GONG Yingchun

The Development and Current Status of Maritime Disputes in the East China Sea

GONG Yingchun*

Sino-Japanese maritime disputes in the East China Sea concern two issues:the territorial sovereignty of the Diaoyu Islands and maritime delimitation.The sovereignty dispute over the Diaoyu Islands has been an unavoidable,key factor in negotiations on East China Sea issues.The change of legal attitude from median-line to 200 nautical miles distance and the reluctance to admit the fact of sovereignty dispute over Diaoyu islands constitute the main obstacles to the promotion of energy cooperation in the East China Sea.A resolution to the delimitation issue will likely take the form of joint development, further sincere negotiations or international judicial settlement.But judicial settlement may only be possible if the two countries agree to submit their disputes,also a mutually acceptable arrangement over the Diaoyu Islands is essential.

East China Sea;Diaoyu Islands;Sovereignty dispute;Maritime delimitation dispute;Cooperation;Disputed water;Dispute settlement

Ⅰ.Executive Summary

This essay examines the historical context,current developments,and future perspectives of the Sino-Japanese maritime disputes in the East China Sea.

A.Main Argument

Sino-Japanese maritime disputes in the East China Sea concern two issues:the territorial sovereignty of the Diaoyu Islands(called the Senkaku Islands in Japanese)and maritime delimitation.The sovereignty dispute over the Diaoyu Islands has always been a key factor in negotiations on East China Sea issues. If this dispute can be disentangled from the maritime delimitation issue through an agreement to exclude the Diaoyu Islands as a basis for generating exclusive economic zones(EEZ)or continental shelf claims,then the maritime delimitation issue might be handled more easily,since most confrontations and reciprocal distrust to date are rooted in the sovereignty dispute.A resolution to the delimitation issue will likely take the form of joint development of the East China Sea,further negotiations or a judicial settlement.The 2008 China-Japan Principled Consensus on the East China Sea Issue is a major step toward cooperation on maritime energy resources,but further compromise and political conditions is required.If China and Japan cannot reach a consensus on the scope of the disputed waters,a judicial settlement may provide another choice of dispute settlement.

B.Policy Implications

1.If Japan insists on the unrealistic stance that no sovereignty dispute exists concerning the Diaoyu Islands,the East China Sea issues will remain unresolved and the confrontations over the sovereignty of the islands will very likely escalate.

2.China and Japan should agree to exclude the Diaoyu Islands as a basis for generating EEZ or continental shelf claims in order to facilitate a resolution of the maritime delimitation issue.

3.If both countries effectively promote the 2008 principle consensus,then the establishment of joint development zones near the Diaoyu Islands could accelerate the process of cooperation.

4.The two countries need to be flexible on the method of dispute settlement.A clearly delimited maritime boundary reached through a judicial settlement or further sincere negotiations would encourage Sino-Japanese cooperation in scientific research,environmental protection,and other issues in the East China Sea.

Ⅱ.Introduction

On May 8,2008,Chinese President Hu Jintao and Japanese Prime MinisterYasuo Fukuda signed a Sino-Japanese joint statement promising comprehensive promotion of strategic and mutually beneficial relations.In the statement,the two sides both agreed that the Sino-Japanese relationship is one of their most important bilateral ties.Concerning the East China Sea issues,the two nations“pledge[d]to work together and make the East China Sea a sea of peace,cooperation and friendship.”①Joint Statement between the Government of Japan and the Government of the People’s Republic of China on Comprehensive Promotion of a‘Mutually Beneficial Relationship Based on Common Strategic Interests’,Ministry of Foreign Affairs of Japan website,at http://www.mofa.go.jp/region/asia-paci/china/joint0805.html.

In order to realize the goal set forward in the statement,leaders of the two countries signed the China-Japan Principled Consensus on the East China Sea on June 18,2008,indicating a bright and promising future toward peaceful settlement of both the long-standing territorial disputes and the maritime delimitation negotiations pertaining to the East China Sea.Since the principled consensus itself is not a legally binding agreement,the realization of joint development and cooperative development depends on the conclusion of a treaty and an exchange of notes between the two governments.

However,talks to finalize such a treaty have stalled since the June 2008 agreement.Increasingly impatient,the Japanese government has criticized China for breaching the principled consensus agreement by starting unilateral operations on the Chinese side of the median line.Meanwhile,China has responded by claiming that the Chunxiao oil and gas field is located in waters where China has inherent sovereign rights over the natural prolongation of its continental shelf.

Other incidents occurred in the East China Sea recently,causing observers to wonder whether tension in that body of water is mounting.In early May 2010 a Chinese vessel approached a ship belonging to the Japanese Coast Guard and asked its personnel to stop undertaking geographical surveys in the area, which China claims as its continental shelf and Japan claims as its exclusive economic zone(EEZ).

These arguments,confrontations,and tensions seem to indicate that despite the conclusion of a principled consensus,disagreements over the key issues of the East China Sea remain and continually re-emerge,upsetting Sino-Japanese relations from time to time.What are the main legal and political obstacles that hinder the progress of the resolution of the East China Sea dis-putes?What is the outlook for a principled consensus?Is there any possibility of resolving the maritime delimitation dispute through judicial methods,as the Japanese side recently suggested?Through an examination of these questions, this essay will propose a range of conflict-avoiding measures and a road map to possible solutions.

Ⅲ.Historical Context:Conflicting Claims on the Sovereignty of the Diaoyu Islands

The East China Sea is an area of 480,000 square miles to the east of mainland China,north of Taiwan,west of Japan’s Ryukyu Islands,and south of South Korea.Within the area,there exists both a sovereignty dispute over the Diaoyu Islands and maritime delimitation disputes over the continental shelves and the EEZs among China,Japan,and South Korea.Japan and South Korea reached an agreement on the joint development of the continental shelf in 1974,which China strongly contested:

The Chinese Government holds that,according to the principle that the continental shelf is the natural extension of the continent,it stands to reason that the question of how to divide the continental shelf in the East China Sea shoul d be decided by China and the other countries concerned through consultations.But now the Japanese Government and the South Korean authorities have marked off a so-called…“joint development zone”…behind China’s back.This is an infringement on China’s sovereignty.①Hsinhua Weekly,11 February 1974,p.27.

Thus,in the northern part of the East China Sea,the three countries need to negotiate with each other to settle the dispute.

