28
S. Sakamoto
coasts, the ICJ has tended to set a median line provisionally and modify the line in
consideration of specific circumstances relevant to the parties.
31
In spite of this trend in ICJ jurisprudence, China has persistently insisted on the
natural prolongation theory as the appropriate criterion for continental shelf delimitation, and there has subsequently been no agreement with Japan on delimitation.
As noted earlier, Japan and China are involved in a protracted territorial dispute over
the Senkaku (Diaoyu in Chinese) Islands. It may not be easy for the two countries
to agree on delimitation without resolving this issue. We may be able to conclude
that since negotiations on delimitation are certain to be protracted, the two countries
have provisionally prioritised the joint development of natural resources in the East
China Sea. However, Japan and China have also been at odds over specific waters for
such joint development. Japan regards the overlap of the Japanese and Chinese 200
nautical mile EEZs as remaining in dispute, and has demanded that the two countries conduct joint development in waters covering the overlap across the median
line. In contrast, China, while also regarding waters between the median line and
the Okinawa Trough as remaining in dispute, has called for joint development in
waters east of the median line. Its position has been that waters west of the median
line are available for China’s sole—not joint—development. In its decision on the
case concerning the Maritime Delimitation in the Area between Greenland and Jan
Mayen, however, the ICJ stated,
Maritime boundary claims have the particular feature that there is an area of overlapping
entitlements, in the sense of overlap between the areas which each State would have been
able to claim had it not been for the presence of the other State. 32
Given that EEZ or continental shelf delimitation problems emerge in relation to
coastal States’ overlapping entitlements, Japan’s claim over waters in dispute, based
on the area of overlapping EEZ entitlements that are wider than the China-claimed
area, may be viewed as more persuasive.
Joint development of natural resources is not necessarily a universal remedy to
disputes. But it has been successful for some waters where maritime boundaries have
proven difficult to delimit. Therefore, joint development is worthy of consideration.
Negotiations to set up a joint development zone may not be easy. Nevertheless, it
is significant that Japan and China have continued such negotiations within their
general framework of friendship.
On 18 June 2008, Japan and China issued a Japan-China Joint Press Statement
concerning Cooperation between Japan and China in the East China Sea, in which
it was stated that:
In order to make the East China Sea, where the sea boundary between Japan and China has not
been delimitated, a ‘Sea of Peace, Cooperation and Friendship,’ Japan and China have agreed,
through serious consultations based on the common understanding between leaders of the
two countries achieved in April 2007 as well as their new common understanding achieved
31 This tendency may also be witnessed in relation to bilateral agreements. For instance, having
analysed 136 bilateral maritime boundary delimitation agreements, J.I. Charney concludes that the
equidistance principle plays a crucial role in these agreements. Charney and Alexander (1993).
32 I.C.J. Reports 1993, paragraph 59.
S. Sakamoto
coasts, the ICJ has tended to set a median line provisionally and modify the line in
consideration of specific circumstances relevant to the parties.
31
In spite of this trend in ICJ jurisprudence, China has persistently insisted on the
natural prolongation theory as the appropriate criterion for continental shelf delimitation, and there has subsequently been no agreement with Japan on delimitation.
As noted earlier, Japan and China are involved in a protracted territorial dispute over
the Senkaku (Diaoyu in Chinese) Islands. It may not be easy for the two countries
to agree on delimitation without resolving this issue. We may be able to conclude
that since negotiations on delimitation are certain to be protracted, the two countries
have provisionally prioritised the joint development of natural resources in the East
China Sea. However, Japan and China have also been at odds over specific waters for
such joint development. Japan regards the overlap of the Japanese and Chinese 200
nautical mile EEZs as remaining in dispute, and has demanded that the two countries conduct joint development in waters covering the overlap across the median
line. In contrast, China, while also regarding waters between the median line and
the Okinawa Trough as remaining in dispute, has called for joint development in
waters east of the median line. Its position has been that waters west of the median
line are available for China’s sole—not joint—development. In its decision on the
case concerning the Maritime Delimitation in the Area between Greenland and Jan
Mayen, however, the ICJ stated,
Maritime boundary claims have the particular feature that there is an area of overlapping
entitlements, in the sense of overlap between the areas which each State would have been
able to claim had it not been for the presence of the other State. 32
Given that EEZ or continental shelf delimitation problems emerge in relation to
coastal States’ overlapping entitlements, Japan’s claim over waters in dispute, based
on the area of overlapping EEZ entitlements that are wider than the China-claimed
area, may be viewed as more persuasive.
Joint development of natural resources is not necessarily a universal remedy to
disputes. But it has been successful for some waters where maritime boundaries have
proven difficult to delimit. Therefore, joint development is worthy of consideration.
Negotiations to set up a joint development zone may not be easy. Nevertheless, it
is significant that Japan and China have continued such negotiations within their
general framework of friendship.
On 18 June 2008, Japan and China issued a Japan-China Joint Press Statement
concerning Cooperation between Japan and China in the East China Sea, in which
it was stated that:
In order to make the East China Sea, where the sea boundary between Japan and China has not
been delimitated, a ‘Sea of Peace, Cooperation and Friendship,’ Japan and China have agreed,
through serious consultations based on the common understanding between leaders of the
two countries achieved in April 2007 as well as their new common understanding achieved
31 This tendency may also be witnessed in relation to bilateral agreements. For instance, having
analysed 136 bilateral maritime boundary delimitation agreements, J.I. Charney concludes that the
equidistance principle plays a crucial role in these agreements. Charney and Alexander (1993).
32 I.C.J. Reports 1993, paragraph 59.