Session 3
Legal and Policy frameworks for Building and Implementing the International Order of the Sea
Session 3-1 |
Sea-Defense and the Sovereignty and Jurisdiction of the State |
Session 3-2 |
Protection of the Marine Environment and the Jurisdiction of Coastal States |
Session 3-3 |
SECURITY AND ENVIRONMENT IN ARCHIPELAGIC WATERS AND THE SOVEREIGNTY AND JURISDICTION OF THE STATE |
Discussion |
Session 3-1
Sea-Defense and the Sovereignty and Jurisdiction of the State
- Chinese Perspectives -
Chen Qimao
China is a coastal country bordering on the three Chinas Seas, the Yellow Sea, the East China Sea and the South China Sea. With a territorial water about 370000 square kilometers, an economic exclusive zone (EEZ) about 3000000 square kilometers, a coastline about 18000 kilometers, and over 6000 islands in the seas, China is not only a land power but also a major maritime country.
In recent decades, China's economy as well as its foreign trade has developed very rapidly. China now ranks No.6 in world trade, and over 90% of the imported and exported goods rely on sea transportation. Since 1993 China has become an oil-imported country. In 2000, the oil China imported exceeded 60.7 million ton, most of them were from the Middle East. According to some estimate, the amount of oil imported to China might exceed 100 million ton per year in the next decade.1 Obviously the international sea lines of communication (SLOCS) have become more and more important to China.
Due to historical causes and the disputes over relevant sovereignty and jurisdictional rights in maritime demarcation emerged in the late 20th century, China have some maritime sovereign and jurisdictional disputes with adjacent and opposite coastal states. These include: sovereignty disputes and related maritime jurisdictional disputes over the Senkaku (Diaoyudao) Islands with Japan in the East China Sea; sovereignty disputes and related maritime junsdictional rights disputes over the Spratly (Nansha) Islands with some Southeast Asian countries in the South China Sea; continental shelf demarcation disputes with Japan in the East China Sea; continental shelf demarcation disputes with Democratic Peoples Republic of Korea (DPRK) and Republic of Korea (ROK) in the Yellow Sea; disputes over the military and semi-military activities in the economic exclusive zone (EEZs) with the United States. How to handle these disputes properly, this is not only a problem related to China's sovereignty and national interests, and China's relations with neighboring countries, but also related to peace, stability and prosperity in the Asian Pacific region.
The Existing Disputes
Following is a brief description of the existing disputes between China and relevant countries:
(1) Sovereignty disputes and related maritime jurisdictional disputes over the Senkaku (Diaoyudao) Islands between China and Japan in the East China Sea. The Senkaku Islands consisted of five uninhabited islets and three barren rocks, located approximately 120 nautical miles northeast of Tiawan, and about 200 nautical miles of Okinawa. China holds that the islands "have been an inalienable part of Chinese territory since ancient time, and appertain to China's Taiwan",2 and that it were ceded to Japan together with Taiwan in 1895 after the Sino-Japanese war. After the end of the Second World War, according to Cairo and Potsdam Declarations, Japan returned all territories that it seized from China. Naturally the Diaoyudao Islands should be returned to China together with Taiwan. In this respect, Beijing and Taipei hold the same view and same position. But Japan holds that the Senkakus are Japanese territory. The Japanese arguments are: those small islands were "land belonging to no country" until 1984, they were discovered by a Ryukyu fisherman and were incorporate into the Prefecture of Okinawa by the decision of the Japanese government in 1985. This is the only territorial sovereignty dispute between China and Japan after World War II. It has been intensified after 1970s time and again. In 1970, there was a big "baodiao" (protecting the Diaoyudao Islands) campaign bursting out in Hong Kong, Taiwan and overseas Chinese. At that time China was bogged in the "Cultural Revolution", the Chinese government issued a strong statement to reemphasize China's sovereignty over the Diaoyudao Islands, yet at that time the ordinary Chinese people on the mainland, occupied by the troubles and sufferings in the "Cultural Revolution" paid less attention to the problem. However, the "baodiao" movement was really a very big campaign in Chinese all over the world. In 1990, 1997, 1998, due to the provocative activities of some Japanese rightists ― they planned to build a lighthouse on the island as a landmark of Japan, the disputes were intensified once again and the "baodiao" movement remerged in Chinese. Later under pressure the Japanese government showed restrain and took some measures to limit the rightists' activities, thus subsided the situation. Up to date, the dispute over the sovereignty of the Senkaku Islands remains a thorny issue between the two neighboring countries.
Position: President, Shanghai Society for International Relations / President, Shanghai Center for RIMPAC Strategic and International Studies
Education: Shanghai Jiaotong University graduate
Chen had held fellowships at the University of California, Berkeley, Princeton University and the Brookings Institution focusing on political and security issues. From 1995 to 1996, he was a senior fellow at the United States Institute of Peace. He has written extensively on international strategic problems and political and security issues in the Asia-Pacific region. Some of his works in recent years are China's Relations with Foreign Countries and The Taiwan Factor in Sino- US Relations.