Regarding the sovereignty dispute over the Diaoyu Islands,although the stance of the Taiwanese authorities does not differ from that of the Chinese government,their position is certainly a relevant factor in the Sino-Japanese sovereignty dispute.China claims that the Diaoyu Islands belong to the Taiwan archipelago,and that the waters near the Diaoyu Islands have been a traditional fishing ground of Chinese fishermen for centuries,especially those from Tai-wan.①Spokesperson Liu Jianchao’s Comment on Japan’s Forcible Expulsion of Taiwanese Fishermen near the Diaoyu Islands,Consulate-General of the People’s Republic of China in New York website,at http://www.nyconsulate.prchina.org/eng/fyrth/t199477.htm.

When addressing the context of the Sino-Japanese maritime dispute in the East China Sea,it is necessary to consider two trends:the historical background of the sovereignty dispute over the Diaoyu Islands and the progress of the Sino-Japanese negotiations on maritime delimitation issues.

The Diaoyu Islands are a group of eight uninhabited islands,the largest of which is Diaoyu Island,which covers roughly eight hectares and lies 170 kilometers(km)northeast of Taiwan and 410 km west of Okinawa.Although none of the islands has ever been inhabited,they are considered important for strategic and political reasons.Both Japan and China use claims of ownership over the islands to bolster their claims to the surrounding sea and its resources.Both claim historical sovereignty over them by citing theories of international law,especially theories on the acquisition of additional territory.

The sovereignty dispute over the Diaoyu Islands has constantly been a key factor in Sino-Japanese negotiations on maritime delimitation.For China,it is hardly acceptable that Japan uses these disputed islands as a basis for a full EEZ and continental shelf,while simultaneously refusing to discuss the Diaoyu Islands issue in talks on East China Sea issues.Beijing’s attitude toward the territorial dispute on the Diaoyu Islands has been to“shelv[e]disputes and establish…joint development zones.”It is obvious that for China,within the package of“shelved disputes,”there are not only legal confrontations on the principle of delimitation of the continental shelf and EEZ,but also conflicting sovereignty claims over the Diaoyu Islands.Japan’s reluctance to admit even the existence of the sovereignty dispute will surely cast a shadow over the Sino-Japanese negotiations on joint development in the East China Sea.

The Diaoyu Islands issue itself comprises two parts:a politically sensitive sovereignty dispute and a legal disagreement over the function of these islands in maritime delimitation in the East China Sea.Regarding the effect of the Diaoyu Islands on Sino-Japanese maritime delimitation,Japan tends to give them full effect.This attitude is inconsistent with Japan’s claims over Okinotorishima,Takeshima(Dokdo in South Korea),and Minamitorishima.②What Is the Problem with the Claim of the South Korea on Dokuto as a Basis for EEZ and Continental Shelf:Interview on ITLOS Judge Park,Choon-Ho,Chosun Online,6 May 2006,at http://www.chosunonline.com/article/20060506000006.In China,onthe other hand,the general academic opinion is that as a midway,uninhabited, and disputed territory,the Diaoyu Islands should not be a factor in delimitation.①Ji Guoxing,The Diaoyu(Senkaku)Disputes and Prospects for Settlement,Korean Journal of Defense Analysis,vol.6,no.2(Winter 1994),p.306.This opinion,however,does not necessarily mean that China considers the Diaoyu Islands to be“rocks”per the guidelines of Article 121,paragraph (3)of the United Nations Convention on the Law of the Sea(UNCLOS). Rather,China’s view is that setting the islands aside creates a rational and realistic arrangement for Sino-Japanese maritime delimitation.

The Diaoyu Islands are islands both according to international law,specified by Article 121,paragraph(1)of UNCLOS,and also according to China’s domestic sea island protection law,which went into effect in March 2010.

A.Japan’s Claim

The Japanese attitude on the Diaoyu Islands issue consists mainly of the following four points.②The Basic View on the Sovereignty over the Senkaku Islands,Ministry of Foreign Affairs of Japan website,at http://www.mofa.go.jp/region/asia-paci/senkaku/senkaku.html.

First,Japan claims that the Diaoyu Islands were not transferred to Japan under the Treaty of Shimonoseki in 1895.Instead,they were discovered by Japan as terra nullius and incorporated into Okinawa in 1895,after the country had conducted several field investigations and confirmed no sign of governance by the Qing Dynasty in China.

Second,from 1895 to 1971,the Diaoyu Islands were always treated as part of Okinawa.During this 75-year period,China did not protest Japanese incorporation and governance until a report of the UN Economic Commission for A-sia and the Far East suggested possible petroleum deposits under the East China Sea in 1968,and offshore oil exploration began in the 1970s.

Third,the Diaoyu Islands were not included in the areas to which Japan renounced all right,title,and claim in Article 2 of the 1951 San Francisco Peace Treaty.③Article 2(b)states,“Japan renounces all right,title and claim to Formosa and the Pescadores.”Instead,according to Article 3 of the treaty,the Diaoyu Islands were part of Nansei Shoto and placed under the administrative authority of the Unit-ed States.①Article 3 states,“Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system,with the United States as the sole administering authority,Nansei Shoto south of 29deg.north latitude(including the Ryukyu Islands and the Daito Islands),Nanpo Shoto south of Sofu Gan(including the Bonin Islands,Rosario Island and the Volcano Islands)and Parece Vela and Marcus Island.Pending the making of such a proposal and affirmative action thereon,the United States will have the right to exercise all and any powers of administration,legislation and jurisdiction over the territory and inhabitants of these islands,including their territorial waters.”

Fourth,the 1971 Ryukyu(Okinawa)reversion agreement with the United States validated the status of the Diaoyu Islands as Japanese territory.②Toshio Okuhara,The Territorial Sovereignty over the Senkaku Islands and Problems on the Surrounding Continental Shelf,Japanese Annual of International Law,vol.15,1971, pp.97-102;Thomas R.Ragland,A Harbinger:The Senkaku Islands,San Diego Law Review,vol.10,May 1973,pp.668-69;J.R.V.Prescott,Maritime Jurisdiction,in Joseph Morgan and Mark J.Valencia ed.,Atlasfor Marine Policy in East Asian Seas.Berkeley: University of California Press,1992,pp.31-32.

B.China’s Claim

First,China claims that it discovered the Diaoyu Islands in the fourteenth century,when the norms of international law had not yet emerged.China used the isolated islands as navigational aids for two centuries and incorporated them into the network of it maritime defense in 1556.According to this account,Japan could not have been the first to discover the islands because China had already discovered them more than five hundred years earlier.On this account,the Diaoyu Islands were then“stolen”by Japan in January 1895 through the secret administrative measure of incorporation to Okinawa,when Japan was emerging as the victor of the 1894-1895 Sino-Japanese War.What is more, the Japanese government was well aware of the fact that the Diaoyu Islands belonged to China in 1885,ten years prior to the surreptitious incorporation.③Zhong Yan,China’s Claim to Diaoyu Island Chain Indisputable,Beijing Review 39,no. 45,4-10 November 1996,pp.14-19.

