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.

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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).]

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I'll add some comments later today.

ADDED: Japanese Communist Party says Senkakus belong to Japan

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