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A legal and practical arrangement of disputes concerning maritime boundaries pending their final solution and law enforcement


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A legal and practical arrangement of disputes concerning maritime boundaries pending their final solution and law enforcement


From a Japanese perspective


Atsuko Kanehara
Professor of Public International Law, Faculty of Law, Rikkyo University, Tokyo



Introduction


This chapter will deal with disputes and recent incidents in the domain of the law of the sea that occurred between Japan and neighbouring countries. It is really a great honour for me to contribute to this liber amicorum for Professor David Attard. His fields of international law are remarkably varied, and, needless to say, the law of the sea is in particular the field of his prominent accomplishment. For this very reason, the author sincerely would like to celebrate his valuable achievements in international law, from both legal and practical aspects, by introducing some Japanese practice on the law of the sea.


Japan is surrounded by seas in all directions, and, especially in the westward direction, has faced difficult problems for a long time in relation to neighbouring countries, such as the Republic of Korea and the People’s Republic of China. All three countries are States Parties to UNCLOS.1 Thus, the following examination will proceed by referring to the relevant provisions of UNCLOS as much as possible.


There are several characteristics in the issues that have occurred among the three Asian countries.


First, due to a dispute or question concerning territorial sovereignty over some islands,2 maritime delimitation of the jurisdictional sea areas and seabeds between two of them, and other related issues have inevitably become so complicated and



1 United Nations Convention on the Law of the Sea, 1982.


2 This chapter will not discuss the dispute relating to the territorial titles over the islands concerned as such.


difficult that a solution cannot be expected in the near future. The dispute or question of a territorial title has continuously bothered the countries concerned for a very long time, and in fact the parties have been in conflict with one another for more than one hundred years, in the dispute over the Takeshima Islands, for instance.3 Despite this, the three Asian countries have successfully managed the bottleneck situations in several matters of the law of the sea, such as, fisheries, exploitation of seabed resources and marine scientific research, while setting aside the differences regarding title to the islands. The parties, in putting their differences to one side, hope for a practical resolution in the near future to the maritime delimitation of the continental shelf and the exclusive economic zone (EEZ). Ideally, the parties would hope for a resolution to both the issues at the same time: territorial title and the maritime delimitation.


Korea and Japan have claimed for4 territorial title to the Takeshima Islands – in Korean they are called the Dokdo Islands.5 Between China and Japan there is a difference of positions concerning the territorial sovereignty over the Senkaku Islands – in Chinese they are called as the Diaoyudai Islands – while the Japanese government formerly declared the Islands to be Japanese territory in accordance with historical facts and international law.6


Second, the geographical characteristics surrounding these countries also deserve attention. The distance of coasts between China and Japan, and between Korea and Japan, too, is less than 400 miles. The geographical facts of the area are such that, beyond 200 miles from the Japanese baseline from which the width of the territorial sea is measured, the sea areas are the high seas; at the same time they can be the EEZ of Korea or China. According to Article 56(1) of UNCLOS, over matters of exploration and exploitation of marine resources and others, coastal states of the EEZ have a sovereign right or jurisdiction in the sea areas. For other matters, the very same sea areas maintain the status of the high seas at the same time. The point became critical in the incident that happened between Korea and Japan in 2005 concerning the hot pursuit by a Japanese coast guard vessel against a Korean fishing boat from the Japanese EEZ onto the sea areas, being the high seas and the Korean EEZ.7



3 Concerning the historical perspective of the dispute, see, for instance, paper by M. Yanagihara submitted on the occasion of the International Conference entitled ‘Dokdo: historical appraisal and international justice’, 17–18 November 2008, in the Panel I.


4 As for the Japanese government’s position, see: www.mofa.go.jp/region/asia-paci/takeshima/index.html.


5 As an analysis of this dispute from the perspective of the law of the sea, see: A. Kanehara, ‘A possible practical solution of the dispute over the Dokdo/Takeshima Islands from a perspective of the law of the sea’, in S. Lee & H. E. Lee (eds), Dokdo: historical appraisal and international justice, (2010, forthcoming).


