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China and Japan Maritime Disputes in the East China Sea: A Note on Recent Developments

2012; Taylor & Francis; Volume: 43; Issue: 3 Linguagem: Inglês

10.1080/00908320.2012.698931

1521-0642

Suk Kyoon Kim,

Abstract This article examines recent developments in the East China Sea maritime disputes, focusing primarily on the Principled Consensus agreed on by China and Japan for the joint development of energy resources. The article also provides a perspective on the East China Sea maritime disputes between the two countries within the context of international relations. Keywords : East China Seamaritime disputejoint developmentPrincipled Consensus Acknowledgments The opinions expressed in this article are solely the views of author and are not intended to reflect the positions of the Korean Coast Guard or the Korean government. Notes 1. The East China Sea is bounded on the east by the Kyushu and Ryukyu Islands, on the south by Taiwan, and on the west by mainland China. It is connected with the South China Sea by the Taiwan Strait and with the East Sea of Korea by the Korea Strait. 2. 2. Hereinafter, this feature is referred to as Senkaku for simplicity. Senkaku means “pinnacle house” in Japanese while Diaoyu means “fishing platform” in Chinese. 3. “China-Japan Economic, Trade Ties Have Great Potential to Tap,” Xinhua News, May 4, 2008, available at news.xinhuanet.com/english/2008–05/04/content_8104901.htm: “According to China's Ministry of Commerce, two-way trade between the two countries climbed by 13.8% year-on-year to 236 billion U.S. dollars in 2007. Japan became China's biggest exporter and its fourth biggest export market.” 4. As reported in Chosun Ilbo (Korean daily newspaper), “Japan Decided to Release Chinese Captain” (translated by author), September 24, 2010, available at news.chosun.com/site/data/html_dir/2010/09/24/2010092401000.html. 5. Principled Consensus on the East China Sea Issue, agreed on June 18, 2008, between China and Japan, reprinted as an appendix to Gao Jianjun, “A Note on the 2008 Cooperation Consensus Between China and Japan in the East China Sea,” Ocean Development and International Law 40 (2009): 301–303. 6. See Ministry of Foreign Affairs of Japan, “Statement by the Press Secretary on the Collision Between Japan Coast Guard Patrol Vessels and a Chinese Fishing Trawler in Japan's Territorial Waters off the Senkaku Islands,” September 25, 2010, available at www.mofa.go.jp/announce/announce/2010/0/0925_01.html. 7. See Foreign Ministry spokespersons’ remarks on Chinese landing on Diaoyu Islands, March 25, 2004; building a lighthouse on the Diaoyu Islands, February 11, 2005; maritime scientific exploration in the waters adjacent to the Diaoyu Islands, February 6, 2007; Japanese Coast Guard stationing patrol vessels in the waters off the Diaoyu Islands, February 6, 2009; and Japan detaining captain of the Chinese fishing boat, September 2009, all available at www.fmprc.gov.cn. 8. See the Foreign Ministry of China, “Spokesperson Hong Lei Expressed Solemn Position on Japanese Right-Wing Activists’ Landing on the Diaoyu Island,” January 13, 2012, available at www.fmprc.gov.cn/eng/xwfw/s2510/2535/t892708.htm. 9. For detailed review of the maritime boundary dispute, see Choon-ho Park, East Asia and the Law of the Sea (Seoul: Seoul National University Press, 1983), 29–30; Suk Kyoon Kim, “Understanding Maritime Disputes in Northeast Asia: Issues and Nature,” International Journal of Marine and Coastal Law 23 (2008): 222–226; and Chinese Foreign Ministry spokesperson Qin Gang's regular press conference, April 12, 2007, available at www.fmprc.gov.cn/eng/xwfw/s2510/t310954.htm. 10. Japan, Executive Summary, Submission to the Commission on the Limits of the Continental Shelf (CLCS), available at www.un.org/depts/los/clcs_new/clcs_home.htm. 11. Preliminary Information Indicative of the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles of the People's Republic of China, May 11, 2009, available at the CLCS Web site, supra note 10. 