Kul 7-8: Senkaku/Diaoyutai

1. Kul 7-8: Senkaku/Diaoyutai Dispute between Japan and China. Lies between Taiwan and Okinawa. Each claims that these islands fall under their respective sovereign jurisdiction. China calls the disputed islands Diayou-tai and Japan calls them Senkaku Shoto. Consist of only 5 small volcanic islands and 3 rocky outcroppings with a total landmass of no more than 7 square kilometers or 3 square miles.‘ The islands are uninhabited, are incapable of supporting human habitation for an extended period of time and are unlikely to support any economic life of their own from indigenous resource.

5. Historical Background • China The basis of China’s claim is mainly historical. • Japan Japan claims that it incorporated the islands as terra nullius (vacant territory) in January 1895. • Please refer to the article distributed to get a clear understanding on the issue. You can get other articles published in the international journals)

6. Chronology 1978-2012 1978: Japan Youth Association set up a lighthouse on the main island. July 14, 1996: Japan Youth Association builds a 5-m high, solar-powered, aluminum lighthouse on another island. September 14, 1996: US State Department spokesman referred to the US's neutral position on the Senkaku Islands issue. September 26, 1996: David Chan, a Hong Kong protester, drowns near the islets, after leaping off one of the protest vessels with several companions with the object of symbolizing Chinese claim of sovereignty. October 7, 1996: Protesters plant the flags of the ROC and the PRC on the main island, but are later removed by Japanese authorities. April 9, 1999: US Ambassador to Japan Thomas S. Foley said "we are not, as far as I understand, taking a specific position in the dispute.... we do not assume that there will be any reason to engage the security treaty in any immediate sense."

7. Chronology 1978-2012 April 2002: Japanese government leased Uotsuri and other islands from the purported private owners. March 24, 2004: A group of Chinese activists from the PRC planned to stay on the Islands for three days. 7 people who landed on the islands were arrested by Japanese authorities for illegal entry. MOFA Japan forwarded a complaint to the PRC government, but the PRC in turn demanded the release of the activists. They were then sent to Japan and deported from there. Japan subsequently stated that it would prohibit anybody from landing on the islands without prior permission.

8. March 24, 2004: Adam Ereli, from the US State Department said "The U.S. does not take a position on the question of the ultimate sovereignty of the Senkaku Diaoyu Islands." February 2005: Japan planned to take ownership of a privately-owned lighthouse on Uotsuri, after it was offered to them by the owner, a fisherman living on Ishigaki, Okinawa. The lighthouse is expected to be managed by the Japanese Coast Guard. February 10, 2005: U.S. Undersecretary of State John Bolton said that Japan's new assertiveness is in line with the desires of many Japanese politicians to take their country beyond its post-World War Two reliance on the United States. "It's a question of the evolution of Japanese thinking on its own. Japan has made it clear they want to resolve all of the territorial disputes by diplomatic means and that's certainly something that we agree with. Our kind of getting in the middle of it is probably not the most productive way to proceed.

9. June 2005: The ROC dispatched a ROCN frigate into disputed waters (but did not go as far as the islands) after Taiwanese fishing vessels were harassed by Japanese patrol boats. The frigate, which was carrying Legislative Yuan President Wang Jin-pyng and ROC Defense Minister Lee Jye, was not challenged and returned to Taiwan without incident. Fisheries talks between Taipei and Tokyo were held in July, but did not cover sovereignty issues. March 17, 2006: Kyodo News reported the U.S. Ambassador to Japan, Thomas Schieffer, presented that he considered "the Islands as territory of Japan" in his talk in Tokyo. 26 September 2006 election of Shinzo Abe to the post of Japanese Prime Minister suggested a turn for the better in Sino-Japanese relations. Soon after, he was invited by Chinese Premier Wen Jibao for an official visit and China's state media lauded the meeting as a "turning point." Another meeting is scheduled for Although the Senkaku Islands are still disputed, any rapproachment between Japan and China is a step towards eventually resolving the issue.

