Author: Peter Drysdale, Editor, East Asia Forum
Almost anyone, looking from the outside on the excitement about the various territorial disputes in the East China and South China Seas, is inclined to wonder what all the fuss is about: an inclination no doubt that is deeply offensive to almost all the protagonists involved.
This attitude-from-a-distance is more than a natural wish for the problem to go away because it threatens stability and prosperity in an increasingly important part of the world. It derives deep down from the sense that the protagonist states are behaving badly over what looks on the surface to be relatively trivial property claims, a rock or two here, small largely uninhabited islands there. Sure there are more substantial maritime rights around the territory in dispute, but there are practised modes in which such interests could be negotiated in a civilised way with the help of the law of the sea. The position of major outside parties, for example the United States, on these disputes is that they do not have a position on the validity of these claims but that they should be properly based on law, especially UNCLOS, and that any claims made must be on the basis of land features.
The dispute over the Senkaku/Diaoyu islands between Japan and China has not prevented exploitation of the fisheries resources among the parties under a long-standing Japan–China fisheries agreement, a mature approach to getting on with business around inability to resolve the long-standing territorial claims. Indeed, for much of the period after normalisation of relations between China and Japan, principles-based arrangements have governed the areas of fisheries, marine scientific research and joint development of oil and gas resources.
While neither party has a water-tight case to sovereignty over these islands, as Sourabh Gupta has argued, Japan can confidently assert, writes Gupta, that, ‘in displaying peaceful and continuous exercise of jurisdiction, it has assiduously protected its claim of evidence of title. And it may be reasonably confident that no international court will have the gumption to strip a sovereign of (disputed) territory that it has administered from a point of time that predates the court’s establishment itself. Set against this argument is the historically fraudulent basis of Tokyo’s incorporation of the islands as ‘unclaimed territory’ despite clear knowledge to the contrary, as well as the illegal basis of its formalisation, which was done in secrecy and without public notice. An international court may well hold that an incorporation conducted in the de facto shadow of imperial war victory was exactly that, de jure. That no international case law precedent exists with regard to a territorial dispute between a state and its erstwhile imperial master adds to the unpredictability of the verdict’. China’s inability to press, and thereby protect, its claim during the crucial early-1950s to late-1960s period may from this perspective seen as a serious neglect.
In this week’s lead essay, Donald Rothwell takes a painstaking look at what the application of the law of the sea through the International Court of Justice might suggest in respect of the impact of these territorial claims, generally but more particularly in respect of the South China Sea.
Rothwell points out that ‘The decision handed down by the International Court of Justice on 19 November 2012 in the Nicaragua v Colombia case has several implications for the South China Sea disputes, particularly with respect to the status of the disputed maritime features under the 1982 UN Convention on the Law of the Sea (LOSC)’. The Court looked at a range of issues that not only bear similarities to important aspects of the South China Sea disputes but also set a precedent for interpretation of the relevant international law.
Rothwell’s key conclusion is that, in the context of the South China Sea, the Nicaragua v Colombia decision would certainly suggest that, even if territorial sovereignty was conclusively settled over disputed islands and associated maritime features, the likelihood that sovereignty over these features would confer vast maritime claims upon the successful party or parties would be compromised. This is either because these features are not Article 121(1) islands, or because they would have a distorting impact upon the maritime boundaries based upon competing maritime claims from continental or island land masses whose status is not in dispute.
This would appear a vitally important conclusion. Certainly there is little reassurance in Rothwell’s analysis that any of the parties might confidently expect to win extensive claims over resources or other rights through a successful claim of sovereignty over these territories. Rothwell’s assessment is reinforced, it seems, if read in conjunction with the Bangladesh v Myanmar verdict handed down in 2012 by the International Tribunal for the Law of the Sea where a natural, self-sustaining island with 7,000 inhabitants (a real island not a collection of rocks) was not deemed capable of generating its own Extended Economic Zone (EEZ) (because it blocked the sea-ward projection from coastline of the other state’s EEZ entitlement). The Nicaragua v Colombia verdict is further testament to the ongoing development of the thrust of oceanic law in favour of commerce and economic interests, and to the relative disfavour of narrower attributes based on sovereignty.
Hence, the precedents in the law would suggest that the common sense view of these disputes from a distance might have much to recommend it. Far better that the claimant parties work towards the negotiation of practical and cooperative arrangements for joint exploitation of common resources and rights than place much store in what they might acquire through narrow claims of sovereignty.
Peter Drysdale is Editor of the East Asia Forum.