When  Jerome A. Cohen and Jon Van Dyke’s published their article “Lines of latitude,”  in the South China Morning Post, John Tkacik wrote the paper challenging the two professors portrayal of the Diayu/Senkaku Islands’ status under international law. This first response has led to an interesting public correspondence that we are happy to share here. The question of the islands’ significance and sovereignty are of critical importance to the political, strategic and economic balance in the East China Sea and beyond.

1. Jerome Cohen and Jon Van Dyke. “Lines of Latitude.” South China Morning Post, 10 Nov. 2010.

2. John Tkacik. “Japanese fishing workers lived on ‘uninhabitable’ Diaoyus.” South China Morning Post,  19 Nov. 2010.

3. Jon Van Dyke and Jerome Cohen.  ”The Diaoyu/Senkaku Islets Should Be Ignored in the Maritime Delimitation of the East China Sea.” WWW.USASIALAW.ORG,  Nov. 24, 2010.

4. John Tkacik. “The EEZ around Japan’s Senkaku Islands.” WWW.USASIALAW.ORG, Dec. 14, 2010.

Lines of Latitude

by Jerome A. Cohen and Jon M. Van Dyke

Japan’s arrest in September of a Chinese fishing captain within the 12-nautical-mile territorial sea surrounding the Diaoyu-Senkaku Islands – five tiny islets and three barren rocks northeast of Taiwan – has again inflamed relations between the two great East Asian powers. These remote features, with a total land area under seven square kilometres, have proved incapable of sustaining human habitation. They have little intrinsic importance apart from their considerable ability to arouse nationalist passions. Yet, since Japan, which controls them, insists that the islets are entitled not merely to a territorial sea but also to a vast exclusive economic zone (EEZ) and part of the adjacent continental shelf, the sovereignty issue has become linked to the major challenge of drawing fair national maritime boundaries in the East China Sea.

China’s claim to the islets is based on the “discovery” of unclaimed territory and derives from a range of Chinese governmental contacts and references going back to 1372. Japan’s claim is also based on the “discovery” of supposedly unclaimed territory, despite the fact that official Japanese documents, several of which were unearthed by Taiwan scholar Han-yi Shaw, demonstrate that the Japanese government was well aware of China’s historic claim when it began to take an interest in the islets in 1885. During the subsequent decade, contrary to the assertions now made by Japan, its officials not only failed to complete surveys of the islets necessary to confirm their alleged unclaimed status, but also recognised that the matter “would need to involve negotiations with Qing China”. To avoid China’s suspicion, Japan chose to conceal its intention to occupy the islets “until a more appropriate time”. That time came in January 1895, when Japan, by then on its way to defeating China in their 1894-95 war, adopted a Cabinet decision that the islets were Japanese territory. Yet even that Cabinet decision was not made public until after the second world war.

China maintains that the islets passed to Japan not by virtue of the unilateral, secret Cabinet decision but together with Taiwan and other unmentioned pertinent islands under the 1895 peace treaty of Shimonoseki. Therefore, Beijing argues, they should have been returned to China together with Taiwan and other pertinent islands after the second world war instead of falling under temporary American administration, as Okinawa did.

Japan points out that neither Chiang Kai-shek’s Republic of China nor Mao Zedong’s People’s Republic of China protested at the post-war placing of the islets under American administration, although the PRC did reject the entire post-war treaty settlement, from which it had been excluded.

After a 1968 UN survey reported the huge oil and gas potential of the area near the islets, both competing Chinese governments began to protest against the scheduled 1972 US return of the islets to Japanese control, even though the US took no position on their ultimate ownership. Today, now that the PRC has “risen”, and the legal status of the islets remains unresolved, failure to settle this territorial dispute has begun to threaten not only the area’s development of petroleum resources and fisheries but also its peace and security.