Second,the Treaty of Maguan(known in Japanese as the Treaty of Shimonoseki)in 1895 forced China to cede Taiwan to Japan.For the next 50 years, the Diaoyu Islands,together with other subordinate islands of Taiwan,were under the colonial governance of Japan.

Third,Japan surrendered the Diaoyu Islands and returned them to China’scontrol under the provisions of both the 1943 Cairo Communiqué①The communiquéstates,“Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914,and that all the territories Japan has stolen from the Chinese,such as Manchuria,Formosa,and The Pescadores,shall be restored to the Republic of China.”For full text,see“Cairo Communiqué, December 1,1943,”National Diet Library,http://www.ndl.go.jp/constitution/e/ shiryo/01/002_46shoshi.html.and the 1945 Potsdam Proclamation.②According to the proclamation,“(8)The terms of the Cairo declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu,Hokkaido,Kyushu,Shikoku and such minor islands as we determine.”From 1945 to 1971,the United States exercised governance and administrative rights over the Diaoyu Islands.This fact conflicts with the Japanese claim that for the 75-year period from 1895 to 1971,the Diaoyu Islands were under Japan’s uninterrupted,effective control.

Fourth,three documents—Article 3 of the San Francisco Peace Treaty; Civil Administration Proclamation No.27,issued on December 25,1953 by the American government;③U.S.Civil Administration of the Ryukyu Islands,Office of the Deputy Governor,Civil Administration Proclamation No.27,Geographical Boundaries of the Ryukyu Islands,25 December 1953,at http://www.niraikanai.wwma.net/pages/archive/caproc27.html.and the 1971 Japan-U.S.Ryukyu Islands Reversion Agreement—have been cited by the Japanese side as evidence proving that the Diaoyu Islands are part of Okinawa.The aforementioned documents claim that the Diaoyu Islands were included in the geographical boundaries of the Ryukyu Islands,within which the United States exercised“all and any powers of administration,legislation and jurisdiction.”However,during the U.S.Senate’s ratification of the reversion agreement,the United States specified that the agreement did not affect the determination of sovereignty over disputed islands.④Senate Committee on Foreign Relations,Hearings on the Okinawa Reversion Treaty before the Senate Com mittee on Foreign Relations,92nd Congress,1st sess.,1971,p.11.This attitude is clearly manifested in Article 1,which provides that“with respect to the Ryukyu Islands and the Daito Islands,the United States of America relinquishes in favor of Japan all rights and interests under Article 3 of the Treaty of Peace with Japan signed at the city of San Francisco”and“full responsibility and authority for the exercise of all powers of administration, legislation and jurisdiction over the territory and inhabitants”of the saidislands.①Agreement between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands,“The World and Japan”Database Project,Database of Japanese Politics and International Relations,Institute of Oriental Culture,University of Tokyo,at http://www.ioc.u-tokyo.ac.jp/～worldjpn/documents/texts/docs/19710617. T1E.html.

Among the rights and interests relinquished to Japan,there were no rights of possession and disposition,which are essential elements of sovereignty.Moreover,even the United States received administrative rights only,not sovereignty,over the islands mentioned in Article 3 of the San Francisco Peace Treaty.

C.U.S.Administration of the Diaoyu Islands

U.S.administration of the Diaoyu Islands officially began in 1953 after the issuance of the U.S.Civil Administration of the Ryukyu Islands Proclamation No.27,which defined the Diaoyu Islands as within the boundaries of the Ryukyu Islands.②Senate Committee on Foreign Relations,Okinawa Reversion Treaty,p.149,152.In the proclamation,the United States declared that“the geographic boundaries of the U.S.Civil Administration and the Government of the Ryukyu Islands as heretofore set forth in the Proclamations,”is“in conformity with the terms of the Japanese Treaty of Peace,signed 8 September 1951.”③Civil Administration of the Ryukyu Islands,Geographical Boundaries of the Ryukyu Islands.There was,however,no explicit mention of the Diaoyu Islands in Article 3 of the San Francisco Peace Treaty,which provided that:

Japan will concur in any proposal of the United States to the United Nationsto place under its trusteeship system,with the United States as the sole administering authority,Nansei Shoto south of 29 deg.north latitude(including the Ryukyu Islands and the Daito Islands),Nanpo Shoto south of Sofu Gan(including the Bonin Islands,Rosario Island and the Volcano Islands)and Parece Vela and Marcus Island.Pending the making of such a proposal and affirmative action thereon,the United States will have the right to exercise all and any powers of administration,legislation and jurisdiction over the territory and inhabitants of these islands,including their territorial waters.④Treaty of Peace with Japan,8 September 1951,United Nations Treaty Series 1952,no. 1832,pp.46-164.

At the time of the signing of the Okinawa reversion treaty,several U.S. State Department officials asserted that although Article 3 of the San Francisco Peace Treaty did not mention the Diaoyu Islands,“the United States and Japan understood the wording of Nansei Shoto south of 29 degrees north latitude to include the Senkaku Islands”.①Larry A.Niksch,Senkaku(Diaoyu)Islands Dispute:The U.S.Legal Relationship and Obligations,CRS Report for Congress,Report 96-798,30 September 1996.

From the Chinese perspective,this assertion is not rational and reliable because China was not a party state to any of the three agreements.The decisive factor for China is not how the United States or Japan interpreted or understood the relevant provisions,but that the three documents did not have any binding effect on China,since the general rule of international law is that“a treaty does not create either obligations or rights for a third State without its consent.”②United Nations,Vienna Convention on the Law of Treaties,Treaty Series 1155,Art.34.

Ⅳ.Cooperation of the Coastal States of the Semi-enclosed East China Sea

The East China Sea is surrounded by three coastal countries and connected to the Western Pacific Ocean by several straits within the so-called first island chain.Moreover,the water column of the East China Sea itself consists entirely of the territorial seas and EEZs of China,Japan,and South Korea.

According to Article 122 of UNCLOS,the East China Sea is a semi-enclosed sea,which is defined as“a gulf,basin,or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.”③Jim-Hyun Paik,Exploitation of Natural Resources:Potential for Conflicts in Northeast A-sia,in Sam Bateman and Stephen Bates ed.,Calming the Waters:Initiativesfor Asia Pacific Maritime Cooperation.Canberra:Strategic and Defence Studies Centre,Research School of Pacific and Asian Studies,Australian National University,1996.Article 123 of UNCLOS provides for four specific areas of cooperation among states bordering enclosed or semi-enclosed seas:

1.to coordinate the management,conservation,exploration and exploitation of the living resources of the sea;

2.to coordinate the im plementation of their rights and duties with respect to the protection and preservation of the marine environment;

3.to coordinate their scientific research policies and undertake where appropriate joint programs of scientific research in the area;

4.to invite,as appropriate,other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.①UN Convention on the Law of the Sea,Part IX,at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm.