10. October 27, 2006: A group of activists from Hong Kong, the Action Committee for Defending the Diaoyu Islands, including Tsang Kin Shing and several members of the April Fifth Action, approached the islands in order to show the support for Chinese claims to the Senkakus. They were stopped from landing on the islands by the Japan Coast Guard. Later on, the PLAN conducted a military exercise in the area.

11. Chronology 1976-2012 Feb 7, 2007, People’s Daily: China has expressed strong dissatisfaction through diplomatic channels over Japan's attempt to sensationalize Chinese research activities near Diaoyu Island. Oct 29, 2007, A Chinese vessel attempted to reach Diaoyu/ Senkaku Islands. February 2008: Confrontational dispute continues December 2008: Meeting between Aso and Wen Early 2009: Calm because the global financial crisis? February 2009:

12. Chronology 7 September 2010: A Chinese fishing boat collided with two Japanese Coast Guard (JCG) patrol boats in disputed waters. The collisions occurred after the JCG ordered the boat to leave the area. After the collisions, Japanese sailors boarded the Chinese vessel and arrested the captain Zhan Qixiong. 18 September 2010: 79th anniversary of the Mukden Incident, widespread anti-Japanese protests held in Beijing, Shanghai, Shenzhen, Hong Kong and Shenyang. 22 September 2010: Chinese premier Wen Jiabao threatened further action if the captain were not released. 24 September 2010: Japan released the Chinese captain, stating keeping the captain in custody would not be appropriate and raised considerable impact on the Sino-Japan relations. 25 September 2010: China demanded an apology and compensation from Japan for holding the Chinese boat captain in the collision incident. Japan rejected the Chinese demand.

13. 27 September 2010: Japan announces counter-claim against China for damage to their patrol boats in the collision. 2 October 2010: Anti-Chinese protests occurred in Tokyo and six other cities in Japan. 3 October 2010: A group of right wing protesters marched to the Ikebukuro mall specializing in Chinese food demanding to guard the islands against the Chinese. 6 October 2010: Joint USA/Japan drill is planned for defending Okinawa in December and Japanese Prime Minister Kan Naoto told the parliament that the joint military exercise doesn’t have the islands specifically in mind. 14 October 2010: Japan's Foreign Minister Seiji Maehara, along with other members of the LDP party filed a complaint against Google Maps demanding the removal of the Chinese name of Diaoyutai from the interactive map services. Google refused, stating that they wish to remain neutral.

14. 29 June 2011: "Tafa 268“, a fishing boat from Taiwan, with activists aboard, navigated to some 23nm off the disputed Senkaku Islands. Japanese coast guard mobilized 4 patrol boats and a helicopter was dispatched to the area. Taiwan Coast Guard Agency had sent 5 patrol vessels. Both sides of coast guard vessels reiterated the disputed islands were their own territory. No collision happened. "Tafa 268" set off for home escorted by the TCGA vessels after a 25-minute standoff. 3~4 July 2011: 9 Japanese fishing boats were fishing near the islands. Beijing lodged a protest on July 4, 2011. Chinese Foreign Ministry demands Japanese fishing vessels be immediately withdrawn. On July 3, Chinese fishery patrol vessel “Fishery 201″ in waters near the Senkaku Islands. Japanese patrol vessels issued a warning but Chinese responded that it was conducting legitimate task in Diaoyu. On July 4, 2 Chinese military aircraft approached the disputed islands and Japan Air Self-Defence Force (JASDF) immediately scrambled an F-15 to intercept them. November 2011: Japan supported the US at the November 2011 East Asia Summit in declaring that the South China Sea is under the jurisdiction of international maritime law and any disputes over the area must be resolved through multinational cooperation and dialogue. China, declared that any disputes over possession of the South China Sea should be resolved bilaterally, not through multinational forums or talks. November 2011: In advance of Prime Minister Yoshihiko Noda's planned December 2011 state visit to the PRC, the PRC government requested that the two countries begin negotiations over national boundaries in the East China Sea.