Neither China nor Japan has accepted the recent American offer to “host” a discussion of the dispute. China wants the US to keep out of all its sea boundary problems, as it has already made clear regarding the South China Sea. To China, American involvement in the East China Sea seems even more inappropriate, since the US, although professedly neutral on the territorial question, has nevertheless infuriated China by reaffirming that, being administered by Japan, the islets are protected by the 1960 US-Japan Security Treaty.

Although Japan generally values American support to balance China’s growing power, it cannot welcome the US offer to enter the islet dispute, since Japan takes the ludicrous position that there is no dispute. Moreover, if the US were to become an impartial mediator, it would have to note that Japan’s claim to sovereignty over the islets is based on a distorted version of late-19th-century history that does not pass the international smell test.

A mediator would also remind Japan – as China frequently has – that, under Article 121(3) of the UN Convention on the Law of the Sea, decisions of the International Court of Justice and international practice, these tiny, uninhabited spits of land that cannot sustain economic life on their own are not entitled to the 200-nautical-mile EEZ and resources of the adjacent continental shelf enjoyed by genuine “islands”.

It is time for Japan to reassess its views on the international law of the sea. Those of its views that are plainly irresponsible only discredit others that deserve serious consideration. Perhaps most insulting to the world community is its claim that the rock called Okinotorishima that constitutes Japan’s southernmost “land”, a reef system with land at high tide no larger than a king-sized bed, is entitled to an EEZ and continental shelf.

If Japan wants to peacefully settle its East China Sea boundaries with China, it should also abandon its unpersuasive claim that the Diaoyu-Senkaku are entitled to an EEZ and continental shelf. Their ownership would thus become much less important and could be temporarily set aside. Then the parties could continue negotiations to reconcile China’s claim to control the economic resources of its vast continental shelf with Japan’s endorsement of the widely accepted principle of drawing equidistant EEZ boundaries between neighbouring coasts. Even before completing the complex details of a boundary agreement, they can also implement their long-pending plans to jointly develop petroleum resources in disputed areas.

To avoid future clashes over the Diaoyu-Senkaku, the parties should establish some co-ordinating mechanisms, including a hotline like the one China suggested to Vietnam. Although neither side is enthusiastic about international adjudication, to divert domestic nationalist passions into constructive channels, they should display enough confidence in their legal positions to refer the territorial sovereignty dispute to the International Court of Justice, the International Tribunal for the Law of the Sea or an agreed arbitration panel. Further dithering is dangerous and unproductive.

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at NYU School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. Jon M. Van Dyke is professor and Carlsmith Ball Faculty Scholar at the William S. Richardson School of Law at the University of Hawaii at Manoa

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Japanese fishing workers lived on ‘uninhabitable’ Diaoyus

by John Tkacik

During my two decades of work on China and Taiwan issues at the US State Department, I often admired Jerome A. Cohen’s work.

He and Jon M. Van Dyke are entitled to their own opinions about the Senkaku Islands [known as the Diaoyus in China] – but, alas, not their own facts (“Lines of latitude”, November 10).

Even Taiwan’s President Ma Ying-jeou would reject their assertion that the islands “have proved incapable of sustaining human habitation”.

As Mr Ma pointed out in his magisterial 1981 Harvard Law School thesis “Legal Problems of Seabed Boundary Delimitation in the East China Sea” (p. 93), the main Senkaku Island, Uotsuri, possesses “a [fresh water] spring big enough to accommodate 200 people”. He noted that in the early 1900s “an enterprising Japanese named Koga brought scores of seasonal workers, food and supplies each year” to the island where he built “houses, reservoirs, docks, warehouses and sewers”.

Mr Ma is hardly a cheerleader for Japan’s title to the islands.

However, he acknowledged that Koga’s son continued a fish processing operation on the island until the early 1940s when the settlement’s population had grown to 248, according to Okinawa Prefecture household registry records.

Uotsuri was evacuated during the second world war, and the United States military, which occupied the islands of Okinawa Prefecture from 1945 until 1972, used the island for naval gunnery practice, all the while paying an annual rent for the privilege to the Koga clan.