With regard to cooperation in the management,conservation,exploration, and exploitation of the living resources of the East China Sea,there already exists the 1997 Sino-Japanese Fishery Agreement.In order to implement the partnership described in Article 123,however,China and Japan need to combine this agreement with enhanced cooperation on the protection and preservation of the marine environment and scientific research.To this end,the two countries have already made an effort to build a“conflict avoidance regime on scientific research.”②Mark J.Valencia and Yoshihisa Amae,Regime Building in the East China Sea,Ocean Development&International Law,vol.34,no.2,2003,p.198.On February 13,2001,China and Japan exchanged a note verbale proposing the establishment of a mutual prior notification system on scientific research in the East China Sea,③Japan,China Agreement on Maritime Notice System Detailed,BBC Monitoring Asia Pacific,13 February 2001.but the system did not work successfully for at least two reasons.First,China has been cautious from the very beginning about Japan’s suggestion for establishing such a system,due to the lack of an agreed-upon boundary in the East China Sea.④Supra note,p.198.The 2001 note verbale on mutual prior notification on scientific research is not a treaty.Chinese Foreign Ministry spokesperson Jiang Yu’s remarks on February 8,2007,show that China is not considering prior notification on scientific research within its own EEZ and continental shelf as an obligation,but only as an optional measure taken by each side,aiming at strengthening the mutual confidence and bilateral relations,and it should not affect the attitudes of both sides on the issues concerning the law of the sea.Scientific research in the surrounding waters of the Diaoyu Islands is an exercise of Chinese sovereign right,which has nothing to dowith the“mutual prior notification system.”①Sino-Japanese Prior Notification System on Scientific Research Aiming at Strengthening Mutual Confidence and Bilateral Relations,Xinhua News,8 February 2007,at http:// news.xinhuanet.com/world/2007-02/08/content_5715679.htm.

Second,there is no clear proposition on the scope of application of the prior notification system.The note verbale simply states that each side must inform the other at least two months before its research ships plan to enter waters near the other country if it is an area in which that country“takes interest.”②Mark J.Valencia,The East China Sea Dispute:Context,Claims Issues and Possible Solutions,Asian Perspective,vol.31,no.1,2007,pp.127-128.

However,China and Japan must be very cautious about inviting,in the words of UNCLOS,“other interested states or international organizations to cooperate with them in furtherance of the provisions of this article,”since the maritime issues and disputes in the East China Sea are almost totally bilateral. South Korea is also pertinent to the delimitation of the continental shelf and fisheries activities,but the Korean claims cover a very limited area.The obligation to cooperate provided in Article 123 of UNCLOS is,after all,an obligation to“endeavor,”which encourages mainly regional and bilateral cooperation of the coastal states of an enclosed or semi-enclosed sea.

Ⅴ.Overlapping Claims in the East China Sea and the 1982 UNCLOS

A.Japan’s Claim on Maritime Boundaries: From Median Line to Two Hundred Nautical Miles

Japan ratified UNCLOS on June 20,1996.In its domestic laws,Japan claims on maritime boundaries as follows:a system of straight baselines;a twelve nautical mile territorial sea extending from the strait baselines;three nautical miles of territorial sea in the Soya,Tsugaru,Osumi,Tsushima,and Korea straits;and a two-hundred nautical mile EEZ from the straight baselines,with the Diaoyu Islands as the basis for a full EEZ and continental shelf.③Mark J.Valencia,The East China Sea Dispute:Context,Claims Issues and Possible Solutions,Asian Perspective,vol.31,no.1,2007,p.142.

Beginning in the 1970s,the well-known Japanese attitude on the maritime boundary in the East China Sea was“the median line principle.”The Japanesegovernment had insisted that Japan’s unilaterally drawn median line should be the delimitation boundary both for the EEZs and for the continental shelves of China and Japan in the East China Sea.The western side of the median line has been recognized internationally as an undisputed area.China rejects the median line as legally binding since no Sino-Japanese agreement exists on the boundary of the EEZ,and according to Article 74 of the UNCLOS,“the delimitation of the exclusive economic zone between States…shall be effected by agreement on the basis of international law.”However,in order to avoid creating tensions, since the 1970s China has limited its exploration and exploitation of natural gas and oil to the non-disputed areas.①M(fèi)ark J.Valencia and Yoshihisa Amae,Regime Building in the East China Sea,Ocean Development&International Law,vol.34,no.2,2003,p.191.In June 2004,however,Japan raised its first objections to Chinese activities at the Chunxiao gas and oil field,the undisputed area where China had been conducting exploration of resources for about 30 years,on the grounds that China may siphon off resources that may lie on its side of the line.Furthermore,Japan began to claim that Chunxiao—together with other Chinese gas and oil fields—are also located in the disputed waters.②Kosuke Takahashi,Gas and Oil Rivalry in the East China Sea,Asia Times,27 July 2004.

B.China’s Claim:An Inflexible Natural Prolongation Attitude?

China ratified UNCLOS on June 7,1996.On June 26,1998,China adopted the Exclusive Economic Zone and Continental Shelf Act,declaring a two-hundred nautical mile EEZ.As far as the breadth of the continental shelf,Article 2 of the EEZ and Continental Shelf Law provides that:

The Continental shelf of the People’s Republic of China com prises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin,or to the distance of 200 nautical miles from the baselines from which the breath of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Where is the“outer edge of the continental margin”in the East China Sea according to Chinese claims?China’s official stance on this point became clearon May 11,2009,when it submitted the preliminary survey findings on the outer limits of its continental shelf to the UN Commission on the Limits of the Continental Shelf(CLCS).In its submission,China claims an extended continental shelf beyond two hundred nautical miles to the western slope of the O-kinawa Trough.①Foreign Ministry Spokesperson Ma Zhaoxu’s Remarks on China’s Submission of Preliminary Information Indicative of the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles, Ministry of Foreign Affairs of the People’s Republic of China website,at http://www.fmprc. gov.cn/eng/xwfw/s2510/t562208.htm;UN Division for Ocean Affairs and the Law of the Sea,Preliminary Information on the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles of the People’s Republic of China,11 May 2009,at http://www.un.org/Depts/los/clcs_ new/submissions_files/preliminary/chn2009preliminaryinformation_english.pdf.However,China’s claim on the breadth of the continental shelf is flexible.Consistent with Article 2 of the 1998 EEZ and Continental Shelf Law,China reiterated in the submission its intent to,“through peaceful negotiation,delimit the continental shelf with States with opposite or adjacent coasts by agreement on the basis of the international law and the equitable principle.”