15. On 1 January 2012, four members of the Ishigaki municipal assembly visited Uotsuri Island. Ishigaki's mayor, however, stated that the four may have acted without proper authority and people wishing to visit the island should first obtain permission from the Japanese central government. January-March: Japan announced on 16 January 2012 it would name 39 previously unnamed, uninhabited islets that it claims in the East China Sea, including four in the Senkaku Island chain. PRC Foreign Ministry spokesman Liu Weimin stated, "China has indisputable sovereignty over the Diaoyu Islands that have been an inherent part of China since ancient times.“Japan completed naming all the islands by 3 March 2012, including Hokusei Kojima and three other islets near the Senkakus. In response, China gave its own names to the previously unnamed islets. Taiwan responded by disagreeing with both the PRC's and Japan's naming of the islands. On 21 January 2012, Diet lawmakers Koichi Mukoyama and Yoshitaka Shindō surveyed the islands by ship and later stated that the islands, several of which are still private property of Japanese citizens, needed to be fully nationalized. Their visit was the first by national politicians since 1997. On 16 March, the PRC sent maritime patrol boats Haijian 50 and Haijian 66 to patrol near the Senkaku Islands. Japanese coast guard stated that the Haijian 50 entered Japanese territorial waters for 25 minutes and warned the ship to leave. Japanese government lodged an official protest with the Chinese ambassador to Japan, Cheng Yonghua.

17. Undefined Boundaries China’s increasing demand for oil/gas and Japan’s heavily dependence on imported oil drive the two countries to explore for sources of supply of oil. The potential oil deposits in the East China Sea has emerged as a desired source.

18. Difficulties A great difficulty in any attempt to develop the potential deposits because: The boundary lines between the continental shelf areas appertaining to the two countries remain undefined due to the conflicting territorial claims to the Senkaku Islands around which the potentially oil-rich sea areas lie.

19. Prospect for Oil Exploration There is at present no prospect of delimiting the continental shelf areas and the exclusive economic zones between the two countries, nor prospect of exploring or exploiting sea-bed oil resources, in the sea areas surrounding the Senkaku Islands.

20. Possibility of Oil Exploration Theoretically, however, there can be a possibility of such exploration or exploitation on the condition that the two countries can agree to put aside the sovereignty issue for some time in favor of a joint development scheme.

21. Surveys by the UN A series of geological surveys conducted in the Yellow and East China Seas under the auspices of the Committee for Coordination of Joint Prospecting for Mineral Resources in Asian Offshore Areas (CCOP) of the United Nations Economic Commission for Asia and the Far East (ECAFE) in October-November, 1968 reportedly showed promising signs of oil reserves in the sea areas around the Senkaku Islands.

22. Protest by China China made its first official protest in its morning radio broadcast on 4 December 1970. In February, 1971 China repeated its protest during what was called the Japanese-Chinese “memorandum of understanding” trade negotiations. It made a further protest on 30 December 1971 by publishing a number of historical or legal grounds for its claim to the Senkaku Islands.

23. China’s Claim The basis of China’s claim is mainly historical: Its historical grounds are as follows: Historical Ground 1 Ryukyu Kingdom (now Okinawa) had tributary relations with China from the 14th to the mid-19th century, and China sent missions to Ryukyu to legitimize new kings some twenty times during this period. These missions used the Diaoyu Islands as navigational aids and some of their reports referred to the islands by that name.

24. Historical Ground 2 In the mid-16th century the Ming dynasty established a coastal defense system against the active Japanese pirates/smugglers. The documents and maps concerning this system included the Diaoyu Islands within the coastal defense area of China.

25. Historical Ground 3 Fishermen from China fished in the sea areas surrounding the islands from ancient times and used them for shelter in bad weather.

26. Historical Ground 4 Empress Tsu Hsi issued an Imperial edict in 1893 to award three of the islands to a private person for collecting medical plants there.

27. China’s Position The basis of the Chinese claim to sovereignty over the disputed islands rests on 6 main points: The Chinese argue that valid title was obtained through the principle of discovery-occupation as early as 1372. There was a peaceful and continuous display of territorial sovereignty over the disputed islands for more than five hundred years (1372-1895). Japan previously recognized and acquiesced to Chinese sovereignty over the disputed islands. The Diaoyutai Islands were not terra nullius in 1895. The islands were ceded to Japan through the Treaty of Shimonoseki 1895. The islands must be returned to China under the War Time Declarations and Sino-Japanese Peace Treaty 1952.