In 1951, the US signed the San Francisco Peace Treaty – by constitutional definition, America’s “law of the land” – Article 3 of which placed under American trusteeship all islands south of 29 degrees north latitude, under Japanese administration at the end of the second world war, that were not otherwise specifically referred to in the treaty. And, under the treaty, the US government administered the Senkaku Islands as a part of the Ryukyu Islands. In 1970, the US State Department stated “that residual sovereignty over the Ryukyus remains with Japan” and that the Senkakus were part of the Ryukyus.

Article 121 of the United Nations Convention on the Law of the Sea grants a 200-mile “exclusive economic zone” delimitation to islands that can “sustain human habitation or economic life of their own”.

There is no historical evidence that anyone but Japanese citizens ever inhabited and sustained economic activity in the Senkakus, so it is appropriate under international law for Japan to use the islands to delineate its current EEZ baselines.

To debate the ancient history of the Senkakus as a matter of Chinese territorial claims strikes me as pointless as debating equally ancient Chinese claims on Mongolia, North Korea, Vietnam and India. Surely, Professors Cohen and Van Dyke recognise this.

John J. Tkacik, Alexandria, Virginia, US
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The Diaoyu/Senkaku Islets Should Be Ignored in the Maritime Delimitation of the East China Sea.

By Jerome A. Cohen and Jon M. Van Dyke

Two separate approaches lead to the conclusion that the Diaoyu/Senkaku Islets should not be a factor in delimiting the maritime boundary of the East China Sea.  First, these five small volcanic features northeast of Taiwan (measuring seven square kilometers altogether) must be viewed as “rocks” under Article 121(3) of the Law of the Sea Convention, because they “cannot sustain human habitation” and have no “economic life of their own.”  Second, even if it could be concluded otherwise, these features would still be ignored in a maritime delimitation, because every recent ruling by the International Court of Justice (ICJ) and other international tribunals has ignored small isolated islets in awkward locations to avoid reaching an inequitable delimitation result.

Paragraph 3 of Article 121 (“Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”) was added to the Convention text at the insistence of countries who worried that if such isolated features were allowed to generate extended maritime zones, little would be left for the shared common heritage, which was meant to provide resources that would benefit the developing world.  Budislav Vukas of Croatia wrote, when he was a judge on the International Tribunal of the Law of the Sea, that:

“The reason for giving exclusive rights to the coastal states was to protect the economic interests of the coastal communities that depended on the resources of the sea, and thus to promote their economic development and enable them to feed themselves.  This rationale does not apply to uninhabited islands, because they have no coastal fishing communities that need such assistance.”  (Volga Case, Russia v. Australia, Separate Opinion, 2002; emphasis added)

Examples of “state practice” recognizing that small features should be viewed as “rocks” and should not be able to generate exclusive economic zones and continental shelves include the United Kingdom’s decision to forego such a claim around Rockall (a towering granite feature measuring about 61 meters in circumference and about 21 meters in height, located about 300 kilometers from the British territory of St. Kilda off the Outer Hebrides of Scotland); the agreement between China and Vietnam that Vietnam’s Nightingale Island (Bach Long Vi) in the Gulf of Tonkin should be ignored in their maritime delimitation; the agreement between Honduras and Nicaragua in its submission to the ICJ that four disputed cays off their coasts should not generate anything more than a 12-nautical-mile territorial sea (Maritime Delimitation Between Nicaragua and Honduras (ICJ 2007)); and the sharp protests issued by China and Korea in 2009 against Japan’s claim for a continental shelf extending from the Okinotorishima reef system in the western Pacific.