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Besides, there is the controversy over the maritime rights the Senkaku Islands are entitled to have. China holds that the Senkaku Islands are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have continental shelf. Japan holds that the Islands are entitled to have continental shelf, and intends to use them as base points for continental shelf claims on the East China Sea. Hence, actually "possession of the Islands would confer on the owner title to over 11700 square nautical miles of the Asian continental shelf landward of the 200 miles isobath."3
(2) Sovereignty disputes and related maritime jurisdictional disputes over the Spratly (Nansha) Islands between China and some Southeast Asian countries in the South China Sea
The Spratly Islands consist of more than 400 islands, banks, reefs, shoals, atolls, and cays. Among them, 33 rise above the sea, and 7 have an area exceeding 0.5 sq. km. The sea areas contained by these islands are 800000 sq. km. or 38% of the South China Sea waters.
China holds that the Nansha Islands have been China's territory since the Ming Dynasty (1368 − 1644) At that time those islands were under the jurisdiction of the Jon Prefecture (now the Haman Province). In late 19th century and early 20th century, they had been seized by France and Japan successively. However, after the WWII, they were returned to China according to the Cairo and Potsdam Declarations, and the then Chinese government dispatched a naval fleet to take over those islands in 1946. Till now the Taiping Island, the biggest island in the Spratlys, is still under the jurisdiction of the Taiwan authorities. Hence, from China's point of view, obviously the sovereignty of the Nansha Islands belongs to the country. So far the two sides across the Taiwan Straits hold the same position in this regard, even the pro-independence DPP authorities dare not to change that position.
Before 1974, China's sovereignty over Spratly Islands was widely recognized by the international community. In 1950s, 1960s and early 1970s, Vietnam openly declared that it recognized China's sovereignty over the Spratly Islands.4 It was not until 1975, the disputes over the sovereignty of the Spratlys have become a big issue. In May 1975, the Foreign Ministry of Vietnam declared "The Truong Sa Islands (refer to Spratly Islands) have been Vietnamese territory since ancient times." And in May 1977, Viethnam specifically declared that its territory waters included the Spratlys.5 Later, the Philippines, Malaysia and Brunei raised claim over various part of the Spratlys successively based on various reasons such as "discovery", "proximity" or "national security". Hence right now, the disputes of the Spratlys in the South China Sea involve five countries and six parties, namely China, China's Taiwan, Vietnam, the Philippines, Malaysia and Brunei. The disputes embrace not only the sovereignty of the Spratly Islands, but also the delimitation of maritime boundaries in the sea areas adjacent to the Spratly Islands in the southern part of the China Sea.
The causes for the formation of the disputes are clear. Since 1970s, abundant maritime energy resources are widely believed to be lying beneath the bottom of the sea surrounding the Islands. This believing surely would arouse the interests of the relevant countries over those islands and their surrounding sea areas Later, since November 1994, the "UN Convention on the Law of the Sea" (UNCLOS) has come into force. According to the Convention, every littoral country can have 200 nautical mile exclusive economic zone (EEZ) and 200 nautical mile continental shelf areas. Most of the ASEAN countries have raised territorial and maritime rights claim according to the Convention. Their claims overlap with China's territory claim and overlap with each other, thus complicating the disputes.
(3) Continental shelf demarcation disputes in the East China Sea between China and Japan. The East China Sea Basin covers about 300000 square kilometers. It is shallow, with water depth of less than 200m, except in the Okinawa Trough along the Japanese coast. Here the distance between the Chinese and Japanese land nowhere exceeds 400 miles Regarding the demarcation of the Continental shelf China adheres to the natural prolongation of land territory principle, holding that "The East China Sea continental shelf is the natural extension of the Chinese continental territory."6 According to China's claim, the Chinese continental shelf extends all the way to the axis of the Okinawa Trough. Japan stands for the equidistant line for its continental shelf. The equidistant line between the undisputed islands of Japan and the Chinese mainland leaves an area of 9000 square nautical miles of the Asian continental shelf landward of the 200 meter isobaths on the Japanese side of the line.7 Thus, a large overlapping area occurs between China's claims and Japan's claims Besides, there is also an overlap between Japanese and South Korean's claims, but they have exercised a joint development zone since 1974. China has denounced the joint development agreement as a violation of its rights China says, "It stands to reason that the question of how to divide those parts of the continental shelf in the East China sea involving other countries should be decided by China and the related countries through consultations."8
It is reported that the continental shelves in the East China Sea have good prospects for oil and gas. This is one important root cause of the disputes. Fortunately both China and Japan have exercised restrain in their efforts of offshore oil development. China has limited its exploration mainly to its side of the Chinese-Japanese equidistant line. Japan has announced it would not authorize exploration for petroleum in the disputed areas until the matter is resolved.
