MAP-东海海事和主权争端（英文）-2021.2-6页.pdf

maritime awareness projectANALYSISBEC STRATING is Executive Director of La Trobe Asia at La Trobe University.Maritime and Sovereignty Disputes in the East China Sea Bec Strating February 9,2021The East China Sea has been described by some experts as a potential“flashpoint”of interstate conflict and great-power rivalry and a source of regional destabilization.1 Much attention has focused on military activities in this maritime theater,primarily involving Japan,China,and South Korea.In contrast,this essay focuses on the complex maritime and sovereignty claims of Northeast Asian states in the East China Sea and unpacks the differing legal principles they use to support their claims in order to understand the enduring nature of the conflicts.These disputes are challenging precisely because they involve contests over both territorial sovereignty and maritime rights.The presence of different legal principles that states can draw on to defend their national interests makes these disputes more intractable,as states inconsistently use international legal principles to maximize their maritime entitlements.Maritime DisputesIn the East China Sea,maritime and territorial disputes are distinct but interrelated.Territorial 1 See,for example,Todd Hall,“More Significance Than Value:Explaining Developments in the Sino-Japanese Contest over the Senkaku/Diaoyu Islands,”Texas National Security Review 2,no.4(2019):1137;Brendan Taylor,The Four Flashpoints:How Asia Goes to War(Melbourne:La Trobe University Press,2018);and Zack Cooper,“Flashpoint East China Sea:Potential Shocks,”Asia Maritime Transparency Initiative,April 27,2018.disputes emerge over ownership of the land features that dot the seas.Maritime disputes,on the other hand,relate to overlapping jurisdictional claims over maritime areas.Maritime zones such as an exclusive economic zone(EEZ)and a continental shelf provide sovereign rights but not full sovereignty(see Table 1).The primary legal mechanism for managing or resolving maritime disputes is the United Nations Convention on the Law of the Sea(UNCLOS),which has been signed and ratified by Japan,China,and South Korea,among other countries.However,while UNCLOS contains mechanisms for resolving maritime disputes,it does not apply to sovereignty disputes over territory.Sovereignty disputes are instead subject to a distinctive body of international law governing the acquisition of territory,which includes principles such as effective occupation,cessation,and conquest.Eight of the nine maritime boundaries in Northeast Asia remain unsettled,2 and these disputes endure partly because of geography.Northeast Asian countries are situated on closed or semi-enclosed seas,which 2 Suk Kyoon Kim,Maritime Disputes in Northeast Asia(Leiden:Brill Nijhoff,2017),51.Maritime Awareness Project Analysis February 9,20212means that states pursuing their full entitlements under UNCLOS often find their maritime claims overlapping with others.Moreover,the breadth of the seas on which these states are situated is less than 400 nautical miles(nm)wide.Under UNCLOS,states are entitled to an EEZ of up to 200 nm from their baselines.They may also be entitled to a continental shelf of up to 350 nm.Problematically,there are different principles that states may draw on in order to delimit maritime boundaries.One is the principle of“natural prolongation”of the continental shelf,whereby states hold sovereign rights over territory that extends under the sea to the edge of a geomorphic continental shelf.The other is the use of the equidistant/median line,which since the third UNCLOS convention went into force in 1994 has become increasingly accepted as the basis for delimiting maritime boundaries,unless special circumstances warrant a different boundary line.Chinas,South Koreas,and Japans EEZ and continental shelf claims overlap in the East China Sea.South Korea and China both claim continental shelves extending beyond 200 nm in the East China Sea.South Korea claims that the seabed and subsoil Maritime zoneExtension seaward from baselinesEntitlementsInternal waters(including historical bays)Located on the landward side of the baselineFull sovereign authorityContiguous zone12 nmRights to set laws,regulate use,exploit resources,police zone;foreign vessels permitted“innocent passage”Territorial waters24 nm(including the 12 nm territorial sea)Enforcement of laws on pollution,smuggling,taxation,customs,and immigrationExclusive economic zone200 nmRights over all natural resources in the water column and seabed(i.e.,fishing);other states have rights of navigation,overflight,and the laying of submarine pipes and cablesContinental shelfUp to 350 nmExploitation of resources in the seabed and subsoil(e.g.,hydrocarbons)of the East China Sea form a continuous continental landmass extending from its coast.In its partial submission to the Commission on the Limits of the Continental Shelf(CLCS)for a portion of the outer limits of the