Hong Kong Paper Views Sino-Japanese Sea Border Dispute

Text of article by Li Yong entitled: “Okinotorishima has no exclusive continental shelf”, published by Hong Kong newspaper Ta Kung Pao website on 22 March

Judging from the practice of international law and tribunals, Okinotorishima should not have its own exclusive economic zone or continental shelf. If full autonomy is conferred to Okinotorishima, the implication is that China has no alternative but to adopt a “middle-line principle” to demarcate the East China Sea continental shelf between China and Japan, by which China will lose access to massive marine resources. This, obviously, is unreasonable and unfair to China.

According to United News Agency in Tokyo on 6 March, Japan’s coastal policing troops have already erected a lighthouse close to a Pacific Ocean isle over which a controversy with China has been ignited. Once again, Japan is adopting an extreme hard line stance demonstrating its views on the international legal status of Okinotorishima as belonging to islets, while targeting the views of China that Okinotorishima is a coral reef.

Okinotorishima originally constituted a few pieces of coral reef in the Pacific Ocean in the southern part of Japan, spanning only 6.75 meters in area, which is equivalent to the size of “four and a half tatamis,” and is almost submerged beneath the water. When the tide is full, only the northern boulder and eastern boulder emerge above the water. To save Okinotorishima from complete submergence or vanishing altogether, the Japanese government has, beginning in 1988, spent 48 billion yen on conducting consolidation work with steel facilities and cement reinforcements to complete a meteorological observatory installation and helipads to create the impression that it is being utilized.

Unfit for Human Habitation

Okinotorishima is Japanese territory. On this issue, there is no longer any territorial dispute between China and Japan. The focus of controversy is centred on whether Okinotorishima possesses its own exclusive economic zone. The fundamental cause of the debate can be traced to the differences in the views of China and Japan about the status of Okinotorishima in international law.

First, according to the UN Convention on the Law of the Sea, Okinotorishima should not possess an exclusive economic zone or continental shelf. Islands possess a relatively more important status in maritime law, of which the definition of an island directly implicates the island’s legal status. Article 121 in the Eighth Section of the UN Convention on the Law of the Sea focusing on island systems is as follows:

(1) Islands are totally surrounded by sea and during full tide, they form a natural land area above the water surface

(2) Apart from the third clause or other regulations, the marine territory of an island, its neighbouring area, exclusive economic zone and continental shelf should be ascertained based on regulations applicable to other land territories in line with this convention.

(3) Reefs that are unable to sustain human habitation or their own economic livelihood should not possess exclusive economic zones or a continental shelf.

The first article about an island’s definition stipulates the natural geographical attributes of islands, while the second and third articles differentiate between an island and a reef that sustains no human habitation or its own economic viability, demarcating different statuses in maritime jurisdictions.

Japan Possesses Only Part of Demarcation Rights

Judging by the natural conditions of Okinotorishima, it is obvious that it cannot count on its own resources for the sustenance of its economic viability, without the need to importconsiderable resources from outside. So, the third type of delineation of Article 121 should apply here. It lacks eligibility for the application of the first type of definition under Article 121. The first article specifies that “islands are totally surrounded by sea and during full tide form a natural land area above the water surface,” so this rules out the possibility of man-made material constituting marine territory. Okinotorishima is not completely naturally formed, but an extension of man-made constructions by the Japanese government. Therefore, based on the UN Convention on the Law of the Sea of 1982, the “Okinawa trough” should not have exclusive economic zones or continental shelves.

Second, according to national practice, Okinotorishima should not have exclusive economic zones or continental shelves. The 1982 UN Convention on the Law of the Sea made no specification about the status of islands in marine demarcations. From the viewpoint of national practices, islands are of three major types in maritime demarcations: islands enjoy total autonomy rights, partial rights or zero rights.

