Tkacik Reply on Senkakus

Location of the Senkakus.

John Tkacik has replied to Cohen & Van Dyke on the Senkakus (C & VD's previous on my blog here) in their ongoing debate over the status of the islands and the surrounding waters. Excellent work!

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The EEZ around Japan’s Senkaku Islands

By John J. Tkacik

Lest our dear readers’ eyes flutter and paroxysms of yawn stir in their chests, let me begin by saying that the scope of Japan’s maritime sovereignty in the East China Sea is emphatically not a matter of recondite trivia. It could be a matter of global war or peace. Let me explain.

The Senkaku Islands in the East China Sea mark the farthest westward point of Japan’s sovereign territory. They are currently uninhabited, but before their evacuation at the dawn of World War II, they were home to a thriving Japanese fishing community. And, if left unmolested by China, they certainly would enjoy a prosperous “economic life of their own” in the future. QED – they are not barred from having a 200 nautical mile exclusive economic zone (EEZ) by Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS) which says:

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

First, let me address Japan’s claim to the Senkaku Islands and China’s counterclaims, then let me explain why the islands are not barred from having an EEZ under Article 121(3) of the UNCLOS.

Japan’s Claims to the Senkakus

China’s unseemly appetite for territory not its own is the cause of tremendous anxiety in both Washington and Tokyo especially whenever Beijing agitates about the Senkakus, a group of high islands at the far edge of the Ryukyu chain which, at the opening of World War II, was the home of a thriving community of over 200 Okinawan fisherfolk. Japan’s administration and later habitation of the islands date from the 1880s when they were indeed an uninhabited terra nullius. China’s territorial claims to the Senkakus, on the other hand, have no historical basis aside from scattered mentions of them in ancient travelogues. As late as 1953, China’s official state media explicitly listed the Senkakus as part of the U.S.-occupied Ryukyu Islands and called upon its inhabitants to rise up against the Americans.[1] In Taiwan, official Nationalist government publications referred to Pengjia Islet as the “northernmost part of Taiwan province” as late as 1968 – Pengjia, by the way, is 85 nautical miles south east of the Senkakus.[2] Neither Nationalist or Communist Chinese territorial claims to the islands can be traced prior to 1969, and no earlier than the release of a surprising United Nations-sponsored report that suggested the Senkakus sat on a vast seabed reservoir of hydrocarbons – or, to quote the breathless prose of a trained geologist, “a high probability exists that the continental shelf between Taiwan and Japan may be one of the most prolific oil reservoirs in the world.”[3]

Suddenly, in 1969, without any previous hint of interest, Chinese regimes in both Taipei and Beijing proclaimed China’s sovereignty over the Senkakus. Further complicating the geopolitics of the equation, China was in the grip of the Great Proletarian Cultural Revolution; Taiwan’s delegation – representing Chiang Kai-shek’s “Republic of China” government-in-exile (not the people of Taiwan, per se) – was battling expulsion from the United Nations; U.S. President Richard M. Nixon was contemplating Communist China as a strategic counterweight to the Soviet Union on the Eurasian landmass; and the United States was in the process of negotiating the return of Okinawa to Japanese sovereignty following a quarter-century of U.S. military occupation.

Okinawa Prefecture – which, the United States explicated, included the Senkaku Islands – was duly returned to Japan in 1972, and the United States said it was operating under a legal principle that Japan had retained “residual sovereignty” over the islands even during the U.S. military administration.[4]

So, as far as the United States is concerned, the Senkakus are Japanese. And as far as the U.S.-Japan Mutual Security Treaty of 1960 is concerned, the Senkakus are “territories under Japanese Administration” and hence fall within the ambit of the alliance.[5]

In the most recent contretemps over the Senkakus – in September 2010 – China repeatedly threatened Japan for the arrest of a Chinese fisherman who had deliberately rammed a Japanese Coast Guard vessel within the 12 nautical mile (20 kilometer) territorial waters around the Senkaku islands. Japan’s “wanton implementation of the processes of so-called domestic law was serious aggression and open provocation against China’s territorial sovereignty,” according to a Chinese foreign ministry spokesman[6], and China’s central government retaliated by harassing Japanese firms doing business in China and (most alarmingly to the international business community as a whole) cut supplies to Japan of rare earths oxides, minerals essential to the fabrication any high-speed switches and high-powered natural magnets used in every computer and electronic device on the planet. China, it seems, has a monopoly in global rare earths supplies. China has since dispatched its own maritime patrol vessels to the area where they glower at Japanese Coast Guard ships, but so far have not yet penetrated the 12-mile territorial waters around the Senkakus.

