Exclusive Economic Zones Between Japan and the Republic of Korea, and Japan and China

Abstract

The EEZs between Japan and its neighbors, the ROK and China, and the conclusion of new bilateral Fisheries Agreements for the 200 nautical mile era is the focus of this chapter.

China’s contesting Japan’s exclusive sovereignty over the Senkaku Islands, and the ROK’s occupying Takeshima, over which Japan asserts its sovereignty, are obstacles to determining the boundaries of the EEZ between Japan and its neighbors. Japan and the ROK in their new Fisheries Agreement adopted a “reciprocal access” regime as well as a Provisional Measures Zone (PMZ) to deal with Takeshima. Japan and China in their new Fisheries Agreement adopted a PMZ without maritime delimitation. The chapter explores some of the technical considerations underlying these agreements in detail.

Main Causes of Difficulties with Demarcation of Boundaries

In principle, the obstacles to determining the boundaries of the exclusive economic zones (EEZs) between Japan and China and between Japan and the Republic of Korea (ROK) are that firstly, China is contesting Japan’s exclusive sovereignty over the Senkaku Islands, and secondly, that the ROK occupies Takeshima, over which Japan asserts its sovereignty.

Furthermore, as a State practice, continental shelf boundary delimitation serves as a reference when delimiting the boundaries of EEZs, but “islands” on continental shelves are known to significantly affect boundary delimitations. Nevertheless, if looked at from the perspective of what impact and effect “islands” have had, there are discrepancies in the assertions respective States make with regard to the effect “islands” have when delimiting boundaries.¹ Above all else, islands that are in the middle of disputes cannot be considered as a datum point for delimiting boundaries. In other words, such islands are assigned no effect whatsoever in boundary delimitations.

Furthermore, looked at from the perspective of international law, Takeshima and the Senkaku Islands may well fall under this category.

Additionally, according to Article 121, Paragraph 3 of the United Nations Convention on the Law of the Sea (UNCLOS), “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Under international law, an “island” is “a naturally formed area of land, surrounded by water, which is above water at high tide,”² so even if an area that is only around the size of two tatami mats (equivalent in size to a double bed) is above the water at high tide (as is the case with Okinotorishima Island), it constitutes an island that possesses territorial seas, an EEZ, and a continental shelf. “Rocks” do not constitute “islands,” however. Even so, there is no definition of “rocks” in UNCLOS, and definitions of “rocks” are extremely varied.³ If Takeshima and the Senkaku Islands are considered to constitute rocks, then they will have no impact on boundary delimitations. In addition, where islands are concerned, there also appear to be conflicting interpretations regarding the effects that they exert, including which of the islands that exist between two countries should be taken as datum points, and whether they should be considered to have a 100% effect or a 50% effect.⁴

Gap Between the Claims of Japan and the ROK

Incidentally, in the negotiations between the ROK and Japan, for argument’s sake, if the ROK side were to propose a compromise and state that “Dokdo (i.e., Takeshima) corresponds to what are called ‘rocks’ in UNCLOS, so it is not necessary to take Dokdo into consideration,” would the Japanese side be able to accept this compromise proposal?

The answer is probably “no.” That is because from Japan’s standpoint, it would have to consider what the repercussions of accepting this proposal would be. In other words, what ramifications would it have for the Senkaku Islands? Moreover, what ramifications would it have for the remote Okinotorishima Island, far off in the Pacific Ocean? Because given that Takeshima is about the size of Hibiya Park in Tokyo, if the island were designated as “rocks” then it would clearly be untenable to argue that Okinotorishima Island, an area only about the size of two tatami mats at high tide, were not. Furthermore, if Okinotorishima Island were “rocks,” it could result in the loss of the extensive EEZ that Japan currently possesses.⁵

Then again, as has already been demonstrated, fishing zones and EEZs are different, and so Okinotorishima Island would no doubt retain the “200 nautical mile fishing zone” established under international customary law.⁶ In light of the fact that no country has been protesting the domestic legislative measures that Japan adopted after UNCLOS entered into force, it could be argued that Okinotorishima Island would continue to maintain an EEZ. Conversely, this hypothetical ROK proposal could in itself potentially saddle the ROK side with problems also, such as how Heuksando off the northwest coast of Jeju Island would be dealt with when negotiating the boundary delimitations of the economic zone between the ROK and China. That being the case, these are questions well worth asking even though sufficient information does not exist.

