The People's Republic of China (PRC) may have strengthened its claim to areas
of the East China Sea with the submission in May of its preliminary survey
findings on the outer limits of its continental shelf to the UN Commission on
the Limits of the Continental Shelf (CLCS). The submission, however, may also
serve to exacerbate rather than resolve territorial conflicts in the area.
The submission makes a claim to an extended continental shelf beyond 200
nautical miles (nm) in the East China Sea (ECS).
The submission is reportedly based on data collected over 10 years of marine
scientific research undertaken by a wide variety of Chinese organizations
including the Academy of Sciences, the
Hydrographic Department as well as the People's Liberation Army Navy (PLAN)
[1].
That this research program has been undertaken in waters claimed by both China
and Japan has been the source of considerable discord. The Chinese submission
is preliminary, submitted two days before the May 13 deadline for those states
that ratified the UN Convention on the Law of the Sea (UNCLOS) in 1996.
In its submission, China claims an extended continental shelf beyond 200nm as
far as the western slope of the Okinawa Trough. China states its intention to
make a complete submission after further survey work has been completed. This
may not be the last extended continental shelf claim made by China, as
according to Foreign Ministry spokesman Ma Zhaoxu, it also reserves the right
to make additional extended continental shelf claims in the East China Sea and
elsewhere [2].
Finally,
and consistent with all Chinese territorial claims, the submission states that
China will "through peaceful negotiation, delimit the continental shelf with
States with opposite or adjacent coasts by agreement on the basis of the
international law and the equitable principle" [3].
The East China Sea dispute stems from overlapping jurisdictional claims under
UNCLOS. Japan claims an exclusive economic zone (EEZ) as far as its median line
that bisects the East China Sea. China, meanwhile, has always claimed a
continental shelf as far as the Okinawa Trough based on the principle of
natural prolongation, the basis upon which continental shelf claims are made.
Political tensions have manifested themselves in a number of ways. The dispute
has been exploited by nationalist and conservative actors on both sides to
reinforce confrontational policy pursuits. The most serious tensions have
occurred at sea, where Chinese and Japanese authorities have collided (in some
cases quite literally) over resource exploitation and marine scientific
research. In June 2008, the two sides agreed on a roadmap toward joint resource
development, but no progress has since been made [4]. These disputes stem from
competing jurisdictional entitlements to the East China Sea, and thus a ruling
by an impartial third party such as the CLCS could move the dispute toward
settlement.
What does this submission mean for the East China Sea dispute? There are two
primary implications. First, although the submission is made to an impartial
third party, this body has no authority to rule on the final delimitation of
the East China Sea. The CLCS is not tasked with dispute resolution; it is
responsible for evaluating the scientific merits of a state's claim to a
continental shelf beyond the 200nm as permitted under Article 76 of UNCLOS.
Thus, at most, the CLCS could rule that the PRC has demonstrated the scientific
basis for a continental shelf claim beyond 200nm in the area included in the
submission. This is not the same as granting China exclusive jurisdiction over
the area it has claimed. Japan is still entitled to claim an EEZ as far as
200nm, although it has only claimed an EEZ as far its median line. Final
delimitation is still to be negotiated between the two parties.
This is not to say that a ruling by the CLCS can be expected anytime soon.
While the length of time it takes to rule on a submission varies depending on
the complexity of the science involved, there are two reasons to expect a
significant delay. First, the CLCS is understaffed and under funded [5]. UNCLOS
remains a relatively new piece of international law and the entitlement to an
extended continental shelf is at the cutting edge of international legal
debates. Secondly, due to the 10-year deadline for submissions to the CLCS
after a state's ratification of UNCLOS, combined with the enormous amount of
ratifications in the mid-late 1990s, the CLCS is confronted with a massive
backlog of submissions.
Prior to 2008 the CLCS had received only nine submissions, which took an
average of over 20 months to be adopted. Since 2008, the commission has
received 41 submissions and has yet to make a ruling on one of these [6]. Thus
it will be quite some time before a Chinese submission can be heard, much less
finalized.
