Can international law help resolve the conflicts over uninhabited islands in the East China Sea?

• Author: Davis, Michael C.

1. INTRODUCTION

   Former Chinese leader Deng Xiaoping once famously urged that resolution of disputes with China's neighbors over uninhabited islands be put off to a later generation, stating: "Our generation is not wise enough to find common language on this question. The next generation will certainly be wiser." (1) Such sage advice seemed practical at the time, freeing China and its neighbors to focus on more pressing trade and economic development efforts. The wisdom of continuing deferral of the disputes over uninhabited islands is now in doubt, at least when peaceful alternatives may be considered. Beyond the rapid economic development and the consequent explosion of resource demands that has occurred since Deng uttered these words, technological development has made these deep seabed resources more readily accessible. (2) Added to this has been China's rapid economic development and associated military rise, encouraging China's expanded attention to territorial sovereignty and resource claims in its periphery. (3) Increased military confrontations over disputed islands have added to the urgency of this matter, and an impasse has prevailed. (4)

   This article focuses on comparable disputes over two groups of uninhabited islands--the Dokdo (Takeshima in Japanese) Islands and the Diaoyu (Senkaku in Japanese) Islands--that may be pivotal to unraveling a series of volatile maritime disputes between Japan and South Korea, on the one hand, and Japan and China, on the other. The Dokdo/Takeshima and Senkaku/Diaoyu Islands are located respectively in the Sea of Japan (known as the East Sea in Korea) and the East China Sea. This narrowing of the topic to these two particular island disputes and related maritime issues is offered in the hope that these two sets of disputes may hold some keys to the wider, more factually complex debate stretching across the region, both north to the Yellow Sea and south to the South China Sea. (5) At the same time, there is hope the Japan-South Korea dispute may inform options available for the China-Japan dispute.

   In the face of the current impasse, the challenge is to identify those aspects of these island disputes that can be solved so as to ultimately facilitate more comprehensive maritime solutions that may be achieved under the United Nations Convention on the Law of the Sea ("UNCLOS"). (6) Toward this end, the following six sections will discuss: first, the posture of the current disputes; second, some international legal principles of relevance to the parties positions regarding territorial claims to uninhabited islands and resource rights in adjoining seas; third, the above-noted Japanese-South Korean dispute relating to the Dokdo/Takeshima Islands; fourth, the Sino-Japanese dispute over the Senkaku/Diaoyu Islands; fifth, the parties' positions regarding the related resource boundary claims; and, sixth, concluding recommendations on how best to move past the current impasse. Paradoxically, while resource concerns triggered a lot of the recent attention to these disputes, nationalistic concerns over sovereignty engender more passion in the disputants. The twin concern over sovereignty and resources has become an increasing cause of conflict in the Asian region, making settlement of resource claims without addressing the underlying sovereignty dispute increasingly difficult.

   With this in mind, the final section offers a recommendation that reverses both Deng Xiaoping's earlier sage advice and the favored international practice under UNCLOS of interim resource settlements in the face of intractable territorial disputes. Developing international customary law regarding claims to uninhabited islands suggests the most effective avenue to unraveling these territorial and maritime resource disputes is to first pay attention to peaceful resolution of the island and related maritime sovereignty disputes. In the spirit of the gentle removal of logs from the log-jam that characterizes these disputes, this effort might ideally begin with third-party dispute resolution, preferably in the International Court of Justice ("ICJ").

   Careful consideration of the security and other alliances between South Korea and Japan, as they react to China's rise and North Korea's aggression, may encourage a process to resolve historical tensions and begin to outline relative rights respecting these islands and the broader maritime claims. Beyond such optimal approach, other lesser alternatives are also considered. These recommendations recognize attempts to fully resolve the maritime resource disputes have been held up for decades. Uncertainty over the islands' claims and associated resource zones has spawned the back and forth posturing that inhibits compromise over the maritime resource claims. The goal is to move the process forward toward a solution before the more aggravated military conflict, which many fear, ensues.

