From Confrontation to Cooperation:
the Future of the East and
South China Seas
Kuan-hsiung Wang
Professor, Graduate Institute of Political Science, National Taiwan Normal University
Abstract
This paper considers the issue of disputes in the East and the South China Seas and posits fishery cooperation as a resolution of these disputes. The author first explores the motivation behind the disputes of the East and South China Seas. Then the concept of “pro-visional arrangements” in the 1982 United Nations Convention on
the Law of the Sea is explained. The author suggests that determining
the ownership or jurisdiction over the islands/islets and waters in the East and South China Seas is not essential at this stage. On the contrary, paying too much attention to sovereignty issues will make the situation much worse. In fact, claimant states can derive greater benefits through cooperation in the management and conservation of fishery resources. In the last part of the paper, the East China Sea
Peace Initiative and the Taiwan-Japan Fishery Agreement are
dis-cussed. It is the author’s suggestion that it is possible and feasible to carry over the effect of the “provisional arrangements.”
Keywords: East China Sea, South China Sea, Provisional Arrange-ments, East China Sea Peace Initiative, Taiwan-Japan Fi-shery Agreement
I. Disputes in the East China Sea
The East China Sea is a “semi-closed sea,”1with a total area of
around 482,000 square miles, bordered by the Yellow Sea to the north, the South China Sea and Taiwan to the south, Japan’s Ryukyu and Kyushu islands to the east and the Chinese mainland to the west. Scientific research showing potentially abundant oil and natural gas deposits have made the East China Sea one of the flashpoints in the East Asian region.2
In a semi-enclosed sea like the East China Sea, the width of which is less than 400 nautical miles between the littoral states, an immediate implication of two 200 nautical miles exclusive economic zones is that there would be no high seas area in the region. Further-more, littoral states’ extending their maritime jurisdiction inevitably creates overlapping claims and areas. This would lead to disputes over the exploration and exploitation of fishery resources and hydro-carbon resources, as well as the control of strategic stronghold. Some of the developments are making the situation much worse. There has been a ceaseless sovereignty dispute over the Diaoyutai Islands between China, Japan, and Taiwan for decades, but the center of the dispute might be the need for resources, either living resources or non-living resources.
According to Article 122 of the 1982 United Nations Convention on the Law
of the Sea, “..., ‘enclosed or semi-enclosed sea’ means a gulf, basin or sea
sur-rounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.” Please refer to United
Nations Convention on the Law of the Sea, Article 122.
U.S. Energy Information Administration, “East China Sea,” U.S. Energy
In-formation Administration, September 25, 2012, <http://www.eia.gov/countries/
The disputes in the East China Sea can be divided into two parts: one is the sovereignty disputes over the Diaoyutai islands; and the other is the delimitation of the waters surrounding the islands, especially once the sovereignty of the islands is decided. Both parts are so entangled that it is difficult to find a solution, especially given the recent “nationalization” of the Diaoyutai Islands by the Japanese government, which has pushed China to take certain steps in order to signal its determined opposition.
On September 11, 2012, the Japanese government signed a contract with the ‘owner’ of the Diaoyutai Islands to buy three of the five major islands. It then formally “nationalized” the territory and claimed jurisdiction over it.3 This action immediately drew a
strong protest from China as well as from Taiwan.
The Chinese Foreign Ministry was quick to criticize the so-called “nationalization” as “totally illegal and invalid” and “a gross violation of China’s sovereignty over its own territory.” It warned Japan’s action could have “serious consequences” and vowed that China would take unspecified “necessary measures to protect its ter-ritorial sovereignty.”4
Apart from making this political statement, one day before the
“Japan sets date for nationalization of Diaoyutai Islands,” Taipei Times, September 8, 2012, <http://www.taipeitimes.com/News/front/archives/2012/09/08/2003 542235>.
“China sends warships after Japan announces purchase of disputed Senkaku islands,” The Free Library, September 11, 2012, <http://www.thefreelibrary. com/China+sends+warships+after+Japan+announces+purchase+of+disputed...-a0302131685>; “China’s statement over Diaoyu Islands,” ChinaDaily, September 11, 2012, <http://usa.chinadaily.com.cn/china/2012-09/11/content_15748632. htm>.
“nationalization,” on September 10, 2012, China issued a government statement which designated 17 coordinates of straight baselines sur-rounding the Diaoyutai Islands in the East China Sea on an illustrative chart.5 The Chinese government announced these baselines of the
territorial waters of the Diaoyutai Islands to express its protest against Japanese “nationalization” and its firm determination to safeguard its territorial sovereignty and maritime interests. In defining the boun-daries of the territorial and internal waters, China claimed its jurisdiction of the waters surrounding the Diaoyutai Islands with 17 base points in line with its domestic law and international law.