In the early 1900s, a Japanese national sought to develop economic activities on Diaoyu Dao/Uotsuri Jima, the largest of the small features in this chain, exporting albatross feathers, dried bonito, stuffed seabirds,  and guano, and at its peak nearly 200 fishers and taxidermists were living there, but this effort was abandoned in 1940, and no further attempts to develop economic activities have been made, providing strong evidence that the islet is “uninhabitable” and is without an economic life of its own.  Since then, this islet has been denuded by overgrazing, and the others in the chain are even more completely barren.  Some insular features must qualify to be uninhabitable “rocks” and those in the Diaoyu/Senkaku group certainly seem to fit that description.

But a tribunal determining the maritime delimitation in the East China Sea might not issue an express ruling whether the Diaoyu/Senkaku Islets are “rocks” or not, because it could simply follow longstanding precedent ignoring such tiny features when dividing maritime space.  The most recent such example occurred in the 2009 ICJ adjudication of the maritime boundary between Romania and Ukraine in the Black Sea.  Ukraine argued strenuously that its Serpents’ Island (0.17 square kilometers, 35 kilometers east of the Danube Delta, and without any fresh water sources) should be considered in the delimitation, but the Court ruled otherwise, drawing the dividing line without regard to the existence of the islet.  Oxford Professor Vaughan Lowe, representing Romania, argued that Serpents’ Island should be considered to be a “rock,” because those humans visiting the feature were “totally dependent” on the outside “for food, water, and every other human need” and therefore because the feature was “indistinguishable from a steel platform.”  In response to Ukraine’s argument that scientists and others could be found on the islet, Professor Lowe said that to qualify as “human habitation” human presence must be “stable” and “sustained,” and that it is not “human habitation” if individuals are “ordered” to go to the islet by their government as soldiers or scientists.  Although the Court did not explicitly adopt this approach, its unanimous ruling ignoring Serpents’ Island must be viewed as a tacit acceptance of Professor Lowe’s analysis.

Other recent delimitation decisions have similarly given small islands no effect.  In the 1999 Eritrea-Yemen Arbitration, the tribunal gave no effect whatsoever to the uninhabited Yemeni island of Jabal al-Tayr and to the uninhabited Yemeni islands in the al-Zubayr group (which are on the “wrong side” of the equidistance line between the two countries in the Red Sea), stating simply that their “barren and inhospitable nature and their position well out to sea…mean that they should not be taken into consideration in computing the boundary line.” Similarly, in the 2001Qatar-Bahrain Case, the ICJ ignored completely the small, uninhabited, and barren Bahraini islet of Qit’at Jaradah, situated midway between the two countries, explaining that it would be inappropriate to allow such an insignificant maritime feature to have a disproportionate effect on a maritime delimitation line.  The Court also ignored completely the “sizeable maritime feature” of Fasht al Jarim, of which “at most a minute part is above water at high tide.”

Other decisions where small islets have been ignored include the 1985 Libya-Malta decision (ignoring Malta’s Filfla Island); the 1978 France-UK Arbitration (ignoring the UK islands of Jersey and Guernsey, despite their substantial population in drawing the boundary in the English Channel); and the 2002 maritime delimitation between the Canadian provinces of Nova Scotia and Newfoundland (ignoring Nova Scotia’s Sable Island).

Shanghai scholar Ji Guoxing has written that “China holds that the Diaoyudao Islands are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have a continental shelf.”  That conclusion is supported by the text of Article 121(3), by the underlying purpose of this provision, and by repeated rulings of the ICJ and other international tribunals.

[Further details on the cases discussed can be found, e.g., in Jon M. Van Dyke, The Romania v. Ukraine Decision and Its Effect on East Asian Maritime Delimitations, 15 Ocean & Coastal Law Journal 261-83 (2010).]
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The EEZ around Japan’s Senkaku Islands

By John J. Tkacik

Lest our dear readers’ eyes flutter and paroxysms of yawn stir in their chests, let me begin by saying that the scope of Japan’s maritime sovereignty in the East China Sea is emphatically not a matter of recondite trivia.  It could be a matter of global war or peace.  Let me explain.

