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.
However, the accord does not apply to waters within 12 nautical miles of the Diaoyutais because both sides remain insistent on their sovereign claims to the territorial seas and prohibit entry by vessels from the other side.
The two sides will have to exercise self-restraint to stay out of waters within 12 nautical miles of the islands for the accord to be properly implemented, Song said.
“There has to be a sense of the understanding in both sides that the fishery accord came only after the sovereignty issue was shelved,” Song said.
Hu was more pessimistic about the competing claims, saying that “the situation could become more severe” as the row festers.
The Coast Guard Administration has vowed to take measures proportionate to actions taken by its Japanese counterpart in the event of an intrusion in the area by Taiwanese fishing vessels and vice versa, Hu said.
“This suggests that conflicts in the region could erupt at any time even with the fisheries accord in place,” Hu said.
In another scenario, if Taiwanese fishing vessels avoid entering the area, voluntarily or not, that could mean that Taiwan “indirectly acknowledged Japan’s claim of sovereignty over and administrative control of the Diaoyutais,” Hu said.
“If that’s the case, it would lead to the comment I rather not say — that fishing rights were earned by compromising sovereignty,” Hu said.
He was concerned that the pact could create a disincentive for the government to press other issues with Japan related to sovereignty over the Diaoyutais and the delineation of other waters in the overlapping EEZs if the government “gets all too complacent” with the accord.
The EEZ claimed by Taiwan stretches to 29o north latitude at its northern-most point, overlapping EEZs claimed by Japan and China.
“I am worried that Japan has reduced our preparedness and reduced our awareness in keeping the claims over the Diaoyutais and jurisdiction on maritime interests. For Japan, [the accord] was like a pain in the butt being cured. It gives Taiwan very little in exchange for everything,” Hu said.
Song said he did not see the need to worry that the accord would affect Taiwan’s sovereignty and rights in its EEZ.
“States making provisional arrangements for delimitation of overlapping areas are ensured by the UNCLOS that such formulas have no effect on their territorial claims or any potential boundary delineation in the future,” Song said.
The accord has “confirmed” that the scope defined by Taiwan as its EEZ defined waters within 200 nautical miles of the Diaoyutais, he added.
The islands were placed by Taiwan as the most northerly base point of the zone when the nation announced the first batch of base points and baselines for EEZ demarcation in 1999, following the 1998 Act on the Exclusive Economic Zone and the Continental Shelf of the Republic of China (中華民國專屬經濟海域及大陸礁層法), Song said.
Taiwan has not yet formally drawn up its EEZ, though the principle of a 200 nautical mile limit has been established under the act.
Taiwan established the provisional enforcement lines, according to its claimed EEZ, with regular coastguard patrols in the area regularly to protect Taiwanese fishermen, but the EEZ demarcation has not been recognized by Japan.
In the absence of diplomatic ties, it was “difficult” for Japan to agree to the accord and the inclusion of the “disclaimer clause,” said Ho Szu-shen (何思慎), an associate professor of Japanese literature at Fu Jen Catholic University.
The signing of the accord reflects the great importance that Japanese Prime Minister Shino Abe has attached to Taiwan, and its implications go beyond just the bilateral relationship, Ho said. By having Taiwan jointly manage the designated fishing zone, Japan does not need to confront China head on in case of the latter’s maritime surveillance ships entering the waters near the islands, he said.
“China would not risk sabotaging cross-strait rapprochement by not reining in unwanted behaviors that could tensions,” he said.
The pact was a Japanese gesture of goodwill “in the hope that Taiwan can keep its distance from China on Diaoyutai issues,” Ho said.
The accord has earned Taiwan a role in territorial disputes, but whether it can get China to respect the agreement remains to be seen, he said.