China’s statement mentioned that the baselines were “in accor-dance with the Law of the People’s Republic of China on Territorial
Sea and Contiguous Zone of 25 February 1992.”6 Article 2 of the
Law claims Diaoyu Island (and other associated islands) as part of China’s land territory. Article 3 of the same law provides that “the method of straight baselines composed of all the straight lines joining the adjacent basepoints shall be employed in drawing the baselines of the territorial sea of the People’s Republic of China.”
These articles express several positions: firstly, that a straight baseline system is utilized as the basis for claiming territorial seas; and secondly, the water area enclosed by the straight baselines is China’s internal waters. In accordance with the 1982 United Nations
United Nations, “MZN (maritime zone notifications) released on 21/09/2012,”
United Nations, September 21, 2012,
<http://www.un.org/Depts/los/LEGISLAT-IONANDTREATIES/PDFFILES/mzn_s/mzn89ef.pdf>.
The People’s Republic of China, “Law on the Territorial Sea and the Contiguous Zone of 25 February 1992,” United Nations, September 30, 2013 (accessed), <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ CHN_1992_Law.pdf>.
Convention on the Law of the Sea (UNCLOS),7 the maritime area
within the straight baselines connected between the coordinates can be seen as internal waters. It is noteworthy that the legal status of internal water is equal to land territory. For this reason, China is entitled to enhance its marine capabilities in order to fulfill its intention of enforcing these claims.
Another development took place on December 14, 2012 when China submitted its information on the outer limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial seas is measured in the northern part of the East China Sea.8
This would inevitably overlap with the claims of Japan,9 which
touches on the different way in which the two countries make the delimitation. China insists that natural prolongation is the principle to be used in deciding the limits of the continental shelf. In such a case, the limit of the continental shelf in the East China Sea is to be located in the central part of the Okinawa Trough.10Nonetheless, by
United Nations Convention on the Law of the Sea, Articles 7(3), 8(2), & 10(4).
The People’s Republic of China, “Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea,” United Nations, December 14, 2012, <http://www.un.org/Depts/los/clcs_new/submissions_files/chn63_12/ executive%20summary_EN.pdf>.
For communication from Japan please refer to Japan, “Permanent Mission of Japan to the United Nations, New York,” United Nations, December 28, 2012, <http://www.un.org/Depts/los/clcs_new/submissions_files/chn63_12/jpn_re_ chn_28_12_2012.pdf>.
“China to submit outer limits of continental shelf in East China Sea to UN,”
English.news.cn (Xinhua), September 16, 2012, <http://news.xinhuanet.com/
invoking the cutting-off effect of the Okinawa Trough, Japan claims an Exclusive Economic Zone (EEZ), as far as a median line that bisects the East China Sea, although its coordinates have never been published. Japan’s 1996 Law on the Exclusive Economic Zone and
the Continental Shelf11 provides that in the event of an overlapping
of claims with foreign countries, a median line should serve as the boundary.
There have been many incidents in which Chinese marine en-forcement vessels have confronted Japanese Coast Guard vessels. It is reported that Japan noticed two Chinese frigates within 100 km of the Diaoyutai islands this summer. Moreover, in September 2013, China confirmed that its seven Marine Police ships had been in the area of the disputed islands. In addition, it was also reported that an unmanned aircraft from China was first spotted in this area.12
II. Disputes in the South China Sea
The South China Sea, with an area of more than one million nautical square miles, is not only the largest maritime area in the Southeast Asian region, but is also the 26thlargest basin in the world.
In terms of its geographic setting, the South China Sea is also a “semi-enclosed sea” bounded on the east by the Philippine Deep and the Pacific Ocean, on the west by the Sunda Shelf and the Indian Ocean, on the south by the Indonesian archipelago, and on the north by the Taiwan Strait. The littoral states, in clockwise order, are
Japan, Law on the Exclusive Economic Zone and the Continental Shelf (Law
No. 74 of 1996), Article 1(2), Law of the Sea Bulletin, No. 35, 1997, p. 94.
“Japan spots Chinese UAV near disputed South China Sea islands: Media,” Russian
Radio, September 10, 2013,
Taiwan, the Philippines, Malaysia, Brunei, Indonesia, Singapore, Thailand, Cambodia, Vietnam, and the PRC.
Owing to heavy traffic, the South China Sea constitutes one of the busiest maritime transport routes in the world.13Because of this,
some of the islands and straits have considerable strategic importance. Exercise of sovereign control over some of these islands presents the opportunity for gaining a central and commanding position in the re-gion. For this reason, the Pratas Reef, the Paracel Islands and the Spratly Islands are the most important island groups in the South China Sea.
