Taiwanese fishermen throw eggs at Japan’s de facto embassy in Taipei in April to protest Japan’s detention of a Taiwanese fishing boat 150 nautical miles southwest of Okinotori, a tiny but strategic islet created out of a reef system in the Philippine Sea. (David Chang/EPA)
Rock or island? It matters.
In April 2016, Japan’s coast guard seized a Taiwanese fishing vessel some 170 miles east of Okinotori, revealing a long-ignored fact: Japan has been engaging in island building to expand its territorial claims since 1987.
Okinotori is a tiny outcrop about the size of a small bedroom. Much of the islet lies below sea level, even at low tide — and it’s about 950 nautical miles south of Tokyo and 850 nautical miles east of Taipei. So why has the Japanese government reportedly poured $600 million over the past three decades to cultivate coral, erect steel breakwaters and build concrete walls on Okinotori, or “remote bird island,” in the Philippine Sea?
With global sea levels rising, this might seem a futile effort. But Japan is eyeing the rich fisheries and mineral deposits around the islet, resources that could be worth hundreds of billions of dollars. And there’s a largerstrategic claim — Okinotori is situated between the first and second island chain, a position that can deny the Chinese navy access into the Pacific. The islet is also close to sea lanes transporting materials that are vital to Japan’s economy.
Exploring these strategic assets depends on one important condition: whether Okinotori is a rock or an island. Under the U.N. Convention on the Law of the Sea (UNCLOS), a coastal state can establish an exclusive economic zone (EEZ) of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. UNCLOS Article 76 also stipulates that a coastal state’s continental shelf can extend beyond its territorial sea to the outer edge of the continental margin. Thus, a coastal state potentially can claim a large mass of water as its EEZ, along with the sovereign rights to exploit, conserve and manage the natural resources within the EEZ. So Japan has intended to establish an EEZ around Okinotori.
Relevant to the issue is the definition of “island” and “rock.” UNCLOS stipulates that “an island is a naturally formed area of land, surrounded by water, which is above water at high tide” [Article 121 (1)]. The law does not clearly define what a rock is, specifying only that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf” [Article 121 (3)].
So UNCLOS has a big loophole. Japan claims Okinotori is an island, based on Article 121 (1), but also maintains that Article 121 (3) is about rocks and thus is irrelevant because there is no clear definition of “rock.” This created a useful excuse for Japan and other countries (including China, in the South China Sea) for their island-building projects.
One point is clear, though: An island can be the base point of establishing an EEZ, but a rock cannot. Despite the fact that scholars of international law, citing Article 60 (8), have long argued that artificially built islands do not generate an EEZ, the Japanese government has been engaged in island-building on Okinotori for decades.
Both China and South Korea disputed the “island” claim when Japan filed its 2008 claim for an EEZ around the uninhabitable islet to the U.N. Commission on the Limits of the Continental Shelf (UNCLCS). Thecommission declined its ruling on the Japanese claim because of the dispute. Thus, the EEZ around Okinotori is a unilateral declaration by the Japanese government and is not recognized by the UNCLCS.
Taiwan has more than fishing on its mind
Taiwan has not challenged Japan’s self-claimed EEZ, despite the fact that the waters surrounding the islet have traditionally been Taiwanese fishing grounds. Taipei’s ambiguous position is mainly because both Taiwan and Japan face a common security threat from China. The recent territorial dispute over the sovereignty of Diaoyu/Senkaku Islands further aggravated the antagonism between China and Japan — already strained by the historical legacy of Japan’s invasion during World War II.
Meanwhile, Taipei has been fending off Beijing’s forceful claims to Taiwan’s sovereignty for more than 60 years. Treating the island country as a renegade province that needs to “return to the fold of the motherland,” Chinese leaders have vigorously isolated the Taipei government in the international community and threatened Taiwan with military force. Because China has been conducting underwater surveys around Okinotori in the event of military conflicts in the Taiwan Strait,Japanese military experts have long suggested that Taipei support Japan’s claim so that it can block Beijing’s activities.
So why pick on Taiwanese fishing boats?
The Japanese government has detained a number of Taiwanese fishing vessels since 2005 in the waters surrounding the islet — each time with a fine of roughly $40,000 to $50,000. With Korean or Chinese fishing vessels operating in the same area largely left alone, these seizures gave the impression that Japan treats Taiwan as an easy target.
After the most recent incident, Taiwan’s parliament adopted a resolutiondenouncing the Japanese government. Taiwan’s outgoing president, Ma Ying-jeou, also dispatched patrol boats, followed by a Lafayette-class frigate, to the waters near Okinotori to protect Taiwanese fishing operations in the area. The Japanese government lodged a protest and deployed patrol boats to the area.
Cool heads may eventually prevail; the common security interests between Japan and Taiwan are too grave to be ignored. In early May, Tokyo sent a special envoy — the younger brother of Japanese Prime Minister Shinzo Abe — to meet Ma and President-elect Tsai Ing-wen in Taipei. Ma and Tsai expressed their willingness to resolve the dispute peacefully.
Yes, there’s a double standard
What are the wider ramifications here? First of all, Japan and other countries have criticized China’s frantic island-building in the South China Sea, including piling sand onto reefs to create islands, constructing military installations and airstrips on these man-made islands, andrefusing to accept the international arbitration of territorial disputes initiated by the Philippines.
While Tokyo’s island-building activities on Okinotori are not as extensive as Beijing’s efforts, the unilateral declaration of a Japanese EEZ to circumvent international law and arbitrary detention of Taiwanese fishing vessels around the islet are problematic. Beijing is likely to exploit the obvious double standard in Tokyo’s position on Okinotori to defend its own activities in the South China Sea.
Secondly, the broader interests of the international community and the countries with disputed claims suggests that there’s a need for a more practical approach, using bilateral or multilateral agreements. After all, Tokyo and Taipei agreed in 2013 to a fishery agreement, to let both sides operate in waters near the Diaoyu/Senkaku Islands that are currently claimed by both countries (as well as China). This agreement could serve as an example for both Taipei and Tokyo in resolving the current dispute — and for other countries with similar disputes.