Part One – The Pacific

 

Dividing Up the Oceans

“Modern” history has been the history of states and empires and the lands they controlled and exploited, with the sea (save for a narrow coastal strip) the site of battles for its control but never the property of any state. That is no longer the case. Under the 1982 UNCLOS (United Nations Convention on the Law of the Sea) Third Convention, much of the “high” seas was divided up and allocated to nation states in the form of Exclusive Economic Zones (EEZ) over which states enjoyed special rights akin to resources ownership to a distance of 200 nautical miles (370 kilometres) beyond their 22 kilometre (12 mile) territorial waters, and even further, to a limit of 350 nautical miles (650 kilometres) in the event of the outer reaches of the continental shelf being shown to extend so far. It was a decision that drastically shrank the global “high seas” and privileged countries that had the good fortune to possess substantial sea frontage or far-flung islands, including especially former imperial powers, notably France and the United Kingdom, which emerged with their advantages confirmed and reinforced by their possession of far-flung islands left behind by the waves of decolonization.

 

The 1982 agreement was almost a decade in the making (1973-1982), took another decade before coming into force, in 1994, was ratified by Japan in 1996, and by 2011 had been adopted by 162 countries. It aimed to set international standards and principles for protection of the marine wildlife and environment and provide a forum for resolution of disputes over boundaries and resource ownership. It gave coastal nations jurisdiction over approximately 38 million square nautical miles of ocean, which are “estimated to contain about 87 per cent of all of the known and estimated hydrocarbon reserves as well as almost all offshore mineral resources” and almost 99 per cent of the world’s fisheries.¹ The United States, though participating in the various conferences since 1982 and claiming the largest exclusive economic zone in the world, covering 11,351,000square kilometres in three oceans, the Gulf of Mexico, and the Caribbean Sea, is one of the few that has not ratified the agreement, evidently in keeping with the reluctance to compromise US exceptionalism by submitting to the authority of any international law.²

 

In maritime terms, one effect of the law has been to strengthen Japan’s entitlements as a major global power. Its various extensive ocean territories entitle it to a vast ocean domain across the North and Northwest Pacific, with as yet largely unknown economic riches but increasingly evident strategic significance. The contrast in these terms with China is striking. China’s coastline, though at 30,017 kilometres nominally slightly longer than Japan’s 29,020 kilometres,³ carries only relatively small ocean entitlement and, for major sections, it abuts the EEZ’s of neighbour states including Japan and South Korea. Its only direct Pacific frontage is via Taiwan. Japan, by contrast, enjoys an EEZ of 4.5 million square kilometres (world No. 9) so that its maritime power is more than five times greater than China, which with 879,666 square kilometres ranks No. 31, between Maldives and Somalia.⁴ Convulsed at the time by imperialist assaults and domestic turmoil, China played no part in the 19^thand 20^th century processes of dividing up the Pacific land territories and plays none now in dividing up its ocean.

 

In that context, Japan’s present and prospective island territories, till 1982 little more than remote navigational points, assume large significance. This essay considers two maritime zones, first those in the Pacific and Philippine Sea which in the main constitute part of the Metropolis of Tokyo, and second the East China Sea zone surrounding the islands known in Japan as Senkaku, and in China and Taiwan as Diaoyudao and Diaoyutai respectively (both abbreviated in the following to Diaoyu).

 

The following map shows the pattern of maritime appropriation across the Western pacific and well illustrates the importance of the EEZs, the shrinkage of “open” sea,” and (from a Chinese viewpoint) the growing threat of potential blockage of access to the Pacific as hostile or potentially hostile forces spread their EEZ wings over so much of it. Commonly denounced for its claims to islands, reefs and shoals in the South China Sea, when viewed in global terms China is a minor player in its claims on world oceans, although that fact might reinforce its determination not to yield in the spaces where it has a claim.

 

Tokyo – Island City

Tokyo is unquestionably one of the world's largest metropolises, Japan’s national capital and home to more than 30 million people. It is also an island city whose domain extends over great swathes of the Pacific. Its jurisdiction extends to a maximum of almost 2,000 kilometres into the Pacific, including first seven volcanic islands known as the Izu Islands that sprinkle the ocean beyond the Izu peninsula, the Ogasawara island group beyond that and approximately 1,000 kilometres from Tokyo, and two small but hugely important rocky outcrops: Okinotorishima, 1,740 kilometres south-west from Tokyo and Minami Torishima, 1,848 kilometres from Tokyo. The former is Japan’s most southerly and the latter its most easterly territory. In April 2012, Governor Ishihara Shintaro proposed extending that domain by approximately 1,900 kilometres to the southwest to include the Senkaku/Diaoyu Islands (transferring them from nominally private ownership to his Metropolis).