What would the outcome be if the Japanese side were to propose that “Takeshima is currently in dispute, so let’s both stop using it a datum point”? As already shown, insofar as the ROK side adopts the position that the matter of Takeshima, which it occupies, is not in dispute, the ROK would probably be unable to accept this proposal.

However, when considered in this way, it appears to suggest that it would be possible for Japan and the ROK to both agree to remove Takeshima (i.e., “Dokdo”) as a datum point so long as the basis for doing so were not questioned. Thus, the future is not necessarily completely bleak.

What would be the outcome if Takeshima (i.e., “Dokdo”) were acknowledged as a datum point? In one case, full 100% effect would be given to the island in the delimitation process; in another case, only partial (half) effect would be given to it, following the example set in the arbitration decision over the channel between the United Kingdom and France. In either case, because delimitation as ROK territory and delimitation as Japanese territory would occur simultaneously, it would surely give rise to overlapping areas of ocean where rights are claimed. Conceivably it would be possible to propose to designate these areas of overlapping claims as joint use maritime areas. However, this concept assumes that the ROK side recognizes that the sovereignty over Takeshima (i.e., “Dokdo”) is in dispute, which the ROK side would have difficulty accepting, it must be said. A joint use maritime area concept that would be acceptable to the ROK would undoubtedly take the form of a maritime area where claims overlap, and a form that recognizes a broader joint use maritime area to take into account the track record of ROK’s fisheries industry, and a form in which the influence or effect of Takeshima’s existence is not discernable. Such a case would have to take the form of a jointly administered fisheries area, and delimiting the boundaries of EEZs would be difficult.

In fact, as is discussed later, the new Japan-ROK Fisheries Agreement that took effect on January 22, 1999 was applied to both Japan’s and the ROK’s EEZs overall and employed a regime of “reciprocal access” in which each country permits fishing by the other country’s citizens in its own EEZ. However, a Provisional Measures Zone (PMZ)—a maritime area where the reciprocal access measure is not adopted—was established in part of the Sea of Japan as a result of the two sides being at a loss over how to handle Takeshima and Yamatotai. Furthermore, they could not reach agreement on how to determine a datum point in the East China Sea, and so a PMZ was also established here. The agreement stipulates that boundary delimitation negotiations will continue, but there are many difficulties.

Gap Between the Claims of Japan and China

The circumstances between Japan and China are the same as well. The Japanese side’s assertion is that the median line is between the Senkaku Islands and the Chinese mainland. China’s argument is vague at present, but like the ROK, China too has been adopting the concept of natural prolongation in relation to continental shelves. In reality, however, China is not behaving in a way that will deliberately cause disputes in developing its continental shelf: it seems to be granting exploration and prospecting rights for developing the continental shelf in areas of ocean that are closer to the continent than the median line between the Senkaku Islands and the China mainland. Incidentally, China enacted the Law on the Territorial Sea and the Contiguous Zone in February 1992, which designates Taiwan and islands such as Uotsuri Island as Chinese territory. Japan immediately lodged an official protest stating it could not accept this measure.

Bathymetric charts of Japan’s coastal waters show very clearly that the Nansei Shotō Islands and the Ryūkyū Trench run from mainland China and Kagoshima to Taiwan on either side of the East China Sea, and they face one another. As is widely known, Point 6⁷ (established in Article 2 of the Agreement Between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries) is said to be the equidistant midpoint of Japan, China, and the ROK. Furthermore, in the new Japan-China Fisheries Agreement of September 1997, it was agreed that the coverage would be north of 27° north latitude, the same as in the Japan-China Fisheries Agreement of August 15, 1975, while the line at 30°40′ north latitude was designated as the northern limit. In other words, care was taken that the agreements would not have an impact on the equidistant midpoint of Japan, China, and the ROK (Fig. 6.1).