As the September 2010 crisis sharpened, the United States reiterated publicly that the U.S.-Japan alliance did in fact cover the Islands: U.S. Joint Chiefs of Staff Chairman Admiral Michael Mullen, when asked again if the alliance covered the Senkakus, hesitantly said “obviously, we’re very, very strongly in support of our ally in that region: Japan.” Defense Secretary Robert Gates standing right next to him – apparently worried that Admiral Mullen’s words weren’t pointed enough — added “and we would fulfill our alliance responsibilities.”[7]

Hence, as Chinese naval challenges to Japan’s presence in the East China Sea have intensified over the past decade, the scope of Japanese maritime sovereignty in the Senkakus is not a matter of recondite trivia.

A Senkakus’ EEZ?

The question at hand is whether the Senkaku Islands possess a 200-mile EEZ, a delimitation that places the median line between Japan’s and China’s continental shelf EEZs some 80-100 miles closer to China’s east coast and partially encompass sub-seabed hydrocarbon deposits north of the islands. Professors Jerome Cohen and Jon Van Dyke have written a short, dense, detailed, but – to the layman’s eye – off-point analysis asserting that the Senkakus “must be viewed as ‘rocks’ under Article 121(3)” of the UNCLOS.[8]

As I understand it, their argument rests on two premises: 1) that the islands are small, currently uninhabited, and have no economic life of their own, and 2) international law on maritime delimitations “has ignored small isolated islets in awkward locations to avoid reaching an inequitable delimitation result.” My counterargument is that 1) actually, they’re pretty big, they have been inhabited – quite pleasantly, in fact – by a significant fishing community in the past, and could quite easily sustain an renewed “economic life of their own” if China wouldn’t threaten war over it; and 2) since when is being in open ocean, 180 miles from the nearest Chinese territory, and 88 miles from Taiwan “awkwardly located”? And why is it “inequitable” that Japan benefit from seabed deposits within their own EEZ?

The Senkakus’ surface area, as Cohen and Van Dyke concede, is “seven square kilometers.” They are bigger than Monaco, Vatican City and . . . half the islands in the Tuvalu archipelago. The southernmost Tuvalu island, for example, Niulakita, about the same size as the main Senkaku island of Uotsuri; it has a population of 35 (it was first settled in 1949); it is over 100 miles from the nearest neighbor and 200 miles from the Tuvalu capital at Funafuti. Yet the UNCLOS recognizes Tuvalu’s 200nm EEZ drawn from the Niulakita baseline. Speaking of small uninhabited islands, some of U.S. Pacific Remote Islands — Baker and Howland islands – are neither inhabited nor economically active, and therefore may not meet the criteria for generating an EEZ or continental shelf under Article 121 of UNCLOS, but the U.S. nevertheless claims an EEZ around these uninhabited rocks, islands, and coral atolls in the Pacific Ocean for both fisheries management and environmental protection.

Cohen and Van Dyke assert that because the Senkakus are uninhabited now, they do not qualify for an EEZ. Yet, UNCLOS is careful to define “rocks” as being “unable to sustain human habitation” or (not “and”) an “economic life of their own.” As Taiwan’s current president, Ma Ying-jeou, pointed out in his Harvard Law School thesis on the subject[9] (in which he acknowledged the generous assistance of Professor Cohen in the early 1980s), Uotsori has a fresh-water “spring big enough to accommodate 200 people” and, in its heyday, sustained human habitation for some 248 Japanese with an “economic life” centered on fish-drying and phosphate gathering. Ma observed

“as to the ‘inhabitability’ test, one could argue that at least the island can sustain human habitation, given its potable water and tillable soil.”

The idea that because it is now uninhabited it therefore deserves no EEZ seems to ignore the fact that Romania and Algeria both pushed for a requirement of permanent habitation or settlement in the UNCLOS, but that requirement was not adopted.[10]

Cohen and Van Dyke posit that the Senkakus’ “habitability” test is unfulfilled because the fishing settlement on Uotsori was “abandoned in 1940” and because no one bothered to go back and start it up again. This, they say, is “strong evidence that the islet is ‘uninhabitable’ and without an economic life of its own.” Yet, I wonder what they would say if they learned that the island was “abandoned” in 1941 (not 1940) because Japanese central government would not authorize further petroleum supplies? Hanako Koga recalled in 1979 that her family “had a factory in the Senkakus until Showa 16” (i.e. 1941) and abandoned it because the government ceased to allocate “oil” (presumably heavy fuel oil) due to “the war”.[11]

In August 1941, 80% of Japan’s oil supplies came from the United States, and in that month, the U.S. levied an oil embargo on the Empire of Japan. Even Cohen and Van Dyke might have to concede that wartime conditions should not be evidence of ‘uninhabitability.’ The islands were certainly capable of “sustaining human habitation” at the cessation of hostilities in 1945 but, by that time, they had come under the administration of the U.S. military occupation government which, for one million yen (about US$ 2,777 in those days) a year, leased one of the smaller (and admittedly “uninhabitable”) islands from the Koga family for use as a naval gunnery range, perhaps intending to leave distant Uotsuri undamaged for possible future re-habitation. In any case, by the time the U.S. returned Okinawa Prefecture – and the Senkakus Islands – to Japanese administration in 1972, the rival “Chinese” governments in Beijing and Taipei were seized with visions of vast seabed oil reserves in Senkaku waters.