6 The Japanese position on the issue is provided as a provisional translation in English at: www.mofa.go.jp/region/asia-paci/senkaku.html.


7 The incident will be touched upon in the third section of this chapter, see pp. 109–117.


Bearing in mind these particularities, this paper will introduce recent practices of the three countries as Asian practices concerning maritime delimitation and law enforcement issues. The practices, on the one hand, clearly demonstrate successful management or resolution, albeit provisional, of the disputes which enable the countries concerned to continue the friendly relations and also maximize benefits to be gained from the exploitation of marine resources and marine scientific research. On the other hand, since the three countries are parties to UNCLOS, the practices may provide a management model for resolving UNCLOS-related issues, especially as a provisional arrangement pending the final resolution of maritime delimitation and the distribution of jurisdiction on both the high seas and the EEZs.


My analysis will proceed using the format outlined below.


The next section will deal with the issue of marine scientific research to be carried out in the sea areas surrounding the islands over which two countries claim territorial sovereignty. The recent incident which occurred in 2006 between Korea and Japan will be a main topic, and in comparison with it, an arrangement between China and Japan will also be succinctly introduced.


The third section, will analyse a recent hot pursuit, and attendant matters, exercised by a Japanese coast guard vessel against a Korean fishing boat from the Japanese EEZ onto the high seas and the Korean EEZ.8


The last section will propose some tentative conclusions that can be derived from the practices of these Asian countries relative to the law of the sea and UNCLOS.



Marine scientific research in marine areas where claims for the EEZs of two countries conflict9



A situation of conflict between Korea and Japan in 2006: the facts of the incident in relation to marine scientific research


In April, Japan planned to undertake a marine scientific research in the waters on the Japanese side from the median line, which run between the Ullung Do Islands and the Takeshima Islands. The research was a hydrographic survey to study sea



8 Between Japan and China there is difference of positions concerning the territorial title over the Senkaku Islands – as to the position of the Japanese government, see fn 6 – as a provisional arrangement of the continental shelf delimitation, a Political Memorandum of Understanding was issued by the two countries on the 18 of June, which prescribes for joint exploration and joint development of the continental shelf resources on the sea bed areas designated by the Memorandum, see: www.mofa.go.jp/mofaj/area/china/higashi_shina/press.html. The negotiation between them continues for concluding a legal agreement for the same purpose and perhaps the delimitation of the continental shelf. Due to the limited space, this chapter will not deal with the issue in detail.


9 For a detailed analysis of the Japanese positions concerning this issue, see A. Kanehara ‘Marine scientific research in the waters where claims of the exclusive economic zones overlap between Japan and the Republic of Korea – incidents between the two states in 2006’, Japanese Annual of International Law 49, 2006, pp. 98–122 (hereinafter referred to as Kanehara, JD (VIII)/1).


bottom topography in the south-west sea area of the Sea of Japan. Korea was going to submit changes in undersea feature names at the meeting of the SubCommittee on Undersea Feature Names, scheduled for June 2006. The Japanese government tried to prevent this, and intended gathering scientific information relative to undersea features by conducting its own marine scientific research.


As soon as this plan was made public by the Japanese government, the Korean government issued a harsh protest, making it clear that it would use whatever means necessary, including coercive measures, to intercept the Japanese vessels conducting the research, if Japan were to go ahead with its plan. On 21 and 22, negotiation between the two countries was reached. In the talks Japan required Korea to abandon its proposal of changing the names of the undersea features. Korea, in return, insisted that Japan should give up its planned marine scientific research.


As a result, three points were agreed. First, Japan would abandon its planned marine scientific research. Second, Korea would not propose the change in names of the undersea features. Third, negotiation of the EEZ delimitation would be resumed in due course (which had been discontinued for six years since 2000).


In the meantime on 18 April Korea submitted its declaration in accordance with Article 298 of UNCLOS, the core of which was its denial of acceptance of any of the procedures provided for in Section 2 of Part XV of UNCLOS with respect to all categories of disputes referred to in paragraph (a) (b) and (c) of Article 298.10


On 3 June, Korea announced to Japan its intention to conduct marine scientific research. This was a sea current survey to be conducted in the sea areas, including in those waters where the claims of the two countries to the EEZ overlapped. Irrespective of Japan’s protest and request for a postponement or suspension of the planned research, on 5 July, Korea commenced its survey on the waters, including in those waters between the two median lines and which each of the two countries claimed for itself.11 The Japanese government immediately lodged a diplomatic protest and urged Korea to cease its marine research.


