Re-Evaluating the Role of International Law in Territorial and Maritime Disputes in East Asia

TL;DR: This paper examined the extent to which the relevant rules of international law are capable of providing "justice" by accommodating the unique historical contexts in the region in settling highly politically sensitive territorial and maritime claims.

Abstract: Recently increased tensions across East Asia over territorial and maritime disputes show glimpses of brinkmanship. However, the past experiences of Western colonization and Japan's imperialism within the region add complexity to those disputes challenging our understanding of legal debates surrounding territorial and maritime disputes. This article examines the extent to which the relevant rules of international law are capable of providing “justice” by accommodating the unique historical contexts in the region in settling highly politically sensitive territorial and maritime claims. It finds that the existing rules of international law are more than capable of accommodating the peculiar historical contexts of East Asia in the resolution of territorial and maritime disputes, whilst acknowledging that certain ambiguities in the law are contributing to some of the current tensions that have arisen over these disputes.

Summary

i. the significance of historical context

• Each of the territorial and maritime disputes in Asia has its own history and factual evidence to support both sides of the dispute.
• Instead, this section provides a brief recount of territorial title and associated maritime claims made by the parties to major East Asian territorial disputes in order to highlight central historic features commonly underlying those disputes.
• 14 B. Diaoyu/Senkaku Islands Dispute (the PRC and Taiwan v. Japan).
• The PRC, Taiwan, Vietnam, the Philippines, Malaysia, and Brunei claim either all or part of these islands.
• To that end, the following sections critically examine each of those temporal requirements with particular reference to potential concerns arising from the application of intertemporal law to territorial disputes in East Asia.

D. Inter-temporal Law and Imperialism in East Asian History

• The operation of inter-temporal law has been criticized not only for its application to territorial title under international law but more broadly, particularly when it is applied to disputes stemming from past colonial control.
• First, African territorial issues predominantly arise between former colonies, whereas in East Asia territorial titles are mainly disputed between a former colonial power and its former colony or, in the case of South China Sea disputes, an Asian regional power and former European colonies.
• It cannot therefore be concluded that the traditional rules of international law are inherently prejudicial against formerly colonized states and therefore unjust in determining territorial title over disputed islands in East Asia, by simply drawing on the experiences in African territorial disputes.
• Illustrative is the idea of ''Asian values'' as the antithesis of universal human rights in the 1990s, which claims that human rights as propounded in European ideologies are founded on individualism and are therefore inappropriate in Asia, where primacy is given to the community and communal action.

iii. the law of the sea and maritime claims

• While international law respecting territorial claims has predominantly developed via customary international law and the decisions of international courts and tribunals, the modern law of the sea has been predominantly treaty based.
• The four 1958 Geneva Conventions on the Law of the Sea provided the framework for the modern law and importantly gave recognition to the foundational maritime zones that are recognized in the twenty-first century.
• 96 All of the key East Asian states are parties to the LOSC.
• The delineation of a maritime claim and the ability of a coastal state to be able to justify the outer limits of that claim based upon law of the sea principles raise different issues from the delimitation of maritime boundaries between two or more neighbouring states.
• In East Asia this is an important consideration as, in most instances, the assertion of a maritime claim and the delineation of that claim is the first-order issue that will need resolution.

A. Increased Significance of Maritime Claims for East Asian States

• As to which maritime zones are the most relevant in East Asia, it is predominantly the broader zones of the continental shelf and the exclusive economic zone.
• Submissions made up to the end of 2012 which fall into this category include the joint submission by Malaysia and Vietnam (2009), 110 Vietnam's individual submission (2009), 111 and the PRC's submission (2012), 112 each of which has brought about diplomatic communications by way of Note Verbales from states opposing aspects of these submissions as they relate to disputed territory.