In national practice, the role of islands in demarcations is influenced by the constraints of several factors such as geographical location, area, demography as well as politics and economy. Islands located within the scope of maritime territories or those with a larger geographical area and population, in actual demarcation practices, tend to be given full autonomy rights. Those located near the central axis or those remote from their own national land territories are often conferred with partial autonomy rights and those islands whose sovereignty is a focal point of controversy are usually given zero autonomy rights.

Okinotorishima is far from Japan’s hinterland, with a tiny area, inhabited by no people and cannot support human habitation. Judging by national practice, Okinotorishima enjoys partial autonomy rights in demarcation and can at most enjoy 12 nautical miles of sea territory, but without any claim to a continental shelf or excusive economic zone.

In addition, from the perspective of international law and tribunal practice, Okinotorishima should not possess exclusive economic zones or a continental shelf. In 1977, the Straits islets on the British-French continental shelf were given only partial maritime rights of 12 nautical miles. In the continental shelf case of Tunisia and Libya in 1982, the Kerkennah Islands were given partial rights. In the Gulf of Maine case of 1984, even Seal Island and Mud Island were conferred only partial sovereignty rights although they were close to each other, inhabited by people and affected by no disputes over territorial claims. In the Libya-Malta case of 1985, it was ruled that the uninhabited Filfla Island could not be used as a baseline for demarcation and that this island had zero right to sovereignty.

Only 12 Nautical Niles of Marine Sovereignty Granted

According to international law and tribunal practices, the legal status of islets in international law has different levels of legal binding powers, depending on the different geographical locations, geographical size and habitation conditions of the islets concerned. In a concrete case like Okinotorishima, due to its own unique geographical characteristics, it can only be given 12 nautical miles of sovereignty and no other rights.

The Sino-Japanese controversy revolving around Okinotorishima centres not only on whether the Okinawa trough should possess exclusive economic zones, but also concerns the legal status of the Okinawa trough between China and Japan. Occupying a special geographical location, Okinotorishima is located on the western side of the Okinawa trough on our country’s continental shelf in the East China Sea.

Spanning 1,200 kilometres, the sea trough forms a submerged basin on the western continental shelf. East of the trough is the Ryukyu arc, with hyperactive earth crust activities and thus strong folds are formed. The Okinawa trough is not only different from the continental shelf in geological makeup, it forms a natural boundary between the natural extension of our country’s land territory and the Ryukyu islets.

Central Axis Theory Unfair to China

Japan asserts that the Okinawa trough is only an occasional depression in the continental shelf linking the two countries. China and Japan are located on the same continental shelf, so insisting on the central axis principle to split the continental shelf with our country has no basis in fact.

Okinotorishima is located on the western side of the Okinawa trough, atop the continental shelf of our country’s East China Sea. The reason behind Japan’s insistence on the territorial claim of 200 nautical miles of exclusive economic zone is based on the following two considerations: first, without sovereignty claims conferred on these isolated islets, Japan will find it difficult to rebut the argument that the external boundary of the continental shelf on the East China Sea is the central axis of the Okinawa trough. Second, overlooking these islets and confining the continental shelf of Japan to its coastal region will jeopardize Japan’s stance towards China, so that Japan would be separated from the entire continental shelf of the East China Sea.

Hence, Okinotorishima has a special geographic location and the outcome of its legal status will have a direct bearing on the demarcation of the East China Sea continental shelf between China and Japan. If Okinotorishima is given the full rights of territorial claim, it will, to a certain extent, reflect the “co-locations on a common continental shelf” between China and Japan as advocated by Japan.

Hence, it can be seen that Japan’s insistence that Okinotorishima be given the full rights of territorial claim is linked to its propositions on the Okinawa trough and East China Sea continental shelf. If Okinotorishima is given full rights of territorial claim, it implies the possibility that China may have no alternative but to abide by the “central axis principle,” rather than the boundary line of the Okinawa trough to demarcate the East China Sea continental shelf between China and Japan. This means that China will lose access to massive marine resources, which is unreasonable and unfair to China.

(c) 2007 BBC Monitoring Asia Pacific. Provided by ProQuest Information and Learning. All rights Reserved.