Fig. 6.1

Continental shelf and exclusive economic zone borders, provisional measures zones, hypothetical median lines, etc., in the Sea of Japan/East China Sea. (Source: Japan Coast Guard Chart Application No. 140024)

However, the southern limit of the 27° north latitude parallel was agreed upon in the Japan-China Fisheries Agreement of 1975. Reportedly, this took into account relations with Taiwan, since delineation between Japan and China north of this line would not affect Taiwan. That being the case, this approach was probably followed in this new agreement as well. However, even though this line is derived by drawing a median line between Japan and China while ignoring the Senkaku Islands as a datum point (as opposed to drawing a median line between the Senkaku Islands and mainland China as the Japanese side argues for), more of the Japanese side’s portion is designated as a joint-use maritime area, temporarily, than it would be if it was based on a median line drawn between the Senkaku Islands and China by awarding the Senkaku Islands full 100% effect and including the Japanese side’s portion (and naturally including the Chinese side also). In any event, a temporary agreement appears to have been reached within parameters where the Senkaku Islands would not have a major impact, or rather, by setting the Senkaku Islands aside even while acknowledging it. In that respect, it has to be said that delineating the boundaries of the EEZs between Japan and China is extremely difficult.

New Fisheries Agreements Between Japan and China, and Japan and the ROK, and the Establishment of PMZs

Regulations Leading up to the New Fisheries Agreements

In addition to Japanese, Koreans, and Chinese, these waters are fished by Taiwanese and Russians. Japan and Russia already had a shared history in this regard from 1976, which marked the opening of the 200 nautical mile era. Japan’s Act on Temporary Measures Concerning Fishery Waters of 1977 was applied to the Pacific overall, and in the Sea of Japan, to the seas east of 135° east longitude only. Furthermore, it only covered the citizens of Russia (then the Soviet Union).⁸ The ROK and China had been regulated through the respective fisheries agreements.⁹

A fundamental flaw of bilateral treaties is that, by nature, they only regulate the two countries, and cannot restrain third countries. As just mentioned, Japan’s fishery zone was not enforced in the Sea of Japan west of 135° east longitude. Consequently, it was not possible to control either Taiwanese or Chinese fishing boats fishing there. Furthermore, the old Japan-ROK Fisheries Agreement was concluded in the era of 12 nautical mile fishery zones, which meant that in principle, ROK fishing boats that were in the high seas 12 nautical miles or further from each other’s territorial sea baselines could only be controlled based on the flag State doctrine, in accordance with the principles of international law. Self-regulatory measures were employed between Japan and the ROK from 1980; in the seas in the vicinity of Hokkaido, ROK trawlers were banned from operating within Japan’s otter trawl prohibition line, and a self-restraint period was established for each ROK trawler. In the seas in the vicinity of Western Japan, a fixed area of sea where trawl-fishing operations were prohibited was added; guidance and supervision was strengthened, but there were said to be constant violations.¹⁰ In other words, the situation could be described as being almost completely uncontrolled from the standpoint of preserving fisheries resources.

The same circumstances also exist in the Yellow Sea and East China Sea, with a mix of Japanese, Koreans, Chinese, and Taiwanese operating in these fishing grounds, too. How to deal with Taiwan posed a problem in both the Japan-China negotiations and the China-ROK negotiations. Accordingly, the Japan-China fisheries agreement was considered to only cover the area of ocean north of 27° north latitude, an area not affected by Taiwan. The same is true of the latest Japan-China fisheries agreement.

Provisional Measures Under the New Fisheries Agreements

In the negotiations on the new Japan-China Fisheries Agreement, one problem was related to the Senkaku Islands and another problem was delineating the area of ocean where the 200-mile EEZ claims overlap. As has already been shown, the principle of boundary delimitations adopted in Japan’s Continental Shelf and EEZ Act is “up to the median line” or “up to an agreed line” with the foreign country being faced. In Japan’s boundary delimitations with China, however, reaching an agreement over what should be taken as a datum point is difficult to begin with, and the two sides even have opposing opinions on the “median line” itself. Agreeing on “an agreed line” is also difficult. That being the case, setting the boundaries of the PMZ in the areas of overlapping claims naturally proved challenging in the Japan-China negotiations. The two sides’ opinions are said to have clashed in the negotiations, with the Chinese side demanding broader boundaries to allow its current hauls to be maintained, and the Japanese side keen to broaden the boundaries to which its own jurisdiction extended.¹¹