The straits that separate these islands are important not only be-cause restrictions upon passage would seriously disrupt international commerce, but also because controlling them permits a country to have influence over a much larger area on either side of the strait.
Hydrocarbons are the most important and attractive non-living resource in the South China Sea.14Many littoral states have occupied
“More than half of the world’s annual merchant fleet tonnage passes through the Straits of Malacca, Sunda, and Lombok, with the majority continuing on into the South China Sea. Tanker traffic through the Strait of Malacca leading into the South China Sea is more than three times greater than Suez Canal traffic, and well over five times more than the Panama Canal.” Please refer to “South China Sea Oil Shipping Lanes,” GlobalSecurity.org, September 30, 2013 (accessed), <http://www.globalsecurity.org/military/world/war/spratly-ship.htm>. According to the U.S. Energy Information Administration, it is estimated that there are approximately 11 billion barrels (bbl) of oil reserves and 190 trillion cubic feet (tcf) of natural gas reserves in the South China Sea. Please refer to U.S. Energy Information Administration, “South China Sea,” U.S. Energy
In-formation Administration, February 7, 2013, <http://www.eia.gov/countries/
islands in the area in order to claim rights in future negotiations. Competition for these resources could conceivably trigger serious conflicts. As far as the living resources are concerned, the South China Sea is one of the most important and abundant commercial fisheries in the world. Shared stocks such as scad and mackerel, and highly migratory species, such as tuna and tuna-like fish, are the most common commercial stocks in this region.15
On January 22, 2013, the Philippines initiated a Notification and Statement of Claim at the International Tribunal for the Law of the Sea (ITLOS), seeking to invalidate China’s nine-dash line.16The
Philippines argues that Chinese claims within the nine-dash line are contrary to the provisions of the United Nations Convention on the
Law of the Sea. What China occupied in the South China Sea are
mere rocks. Chinese structures on those submerged features are illegal. In addition, the Philippines argues that China’s maritime law enforcement actions would constitute an unlawful interference with Manila’s rights to exploit resources in its sector of the South China Sea.
“The average per capita consumption of fish in East and Southeast Asia during the period 2000-2003 was 26.1 kg/year. This is much higher than the world average of 16.3 kg/year. ... This reflects the importance of fish in food security, as well as the general preference for fish as a source of protein in the region.” Please refer to Pakjuta Khemakorn, “Sustainable Management of Pelagic Fisheries in the South China Sea Region,” United Nations, November 2006, <http://www. un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/ khemakorn_0607_thailand.pdf>.
Department of Foreign Affairs, Republic of the Philippines, “SFA Statement on the UNCLOS Arbitral Proceedings against China” (Notification and Statement of Claim, No. 13-0211), Department of Foreign Affairs, Republic of the
Philippines, January 22, 2013,
<https://www.dfa.gov.ph/index.php/2013-06-27-21- 50-36/unclos/216-sfa-statement-on-the-unclos-arbitral-proceedings-against-chin-a>.
China rejects the Notification filed by the Philippines. The reason is that a declaration made by China in 2006, in pursuance of Article 298 of the Convention excluded disputes regarding such matters as those related to maritime delimitation from compulsory dispute settle-ment procedures, including arbitration. Moreover, Chinese analysts believe Manila’s effort to push for the establishment of a tribunal of arbitration not only abuses the Law of the Sea Convention but is also politically motivated.17
On August 27, 2013, the Tribunal of Arbitration issued its first Procedural Order, establishing an initial timetable for the arbitration and adopting Rules of Procedure. In the first Procedural Order, the Tribunal of Arbitration formally adopted the Rules of Procedure and fixed March 30, 2014 as the date on which the Philippines should submit its Memorial. The Tribunal of Arbitration directs the Philippines to fully address all issues, including matters relating to the jurisdiction of the Tribunal of Arbitration, the admissibility of the Philippines’ claim, as well as the merits of the dispute.18
Apart from the legal conflicts between China and the Philippines, countries from outside the region also make China uncomfortable in dealing with the issues of the South China Sea. The United States and its diplomatic policy on rebalancing is especially the case, although the United States reiterates that China is not the target of such a policy. Nonetheless, according to a recent interview with
“Beijing rejects Manila move,” China.org.cn, April 27, 2013, <http://china.org. cn/world/2013-04/27/content_28674405.htm>.
Permanent Court of Arbitration, “Arbitration between the Republic of the Phi-lippines and the People’s Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable,” Permanent Court of Arbitration, August 27, 2013, <http://www.pca-cpa.org/showfile.asp?fil_id=2311>.