On 4 and 5 September, another negotiation of the EEZ delimitation was conducted. During the talks a joint marine scientific research plan – a plan of a survey of radioactive release into the sea – was discussed and agreed, which was to be carried out in October of 2006.



10 The declaration of Korea pursuant to Article 298 of UNCLOS, 18 April, and its gist is as follows:



Declaration to Article 298 of the Republic of Korea



1 In accordance with paragraph 1 of Article 298 of the Convention, the Republic of Korea does not accept any of the procedures provided for in section 2 of part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.


2 The present declaration shall be effective immediately.


For the declaration, see ‘Declaration pursuant to article 298: Republic of Korea’, Journal of the United Nations 2006/75, 18 April 2006, p. 11.


11 The median lines that the two countries argue are explained below, see p. 99.


This joint marine scientific research plan set six points as research spots, three of which are situated on the waters between the two median lines that Japan and Korea regarded as the delimitation line. The remaining three points are on the Japanese side of the median line that Korea argued as being the delimitation line.


This joint marine scientific research was solely on an ad hoc basis, and, therefore, it established neither a continuous cooperative scheme, nor provisional arrangements for marine scientific research on the waters, including the sea areas under dispute.12


It will be recalled that in relation to the waters containing the disputed sea areas, the two countries had not established any delimitation of the EEZ, nor agreed any provisional arrangements for the marine scientific research, as, for instance, a sort of cooperative scheme, on the waters concerned. Solely on an ad hoc basis a cooperative plan of the proposed marine scientific research was agreed and carried out in 2006.



The positions of the two countries regarding the delimitation of the EEZ


Their positions in respect of the EEZ delimitation are very simple. Japan has established its EEZ by the Law on the Exclusive Economic Zone and the Continental Shelf of 1996,13 which in Article 1(2) declares that Japanese EEZ extends to the median line between the coasts of other states and Japan.14 By applying this basic stance the delimitation line for Japan is a median line running between the Ullung Do Islands and the Takeshima Islands.15 The Takeshima islands are contained in the base point. The Korean median line is that going through between the Oki Islands and the Takeshima Islands.16 During the negotiation of delimitation in June of 2006, neither party was prepared to compromise. On this occasion, Japan proposed to putting on the agenda the establishment of some cooperative framework concerning marine scientific research, but Korea did not accept this.



12 In comparison, between China and Japan there is an agreement of a prior notification system for the marine scientific research on the waters where claims of the EEZ overlap. Including the issue of the precise sea area where the prior notification system is to be applied, see Takada, ‘Marine scientific research in the exclusive economic zone and Japan–China Agreement for Prior Notification’, Japanese Annual of International Law 44, 2001, pp. 134–50, particularly, [IV-2–a–b]; hereinafter referred to as Takada, JD (III)/3.


13 Law No. 74 of 1996.


14 See, op. cit., Kanehara, JD (VIII)/1, above fn 9 [I-3–a]; op. cit., Takada, JD (III)/3, fn 12 [II-1–a].


15 Regarding the Japanese formal position in relation to the issue of Takeshima, see above fn 4.


16 Each median line will be hereinafter referred to as the ‘Japanese median line’ or the ‘Korean median line’. Korea quite recently changed its position relating to the median line, and it previously did not contain the Takeshima Islands in the base point of the median line. Concerning this, see op. cit., Kanehara, fn 5.