B. Disputes Concerning the Legal Status of Maritime Features

• An artificial island does not therefore meet the criteria, nor does an area of land not above water at high tide, which may in other respects meet the criteria of a low-tide elevation.
• Such a view regarding sub-Antarctic islands, 125 which considers that the distinction between an Article 121(1) island and an Article 121(3) rock turns on whether the maritime feature is inhabited or is capable of habitation has not found wider support in ITLOS or other international courts.
• Presently there is no agreement between the parties as to whether the Diaoyu/ Senkaku Islands are capable of being a basis for EEZ or continental shelf claims.

C. Maritime Boundary Delimitation

• The final law of the sea issue of significance relates to how maritime boundaries may be determined following confirmation of territorial sovereignty over islands and associated maritime features and whether they are capable of generating the full suite of maritime zones.
• International courts and tribunals have traditionally been conscious of the potential distorting effects that islands have on maritime boundaries, especially if those islands are granted their full entitlement to extensive maritime zones such as a continental shelf or EEZ, and a number of judicial techniques have been applied to address this problem.
• This substantial disparity was a factor taken into account by the Court when it adjusted the provisional boundary line that it had drawn, which was to Nicaragua's benefit.

iv. conclusion

• International law regarding the settlement of territorial and maritime disputes is well developed, and to that end it is interesting to note the number of recent cases brought before the ICJ in which these and related issues have been considered, including two from East Asia.
• An important element that has been preventing East Asian states from actively seeking peaceful settlement of territorial disputes is the significance that would be attached to historical contexts, the emphasis on effectivite ´s in jurisprudence, and the ambiguity and arbitrariness associated with some of those rules, such as the critical date and effective protest.

Full text

Asian Journal of International Law
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Re-Evaluating the Role of International Law in Territorial
and Maritime Disputes in East Asia
Hitoshi NASU and Donald R. ROTHWELL
Asian Journal of International Law / Volume 4 / Issue 01 / January 2014, pp 55 - 79
DOI: 10.1017/S2044251313000210, Published online: 22 August 2013
Link to this article: http://journals.cambridge.org/abstract_S2044251313000210
How to cite this article:
Hitoshi NASU and Donald R. ROTHWELL (2014). Re-Evaluating the Role of International Law in
Territorial and Maritime Disputes in East Asia . Asian Journal of International Law, 4, pp 55-79
doi:10.1017/S2044251313000210
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Asian Journal of International Law, 4 (2014), pp. 55–79
doi:10.1017/S2044251313000210
r
Asian Journal of International Law, 2013
First published online 22 August 2013
Re-Evaluating the Role of International
Law in Territorial and Maritime Disputes
in East Asia
Hitoshi NASU* and Donald R. ROTHWELL**
Australian National University, Australia
NasuH@law.anu.edu.au;
RothwellD@law.anu.edu.au
Abstract
Recently increased tensions across East Asia over territorial and maritime disputes show
glimpses of brinkmanship. However, the past experiences of Western colonization and
Japan’s imperialism within the region add complexity to those disputes challenging
our understanding of legal debates surrounding territorial and maritime disputes.
This article examines the extent to which the relevant rules of international law are
capable of providing ‘‘justice’’ by accommodating the unique historical contexts in the
region in settling highly politically sensitive territorial and maritime claims. It finds that
the existing rules of international law are more than capable of accommodating the
peculiar historical contexts of East Asia in the resolution of territorial and maritime
disputes, whilst acknowledging that certain ambiguities in the law are contributing to
some of the current tensions that have arisen over these disputes.
There have recently been increased tensions across East Asia over several different
territorial and maritime disputes that are yet to be resolved.
1
South Korean President
Lee Myung-bak’s visit to the Dokdo/Takeshima Islands on 10 August 2012, followed
by his remarks demanding that the Japanese Emperor apologize for Japan’s past
atrocities, caused diplomatic frictions between South Korea and Japan.
2
The dispute
between the People’s Republic of China (PRC) and Japan over the Diaoyu/Senkaku
Islands has also been escalating, following the Japanese government announcing its
intention to nationalize three of the islands.
3
Towards the far north, Dimitry
* Senior Lecturer and the Convener of LL.M. International Security Law, ANU College of Law, Australian
National University.
** Professor and Head of School, ANU College of Law, Australian National University. This research was
supported under Australian Research Council’s Discovery Project funding scheme (Project Number:
DP130103683).
1. For the purpose of this article, East Asia is defined broadly to include Northeast and Southeast Asia.
2. See e.g. Kee-seok KIM, ‘‘Lee Myung Bak’s Stunt over Disputed Islands’’ (19 August 2012), online: East
Asia Forum ,http://www.eastasiaforum.org/2012/08/19/lee-myung-baks-stunt-over-disputed-islands/..
3. See e.g. Peter DRYSDALE, ‘‘Japan’s Territorial Troubles’’ (20 August 2012), online: East Asia Forum
,http://www.eastasiaforum.org/2012/08/20/japans-territorial-troubles/.. There are five islands and