In the end, it was decided that the new agreement would apply to both Japan’s and China’s EEZs overall (the previous agreement had only applied to the East China Sea and part of the Yellow Sea).¹² However, boundary delimitation of the EEZs did not occur, and the PMZ was designated as being the area of ocean between a line at 30°40′ north latitude and a line of 27° north latitude, comprising an area of ocean that excludes areas up to roughly 52 nautical miles from the baselines of both countries’ territorial seas.¹³ The excluded waters are the countries’ respective EEZs, and the agreement states¹⁴ that to operate there requires the permission, etc., of the partner country, as stipulated in UNCLOS. In the PMZ, the flag State doctrine is employed so the supervisory authority lies with the flag State; however, management of fisheries and marine resources is to be carried out jointly.¹⁵ A Japan-China Joint Fisheries Committee, newly established under Article 11 of the new agreement, oversees specific regulatory measures. The area south of 27° north latitude and water area west of 125°30′ east longitude to the south of the East China Sea (excluding the People’s Republic of China’s EEZ in the East China Sea) had not been covered by the Japan-China Fisheries Agreement in the past; in the new agreement, it was decided that “essentially the existing fisheries order will be maintained,” and so the area was considered to be outside the coverage of the coastal State principle.

But what about the area of ocean between Japan and the ROK? For a clear understanding of the points at issue, it is worthwhile examining the points that were in question on September 5, 1998, when the Japan-ROK negotiations reached their final stages, based on newspaper reports that had appeared up to then. It can probably be surmised from the reports that in principle, as with the new Japan-China Agreement, the applicable water area under the new Japan-ROK agreement was considered to be all of the EEZs of both Japan and the ROK, with a PMZ to be established in areas of ocean where the EEZs overlapped.

To begin with, one point that the two countries were conceivably in agreement on was that the line delineating the Sea of Japan’s central portion is the median line of North Korea, the ROK, Russia, and Japan. (This is based on the arguments that appeared in newspaper reports¹⁶ before the Japanese side announced in January 1998 that the agreement had been completed, in other words, during the period when the negotiations had broken down.) Where the lines of the ROK’s east coast and Japan’s north coast are concerned, it appears that the ROK was asserting a line 34 nautical miles from the coast, while Japan was asserting a line 35 nautical miles from the coast. The ROK asserted the eastern tip of the Sea of Japan to be at 136° east longitude and Japan asserted it to be the 135th meridian east.¹⁷ Moreover, according to one report,¹⁸ the compromise plan consisted of the Japanese side accepting the ROK side’s argument regarding the boundaries west of 135° east longitude, in return for the ROK accepting Japan’s proposal to set the eastern tip of the PMZ as 135° east longitude. The other content of the agreement relates to issues such as ensuring the previous fishing catch levels remain the same, as argued by the ROK, and approaches to resource management within the PMZ.

What can be surmised from this is that the areas up to just over 35 nautical miles from the respective coasts were considered to be the respective country’s EEZ, and vessels operating there would require the approval, etc., of the partner country. Furthermore, other areas of ocean west of 135° east longitude were designated to be a PMZ where the flag State doctrine would apply and the supervisory authority would lie with the flag State, but with management of fisheries and marine resources to be conducted jointly. Where specific regulatory measures are concerned, as before, an ROK-Japan joint fisheries committee was to be set up for that purpose. Incidentally, there are no reports whatsoever mentioning the East China Sea from the Tsushima Strait, but based on the line that was established in the Agreement Between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, a median line would be drawn here, or alternatively because it involves boundary delimitation with China, it was considered to be an area of water excluded from the coverage of the agreement. This is completely unclear from newspaper reports.

Therefore, after ratifying UNCLOS, Japan and the ROK began diplomatic negotiations in May 1996 on the new Japan-ROK Fisheries Agreement, which was an outstanding issue for the two countries. Following a temporary suspension in those negotiations, an agreement was reached early on the morning of September 25, 1998, and the negotiations concluded for the first time in 2 years and 9 months. The agreement was subsequently signed on November 28 and entered into force on January 22, 1999. This new Japan-ROK Fisheries Agreement comprises a Preamble, 17 Articles that form the body of the agreement, and concluding clause, as well as Annexes I and II, which form an indivisible part of the main agreement. Other related documents include the agreed minutes, which record items relating to the areas of sea established in the East China Sea, an exchange of notes concerning measures for instances when vessels are operated in violation of the provisions of the agreement, and a Japanese note concerning catch quotas for ROK citizens and fishing boats.

