In late April, a dispute erupted between Taiwan and Japan over fishing rights in waters off Okinotorishima, or Okinotori Reef. The Taiwan-registered fishing vessel Dongshengji No. 16 was seized by the Japanese coast guard near Okinotorishima, in waters which Japan claims as part of its 200-nautical-mile exclusive economic zone (EEZ). After the incident, then-president of Taiwan, Ma Ying-jeou, issued a statement in protest, refusing to acknowledge that Okinotorishima is entitled to an EEZ. On top of that, he dispatched Taiwanese coast guard vessels to the disputed waters to protect fishing operations there, bringing bilateral relations to a freezing point.
Less than a month later, on May 20, the Democratic Progressive Party’s (DPP) Tsai Ing-wen was inaugurated as the new president of Taiwan. Cabinet spokesman Tung Chen-yuan declared on May 23 that a bilateral dialogue mechanism on maritime affairs would be launched before the end of July. He said its main goals would be to foster cooperation on maritime affairs and establish a mechanism to reduce the risk of maritime disputes to prevent damaging friendly bilateral ties.
In contrast to the Kuomintang (KMT), which led the previous government, the DPP has always been regarded as Japan-friendly. Since Prime Minister Shinzo Abe took office in Japan, a number of his cabinet members have visited Taiwan and met with the DPP while it was still the major opposition party, thus establishing good relations with Tsai even before she became president. But as a result, Taiwanese fishermen are deeply concerned the Tsai administration could sacrifice their interests as part of its Japan-friendly policy.
Faced with this criticism the Tsai government has taken a very cautious stance. On the one hand, the government fears it could alienate fishermen and hand the KMT a reason to attack the government. But on the other, it worries it might lose a good opportunity for deepening relations with Japan. Consequently, the Tsai administration has taken a rather ambiguous stance on the Okinotorishima issue.
The Tsai government went so far as stating that it would not take any specific legal stance on the issue until the United Nations Commission on the Limits of the Continental Shelf (CLCS) delivers a recommendation on Japan’s claim to an extended continental shelf from Okinotorishima. But the CLCS does not have jurisdiction to decide whether or not Okinotorishima is legally an island entitled to an EEZ and continental shelf, and as a result has indefinitely postponed issuing a recommendation. The Tsai administration’s real intention is to create a friendly environment ahead of negotiations with Japan on broader maritime issues, and to prevent a stalemate in bilateral talks due to disputes over the legal status of Okinotorishima. The Tsai government is, of course, aware that stirring up controversy over the status of Okinotorishima would cause bilateral relations to stagnate, giving China an opportunity to sow division between Taiwan and Japan.
The Okinotorishima issue is not a question of territorial entitlement. Taiwan is not questioning Japan’s claim to Okinotorishima, only its claim to an EEZ and continental shelf from it. Taiwan argues that Okinotorishima does not meet the crucial conditions for island status set out in Article 121 of the United Nations Convention on the Law of the Sea—namely the ability to “sustain human habitation” or “economic life of their own.” Therefore, the islet is only a rock entitled to a territorial sea, and the waters beyond that 12-nautical-mile zone are the high seas where any nation is free to fish.
The bilateral dialogue mechanism on maritime affairs that the Tsai government wants to establish is not limited to waters near Okinotorishima, nor does it aim to address the boundaries of overlapping areas in the existing Taiwan-Japan Fisheries Agreement in the East China Sea. Instead it endeavors to set up a comprehensive maritime dialogue mechanism at a higher level as part of “preventive diplomacy.” It will adopt “communicative measures” to ensure there is a mechanism in place that “nips conflict in the bud” should another maritime confrontation occur between Taiwan and Japan.
When disputes arise it is extremely important that a dialogue mechanism be in place. The situation in the South China Sea offers plenty of examples of what happens when one does not exist. In 1974 China and Vietnam engaged in a sea battle over the Paracel Islands. In 1988 the two nations fought another naval engagement over Johnson South Reef. Tensions heightened between China and the Philippines over the former’s occupation of Mischief Reef in 1995 and the latter’s grounding of a ship on Second Thomas Shoal in 1999. Another standoff occurred between China and the Philippines over Scarborough Shoal in 2012. In all of these cases, no systemized communication system or hotline existed between decisionmakers to manage crises.
In 2001 military aircraft from China and the United States collided over the South China Sea. The incident and its aftermath showed that the two sides were not able to communicate with each other immediately, misjudging the situation, because they lacked a mutual confidence mechanism. More than seven years after that incident, in April 2008, a U.S.-China military hotline was finally set up. In November 2014 the U.S. Department of Defense and China’s Ministry of National Defense signed a Memorandum of Understanding on the Rules of Behavior for Safety of Air and Maritime Encounters as well as a Memorandum of Understanding on Notification of Major Military Activities [and] Confidence-Building Measures Mechanism. In June 2015, China and the United States signed an Army-to-Army Dialogue Mechanism Framework Document.
Since Taiwan and Japan do not maintain formal diplomatic relations, the two sides are not able to publicly establish a hotline like the U.S.-China military hotline or rules of behavior for safety of unplanned military encounters. However, in the absence of such formal channels, the best approach to dispelling mutual misunderstandings is establishing a notification mechanism within the maritime law enforcement agencies and a hotline between the competent regulatory authorities on marine affairs. The two sides could even conduct joint maritime rescue drills, loan each other equipment to fight marine pollution, and conduct bilateral training and exchanges for law enforcement and marine affairs personnel.
In the short term it will, such mechanisms will not, of course, solve the problem of overlapping sea areas or clarify whether Okinotorishima is an island or a rock. However, they will help build a safe environment for fishermen during operations at sea and create opportunities for cooperation between marine law enforcement agencies on both sides by jointly safeguarding maritime security and protecting the marine environment.