Should Japan annex Vietnam

Island disputes and international law

In none of the various bilateral territorial conflicts between China and its neighbors at sea is a permanent solution in sight. Again and again one or the other of these conflicts becomes more acute, while the others simmer on a lower heat. The dispute with Vietnam over a Chinese oil rig near the controversial Paracel Islands has been in focus since the beginning of May, not least because of the massive anti-Chinese protests in Vietnam.

The other major conflict in the South China Sea is that between China and the Philippines. After a phase of military threats in 2012, there is tense calm, despite the fact that the Scarborough Reef is actually occupied by China. On the basis of the Sino-Filipino dispute, it is easy to study how limited the instruments of international law for resolving conflicts in the relevant marine regions are.

Diplomatic maneuvers in the South China Sea

Filipino protesters warn China

In January 2013, Manila referred its dispute with China to the arbitration mechanism under the UN Convention on the Law of the Sea (UNCLOS). However, Beijing immediately rejected the move. With this attitude, did Beijing once again show itself to be arrogant regional supremacy, pushing its weaker neighbors around?

It's not that simple, as East Asia expert Reinhard Drifte explains to DW: "That was just a tactical maneuver. It was very clear that China would speak out against it." China fundamentally rejects international arbitration except in trade issues, for example in the context of the WTO. In addition, when China acceded to the Convention on the Law of the Sea in 1996, disputes over sovereignty over islands were expressly excluded from the jurisdiction of the Convention. This is pointed out by the international lawyer Stefan Talmon from Bonn, who describes the diplomatic advance of the Philippines as "ineffective under international law".

Talmon's colleague Drifte sees more calculation in the game in the Philippines. According to the motto: "We have left that to the international community, we want to proceed according to international law, and look here, China refuses to do so." That was well done as propaganda, so Drifte. As long as Manila consistently denies China's claim to Scarborough Reef, it ensures that the international legal status of the area remains unclear, no matter how many patrol ships China sends into the area or whether it builds lighthouses or the like. In principle, this rule also applies to all other unresolved claims in the South and East China Sea, explains international lawyer Talmon.

On a collision course in the East China Sea

Japan and China's vice foreign ministers discussed the status of the disputed islands in September 2012

For the same reason, experts see Japan in a better position than China in terms of international law in the dispute over the Senkaku Islands. "From 1895 (when it annexed the islands as no man's land) to 1971, Japan was able to claim these islands for itself without any counterclaim from any other party," says Drifte. Because it was not until 1971 that Beijing began to register its claim to the archipelago and to contest Japan's claims.

With the establishment of diplomatic relations between Japan and China in 1972 and the peace and friendship treaty in 1978, Japan raised the question of sovereignty over the Senkaku Islands. Beijing suggested leaving this issue to "later generations" to resolve. Japan agreed to this in an agreement that was not fixed in writing, but does not want to hear any more about it today, says Drifte, an expert on Japanese-Chinese relations.

Aggravation of the sovereignty issues

Ironically, the accession of the two countries to the UN Convention on the Law of the Sea in 1996, of all things, contributed to worsening the island dispute. Because both sides subsequently registered their claims, for example to exclusive economic zones.

A crucial incident dates back to 2010 when a Chinese fishing captain collided twice with Japanese coast guard boats and was arrested by the Japanese side. "This crossed a red line for the Chinese, where they said that we now have to protest more strongly than before in order to make our claims to the Diaoyu Islands clear," explains Drifte. From the Chinese point of view, the nationalization of three islands by the Japanese government in September 2012 was the temporary climax of the Japanese provocations.

Provocations with legal effect

In the meantime, however, the provocations have come from the Chinese side, which permanently sends surveillance boats into the coastal waters around the Senkaku Islands, posts weather observation buoys, and publishes the movements of its warships in detail. Observers see this as a strategy of China, which consists in driving the outnumbered units of the Japanese Navy and Coast Guard "to the brink of exhaustion and their capacities".

For James Holmes of the US Naval War College, this is also a development relevant to international law: "Once Beijing succeeds in monitoring and controlling a territory it has claimed without other claimants being able to take effective countermeasures, China will gradually become be regarded as the rightful sovereign over that territory. "

Chinese uncertainty policy

If international law does not help, the law of the stronger applies

The conflict in the East China Sea, unlike that in the South China Sea, is geographically clear. In the South China Sea, however, China's claims are unclear. "It seems that China is summarily claiming the entire sea area. But in conversation with Chinese diplomats you get to hear that this is absolutely not the case, you are by no means claiming the entire South China Sea," the Australian maritime law expert Vivian Forbes told of Deutsche Welle. Therefore, Beijing must communicate to the international community what exactly it claims as its territory in this area.

For a while, China used the so-called "nine-dash line" to historically substantiate its claim to the South China Sea, which experts in international law consider to be unsuitable. But even more recent formulations by China, according to which it claims "all islands including the sea belonging to them", are "completely absurd" from Reinhard Drifte's point of view and are not based on the text of the Convention on the Law of the Sea. "Nobody knows what China is really asking for," Driftes concluded.

"Code of Conduct without Teeth"

Couldn't pragmatic solutions help to defuse potential conflicts? As early as 2002, China and ASEAN agreed to create a code of conduct for the South China Sea. However, it has been shown that a heterogeneous community of states such as ASEAN on the one hand and China on the other were unable to cope with this. For the formulation of confidence-building measures, a consensus of all states is required, which will hardly be attainable. In addition, guidelines are to be drawn up which are to be official and binding. "And because none of that has happened so far, this Code of Conduct has no teeth, there is not much you can do with it," Drifte's sobering conclusion.