General Herbert “Hawk” Carlisle, chief of U.S. Air Force operations in the Pacific, by Foreign Policy, the idea behind the “rebalancing” is simple: ring China with U.S. and allied forces, just like the West did to the Soviet Union, back in the Cold War. In other words, the U.S. Air Force dispatching fighters and tankers to Darwin, Australia, on a rotational basis, sending jets to Changi East air base in Singapore, Korat air base in Thailand, a site in India, and possibly to bases at Kubi Point and Puerto Princesa in the Philippines and airfields in In-donesia and Malaysia would be the realization of its “rebalancing strategy” which would be a “containment” of China.19Such a statement
obviously would enhance China’s skepticism.
At the same time, senior ASEAN officials and the Chinese foreign minister met in Suzhou, China, on September 15, 2013, formally discussing the possibility of establishing a Code of Conduct (COC) for the South China Sea. According to the Chinese Ministry of Foreign Affairs, the meeting ended positively, with an agreement to seek “gradual progress and consensus through consultations,”20
although no deadlines or details about the joint working group that will carry out the task were made available. From the results of the meeting, it seems China might have agreed in principle to a COC, but it might be immature to make the adjustments necessary to draw up a functioning document with binding force, especially since China has a different opinion to the Philippines about initiating the tribunal
John Reed, “U.S. Deploying Jets Around Asia to Keep China Surrounded,”
Foreign Policy, July 29, 2013,
<http://killerapps.foreignpolicy.com/pos-ts/2013/07/29/us_deploying_jets_around_asia_to_keep_china_surrounded>. Ministry of Foreign Affairs, the People’s Republic of China, “Foreign Ministry Spokesperson Hong Lei’s Regular Press Conference on September 16, 2013,”
Ministry of Foreign Affairs, the People’s Republic of China, September 16,
of arbitration.
III. Cooperation as an Obligation
As mentioned earlier, the East and South China Seas are semi-enclosed. It is understandable that any change in the ecosystem of the semi-enclosed sea will have significant impact on the whole area. Taking the South China Sea for instance, it is generally recognized that the living resources in the area migrate from one EEZ to another, particularly highly migratory species, such as tuna and other shared stocks. Each country may already have its own assessment of its living resources in its EEZ, assuming that the definition and delineation of each EEZ is clear. The problem is that many of the EEZ boundaries are not well defined or mutually agreed upon by the relevant parties, not to mention the much more difficult issue of the sovereignty of the islands/islets. Likewise, there are various conflicting claims to islands that complicate and defer the determination of EEZ boundaries. For this reason, many experts and scholars are convinced of the need to cooperate on the assessment of the living resources in the South China Sea area without regard to jurisdictional boundaries. The basis for this endeavour would be Article 123 of the Convention on the Law of the Sea regarding enclosed and semi-enclosed seas. The Con-vention on the Law of the Sea has foreseen this problem, since Article 123 provides:21
States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organisation:
(a) to coordinate the management, conservation, explo-ration and exploitation of the living resources of the sea;
(b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;
(c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area;
(d) to invite, as appropriate, other interested states or in-ternational organisations to cooperate with them in furtherance of the provisions of this article.
Therefore, all parties concerned should be aware that fish are migratory and fishery resources are exhaustible, so that rational use of the South China Sea and the preservation of its marine environment are important to all parties. Moreover, cooperation among littoral states in the region is essential. In order to avoid overfishing or depletion of resources, conservation measures have to be taken. Such measures are not possible without regional cooperation and require close coordination among the parties concerned, especially in a semi-enclosed sea.
Indeed, a semi-enclosed sea could conceivably provide the catalyst to promote cooperation and coordination of the management of resources in the South China Sea. Under such circumstances, for all the littoral states to make the issue of boundary delimitation the first priority seems unwise. Rather, concentrating upon common in-terests will provide the essential motivation to resolve the conflicts rationally.
Fishery cooperation is the most feasible course of action for the littoral states since through cooperation, fishery resources could be properly conserved and managed such that economic waste and over-exploitation may be avoided.
Cooperation in the utilization of fishery resources is a feasible and practical way to start a regime of regional cooperation. It sidesteps the issue of sovereignty and focuses upon a common interest, namely the utilization of living resources. It also defers long-term negotiations with respect to delimitation of the continental shelf relating to the issue of hydrocarbon resources. Thus, as cooperative relationships are forged with regard to fishery resources, mutual confidence will be built up among the various parties and this may eventually contribute to successful cooperation with respect to hydrocarbon resources. Management of fishery resources is crucial in preventing over-exploitation or overfishing and may be a touchstone of the sincerity of the littoral states.
