1. Introduction
2.1. Bases of controversy
國
立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
17
CHAPTER TWO
2. Background and development of the dispute
2.1. Bases of controversy
In the International Public Law realm, territorial conflicts can be analyzed in terms sovereign entitlements over territorial borders, islands, atolls, and coral reefs.
On the other hand, a controversy of maritime sovereignty is a divergence of exclusive rights over the waters, particularly Exclusive Economic Zones (EEZ) as expressed in the United Nations Convention on the Law of the Sea (UNCLOS). The UNCLOS covers the exclusive rights based on the geological characteristics. These conventions acknowledged the different maritime zones where coastal Nation-States may use their rights to exercise their sovereign power or exploit natural resources as they convene [29, 20, 42, 40, 13, 16].
1) Territorial sea is the sea line that is contiguous to a State’s coast. The Territorial Sea may prologue to 12 miles (approx. 20 kilometers) from the coast. In this sea line the State may exercise full sovereignty over the sea, undersea, and over-flight. 2) Contiguous zone is defined as the adjacent area to the territorial sea of a Nation-State. In this zone the State cannot exercise complete sovereignty, but it may enforce its authority to prevent law infringements as well as exercise its regulations and sanitary controls in its territorial sea. This zone may extend up to 24 miles (approx. 38 kilometers) from the coast. 3) Exclusive Economic Zone is the State sea line up to 200 miles (approx. 322 kilometers) from its coast. In this zone the Nation-State is allowed to implement sovereign rights over the living and non-living resources of the sea, seabed, and subsoil. 4) Continental shelf is the natural prolongation of a Nation-State coast to the continental margin’s external edge, in this area a State may control and exploit its natural resources. The continental shelf cannot surpass the 350 miles (approx. 515 kilometers) from the coast. 5) Equidistance principle is endorsed to the UNCLOS in order to settle maritime disputes, in which the frontier of neighboring coastal States overlaps with a contiguous continental shelf, as in the Pinnacles case. This principle remarks that Nation-States’ maritime
‧
boundaries should adopt a median line equidistant from the neighboring States’ shores.In this way, neighboring coastal States may exploit natural resources more equitable [19, 29, 42, 30, 43, 44, 13, 16].
Differing from internal waters, Nation-States do not have complete sovereign rights in maritime zones under their jurisdiction, as they must exercise the freedom of passage and transit to foreign ships and over-flight. However, there are some limitations concerning to the foreign navigation and over-flights. For instance, foreign ships have the right to navigate the territorial sea of a coastal State; excluding internal waters. The passage of foreign ships must be “innocent in nature”; which means that it should not disturb peace, order, or security of the coastal State. Moreover, every coastal Nation-State may impose different regulations on its territorial sea, which foreign ships must follow. Likewise, over-flying of foreign aircrafts will be only allowed with the authorization of the coastal Nation-State [29, 44].
It is important to mention that maritime sovereignty cannot be used to demand a territory; while territorial sovereignty is able to claim maritime rights. Thereby, maritime sovereignty is more susceptible than territorial sovereignty. To some extent, maritime disputes tend to be less precarious than territorial ones [20, 13]. However, it is less probable to reach a total cooperation even in maritime sovereignty claims among China, Japan, and Taiwan due to the economic interests that are compromised into the Pinnacles’ territorial sovereignty dispute. In addition, UNCLOS states that the EEZ and continental shelf rights may be proclaimed only in habitable islands with upheld economic life. Therefore, the rights may not be exercised on uninhabited islets.
However, these conditions of habitability and economic viability are not totally compulsory, and in most of the cases, islands or islets tend to be used to acquire a larger EEZ or extend the resources of continental shelves [20].
Another point is that International Public Law urges the legal demonstration of sovereignty for territorial acquisition, and it denunciates Nation-States for incurring occupation of a territory in a neighboring State, especially between competitors as China and Japan. When territorial disputes are sustain in a context of fever nationalist as in the Pinnacles case, asserting sovereignty is more possible than reaching an arrangement. Additionally, the deficiency of the International Customary Law simultaneously permits the parties to appeal international legal norms, which in
‧
almost all cases are taken to complement their own benefits, yet deterring the parties for attempting to solve the controversy under more impartial legal bases. Therefore, ambiguity of the existing legal principles has allowed China, Japan, and Taiwan to justify their sovereignty claims by referring to International Public Law in order to assert sovereignty over the Pinnacles. Nonetheless, neither party has expressed their willingness to take the controversy to the International Court of Justice (ICJ).Furthermore, the periodical frictions and confrontations by Chinese and Japanese over the dispute notably deject the ICJ mediation [13].