28. Japan’s Claim On 8 March 1972, Japan’s Ministry of Foreign Affairs issued a statement regarding ‘the Rights to Ownership over the Senkaku Islands’.The statement can be summarized into 6 points: The disputed islands were terra nullius during 1885-95. The Japanese Cabinet Decision of 14 January 1895 incorporated the Senkaku Islands into Japanese territory. The Senkaku Islands were not included in Article 2 of the Treaty of Shimonoseki 1895. The Senkaku Islands were not part of the territory which Japan relinquished under the San Francisco Peace Treaty. There was a legitimate transfer of title through the Okinawa Reversion Treaty 1971. There was Chinese acquiescence from 1952-1970.

29. Recent Development Military exercise between US-Japan navies near Senkaku including the using of war game simulation end 2006 In early 2006, US Marine and JGSDF organized a joint military exercise in west coast of the US. Codename Iron Fist. Protest by China- a strategy to control Diaoyutai.

30. Basis of Claims Should be based more on the modern rules of international law on the acquisition of territory. Stability in legal relations between sovereign States requires that the claimant maintain its sovereignty over a territory in such a manner as will not allow any external interference in its ownership. Otherwise a territory may be appropriated by another claimant who comes later with an ambition to deprive the original owner of its ownership – an instance of the ‘rule of capture’.

31. Is Joint Development Possible? Since the Japanese Government denies in principle the existence of a territorial dispute over the Senkaku Islands and yet China has a claim to them as a matter of fact, there cannot be any way of negotiation for a possible delimitation of the boundaries of the sea areas between the chain of Okinawa islands and the Chinese mainland. Therefore, can there be any prospect, or at least any possibility of the two countries to ………

32. Possible but …. Assuming for the sake of argument that the two countries can sit at a negotiating table putting aside the formidable issue of territorial sovereignty over the Senkakus, they may possibly be able to devise a joint-management zone for sea-bed development as they have done in respect of fisheries in the Fisheries Agreement of 11 November 1997.

33. Fisheries Agreement Under the Fisheries Agreement of 11 November 1997, the two countries agreed to shelve the formidable problem of boundary delimitation of their EEZ. This experience may bear witness to a possibility that they may come to agree to shelve the same problem for the time being in favor of the development of sea-bed mineral resources. But this possibility is not altogether promising, because the ‘provisional measures zone’ as provided for in the Fisheries Agreement has carefully avoided involving the sea areas of the Senkaku.

34. If they were able to work out a compromise on the zone in view of the most pressing needs of their fisheries interests, … why wait? By comparison, oil and gas, given their less promising potential and huge costs of development, may not be in so pressing a demand as the fisheries resources. In this sense there may be much less incentive to negotiate a compromise zone of joint development in the disputed sea areas around the Senkaku.

35. Scenario For Joint Development Is there absolutely no possibility of co-operation for joint development of sea-bed petroleum in the disputed sea areas then?

36. Some Views If Japan and China be able to put aside the formidable and intricate question of sovereignty over the Senkaku in favor of practical demand for oil/gas deposits in the neighboring sea areas, then they could possibly sit at the negotiating table for joint development of those resources. Their willingness for such a scheme would depend on the degree of urgency to which they need oil or gas for industrial or other purposes. This depends in turn on the feasibility and costs of exploration and exploitation.

37. Professor Diego Freitas do Amaral. Then President of the UN General Assembly (Addressing the International Court of Justice on April 18, 1996) "The goal of establishing and maintaining the primacy of international law is crucial. Without the rule of law humanity cannot achieve the peace, freedom and security which will permit it to continue to develop a civilized society."

38. Some Models of Joint Development? Learn some lessons from the past joint development schemes in various parts of the world. There are a number of cases in which joint development was hammered out in sea areas where the parties were unable to delimit the boundaries for some reasons.