 

Apart from the Izu islands, whose links with pre-modern Japan were strong, Japan’s claim to the others is relatively recent. Ogasawara village, which is administratively part of Tokyo City, extends far across the seas. The islands (sometimes also known as the Bonin Islands), were first formally claimed by Japan and a Japanese flag was raised over them in 1862. Ogasawara “village” includes its core component, the Ogasawara archipelago, together with the Volcano Island group and several tiny outcrops. The Ogasawara Archipelago itself comprises three sub-groups known as Chichijima (Father) Hahajima (Mother) and Mukojima (Bridegroom) Archipelagos and currently accessible only by the weekly steamer service from Tokyo to Chichijima that takes about 26 hours. The communities on Chichijima and Hahajima number around 2,400 people.⁵ 148 kilometres to the southwest of this extended family island group lies the Kazan (Volcano) Island archipelago, comprising also three small islands, the central one, Ioto (formerly Iwojima, site of fierce fighting in 1945) being 1,200 kilometres from Tokyo, just 21 square kilometres in area, and home only to a small Self-Defence Force base, while to its north and south, across a 137 kilometres stretch of ocean, lie North and South (Kita and Minami) Ioto, neither of them populated and with a combined area of approximately seven square kilometres.⁶ The Kazan Island group also includes a small rather barren active caldera, Nishinoshima, with elevation of 38 metres and area about 22 hectares but growing since 1973 because of the ongoing eruption. A further six hundred kilometres to the southeast of this Volcano group lie the American territories of the Mariana Islands.

 

Within the Ogasawara Village administrative unit are included also two tiny territories whose value was suddenly and enormously enhanced by the UN decision: Minami Torishima and Okunotorishima. Minami Torishima, 1,848 kilometres southeast of Tokyo, also sometimes known as Marcus Island, is an outcrop with a surface area of 1.2 square kilometres. Annexed by Japan in 1898, today it hosts only a weather station and small airport, with no civilian population.⁷ Okinotorishima consists just of two outcrops of coral reef in the Philippine Sea with a total area of about 10 square meters, shrinking at high tide so that one is about the size of a double bed and the other a small room, at an elevation of around 7.4 centimetres above the sea surface. The Japanese claim to it, based on the terra nullius principle, i.e., as being unclaimed by any other state, was first advanced in 1931. Once the implications of the UN decision were understood, from 1987 Tokyo City began investing heavily in the building of “steel breakwaters and concrete walls” designed to shore the reef up and prevent it disappearing.⁸ After investigations commissioned in 2004 and 2005 by the Nippon (formerly Sasakawa) Foundation, Ishihara’s Tokyo adopted plans for the construction of a lighthouse and building of port infrastructure, a power generation plant, housing, etc.⁹ A very considerable sum, estimated at $600 million, has been outlayed on concrete and titanium to date as part of Tokyo’s mission to retain Okinotorshima and a surrounding EEZ.¹⁰

 

These widely scattered archipelagos and reefs known collectively as “Ogasawara” were occupied by the United States in 1945 and returned to Japan in 1968. In the interim, they were used, inter alia, for stockpiling nuclear weapons. In 2011 UNESCO recognized the ecological significance of the Ogasawara islands by designating them a World Heritage site.
 

While Ogasawara Village and its various outlying island territories constitute, administratively, part of Tokyo Metropolis, as the EEZ map above illustrates there is also one additional island group, not part of Tokyo, that carries significant EEZ entitlement and deserves mention here. The Daito (Daitoshima) group, about 350 kilometres east of Okinawa’s main island, comprises the three islands of North Daito, South Daito and Daito (12.7. 30.5, and 1.1 square kilometres respectively, with populations of 700, 1,400 and 0). Administratively, they form part of Okinawa prefecture and though tiny, with their surrounding EEZ they too carry entitlements to a large area of ocean. Daito Island itself is unoccupied because it has been a US Navy firing range since 1956 and it is assumed that little life survives on it.¹¹

 

Islands? Rocks?

The question, under UNCLOS, is whether all such territories qualify, strictly speaking, as islands, which carry the EEZ entitlement. An “island,” according to Article 121 of the Convention, is a “naturally framed area of land, surrounded by water, which is above water at high tide.” The law spells out that “rocks which cannot sustain human habitation or economic life of their own shall have no economic zone or continental shelf.” Under such provisions, there seems no reason to doubt the claims on behalf of the Ogasarawa and Kazan archipelagos, or the Daito islands. Some doubt might be raised as to Minami Torishima on the point of whether it could really “sustain human habitation or economic life,” but so far as Okinotorishima is concerned, it is hard to avoid the conclusion that the claims by Japan, and the Tokyo Metropolis, stretch the law to the breaking point. Okinotorishima has never sustained any kind of economic life and is only kept above sea level by dint of considerable effort and expense. Yet both the Government of Japan and the Tokyo Metropolitan Government insist otherwise and base large ocean claims upon that proposition.¹² A Foreign Ministry spokesperson in 2005 explained: “The island [Okinotorishima], under the Tokyo Municipal Government, has been known as an island under Japanese jurisdiction since 1931, long before the United Nations Convention on the Law of the Sea came into existence. Having ratified the Convention in 1996, Japan registered its domestic laws concerning its territorial waters, in which Okinotorishima is included as an island, to the Secretary-General of the UN in 1997. … Article 121 of the United Nations Convention on the Law of the Sea defines that ‘an island is a naturally formed area of land, surrounded by water, which is above water at high tide.’ This is exactly what Okinotorishima is.”¹³

