Assessing Maritime Disputes in East Asia: old and new paradigms

International relations in Asia are affected by deep conflicts regarding sovereignty over small islands, and the nature of maritime zones around these island features. The disputes over the Southern Kurils/Northern Territories, Dokdo/Takeshima/Liancourt Rocks, Senkaku/Diaoyu Islands, Paracel, and Spratly Islands, as well as the Scarborough Reef, still strongly affect relationships between Russia and Japan; Japan and South Korea; Japan, Taiwan and China; and China, Taiwan, and the ASEAN States bordering the South China Sea. The multiplicity of maritime territorial disputes in East Asia is therefore a regional issue rather than a series of specific security problems.

Historical disputes

These disputes are largely the heritage of the Second World War and its aftermath. The San Francisco Treaty mentioned that the territories occupied by Japan would be surrendered, but did not address the issue of which State they were to be attributed to. The Cold War froze the nascent disputes, and prevented Japan and the USSR from exploring shared solutions. The Cold War also had the effect of providing a specific lens through which developments in the East and South China Seas would be analyzed by the United States (U.S.). China developed its South China Sea policy at a time of strong opposition from the U.S. allies against Vietnam; while China developed a claim to the Diaoyu/Senkaku islands when both Japan and the United States were looking for Beijing to act as a counterweight to the Soviet Union. The rivalry that developed between the Republic of China and the People’s Republic of China also affected the China Sea disputes.

Disputes fueled by diverse factors

China’s interest in the Diaoyu/Senkaku islands rose after the 1969 UN Economic Commission for Asia and the Far East’s report, which indicated huge potential for hydrocarbons in the area.  However, reserves in the area may appear a weak rationale for the dispute, while more political motives are generating rising tensions. One of these motives is the desire to maneuver into a favorable position as the relevant aspects of international law continue to develop. This is particularly true of the Law of the Sea (UNCLOS), which allows for States to obtain sovereign rights over economic resources in large expanses of sea. States have rushed to stake claims as the possibility of controlling potential resources in the future beckons. The new international law regimes have provided them with this possibility. Yet, the lack of clarity in the regime that deals with small islands has proved fatal, inasmuch as it has helped nurture huge and contradictory claims to exclusive economic zones and to extended continental shelves from very small islands or even islets. The status of the latter in terms of Article 121 of the UNCLOS remains a source of controversy. Likewise, by setting a ten-year limit after ratification to submit an extended continental shelf claim with the UN Commission on the Limits of the Continental Shelf, the UNCLOS has encouraged States like Vietnam and Malaysia to document and publish their claims in the South China Sea. The desire to strengthen their claims is motivated by legal rather than political considerations.

The other motive lies in the context of rising nationalist sentiment, and the development of narratives in which the disputes can prove to be politically advantageous. Whether between Japan and the USSR/Russia; or between South Korea and Japan; or Japan and China; or between China and its ASEAN neighbors (especially Vietnam), the narrative over disputed islands is rooted in the construction of specific relationships with the neighbors. Strong nationalist sentiment is instrumentalized by the authorities to rally the population. These images and narratives are powerful domestic political tools, and they provide their respective governments with strong boosts to their legitimacy.

Finding solutions: using courts?

Cooperation is needed. However, diplomacy and negotiations can hit major difficulties as several parties refuse to recognize that there is a dispute. This is the case for South Korea in its conflict with Japan over Takeshima/Dokdo; and for Japan, the PRC, and Taiwan in the dispute over the Diaoyu/Senkaku. Actors may also posit that there may be discussions over the management of resources, but not over sovereignty while their counterparts continue to insist that sovereignty is a major issue. Examples of this include Russia and Japan’s dispute over the Kurils/Northern Territories, and the dispute between the PRC, Vietnam, and the Philippines in the South China Sea. Thus, the objective of discussions is not agreed upon by claimants, which makes progress difficult to achieve. Solutions can be found, as proven by the dispute on Ligitan and Sipadan which was solved in 2002 by an ICJ award to Malaysia. Similarly, in 2008 the ICJ solved the dispute between Singapore and Malaysia over Pedra Blanca and Middle Rocks, awarding the former to Singapore and the latter to Malaysia. These disputes were solved with a referral to the ICJ for final judgment, and they did not provoke a major deterioration of bilateral relations.

The PRC government is all the more adamant against such moves after the July 12, 2016 decision against the PRC from the Permanent Court of Arbitration in The Hague. Legal proceedings imply that diplomacy is no longer considered by one party as the main way to make progress; it does not mean the bilateral relation is broken. Whether legal recourse will prove a decisive path toward a peaceful solution for these numerous island disputes is debatable; it may however prove an inflection that could set norms and legal interpretation for the parties, as its sets a normative discourse, albeit ignored by some actors as Beijing strongly rejected the conclusions of the Court ruling.

Evolving disputes

Some disputes have seen significant inflections. Examples include the regional emergence of the PRC’s economic and political clout; the assertion of Beijing’s sovereignty over the Diaoyu/Senkaku in 1971; the landing of Chinese troops in the Spratlys in 1988; and the 1995 Chinese taking over Mischief Reef in an area closer to the Philippines. The 2002 signing of the Declaration on the Code of Conduct was another inflection that created hope for the peaceful management of the dispute in the South China Sea. Yet it proved a failure. Since 2010, relations have seriously deteriorated both in the South and East China Seas, with incidents between Chinese and Taiwanese fishing trawlers and Japanese coast guard vessels; and between Chinese, Filipino and Vietnamese official vessels, often used as tools to display the flag and probe the determination of the other party. Similarly, the PRC, but also Vietnam and the Philippines, began reclaiming reefs to transform them into larger – albeit artificial – islands.

Another major variable in the evolution of these disputes, especially in the East and in the South China Seas, is the attitude of the United States. Washington recently tried to bring support to Japan in the East China Sea; to Vietnam in May 2016 with the lift of the ban on weapons sales; and to the Philippines as it also challenged China’s political determination and maritime claims in the South China Sea. It remains to be seen whether this is a sign that the U.S. is preparing to deepen its involvement in these regional disputes, or whether the American foreign policy is simply fundamentally ambiguous.

Presentation of Assessing Maritimes Disputes in East Asia

By compiling together in one book with robust analysis of various maritime disputes in East Asia, exploring through several disciplines – political science, international law, history, geography – and introducing different approaches to the most relevant cases –, Assessing Maritime Disputes in East Asia aims at contributing on this sensitive subject and combines a comparative approach and the identification of transnational trends that may occur in different cases, and at the regional level.

The book emphasizes on different angles in addressing the disputes, introducing the arguments and motives of the countries involved, and proposing several understandings of the disputed areas.  Although each of the problems has its own specificities and background, the maritime disputes in East Asia share some common factors, on top of the rise of China as a more assertive power and a potential hegemon.

 

Barthélémy Courmont, Frédéric Lasserre and Eric Mottet (ed.), Assessing Maritime Disputes in East Asia. Political and Legal Perspectives, London, New York: Routledge, 2017.