There is no doubt that the Senkakus could be immediately re-inhabited in the absence of Chinese military threats. The nearby sub-seabed oil reserves would make Uotsuri an ideal base for petroleum exploration, drilling and production – no lack of an “economic life of its own” there. Even without oil (which makes it so intensely attractive to China now) the Senkakus would surely be a resort for sport fishing and exotic vacations.

As it is, the Senkakus are at the center of significant international friction which Japan, but apparently not China, hopes to keep calm and manageable. Japan’s government has prohibited recolonization of the island to avoid deepening the confrontation with China.

As such, it is hard to see how Professors Cohen and Van Dyke find the example of Serpents’ Island (between Ukraine and Romania) with its 0.17 square kilometers of land area, its location 35 kilometers east of the Danube Delta, and without any fresh water sources, relevant in any way to the Senkakus. Unlike the Senkaku Islanders prior to 1941, inhabitants of Serpents’ Island are “totally dependent” on the outside “for food, water, and every other human need” and is therefore “indistinguishable from a steel platform.”

Secondly, Cohen and Van Dyke make a case that the Senkakus are “awkwardly located” apparently because they are close to a hypothetical median line about 200nm out from the Chinese coast and over 100nm from Japan’s major Ryukyu islands. The instances which they cite to support their position that the UNCLOS gives “small islands no effect” in EEZ delimitations are either in relatively narrow inland sea waterways or immediately adjacent to alien coastal nations while distant from the home country. Likewise, it is difficult to see the relevance of rocks in the Black Sea or the Tonkin Gulf, in the Strait of Hormuz or Red Sea, or the Channel Islands within sight of France. Nor does their reference to the delimitation of maritime boundaries between Canadian provinces seem on point.

Finally, it is perplexing that Professors Cohen and Van Dyke conclude their essay by citing the authority of a hardly-disinterested Chinese scholar that “China holds that the [Senkakus] are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have a continental shelf” when the opposite is so manifestly true.

Japan has struggled mightily over the decades to accommodate China’s desire for oil and seabed resources in the East China Sea and has labored to meet the concerns of China’s fishing fleets. But China apparently desires more. The islands now have a new strategic significance to Japan, for without them, Chinese territorial waters would be about 100 miles closer to Japan than they are now. With China’s navy getting more pushy than ever before, Japan has reason to keep its maritime frontiers as far removed from its major islands as possible. For that matter, so too does the United States.

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Cohen & Van Dyke seem to think the best way to settle the issue is to (1) hand the islands over to China or (2) declare them irrelevant and give the surrounding waters to China. I believe their goal is laudable, in that they are searching for a short-of-war solution to the Senkakus mess. Unfortunately, as Tkacik highlights above, this "dispute" is entirely the result of nationalists in the PRC and ROC who decided to claim the island after the potential for oil was announced there in 1968. It is wholly artificial. Perhaps a solution can be found, but it looks pretty zero-sum at this point.

My own thoughts are in the comments on the previous C & VD entry. Essentially I did not like the way they:

1. Changed islands to islets as if to demote the Senkakus by force of rhetoric alone.

2. Neglected to mention that the Senkakus were not developed because -- as Cohen and Van Dyke ignore -- the US controlled them. Then China invented its claim and Japan has been constrained by Chinese belligerance. But rewarding China for this effect of its aggression smacks of the old joke about the guy who shot his parents and then demanded mercy on the grounds that he was an orphan.

3. Do not consider the future effect of a successful argument that if the Senkakus are TEMPORARILY uninhabitable they yield PERMANENT sovereignty loss (a) if Japan decides to make them habitable by C&VD standards, does sovereignty over the area suddenly revert back to Tokyo? and (b) there is an obvious enticement to parties embroiled in similar disputes to render disputed islands uninhabitable if it suits their sovereignty goals.

4. Fail to forthrightly grapple with the lack of Chinese claims to the island until 1968.

I hope their next response restores the proper terminology and deals with some of these issues.

Does anyone really think that Beijing somehow acquires title to the Senkakus and the surrounding waters, that things are going to stop there? There is a political dimension to the expansion that the Chinese claims to the Senkakus represent that Tkacik clearly identifies, but Cohen & VD fail to address.
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