The recently signed fisheries accord between Taiwan and Japan on waters surrounding the Diaoyutai Islands (釣魚台) could be a model for resolving territorial disputes or a sop to stop the nation from making further demands for sovereignty over the islands, academics said.
The agreement includes an article, in line with the international practice, aimed at ensuring that nations with competing sovereignty claims can reach an accord of this kind without compromising their claims.
Article 4, dubbed the “disclaimer clause” by the government, stipulates: “The accord or measures taken pursuant to the provisions under the accord shall be without prejudice to relevant positions on issues with respect to the law of the seas held by competent authorities of both sides.”
Minister of Foreign Affairs David Lin (林永樂) said the clause was included “at our insistence,” and is a manifestation of Taiwan’s determination to claim sovereignty over the Diaoyutais.
However, academics have differing interpretations of the clause.
Nien-Tsu Alfred Hu (胡念祖), director of The Center for Marine Policy Studies at National Sun Yat-sen University, said the phrasing of the provision was “not a classic example of a clause to safeguard sovereignty.”
Given that the parties to the accord are defined as Taiwan and Japan in sub-paragraph (b) of paragraph 3 of Article 2, it is unnecessary to use “competent authorities” in lieu of “both Parties (viz, Taiwan and Japan)” as stated in Article 4, Hu said.
Hu said he thought the substitution was made because “competent authorities are not emblematic of state sovereignty.”
If the competent authority is seen as the Fisheries Agency, it does not represent the nation, Hu said.
That said, the provision created apprehension about a possible “demotion” of Taiwan’s sovereign status, he added.
Song Yann-huei (宋燕輝), a research fellow at Academia Sinica’s Institute of European and American Studies, said the accord was “important progress” toward settlement of territorial disputes through peaceful means.
Since Taiwan, Japan and China all lay claims to the Diaoyutais and have drawn the baselines form which the breadth of the 12 nautical miles (22.2km) is measured, “it is out of the question that the dispute over sovereignty can be resolved at this moment in time,” Song said.
However, “just because the sovereignty issue remains in place does not mean that the row over fishing in overlapping waters is not able to be resolved,” Song said.
Song said that the accord exemplifies that the international rule of law can prevail in cases like this as long as countries involved in territorial disagreement can “set aside sovereignty disputes.”
The accord is an embodiment of Article 74 of the UN Convention on the Law of the Sea (UNCLOS) which stipulates that, in the spirit of understanding and cooperation, the concerned states shall make every effort to enter into provisional arrangement in maritime boundary practice until a final resolution is viable, Song said.
Under the accord, Taiwanese fishing vessels can operate in an area of 74,000km2 (22,869.75 square nautical miles) surrounding the Diaoyutais — which are known in Japan as the Senkaku Islands — 4,530km2 of which are outside the scope of the area under the auspices of Taiwan’s Coast Guard Administration.
The designated area lies between south of 27o north latitude and the Sakishima Islands in Okinawa Prefecture, part of the overlapping Exclusive Economic Zones (EEZ) between Japan and Taiwan, where incidents of Taiwanese fishing boats being seized, detained or expelled by the Japan Coast Guard have often occurred.