Sep 28, 2010
A long and involved conflict
By Goh Sui Noi, Senior Writer
SO JAPAN blinked first in the contest of wills with China over the arrest of a Chinese skipper whose fishing trawler collided with Japanese Coast Guard vessels in disputed waters.
Prosecutors in Okinawa, where the 41-year-old captain Zhan Qixiong had been held for over two weeks, released him last Friday in part because they did not perceive that he had the premeditated intent of ramming into the Japanese vessels. But they also said that they decided to let him go for diplomatic reasons, noting that continued custody of the man would affect Japan's relations with China.
And indeed, the spat has threatened to damage ties between the two sides, which had been on the mend gradually since the nadir of 2001-2006, when high-level visits were all but cut off.
The latest row began earlier this month when the Chinese fishing trawler collided with two Japanese coast guard boats separately on the same day as it was being chased out of waters near the Japanese-controlled Senkaku islands, also known as the Diaoyu islands to the Chinese, who claim them as Chinese territory. In an unprecedented move, the Japanese seized the trawler and its 14-member crew and arrested the captain for 'obstructing the public duties' of the coast guard under Japanese domestic law. Previously, any Chinese detained by the Japanese was simply deported.
The Chinese responded vehemently, calling the Sept 8 arrest of the captain illegal and summoning the Japanese ambassador no fewer than five times in a week, once in the middle of the night. They also cancelled scheduled talks on joint exploitation of gas fields in the East China Sea where the two sides have overlapping claims. The Japanese later released the ship and its 14 crew members. But their decision on Sept 19 to extend the captain's detention brought fresh retaliation.
The Chinese summoned the Japanese ambassador for a sixth time and called off high-level exchanges. They also called off talks on aviation rights and the use of coal. A Chinese government-sponsored trip for 1,000 young Japanese to visit the Shanghai World Expo was cancelled and some Chinese tours to Japan were also scratched. There were reports of the Chinese halting the export of rare earth minerals to Japan - denied by the Chinese - and the arrest of four Japanese for unauthorised entry into a military zone in Hebei province.
The Senkaku/Diaoyu islands dispute is an old one extending back decades. But the latest flare-up is one of the worst, and comes at a time of uncertainty as China's rise coincides with Japan's decline, manifested in the former surpassing the latter as the world's second-largest economy last month.
Japan sees China's hard-line stance - Beijing is now demanding an apology and compensation for the captain's arrest - as that of an ascendant power being more assertive. This could explain why it resisted Chinese pressure for so long before backing down. Beijing on its part sees the captain's detention under Japanese law as an attempt by Tokyo to consolidate its claim of sovereignty over the islands. Beijing is especially incensed by Tokyo's insistence that there is no territorial dispute, leaving little room for manoeuvre.
The Senkaku/Diaoyu issue is more than about overlapping claims to energy sources. It is also about national pride. The uninhabited islands have been used by Chinese sailors from as early as the 14th century as a navigational marker. Chinese fished in the waters and herbalists visited the islands to gather a rare medicinal herb. Although the Chinese had not made formal claims to the islands, the Qing Empress Dowager Cixi had in 1893 granted them to a physician who had treated her with the herb, demonstrating China's sovereignty.
However, Japan annexed the islands as terra nullius, or no man's land, in January 1895. This was during the Sino-Japanese war, which the weak Qing court was on the verge of losing to an ascendant and expansionist Japan invigorated by the Meiji Restoration. The Chinese were in no position then to contest the annexation. After losing the war, China also ceded Taiwan and its surrounding islands to Japan under the Treaty of Shimonoseki.
After World War II, in the San Francisco Treaty of 1951 - of which neither China nor Taiwan were signatories - the Senkaku/Diaoyu islands came under the administration of the United States. In 1972, the US returned the islands to Japan.
The islands were pretty much forgotten until 1968, when a survey by the United Nations suggested that there were vast quantities of oil and gas beneath the East China Sea, particularly in the region where the islands lay. So a few months before the islands were returned to Japan, the Chinese Foreign Ministry condemned Japan's claim of sovereignty over the islands and insisted that they 'have been China's territory since ancient times'.