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Medvedev’s visit to the disputed South Kuril Islands (or Hoppo Ryodo as they are
known in Japan) in 2011 as the first by a Russian leader still remains fresh among
Japanese sentiment.
4
Towards the south, the dispute over the South China Sea
involving multiple states adds further complications to regional territorial disputes,
as can be seen in 2012 by ASEAN having failed to adopt a communique
´
to address
the issue.
5
Those confrontational statements and behaviours by regional leaders may well
simply be due to their political considerations in diverting public attention away
from the domestic political turmoil they find themselves in or improving their public
approval ratings. But there are also glimpses of brinkmanship as these countries are
trying to reinforce the effective control they have already been exercising over the
disputed islands and, for those who do not have effective control, imperatives to
respond to each sovereign act by the other party to the dispute in relation to disputed
islands. In addition, there are significant economic interests at stake because of the
associated entitlement to maritime zones each of those disputed islands may
generate. These considerations find their basis in the existing rules of international
law, particularly the international law of the sea. Nevertheless, the past experiences
of Western colonization and Japan’s imperialism within the region arguably add
complexity to the extent to which those rules of international law are capable
of providing ‘‘justice’’ in settling their highly politically sensitive territorial and
maritime claims.
This complexity challenges our understanding of legal debates surrounding
territorial and maritime disputes in East Asia. For example, do the current principles
and rules of international law allow sufficient scope and flexibility to accommodate
the unique historical background that exists in the region chiefly characterized by
Japan’s pre-World War II imperialism in addition to Western colonialism in assessing
territorial and maritime claims? Are the current principles and rules of international
law capable of facilitating the peaceful resolution of territorial and maritime disputes
in East Asia? This article addresses these questions by critically examining the
relevant rules of international law in the historical context of East Asia. First, it will
review the significance of historical contexts in the application and interpretation
of the rules of international law relevant to territorial and maritime claims over
the disputed areas in East Asia. Second, an examination will be undertaken as to
what extent the existing principles and rules of international law are capable of
accommodating East Asia’s peculiar historical contexts and actually facilitate
peaceful settlement of international disputes concerning territorial title. Third,
consideration will be given to the international law of the sea and the basis that it
islets that are part of the Diaoyu/Senkaku group of which three had been held in private ownership and
the other two were controlled by the government of Japan.
4. See e.g. John HEMMINGS, ‘‘Kuril Islands Dispute: Russo-Japanese Relations at Their Lowest Ebb Since
the Cold War’’ (15 March 2011), online: East Asia Forum ,http://www.eastasiaforum.org/2011/03/15/
kuril-islands-dispute-russo-japanese-relations-at-their-lowest-ebb-since-the-cold-war/#more-17979..
5. See e.g. Aileen S.P. BAVIERA, ‘‘South China Sea Disputes: Why ASEAN Must Unite’’ (26 July 2012),
online: East Asia Forum ,http://www.eastasiaforum.org/2012/07/26/south-china-sea-disputes-why-
asean-must-unite/..
56 asian journal of international law

