China's Territorial Disputes (8 page)

By exploring how the three governments negotiate with one another while having to interact with their domestic pressure groups, within the context of this sovereignty/maritime boundary dispute, I hope to analyze and evaluate if and how the different preferences, priorities, risk assessments, potentials for tradeoff, and institutional constraints of state and society affect both bargaining behavior among states and relations between a government and its societal components. I hope to use this study to provide some tentative answers to the questions I have raised, to bring out similar issues which the other claimant states and societies will face but which I cannot explore in depth here, and to examine and evaluate the strength and limitation of the two-level games type of analysis while doing so.

Sovereignty and resource claims over the Diaoyu/Tiaoyutai/Senkaku Islands

Any attempt to determine who has the right to construct lighthouses or ascend rocks must take into account the understanding and interpretation of the concept of legal title or sovereignty. The three internationally accepted types of argument advanced by countries to establish claim or title over a disputed piece of territory are historical references (discovery), continuous occupation, and effective authority (government).
¹
The Chinese claim, adhered to by both Beijing and Taipei, and indeed by the Chinese people of Hong Kong and all over the world, is largely based on historical discoveries documented in the journals of Ming- and Qing-dynasty sea-captains and envoys to the Ryukyu kingdom, and the customary use of the rocks as shelters by Taiwanese fishermen facing inclement weather.
²
Japan does not recognize such historical citations as valid claims, preferring to argue that the Senkaku rocks were “terra nullius” until their subsequent discovery by a Japanese national, which resulted in a claim to exercise effective jurisdiction over the rocks at some time between the incorporation of the Ryukyu (Okinawa) kingdom into Japan in 1879 and the defeat of China by Japan in the Sino-Japanese War of 1894-1895.
³
From then on, Japanese control over the rocks has been unbroken except for the period when the Senkaku rocks, together with the Okinawa Islands, were under American occupation from 1945 to 1972.
⁴
The Japanese believe their claim to be in accordance with the 1982 Third United Nations Convention on the Law of the Sea (UNCLOS III) declaration on the 200-mile Exclusive Economic Zone (EEZ), adopted by the Japanese Diet on 20 July 1996, which would include the rocks if measured from the nearest baseline of the Sakishima island group of the Okinawa chain.

Up till today, the authorities on both mainland China and Taiwan argue that the Diaoyu/Tiaoyutai rocks were actually part of Taiwan province, and were ceded to Japan along with Taiwan under the terms of the Shimonoseki Treaty which concluded the Sino-Japanese War of 1894-1895. Neither Chinese authority recognizes the Japanese control over the rocks, which the latter claimed were handed over to them with the reversion of Okinawa. Both argue that the American occupation of the rocks between 1945 and 1972 was in contravention of the Cairo Declaration of 1943 and the San Francisco Treaty of 1951, which was supposed to have divested Japan of all its overseas possessions and effected the return of Diaoyu/Tiaoyutai to Chinese rule after the Second World War. Underlying the whole sovereignty argument is, of course, the bitterness which the Chinese feel toward the Japanese as a result of past invasions and what they consider to be continued occupation of the Chinese islands of Diaoyu/Tiaoyutai, in contrast to the insistence by many Japanese, especially right-wing nationalists, that the Senkaku rocks were never alienated from Japan from the day they were discovered and claimed by a Japanese for Japan.
⁵

As these rocks were never recorded as having supported or being capable of supporting, “permanent human inhabitation,” although they had at times served as a storm shelter for fishermen and a haunt for herb gatherers, the continuous occupation argument was rarely forwarded by any one of the contending parties. Since 1970, when a “sovereignty” claim was first raised by Taiwan following the discovery of petroleum deposits in the sea-bed around the rocks by a United Nations survey ship, the already convoluted arguments in support of the claims have taken on the “law of the sea” language of continental shelves and exclusive economic zones.

In 1958, the Continental Shelf Convention (CSC) was completed under the auspices of the United Nation Convention of the Law of the Sea (UNCLOS).
⁶
Though not a signatory to the convention, the Beijing government of mainland China immediately announced its claim to exercise exclusive jurisdiction over the economic resources in and under the entire East China Sea. It asserted its claim on the basis of its sea-bed being a continental shelf or “natural prolongation of the Chinese continent” in accordance with the CSC. This East China Sea Continental Shelf thus extends from the Chinese coast as measured at low tide all the way for some 350-400 miles to the Okinawa Trough just east of the Diaoyu/Tiaoyutai rocks, where it plunges into the Pacific Ocean (see Figure 3.1). When the Taipei authorities on Taiwan first made the claim to sovereignty over the rocks as the legitimate government of all China, it also relied on the authority of the CSC to make its claim for exclusive economic rights over the East China Sea and seabed. The sovereignty question soon overshadowed economic arguments once again when the United States as the administrative power of both the Okinawa islands and the disputed rocks handed them to Japanese administration in 1972, but avoided the issue of where the sovereignty of these rocks lay.

