Territorial Issues on the East China Sea. A Chinese Position

• Author: Hui Wu & Dan Zhang
• Position: Dr. Wu Hui is Professor of the University of International Relations in China. Ph.D.(Peking)
• Pages: 137-149

1. Introduction

China and Japan share coasts of which the widest sea areas between the two countries are less than 400 nautical miles. According to international law, in particular, the 1982 United Nations Convention on the Law of the Sea ( “UNCLOS” ) state that in order to establish the boundaries of Exclusive Economic Zone ( “EEZ”) and continental shelf,Page 138China and Japan shall resolve the delimitation issues by virtue of an agreement.¹

The long existence of the territorial sovereignty dispute over the Diaoyu Islands has complicated the maritime delimitation issue in East China Sea between China and Japan. Diaoyu Islands and adjacent islets in the East China Sea belong to the Chinese territory since ancient times, and China has the indisputable ownership over these islands. Japan not only uses the Diaoyu Islands as a base point for its EEZ and continental shelf claim, but also takes actions to strengthen the actual control of the islands, which undermines the sea border demarcation process.

Undetermined maritime boundaries and overlapping sovereignty claims are in the way for China and Japan to develop and utilize the abundant marine resources, especially the oil and gas deposits, in the East China Sea. Through consultations on an equal footing, and without discriminating the respective legal positions on the East China Sea delimitation, on June 18, 2008, China and Japan reached a principled consensus on the East China Sea issues, which included joint development of a certain block in the East China Sea.² This is a big progress, and will promote the two sides to continue their negotiations for the settlement of the disputes.

The Oki-no-Tori Shima issue is different from the issues mentioned above. It does not involve a direct conflict of national interests of China and Japan. It is a legal issue that should be concerned by the international community rather than a dispute between China and Japan.

Disputes do exist, but are not irresolvable. As neighboring countries, China and Japan share important mutual interests, and the East China Sea disputes are just one of the issues that the two sides need to settle. With joint efforts, China and Japan can handle the East China Sea disputes properly, and finally turn the East China Sea into a sea of peace, cooperation and friendship.

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2. The Maritime Delimitation Issue

A Single Line or Separate Line

The maritime delimitation in the East China Sea between China and Japan includes two aspects. One is on the delimitation of the continental shelf and the other is regarding delimitation of the EEZ. Continental shelf and EEZ are of different legal systems. In contrast to the relatively long standing of the continental shelf legal system that is prescribed in the 1958 Geneva Convention on the continental shelf, it was not until 1982 that the EEZ legal system was established by UNCLOS. Article 78(1) of UNCLOS implicates the difference of these two systems and stipulates that “the rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters.”

The boundary of the EEZ and that of the continental shelf of a state can be different. According to Article 57 of the UNCLOS, EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. While in accordance with Article 76 of the UNCLOS, if the outer edge of the continental margin of the continental shelf of a coastal State does not extend up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, it can extend up to 200 nautical miles, and if the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, the coastal State shall establish the outer edge of the continental margin, and the line of the outer limits of the continental shelf either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 meters.³

Considering that the maximum distance between the east and west coasts of the East China Sea is within 400 nautical miles, both the EEZ and the continental shelf that China and Japan claimed need to be delimitated.

In the Sino-Japan East China Sea maritime delimitation issue, Japan claimed the maritime boundary should be established on the basis of the median line in waters less than 400 nautical miles in distance,⁴ while China maintained that the maritime boundaries of the EEZ and the continental shelf should be decided separately, taking all relevant factors into consideration, so as to achieve an equitable result.

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In international practice, there are some cases which applied a single line, especially a median line or an adjusted median line, to delimitate both EEZ and the continental shelf.5 However, this is just one of many methods that can be used in maritime delimitation, which is neither a principle widely accepted by the international community nor that will blur the legal system and status of the EEZ and the continental shelf.

As for states that share coasts or have adjacent coasts and whose claimed boundaries of EEZ or the continental shelf overlap with each other, no matter what method they may choose, they should take measures to achieve an equitable solution.

B Median Line Method or Equitable Solution Principle

There are lots of factors to be considered when states that share costs or have adjacent coasts delimitate their maritime boundaries, such as geography, history, politics, economy, security, and etc. Until now, no method has been deemed as a primary or standard one accepted by the international community. However, no matter what method is used, the results shall be equitable and acceptable by all involved parties, and the International Court of Justice has confirmed this in the Greenland-Jan Mayen case. In this case, the Court stated: “that statement of an ‘equitable solution’as the aim of any delimitation process reflects the requirements of customary law as regards the delimitation both of continental shelf and of exclusive economic zones.” ⁶

Map 1: Disputed Area in the East China Sea⁷

[SEE MAP IN ATTACHED PDF]

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In Sino-Japan East China Sea delimitation, Japan unilaterally claimed a median line to delineate both the boundaries of the EEZ and the continental shelf. Single line itself is not a big deal, and by agreement, states can make choice of employing a single line or separate line to delimitate their maritime boundaries. However, Japan claimed that a median line entails many problems and leads to an inequitable or unfair solution.

First, the median line is unilaterally put forward by Japan which is not based on an agreement between China and Japan. Therefore, it is reasonable for China to deny the median line. Just as the International Court of Justice, in the Gulf of Maine case, stated, “[...] any delimitation must be effected by agreement between the States concerned, either by the conclusion of a direct agreement or, if need be, by some alternative method, which must, however, be based on consent.” ⁸

Second, the median line claimed by Japan takes Diaoyu Islands, over which China has indisputable sovereignty rights, as a base point. This will certainly arouse the strongest protest from China.

Third, the median line claimed by Japan completely deprives Taiwan of the 200 nautical miles EEZ and the continental shelf of natural prolongation that was established by UNCLOS.⁹

Fourth, the median line claimed by Japan neglects many geographical and geological conditions of the East China Sea, which could play very important role in achieving an equitable solution to the Sino-Japan East China Sea maritime delimitation. Among the factors that should be taken into consideration, the practice of states shows that “geographical considerations are, in most cases, the main...