continental shelf,South Korea renewed its claim in some parts up to 350 nm.3 China also uses natural prolongation justifications in the East China Sea.In 2012,China submitted to the CLCS its claims that the outer limit of its continental shelf extends to the Okinawa Trough(beyond 200 nm from Chinas baselines).Its claims were based on the principle of natural prolongation,which may permit a continental shelf to be extended beyond 200 nm.The EEZ claims of China and Japan also overlap.Both states claim an EEZ of 200 nm from their coasts,yet the sea separating China and Japan spans only 360 nm.Whereas China claims a maritime boundary based on the natural extension of its continental shelf,Japan uses median line principles in determining the limits of its EEZ.Japan argues that the principle of natural prolongation is only applicable to the 3 Republic of Korea,“Partial Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76 Paragraph 8 of the United Nations Convention on the Law of the Sea,”December 2012,79.s ource:Table from Rebecca Strating,“Maritime Disputes,Sovereignty and the Rules-Based Order in East Asia,”Australian Journal of Politics and History 65,no.3(2019):44965.Table 1:Sovereign Rights under UNCLOSMaritime Awareness Project Analysis February 9,20213continental shelf,and only to the continental shelf beyond 200 nm.4 This has produced an area in which maritime claims overlap.Complicating the situation,the Chunxiao natural gas field was discovered near the overlapping EEZ in 1995.While the gas field lies on the Chinese side of the median EEZ border claimed by Japan(and contested by China),Japan argued that China should refrain from exploiting the field given its location.In 2011 a Chinese offshore oil firm confirmed that it had been producing oil from the disputed gas field,although China has stopped short of drilling within Japans claimed EEZ.5Maritime disputes take on greater significance when natural resources are in play,such as potentially lucrative stocks of fish or hydrocarbon deposits.Mixed disputes involving both maritime and territorial aspects can also come to symbolize larger contests over national identity and sovereignty.In the East China Sea,such disputes are further compounded by fraught histories of conquest and domination.Islands,Rocks,and ReefsFurther compounding Northeast Asias complex maritime geography is the presence of disputed land features,the ownership or classification of which can affect maritime claims.An island,for example,may generate the full suite of maritime entitlements,including up to a 200 nm EEZ and a continental shelf.Rocks,by contrast,are only entitled to a 12 nm territorial zone and are thus unable to generate EEZ or continental shelf claims.Reflecting their territorial nature,these sovereignty disputes are subject to historical grievances and the symbolic politics of national identity,which contributes to their intractability.4 Kim,Maritime Disputes in Northeast Asia,67.5 Yoichiro Sato,“Explained:Chinas Rivalry with Japan in the East China Sea,”National Interest,September 16,2020.The 1951 San Francisco Peace Treaty was supposed to settle the issue of who owned the array of islands occupied by Japan during World War II.While Article 2(6)officially renounced Japans rights to the Spratly and Paracel Islands in the South China Sea,the ambiguity of ownership of land features has contributed to territorial disputes in the East China Sea,including over Dokdo/Takeshima(administered by South Korea and claimed by Japan)and Senkaku/Diaoyu(administered by Japan and claimed by China).Dokdo/Takeshima.The final text of the San Francisco Treaty did not list Dokdo/Takeshima as one of the territories to be returned to South Korea following World War II,despite its consideration in negotiations.In terms of de facto control,however,South Korea has asserted effective control of the features,and successive governments have presented this as a key element of the restoration of Korean sovereignty.There are maritime implications of whether this feature is considered an island or a rock,and consequently whether an EEZ may be generated from baselines around it.While Japan claims that the features are an island,South Korea argues that the baselines are not entitled to an EEZ or continental shelf.South Korea has sought to establish sovereignty rather than demonstrate that the features are habitable for the purposes of claiming an EEZ.Japan,meanwhile,advocates taking the sovereignty issue to the International Court of Justice(ICJ).South Korea rejects this option on the grounds that it does not recognize a dispute,though its position is partly shaped by a belief that ICJ decisions have disadvantaged previously colonized states.Senkaku/Diaoyu.By contrast,in the Senkaku/Diaoyu dispute it is Japan that has established effective occupation despite Chinas claims to legitimate sovereignty of the islands.China began to assert its claims in the 1970s after the discovery of oil reserves,basing its position