Figure 3.1
The East China Sea

To the Chinese, the claim of Japan to what it calls the Senkaku rocks is not in the least incidental - a successful Senkaku claim would
strengthen
, though not
establish,
Japan’s claim of a 200-mile Exclusive Economic Zone (EEZ) halfway across the East China Sea from baselines on the shores of the Okinawa Islands as permitted under the UNCLOS III, which finalized the EEZ concept in 1982. The rocks themselves would most likely not qualify for an EEZ because they never showed signs of supporting “permanent human inhabitation.”
⁷
To strengthen its claim over the rocks, which are just short of 100 miles north-northeast of the northern tip of the island of Taiwan, Taipei had already claimed a 200-mile EEZ over Taiwan and mainland Chinese coasts as early as 1979. China did the same with its 1992 Maritime Law, which created an uproar with the Japanese, and led Japan to respond by claiming its own 200-mile EEZ around the Japanese Isles in early 1996, implemented on 20 July 1996, which specifically included the Senkaku rocks. Could it be coincidental that the right-wing nationalist
Nihon Seinensha
(Japanese Youth Federation) erected a lighthouse on one of the smaller rocks just six days prior to the Diet passing the enabling legislation? The Chinese did not think so. However, sovereignty dispute notwithstanding, a series of occasional talks was held between officials and scientists from China and Japan from 1978 to 1982, to explore the possibility of jointly developing the hydrocarbon resources under the East China Sea shelf. The building of a lighthouse on the biggest of the eight Diaoyu/Tiaoyutai/Senkaku rocks by the Japanese, and the fear of jeopardizing future sovereignty claims through the “unfortunate” siting of oil-rigs, halted all future talks. Still, the call for joint development came forth time and again from Japan, China, and even Taiwan, which has expressed the most willingness to conduct semi-official talks with Japan on fisheries after every incident. Note that while both Beijing and Taipei seemed to have established their claims over the rocks by invoking the authority of both CSC and EEZ concurrently, Tokyo must rely on the EEZ, because the CSC argument would deprive Japan of the entire East China Sea shelf, including the Senkaku rocks, which lie just west of the Okinawa Trough which marks the end of the shelf. Irrespective of whether the CSC or EEZ argument wins out, whichever country that stakes an actual claim on the rocks will have to regulate fishing and passage within the twelve-mile territorial sea around the rocks. This action will be construed as extremely provocative to the other disputants concerned, making the occupation authority a good target for opposing nationalist forces to provoke retaliation and involve their own governments in confrontation to achieve their aims.

The first incident: petroleum discoveries and the Okinawa reversion (1970-1972)

The Tiaoyutai/Senkaku controversy first reared its ugly head above the waters of the East China Sea in late 1968, when a geographical survey conducted by the Committee for Coordination of Joint Prospecting for Mineral Resources in Asian Offshore Areas (CCOP) under the auspices of the United Nations Economic Commission for Asia and the Far East (ECAFE) in the East China Sea reported that “a high probability exists that the continental shelf between Taiwan and Japan may be one of the most prolific oil reservoirs in the world, with potential estimated at between 10 to 100 billion barrels.”
⁸
Considering that Japan, Taiwan and Korea were all major importers of oil at that time, with Japan importing 95.5 percent of its domestic demand and Taiwan importing 98 percent of its annual consumption, it is not surprising that the immediate reaction of the countries to the report was to claim sovereignty over as much of the continental shelf as was minimally defensible.
⁹
In May 1969, a Hong Kong news magazine reported that someone from Okinawa’s Yaeyama Islands had placed a boundary marker on the largest of the Tiaoyutai islands, claiming the islands for Okinawa.
¹⁰
On 19 July 1969, Taiwan announced she would exercise all sovereign rights over the natural resources in the sea-bed and subsoil adjacent to her territorial sea.
¹¹
Taiwan and Gulf Oil subsequently entered into a concession contract in July 1970 to develop oil from a specific area which included the Tiaoyutai Islands. Shortly after, Japan contested this action by Taiwan on grounds that the islands belonged to the Ryukyus, and therefore, after their reversion from United States to Japanese control, the islands should belong to Japan.
¹²
On 12 September 1970, Japan reasserted its title to what it referred to as the Senkaku islands, but perhaps to diffuse opposition to its sovereignty claim or give the impression that it was not about to monopolize the surrounding sea-bed resources, the Japanese government indicated that it was willing to negotiate the “question” of the adjacent continental shelf with the Nationalist Government of China (Taiwan).
¹³
This invitation was later extended to the government of (South) Korea, but not mainland China, which at that time was still regarded by the other three governments as a Communist pariah and an illegitimate rebel Chinese regime.

Officials from Japan, Taiwan and South Korea met in Tokyo on 21 December and formed the “China (Taiwan), Japan, (South) Korea Oceanic Development and Research United Committee.” At this meeting, which was chaired by former Japanese Premier Kishi Nobusuke, the Japanese suggested discussing “development cooperation” for the East China Sea area first and freezing the “sovereignty issue” for resolution at a later date. The meeting decided to provisionally establish a “United Oceanic Development Company” and reconvene itself in Tokyo at the end of May 1971 to finalize the running of the company and the investment shares of the participating parties; however, due to subsequent fierce public denunciation by the People’s Republic of China, this was put off indefinitely.
¹⁴

On 23 December 1970, the Taipei
Central Daily News
reported that

The three countries of China (Taiwan), Japan, and (South) Korea have already agreed to jointly develop the continental shelf, (to which end) each country will establish a committee to research, explore and plan; the boundaries of continental shelf discussed by the three countries include the vast area from the East China Sea to the Japan Sea, including Tiaoyutai.
¹⁵

The plan apparently called for dividing the spoils of oil development through arrangements assuring the harmonization of the private corporations involved. Thus Japan’s Teikoku and Gulf Oil of the United States would then have had a Japanese concession overlapping the previous existing Gulf Oil concession from Taiwan, which would then have been renegotiated to restructure Gulf’s obligations to Taipei.
¹⁶

If Tokyo, Taipei and Seoul had counted on having a free hand in the development of the continental shelf without Beijing’s cooperation or interference, they were sorely mistaken. On 20 December an editorial entitled “Resolutely Do Not Tolerate Attempts by American and Japanese Revisionists To Rob Our Country’s Submarine Resources” suddenly made its appearance in Beijing’s authoritative
People’s Daily.
The editorial stressed that