The areas of sea that this agreement applies to are considered to be the EEZs of Japan and the ROK in their entirety.¹⁹ As with the New Japan-China Fisheries Agreement, a regime of “reciprocal access” was adopted whereby each contracting party permits the citizens and fishing boats of the other contracting party to fish within its own EEZ.²⁰ In areas of sea where the reciprocal access measure is not adopted, a PMZ was established in part of the Sea of Japan and part of the East China Sea.²¹ (According to Annex II, in this zone each country will respectively take measures based on the flag State doctrine.)

135°30′ east longitude was designated as the eastern limit of the Sea of Japan’s PMZ, but a portion north of 38°37 north latitude was protruded in order to include Yamatotai, a good fishing area, in the PMZ.²² This resulted in approximately 45% of Yamatotai being included in the PMZ, which is said to have angered Japanese fishermen.

Additionally, the area of sea in the vicinity of Takeshima, which is an area of mutually overlapping claims, was included in the PMZ in the Sea of Japan, and portions of the EEZs that could be described as inherent to each party were also included. Was this potentially influenced by the fact that Japan’s Act on Temporary Measures Concerning Fishery Waters of 1977 had not established a 200 nautical mile area of sea west of 135° east longitude? Additionally, is the PMZ’s legal status the high seas? Incidentally, the latitude/longitude point of intersection at the 38°37′ north latitude and 131°40′ east longitude²³ that is the western limit of the PMZ is conceivably the median point between the ROK and the Democratic People’s Republic of Korea (North Korea).²⁴ Based on further conjecture, it is also possible to imagine that conceivably, the apex of the protruded triangular portion is the median point between Russia’s Cape Povorotny, Takeshima, and Saruyama Cape on the Japan side, not Hegurajima Island on the Noto Peninsula coast, with the protruding portion forming an isosceles triangle.²⁵

Partly because the same line as the boundary established in the agreement between Japan and the ROK Concerning the Establishment of the Boundary in the Northern Part of the Continental Shelf was employed²⁶ as the boundary of the two countries’ EEZs, the end point in this agreement on the northern part of the continental shelf (which is also the starting point of the Agreement Concerning Joint Development of the Southern Part of the Continental Shelf) was adopted as the starting point of the East China Sea’s PMZ.²⁷ This can be thought of as the median line linking the ROK’s Jeju Island and Torishima Island in Japan’s Danjo Archipelago. However, where other points are concerned, although there appears to be agreement between the two countries with regard to drawing median lines, the northwest line is drawn slightly north of the line established in the Agreement Concerning Joint Development of the Southern Part of the Continental Shelf, for example. This conceivably reflects the Japanese side arguing for the ROK’s Marado off the coast of Jeju Island and Japan’s Torishima Island as datum points, while the southeast line conceivably reflects the ROK side arguing for its own Marado and Ujishima Island and Kusagakishima Island as datum points and for Japan’s Danjo Archipelago to be ignored. No agreement between the two countries over which islands should be used as datum points can be detected, and as a result, conceivably, the area where the countries’ claims overlap was designated as a PMZ. Incidentally, the southern limit is only designated to be “north of the southernmost parallel of the ROK’s EEZ.” Since it is not presented as a latitude, it is not necessarily clear. At the same time, because Point 6²⁸ (established in Article 2 of the Agreement Concerning Joint Development of the Southern Part of the Continental Shelf) is said to be the median point between Japan, China, and the ROK, if this point were taken to be the southernmost point of the ROK’s EEZ, the East China Sea PMZ established in the Japan-ROK Fisheries Agreement would be to the north of the PMZ established in the Japan-China Fisheries Agreement, so the two areas of sea would not overlap.

In these PMZs in the Sea of Japan and the East China Sea, the two countries decided that with regard to their own citizens and fishing boats²⁹ they would take the necessary measures to ensure appropriate management, including conserving living marine resources and setting the maximum numbers of vessels by fishing category that may operate there, in accordance with the decisions of the ROK-Japan Joint Fisheries Committee.

Incidentally, decisions regarding the conditions, etc., for operating in each sea area in 2010 were made at the Japan-China Joint Committee on Fisheries held in Beijing in December 2009, and the Japan-ROK Fisheries Joint Committee held in Seoul in February 2010.