The Senkaku Islands in the East China Sea mark the farthest westward point of Japan’s sovereign territory.   They are currently uninhabited, but before their evacuation at the dawn of World War II, they were home to a thriving Japanese fishing community.  And, if left unmolested by China, they certainly would enjoy a prosperous “economic life of their own” in the future.  QED – they are not barred from having a 200 nautical mile exclusive economic zone (EEZ) by Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS) which says:

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

First, let me address Japan’s claim to the Senkaku Islands and China’s counterclaims, then let me explain why the islands are not barred from having an EEZ under Article 121(3) of the UNCLOS.

Japan’s Claims to the Senkakus

China’s unseemly appetite for territory not its own  is the cause of tremendous anxiety in both Washington and Tokyo especially whenever Beijing agitates about the Senkakus, a group of high islands at the far edge of the Ryukyu chain which, at the opening of  World War II, was the home of a thriving community of over 200 Okinawan fisherfolk.  Japan’s administration and later habitation of the islands date from the 1880s when they were indeed an uninhabited terra nullius.  China’s territorial claims to the Senkakus, on the other hand, have no historical basis aside from scattered mentions of them in ancient travelogues.  As late as 1953, China’s official state media explicitly listed the Senkakus as part of the U.S.-occupied Ryukyu Islands and called upon its inhabitants to rise up against the Americans.[1] In Taiwan, official Nationalist government publications referred to Pengjia Islet as the “northernmost part of Taiwan province” as late as 1968 – Pengjia, by the way, is 85 nautical miles south east of the Senkakus.[2] Neither Nationalist or Communist Chinese territorial claims to the islands can be traced prior to 1969, and no earlier than the release of a surprising United Nations-sponsored report that suggested the Senkakus sat on a vast seabed reservoir of hydrocarbons – or, to quote the breathless prose of a trained geologist, “a high probability exists that the continental shelf between Taiwan and Japan may be one of the most prolific oil reservoirs in the world.”[3]

Suddenly, in 1969, without any previous hint of interest, Chinese regimes in both Taipei and Beijing proclaimed China’s sovereignty over the Senkakus.  Further complicating the geopolitics of the equation, China was in the grip of the Great Proletarian Cultural Revolution; Taiwan’s delegation – representing Chiang Kai-shek’s “Republic of China” government-in-exile (not the people of Taiwan, per se) – was battling expulsion from the United Nations; U.S. President Richard M. Nixon was contemplating Communist China as a strategic counterweight to the Soviet Union on the Eurasian landmass; and the United States was in the process of negotiating the return of Okinawa to Japanese sovereignty following a quarter-century of U.S. military occupation.

Okinawa Prefecture – which, the United States explicated, included the Senkaku Islands – was duly returned to Japan in 1972, and the United States said it was operating under a legal principle that Japan had retained “residual sovereignty” over the islands even during the U.S. military administration.[4]

So, as far as the United States is concerned, the Senkakus are Japanese. And as far as the U.S.-Japan Mutual Security Treaty of 1960 is concerned, the Senkakus are “territories under Japanese Administration” and hence fall within the ambit of the alliance.[5]

In the most recent contretemps over the Senkakus – in September 2010 – China repeatedly threatened Japan for the arrest of a Chinese fisherman who had deliberately rammed a Japanese Coast Guard vessel within the 12 nautical mile (20 kilometer) territorial waters around the Senkaku islands.  Japan’s “wanton implementation of the processes of so-called domestic law was serious aggression and open provocation against China’s territorial sovereignty,” according to a Chinese foreign ministry spokesman[6], and China’s central government retaliated by harassing Japanese firms doing business in China and (most alarmingly to the international business community as a whole) cut supplies to Japan of rare earths oxides, minerals essential to the fabrication any high-speed switches and high-powered natural magnets used in every computer and electronic device on the planet.  China, it seems, has a monopoly in global rare earths supplies.  China has since dispatched its own maritime patrol vessels to the area where they glower at Japanese Coast Guard ships, but so far have not yet penetrated the 12-mile territorial waters around the Senkakus.