In the 1992 Law on the Territorial Sea and the Contiguous Zone,China made the following claims:straight baselines connecting base-points on the mainland coast and the outermost coastal islands;a territorial sea extending twelve nautical miles from these baselines and from offshore islands,including specifically the Diaoyu Islands;a contiguous zone extending twelve nautical miles from the outer limit of the territorial sea;and sovereignty over the Diaoyu Islands.②Mark J.Valencia,The East China Sea Dispute:Context,Claims Issues and Possible Solutions,Asian Perspective,vol.31,no.1,2007,p.139.

China has never accepted the Japanese median line as even a preliminary line for the negotiation on the delimitation of the continental shelf and EEZ,because Japan drew the median line unilaterally,with the Diaoyu Islands as baseline points.China opposes the Japanese median line not only because China does not believe that the method of equidistance has developed into a rule of customary international law in maritime delimitation,but also because the median line itself was drawn without consultation with China.

Ⅳ.Current Positive Developments in the East China Sea

Despite the sovereignty dispute and the legal confrontations on the princi-ple of delimitation,there are still several positive developments in Sino-Japanese maritime issues.The political and diplomatic efforts of both sides point to a bilateral to settle the maritime delimitation dispute peacefully and on the basis of international law.According to Articles 74 and 84 of UNCLOS:

The delimitation of the exclusive economic zone and the continental shelf shall be effected by agreement on the basis of international law,in order to achieve an equitable solution.Pending agreement,the States concerned,in a spirit of understanding and cooperation,shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period,not to jeopardize or hamper the reaching of the final agreement.Such arrangements shall be without prejudice to the final delimitation.

The Sino-Japanese Fishery Agreement,which went into effect in 2000,is the first specific and legally binding provisional arrangement on the living resources in the two countries’EEZs.①David Rosenberg,China,Neighbors Progress in Fishery Agreements,Asia Times,19 August 2005,at http://www.atimes.com/atimes/China/GH19Ad02.html.The two nations took another positive step on June 18,2008.After more than three years of arduous consultations, China and Japan reached a consensus on the East China Sea issue.Since the nature of the principled consensus currently relies on the political willingness of the two countries,practical arrangements on joint development will hinge on the conclusion of a bilateral treaty with legally binding effect.The participation of Japanese legal authorities in the development of the Chunxiao oil and gas field in accordance with relevant Chinese laws will depend on an agreement and subsequent exchange of notes as well as the fulfillment by both sides of their respective domestic procedures.Different interpretations of the principled consensus and other passive factors,however,have posed challenges to the process of consultation.

A.The New Sino-Japanese Fishery Agreement

Cooperation on fisheries relations between China and Japan began in 1955, before the two countries had established formal diplomatic relations.In 1955, 1963,and 1965,China and Japan concluded three fisheries agreements,whichwere all nongovernmental in nature.①Park Hee Kwon ed.,The Law of the Sea and Northeast Asia:A Challenge for Cooperation,The Hague:Kluwer Law International,2000,p.51.In 1975,after the normalization of diplomatic relations in 1972,China and Japan concluded a governmental fisheries treaty,which went into effect on August 15,1975,and guided fisheries relations in the East China Sea and Yellow Sea between the two countries until June 1, 2000,when the new China-Japan Fishery Agreement came into effect.

The scope of application of the new fisheries agreement includes the EEZs of China and Japan in the East China Sea.Up to 52 miles from their respective baselines in the area between 27°north latitude and 30.4°north latitude,the principle of coastal state jurisdiction is applied,because this area is the undisputed area.According to Article 62 of UNCLOS:

The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone.Where the coastal State does not have the capacity to harvest the entire allowable catch,it shall,through agreements or other arrangements and pursuant to the terms,conditions, laws and regulations referred to in paragraph 4,give other States access to the surplus of the allowable catch,having particular regard to the provisions of articles 69 and 70,especially in relation to the developing States mentioned therein.

Article 123 of UNCLOS also provides the obligation to“endeavor”to coordinate the management,conservation,exploration,and exploitation of the living resources of the sea among the coastal states of a semi-enclosed sea.The agreement stipulates that every year Japan and China must determine the catch quotas,fishing areas,and other terms of fishing for the nationals and fishing vessels of the other signatory states allowed to fish in its EEZ.In their determinations,the countries must take into account the condition of the living resources,their own capacities to harvest the living resources,traditional fishing operations,and other related matters.In doing so,however,each state must observe the recommendations of the China-Japan Joint Fisheries Commission.②Sino-Japanese Fishery Agreement,art.2-3.The agreement also provides that each party may take necessary measures in its own EEZ in accordance with international law to ensure that the nationals and fishing vessels of the other state observe the countries’joint conser-vation measures.①Sino-Japanese Fishery Agreement,art.5.

While the boundary between the EEZs has not been delimited,three fisheries zones were set up under the agreement.Within the three zones,special regimes and jurisdictions are applied.The first area,called the central zone,is located in the area north of 30.4°north latitude and between 124.45°and 127. 3°east longitude,within which fishing ships from both countries may conduct fishing activities without obtaining licenses from the other side.Flag state jurisdiction is applied in this zone.

The second zone is called the provisional measures zone,and is located between 27°and 34.4°north latitude,52 nautical miles beyond the respective basic territorial sea lines of the two countries.In this zone,the principle of flag state jurisdiction is applied to the management of living resources,but to a limited extent,the two parties exercise joint control or enforcement measures by taking appropriate conservation and quantitative management measures,pursuant to the decision made by the China-Japan Joint Fisheries Committee.In the provisional measures zone,if a violation of the operational rules and regulations by the nationals and fishing vessels of the other party is found,the contracting party may call the attention of such nationals and vessels to the fact of the violation and notify the other party of the violation.The latter party shall take necessary measures and notify the former of the result.②Sino-Japanese Fishery Agreement,art.7,para.2-3.

The third zone is the area south of 27°north latitude and west of 125.3° east longitude.Due to the presence of the Diaoyu Islands and Taiwan in this region,the agreement is not applied here,and the existing fisheries regime is maintained.