This is how the International Public Law has shown ineffectiveness in order to solve prominent disputes in which natural resources are involved, as in the Pinnacles case. Another difficulty here is that the all involved parties must concordantly submit the controversy to the ICJ’s resolution. In other words, if one of the parties does not agree in allowing the ICJ to determine the final judgment of the dispute, the trial cannot be led. Moreover, if one of the involved States does not adhere to the final sentence, the other parties may present the issue to the United Nations Security Council (UNSC). At this point, the controversy can remain unsolved, if any of the five permanent members of UNSC decides to obstruct a further initiative [45]. Hence, China as a member of the Security Council is able to arbitrarily veto4 any instance or even the final resolution over the Pinnacle Islands. Another crucial point is that Japan and especially China do not recognize Taiwan as a Nation-State. In fact, Taiwan is no longer a member of the UN. Therefore, it cannot be represented as a legal party over a territorial controversy under the ICJ [24, 42].
Regarding the Pinnacles’ sovereignty dispute, an essential legal matter is who initially discovered and occupied the islands. In a particular case of uninhabited territories, historical, geological, and geographical evidence does not necessarily constitute a valid claim to assert sovereignty. In fact, international judicial and arbitral bodies have often based their resolution on discovery along with occupation to solve uninhabited territorial disputes. Primarily, China claims that the Pinnacles have been a
4 China, France, the Russian Federation, the United Kingdom and the United States are the five permanent members of the United Nations Security Council. In addition, there are ten non-permanent members, who are elected by the United Nations General Assembly for a two-year period; non-permanent members are not eligible for immediate re-election. Each Council member has one vote. Decisions on procedural matters are made by an affirmative vote of at least nine of the fifteen members. Decisions on substantive matters require nine votes, including and concurring votes of all five permanent members. This is the rule of “great power unanimity”, usually referred to as the “veto power” [124].
‧
part of China based on historical records; while Japan sustains that the Pinnacles were terra nullius5, before it annexed them to its territory. Certainly, during 1885 to 1895 the Japanese authorities did not find any evidence of human settlements [19, 36, 46].However, by means of Customary International Law, which is considered a source of International Public Law, the discovery per se is not enough to declare the sovereignty principle over a territory. A proper sovereign designation can be only achieved throughout an effective demonstration of intent to occupy a territory. This action is known as animus occupandi in International Public Law [13].
The effectiveness of sovereignty can be understood under two principles: the intention to act as a sovereign power and the real exercise of sovereign control or authority. International courts and arbitrators have also acknowledged different degrees of governmental action are applicable to different kinds of territory. In some instances, minimal levels of government activity can be justified in less populated or uninhabited areas. Moreover, several governmental acts have been recognized as indication or effectiveness degree of sovereignty: patrolling by military or law enforcement bodies, granting scientific surveys or studies, regulating trade, investigating criminal activity, maintaining jurisdiction, registering certificates of property, building infrastructure, conducting census registry, upholding navigational markers, exploiting natural resources, or engaging in any other economic activity. In those aspects, only governmental intervention can be appealed as evidence of sovereignty. Private commercial initiatives by national citizens might not be substantial even though it is regulated by the government. In light of International Public Law, sovereignty over a territory may be also acquired through the principle of cession, whereby the sovereign title is conveyed from one State to another by a treaty or agreement [44, 13].
China, Japan, and Taiwan have been immersed in several territorial disputes since the end of World War II. Although these controversies are not related directly to the Pinnacles issue, the China’s, Japan’s, and Taiwan’s positions in other divergences can influence how these nations act in their own territorial disputes. For example, China is still struggling in the internal disputes in Xinjiang and Tibet among others provinces besides the endless dilemma about Taiwan’s political status and their
5 In Latin, “Land belonging to nobody”. The term is used in Customary Intentional Law as a territory belonged to no sovereign power or nation [13].
‧
reciprocal counterclaims of other territorial disputes [20]. The Chinese government claims Taiwan as its inherent territory even though the Chinese Communist Party (CCP) has never ruled in Taiwan, and the island has exercised all conditions of a proper State for over six decades. Furthermore, the Chinese irredentism has caused tensions with India and Bhutan over land borders, as well as with South East Asian countries and Taiwan concerning the Paracel and Spratly Islands, in which maritime rights in the South China Sea are included [40, 47]. Although China has claimed several territories against its neighbors since 1949, in most of the cases natural resources are involved, the CCP has kept the majority of these disputes within certain passive means [20].Meanwhile, Taiwan still maintains its position, stressing its sovereignty over the Paracel and Spratly Islands as well as the South China Sea basin. Since 1947, the ROC has released several reports and evidence concerning its sovereign power over those claims. In 1995, regardless of the persistent territorial claims made by China and South East Asian countries, the ROC government, now established in Taiwan, started to develop infrastructure in the Spratly island of Itu Aba. It is important to remark that the Taiwanese government does not intend to assert its sovereignty by force over the islands, islets, and reefs of the South China Sea [48].
Simultaneously, Japan still faces the consequences of the ambiguity from post-World War II arrangements with its neighbors. Since 1945, Japan and the Russian Federation have disputed the sovereignty of the Northern Territories (Chishima Retto for Japanese or Kurile Islands for Russians), which have been occupied by Russia since the end of the World War II. In addition, Japan demands sovereignty over the Liancourt Rocks (Takeshima in Japanese or Dokdo in Korean), which are currently administrated by South Korea [20, 42, 49, 11, 40, 50].
