Thursday, November 25, 2010

Reply to Tkacik from Cohen/Van Dyke

Location of the Senkakus.

Jerome Cohen and Jon M. Van Dyke have written a response to John Tkacik's response to their claims. The U.S.-Asia Law Institute at NYU has graciously permitted me to host it, so here it is in its entirety. Cohen and Van Dyke are making the case that the Senkakus belong to China. The original is online at the U.S.-Asia Law Institute at NYU.


The Diaoyu/Senkaku Islets Should Be Ignored in the Maritime Delimitation of the East China Sea

By Jerome A. Cohen and Jon M. Van Dyke

Two separate approaches lead to the conclusion that the Diaoyu/Senkaku Islets should not be a factor in delimiting the maritime boundary of the East China Sea. First, these five small volcanic features northeast of Taiwan (measuring seven square kilometers altogether) must be viewed as “rocks” under Article 121(3) of the Law of the Sea Convention, because they “cannot sustain human habitation” and have no “economic life of their own.” Second, even if it could be concluded otherwise, these features would still be ignored in a maritime delimitation, because every recent ruling by the International Court of Justice (ICJ) and other international tribunals has ignored small isolated islets in awkward locations to avoid reaching an inequitable delimitation result.

Paragraph 3 of Article 121 (“Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”) was added to the Convention text at the insistence of countries who worried that if such isolated features were allowed to generate extended maritime zones, little would be left for the shared common heritage, which was meant to provide resources that would benefit the developing world. Budislav Vukas of Croatia wrote, when he was a judge on the International Tribunal of the Law of the Sea, that:

“The reason for giving exclusive rights to the coastal states was to protect the economic interests of the coastal communities that depended on the resources of the sea, and thus to promote their economic development and enable them to feed themselves. This rationale does not apply to uninhabited islands, because they have no coastal fishing communities that need such assistance.” (Volga Case, Russia v. Australia, Separate Opinion, 2002; emphasis added)

Examples of “state practice” recognizing that small features should be viewed as “rocks” and should not be able to generate exclusive economic zones and continental shelves include the United Kingdom’s decision to forego such a claim around Rockall (a towering granite feature measuring about 61 meters in circumference and about 21 meters in height, located about 300 kilometers from the British territory of St. Kilda off the Outer Hebrides of Scotland); the agreement between China and Vietnam that Vietnam’s Nightingale Island (Bach Long Vi) in the Gulf of Tonkin should be ignored in their maritime delimitation; the agreement between Honduras and Nicaragua in its submission to the ICJ that four disputed cays off their coasts should not generate anything more than a 12-nautical-mile territorial sea (Maritime Delimitation Between Nicaragua and Honduras (ICJ 2007)); and the sharp protests issued by China and Korea in 2009 against Japan’s claim for a continental shelf extending from the Okinotorishima reef system in the western Pacific.

In the early 1900s, a Japanese national sought to develop economic activities on Diaoyu Dao/Uotsuri Jima, the largest of the small features in this chain, exporting albatross feathers, dried bonito, stuffed seabirds, and guano, and at its peak nearly 200 fishers and taxidermists were living there, but this effort was abandoned in 1940, and no further attempts to develop economic activities have been made, providing strong evidence that the islet is “uninhabitable” and is without an economic life of its own. Since then, this islet has been denuded by overgrazing, and the others in the chain are even more completely barren. Some insular features must qualify to be uninhabitable “rocks” and those in the Diaoyu/Senkaku group certainly seem to fit that description.

But a tribunal determining the maritime delimitation in the East China Sea might not issue an express ruling whether the Diaoyu/Senkaku Islets are “rocks” or not, because it could simply follow longstanding precedent ignoring such tiny features when dividing maritime space. The most recent such example occurred in the 2009 ICJ adjudication of the maritime boundary between Romania and Ukraine in the Black Sea. Ukraine argued strenuously that its Serpents’ Island (0.17 square kilometers, 35 kilometers east of the Danube Delta, and without any fresh water sources) should be considered in the delimitation, but the Court ruled otherwise, drawing the dividing line without regard to the existence of the islet. Oxford Professor Vaughan Lowe, representing Romania, argued that Serpents’ Island should be considered to be a “rock,” because those humans visiting the feature were “totally dependent” on the outside “for food, water, and every other human need” and therefore because the feature was “indistinguishable from a steel platform.” In response to Ukraine’s argument that scientists and others could be found on the islet, Professor Lowe said that to qualify as “human habitation” human presence must be “stable” and “sustained,” and that it is not “human habitation” if individuals are “ordered” to go to the islet by their government as soldiers or scientists. Although the Court did not explicitly adopt this approach, its unanimous ruling ignoring Serpents’ Island must be viewed as a tacit acceptance of Professor Lowe’s analysis.

