Senkaku/Diaoyu: Are They Islands?

• Author: Constantinos Yiallourides
• Position: Dr. Constantinos Yiallourides is a Teaching Associate at the University of Aberdeen, School of Law. He holds a Ph.D. in International Law, an LL.M. in Oil and Gas Law (with distinction), both from the University of Aberdeen, and an LL.B. from the Democritus University of Thrace, Greece. Dr. Yiallourides is also a legal consultant in the energy...
• Pages: 347-365

Senkaku/Diaoyu: Are They Islands?

C

ONSTANTINOS

Y

IALLOURIDES

*

I. Introduction

The Senkaku or Diaoyu islands, as they are respectively known to the

Japanese and the Chinese

1

(hereafter, “Senkaku/Diaoyu islands”), is a small

group of islands lying at the southwestern edge of the East China Sea. They

are approximately 120 nautical miles (nm) northeast of Taiwan, 200nm east

of China, and 200nm southwest of the Japanese island of Okinawa.

2

They

are comprised of the Uotsurijima/Diaoyu Dao island, four other smaller

islets, and three barren rocks; their land amasses to just over six square

kilometers.

3

All of the islands are currently uninhabited. Interestingly, since

the 1970s, when China and Japan formally expressed their territorial claims

over the islands, these small, isolated, and uninhabited offshore features have

served as the most persistent and explosive bone of contention between the

two countries.

4

The reason lies not in their economic value per se, as no

* Dr. Constantinos Yiallourides is a Teaching Associate at the University of Aberdeen,

School of Law. He holds a Ph.D. in International Law, an LL.M. in Oil and Gas Law (with

distinction), both from the University of Aberdeen, and an LL.B. from the Democritus

University of Thrace, Greece. Dr. Yiallourides is also a legal consultant in the energy/natural

resources sector and an associate counsel in commercial litigation (civil and common law). The

author would like to thank Professor Tina Hunter, Dr Roy Andrew Partain and Mr. Malcolm

Combe for their constructive comments on earlier versions of this paper.

1. Tiaoyu is the Chinese name of the islands in the Latin alphabet. Its Chinese name is also

known as “Diaoyu Dao” or “Diao-yu tai.” China calls the islands “Diaoyu Tai” or “Diaoyu

Dao”. Taiwan uses the same Chinese characters but gives them a different spelling as “Tiao Yu

Ta”’. Japan calls the islands “Senkaku”, “Senkaku Gunto’ or “Sento Shosho”. See Guoxing Ji,

The Diaoyudao (Senkaku) Disputes and Prospects for Settlement 6(2) K

OREAN

J.

OF

D

EF

. A

NALYSIS

285 (1994); see also Min G Koo, The Senkaku/Diaoyu Dispute and Sino-Japanese Political-Economic

Relations: Cold Politics and Hot Economics? 22(2) T

HE

P

AC

. R

EV

. 205, 206 (2009).

2. C

HOON

-

HO

P

ARK

, E

AST

A

SIA AND THE

L

AW OF THE

S

EA

32 (1983).

3. Masahiko Asada, Senkaku/Diaoyu Islands, M

AX

P

LANCK

E

NCYCLOPEDIA OF

P

UBLIC

I

NTERNATIONAL

L

AW

(June 2007), available at: http://opil.ouplaw.com/view/10.1093/law:epil/

9780199231690/law-9780199231690-e2015?rskey=MAYf0L&result=1&prd=EPIL.

4. The historical and factual evidence advanced by interested states to support their

territorial title in the disputed features has been widely examined in literature and falls beyond

the scope of this paper, which focuses exclusively on the aspects relevant to the law of the sea.

Suffice to say, at this point, China claims the islands on the basis of historic discovery and usage

dating back to the Ming Dynasty (AD 1368-1644). While Japan argues that it acquired the

islands as terra nullius, in 1895, as they were found to be unoccupied with no signs of formal

control. See J

I

, supra note 1, for an analysis of the customary international law of territorial

acquisition and the historical facts of the dispute; Hitoshi Nasu and Donald R Rothwell, Re-

Evaluating the Role of International Law in Territorial and Maritime Disputes in East Asia 4(1)

A

SIAN

J.