The 2000 Sino-Japanese Fishery Agreement is a provisional arrangement on the usage and protection of the living resources of the EEZs of the two countries in the East China Sea.Provisions concerning the right of jurisdiction focused solely on fishery matters and on fishing ships flying Japanese and Chinese flags.The agreement did not address which side should exercise jurisdictions on illegal activities operated by other countries,the protection and preservation of the marine environment,and other issues in the fishery zones,such as the exploration and exploitation of nonliving resources,marine scientific research,or the establishment and use of artificial islands,installations,and structures.Thus,in the aforementioned fishery zones,potential conflict overjurisdiction remains,and may occasionally trigger tensions and confrontations.

B.2008 Sino-Japanese“Principled Consensus”

On June 18,2008,Chinese President Hu Jintao and Japanese Prime Minister Yasuo Fukuda reached a principled consensus on turning the East China Sea into“a sea of peace,friendship,and cooperation.”①China,Japan Reach Principled Consensus on East China Sea Issue,Xinhua News,19 June 2008,at http://www.china.org.cn/international/weekly_review/2008-06/19/content_ 15863263.htm.China and Japan agreed that“the two sides will conduct cooperation in the transitional period prior to delimitation without prejudicing their respective legal positions.”The announcement included the following three points:cooperation between China and Japan in the East China Sea,understanding between China and Japan on joint development of the East China Sea,and understanding on the participation of Japanese legal person in the development of Chunxiao oil and gas field in accordance with Chinese laws.

The process of joint development involves multiple steps.First,under the principle of mutual benefit,the two sides must consult with each other in order to decide specific matters concerning joint development.Then,according to the conditions provided in the agreement,the two sides will carry out joint exploration in the areas within the block for joint development.Next,the two countries must select specific areas for joint development within the block.Thus, the precondition of joint development is the conclusion of a bilateral agreement.

With regard to the Chunxiao oil and gas field,the consensus provided that:

Chinese enterprises welcome the participation of Japanese legal person in the development of the existing oil and gas fiel d in Chunxiao in accordance with the relevant laws of China governing cooperation with foreign enterprises in the exploration and exploitation of offshore petroleum resources.②China,Japan reach principled consensus on East China Sea issue,Xinhua News,18 June 2008,at http://news.xinhuanet.com/english/2008-06/18/content_8394206.htm

Accordingly,if any Japanese legal figure is interested in participating in the development of the Chunxiao oil and gas field,they must consult with the Chinese enterprise.

Thus,it seems that the first step concerning joint development in the East China Sea should be business talks between the two parties.On the other hand,both governments must also confirm these talks and their results,and for that purpose,the two governments must work to reach an agreement on an exchange of notes in the near future.Also,the two sides will“fulfill their respective domestic procedures”,as required in the principled consensus①(c)To carry out the above-mentioned joint development,the two sides will work to fulfill their respective domestic procedures and arrive at the necessary bilateral agreement at an early date.Ibid..Anyway, there is still some ambiguity on the meaning of the“domestic procedures”concerning the Chunxiao oil and gas field.Some may argue that business talks themselves should satisfy the requirement of“domestic procedures,”and that the two governments need to start the consultation first.

Ⅶ.Current Problematic Developments

A.Competing Jurisdictional Claims in the East China Sea

In disputed waters with overlapping claims on the continental shelf and the EEZ,joint development of resources could be useful in placing in abeyance the tension caused by competing assertions.Nevertheless,the joint development in disputed waters is,after all,only a provisional arrangement during the transitional period prior to the final delimitation.Agreements mainly designed to arrange the usage and allocation of the resources in question tend to leave other sovereign rights and jurisdictions belonging to the coastal states in an ambiguous and uncertain situation.Thus,the potential for conflicts between the competing states still exists whenever either side exercises its sovereign rights or jurisdictions.

For example,in the 2000 Sino-Japanese Fishery Agreement,there is no mention on the following sovereign rights and jurisdictions:the sovereign right of coastal states over the production of energy from the water,currents,and winds;jurisdictions on the establishment and use of artificial islands,installations,and structures;marine scientific research;and the protection and preser-vation of the marine environment.

The situation will be the same with the joint development zone originally set up in the 2008 principled consensus if a future bilateral agreement does not contain specific provisions on jurisdictional issues.

Another example is the case of competing jurisdictions arising from the sovereignty dispute over the Diaoyu Islands.①Japan Protests Chinese Survey Ships,Asian Surveying and Mapping,18 December 2008, at http://www.asmmag.com/20081218308/japan-protests-chinese-survey-ships. html.On December 8,2008,two patrol vessels belonging to the China Marine Surveillance patrolled in the territorial waters of the Diaoyu Islands for about nine hours.The Japanese government communicated its protest,but the Chinese government dismissed the complaint,saying that the ships were“justified in conducting usual patrol in waters within China’s jurisdiction.”A Foreign Ministry spokesperson added that“the Diaoyu Islands and its adjacent islets have been China’s inalienable territory since ancient times.The activities of China’s Marine Surveillance ships are completely legitimate and undisputable.”②Foreign Ministry Spokesperson Liu Jianchao’s Regular Press Conference on 9 December 2008,Permanent Mission of the People’s Republic of China to the UN website,at http:// www.china-un.org/eng/fyrth/t525645.htm.This incident marked the first time that China had sent patrol vessels in the territorial waters of the disputed islands,but the Japanese government prefers to downplay the effect and significance of this action by emphasizing that the two patrol vessels were survey ships.

In future Sino-Japanese consultations on joint development issues,the Diaoyu Islands will continue to be a key element,since these islands and islets are relevant to the selection of the joint development zones and the final delimitation agreement.According to the Japanese newspaper Sankei Shimbun,during the fourth Sino-Japanese meeting on East China Sea issues held in Beijing on March 6-7,2006,China proposed the inclusion of the Diaoyu Islands in the joint development zones.Japan,however,rejected the proposal.Since the principled consensus provides that“the two sides have agreed to continue consultations for the early realization of joint development in other parts of the East China Sea,”③China,Japan reach principled consensus on East China Sea issue,Xinhua News,18 June 2008,at http://news.xinhuanet.com/english/2008-06/18/content_8394206.htmit is quite possible that China will present the proposal again in future talks.

B.Conflicting Assertions to Outer Continental Shelf Rights

On May 11,2009,China submitted“initial information on the outer limits of the continental shelf beyond 200 nautical miles of some sea areas of the East China Sea”to the UN secretary general.China based its report on the principle of natural prolongation,which has been the legal basis for the country to assert its continental shelf claim in the East China Sea under Article 76 of the 1982 UNCLOS.However,China has always stressed that it“will delimitate maritime boundary under the principle of fairness through peaceful negotiations with neighboring countries connected on the sea,”which indicates that the claim of the continental shelf to the margin of Okinawa Trough is not ultimate and decisive.①China to Delimitate Maritime Boundary through Peaceful Negotiations:Foreign Ministry Spokesman,Xinhua News,12 May 2009,at http://www.gov.cn/misc/2009-05/12/ content_1311390.htm.China is ready to talk with Japan and to adjust the claim.The submission reaffirmed China’s legal position on the delimitation of the continental shelf. The UNCLOS will not discuss China’s submission because the submission itself is only at a preliminary stage,and also because there exist delimitation and territorial disputes between China and Japan in the East China Sea.