Other recent delimitation decisions have similarly given small islands no effect. In the 1999Eritrea-Yemen Arbitration, the tribunal gave no effect whatsoever to the uninhabited Yemeni island of Jabal al-Tayr and to the uninhabited Yemeni islands in the al-Zubayr group (which are on the “wrong side” of the equidistance line between the two countries in the Red Sea), stating simply that their “barren and inhospitable nature and their position well out to sea…mean that they should not be taken into consideration in computing the boundary line.” Similarly, in the 2001 Qatar-Bahrain Case, the ICJ ignored completely the small, uninhabited, and barren Bahraini islet of Qit’at Jaradah, situated midway between the two countries, explaining that it would be inappropriate to allow such an insignificant maritime feature to have a disproportionate effect on a maritime delimitation line. The Court also ignored completely the “sizeable maritime feature” of Fasht al Jarim, of which “at most a minute part is above water at high tide.”

Other decisions where small islets have been ignored include the 1985 Libya-Malta decision (ignoring Malta’s Filfla Island); the 1978 France-UK Arbitration (ignoring the UK islands of Jersey and Guernsey, despite their substantial population in drawing the boundary in the English Channel); and the 2002 maritime delimitation between the Canadian provinces of Nova Scotia and Newfoundland (ignoring Nova Scotia’s Sable Island).

Shanghai scholar Ji Guoxing has written that “China holds that the Diaoyudao Islands are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have a continental shelf.” That conclusion is supported by the text of Article 121(3), by the underlying purpose of this provision, and by repeated rulings of the ICJ and other international tribunals.

[Further details on the cases discussed can be found, e.g., in Jon M. Van Dyke, The Romania v. Ukraine Decision and Its Effect on East Asian Maritime Delimitations, 15 Ocean & Coastal Law Journal 261-83 (2010).]

I'll add some comments later today.

ADDED: Japanese Communist Party says Senkakus belong to Japan

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Anonymous said...

Tkacik just got schooled. Literally.

Michael Turton said...

Be serious. This is an awful piece -- dependent on rhetoric to gain what cannot be obtained by force of argument. I'll be looking at it later today.


Marc said...

I would give my writing students a low grade for such murky writing.

don said...

From the excerpt it's already looking like a long-winded way of saying: just buckle to China.

The unspoken premise of the argument is that the PRC is fundamentally justified for claiming territories that have at any point in history fallen within the high water mark of imperial "Chinese" expansion. (Mongolia and Outer Manchuria had better watch out.)

It goes without saying, the same principle does not automatically apply for territories absorbed during the expansion phases of other Asian countries. Anywhere historical claims overlap, the Chinese claim always trumps the other country's claim. Treaties, maps and historical anecdotes are then aligned and interpreted accordingly.

It's obvious why this "China's might makes right" idea should appeal in China. But what's in it for external observers who have built their careers on a display of the impartial pursuit of the truth?

I suspect that one factor is their lingering subconscious awe of China as the cultural and political counterweight that somehow didn't just lay down and die in the face of the European colonial onslaught on the planet. Boosted by the cod construct of "Sino-centric" Asia that seems to have taken hold in Western sinology with John Fairbanks' writings of the 1950s.

Michael Turton said...

I'm going to give it a long treatment tonight. Frankly I think it is completely pathetic.


Anonymous said...

"We're going to wow you with lots of fancy terms of art and distract you with an air of academic knowledge... so you don't see the slight of hand."

It is the oldest trick in the professional academic's book of bullshit.

For many people who are not accustomed to analogical reasoning, or are easily impressed by academic language, it looks like they have made a case. Further point by point analysis reveals otherwise.

Anonymous said...

You don't understand their article. They don't say the Diaoyu islands are part of China or Japan, but that these should be ignored in the demarciation of the sea boundary, and that you cannot claim the 200km exclusive economic zone around these islands. They give plenty examples to support their argument. Simply put for China and Japan: these islands are not important and should not be worth the troubles.

blobOfNeurons said...

I don't understand all the hate here. His argument seems pretty simple and straight to the point: the islands don't have the population or economy to warrant having a significant impact on the demarcation.

The "no economic life part" of the argument is ironic. The islands *could* have had a nice economy, but as long as China keeps the pressure up, the Japanese will be too afraid to develop it.

jerome in vals said...

I overcame distaste at a piece of writing that brings water to China's claim in any dispute and uses epithets like "ludicrous" in framing the Japanese ones. I also read all the links made available on that "usasialaw" site and farther afield.

Not a scholar, I’ll refrain commenting directly on that piece. But I would humbly submit that this debate will be moot once Taiwan comes into its own, ridden of the Chinese hood under which the Japanese identity of Formosa absconds.

And Jerome Cohen would do well to put his scholarship to the task of unearthing that forgotten sutra that spells out the on-going interim legal status of Taiwan.

Once he will have confirmed from S.F.P.T. and T.R.A. that no Chinese governing authority holds the sovereignty of Taiwan, where’s the point of joining the debate over the Senkakus?

Once the fraudulent Chinese mask foisted on Taiwan is removed, there is no Senkakus hoopla.

Michael Turton said...