Without affecting jurisdictional boundaries as laid down in the
UNCLOS, it is certainly possible to have regional joint fishery
mana-gement in the South China Sea as a starting point for further co-operation. If all states in the region treat cooperation as a key step toward achieving mutual benefit, then the future for such a regional cooperation mechanism is assured.
IV. Taiwan’s Role in the Disputes
Taiwan is also a legitimate claimant to the islands of the East and South China Seas. However, due to problems with its international recognition, we need to ask what role Taiwan can play.
sta-bility, economic prosperity and the sustainable development of the marine environment, as well as seeking to find a path to coexistence and mutual prosperity, President Ma declared the East China Sea Peace
Initiative in August 2012 and called on all parties concerned to:22
‧
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.The main points of the Initiative are “shelving disputes, and working on joint development.” These ideas also conform to the “provisional arrangement” which is provided in the Law of the Sea Article 74(3) on EEZ delimitation and 83(3) on continental shelf de-limitation.23The text reads:
Pending agreement as provided for in paragraph 1, 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. Such arrangements shall be without prejudice to the final delimitation.
The Republic of China (Taiwan), “East China Sea Peace Initiative,” Ministry of Foreign Affairs, the Republic of China (Taiwan), August 5, 2012, <http:// www.mofa.gov.tw/EnOfficial/Topics/TopicsIndex/?opno=cc7f748f-f55f-4eeb -91b4-cf4a28bbb86f>.
For the best result in resolving delimitation disputes, states in dispute should take the following actions:
1. Initiate negotiations in good faith: Under Articles 74(3) and 83 (3), “the states concerned, in a spirit of understanding and coop-eration, shall make every effort to enter into provisional arrange-ments of a practical nature.” The phrase, “in a spirit of understanding and co- operation,” indicates that the parties concerned should ne-gotiate in a spirit of good faith (or bona fide). The obligation to seek agreement in good faith has been defined in many well-es-tablished precedents of international law.24
2. Self-restraint: Even if the parties fail to reach a final agreement, they still have to restrain themselves from taking any action that would cause the dispute to deteriorate. That is to say, mutual restraint should be exercised pending final agreement or settlement in order not to impede the completion of the final delimitation. Only under such a presumption can the arrangement correspond to the spirit of the provision, “not to jeopardize or hamper the re-aching of the final agreement.”
In addition, two aspects of the provisional arrangements should not be overlooked:
For example, in the 1969 North Sea Continental Shelf Cases, the International Court of Justice stated, “[T]he parties are under an obligation to enter into ne-gotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful.” International Court of Justice, North Sea Continental Shelf Cases
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Neth-erlands), Judgment of 20 February 1969, para. 85(a).
1. Transitional nature: In the interests of international peace, the states concerned shall enter into provisional arrangements so as not to jeopardize or hamper the reaching of the final delimitation. 2. Practical nature: Because the provisional arrangement is of a practical nature, it focuses on practical issues, i.e. utilization of resources, and puts the maritime boundary/jurisdiction delimitation and sovereignty issues aside.
The East China Sea Peace Initiative would be meaningful in the present tense situation because, on the one hand, “promoting joint development” might be a better way to ease the disputes. On the other hand, it is also important to observe the role that Taiwan could and might play, since Taiwan is in a leverage position. The practice of the Taiwan-Japan Fishery Agreement of April 10, 2013 would be a good example of the East China Sea Peace Initiative.
The background for finalizing the Agreement is mixed with poli-tical as well as legal considerations. One the one hand, Japan wants to protect its strategic interests in the East China Sea; it was trying to prevent Taiwan from cooperating with China while the conflict between Japan and China remained intense. On the other, the influence from the United States is also explicit. Both Japan and Taiwan are important to the United States in guarding its “rebalancing strategy.” The fisheries issue is minor compared to other security and strategic issues. The United States is favorable to the conclusion of an Agree-ment. Furthermore, the Taiwan-Japan Fishery Agreement also means a significant development in relations for both Japan and Taiwan.
Without considering political concerns, there are some legal points which are also noteworthy if the Agreement is to be reviewed thoroughly.
1. A wider “Agreement Application Zone” is designated for fi-shermen from both sides who may conduct fishing operations without being disturbed by the other side. In other words, this Zone is a joint fishery zone which could accommodate fishery activities from both Taiwan and Japan.