12. See James Maincom, “China's Claims to an Extended Continental Shelf in the East China Sea: Meaning and Implications,” China Brief 9, no. 14 (2009), available at http://www.jamestown.org/programs/chinabrief/single/?tx_ttnews%5Btt_news%5D=35243&tx_ttnews%5BbackPid%5D=459&no_cache=1. 13. U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397. 14. See, generally, Ji Guoxing, “Similarities and Differences Between the Korean-Japanese Dokdo Disputes and the Sino-Japanese Diaoyudao Disputes,” in Dokdo: Historical Appraisal and International Justice, eds. Seokwoo Lee and Hee Eun Lee (Leiden: Martinus Nijhoff, 2011), 205; and Mark J. Valencia, “The East China Sea Dispute: Context, Claims, Issues, and Possible Solutions,” Asian Perspective 31 (2007): 154. 15. See Suk Kyoon Kim, “Understanding Maritime Disputes in Northeast Asia: Issues and Nature,” International Journal of Marine and Coastal Law 23 (2008): 240. 16. Ibid. 17. Xie Ye, “Oil Giants Depart Xihu Trough Gas Project,” China Daily, September 30, 2004, available at www.chinadaily.com.cn/english/doc/2004–09/30/content_378922.htm. 18. See Kim, supra note 9, at 240–241. 19. Ibid. 20. “Japan Must Listen to Beijing's Call for ‘Joint Development,’” Asahi Shimbun, June 24, 2004, available at search.digitalreasoning.com/WBIL/10/WBIL2005_153141.txt. 21. Kung-wing Au, “The East China Sea Issue: Japan-China Talks for Oil and Gas,” East Asia 25 (2008): 225. 22. Xie Ye, supra note 17. 23. Valencia, supra note 14, at 132. 24. Kung-wing Au, supra note 21, at 226. 25. James Manicom, “Hu-Fukuda Summit: The East China Sea Dispute,” China Brief 8, no. 12 (2008), available at http://www.jamestown.org/programs/chinabrief/single/?tx_ttnews%5Btt_news%5D=4968&tx_ttnews%5BbackPid%5D=168&no_cache=1. 26. Valencia, supra note 14, at 132. 27. Kung-wing Au, supra note 21, at 233. 28. Principled Consensus, supra note 5. 29. Ibid. “ … the two sides will conduct cooperation in the transitional period prior to delimitation without prejudicing their legal respective.” 30. LOS Convention, supra note 13, arts. 74(3) and 83(3): “the States concerned, … shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.” 31. Xinjun Zhang, “Why the 2008 Sino-Japanese Consensus on the East China Sea Has Stalled: Good Faith and Reciprocity Considerations in Interim Measures Pending a Maritime Boundary Delimitation,” Ocean Development and International Law 42 (2011): 57. 32. Gao Jianjun, supra note 5, at 297. 33. Vienna Convention on the Law of Treaties, Article 2(1)(a), 1155 U.N.T.S. 331. 34. Agreement Between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, adopted in Seoul, Korea, on 30 January 1974, 1225 U.N.T.S. 113. 35. “Wen Open to Treaty to End Gas Field Row,” Japan Times, June 1, 2010, available at search.japantimes.co.jp/cgi-bin/nn20100601a1.html. 36. See “China Says Wells in Disputed Gas Field Are Operational,” Asahi Shimbun, March 10, 2011, available at www.asahi.com/english/TKY201103090272.html. 37. Foreign Ministry spokesperson Hong Lei's regular press conference, December 26, 2011, available at www.fmprc.gov.cn/eng/xwfw/s2510/2511/t891074.htm. 38. The Ministry of Foreign Affairs of Japan, “Japan-People's of Republic of China Summit Meeting(Summary),” available at www.mofa.go.jp/region/asia-paci/china/meeting1112.html. 39. “China Develops Gas Field in East China Sea,” Reuters, available at www.reuters.com/article/2009/01/04/japan-china-gas-idUST33874420090104. 40. Ibid. 41. “China's Foreign Ministry Spokesperson Qin Gang's Remarks on the So-called China's ‘Unilateral’ Development of ‘Tianwaitian’ Oil and Gas Field,” January 5, 2009, available at www.mfa.gov.cn/eng/xwfw/s2510/2535/t530392.htm. 42. Hee Cheol Yang, “Joint Development Arrangement in the East China Sea and Its Legal Issues” (translated by author), presented in the 5th International Maritime Security Conference, May 25–27, 2011, Incheon, Korea. 43. Wenran Jiang, “East Asia's Troubled Waters―Part I,” Yale Global, April 25, 2006, available at yaleglobal.yale.edu/print/3135. 