The Chinese and Japanese governments are also in conflict in two other maritime sovereignty arguments. The one refers to the extension of maritime rights in the East China Sea. In order to ease tensions over the maritime rights of the area with China, Japan has tried to reach an agreement in mutual development of the gas fields.
Curiously, Japanese firms invested in the Chinese gas and oil extraction projects in the zone [47]. In 2008, both nations tentatively decided to jointly develop the Shirakaba (Chunxiao in Mandarin) undersea gas field (see Appendix, Figure 4).
‧
Nonetheless, this agreement is unsettled and it is ambiguous regarding to the mutual communication for the activities in the overlapping zone [51, 22]. This became evident when a group of Chinese vessels organized undersea surveys without the prior notification to the Japanese government. In order not to compromise the previous accords, the Japan’s Foreign Ministry did not officially disapprove the incident [29].Previously in 1992, China approved the “Law on the Territorial Waters and Contiguous Areas of the People’s Republic of China.” Six years later, China promulgated a “Law on Economic Waters and the Continental Shelf,” and in 2001, the “Law on Management and Use of Sea Areas.” Throughout these edicts, China has bolstered its intentions to secure its economic interests across the East China Sea and South China Sea. The zone claimed by China here is extensive; it contemplates 800,000 square kilometers, of which about 20,000 square kilometers of EEZ are conveying within the adjacent Pinnacles waters [17, 19, 13, 16, 47].
In the particular case of the East China Sea, the Chinese government has constantly refused Japan’s attempts to recognize that “joint development” in the Shirakaba/Chunxiao field is based on Japanese maritime sovereignty entitlement.
Japan declares that the EEZ median line of demarcation, which is based on the equidistance principle, should determine the maritime rights in those waters. While China insists on their demands to the continental shelf principle, this prerogative technically extends Chinese sovereignty to Taiwan, the Pinnacles, and to the whole Shirakaba/Chunxiao gas field as well as other developing areas [35, 17, 52, 19, 53, 54, 43, 40, 34, 51]. Although neither Japan nor Taiwan had established official negotiations over the Pinnacles sovereignty, previously both governments initiated an informal exchange of views concerning to the exploration of the natural resources in the East China Sea. In fact, the Japanese government also proposed that Japan, South Korea, and Taiwan should cooperate in developing the undersea resources of the East China Sea without affecting their respective maritime claims [39, 24, 19, 29, 16].
The continental shelf principle and the median line equidistant are validated by the UNCLOS. However, the International Court of Justice normally does not rely on the continental shelf or other geological features to solve territorial disputes except the median line equidistant principle. This characteristic advocates that the Pinnacles controversy should not be depended on substantial deliberations based on geological
‧
characteristics [38, 55]. Despite the negotiations, the Japanese leaders are indignant because the Chinese allegation in this issue will permit to extend its maritime rights and even extract natural gas and oil from the Japanese EEZ [34, 16]. This argument is different from the Pinnacles’ controversy, in which only territorial sovereignty over the islands is involved but maritime sovereignty is not. The second argument is centered over Okinotori-shima, a coral reef that remains more than 1,740 kilometers to the east of Tokyo. Although China does not demand sovereignty over the reef, it has objected that the Japanese can establish a larger EEZ in the West Pacific Sea.China claims that Japan cannot appeal for an EEZ in neighboring waters under UNCLOS because Okinotori-shima is a coral reef and not an island [19, 20, 56, 33].
Despite the fact that the United States does not intend to assert claims to any of the territories disputed by China, Japan, and Taiwan, the United States remains as an important actor in East Asia. Therefore, the positions of the U.S. in these conflicts are based on a complex multilateral relationship. Indeed, the foreign policy of the Washington can indirectly affect the development of the Pinnacles controversy as well as its ties with Beijing, Taipei, and Tokyo. Basically, the United States’ policies toward the Pinnacle Islands are centered on impartial terms for a decisive sovereignty judgment, and also with the maintenance of a peaceful resolution that avoids the use of force. Nonetheless, it is important to mention that the Pinnacles fall in the scope of the Article V of the Japan-U.S. Security Treaty:
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 [57].6
Since the Pinnacle Islands are under Japanese administration, the United States is committed to militarily support Japan if China or Taiwan ever takes the disputed islands by force [18, 19, 20, 16]. After days of the Chinese fishing boat incident, the
6 Ministry of Foreign Affairs of Japan, "Treaty of Mutual Cooperation and Security between Japan and the United States of America," 2011. [Online]. Available: http://www.mofa.go.jp/region/n-america/us/q&a/ref/1.html.
[Accessed 7 July 2011].
‧ 國
立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
24 declaration of the U.S. Secretary of State, Hillary Clinton, was quite positive to the Japanese administration over the Pinnacle Islands’ and its relation concerning to the Article V of the Japan-U.S. Security Treaty. Afterwards, the U.S. Department of State later expressed, “any territorial dispute over these islands should be solved by the parties involved” [58].