on a“historic rights”argument.Its protests of Japanese occupation of Senkaku/Diaoyu escalated after Tokyo nationalized the islands in 2012.Maritime Awareness Project Analysis February 9,20214Japan denies that there is a dispute,reflecting its position as the effective occupier.It has also claimed that the disputed features are not rocks and so can generate an EEZ and continental shelf under UNCLOS.Japan is concerned about what it views as Chinas violation of Japanese territorial waters around the features,as incursions by Chinese law-enforcement vessels increased after Japan nationalized the islands.These concerns intensified following Chinas declaration of an air defense identification zone(ADIZ)in the East China Sea in November 2013,covering airspace over the Senkaku/Diaoyu Islands,Socotra Rock,and the outer limits of Chinas continental shelf claims.Socotra Rock.Some land features are not subject to sovereign acquisition under international law.A good example is Socotra Rock(named Ieodo by South Korea and Sunyan Jiao by China),which is a permanently submerged rock(or seamount)located between China and the Korean Peninsula in the Yellow Sea.Nearly five meters underwater at its highest peak,the rock has a surface area of just under four square kilometers.Over the past two decades,disputes between China and South Korea over the status of this submerged feature have intensified.In 2003,South Korea constructed a scientific research station on Socotra Rock on the basis that it views the feature as part of its continental shelf.In response,China objected to the research station and rejected South Koreas right to construct it without Chinese permission.China instead believes that the submerged feature falls within its EEZ and claimed jurisdiction over the feature in 2006.6The dispute over Socotra Rock is not a territorial dispute in nature;rather,it is a maritime boundary issue.Both parties agree that Socotra should be classified as a submerged feature and is therefore not subject to sovereignty and has no rights to surrounding maritime zones,apart from a 500 meter safety zone.Instead,the question concerns within which states EEZ the rock falls or on which continental shelf it lies.6 For a more comprehensive overview,see Senan Fox,China,South Korea,and the Socotra Rock Dispute:A Submerged Rock and Its Destabilising Potential(Singapore:Palgrave Macmillan,2019),2.The feature itself lies within an area of overlapping maritime claims between South Korea and China,almost exactly halfway between their claimed EEZ boundaries.7 In the Yellow Sea,South Korea maintains that median line principles should apply,while China uses“equity”arguments to justify a different approach to maritime delimitation.8This dispute is a consequence partly of unsettled maritime boundaries and partly of the gaps and overlapping principles of demarcation that exist in international law.Each state views Socotra Rock as part of its continental shelf based on different legal reasons.Contemporary international legal opinion has tended to favor the equidistance principle for delimiting boundaries in cases where the breadth of sea between adjacent states is less than 400 nm,unless there are special circumstances that require the line to be adjusted in order to achieve equity(as stipulated in Article 74 of UNCLOS).9 Using this principle,South Korea claims that if a median line boundary were drawn in accordance with contemporary international law,the submerged feature would fall within its EEZ.It also argues that the reef falls on its continental shelf.China claims that Socotra Rock falls under its jurisdiction based on the principle of natural prolongation.In the East China Sea,it uses this principle to defend a more advantageous demarcation of the continental shelf than would be secured using median line principles.China views the feature as part of its continental shelf and as lying within its EEZ.Yet,while UNCLOS provides for the natural prolongation principle under Article 76,this is qualified by Article 83,which mandates the achievement of an“equitable solution.”Natural prolongation thus appears increasingly outdated as the median line becomes favored in ICJ cases.7 Fox,China,South Korea and the Socotra Rock Dispute,2.8 Seokwoo Lee and Clive Schofield,“The Law of the Sea and South Korea:The Challenges of Maritime Boundary Delimitation in the Yellow Sea,”National Bureau of Asian Research,Maritime Awareness Project,April 23,2020,https:/www.nbr.org/publication/the-law-of-the-sea-and-south-korea-the-challenges-of-maritime-boundary-delimitation-in-the-yellow-sea.9 See,for example,International Court of Justice,Continental Shelf(Libyan Arab Jamahiriya/Malta)Judgment,June 3,1985.Maritime Awareness Project Analysis February 9,20215Why are these states concerned about a submerged rock?The dispute feeds into broader security concerns about maritime domains:the East China Sea is a theater of strategic anxiety for Northeast Asian states.The rock also falls