China’s assertion on the continental shelf conflicts with Japan’s claim on the continental shelf and the EEZ,which is based on the principle of equidistance.Nevertheless,it seems that Japan has modified its legal position on the basis for its continental shelf and EEZ in recent years by stressing that,according to Article 76 of the 1982 UNCLOS,Japan has a potential right to assert two hundred nautical miles of continental shelf and EEZ in the East China Sea. Accordingly,the Chunxiao,Tianwaitian,and Duanqiao oil and gas fields,which are located on the Chinese side of the median line drawn by Japan,have become“disputed waters.”Based on this new legal position,some Japanese scholars have claimed that the whole East China Sea can be considered“disputed waters.”②Shinya Murase,The Legal Issues of the Delimitation of the Continental Shelf between Japan and China,Kokusai Mondai,no.365,p.2.The new basis of the Japanese claim shatters the implicit consensus that the disputed sea areas lie between the median line claimed by Japan and the Okinawa Trough claimed by China.Where are the disputed sea areas between China and Japan in the East China Sea?This will be the first problemthat negotiators have to resolve in the near future.

C.Protests over Japan’s Claim on the Islet of Okinotorishima as a Basis for Extensive Maritime Claims

On September 15,2009,China confirmed its hard opposition to Japan’s application to the UN CLCS in November 2008,which asked for recognition of Japan’s continental shelf based on Okinotorishima,which China terms“Okinotori rocks.”A subpanel of the UN commission began to examine the submission by Japan that caused China to lodge its opposition.China’s Foreign Ministry spokesperson Jiang Yu stated at a news briefing that“China’s position on the issue is consistent,and we hope the UN Commission on the Limits of the Continental Shelf will handle the problem properly.”

On the Okinotorishima issue,the Sino-Japanese dispute centers on the legal status of the small atolls and the interpretation of Article 121 of the 1982 UNCLOS.According to Article 121,paragraph 3,of UNCLOS,“rocks which cannot sustain human habitation or economic life of their own should have no exclusive economic zone or continental shelf.”①UNCLOS,Art.121,para.3.The Okinotorishima issue is a legal dispute concerning the interpretation of Article 121 of the UNCLOS.The dispute is by no means only between Japan and China;rather,it includes the claims of all coastal states on Okinotorishima’s continental shelf beyond two hundred nautical miles and the interests and rights of the other party states of the 1982 UNCLOS under legal regimes of the high seas and the area.The Okinotorishima issue is not directly connected with the joint development and cooperation in the East China Sea,but China’s maritime interests,including the freedom of the high seas provided in Article 87 of the UNCLOS and the activities in the area,will be hindered if Japan has its way.In that sense,the Okinotorishima matter is another passive factor affecting the consultation process of joint development in the East China Sea.

In addition to the recent problematic developments,the existence of the sovereignty dispute over the Diaoyu Islands,and the lack of consensus on the function of the Diaoyu Islands in maritime delimitation,other legal and political obstacles may impede cooperation on joint development of energy resources in the East China Sea.

The lack of a Sino-Japanese consensus on the legal status of the Chunxiao oil and gas field is causing new tension.On January 17,2010,Japanese Foreign Minister Katsuya Okada told his Chinese counterpart,Chinese Foreign Minister Yang Jiechi,that Japan will“take certain action”if Beijing violates a 2008 agreement over disputed gas exploration projects.Minister Yang expressed strong opposition after Okada suggested that Japan may start development on its own in the area.①Okada Warns China on Gas-Drilling Pact,Japan Times,18 January 2010,at http:// www.japantimes.co.jp/cgi-bin/nn20100118a2.html.What the Japanese side mentioned as“the disputed gas exploration project”is clearly the Chunxiao and Tianwaitian gas and oil fields. According to the principled consensus,a Japanese legal person must participate in the development of the Chunxiao oil and gas field under Chinese law.The opposing attitudes on the legal status of the Chunxiao oil field result from the lack of a consensus on the disputed areas in the East China Sea.Japan formerly claimed that the Japanese-drawn median line should be the line of delimitation. However,as mentioned above,Japan changed its attitude on the rule of maritime delimitation from the well-known median line to two hundred nautical miles.However,an incident at the end of 2001 showed that at least at that time, Japan did not consider the area on the west side of the median line to be disputed waters.Japan reported the incident as follows:

On 21 December 2001,Tokyo scrambled 20 patrol vessels and 14 planes in pursuit of a suspected North Korean Spy Boat that was cruising within Japan’s Exclusive Economic Zone(EEZ).The ship,which did not appear to be carrying any fishing gear,ignored repeated orders to stop.According to Japanese Coast Guard(JCG)officials,its patrol boats fired 13 warning shots from 20mm machine guns.On the evening of 22 December,the ship’s stern caught fire,reportedly from a round fired by one of the coast guard patrol boats and came to halt 90 minutes later after it was surrounded by four Japanese vessels.While hel d at bay,the suspect crew used submachine guns to fire back at the patrol boats and injured two coast guard sailors.The boat sank abruptly at 22:13 local time within China’s EEZ in approximately 90 meters(297 feet)of water.②Japan Maritime Self Defence Force,GlobalSecurity.org,at http://www.globalsecurity. org/military/world/japan/jmsdf.htm.

The location where the suspicious boat sank was on the western side of the median line.In order to salvage the sank boat,Japanese government negotiated with the Chinese government for several months and paid more than 100 million yen to satisfy the Chinese side,because China announced that the area where Japan was operating the salvage was within China’s EEZ.China claimed that Japan’s activity in that region had prevented China from exercising its sovereign right over living resources and jurisdiction over marine environmental protection.The settlement of that incident indicated that Japan did not consider the sea area on the western side of the median line as its EEZ,nor as its continental shelf.The overlapping Sino-Japanese continental shelf should be the seabed between the median line claimed by Japan and the Okinawa Trough claimed by China.

