The Law All at Sea

BRONWEN EWENS
Volume 2, Issue 7 (Originally Published 3 September 2012)
 
Eight uninhabited islands and rocks, whose total area is just seven square kilometres, made international headlines in August when a boatload of activists swam ashore in defiance of the coastguard’s orders. The mini-invasion triggered protests and angry words in China and Japan.
The archipelago, known as the Senkaku islands in Japan and the Diaoyu islands in China, lies northeast of Taiwan, east of the Chinese mainland and southwest of Japan's southern-most prefecture, Okinawa.

Just as importantly, they are close to strategically important shipping lanes, offer rich fishing grounds and are thought to contain oil deposits.  If control of the islands changed, it would create a new sea border between Japan and China.

The islands are currently Japanese territory, as Japan did not include them among the territories and islands to which it renounced its claims in the post-World War II Treaty of San Francisco.

Beijing began asserting its claim to the islands in 1971, two years after a U.N. study showed a potential for oil in the area. It alleges that when Taiwan was returned to it by Japan in the Treaty of San Francisco, the islands - as part of Taiwan - should also have been returned.

The drama throws an unaccustomed spotlight onto the specialised field of maritime disputes. Since 1982, sovereignty over coastal waters has been guided by the United Nations Convention on the Law of the Sea (UNCLOS), also known as the Law of the Sea Treaty. The 162 states parties can claim a ‘territorial sea’ up to 12 nautical miles (22km) from their shoreline, inside which they can set laws but not interfere with international shipping. Of the major powers, only the United States has not signed UNCLOS.

Relevantly for the Sino-Japanese dispute, there is a 200-mile ‘exclusive economic zone’ (EEZ) beyond the ‘territorial seas’, where coastal countries have the sole rights to resources. When two EEZs collide, UNCLOS calls for an equidistant line between the coasts, splitting the shared gulf or strait down the middle. The theory sounds simple, but the practice is complicated: islands, rocks, historic sovereignty and natural resources can bend the line.

Three main courts rule on maritime boundaries—the International Court of Justice (ICJ), the Permanent Court of Arbitration and the International Tribunal for the Law of the Sea. Only the ICJ can enforce its decisions and the parties have to agree to be bound in advance, which Japan refuses to do with regard to the Senkaku / Diaoyu islands.

East Asia is the locus of many island disputes, driven in large part by an emboldened China.  Indeed, as The Economist points out, more than half the world’s sea borders remain undrawn. But rather than invasions, protests or wars, the ambiguities usually result in ‘highly paid lawyers debating old maps, analysing treaties and thrashing out deals’.
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Bronwen Ewens