Look guys, the two of them are playing rhetorical games. They have no argument, period. It's so obvious and so pathetic it is practically self-refuting, one long graduate student essay in "the argument from irrelevant erudition".

Wanna see how pathetic this crap is? Note first the childish rhetorical game -- they rename the Senkaku ISLANDS the Senkaku ISLETs and then use that terminology throughout the piece. The only use of "island" is in someone else's quotes. When you sink to that level, you've lost the argument.

The Senkakus are habitable islands by any definition of habitable (there are springs on two of them, i found out today). The biggest one has a prominence 383 meters high. It may or may not be denuded, but it is certainly habitable. It was by 248 people in 1940. It was not developed because -- as Cohen and Van Dyke ignore -- the US controlled it and used it for gunnery practice. Then China invented its claim -- another fact ignored by Cohen and Van Dyke -- and Japan has been circumspect. But rewarding China for this effect of its expansionism smacks of the old joke about the guy who shot his parents and then demanded mercy on the grounds that he was an orphan.

I'm sure that with a little effort you can turn up numerous habitable but undeveloped islands in the Pacific. Try searching along the yachting circuit.

I'll be charitable and allow that they are searching for a formula that would allow them to let China swallow that seabed without Japan giving up sovereignty over the islands. But I know Japan will never accept such nonsense, and not only will China never accept it, but prominent American scholars riding point for them in the CFR will only encourage them to look for other things to swallow.

Further, using the law to do an end run around the law -- using the letter of the law to break the spirit of the law -- is the exact opposite of Cohen's work on rule of law in China -- it simply teaches Beijing that everything he says is hollow. It is also exactly the kind of thing that everyone hates lawyers for.


blobOfNeurons said...

But there's no denying that a 370 km EEZ around the Senkakus is excessive. Of course the Japanese aren't really claiming the full 370 km, but they're using the Senkakus to push the median line westward.

Thanks to the Senkakus and Yonaguni, Japan thinks it should slice and dice Taiwan's EEZ. At least Yonaguni actually has a decent sized population (~1700).

Michael Turton said...

I have no comment on the size of the EEZ, don't really care. C & VD's argument that the Senkakus are TEMPORARILY uninhabitable so much yield up PERMANENT sovereignty loss is ridiculous -- if Japan decides to make them habitable by C&VD standards, does sovereignty over the area suddenly revert back to Tokyo?

Even worse is the obvious enticement to parties embroiled in similar disputes to render disputed islands uninhabitable if it suits their sovereignty goals.

Finally, I would bet money that C&VD find Japan's construction of a platform to make sovereignty unacceptable -- so why should artificial denuding by overgrazing render the Senkakus uninhabitable? Each is equally artificial.


blobOfNeurons said...

Uh ... but this whole conflict is about the EEZ. The actions of both countries have shown that it's the sea they want, not so much the island itself. More importantly, China is eager to steal the island, and Japan to keep it, because they both have the idea that it will give them the sea. And C & VD's argument is also primarily focused on the EEZ. In fact, nowhere in this specific article do they say anything about the Senkaku's not belonging to Japan. And even in the previous article they are not so much concerned with the ownership of the land itself, but with the delimitation of the sea.

If Japan wants to peacefully settle its East China Sea boundaries with China, it should also abandon its unpersuasive claim that the Diaoyu-Senkaku are entitled to an EEZ and continental shelf. Their ownership would thus become much less important and could be temporarily set aside. Then the parties could continue negotiations to reconcile China’s claim to control the economic resources of its vast continental shelf with Japan’s endorsement of the widely accepted principle of drawing equidistant EEZ boundaries between neighbouring coasts. Even before completing the complex details of a boundary agreement, they can also implement their long-pending plans to jointly develop petroleum resources in disputed areas.

Also, I still don't see why their argument is "ridiculous" when they've given so many precedents. Especially Guernsey which as it turns out, has thousands of people on it.

Finally, there's no reason to think that delimitations have to be permanent. Since when has politics or the economy static? If the Senkaku's suddenly have a population boom does that make the island "count more"? Well ... yes. But that's the whole point. The situation should be settled according to current (and maybe near-future) circumstances. And when the time calls for it, any agreements can be updated.

Michael Turton said...

In fact, nowhere in this specific article do they say anything about the Senkaku's not belonging to Japan. And even in the previous article they are not so much concerned with the ownership of the land itself, but with the delimitation of the sea.

Bob, that's because the purpose of this article is to wave the magic wand of the "uninhabitable" Senkakus to make Japanese sovereignty go away. This whole article is about Japanese sovereignty. It is about finding a way to make Japanese sovereignty disappear. That paragraph you cite shows how the end run works -- Japan gives up its sovereignty, then China eats the area. The position of C&VD reveals an astonishing political naivete about China's ultimate goals. China does not want shared EEZ control or exploration (see their recent claims on the South China Sea); it wants it all. Once it gains access to that area it will then begin to press on to other areas.....

BTW, do either of C&VD have some undisclosed legal business in China? Just wondering.