Late last month, the Taiwanese fishing boat Tung Sheng Chi No. 16 was seized by the Japan Coast Guard when it was operating in the waters surrounding what Japan calls Okinotori Island, but that Taiwan says is a reef. Japan sees the waters surrounding Okinotori as its exclusive economic zone, while Taiwan sees them as the high seas. The boat was released after the owner paid a security deposit.
To address the seizure, President Ma Ying-jeou (馬英九) called two meetings of top national security officials, issued a stern statement and demanded that the Cabinet issue measures regulating the terminology used by authorities at different levels to make sure that Okinotori is referred to as a “reef,” not an “island.”
At a Tokyo news conference, Japanese Minister of Foreign Affairs Fumio Kishida said that Okinotori is an island at the southern end of Japan and that Japan cannot accept Taiwan’s “one-sided claim” that Okinotori “is a reef and not an island,” which would not entitle Tokyo to a 200 nautical mile (370km) exclusive economic zone.
Is there any connection between whether Okinotori is defined as an island or a reef and a decision concerning its legal status and claims of territorial waters and maritime rights? Does calling it an “island” mean that a claim for an exclusive economic zone is legitimate?
Australia’s Great Barrier Reef is called a “reef.” Does the UN Convention on the Law of the Sea (UNCLOS) say that Australia is not entitled to an exclusive economic zone? Does Clipperton Island, a minor territory of France in the east Pacific, enjoy an exclusive economic zone according to the UNCLOS?
Likewise, the US-administered Baker Island and Howland Island in the central and western Pacific Ocean are all called islands and the US claims an exclusive economic zone, although these claims have been seen as violating UNCLOS regulations and the US has been accused of making “excessive maritime claims.”
Calling something an “island” or a “reef” is not critical to determining maritime legal status. Islands and reefs are islands because they are surrounded by water on all sides, rise above sea level at high tide and are naturally occurring areas of land. If a rock is surrounded by water, rises above sea level at high tide and is naturally formed rock, then that rock is an island as regulated by Part 8 of UNCLOS, “Regime of Islands.”
However, UNCLOS Article 121, Clause 3, states that, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
If Okinotori can sustain human habitation or economic life, then it is not a rock. The territorial waters, adjacent areas, exclusive economic zone and continental shelf of Okinotori should therefore be determined based on UNCLOS regulations.
Even if Japan claims Okinotori is an island, if it cannot sustain human habitation or economic life, then it is a rock that is not entitled to exclusive economic zone or continental shelf claims, but can claim territorial waters or the adjacent area.
Japan has the right to call Okinotori an island, but if it wants to claim an exclusive economic zone it must correctly interpret and apply the regulations of Article 121, Clause 3 of UNCLOS. Japan ratified the UNCLOS in 1996 and it is thus binding.
Based on Okinotori’s geography, it can be determined that even if it is an island, it is also a rock, and does not entitle Japan to an exclusive economic zone.
It can be legally determined that Japan is violating the UNCLOS by measuring a 200 nautical mile exclusive economic zone from the Okinotori territorial baseline. This is why Japan was clearly in violation of international law when it seized the Tung Sheng Chi No. 16. Based on regulations stipulated in UNCLOS article 87, called “Freedom of the High Seas,” and 121, called “Regime of Islands,” Taiwan has the right to engage Japan and demand that it fulfill its treaty obligations.
Song Yann-huei is a research fellow in the Institute of European and American Studies at Academia Sinica.
Translated by Perry Svensson
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