2. Due to heavy fishery activities by Taiwanese and Japanese fishermen and for the purposes of regulating the operation of fisheries, a “Special Cooperation Zone,” located in the south-east corner of the aforementioned “Agreement Application Zone,” has been desig-nated and is a matter for further discussion by the Taiwan-Japan Fishery Committee. This Committee was set up on May 7, 2013. 3. There is no accord in the Agreement regarding the area of 12 nautical miles surrounding the Diaoyutai Islands. This is a result of shelving the sovereignty disputes and will be subject to future discussion. However, this might be the most controversial point causing a lot of discussion and discontent.
The Agreement is a good start for sustaining peace in the East China Sea. It focuses on the fisheries issue and puts aside the so-vereignty or delimitation issues, which is a praiseworthy move made by both Taiwan and Japan. It is also a putting into practice of the “provisional arrangement” stipulated in the Convention on the Law of the Sea. Nonetheless, there are still a lot of matters to discuss and to be developped between the parties concerned. The Agreement relies upon the functioning of the Taiwan-Japan Fishery Committee and good practice from both sides.
On May 9, 2013, a Taiwanese fishing boat, Guang Da Xing No. 28 (GDX 28), was fired on by officers on board a Philippines Bureau of Fisheries and Aquatic Resources (BFAR) vessel and one crew
member was killed. The location of the incident was in the overlapping waters claimed by both Taiwan and the Philippines. After the shooting, the Philippine government vessel sailed away without offering any assistance to the fishing vessel, which was seriously damaged. This action was in violation of international law.
According to Article 73(1) of the UNCLOS, “the coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.” The Philippines has the right to exercise boarding, inspection, and arrest and initiate judicial proceedings. However, these actions should be done according to due process of law, not by the use of force against unarmed fishermen. The Philippines signed the UNCLOS on December 10, 1982 and ratified it on May 8, 1984. “Pacta sunt
servanda”25 is an obligation for the Philippines, especially when
“pacta sunt servanda” and the UNCLOS have become part of customary international law.
Taiwan requested the Philippine government to express a formal apology, give financial compensation to the victim’s family, punish the perpetrators, and initiate bilateral negotiations on fishery matters.26 However, from the very beginning, the Philippines not
only disregarded Taiwan’s resentment, but also mentioned the unrelated “One China Policy” which further infuriated Taiwan.
“Pacta sunt servanda” means “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Please refer to Vienna
In order to push the Philippine government to seriously face up to the incident, the Taiwanese government imposed the following sanctions in protest: suspending the processing of applications by Filipinos to work in Taiwan; recalling the ROC’s representative in Manila; and requesting the Philippine representative in Taiwan to return to his home country. In addition, other sanctions especially of an economic nature were also appended, such as discouraging Tai-wanese from traveling to the Philippines for tourism or business pur-poses; suspending agricultural and fishery cooperation with the Phi-lippines; suspending bilateral exchange and cooperation in scientific and technological research projects, and suspending negotiations on aviation rights. Moreover, joint exercises by Taiwan’s Ministry of National Defense and Coast Guard Administration in waters south of Taiwan were held.
Owing to moral, as well as economic, pressure, the first preparatory meeting on fisheries cooperation between the two sides was held on June 14, 2013 in Manila and ended with the signing of a summary conclusion. In the conclusion, the two sides guaranteed that they would:27
Ministry of Foreign Affairs, the Republic of China (Taiwan), “The Republic of China requests the Republic of the Philippines to respond to four demands within 72 hours of midnight on May 11,” Ministry of Foreign Affairs, the
Republic of China (Taiwan), May 14, 2013, <http://www.mofa.gov.tw/EnOfficial/
ArticleDetail/DetailDefault/dfedc4ac-8737-4bf7-b167-01db122d5647?arfid= 7b3b4d7a-8ee7-43a9-97f8-7f3d313ad781&opno=84ba3639-be42-4966-b873-78a267de8cf1>.
Ministry of Foreign Affairs, the Republic of China (Taiwan), “Background In-formation No. 071,” Ministry of Foreign Affairs, the Republic of China (Taiwan), June 18, 2013, <http://www.mofa.gov.tw/EnOfficial/Topics/TopicsDetail/ e9c4dba2-6bd6-48f0-91d0-94adc92b6e2f?TopicsUnitLinkId=3f6abead-825c-4419-86c9-0d44218a395e>.
‧
refrain from the use of force or violence in law enforcement actions to prevent incidents such as the Guang Da Xing No. 28 shooting incident from happening again;28‧
share their basic maritime law enforcement procedures in order to establish a maritime law enforcement security mechanism;‧
establish a mechanism for one side to notify the other whenever hot pursuit, boarding, inspection, arrest, detention, or related admi-nistrative or judicial procedures are carried out against fishing boats and crews of the other side;29 and‧
set up a mechanism for the prompt release of detained fishing vessels and their crews following an arrest.30With its more comprehensive view, this conclusion meets the requirements provided in the UNCLOS as well as a prototype code of conduct in dealing with fishery disputes between Taiwan and the Philippines.