 

The disproportion between the scale of the “island” and the breadth of sea entitlement attaching to it is extreme. The basic area of sea on a radius of 370 kilometres (200 nautical miles) around any fixed point recognized as an “island” is 428,675 square kilometres. If that was then extended to the theoretical maximum under the continental shelf extension rule to 350 nautical miles or 650 kilometres, the EEZ entitlement would become a staggering 1,337,322 square kilometres, three and a half times the land area of Japan (378,000 square kilometres). The circular sectors on the map of Western Pacific EEZs above illustrate the extent of ocean EEZ claims based on tiny outcrops that may or may not qualify as “islands.” With seabed riches only beginning to be understood, and in the event that its interpretation of the law is upheld, the 1982 UNCLOS treaty constitutes for Japan a huge bonanza.
 

The question of interpretation of the UN law is of course crucial. It appears that in respect of competing claims by China, the Philippines, Vietnam and Malaysia to tiny islands in the South China Sea, however, parties other than China have explicitly ruled out territorial or continental shelf claims, adopting the view that the capacity to sustain habitation and economic activity is a strict requirement for recognition as an “island” for UNCLOS purposes.¹⁴ Should that view prevail, at least some of Japan’s Pacific claims would fail, as would some of China’s in the South China Sea.

 

Japan’s Ambit Claim of 2008

In November 2008, Japan made a submission to the UN Committee on the Continental Shelf, seeking to further increase its territory by the addition of 7 “blocks” of ocean, making up a total of 740,000 square kilometres. That is to say it sought to extend its 200 nautical mile (370 kilometres) boundary to 350 nautical miles (650 kilometres). The claims were presumptive in the sense that they took for granted the entitlement to the basic 370 kilometre zone.

 

By far the largest block was that known as the Southern Kyushu-Palau Ridge, anchored on the Okinotorishima reef (approximately 257,000 square kilometres). Neither China nor South Korea contest Japan’s claims over the rocks as such, but both insist that a rock is a rock, not an island, and therefore cannot carry any entitlement to an EEZ.¹⁵ Both submitted Notes Verbales to the Committee making this point.¹⁶ Implicit in their objection is the position that rocks carry no entitlement to any EEZ, not just to the claimed extension.
 

Three and a half years later, in April 2012, the UN’s Committee on the Limits of the Continental Shelf issued its interim decision. The Japanese media reported a victory for Japan’s diplomacy and the granting of the reef-based claim.¹⁷ The Asahi gloated, saying “This is a good opportunity for China and South Korea to recognize the facts.”¹⁸
 

The following map, which is the one used by the government of Japan to present its claims to the UN Commission in 2008, shows the claims and the outcome in 2012 from the UNCLOS determination.

 

Significant parts of the Japanese overall claim were indeed accepted, in relation to more than half (and in one case 90 per cent) of two of its seven claims, in Zones 2, 5, 6, and 7, for a total area of about 290,000 square kilometres (39 per cent of what it had claimed). However, in zones 1, 3, and 4, including the Southern Kyushu-Palau Ridge (KPR) (Okinotorishima), Motegi Plateau (MGS) and Minami Torishima (MTS), the claims were either set aside without determination or else rejected.

 

In the words of the Commission’s chair, addressing the KPR (Okinotorishima) claim,

“The proposal did not receive a two-thirds majority: out of 16 members, five were in favour, 8 were against and 3 abstained. The Commission’s considered that it would not be in a position to take action on the parts of the recommendations relating to the Southern Kyushu-Palau Ridge region until such time as the matters referred to in the communications referred to above [i.e., the Chinese and South Korean Notes Verbales] have been resolved.”¹⁹

 

That is to say, until and unless the Committee decides otherwise, it would not discuss the proposal further. For the Japanese claim to a vast stretch of strategically crucial ocean to rest on a tiny, uninhabited and uninhabitable rock seems at least to be stretching the intent of the law. At some point there will presumably have to be either an agreement or a judicial determination of such claims. Despite the triumphalist tone of Japanese coverage of the outcome of its submission on a matter to which it attached great importance it was defeated in a vote of 15:8:3.

 

Though parts of Japan’s claim may well not proceed, or may be struck down by some form of international arbitration, the developments of the UNCLOS regime to date have favoured it in terms of legitimizing its control, even virtual ownership, of large stretches of ocean. In other words, irrespective of its claims on problematic “island” territories or extended continental shelf zones, its gains over undisputed maritime territory based on ownership of scattered small islands are still large. The economic importance of the sea area that surrounds Japan’s various island domains is only slowly coming to be appreciated. One recent estimate valued Japan’s potential seabed resources at a staggering $3.6 trillion.²⁰ Just months after the UNCLOS determination, a team of University of Tokyo researchers announced, following a long voyage of Pacific resource exploration, that it had found a large deposit of rare earth deposits, “estimated to be more than 220 t

---