Mount Fuji

Japan's hard line: never give an inch to China 

by GREGORY CLARK

(This article, which first appeared in the Japan Times of May 8th, 2006, is
reproduced here in Japan Perspectives by kind permission of the author.)

Tokyo's propensity for getting into territorial and maritime boundary disputes with its neighbors seems large. And if the disputes with China escalate any further, they could make the recent confrontation with South Korea over the Takeshima islets (Dokdo in Korean) look tame.

Tokyo insists that the median or equidistance line between the Ryukyu Islands (Okinawa) and the Chinese mainland is the boundary of its exclusive economic zone (EEZ) in the East China Sea. But Beijing says the continental shelf should be the basis for deciding the EEZ boundary. This shelf extends all the way to the Okinawa Trough, or well within the EEZ claimed by Japan. As a compromise Beijing calls for joint undersea development in the disputed area, until rival boundary claims have been settled.

However, Tokyo claims sole right to develop potential oil and gas reserves within its claimed EEZ. It objects even to a Chinese gas development on the Chinese side of that claimed EEZ, on the grounds that gas could be leaking from Japan's claimed EEZ area. Gunboats are threatened when it senses any challenge to its claimed rights.

Tokyo insists that the 1982 U.N. Law of the Sea Convention (UNCLOS), which created the 200 nautical-mile EEZ concept, supports its position. But UNCLOS simply says that international law should be the basis for deciding conflicting EEZ claims, and international law has yet to give a clear verdict. In the past it endorsed the continental-shelf approach. But recently it has begun to favor the median- or equidistance-line approach. However, it also goes on to say that any equidistance approach should also be "equitable" to both sides.

One example of equity was the recent Libya/Malta maritime boundary agreement where Libya was favored because of its greater landmass. In this, as in several other similar cases, the International Court of Justice has ruled that "the equidistance line is not mandatory or binding" — that the "proportionality of coastlines" is also a factor. Given its large coastline facing the East China Sea, this ruling would seem to favor China.

The recent Australia-East Timor maritime boundary agreement also suggests the equidistance rule is not as rigid as Tokyo claims. The continental shelf was the basis for the original Australian-Indonesian boundary agreement reached back in 1972. It favored Australia greatly since the Timor Trough, which defines the shelf, runs close to the Indonesian/Timor coastline. But when extensive oil and gas reserves were found on the shelf and East Timor became independent, there were demands that the equidistance approach should have been used.

Canberra refused. But, as a concession, it has now agreed to revenue sharing from some oil and gas reserves between the equidistance line and the original continental shelf line — a position very similar to what China proposes today in the East China Sea.

An even stronger precedent was created by Tokyo itself in its 1974 maritime border agreement with South Korea. Both sides used to have rival equidistance and continental shelf claims for their maritime border south of Cheju island, with Seoul's continental shelf claim extending close to Japanese territory. Then in 1974 both sides agreed to disagree, and to decide the matter some time in the future — the year 2028 was mentioned. In the meantime they agreed to joint development in the area between the two claimed lines, just as China has sought in the East China Sea.

That 1974 agreement was confirmed as late as August 2002, with an agreement for an oil co-exploration project on the continental shelf between the two nations. This was in accord with the 1982 UNCLOS, which says specifically that in cases of disagreement "the States concerned shall make every effort to enter into provisional arrangements of a practical nature." Tokyo's hardline approach today toward China would seem to contradict that principle.

Ironically, as late as 1994, Tokyo agreed to joint fisheries exploitation with China and South Korea in the East China Sea pending what it then agreed was the need for final EEZ delimitations. But today it insists that the Japan-China EEZ boundary has indeed been delimited — not by negotiation but by unilateral fiat.

Tokyo takes an equally hard line in its Senkaku Islands dispute with Beijing — a dispute in which both Beijing's and Taiwan's claims are not without validity. They would have even more validity under Beijing's continental shelf approach.

In its insistence that it is entitled to a 200 nautical-mile EEZ in every direction from a minuscule and remote Pacific rock it calls Okinotori Island, Tokyo's EEZ preoccupation gets out of control. Apart from anything else, it flies in the face of Article 121 (3) of UNCLOS, which states clearly that small rocks and even uninhabited islands cannot have an EEZ.

Part of the problem is the ease with which Japan's positions harden when disputes are subjected to publicity. For a while there were signs that Foreign Ministry moderates were willing to go along with Beijing's 1970s' suggestion that the Senkaku Islands ownership dispute be shelved for the next generation to solve. Okinotori barely existed in the minds of Japan's planners.

But Japan's right-wingers, led by the ultra-hardline Tokyo governor, Shintaro Ishihara, have put an end to all that. Now every claim has to be pressed to the maximum, or else.

[Editor: It was Shintaro Ishihara's decision to broker a deal to nationalize the Senkaku Islands in 2012 which precipitated the current showdown with China. The cost to Japanese taxpayers of this transfer from private to public ownership will be dwarfed by the cost to the Japanese economy of lost China trade.]

As we have seen in the commentary following the Takeshima confrontation, Japanese public opinion seems unable to comprehend that there can be two sides to a dispute, especially when territory is involved. The media and the commentators take it for granted that Japan's claims are totally correct and the other side is being quite unreasonable. Even the supposedly impartial NHK forgets to use the word "claimed" when it reports these disputes. The potential for more ugly confrontations continues.

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Japanese government press release

On August 20, 2006, in response to this and similar recent debate articles, Deputy Press Secretary Tomohiko Taniguchi at the Foreign Ministry in Tokyo released the following statement outlining Japan's official stance:

"Regarding recent media reports on the competing territorial claims in the East China Sea, Japan and China have already held negotiations six times. Both countries share a common recognition that the East China Sea should become a 'sea of cooperation.' As a result, Japan has been making every effort to solve this problem expeditiously and peacefully through dialogue, even though China has neither agreed to suspend its development of natural resources in the area of question nor provided any relevant information in response to Japan's consistent demands.

"China's position on the delimitation of the continental shelf is based on the so-called natural prolongation theory, which, according to China, allows its shelf to extend to the Okinawa Trough, well beyond 200 nautical miles from the coast of China.

"On the other hand, Japan realizes that delimitation of the East China Sea should be established on the basis of an equidistant (median) line drawn between the coasts of Japan and China. Articles 74.1 and 83.1 of the United Nations Convention on the Law of the Sea (UNCLOS) provide that delimitation between states shall be effected by agreement on the basis of international law to achieve an equitable solution. An important point in the June 3, 1985, 'Case Concerning the Continental Shelf' (Libyan Arab Jamahiriya/Malta) before the International Court of Justice is that geological or geophysical factors were rendered irrelevant in determining legal title or delimitation in an area where the distance between coasts is less than 400 nautical miles — as it is between Japan and China. It also shows that delimitation by a median line achieves 'an equitable solution' within UNCLOS.

"Other, more recent judgments by international courts also support the idea of drawing a median line in the first place to achieve an equitable solution. Therefore, it can be safely said that the legitimacy of Japan's position has been demonstrated."

Editor's note: Gregory Clark is vice president of Akita International University. My thanks to the author for kindly allowing me to reproduce his analysis of Japan's territorial disputes with China here in Japan Perspectives.