44. See Gao Jianjun, supra note 5, at 295. 45. “China's Foreign Ministry Spokesperson Jin Yu's Remarks on the East China Sea Issue,” June 18, 2008, available at www.fmprc.gov.cn/eng/xwfw/s2510/2535/t466626.htm. 46. See “Joint Press Conference by Minister for Foreign Affairs Masahiko Koumura and Minister of Economy, Trade and Industry Akira Amari (Regarding Cooperation Between Japan and China in the East China Sea),” June 18, 2008, Japan's Ministry of Foreign Affairs, available at www.mofa.go.jp/announce/fm_press/2008/6/0618.html. 47. See “Press Conference by Minister for Foreign Affairs Hirofumi Nakasone, the Development of Natural Resources in the East China Sea (The Transport of Materials into Shirakaba Gas Field by Chinese Vessels),” July 14, 2009, Japan's Ministry of Foreign Affairs, available at http://www.mofa.go.jp/announce/fm_press/2009/7/0714.html. 48. Cho Un Chan and Cho Hong Min, “The Conflicts Between China and Japan Spread to the Chunxiao Field” (translated by author), Kyunghyang Shinmun, September 19, 2010, available at news.khan.co.kr/kh_news/khan_art_view.html?artid=201009192236235&code=970204. 49. “It Is at the Stage of Production in the Chinese Gas Field in the East China Sea” (translated by author), Yonhap News, March 9, 2011, available at app.yonhapnews.co.kr/YNA/Basic/article/new_search/YIBW_showSearchArticle_New.aspx?searchpart=article&searchtext=%ec%a4%91+%eb%8f%99%ec%a4%91%ea%b5%ad%ed%95%b4+%ea%b0%80%ec%8a%a4%ec%a0%84%2c+%ec%83%9d%ec%82%b0%eb%8b%a8%ea%b3%84+&contents_id=AKR20110309010600073. 50. The joint development zone created in the 1974 Agreement, supra note 34, covers 24,092 square nautical miles of overlapping claim areas in the northern part of the continental shelf adjacent to the two countries. The zone is connected by 20 segments of straight lines and subsequently is divided into 9 subzones, each of which will be explored and exploited by concessionaires of the two countries. 51. See Hurst Groves, “Offshore Oil and Gas Resources: Economics, Politics and the Rule of Law in the Nigeria-Sao Tome E Principle Joint Development Zone,” Journal of International Affairs 59 (2005): 257. 52. Under this form of joint development structure, each government is entitled to nominate its own concessionaires to undertake development activity. Having each nominated one or more concessionaires to develop a specific part of the zone, the governments are required to ensure that its concessionaires enter into a joint operating agreement with each other. 53. Neither state is directly responsible for the management of development nor choosing concessionaires. Instead the states delegate the power they have with respect to such management to a single body, which could be called a joint authority. 54. This is a form of joint development that allows one state to manage development of the resources on behalf of both, with the other state's participation limited to revenue sharing and monitoring. 55. Robert Marquand, quoted in Gerald Curtis, “Japan-China Tensions Rise over Tiny Islands,” Christian Science Monitor, February 25, 2010, available at www.csmonitor.com/2005/0211/p01s03-woap.html. 56. “Amid Tension, China Blocks Vital Exports to Japan,” New York Times, September 22, 2010, available at www.nytimes.com/2010/09/24/business/global/24rare.html?_r=1&scp=1&sq= amid%20tension,%20china%20blocks%20vital%20exports%20to%20japan&st=cse, September 22, 2010. 57. “Peaceful Rising” has been referred to by several of China's top leaders. For example, President Hu Jintao said in a speech in December 26, 2003, to commemorate the 110th birthday of Mao Tse Tung that: “We must adhere to independently build up Chinese socialism. … We need to stick to the principle of Peaceful Rising and cooperate with other countries on an equal basis and commit to peace and progress of the world” (translated by author), available at big5.china.com.cn/chinese/zhuanti/hpd1/1125337.htm. 58. Japan and United States Treaty of Peace, September 8, 1951, 136 U.N.T.S. 45. 