As the September 2010 crisis sharpened, the United States reiterated publicly that the U.S.-Japan alliance did in fact cover the Islands: U.S. Joint Chiefs of Staff Chairman Admiral Michael Mullen, when asked again if the alliance covered the Senkakus, hesitantly said “obviously, we’re very, very strongly in support of our ally in that region: Japan.” Defense Secretary Robert Gates standing right next to him – apparently worried that Admiral Mullen’s words weren’t pointed enough — added “and we would fulfill our alliance responsibilities.”[7]

Hence, as Chinese naval challenges to Japan’s presence in the East China Sea have intensified over the past decade, the scope of Japanese maritime sovereignty in the Senkakus is not a matter of recondite trivia.

A Senkakus’ EEZ?

The question at hand is whether the Senkaku Islands possess a 200-mile EEZ, a delimitation that places the median line between Japan’s and China’s continental shelf EEZs some 80-100 miles closer to China’s east coast and partially encompass sub-seabed hydrocarbon deposits north of the islands.  Professors Jerome Cohen and Jon Van Dyke have written a short, dense, detailed, but – to the layman’s eye – off-point analysis asserting that the Senkakus “must be viewed as ‘rocks’ under Article 121(3)” of the UNCLOS.[8]

As I understand it, their argument rests on two premises: 1) that the islands are small, currently uninhabited, and have no economic life of their own, and 2) international law on maritime delimitations “has ignored small isolated islets in awkward locations to avoid reaching an inequitable delimitation result.”  My counterargument is that 1) actually, they’re pretty big, they have been inhabited – quite pleasantly, in fact – by a significant fishing community in the past, and could quite easily sustain an renewed “economic life of their own” if China wouldn’t threaten war over it; and 2) since when is being in open ocean, 180 miles from the nearest Chinese territory, and 88 miles from Taiwan “awkwardly located”?  And why is it “inequitable” that Japan benefit from seabed deposits within their own EEZ?

The Senkakus’ surface area, as Cohen and Van Dyke concede, is “seven square kilometers.” They are bigger than Monaco, Vatican City and . . . half the islands in the Tuvalu archipelago.  The southernmost Tuvalu island, for example, Niulakita, about the same size as the main Senkaku island of Uotsuri; it has a population of 35 (it was first settled in 1949); it is over 100 miles from the nearest neighbor and 200 miles from the Tuvalu capital at Funafuti.  Yet the UNCLOS recognizes Tuvalu’s 200nm EEZ drawn from the Niulakita baseline.  Speaking of small uninhabited islands, some of U.S. Pacific Remote Islands — Baker and Howland islands – are neither inhabited nor economically active, and therefore may not meet the criteria for generating an EEZ or continental shelf under Article 121 of UNCLOS, but the U.S. nevertheless claims an EEZ around these uninhabited rocks, islands, and coral atolls in the Pacific Ocean for both fisheries management and environmental protection.

Cohen and Van Dyke assert that because the Senkakus are uninhabited now, they do not qualify for an EEZ.  Yet, UNCLOS is careful to define “rocks” as being “unable to sustain human habitation” or (not “and”) an “economic life of their own.”  As Taiwan’s current president, Ma Ying-jeou, pointed out in his Harvard Law School thesis on the subject[9] (in which he acknowledged the generous assistance of Professor Cohen in the early 1980s), Uotsori has a fresh-water “spring big enough to accommodate 200 people” and, in its heyday, sustained human habitation for some 248 Japanese with an “economic life” centered on fish-drying and phosphate gathering.  Ma observed

“as to the ‘inhabitability’ test, one could argue that at least the island can sustain human habitation, given its potable water and tillable soil.”

