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Seiji Kurosawa

【#388】International Framework Required for Surveillance on South China Sea

Seiji Kurosawa / 2016.07.22 (Fri)

July 19, 2016

     In the wake of a ruling by an international arbitral tribunal that denied China’s claim to sovereignty on the South China Sea, the Chair’s Statement at the 11th Asia-Europe Meeting in Ulan Bator said, “Leaders agreed on the critical importance … of disputes being resolved in accordance with principles of international law, the U.N. Charter and the U.N. Convention on the Law of the Sea (UNCLOS).” While refraining from naming China, the statement effectively urged China to respect the ruling. However righteous the request may be, China would turn a deaf year to any such request. Meanwhile, looking at the ruling carefully, we notice it includes a problem that makes it difficult for Japan as a maritime nation to fully welcome the ruling.

Spillover effect on Okinotorishima should be avoided
     The problem that could affect Japan is a decision that the Spratly Islands don’t have any legally defined island.
     Interpreting Article 121 of UNCLOS, the tribunal ruled the Spratly Islands have only rocks and low-tide elevations (that are submerged at high tide). Paragraph 3 of the article says, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The ruling thus could be used as a ground for claiming Japan’s Okinotorishima Island as the same as the Spratlys. China and South Korea have asserted that Okinotorishima, the southernmost island of Japan, is a rock that can have no EEZ.
     Japan can rebut the assertion on ground of a 2012 continental shelf extension recommendation by the Commission on the Limits of the Continental Shelf (CLCS). A coastal country has control on resources in waters within 200 nautical miles from its coastline. The seabed in the waters is called a continental shelf. If the continental shelf is geographically and geologically recognized as an extension of its territory, however, the continental shelf may be extended beyond 200 miles. The CLCS examined the relevant Japanese case and recognized the Shikoku Basin north of Okinotorishima as the extension in its recommendation. The extension cannot be explained unless Okinotorishima is treated as an island.
     On the Kyushu-Palau Ridge south of Okinotorishima that Japan also claimed as an extension of its continental shelf, however, the CLCS has postponed a recommendation due to complaints by China and South Korea. This is a matter of concern to Japan.

UNGA resolution as precedent
     Pacta sunt servanda, a Latin term meaning that agreements must be kept, represents a major principle for international law. The principle can stand as far as countries share the value of rule of law. However, China is not among countries that share the value. What can the international community do?
     In the past, there were some cases in which countries refused to comply with international tribunal rulings. One of famous such cases involves a 1986 ruling by the International Court of Justice that ordered the United States to pay damages to Nicaragua for its illegal military operations against Nicaragua. The United States ignored the ruling and vetoed a United Nations Security Council resolution urging the country to abide by the ruling. However, the United States failed to prevent the U.N. General Assembly from adopting a similar resolution, coming under fire from the international community.
     This time, Japan should attempt to submit a resolution in the U.N. General Assembly where China cannot exercise a veto. In addition, Japan should take the initiative to create an international framework to monitor and prevent illegal acts in the South China Sea. The Combined Task Force deployed in waters off the eastern African state of Somalia is a multinational naval force specialized in anti-piracy operations that has ever been commanded by a Japanese Maritime Self-Defense Force officer. This kind of combined force for surveillance may be realistic for the South China Sea.

Seiji Kurosawa is Secretary General of the Japan Institute for National Fundamentals.