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Background Brief: Senkaku Islands Dispute: China Resorts to Legal Warfare Carlyle A. Thayer September 15, 2012

[client name deleted] We would like your assessment on the significance (or lack thereof) of a transcript http://www.fmprc.gov.cn/eng/zxxx/t969558.htm posted on the Chinese Ministry of Foreign Affairs website today of remarks by a Chinese Assistant Foreign Minister addressing a symposium of experts on Diaoyu:
“At the same time, the Chinese government has taken a series of measures to state and strengthen the position of China on its sovereignty over Diaoyu Dao. We have established and announced base points and baselines of the territorial sea of Diaoyu Dao and its affiliated islands in line with the Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone. This is consistent with relevant provisions of the UN Convention on the Law of the Sea (UNCLOS). Early this morning, Ambassador Li Baodong, China's Permanent Representative to the United Nations, deposited the coordinates table and chart of the base points and baselines of the territorial sea of China's Diaoyu Dao and its affiliated islands with UN Secretary-General Ban Ki-moon. Announcing base points and baselines of the territorial sea is the basis of establishing waters under national jurisdiction, on the basis of which the territorial sea, exclusive economic zone and continental shelf can be established according to the provisions of UNCLOS. This has given us a clearer legal basis to safeguard China's sovereignty over Diaoyu Dao and China's sovereign rights and jurisdiction in the waters around the islands. Today, convoys of China's maritime surveillance vessels have arrived in the waters of Diaoyu Dao on a law enforcement patrol mission to uphold China's rights. This is another strong measure that we take to safeguard our territorial sovereignty.”

The statement references a submission to the UN to establish jurisdiction under UNCLOS. This seems to be a departure from previous Chinese practice, particularly in the South China Sea. In South China Sea matters, the Chinese government is, I believe, loath to try to document the nine-dash line in any way. Are the South China Sea and Diaoyutai apples and oranges? Or is turning to the UN/UNCLOS process a new departure of some significance for disputes in both areas? ANSWER: Comparing China’s nine dash line with the baselines around the Senkaku islands is like comparing apples and oranges. China’s nine dash line is a claim based on historic rights, while China’s declaration of baselines around the Daioyu Dao is in

2 accord with UNCLOS. The question to ask is why China hasn’t declared base lines around each and every feature that it occupies and claims in the South China Sea. This would be the next logical step. China has a dual position on its South China Sea claims. It claims sovereignty over all the islands and features and adjacent waters. It also claims historical rights to the waters inside the nine-dash line. Adjacent waters is not a term used in international law. China’s declaration of baselines around the Senkaku islands, and tabling these base points and baselines with the UN Secretary General, are an attempt to bolster its legal position. But it has no practical effect since China does not occupy or administer the Senkaku islands. China continually uses domestic legislation, such as the 1992 Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone, in an effort to trump if not circumvent international law. In fact, “legal warfare” is incorporated into China’s defence strategy. A nation has sovereign jurisdiction over its territorial sea but maritime powers have the right of innocent passage provided such passage is not prejudicial to peace, good order and security. China Marine Surveillance ships have the right to pass through Japan’s territorial waters surrounding the Senkakus. What China is doing is offering a counter-challenge to Japanese sovereignty. Once China has established a basis in domestic legislation, it acts with impunity. All its ships are routinely described as carrying out law enforcement activities. The bottom line is that sovereignty is contested between China and Japan. They can settle this matter bilaterally through negotiations or they can take the matter to an international tribunal for adjudication. China starts from the premise that its sovereign claims are indisputable. So long as China maintains this position there is no possibility that the sovereignty dispute over the Senkaku’s will be resolved. Any step that China takes to assert its sovereignty is a dangerous provocation because Japan, as the occupying state, has every right under international law to defend its sovereignty. China assertion of sovereignty is trapped in a web of jingoism, resource nationalism, and militarization. China is now employing the same tactics of intimidation it used against the Philippines, against Japan. Its effort is counterproductive as China’s behaviour impels region states to lobby the United States to balance China.

Suggested citation: Carlyle A. Thayer, “Senkaku Islands Dispute: China Resorts to Legal Warfare,” Thayer Consultancy Background Brief, September 15, 2012. Thayer Consultancy Background Briefs are archived and may be accessed at: http://www.scribd.com/carlthayer.

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