OF

I

NT

’

L

L. 55 (2014); Hungdah Chiu, An Analysis of the Sino-Japanese Dispute Over the

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348 THE INTERNATIONAL LAWYER [VOL. 50, NO. 2

economic activities are currently being conducted on the islands, but rather

on their strategic location near areas where substantial quantities of offshore

oil and gas are thought to be present.

5

Under the framework of the 1982 United Nations Convention on the

Law of the Sea (UNCLOS) and customary international law at large,

offshore features qualifying as islands, in a legal sense, can generate zones of

maritime jurisdiction in the same way as any other mainland territory. That

being the case, the suspected presence of vast hydrocarbon deposits in the

adjacent waters renders Senkaku/Diaoyu islands intrinsically valuable.

6

The

significance attached to these islands stems from the perception that their

possession can potentially generate extensive areas of maritime jurisdiction

capturing the marine resources in the surrounding waters and seabed.

7

Obviously, there is a close connection between the islands’ maritime

generating capacity and the associated sovereign rights over resources

thereof.

8

The possible effect of an island on maritime delimitation presupposes that

the island is capable of generating maritime projections to be delimited vis-

`a-vis other states with opposite or adjacent coasts.

9

Accordingly, this paper

T’iaoyu Tai Islets (Senkaku Gunto) 15 C

HINESE

Y.B.

OF

I

NT

’

L

L. A

FF

. 9 (1996); Basic View on the

Sovereignty over the Senkaku Islands, M

INISTRY OF

F

OREIGN

A

FFAIRS OF

J

APAN

(Nov. 9, 2012),

www.mofa.go.jp/region/asia-paci/senkaku/position_paper_en.html; Min G Koo, The Senkaku/

Diaoyu Dispute and Sino-Japanese Political-Economic Relations: Cold Politics and Hot Economics? 22(2)

T

HE

P

AC

. R

EV

. 205, 213 (2009); J

EANETTE

G

REENFIELD

, C

HINA

’

S

P

RACTICE IN THE

L

AW OF

THE

S

EA

127-129 (1992).

5. Geologists Emery and Niino first identified the perception that the East China Sea could

potentially be one of the most prolific oil regions in the world in 1961. Their report was largely

based on stratigraphic and oceanographic data gathered by Japanese and American submarines

during the Second World War. In 1968, a geological study funded by the United Nations

Economic Commission for Asia and the Far East (ECAFE), confirmed that the “continental

shelf between Taiwan and Japan may be one of the most prolific oil reservoirs in the world” and

“one of the few large continental shelves in the world that has remained untested by the drill,

owing to military and political factors.” See K.O. Emery et al., Geological Structure and Some

Water Characteristics of the East China and the Yellow Sea, 2 T

ECHNICAL

B

ULLETIN OF THE

E

CONOMIC

C

OMMISSION FOR

A

SIA AND THE

F

AR

E

AST

41 (Apr. 30, 1968).

6. R

ALF

E

MMERS

, R

ESOURCE

M

ANAGEMENT AND

C

ONTESTED

T

ERRITORIES IN

E

AST

A

SIA

33 (2013); Sang-Myon Rhee & James MacAulay, Ocean Boundary Issues in East Asia: The Need for

Practical Solutions, in Ocean Boundary Making: Regional Issues and Developments 85-86

(1988).

7. Clive Schofield, The Trouble with Islands: The Definition and Role of Islands and Rocks in

Maritime Boundary Delimitation, in M

ARITIME

B

OUNDARY

D

ISPUTES

, S

ETTLEMENT

P

ROCESSES

,

AND THE

L

AW OF THE

S

EA

21 (Seoung-Yong Hong & Jon M. Van Dyke eds., 2008).

8. This connection is amply illustrated in the words of some Japanese scholars who consider

that “the Senkaku Islands fill every condition for being qualified as islands from the viewpoint of

international law [hence] Japan has the sovereign right for the exploration of natural resources

on the continental shelf adjacent to the Senkaku Islands.” Toshio Okuhara, The Territorial

Sovereignty over the Senkaku Islands and Problems on the Surrounding Continental Shelf, 15

J

APANESE

A

NN

. I

NT

’

L

L. 95, 105 (1971).

9. “In giving special attention to the regime of islands the Convention reflects the

importance of islands in the delimitation of maritime space,” U

NITED

N

ATIONS

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ONVENTION

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