units from conducting maneuvers that could lead to accidental war. So far, however, there is no evidence of any serious progress, nor any serious discussion about the underlying territorial dispute.
Neither party, by the way, can use the UNCLOS dispute settlement mechanisms to force the other into a binding type of dispute settlement because the convention’s is not designed to settle territorial disputes.
Meanwhile, the Chinese veto in the UN Security Council makes it unlikely that the International Court of Justice or similar bodies might enter the fray.
Many in the policy community and some governmental officials have argued that states need to shelve their sovereignty disputes and forge agreements for joint development. Easier said than done; for one thing, the Japanese government calls Daiyo/Senkaku “indisputably part of Japan.” Also, to have joint development you have to agree on how to divide the royalties.
Others have argued that a Code of Conduct, such as the one that exists in the South China Sea, could be written to guide the behavior of states that dispute oceanic territories in the East China Sea.
Finally, there have been calls for the states to conclude an INCSEA-like agreement to regulate the conduct of military and coast guard units to prevent unintentional military confrontations that might escalate into something more serious.
These are all good ideas, but they only nibble around the edge of this problem. Nor do they address the major motivations of the parties: the right to harvest fish and drill or oil and gas in the maritime zones.
Seeds of a Solution
A more permanent way out may be found in a recent trend in international law: minor islands, islets, etc., have been held to entitle only a 12-nautical-mile territorial zone, not a far more expansive 200-nautical-mile one.
In recent cases decided by the International Tribunal for the Law of the Sea involving the Bay of Bengal (2012) and the International Court of Justice in the 2009 Serpent Island case and the 2012 dispute between Nicaragua and Columbia, the courts have shown extreme reluctance to allow minor islands to trump the rights of a coastal state’s continental shelf claim. The Serpent Island case established the legal principle that the “Land Dominates the Sea.” In the Bay of Bengal case, this precedent led the court to award a major island, St. Martin’s Island, the right only to a 12NM zone. Finally, in the very recent Nicaragua Case, the court upheld the concept of a 12NM “enclave” within the continental shelf of another state and equitably adjusted the zone around San Andres Island to not unduly distort Nicaragua’s continental shelf. These precedents would seem to pertain to the Daiyo/Senkakus because Japan is essentially claiming that its possession of the islands supports a 200NM zone which cuts into a broad swath of China’s continental shelf and exclusive economic zone.
Moreover, these cases involved large inhabited islands that had been administered and occupied for many years. The Diaoyu/Senkakus are different. The Islands have not been occupied since the first part of the 1900s when the Japanese had used one of the islets to operate a small fish processing plant. It is unclear whether there is any fresh water on the islands; there is no arable land that would support agriculture. There is no road network, no airports and, apart from claims of administrative control, little evidence that either country has invested in public works that would have made the islands hospitable for human habitation. Consequently, it is likely that these small islands would only rate a 12NM circular zone, a swath of territory that would not affect either country’s continental shelf claims.
All this points to a solution to the Diaoyu/Senkaku mess: China and Japan must conform their maritime claims to UNCLOS. This includes a joint recognition of the trend in international case law for minor islands (islets) to receive only a 12NM territorial sea.
The first, basic agreement between Japan and China would be that the Senkaku/Daioyu territory is only entitled to a 12NM zone. This in itself would greatly decrease the stakes and the tensions, no matter whose claim is superior.
The far more important question is where to draw the median line between two states. This is where compliance with UNCLOS can be very helpful. If China rolled back its excessive baseline claims on its coastline to those which are authorized by UNCLOS, the net result would be a median line in the between the two opposing continental shelf claims. The blue hashed line on the above chart notionally depicts the proper median line between Japan and China’s continental shelves. This territorial exchange is not exact; but it is has something for both sides – enough for both to declare victory.
Both countries could share internationally recognized freedom to operate in a considerable amount of the East China Sea. Japan would retain access, albeit shared access, to much of the territory it now claims through the disputed Senkaku “bump.”
Such an agreement would enable each country to develop their own resources in their continental shelves and not require extensive follow-on agreements to deal with messy details associated with joint development zones. It would, for example, increase each government’s ability to manage the fish stocks that play outsized roles in their countries’ economies.
The U.S. has a longstanding tradition of not taking sides in territorial disputes and respecting the rights of big states, like China, to not be pushed into litigation over ownership of territory. Given recent events, the U.S. may need to change its tune. It may be time to publicly push both countries to conform their claims to UNCLOS and to enter into some form of binding dispute settlement.
Mark E. Rosen is a Senior Legal Advisor at CNA Corporation. He has provided corporate law support to CNA and also provides international and national security law support to various clients including the U.S. Navy, OSD, the NRO, the State Department. These opinions are his own, not CNA’s.