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provides for the assertion of maritime claims and the resolution of maritime
boundary disputes with particular reference to East Asian challenges. The article
concludes by suggesting that the existing rules of international law are more than
capable of accommodating the peculiar historical contexts of East Asia in the
resolution of territorial and maritime disputes in the region, whilst acknowledging
that certain ambiguities in the law are contributing to some of the current tensions
that have arisen over these disputes.
i. the significance of historical context
Each of the territorial and maritime disputes in Asia has its own history and factual
evidence to support both sides of the dispute. A detailed examination of legal
arguments that support each state’s territorial title and associated maritime claims
goes beyond the scope of this article. Instead, this section provides a brief recount of
territorial title and associated maritime claims made by the parties to major East
Asian territorial disputes in order to highlight central historic features commonly
underlying those disputes. As Seokwoo Lee observes, ‘‘[a]lthough the claimants for
ownership of the disputed territories often rely on ancient history sources for
support, much of the uncertainty surrounding territorial disputes is a by-product of
the post-World War II boundary decisions and territorial dispositions’’.
6
Even though
the 1951 San Francisco Peace Treaty was supposed to establish the status quo ante
prior to Japan’s imperial expansion policy,
7
the legal status of the following disputed
islands has been left indeterminate together with questions as to what extent prior
historic claims have an enduring effect on contemporary territorial title.
A. Dokdo/Takeshima Dispute (the Republic of Korea v. Japan)
The Dokdo/Takeshima dispute concerns territorial title to two rocky islets and thirty-
two smaller outcroppings that have a combined land area of 0.18 square kilometres
located halfway between the Republic of Korea and Japan—approximately 215
kilometres from mainland Korea and 250 kilometres from the main island of Japan,
Honshu. The Republic of Korea bases its claim to territorial title over the islets on
geographical proximity and historical official documents.
8
Japan, on the other hand,
has argued that Dokdo/Takeshima were terra nullius and open to acquisition in 1905
when the territory was incorporated into the Shimane Prefecture.
9
Considering this to
be linked with Japan’s attempt to annex the Korean Peninsula which eventuated in
6. Seokwoo LEE, ‘‘Intertemporal Law, Recent Judgments and Territorial Disputes in Asia’’ in Seoung Yong
HONG and John M. VAN DYKE, eds., Maritime Boundary Disputes, Settlement Processes, and the
Law of the Sea (Leiden: Martinus Nijhoff, 2009), 119 at 121.
7. Treaty of Peace with Japan, 8 September 1951, 136 U.N.T.S. 45 (entered into force 28 April 1952)[
1951
Peace Treaty].
8. ‘‘Why Japan’s Call to Bring the Dokdo Issue to the ICJ Is Not Acceptable’’ (21 September 2012), online:
Republic of Korea Ministry of Foreign Affairs and Trade ,http://pol.mofat.go.kr/english/eu/pol/main/
index.jsp.. For a detailed analysis, see John M. VAN DYKE, ‘‘Legal Issues Related to Sovereignty over
Dokdo and Its Maritime Boundary’’ (2007) 38 Ocean Development & International Law 157 at 16527.
9. ‘‘Outline of Takeshima Issue’’, online: Ministry of Foreign Affairs of Japan ,http://www.mofa.go.jp/
region/asia-paci/takeshima/position.html..
the role of international law in territorial and maritime disputes 57