The second implication for the East China Sea dispute is the location of
China's extended continental shelf claim; it is located primarily in the
northern portion of the East China Sea. As maritime policy analyst Mark
Valencia notes, it is unlikely that final delimitation will be based on the
recognition of natural prolongation over the EEZ regime, as both are permitted
under UNCLOS. It would be more likely that the line reflects compromise over
both states' jurisdictional entitlements [7].
Recognition of the Chinese continental shelf claim by the CLCS adds weight to
the Chinese entitlement to a greater share of the ECS, which could arguably
push a final delimitation line east toward the Japanese coast. Yet, any CLCS
ruling will not touch on the disputed sovereignty over the Senkaku/Diaoyu
islands - the basis of the delimitation dispute in the southern end of the ECS
- as this is outside its authority. A further problem relates to the northern
portion: China's submission may overlap with the extended continental shelf
claimed by the Republic of Korea [8].
To further strengthen its claims to the East China Sea, China has made a
rhetorical commitment to the equitable principle in the delimitation of
maritime boundaries. This principle relates to special consideration given to
coastal states based on social, economic, geological, and geographical factors
that impact a state's entitlement to ocean space. In the Gulf of Maine case,
for instance, the International Court of Justice pushed the final boundary line
toward Nova Scotia to account for the longer coastline on the American side. In
light of the length of the Chinese coastline compared with the Japanese, an
extended continental shelf approved by the CLCS further strengthens the Chinese
claim to special considerations that ultimately may result in a more favorable
settlement.
So, a CLCS ruling on China's entitlement to a continental shelf beyond 200nm -
even if it occurs in the near future - does not automatically move the ECS
dispute toward resolution. It may however strengthen China's claims to a larger
portion of the northern part of the East China Sea.
The danger in the short term is that the submission and subsequent ruling may
escalate tensions in the absence of attempts to clarify the implications for
jurisdictional entitlements. Chinese vessels already behave as if the East
China Sea and South China Sea are Chinese territorial waters. Witness for
example the confrontation with the USNS Impeccable in March 2009 and the
recurrent Chinese naval intrusions into Japanese-claimed waters.
In light of the highly decentralized Chinese command structure (the Impeccable
was confronted by a wide variety of vessels in an apparent policing action,
including civilian fishing trawlers) it is possible that the submission could
reinforce Chinese authorities' and civilians' sense of entitlement to the
waters off of China. This in turn could increase the latitude with which
Chinese vessels operate in Japanese claimed waters.
Early signs are that Chinese authorities - fisheries, coastal patrol, and
military - will increase their presence in waters that China purports to
administer [9]. This comes as Chinese foreign ministry officials and media have
condemned submissions to the UN by Malaysia, Vietnam and the Philippines for
recognition of their maritime borders in the South China Sea. Taken as a whole,
these trends point to continued Chinese assertiveness in its claimed waters.
This greater naval presence and operational latitude come at a time when Japan
is seeking to better protect and exploit its ocean territory. In response to
the growing Chinese naval presence in the East China Sea, pressure has been
building on Japanese leaders to better enforce Japan's maritime jurisdiction
[10]. In light of Japanese concerns about the longer-term strategic
consequences of Chinese behavior in waters claimed by Japan, Tokyo would view
an increasingly assertive Chinese posture in the East China Sea as a threat
[11].
In 2007, Tokyo took the first steps toward rectifying this situation by passing
the Basic Ocean Law, which created an Ocean Policy Headquarters headed by the
prime minister. Furthermore, the first piece of legislation passed on maritime
affairs permits Japanese authorities to protect Japanese resource production
installations in the East China Sea. This was intended to assuage concerns that
Teikoku Oil workers and assets would be threatened by China if they were ever
called upon to conduct exploratory drilling east of the median line. Indeed,
last year the Diet began considering a law that would allow Japan to intercept
suspicious vessels transiting its claimed waters [12].