Japan had also experienced difficult situations concerning marine scientific research with China several years before the Korean incident. Between China and Japan, no delimitation line for their EEZs has been established. Up to the end of the twentieth century, several incidents had occurred where Chinese vessels entered into sea areas which Japan regarded as its EEZ, and tried to conduct or actually conducted marine scientific research. On each such occasion, Japan protested against China’s actions. Accordingly, the situation with China was very similar to the Korean one in 2006.17


Unlike the Korea–Japan relations, China and Japan successfully agreed in 2001 a prior notification system to be applied to marine scientific research, before the delimitation agreement for their EEZs is concluded.18 So long as both parties conduct such research in accordance with the Agreement, they are free to do so, notwithstanding the fact that a final resolution to the EEZ delimitation has yet to be reached. The prior notification system is interpreted as falling under one of the ‘provisional arrangements’ provided by Article 74(3) of UNCLOS.


Thus, in Korea–Japan relations and China–Japan relations the Asian countries successfully avoided the occurrence of extreme hostile situations and managed the tense incidents concerning marine scientific research to be conducted in waters that included ‘the disputed sea areas’.19



The legal status of Korea and Japan: ‘coastal states of the EEZ’ or ‘the states concerned’ under Article 74(3) of UNCLOS?20


Japan and Korea occasionally take positions and make statements as ‘a coastal State of the EEZ’ rather than ‘the State concerned’ of the disputed sea area under Article 74(3), and they state, for instance that ‘The waters are our EEZ and marine scientific research in the sea zones should be subject to consent of our country.’ Such statements are interpreted in accordance with Article 56(1)(b) and Article 246(2) and (3) or (5) of UNCLOS. It is natural, however, for countries to make such statements as a diplomatic and political strategy, even though they have recognized that the waters concerned include disputed sea areas.


Central to the 2006 incidents regarding marine scientific research is the fact that the waters concerned are the sea areas around the Takeshima Islands over



17 See, op. cit., Takada, JD (III)/3, fn 12, pp. 134–5.


18 Ibid., [IV-2–a–b].


19 It is difficult to designate precisely ‘the disputed sea areas’ and especially it is questionable whether it can be confined solely to the sea areas lying between the delimitation lines as each of the two countries asserts. With this reservation, in this chapter, the term ‘disputed sea areas’ will be used in appropriate cases and in cases of no risk of misunderstanding as referring to the sea areas lying between the delimitation lines that each of two countries argues.


20 As an examination of the issue from the perspective of ‘the State concerned’ under Article 74(3) of UNCLOS, see A. Kanehara, ‘Nikkan Kaiyo Kagakuchosa Mondai (Marine scientific research in the disputed sea area between the Republic of Korea and Japan)’, Jurisuto (Jurist) 1321, 2006, pp. 59–65.


which both countries have claimed territorial title. Generally speaking, islands cause many difficult problems under the law of the sea, such as whether they have their own jurisdictional sea areas, whether they should be included in the base point, what effect they have upon the delimitation concerned, and so on.21


In the case of the Takeshima Islands, however, Korea and Japan do not assume different positions with respect to their status as islands.22 It is true that there are complex interpretive issues concerning Article 121, but here I only confirm the existence of the interpretive issues. This is because both Korea and Japan do have the same position regarding the status of the Takeshima Islands,23 and it is not necessary for our present purposes to broach the entangled interpretive issues in examining the practice of these two countries.


A very significant fact is that the two countries resumed the negotiation of the EEZ delimitation in June of 2006, although still now – early 2009 – the final delimitation seems a long way off. Taking into consideration these circumstances, it can be judged that both of them acknowledge that they are the ‘States concerned’ of the disputed sea area under Article 74(3) of UNCLOS.


Although it is not perfectly clear, judging from the following statements by the Japanese government it is evinced that it regards itself as the ‘State concerned’ under the provision of UNCLOS: based on the Agreement between Vice Ministers for Foreign Affairs of Japan and Korea in April 2006, until a provisional framework for cooperation in the field of marine scientific research is established, the Japanese government has been observing the progress of the situation and has not conducted marine scientific research in the waters that include the disputed sea areas.24


Article 74(3) of UNCLOS obliges the ‘State concerned’ in disputed sea zones to make every effort to enter into provisional arrangements of a practical nature



21 Article 121(1) defines an island, and according to Article 121(2) an island can have its own territorial sea, jurisdictional sea areas and seabeds. Article 121(3) sets forth the conditions on which a rock can have its own EEZ and continental shelf. The historical survey with various opinions regarding how to treat a portion of land at sea and the drafting process of the relevant provisions of the 1958 Geneva Conventions and also UNCLOS, see S. Yamamoto, Shima no Kokusaiho jo no Chii (Legal Status of an Island under the Law of the Sea), Tokyo: Gaimush Kaiyka, Heisei 3, 1991.


