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Japanese Coast Guard Run in with Chinese Vessel Reveals Deeper Problems

A small collection of uninhabited islands off the coast of Taiwan has been a source of friction between Japan and China for over a century.  China lays claim to the islands dating back to the Ming Dynasty.   Japan has argued the islands belong to them due to the spoils of the 1894-1895 Sino-Japan War and as a consequence of the 1951 San Francisco Treaty (ending WWII between Japan and the United States).   China was not a party to the 1951 San Francisco Treaty and still fails to recognize it.   The two countries even call the group of islands different names.   China calls the rock formation the Diaoyu islands, while Japan has named it the Senkaku chain.   The Diaoyu/Senkaku islands have oil and natural gas deposits underneath them and there are fertile fishing grounds around the islands.  China also sees control of the islands as a source of national pride and potentially is part of a strategy to assert a stronger military presence in the Pacific Ocean.

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In early September, two Japanese Coast Guard vessels attempted to intercept a Chinese fishing vessel near the Diaoyu/Senkaku islands.  The three vessels collided, causing damage to all three.  The Japanese arrested the captain and crew of the Chinese vessel and seized the allegedly aggrieved vessel.   After the incident China demanded the unconditional release of the vessel.  “We demand Japanese patrol boats refrain from so-called law enforcement activities in waters off the Diaoyu islands,” the spokeswoman for China’s Foreign Ministry, Jiang Yu.  Japan attempted to play down the political controversy.   “We will handle the matter firmly in accordance with the law,” Yoshito Sengoku, chief cabinet Secretary said.   “It is important that in Japan we not get overly excited.”  Eventually the crew and the captain were released after political posturing on both sides, and heavy pressure put on by China.  However, several legal issues remain unresolved relating to the incident itself, mainly to see who will pay the damages to the vessels.  Also, it is unresolved if a damages should be imposed on Japan for an unlawful imprisonment or on the Chinese vessel for illegal fishing.  There is of course the deeper controversy of who owns the islands.

If the group of islands belongs to Japan then under Articles 55-60, 63, and 74-75 of the United Nations Law of the Sea Convention Japan actions were perfectly legal and in keeping with a costal state’s right to enforce fishing and other economic rights in its Exclusive Economic Zone.  However, if China owns the islands then Japan’s actions are unlawful under the Law of the Sea Convention.  In a perfect world Japan and China would resolve the conflict by submitting the dispute to international court.  However, this is unlikely and the pressures of international law may at a minimum be able to allow the conflict to be resolved peacefully in keeping with Chapter VII of the United Nations Charter.  China and Japan could examine the possibility of either creating a bilateral agreement similar in nature to the 2002 Declaration of Conduct of Parties in the South China, or jointly exploring and developing the disputed area.  (See generally Dai Tan, The Diaoyu/Senkaku dispute: Bridging the cold divide, 5 Santa Clara J. Int’l L 134. (2006)).    This “split the baby” approach would be difficult for the Chinese nationals to swallow, but may be their best option due to Japan’s continued control of the Diaoyu/Senkaku islands.


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