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1910, the Republic of Korea regards Japan’s claim as ‘‘the legacy of Japan’s
imperialism and colonialism’’.
10
Under Article 2(a) of the 1951 Peace Treaty, Japan renounced ‘‘all right, title
and claim to Korea, including the islands Quelpart, Port Hamilton, and Dagelet’’,
but without a reference to Liancourt Rocks, which is the English name of
Dokdo/Takeshima that appeared in the earlier Treaty drafts.
11
The absence of any
reference to Dokdo/Takeshima indicates that its status remained indeterminate under
the Peace Treaty and nothing more,
12
leaving the issue for settlement at a later stage.
13
In 1952, the Republic of Korea, however, decided to take matters into its own hands
by the then South Korea President, Lee Seung-man, proclaiming the Peace Line to
incorporate the islets within the Korean side of the border.
14
B. Diaoyu/Senkaku Islands Dispute (the PRC and Taiwan v. Japan)
The Diaoyu/Senkaku Islands comprise five small volcanic islands and three
outcroppings with a total land area of 7 square kilometres, which are located
approximately 170 kilometres northwest of Taiwan and 410 kilometres west of
Okinawa, Japan. Commentators observe that the islands were discovered by the
Chinese in 1372 and since then have been used by them sporadically for different
purposes.
15
On the other hand, Japan claims that the islands were formally
incorporated into Okinawa Prefecture through an 1895 Cabinet decision following
a decade long survey of the islands that found the islands to be terra nullius.
16
The decision was made during the Sino-Japanese War, which ended in April 1895
with the conclusion of the 1895 Shimonoseki Peace Treaty, which did not specifically
refer to the Diaoyu/Senkaku Islands as part of the Formosa Islands or Pescadores
Group ceded to Japan.
17
Article 2(b) of the 1951 Peace Treaty provides that Japan renounced Taiwan and
the Pescadores, whilst under Article 3 the Nansei Shoto Islands were placed under US
administrative authority. However, there is no specific reference to the Diaoyu/
Senkaku Islands in either of the provisions, leaving the legal status of the islands
under the Peace Treaty indeterminate. The fact that the PRC was not a party to the
10. The Republic of Korea Ministry of Foreign Affairs and Trade, supra note 8.
11. For details, see Seokwoo LEE, ‘‘Territorial Disputes in East Asia, the San Francisco Peace Treaty of
1951, and the Legacy of U.S. Security Interests in East Asia’’ in Seokwoo LEE and Hee Eun LEE, eds.,
Dokdo: Historical Appraisal and International Justice (Leiden: Martinus Nijhoff, 2011), 41 at 58260.
12. Ibid.,at62; van Dyke, supra note 8 at 184.
13. See Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), Decision of 9 October 1998,
[2006] XXII Reports of International Arbitral Awards, 209 at 25123, paras. 158265. The Arbitral
Tribunal also observed that disposed islands ‘‘did not become res nullius—that is to say, open to
acquisitive prescription—by any state’’: ibid.,at253, para. 165.
14. ‘‘Presidential Declaration of Sovereignty over Adjacent Seas’’ (18 January 1952), reproduced in part in
Chi Young PAK, The Korean Straits (Dordrecht: Martinus Nijhoff, 1998)at126.
15. For legal analysis of the dispute, see e.g. Steven Wei SU, ‘‘The Territorial Dispute over the Diaoyu/
Senkaku Islands: An Update’’ (2007) 36 Ocean Development & International Law 45, and the
literature cited therein.
16. ‘‘The Basic View on the Sovereignty over the Senkaku Islands’’ (November 2012), online: Ministry of
Foreign Affairs of Japan ,http://www.mofa.go.jp/region/asia-paci/senkaku/position_paper_en.html..
17. Treaty of Shimonoseki, 17 April
1895, 181 CTS 21 (entered into force 8 May 1895), art. 2(b) and (c).
58 asian journal of international law

Frequently asked questions

Q1. What contributions have the authors mentioned in the paper "Re-evaluating the role of international law in territorial and maritime disputes in east asia" ?

This article examines the extent to which the relevant rules of international law are capable of providing ‘ ‘ justice ’ ’ by accommodating the unique historical contexts in the region in settling highly politically sensitive territorial and maritime claims. South Korean President Lee Myung-bak ’ s visit to the Dokdo/Takeshima Islands on 10 August 2012, followed by his remarks demanding that the Japanese Emperor apologize for Japan ’ s past atrocities, caused diplomatic frictions between South Korea and Japan. The dispute between the People ’ s Republic of China ( PRC ) and Japan over the Diaoyu/Senkaku Islands has also been escalating, following the Japanese government announcing its intention to nationalize three of the islands. This research was supported under Australian Research Council ’ s Discovery Project funding scheme ( Project Number: DP130103683 ). 1. For the purpose of this article, East Asia is defined broadly to include Northeast and Southeast Asia. 

