China and Japan: The Senkaku/Diaoyu Islands under international law

On October 14, 2012, Japan, amidst the tense territorial dispute with China, marked the 60th birthday of its navy with a major naval exercise to show its maritime strength. The dispute is over a small chain of uninhabited islands in the East China Sea, which is in the middle of rich fishing grounds and contains vast reserves of natural gas. Known the Senkaku Islands in Japan and the Diaoyu Islands in China, the two countries are locked in a bitter battle of words, economic might and demonstration of military strength.

So who actually has a legitimate claim over the islands? China cites historical precedent over its claim over the islands. According to Chinese sources, indisputable records show that the islands belonged to China since ancient times with it showing up on Chinese maps as early as the Ming Dynasty. Chinese people have used the waters as a source for Chinese herbal medicine and Chinese fishermen have fished in the surrounding waters. China’s UN ambassador argued that Japan “stole” the Diaoyu Islands after the Sino-Japanese War (1894-1895). Since they were an intrinsic part of Chinese territory, they should have been returned to China after World War II. He went further to argue that the purchase of the islands from its private Japanese owner earlier this year was a move to legalize stealing and the occupation of sovereign Chinese territory.

Japan claims that since 1885, Japan has surveyed the Senkaku Islands and determined that the islands were indeed uninhabited and clearly not under the influence of China. Therefore, Japan formally incorporated the islands into Japanese territory by erecting a territorial marker on the islands. Since then, the Senkaku Islands remained an integral part of Japanese territory as part of the Nansei Shoto Islands. Japan argues that since the Senkaku Islands were not under Chinese control, they were not “seized” during the Sino Japanese War. This means that they were exempt from the Cairo and Potsdam Declarations that required Japan to return all territories  that it has seized from China. In addition, China did not raise any objection to the Islands being part of Japan until 1971, following a 1969 UN Report of large oil and gas deposits surrounding the islands. Last of all, Japan argues that it exercises complete sovereignty over the Senkaku Islands. The Japanese government built a weather station, a heliport and regularly patrol the surrounding waters.

Who has a stronger claim under international law? If this were referred to a legal body, Japan’s argument would be more convincing. Japan controls the islands, administers them and demonstrated sovereignty over them. China on the other hand, though might have exercised sovereignty over them during the Ming Dynasty over 400 years ago, there is no concrete evidence that they did exercise sovereignty over them after the collapse of the Ming Dynasty in the 17th century. Last of all, China did not formally protest Japan’s claim over the islands after the end of the Sino Japanese War. So, under international law, this would mean that China in fact did accepted Japan’s sovereignty over the islands. Thus, customary international law favours Japan.

This isn’t the end of the issue.  International legal frameworks complicates the issue even more. The main convention that would apply is the United Nations Convention on the Law of the Sea (UNCLOS). It states that a coastal state can claim authority over their continental shelves beyond  their 200 nautical miles Exclusive Economic Zone (EEZ), up to a maximum of 350 nautical miles. The coastal state has exclusive right over the minerals and non living organisms on the seabed as well as living organisms physically attached to the seabed.

UNCLOS is very hard to enforce. It is very vague on how to resolve overlapping EEZs or continental shelves. The East China Sea is 360 nautical miles across at its widest point. In the case of the Senkaku/Diaoyu Islands, it falls in the EEZ and continental shelf of both China and Japan. If customary international law favors Japan, China can use UNCLOS to justify their claims. The Senkaku/Diaoyu Islands are extremely important in determining the maritime boundaries of China and Japan as well as to the rich resources they are entitled to.

International law is very vague and only favours Japan on a mere technicality. Both countries feel strongly about the issue and relations between them have deteriorated in recent months. If this continues, the economies of both Japan and China will be affected as well as turn the region into a tinderbox.



Categories: Politics & Law

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16 replies

  1. Reblogged this on OyiaBrown.

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Trackbacks

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