2. THE CURRENT POSTURE OF THE DISPUTES

   1. Tit-for-Tat Provocations

      The past couple of years have witnessed an explosion of confrontations relating to sovereignty and jurisdiction over uninhabited islands and maritime resource zones in the East and Southeast Asian maritime areas. The long list of confrontations between the parties to the present discussion have included: the Sino-Japanese dispute in late 2010 over the Japanese arrest of Chinese fishermen accused of ramming a Japanese patrol boat near the Japanese-administered Senkaku/Diaoyu Islands in the East China Sea; (7) the 2012 Japanese arrest and quick release of fourteen Chinese civilians attempting to occupy Diaoyu/Senkaku, with follow-on Japanese civilian occupation; (8) the September 2012 Japanese purchase of the Diaoyu/Senkaku Islands from a private Japanese holder (characterized by China as "nationalization"), which netted the largest anti-Japanese riots in China in decades; (9) Chinese patrol boats frequently confronting the Japanese Coast Guard off Diaoyu/Senkaku; (10) various threats of sanctions (under WTO "security exceptions") or even war in the Chinese official press; (11) Japan's scrambling of fighter planes in response to Chinese warplanes flying near the Senkaku/Diaoyu Islands. (12)

      That there has been a similar list of disputes in the South China Sea signals that the reach of this tense situation goes well beyond the immediate area to include: maritime patrol boat confrontations between China and its neighbors over the Spratly and Paracel Islands in the South China Sea; (13) disputes in 2014 over a Chinese drilling platform operating in waters generally thought to be in the Vietnamese Exclusive Economic Zone ("EEZ"), netting confrontations at sea and large Vietnamese street protest; (14) a dispute and then a now-failed compromise between the Philippines and China over Scarborough Shoal and China's building of man-made islands on reefs in the disputed Spratly Islands. (15) While the present essay will discuss prominent East China Sea disputes, those in the South China Sea are equally compelling.

      Any of these disputes risk conflagration across the region as various security alignments are brought into play. Recent developments, with China employing drones near the Diaoyu/Senkaku Islands and declaring an Air Defense Identification Zone ("ADIZ") to overlap the Japanese controlled islands, have raised ominous concerns about miscalculations leading to military conflict. (16) Chinese officials and commentators have invoked World War II history to suggest a rising tide of Japanese militarism. (17) The perceived threat from a now rising China may appear more imminent to its neighbors.

      A common thread in many of these disputes is China's military rise and consequent assertiveness. (18) There have been threatening domestic calls for China to enhance its sea power in order to deal more forcefully with these challenges. (19) These have included what has been called a "near sea doctrine" China announced five years ago, where China declared an aim to exercise greater control over the East and South China Seas. (20) There have in fact been several incursions by Chinese Coast Guard, marine surveillance ships, and aircrafts near these islands and others in the South China Sea. (21) A prominent Japanese retired admiral has even argued, beyond seabed resource claims, China's real goal in seeking to control the Senkaku/Diaoyu Islands and the South China Sea is to create a submarine safe-zone in the South China Sea to enhance unfettered access to the open ocean by nuclear submarines, as a deterrent against the U.S. (22) Others take the view that China is simply in a renewal phase aimed at expanding its sovereign territory and resurrecting its more glorious past. (23) Whichever theory is correct, China's military posturing raises risks both for the disputants and for U.S. involvement. (24) Concerns about full civilian control of China's military have enhanced the perceived sense of risk in military encounters at sea. (25) Diplomatic efforts to contain this risk have born very little fruit. (26)

      These risks have also produced escalation on the Japanese side. After years of somewhat stagnant military budgets, Japan has announced defense budget increases and strategic shifts to counter Chinese incursions. (27) It has revised its defense strategy to focus its forces more to the south to defend against potential Chinese attacks on its islands. (28) Japan has also stepped up efforts to develop a stealth fighter jet to match the J-20 stealth fighter recently tested by China. (29) Japan has engaged in war games and placed missiles on nearby Pacific gateway islands. (30) It has also attempted to contain the problem by reaching a separate agreement with the Republic of China ("ROC") to allow Taiwanese fishermen to fish near the Senkaku/Diaoyu Islands just beyond the twelve-mile territorial sea boundary. (31)

      Some disputants have lodged formal protests or other submissions to the United Nations. In Southeast Asia, these complaints relate...