Confusion over maritime disputes in East Asia | Asia| An in-depth look at news from across the continent | DW | 09.04.2013
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Confusion over maritime disputes in East Asia

Maritime law experts are concerned about an escalation of tension in the South and East Asia Seas. They say legal means of resolution are currently restricted.

It appears likely that the disputes over a number of tiny islands, reefs and rocks in the Far East could further escalate. Worrying undertones of nationalism have accompanied the clash over the uninhabited East China Sea islands, called Senkaku in Japanese and Diaoyu in Chinese.

A standoff last year between Chinese fishing vessels and Philippine patrol ships lasted for weeks.

Attempts to solve the conflict through diplomatic channels, however, have shown how limited existing legal instruments are to deal with disputes in maritime regions.

In January, Manila initiated an arbitration process under the United Nations Convention on the Law of the Sea (UNCLOS) over recent Chinese actions. Beijing formally rejected the arbitration in February.

In response to the question of whether Beijing was being arrogant, maritime law expert Reinhard Drifte told DW that it is not as simple as that. "It was simply a tactical maneuver," he said. "It was very clear that China would reject it."

Chinasystematically rejects international arbitration except on questions of trade, for instance, within the framework of the WTO.

Uotsuri Island, part of the Senkaku Islands in the East China Sea (Kyodo)

The islands are mostly tiny and uninhabited but still disputed

Moreover, when China signed the UN Convention on the Law of the Sea in 1996, it opted out of the system of compulsory binding dispute settlement for disputes relating to maritime boundary delimitation and historic waters, notes Stefan Talmon, a Bonn-based legal expert, who believes the Philippines' move will have no impact on international law.

Calculation and propaganda

Drifte argues that Manila is playing a game of calculation and propaganda, telling the international community that it is acting according to international law just as China is refusing to do so. As long as Manila consistently disputes Beijing's claim to the Scarborough Shoal, the area's international status remains unclear regardless of how many vessels China sends to the region or lighthouses it builds there. Talmon says this rule also works in principle for other disputed parts of the South and East China Seas.

This is also the reason why experts believe Japan is in a better position than China in the battle for the Senkaku/Diaoyu Islands. "From 1895 (when the islands were annexed as a no-mans land) to 1971, Japan was able to claim these islands without any counter-claim," said Drifte. Only in 1971 did Beijing begin to lay claim to the island group itself.

When Japan and China re-established diplomatic relations in 1972 and signed a Treaty of Peace and Friendship in 1978, Japan raised the question of sovereignty over the Senkaku Islands. Beijing suggested, however, that the matter be left to "later generations" to resolve. Japan reportedly agreed to this verbally but no longer wants to hear about it today, according to Drifte.

Chinese demonstrators carry national flags and portraits of AFP/AFP/GettyImages

There was a rise in anti-Japanese sentiment in China last year

Ironically, the dispute escalated when the two countries ratified the UNCLOS in 1996 and both declared their claims over exclusive economic zones.

Another key incident dates back just three years ago when a Chinese fishing trawler collided with two Japanese patrol boats and the captain was arrested by Japanese sailors.

"For the Chinese, a red line had been crossed," said Drifte. "They said 'now we have to file a stronger protest than before to make clear our claims over the Diaoyu Islands.'"

Japan's purchase of three islands in September last year was seen as the height of provocation.

Provocation on both sides

But China, too, is being provocative. China has sent naval and paramilitary ships to the area and a daily stream of bulletins announces ship deployments into the East China Sea in what experts see as a strategy to overwhelm the numerically inferior Japanese forces; and naval combat exercises.

"The operational goal is to wear out the Japanese Self-Defense Force and the Japan Coast Guard," said James Holmes, a maritime strategy expert at the US Naval War College in Newport, Rhode Island.

Holmes believes China will gradually be seen as the rightful claimant to the territory if Beijing can succeed in monitoring and controlling the territory it claims without any effective counter-measures from rival claimants.

Confusion over China's claims

In geographical terms, the conflict over the East China Sea is quite clear, unlike the confusion over the South China Sea, according to Australian maritime law expert Vivian Forbes.

"China needs to tell the international community what exactly it claims in the South China Sea - which islands," he told DW. "It seems to be a blanket claim over the whole sea and yet if you talk to Chinese diplomats, they say 'No, no, no we do not claim the whole sea.'"

A Japan Coast Guard's patrol boat, left bottom, discharges water against Taiwanese fishing boats near disputed islands called Senkaku in Japan and Diaoyu in China, in the East China Sea, Tuesday, Sept. 25, 2012. (Kyodo News/AP/dapd)

Taiwan and Japan got into a skirmish last year

For a while, China used the nine-dashed line map to lay its claim to the South China Sea, but experts have discredited this argument as invalid. Drifte maintains that China's more recent formulations to claim "all the islands including the sea that belongs to them" are also wrong and not in line with the UN Convention text. "Nobody knows what China is really claiming," he said.

In 2002, China and the Association of Southeast Asian Nations (ASEAN) agreed to create a code of conduct. But it has proven difficult to implement considering that ASEAN is such a heterogeneous group. Consensus is needed on the part of all the member states to formulate confidence-building measures and this is rarely achievable.

And official and binding rules have yet to be fixed, adds Drifte. "And because this has not yet happened," he said, "this code of conduct lacks the teeth to really do something."

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