59. Min Gyo Koo, Island Disputes and Maritime Regime Building in East Asia: Between a Rock and a Hard Place (New York: Springer), 133. 60. Japan and the United States Treaty of Mutual Cooperation and Security, January 19, 1960, 373 U.N.T.S. 179. 61. “U.S. Works to Ease China-Japan Conflict,” New York Times, October 30, 2010, available at www.nytimes.com/2010/10/31/world/asia/31diplo.html?_r=1&scp=1&sq=u.s%20works%20to%20 ease%20china-japan%20conflict&st=cse, October 30, 2010. 62. Ibid. 63. Treaty of Mutual Cooperation, supra note 60, Article 5, states: “Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” President Obama said in consultations with Prime Minister Yukio Hatoyama on November 14, 2009, that he regards the alliance with Japan as the cornerstone of U.S. engagement throughout the Asia-Pacific region, available at www.america.gov/st/peacesec-english/2009/November/20091113215718dmslahrellek0.4669415.html#. President Obama and Prime Minister Kan Naoto on September 23, 2010, reaffirmed their commitment to strengthening the U.S.-Japan alliance, which plays a key role in promoting stability and prosperity in the Asia-Pacific region and directly benefits both nations. White House press briefing, available at www.whitehouse.gov/the-press-office/2010/09/23/readout-president-obamas-meeting-with-prime-minister-japan-naoto-kan. 64. See Joint Statement of the 2nd ASEAN-U.S. Leader's Meeting, New York, September 24, 2010, available at www.aseansec.org/25233.htm. 65. Josep Nye said in an interview with Munhwa Ilbo (Korean daily newspaper) on January 1, 2001, that for the integration policy, the United States intends China to comply with international rules and take responsibility by joining international regimes such as the World Trade Organization. As an insurance policy, the United States intends to strengthen its alliance with Japan and Korea as an effort to keep China on the right course. 66. “China's Disputes in Asia Buttress Influence of U.S.,” New York Times, September 23, 2010, available at www.nytimes.com/2010/09/23/world/asia/23china.html. 67. See Suk Kyoon Kim, supra note 15, at 235. 68. Dong-A Ilbo (Korean daily newspaper), August 11, 2004, reported that the Varyag, a 67,700-ton conventional aircraft carrier, can accommodate 1,900 crew and 52 aircraft. China purchased it from Ukraine in 1998 and remodeled it for active use. 69. “China Deployed an Aircraft Carrier Near Seoul,” Dong-A Ilbo, January 19, 2012, available at news.donga.com/3/all/20120119/43420454/1. 70. U.S. Department of Defense, “Chinese Vessels Shadow, Harass Unarmed U.S. Survey Ship,” March 29, 2009, available at www.defense.gov/news/newsarticle.aspx?ix=53401. 71. “Concern for Conflict Between U.S. and China in the South China Sea by Deployment of a Stealth Ship” (translated by the author), Yonhap News, September 4, 2011, available at www.yonhapnews.co.kr/bulletin/2011/09/04/0200000000AKR20110904076600083.HTML?did=1179m. 72. See U.S. Department of Defense, “Sustaining U.S. Global Leadership: Priorities for 21st Century Defense, announced by President Obama,” January 3, 2012, available at www.defense.gov/news/Defense_Strategic_Guidance.pdf. 73. Ibid. 74. See Japan's Ministry of Foreign Affairs, “National Defense Program Guidelines for FY 2011 and Beyond,” December 17, 2010, available at www.mofa.go.jp/policy/security/pdfs/h23_ndpg_en.pdf. 75. The RIM-161 Standard Missile (SM-3) is a ship-based missile used to intercept short- to intermediate-range ballistic missiles as a part of the Aegis Ballistic Missile Defense System. It is primarily used by the U.S. Navy. 76. See Japan's Ministry of Foreign Affairs, “National Defense Program Guidelines,” supra note 74. 77. Japan's Ministry of Defense, press conference on August 23, 2011, available at www.mod.go.jp/e/pressconf/2011/08/110823.html. 78. “Japan Dispatched Another Patrol Ship to Disputed Senkaku Islands” (translated by the author), Chosun Il Bo, September 23, 2011, available at news.chosun.com/site/data/html_dir/2011/09/23/2011092300156.html.