The idea that because it is now uninhabited it therefore deserves no EEZ seems to ignore the fact that Romania and Algeria both pushed for a requirement of permanent habitation or settlement in the UNCLOS, but that requirement was not adopted.[10]

Cohen and Van Dyke posit that the Senkakus’ “habitability” test is unfulfilled because the fishing settlement on Uotsori was “abandoned in 1940” and because no one bothered to go back and start it up again.  This, they say, is “strong evidence that the islet is ‘uninhabitable’ and without an economic life of its own.”  Yet, I wonder what they would say if they learned that the island was “abandoned” in 1941 (not 1940) because Japanese central government would not authorize further petroleum supplies?  Hanako Koga recalled in 1979 that her family “had a factory in the Senkakus until Showa 16” (i.e. 1941) and abandoned it because the government ceased to allocate “oil” (presumably heavy fuel oil) due to “the war”.[11]

In August 1941, 80% of Japan’s oil supplies came from the United States, and in that month, the U.S. levied an oil embargo on the Empire of Japan.  Even Cohen and Van Dyke might have to concede that wartime conditions should not be evidence of ‘uninhabitability.’ The islands were certainly capable of “sustaining human habitation” at the cessation of hostilities in 1945 but, by that time, they had come under the administration of the U.S. military occupation government which, for one million yen (about US$ 2,777 in those days) a year, leased one of the smaller (and admittedly “uninhabitable”) islands from the Koga family for use as a naval gunnery range, perhaps intending to leave distant Uotsuri undamaged for possible future re-habitation. In any case, by the time the U.S. returned Okinawa Prefecture – and the Senkakus Islands – to Japanese administration in 1972, the rival “Chinese” governments in Beijing and Taipei were seized with visions of vast seabed oil reserves in Senkaku waters.

There is no doubt that the Senkakus could be immediately re-inhabited in the absence of Chinese military threats.  The nearby sub-seabed oil reserves would make Uotsuri an ideal base for petroleum exploration, drilling and production – no lack of an “economic life of its own” there.   Even without oil (which makes it so intensely attractive to China now) the Senkakus would surely be a resort for sport fishing and exotic vacations.

As it is, the Senkakus are at the center of significant international friction  which Japan, but apparently not China, hopes to keep calm and manageable.  Japan’s government has prohibited recolonization of the island to avoid deepening the confrontation with China.

As such, it is hard to see how Professors Cohen and Van Dyke find the example of Serpents’ Island (between Ukraine and Romania) with its 0.17 square kilometers of land area, its location 35 kilometers east of the Danube Delta, and without any fresh water sources, relevant in any way to the Senkakus.  Unlike the Senkaku Islanders prior to 1941, inhabitants of Serpents’ Island are “totally dependent” on the outside “for food, water, and every other human need” and is therefore “indistinguishable from a steel platform.”

Secondly, Cohen and Van Dyke make a case that the Senkakus are “awkwardly located” apparently because they are close to a hypothetical median line about 200nm out from the Chinese coast and over 100nm from Japan’s major Ryukyu islands.  The instances which they cite to support their position that the UNCLOS gives “small islands no effect” in EEZ delimitations are either in relatively narrow inland sea waterways or immediately adjacent to alien coastal nations while distant from the home country.  Likewise, it is difficult to see the relevance of rocks in the Black Sea or the Tonkin Gulf, in the Strait of Hormuz or Red Sea, or the Channel Islands within sight of France.  Nor does their reference to the delimitation of maritime boundaries between Canadian provinces seem on point.

Finally, it is perplexing that Professors Cohen and Van Dyke conclude their essay by citing the authority of a hardly-disinterested Chinese scholar that “China holds that the [Senkakus] are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have a continental shelf” when the opposite is so manifestly true.

Japan has struggled mightily over the decades to accommodate China’s desire for oil and seabed resources in the East China Sea and has labored to meet the concerns of China’s fishing fleets.  But China apparently desires more.  The islands now have a new strategic significance to Japan, for without them, Chinese territorial waters would be about 100 miles closer to Japan than they are now.  With China’s navy getting more pushy than ever before, Japan has reason to keep its maritime frontiers as far removed from its major islands as possible.  For that matter, so too does the United States.