22 Considering the size of the Takeshima Islands, which is 0.23 km2, and the fact of no permanent inhabitants on the Islands, whether the portion of land at sea is an island or rock might be a meaningful question for the interpretation of Article 121(3) of UNCLOS. However, the author would points out that the decision as to whether a certain land at sea is an island or a rock could not give a perfectly definitive answer for the question as to whether the land at sea is entitled to have its own jurisdictional sea areas of the state that has the territorial sovereignty over the land at sea. This is due to the lack of clarity of Article 121 of UNCLOS and, above all, it does not define a rock itself while it gives the definition of an island.


23 As for a significant analysis about this issue, see J. M. Van Dyke, ‘Legal issues related to sovereignty over Dokdo and its maritime boundary’, Ocean Development and International Law 38, 2007, p. 196 et seq.


24 Op. cit., Kanehara, JD (VIII)/1, fn 9 [V-2–c].


and, during this transitional period, not to jeopardize or hamper reaching a final agreement. Concerning the rights and duties of the ‘State concerned’ pending final solution of the EEZ delimitation Article 74(3) does not lend much suggestion.


In the Aegean Sea Continental Shelf Case (Provisional Measures) in 197625 the ICJ examined whether a Turkish survey concerning an earthquake would anticipate the judgment for the merit or cause irreparable damage to Greek rights to be protected by the provisional measures. It admitted the possibility of an infringement of Greek sovereign rights over the continental shelf area by the Turkish survey, if the seabed area were to be determined as part of the Greek continental shelf in the merit. It did not however regard the possible harm as irreparable.26 Greece argued that gathering and making public information by another state concerning the seabed area potentially to be found as its continental shelf would cause irreparable injury to the exclusive rights of Greece over the continental shelf. This is because such conduct of the survey would disadvantage Greece in future negotiations on licensing for exploration and exploitation of seabed resources and others.27 The ICJ did not admit such Greek argument.28


The rights to be protected by provisional measures and those of the ‘States concerned’ under Article 74(3) are not totally the same.29 Irrespective of that, and as far as the following has some reason, the rights to be protect by provisional measures may be the same in essence as those of the ‘States concerned’. Provisional measures should not provide for anticipation of judgment for the merit. In addition, as Greece argued in the presenting the reasons for the request for the provisional measures, the situation should be maintained such that there is no prejudice to the exercise of judgment for the merit.30 Taking into consideration the point that the judgment for the merit in the case of the continental shelf delimitation is determination as to which party to the dispute is entitled to the continental shelf concerned, ‘not to prejudice the exercise of the judgment for the merit’ may have or at least include the same meaning as ‘not to prejudice the final determination of the continental shelf delimitation’ and also ‘not to hamper its effect’. In this regard the right to be protected by provisional measures bears the same significance of the right under Article 74(3) that prescribes the obligation not to jeopardize or hamper final agreement of the maritime delimitation.31


Departing from the comparison with the issue of provisional measures, and thinking through protection of the rights of the parties in disputing an EEZ



25 Aegean Sea Continental Shelf, Interim Protection, Order of 11 September 1976, ICJ Reports 1976, p. 3.


26 Ibid., paras. 31–3.


27 ICJ Pleadings 1980, Aegean Sea Continental Shelf Case, pp. 106–10.


28 Aegean Sea Continental Shelf, Interim Protection, Order of 11 September 1976, ICJ Reports 1976.


29 As to Professor Attard’s analysis of the case, see D. Attard, The Exclusive Economic Zone in International Law (Oxford: Clarendon Press; New York: Oxford University Press, 1987), pp. 117–19.


30 ICJ Pleadings 1980, Aegean Sea Continental Shelf Case, p. 63, para. 3.


31 Op. cit., Kanehara, fn 20, pp. 61–2.

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