Ⅷ.Recommendations

Sino-Japanese cooperation on maritime energy resources is facing a dilemma.Nonetheless,although challenges remain,previous efforts to build a cooperative framework and positive signs following Chinese Premier Wen Jiabao’s visit to Japan in May 2010 indicate that opportunities exist to resolve East China Sea issues,especially the delimitation of maritime boundaries.During Premier Wen’s talks with his Japanese counterpart,Prime Minister Yukio Hatoyama,the leaders agreed to re-establish a hot line between the two premiers, launch negotiations on implementing the principled consensus on the East China Sea,expedite the establishment of a maritime communication mechanism between the countries’defense departments,and sign an agreement on maritime rescue.①Highlights of Chinese Premier’s Tour in Japan,China Daily,1 June 2010,at http:// www.chinadaily.com.cn/china/2010wentour/2010-06/01/content_9917026.htm.

The conclusion of the 2008 Sino-Japanese principled consensus is a major step toward future cooperation on maritime energy resources,but it is only the initial stage in a larger process.Both joint development as a whole and the cooperative development of the Chunxiao oil and gas field require further negotiation.In other words,the 2008 agreement only made an outline for future negotiation.In order to advance the process of cooperation,necessary conditions and mutual compromise are required.

First,the two countries must continue to exchange views,either officially or unofficially,in order to enhance mutual understanding and lessen distrust. There is no legal obligation under the agreement that China or Japan must promise to hold successful negotiations,but according to Article 283,section 2, of UNCLOS,the exchange of views is an obligation of party states:

The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of im plementing the settlement.

Therefore,no matter how many differences and confrontations exist in their respective legal positions,China and Japan,as party states of UNCLOS, have the obligation to keep exchanging views on their maritime disputes.

Second,China and Japan must reach an arrangement on the disputed territory of the Diaoyu Islands.International lawyers have suggested that the countries need to establish an agreement to remove use of the Diaoyu Islands as a basis for their EEZ or continental shelf claims.In this way,the sovereignty dispute can be separated from the maritime delimitation issue.①M(fèi)ark J.Valencia,The East China Sea Dispute:Context,Claims Issues and Possible Solutions,Asian Perspective,vol.31,no.1,2007,p.158;Guoxing Ji,Zhongguo de hai yang an quan he hai yu guan xia[China’s Marine Security and Maritime Jurisdiction],Shanghai: Shanghai ren min chu ban she,2009,p.295.

Third,if both countries can promote the principled consensus smoothly, then the establishment of joint development zones near the Diaoyu Islands could accelerate the process of cooperation.China proposed these zones during the fourth round of the Sino-Japanese talks on East China Sea issues,but the Japanese side rejected the proposal.②Kung-wing Au,The East China Sea Issue:Japan-China Talks for Oil and Gas,East Asia, vol.25,no.3,September 2008,pp.223-41.According to the 2008 consensus,“[t]he two sides have agreed to continue consultations for the early realization of joint development in other parts of the East China Sea.”The 2008 agreement does not directly mention the Diaoyu Islands issue,but its absence does not mean that the matter is irrelevant to the Sino-Japanese maritime dispute in the East China Sea.On the contrary,the Diaoyu Islands issue is the most essential feature of the dispute.Either through the model of joint development or a legalsolution,China and Japan need to make arrangements to resolve the sovereignty dispute,which constitutes the basis and even the pre-condition for the smooth settlement of the delimitation issue in the East China Sea.

Fourth,the two countries should consider the possibility of resolving the maritime delimitation dispute through an international judicial settlement.On February 22,2010,Japanese Chief Cabinet Secretary Hirofumi Hirano said that Japan may take its dispute with China over the development of a natural gas field in the East China Sea to an international maritime tribunal:“Naturally,we may consider taking appropriate action if the agreement isn’t observed…We’ll negotiate with China as to what specific things might be done.”①Takashi Hirokawa and Sachiko Sakamaki,Japan May Take China to Tribunal over East China Sea Gas Field,Bloomberg,21 February 2010,at http://www.bloomberg.com/ apps/news?pid=newsarchive&sid=aoj EN5z UTRGU.In any case, Japan cannot take China to any tribunal or arbitration unless China agrees to do the same,since China has a written declaration under Article 298(optional exceptions to applicability of section 2)that“the Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1(a)(b)and(c)of Article 298 of the Convention.”②International Tribunal for the Law of the Sea(ITLOS),Declaration of States Parties Relating to Settlement of Disputes in Accordance with Article 298(Optional Exceptions to the Applicability of Part XV,Section 2,of the Convention,at http://www.itlos.org/fileadmin/itlos/documents/basic_texts/298_declarations_June_2011_english.pdf.Accordingly,Japan cannot take China to any international court or tribunal—namely,the International Court of Justice(ICJ),the International Tribunal for the Law of the Sea(ITLOS),or an arbitral tribunal—or submit the East China Sea disputes unilaterally,unless China withdraws the above declaration,or the two countries reach an agreement on the submission.③UNCLOS Art.298(2)provides that“A State Party which has made a declaration under paragraph 1 may at any time withdraw it,or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention.”This is primarily because Article 299 of UNCLOS requires that a dispute“excepted by a declaration made under Article 298 from the dispute settlement procedures provided for in section 2 may be submitted to such procedures only by agreement of the parties to the dispute.”

China has not responded directly to the Japanese proposal.Is Japan suggesting that it is willing to resolve all East China Sea issues,including the sovereignty dispute over the Diaoyu Islands,through international judicial settle-ment?Or does Japan only intend to separate the maritime delimitation issue from the sovereignty dispute?In either case,the suggestion of taking the entire to an international court may lead to an exit from the dilemma,but only if the two countries can reach a mutually acceptable arrangement over the Diaoyu Islands.

Historically,China has avoided resolving disputes through the international court system.This attitude was understandable in the past years,when China was isolated from the rest of the world.But the situation is different now in light of China’s increased global engagement and the presence of Chinese judges in the ICJ,the ITLOS,and the International Permanent Court of Arbitration(IPCA).Moreover,the East China Sea delimitation issue differs from disputes in the South China Sea,where overlapping claims on sovereignty disputes and maritime delimitations among six parties are far too complicated to be settled legally through international courts.

If China and Japan are unable to reach a consensus on the scope of the disputed waters or the difference between joint development and cooperative development,then there seems no reason to adhere to the joint development model.A clearly delimited maritime boundary in the East China Sea will be more favorable for Sino-Japanese cooperation in scientific research,environmental protection,and in other fields.The problem of potential jurisdictional conflict over issues such as illegal fishing and other unlawful activities operated by ships of a third state can be dissolved naturally.Clearly,China and Japan need a new approach to resolve their legal disputes.

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(Editor:JIANG Jiadong; English Editor:Joshua Owens)

*GONG Yingchun,Associate Professor of International Law at China Foreign Affairs University.E-mail:gyc@cfau.edu.cn.