This is in conformity with Article 73(3) of the UNCLOS, which reads: “Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, ..., or any other form of corporal punishment.” Please refer to United Nations Convention on the Law of the Sea, Article 73(3).
This is in conformity with Article 73(4) of the UNCLOS, which reads: “In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.” Please refer to United Nations Convention
on the Law of the Sea, Article 73(4).
This is in conformity with the UNCLOS, Article 73(2), which reads: “Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.” Please refer to United Nations Convention on the Law
In early August 2013, the Philippine side positively responded to Taiwan about the shooting incident, making an official apology and granting compensation. Both sides agreed to review maritime law and enforcement procedures so as to put into practice the consensus reached during the meeting. Both sides also agreed to continue ne-gotiating on issues such as conserving fishery resources and managing fishing operations.31 Such progress on mending relations between
the two sides is a good step to prevent similar incidents from recurring. Responding to the Philippines’ goodwill, the ROC government declared that all sanctions imposed against the Philippines were to be lifted on August 8, 2013.32
V. Remarks
It is not easy to make peace, least of all in the East and South China Seas. States surrounding the area always pay too much attention to the issue of sovereignty over the islands/islets, thus expanding their maritime areas, as well as exploring resources. They seem to forget nothing will be secured if peace is not maintained.
The next step would be whether the ideas behind the East China
Sea Peace Initiative and the practice of the Taiwan-Japan Fishery Agreement could be carried over into other areas in the South China
Sea, especially the possibility of applying the experience learned to
Ministry of Foreign Affairs, the Republic of China (Taiwan), “Background In-formation No. 202,” Ministry of Foreign Affairs, the Republic of China (Taiwan), August 8, 2013, <http://www.mofa.gov.tw/EnOfficial/ArticleDetail/DetailDefault/ eb8081fd-8616-4263-8b96-f443c63b3294?arfid=7b3b4d7a-8ee7-43a9- 97f8-7f3d313ad781&opno=84ba3639-be42-4966-b873-78a267de8cf1>.
Ministry of Foreign Affairs, the Republic of China (Taiwan), “Background In-formation No. 202.”
future cooperation between Taiwan and the Philippines. There are more players in the South China Sea disputes, and so it will take time and patience to build up a cooperation mechanism. However, the possibility and feasibility are there.
References
Official DocumentsInternational Court of Justice, North Sea Continental Shelf Cases
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, para.
85(a).
Japan, 1997. Law on the Exclusive Economic Zone and the Continental
Shelf (Law No. 74 of 1996), Article 1(2), Law of the Sea Bulletin,
No. 35, p. 94.
United Nations Convention on the Law of the Sea, Article 7(3), 8(2),
10(4), 73(2), 73(3), 73(4), 74(3), 83(3), 122, 123.
Vienna Convention on the Law of Treaties, Article 26.
Online Resources
2012/9/8. “Japan sets date for nationalization of Diaoyutai Islands,”
Taipei Times,
<http://www.taipeitimes.com/News/front/ar-chives/2012/09/08/2003542235>.
2012/9/11. “China sends warships after Japan announces purchase of disputed Senkaku islands,” The Free Library, <http://www. thefreelibrary.com/China+sends+warships+after+Japan+anno-unces+purchase+of+disputed...-a0302131685>.
2012/9/11. “China’s statement over Diaoyu Islands,” ChinaDaily, <http://usa.chinadaily.com.cn/china/2012-09/11/content_15748 632.htm>.
2012/9/16. “China to submit outer limits of continental shelf in East China Sea to UN,” English.news.cn (Xinhua), <http://news. xinhuanet.com/english/china/2012-09/16/c_131853714.htm>. 2013/4/17. “Beijing rejects Manila move,” China.org.cn, <http://
china.org.cn/world/2013-04/27/content_28674405.htm>. 2013/9/10. “Japan spots Chinese UAV near disputed South China
Sea islands: Media,” Russian Radio, <http://indian.ruvr.ru/ news/2013_09_10/Japan-spots-Chinese-UAV-near-disputed-South-China-Sea-islands-Media-4850/>.
2013/9/30 (accessed). “South China Sea Oil Shipping Lanes,”
Glo-balSecurity.org, <http://www.globalsecurity.org/military/world/
war/spratly-ship.htm>.