The Chinese have since repeatedly pointed out that the Cairo and Potsdam Declarations had stated that all Chinese territory seized by Japan should be returned to China and that the islands were ceded together with Taiwan in 1895. Japan maintains the islands were annexed before Taiwan was ceded and therefore are not affected by the two declarations.
The strong symbolic value of the islands to both sides can be seen by the activities of nationalists in supporting their countries' claim. The Japanese Youth Federation has planted two lighthouses on the islands that the Japanese government has not disclaimed despite protests from Beijing. Chinese and Taiwanese nationalists - Taiwan also claims the islands as its territory - have attempted to land on the islands, once succeeding in doing so and planting a Chinese flag.
In the face of such fervour, it is unlikely either government would yield, for fear of being accused of betraying the nation. Indeed, on Sept 18, Chinese demonstrators protested not just outside the Japanese Embassy in Beijing, but also the Chinese Foreign Ministry.
Into this potent mix of economic potential and nationalistic pride is added the fuel of what an American international law practitioner calls the 'unhelpful role' of international law, making for a dangerous stalemate that threatens Sino-Japanese ties and the region's stability.
First of all, argued Mr Carlos Ramos- Mrosovsky in a 2008 article in the University of Pennsylvania Journal of International Law, the general rules of the United Nations Convention on the Law of the Sea (Unclos) cannot easily accommodate the unique political geography of the East China Sea. The 200-nautical mile exclusive economic zone rule leads to overlapping claims in a sea that is just 360 nautical miles across at its widest point. Furthermore, Unclos inflames the dispute over the islands by vesting immense economic value on them in allowing any state with sovereignty over them to claim exclusive rights to resources hundreds of kilometres off their shores.
In addition, international customary law governing the acquisition of territory encourages display of sovereignty and penalises states for appearing to acquiesce in a rival state's claim to disputed territory. It recognises five modes of territorial acquisition, three of which could apply to the Senkaku/Diaoyu islands: discovery and occupation, cession, and prescription. (The other two are accretion and conquest.)
Minimal government activity is enough to demonstrate sovereignty over uninhabited areas, such as military patrols, investigation of criminal activity and the holding of judicial proceedings, building infrastructure and maintaining navigational markers. Cession is the transfer of sovereignty through the renunciation of sovereign rights by one side in favour of another. Prescription is when one state fails to contest the sovereignty assertions of another and thus loses its rights. Customary law does not recognise hardship as an excuse for failure to protest against another state's invasion of one's sovereign rights.
In this context, Japan has the upper hand as it has control of the islands. As China does not control the islands, 'it must protest vigorously, lest it should appear to acquiesce in Japan's occupation of the islands', wrote Mr Ramos-Mrosovsky. Thus, in response to Japan's unprecedented move of arresting the Chinese captain under Japanese domestic law, China has gone beyond the usual diplomatic protests and taken retaliatory measures - in part because it has the capacity to do so, given its current strength.
Another problem with customary international law is that its vagueness means neither side is confident of winning the case and therefore is unwilling to resolve the dispute through legal processes, even as both sides invoke international legal norms that fit their interests.
To defuse the powder keg that the Senkaku/Diaoyu islands have become, Mr Ramos-Mrosovsky suggested that the universality of the law on offshore rights be deemphasised in favour of regional and bilateral accords that could be better tailored to the geography of the area.
Separately, Yonsei University assistant professor Koo Min Gyo in a paper last year suggested the adoption of a code of conduct similar to the Declaration on the Conduct of Parties in the South China Sea (DOC), signed by China and the 10 Asean member states. This would be a good start to promote mutual understanding, he argued.
In this most recent spat in the East China Sea, Japan backed down first. But the outcome does not signify an out-and-out victory for China. Its hard-line attitude surely must have hurt its image not only in Japan but also in South-east Asia. It should consider seriously not just an accord with countries in North-east Asia, but also expanding the DOC with Asean countries into a full code of conduct.
Such accords would foster better understanding and minimise the occurrence of incidents such as this one. And when flare-ups do occur, which is inevitable, such accords can provide a platform for damage control so the flare-ups do not escalate to a level that damages ties or threatens the stability of the region.
suinoi@sph.com.sg
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