Q2. What is the way to determine the extent of a maritime zone?

Otherwise low-tide elevations may be used as a basepoint for the baseline in delineating the breadth of the territorial sea and other maritime zones, and to that end may prove useful in determining the outer limits of a maritime zone, or for the purposes of maritime boundary delimitation. 

Q3. What is the PRC’s submission on the continental shelf?

China’s submission asserts that geomorphological and geological features demonstrate that the natural prolongation of its continental shelf in the East China Sea extends to the edge of the Okinawa Trough. 

Q4. What is the idea of ‘‘Asian values’’ as antithesis in the 1990s?

Illustrative is the idea of ‘‘Asian values’’ as the antithesis of universal human rights in the 1990s, which claims that human rights as propounded in European ideologies are founded on individualism and are therefore inappropriate in Asia, where primacy is given to the community and communal action. 

Q5. What is the significance of historical title in the context of contemporary territorial disputes?

international courts and tribunals have recognized the relevance of historic title even in the context of contemporary territorial disputes. 

Q6. What is the main reason why East Asian states are not seeking peaceful settlement of territorial disputes?

An important element that has been preventing East Asian states from actively seeking peaceful settlement of territorial disputes is the significance that would be attached to historical contexts, the emphasis on effectivités in jurisprudence, and the ambiguity and arbitrariness associated with some of those rules, such as the critical date and effective protest. 

Q7. What is the PRC’s position on the East China Sea maritime boundary?

18The PRC and Japan have been engaging in bilateral negotiations for the purpose of overall East China Sea maritime boundary delimitation between the two countries, based on the understanding that the Diaoyu/Senkaku Islands issue should not affect the boundary. 

Q8. What is the reason why the law provides a strong incentive to keep strengthening respective legal positions?

As a result, the law continues to provide a strong incentive to keep strengthening respective legal positions by resorting to various means of effective and continuous display of sovereignty (because of the emphasis and reliance on effectivités in recent judicial settlements), or if the state does not currently exercise effective control over the disputed area, to protest against each sovereign act committed by the other party to the dispute (because omission would otherwise be considered acquiescence). 

Q9. What are some examples of islands given minimal effect in negotiated maritime boundaries?

There are also examples in state practice where small, sparsely inhabited islands which are located very close to the mainland of another state have been given minimal effect in negotiated maritime boundaries settled by way of treaty. 

Q10. What is the view of Jennings and Watts in Oppenheim’s International Law?

This is a view supported by Jennings and Watts in the ninth edition of Oppenheim’s International Law, in which they observed that though conquest or subjugation is now ‘‘obsolescent’’, ‘‘it is still necessary to briefly describe its legal limitations, if only because a root of title is to be judged by the law as it was when the relevant facts arose. 

Q11. What are some of the approaches to delimiting a maritime boundary?

These approaches include giving ‘‘half effect’’ to such islands,133 creating a territorial sea enclave around the islands, or adjusting a maritime boundary so that the general direction of the boundary line is subject to only minor modification where islands straddle a maritime boundary. 

Q12. What is the significance of ensuring that small islands do not have a distorting impact?

134This significance of ensuring that small islands do not have a distorting impact upon a maritime boundary is further reinforced in the LOSC, which makes clear that the delimitation of these maritime zones is to achieve an ‘‘equitable outcome’’,135 as reflected in recent ICJ decisions. 

Q13. What was the Court’s approach to delimiting the territorial sea?

Of particular note was the manner in which the Court dealt with low-tide elevations within the territorial sea, or particularly small maritime features that were above water at high tide, disregarding them for the purposes of constructing a provisional and an adjusted equidistance boundary line.