Department of Foreign Affairs, Republic of the Philippines, 2013/1/22. “SFA Statement on the UNCLOS Arbitral Proceedings against China,” (Notification and Statement of Claim, No. 13-0211),
De-partment of Foreign Affairs, Republic of the Philippines, <https://
www.dfa.gov.ph/index.php/2013-06-27-21-50-36/unclos/216-sfa-statement-on-the-unclos-arbitral-proceedings-against-china>. Japan, 2012/12/28. “Permanent Mission of Japan to the United Nations,
New York,” United Nations, <http://www.un.org/Depts/los/clcs_ new/submissions_files/chn63_12/jpn_re_chn_28_12_2012.pdf>. Khemakorn, Pakjuta, 2006/11. “Sustainable Management of Pelagic Fi-sheries in the South China Sea Region,” United Nations, <http:// www.un.org/depts/los/nippon/unnff_programme_home/fellows_ pages/fellows_papers/khemakorn_0607_thailand.pdf>.
Ministry of Foreign Affairs, the People’s Republic of China, 2013/9/16. “Foreign Ministry Spokesperson Hong Lei’s Regular Press Con-ference on September 16, 2013,” Ministry of Foreign Affairs,
the People’s Republic of China, <http://www.fmprc.gov.cn/eng/
xwfw/s2510/t1077263.shtml>.
Ministry of Foreign Affairs, the Republic of China (Taiwan), 2013/5/14. “The Republic of China requests the Republic of the Philippines to respond to four demands within 72 hours of midnight on May 11,” Ministry of Foreign Affairs, the Republic of China (Taiwan), <http://www.mofa.gov.tw/EnOfficial/ArticleDetail/DetailDefault/ dfedc4ac-8737-4bf7-b167-01db122d5647?arfid=7b3b4d7a-8ee7-43a9-97f8-7f3d313ad781&opno=84ba3639-be42-4966-b873-78a 267de8cf1>.
Ministry of Foreign Affairs, the Republic of China (Taiwan), 2013/6/18. “Background Information No. 071,” Ministry of Foreign Affairs,
the Republic of China (Taiwan),
<http://www.mofa.gov.tw/En- Official/Topics/TopicsDetail/e9c4dba2-6bd6-48f0-91d0-94adc92b6e2f?TopicsUnitLinkId=3f6abead-825c-4419-86c9-0d4 4218a395e>.
Ministry of Foreign Affairs, the Republic of China (Taiwan), 2013/8/8. “Background Information No. 202,” Ministry of Foreign Affairs,
the Republic of China (Taiwan),
<http://www.mofa.gov.tw/En- Official/ArticleDetail/DetailDefault/eb8081fd-8616-4263-8b96-f443c63b3294?arfid=7b3b4d7a-8ee7-43a9-97f8-7f3d313ad781& opno=84ba3639-be42-4966-b873-78a267de8cf1>.
The People’s Republic of China, 2012/12/14. “Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea,” United Nations, <http://www.un.org/Depts/los/clcs_ new/submissions_files/chn63_12/executive%20summary_EN. pdf>.
The People’s Republiz of China, 2013/9/30 (accessed). “Law on the Territorial Sea and the Contiguous Zone of 25 February 1992,”
United Nations,
<http://www.un.org/Depts/los/LEGISLAT-IONANDTREATIES/PDFFILES/CHN_1992_Law.pdf>. Permanent Court of Arbitration, 2013/8/27. “Arbitration between the
Republic of the Philippines and the People’s Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable,” Permanent Court of Arbitration, <http://www.pca-cpa.org/showfile.asp?fil_id=2311>.
Reed, John, 2013/7/29. “U.S. Deploying Jets Around Asia to Keep China Surrounded,” Foreign Policy, <http://killerapps.foreignpol-icy.com/posts/2013/07/29/us_deploying_jets_around_asia_to_ keep_china_surrounded>.
Initiative,” Ministry of Foreign Affairs, the Republic of China
(Taiwan),
<http://www.mofa.gov.tw/EnOfficial/Topics/TopicsIn-dex/?opno=cc7f748f-f55f-4eeb-91b4-cf4a28bbb86f>.
United Nations, 2012/9/21. “MZN (maritime zone notifications) re-leased on 21/09/2012,” United Nations, <http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/ mzn89ef.pdf>.
U.S. Energy Information Administration, 2012/9/25. “East China Sea,” U.S. Energy Information Administration, <http://www.eia. gov/countries/analysisbriefs/east_china_sea/east_china_sea.pdf>. U.S. Energy Information Administration, 2013/2/7. “South China Sea,” U.S. Energy Information Administration, <http://www.eia. gov/countries/analysisbriefs/South_China_Sea/south_china_sea. pdf>.