While this is likely a legacy of Japan's experience with North Korean espionage
boats, it could just as easily provide the basis for an assertive Japanese
response to non-authorized Chinese vessels. Recall that in addition to
increased reports of Chinese naval incursions in the ECS in recent years, a Han
submarine transited Japan's territorial sea in 2004 and Chinese naval vessels
routinely sail provocatively through the international straits that pass
through Japan.
The two sides have yet to move forward in implementing the treaty called for by
the June Consensus reached in 2008. This means proceeding with plans for
Teikoku Oil to conduct joint operations at the Chunxiao gas field with the
China National Offshore Oil Corporation (CNOOC) and commencing exploration in
the joint development zone south of the Longjing field.
The primary barrier to the finalization of a treaty appears to be political.
Japanese media reports that Tokyo is reluctant to proceed as long as the
development of the Tianwaitian field continues [13]. China maintains that
Tianwaitian was not included in the June Consensus, and thus CNOOC's continued
production at the field should not disrupt joint development [14].
While China's submission to the CLCS does strengthen its claim to the East
China Sea, it does little to bring the dispute to a cooperative end. As noted
above, it could very well exacerbate tensions in the area. Considerable
political will is needed in both Beijing and Tokyo to ensure the continued
stability that has characterized the East China Sea for past two years.
Notes
1. It is difficult to ascertain which Chinese bureaucratic entity conducts
which aspect of the research program. For a discussion see James Manicom,
Cooperation and Confrontation in the East China Sea Dispute: Lessons for
China-Japan Relations (PhD thesis, Flinders University 2009), chapter five.
2. Foreign Ministry spokesperson Ma Zhaoxu's Remarks on China's Submission of
Preliminary Information Indicative of the Outer Limits of the Continental Shelf
Beyond 200 Nautical Miles, May 13, 2009.
3. Preliminary Information Indicative of the Outer Limits of the Continental
Shelf Beyond 200 Nautical Miles of the People's Republic of China, English
translation, 2009.
4. Reinhard Drifte, "Territorial Conflicts in the East China Sea - From Missed
Opportunities to Negotiation Stalemate," The Asia-Pacific Journal, vol 22-3-09,
June 1, 2009.
5. Clive Schofield and I Made Andi Arsana, “Beyond the Limits?: Outer
Continental Shelf Opportunities and Challenges in East and Southeast Asia,”
Contemporary Southeast Asia, vol. 31, no. 1 (2009): 37-38.
6. Submissions to the Commission on the Limits of the Continental Shelf.
7. Mark J Valencia, "The East China Sea Dispute: Context, Claims, Issues, and
Possible Solutions." Asian Perspective 31, no. 1 (2007): 158
8. Yoo Jee-ho, "Korea submits proposal to extend outer continental shelf," Joon
Gang Daily, May 13, 2009.
9. Zhang Xin, "Change tack with sea strategy: China experts," China Daily, May
13, 2009.
10. Masahiro Akiyama, "Use of Seas and Management of Ocean Space: Analysis of
the Policy Making Process for Creating the Basic Ocean Law." Ocean Policy
Studies, no. 5 (2007): 1-28.
11. See for example the annual assessment of Japan's security environment in
Japan's Defense white papers.
12. "Japan to Establish Law Aimed at Cracking Down on Suspicious Ships," Kyodo
News, February 26, 2008.
13. "We Have Right to Exploit Disputed Gas Field: China", The Japan Times,
March 8 2009.
14. "China Urges Japan not to Distort Consensus on East China Sea Issue,"
Xinhua News, January 6, 2009.
James Manicom, PhD, is a Research Fellow in the Asian Institute at the
University of Toronto and Visiting Scholar in the School of Political and
International Studies at Flinders University in Adelaide, Australia.
Head
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Finally,
and consistent with all Chinese territorial claims, the submission states that
China will "through peaceful negotiation, delimit the continental shelf with
States with opposite or adjacent coasts by agreement on the basis of the
international law and the equitable principle" [3].