39. First Model The Kuwait-Saudi Arabia agreement on the partition of the Neutral Zone of 1965 devised what might be called an early precedent for joint development in a very broad sense of the term. The two countries had concluded concession agreements with two American oil companies in the late 1940s, and allowed them to work for a common and coordinated program of exploitation without prior boundary delimitation or partition. The Neutral Zone Partition agreement of 1965 delimited an international boundary line, which extended from the land territory to the territorial sea. Beyond the 6-mile limits of the territorial sea, however, the two countries agreed to exercise equal rights “by means of shared exploitation” unless they agree otherwise. In short, the history up to the agreement of 1965 would seem to show that the two countries were more or less prepared to agree on joint development, although they had kept the Neutral Zone undivided.

40. Second Model The Iran-Sharjah memorandum of understanding of 1971 authorized a single oil company to conduct “exploitation of petroleum resources of Abu Musa and of the seabed and subsoil beneath its territorial sea”. Half of the revenue was to be paid by the oil company to each of the two countries. Although this is a case of joint management of oil exploitation, or revenue sharing, in respect of the territorial sea only, the land territory of Abu Musa Island was disputed between the parties when the Memorandum was prepared.

41. Third Model The Malaysia-Thailand Memorandum of Understanding of February 1979 effected a broad agreement between the two countries for joint development of the continental shelf in a defined zone in the Gulf of Thailand. While they pledged to continue efforts to define continental shelf boundaries under the Memorandum of February, they came to agree on a partial boundary outside the joint development zone in the second Memorandum of Understanding of October, 1979. In May, 1990 M-T agreed on detailed points in implementation of the first Memorandum of 1979. But they do not seem to have serious territorial disputes involving maritime development.

42. Fourth Model In the Australia-Indonesia Treaty on the zone of cooperation of December 1989, the most elaborate arrangements were made for joint development of oil and gas in three defined sub-zones in the “Timor Gap” where there had been no boundary delimitation. Prior to this treaty were two series of boundary lines delimited between the two countries in the early 1970s, except in the “Timor Gap” produced by the fact that East Timor facing this part of the sea belonged to Portugal which did not agree with Australia on maritime boundaries. Subsequently Indonesia’s acquisition of East Timor made it possible for it and Australia to conclude the treaty of 1989. In the intervening years, due to some international judicial decisions on the continental shelf, there emerged the ‘distance criterion’ as the basis of title to the continental shelf, and in 1989 Australia would presumably have had to recede from its former position based on the natural prolongation doctrine, which seems to have prevailed in the earlier delimitations during the 1970s. The discovery of oil deposits in the sea areas involving the Zone of Cooperation would have prompted the negotiations for the 1989 treaty.

43. Fifth Model The Malaysia-Vietnam Memorandum of Understanding of June, 1992 is an “interim arrangement for the purpose of exploring and exploiting petroleum in the seabed in the overlapping area” in the Gulf of Thailand, where the two countries failed to delimit their boundary lines. In a later commercial agreement of August, 1993 between PETRONAS for the Government of Malaysia and PETROVIETNAM for the Government of Vietnam, it was provided to establish an eight-member Co-ordination Committee for the implementation of the skeleton Memorandum of 1992. An interesting feature of this entire arrangement is that as Vietnam was not well prepared for the scheme of cooperation with Malaysia, PETRONAS was to carry out all joint development operations and remit to PETROVIETNAM its equal share of the net revenue free of any taxes, levies or duties, and that, in return for this the petroleum law of Malaysia was to apply in the relevant joint area

44. Sixth Model: Columbia-Jamaica In the Colombia-Jamaica treaty on maritime delimitation of November 1993, the two countries established a joint development zone where they were unable to agree on delimitation, while they agreed partly on delimitation in other sea areas. For Colombia this is the penultimate delimitation agreement among those with its neighbors in the western Caribbean sea. But this is the first such agreement for Jamaica, which is said to have been cautious and conservative in adopting emergent maritime legal regimes.