(4) Continental shelf demarcation disputes between China and the two Koreas in the Yellow Sea. With an area of about 400000 square kilometers, the Yellow Sea is enclosed by Korea on the east and by China on the west and north. China claims most of the intervening Yellow Sea continental shelf based on the principle of natural prolongation of land territory. However, within the Bay of Korea (in the northern part of the Yellow Sea), China upholds an equidistant line as the demarcation between China and Democratic Peoples Republic of Korea. The two Koreas adopt the median line principle for seabed demarcation. In 1977, DPRK defined its economic zone outer limit based upon "the half-line of the sea". ROK has staked out unilaterally four sea-bed oil tracts in the Yellow Sea based on the median line principle, assuming their seaward limit would constitute the boundary of the continental shelf shared with China. For the Bay of Korea Basin, a boundary along the silt line would give almost the entire basin to North Korea. However, if the boundary were the equidistant line, most of the basin would fall to China.
Just like the situation in East China Sea, the disputes in Yellow Sea are also related to petroleum resources. However, it seems the disputes in the Yellow Sea should be easier to be resolved than the others. Because in the sea areas between China and the two Koreas, the geographical circumstances are relatively simpler, there is no offshore territory under dispute between them. Furthermore, resolution will be facilitated by the fact that China has fine diplomatic relations with both two Koreas. The difficulties in the settlement lie in the fact that Korea remains divided.
(5) Disputes over the military and semi-military activities in the economic exclusive zone (EEZ) with the United States. The EEZ is a specific water area different from territorial seas and from high seas. According to UNCLOS, the coastal state has sovereign rights over the exploration and exploitation of the natural resources and has jurisdiction over marine scientific research, the establishment and use of artificial islands, installations and structures and the protection of the marine environment.9 UNLCOS also stipulates that in the EEZ, all states enjoy freedom of navigation and freedom of over flight, and in exercising their rights in the zone, "states shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with the provisions of this Convention and other rules of international laws in so far they are not incompatible with this part."10 Now the problem is whether military and semi-military activities in the EEZ without the consent of the coastal state are legal or not. In this regard, China does have differences with the United States. The United States has conducted surveillance or spying activities off the coasts of other countries frequently. One report said that the United States flies more than 400 reconnaissance missions per year around China, an average of over one per day. China regards those activities are violations of the UNCLOS and infringes of China's jurisdictional rights, but the United States holds that the EEZ belonging to "international water", and its reconnaissance missions in the EEZ of other countries are totally "legal". These disputes might intensify sometimes and lead to a crisis or semi-crisis, the EP-3E incident occurred on April 1, 2001 is a salient instance.
China accused the EP-3E spy plane violated the international law, causing the crash of a Chinese aircraft and the death of a Chinese pilot, and the spy plane intruded to the Hainan Island without prior approval of the Chinese government. The U.S. side denied China's accusation, said the Chinese pilot should take responsibility for the collision, and that the EP-3E, in a very dangerous, emergent situation after the collision, grounded on the Lingshui Airport just for survival. The people of the two countries especially the military circles were very angry toward each other in a short period after the incident. Fortunately the leaders of the two countries took a sober-minded and restrained altitude, thus avoiding further deterioration of the bilateral relationship. However, it is not until after the September 11 incident, the wound of the Sino-U.S. relations was cured gradually.
It seems hard to make sure who should be blamed in the incident. From China's point of view, the important problem is to clarify whether military activities or semi-military activities including spying activities are justified to conduct freely in EEZ. Dangers of new collisions do exist if this problem cannot be solved. Actually before and after the April 1 2001 air collision, several potentially dangerous skirmishes had occurred between the warships and aircrafts of the United States and China in the Yellow Sea, East China Sea and South China Sea. The recent one is the intrusion of the American survey ship Bowditch in the Chinese EEZ in East China Sea. This ship approached the Chinese shore with a distance only 52nm., and conducted reconnaissance activities for a long time despite the warnings from the Chinese side. From China's point of view, it is a serious violation of its maritime jurisdictional rights.
1 |
Jiefang Daily, May 29, 2001, p. 4 |
2 |
Statement of PRCs Ministry of Foreign Affairs, Dec.30, Beijing Review, Jan 1, 1972, p. 13. |
3 |
Mark J. Valencia, op. cit., p. 47. |
4 |
Survey of International Affairs 1989, Shanghai Institute of International Studies, May 1989, p. 298, 299. |
5 |
IGCG Policy Paper, Maritime Jurisdiction in the Three China Seas, Institute on Global Conflict and Cooperation, University of California, San Diego, p. 15. |
6 |
Statement by the Chinese Ministry of Foreign Affairs, June 13, 1977, p. 17. |
7 |
Mark J. Valencia, op. cit., p. 47. |
8 |
Xinhua Monthly, Beijing, Feb. 11, 1974. |
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