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[1] “Ziliao: Liuqiu Qundao Renmin Fandui Meiguo Zhanlingde Douzheng” [Reference: The Struggle of the Ryukyu Islands People Against the American Occupation], Renmin Ribao, January 8, 1953, p. 4.  The unsigned article apparently assumed that the Senkakus were still inhabited because the first sentence reads: “The Ryukyu Islands are located in the sea between the northeast of  our country’s Taiwan and the southwest of Japan’s Kyushu island, and they include the Senkaku Islands . . .”  The Senkakus are the first islands listed.

[2] For example, the Republic of China Yearbook (Zhonghua Minguo Nianjian) published in October 1968 states “Taiwan’s northernmost [island] is Pengjia Yu.”

[3] K.O. Emery and Hiroshi Niino, “Stratigraphy and Petroleum Prospects in the Korean Strait and the East China Sea,” UNECAFE/CCOP Technical Bulletin, Vol. 1, 1968, p. 13, cited infra Ma Ying-jeou, “Seabed Delineations”, p.19 (footnote 38).

[4] On September 10, 1970, the Department of State issued the following statement: “Under Article III of the peace treaty with Japan, the U.S. has administrative rights over the “Nansei Shoto.” This term, as used in that treaty,  refers to all islands south of 29 degrees north latitude  under Japanese administration at the end of the Second World War that were not otherwise specifically referred to in the treaty. The term, as used in the treaty, was intended to include the Senkaku Islands. Under the treaty, the U.S. government administers the Senkaku Islands as a part of the Ryukyu Islands, but considers that residual sovereignty over the Ryukyus remains with Japan. As a result of an agreement reached by President Nixon and Prime Minister Sato in November 1969, it is anticipated that administration of the Ryukyus will revert to Japan in 1972.”

[5] On March 24, 2004, the Department of State Spokesman said “The Senkaku Islands have been under the administrative control of the Government of Japan since having been returned as part of the reversion of Okinawa in 1972. Article 5 of the 1960 U.S.-Japan Treaty of Mutual Cooperation and Security states that the treaty applies to the territories under the administration of Japan; thus, Article 5 of the Mutual Security Treaty applies to the Senkaku Islands.”   See Department of State Daily Press Briefing, Adam Ereli, Deputy Spokesman, for March 24, 2004,  at http://2001-2009.state.gov/r/pa/prs/dpb/2004/30743.htm.   On September 23, 2010, the NSC Asia Director Jeff Bader told reporters “But number two, the U.S.-Japan Security Treaty covers all areas administered by Japan, and since the reversion of Okinawa to — from the U.S. to Japan in 1972, the Senkaku Islands have been administered by Japan, so that is what that is a reference to.”  See http://www.whitehouse.gov/the-press-office/2010/09/23/press-briefing-press-secretary-robert-gibbs-special-assistant-president-.

[6] Foreign Ministry Spokesperson Jiang Yu responds to Reporters’ Questions, September 22, 2010, at http://www.fmprc.gov.cn/chn/gxh/tyb/fyrbt/dhdw/t754822.htm.

[7] DOD News Briefing with Secretary Gates and Adm. Mullen from the Pentagon, September 23, 2010, at

http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4690.

[8] Jerome A. Cohen and Jon M. Van Dyke, The Diaoyu/Senkaku Islets Should Be Ignored  in the Maritime Delimitation of the East China Sea, New York University Asia Law Institute, November 24, 2010, at  http://www.usasialaw.org/?p=4644.

[9] Ying-jeou Ma, Legal Problems of Seabed Boundary Delimitation in the East China Sea, Occasional Papers/Reprint Series in Contemporary Asian Studies, Number 3 – 1984 (62), School of Law, University of Maryland.

[10] See footnote 25 in Ma.

[11] The transcript of an interview with Ms. Koga is available at http://www.tanaka-kunitaka.net/senkaku/kogazenji/index.html.

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