45. Seventh Model: UK-Argentine The Argentine-UK Joint Statement on the Conservation of Fisheries of November, 1990 seems to indicate a point of departure for the two countries slowly to head towards a joint development scheme in the field of oil and gas following the Falklands war in 1982. The Joint Statement noted that nothing in the conduct or content of any meetings between the two countries must be interpreted to mean a change in the position of either country with regard to “the sovereignty or territorial or maritime jurisdiction over the Falklands Islands, South Georgia, the South Sandwich Islands and the surrounding maritime areas”. A series of subsequent British acts provided a framework for preliminary exploration of the continental shelf within the designated areas. On the other hand, Argentina has claimed the islands well over a hundred years, and continues to pass legislation pertaining to the islands.

46. Falklands • But the two countries made the Joint Declaration on Co-operation over Offshore Activities in the South West Atlantic in September, 1995, specifying a “Special Area” for “exploration for and exploitation of hydrocarbons by the offshore oil and gas industry” to be carried out “in accordance with sound commercial principle and good oil practice, drawing upon Governments’ experience both in the South West Atlantic and in the North Sea”. • The UK Government acknowledged that the Joint Declaration would be welcome “as a beneficial factor which will ensure the oil industry and improve the climate for exploration for and exploitation of hydrocarbons in a frontier area”.

48. 16 March 2012 BUENOS AIRES: Argentina will take legal action against oil companies operating around the disputed Falkland islands, Foreign Minister Hector Timerman said Thursday.  "We will take the required legal, administrative, civil and criminal actions against oil companies currently involved in drilling," he told a press conference, amid rising tensions over the South Atlantic islands claimed by Argentina since 1833, but held by Britain. He noted that in the past Buenos Aires had already "notified these firms that they were acting illegally."  "We will also send warnings to companies which might be interested in these activities, serving them notice of the possible administrative, civil and criminal sanctions they might face," he added. Timerman said the companies involved include Desire Petroleum, Falkland Oil and Gas, Rockhopper Exploration, Borders and Southern Petroleum and Argos.  Rockhopper, Desire Petroleum and Falkland Oil and Gas are three small British firms which began prospecting for oil off the Falklands in early 2010. Only Rockhopper has so far struck oil. Timerman said the sanctions would also apply to all companies that provide "logistical support" or "financial services" for these activities.  "We will warn all agents working on the stock market with the companies involved so that they publicize the dispute," the minister added. He stressed that legal action would be launched "not only in Argentina but also abroad through international judicial cooperation." "To boost their deterrent effect, these actions will receive all the necessary publicity," Timerman said. Tensions have flared anew since 2010 when Britain authorized oil companies to explore for oil in Falklands waters, and have sharpened with the deployment of a British warship to the islands. On Wednesday, the Argentine Senate unanimously passed a measure known as the "Ushuaia declaration" that asserts sovereignty over the Falklands. The draft document drawn up February 25 in the southern city of Ushuaia reaffirms "the legitimate" sovereignty of Argentina "over the Malvinas," as the islands are called in Spanish, "South Georgia, South Sandwich and the surrounding maritime areas." The text was adopted ahead of the 30th anniversary of the war fought between Argentina and Britain over the remote island chain, and denounces "the persistent colonialist and militarist attitude of the United Kingdom." Argentine troops seized the islands on April 2, 1982, only to be routed by British forces 74 days later. In all, 649 Argentine troops, 255 British troops and three Falkland Islanders were killed in the brief but bloody conflict.

49. Other Models For some more possible lessons from the past experience, one may have a look at the joint development schemes which were drawn up in addition to boundary delimitations. Such schemes include: - the Bahrain-Saudi Arabia agreement of February. - 1958, the France-Spain Convention of January, 1974 in respect of the Bay of Biscay. - theSaudi Arabia-Sudan agreement of May, 1974, the Iceland-Norway agreement of October. - 1981, the Libya-Tunisia agreement of 1988, and the Guinea-Bissau – Senegal agreement of October, 1993.

50. Others In April, 2003, Nigeria and São Tomé & Príncipe concluded discussions concerning details of their joint development zone in the north western Gulf of Guinea. The joint development regime was established by a 2001 treaty, but a number of issues remain unresolved.