According to media reports, on December 25th 2024, it was revealed that a buoy with Chinese writing on it had been placed approximately 14km inside Japan's exclusive economic zone (EEZ), about 140km southwest of Hateruma Island in Okinawa Prefecture.
As with the buoy placed near the Senkaku Islands in July 2023, the Japanese government has taken the position that "the installation of structures in Japan's EEZ without consent violates the provisions of the United Nations Convention on the Law of the Sea (UNCLOS)" and has demanded their immediate removal through diplomatic channels. In addition, on December 25, Foreign Minister Takeshi Iwaya, who was visiting Beijing, made it clear at a press conference after his meeting with Foreign Minister Wang Yi that he had demanded the immediate removal of the new buoy.
At a press conference on December 27, Chinese Foreign Ministry spokesperson Mao Ning claimed that “the buoy placed in the sea area under China's jurisdiction is for the purpose of meteorological observation and is reasonable and legal,” and indicated that they would not respond to requests for immediate removal. *1
The day after the installation of the buoy was reported, a Taiwan Coast Guard officer posted at the Taipei Economic and Cultural Representative Office in Tokyo told me, “This buoy is illegally laid within Taiwan's EEZ.”
In short, Japan, China and Taiwan each claim that the buoy reported on December 25 is within their own EEZ. The arguments of the three countries are not wrong from their own perspective, and therefore they will never meet.
In the end, the buoy off Hateruma Island will not be forcibly removed by the Japanese Government in the same way as the buoy off the Senkaku Islands. The reason for this is that a combination of the following factors makes it difficult for the Japanese Government to make a policy decision.
Firstly, the three parties have not been able to reach an agreement on jurisdiction over territorial waters, EEZs and continental shelves based on UNCLOS. Japan and China ratified UNCLOS in 1996. In addition, China submitted a declaration regarding UNCLOS on August 25, 2006, and Article 2 of this declaration states that “The People's Republic of China will effect, through consultations, the delimitation of the maritime jurisdiction with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principle.”*2 However, negotiations with Japan have made no progress at all.
The main reason is in China. First, China claimed "sovereignty" over the Senkaku Islands after it was pointed out in 1968 that there was a possibility that oil resources were buried in the waters around the Senkaku Islands. China had never before challenged Japan's sovereignty over the islands, and the Senkaku Islands are Japan's inherent territory both historically and in practice, so China's argument has no basis.*3 Similarly, due to possibility of rich deposits of undersea resources in the Okinawa Trough, and China is attempting to demarcate its continental shelf along a line much closer to Japan than the Japan-China median line, which conflicts with Japan's claim that the Nansei Islands are on the edge of the continental shelf extending from the Eurasian continent and that the continental shelf in the East China Sea should therefore be demarcated along the median line.
What complicates the situation is that China declared in 2006 in Article 2 of the Declaration: "The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in Article 2 of the Law of the People's Republic of China on the Territorial Sea and Contiguous Zone promulgated on February 25, 1992". China has stipulated that the “islands” in Article 2 of the Law include the Senkaku Islands (Diaoyu Island, as claimed by China) along with the islands of the South China Sea.*4 In other words, in order to delineate territorial waters and EEZs based on UNCLOS, the declaration is an obstacle, and it is a precondition that China either rewrites its laws and stops claiming the Senkaku Islands, or that Japan recognizes China's claims.
In 2013, the first year of the Xi Jinping administration, the Chinese government added the Senkaku Islands to its list of core interests. Since then, any concession to Japan over the Senkaku Islands has become an issue that directly affects President Xi Jinping's political legitimacy. In other words, there is almost no chance that Japan and China will reach an agreement on the delimitation of the East China Sea in the foreseeable future.
Secondly, because Taiwan is not a member of UNCLOS and does not have diplomatic relations with Japan, Japan and Taiwan cannot conduct the diplomatic negotiations necessary for delimitation. Of course, even if a country is not a member of UNCLOS or does not have formal diplomatic relations with Japan, it is still possible to delimit the EEZ between the two.
In this case, however, there would be a discrepancy with the 1972 Japan-China Joint Communiqué. From China's point of view, Taiwan is part of China, and the decision on the delimitation of the EEZ off Hateruma Island will be made by China, and Taiwan has no right to be at the negotiating table. But although the Japanese government understands and respects the Chinese government's position that Taiwan is part of China, from the standpoint of upholding the Potsdam Declaration, it hasn't mentioned the issue of Taiwan's diplomatic status. In addition, the Chinese government does not actually control Taiwan or the waters surrounding Taiwan, so negotiations between the Japanese government and the Chinese government would be ineffective.
Thirdly, even if Japan is able to exercise its jurisdiction over the EEZ off Hateruma Island, there are no provisions in Japanese domestic law that explicitly state the legal interests that should be protected as a reason for removing buoys that have been placed in the EEZ without permission, and therefore the government ministry with jurisdiction is also unclear, making it difficult to remove them. According to media reports, the Ministry of Foreign Affairs has stated that the removal of the buoy is a "legal gray area,”*5 but this is believed to be a statement that takes into account the fact that UNCLOS does not have clear provisions on what physical measures concerned countries are allowed to take against countries that violate the treaty, such as the installation of the buoy in this case, and that Japan also currently lacks laws to protect the rights allowed under UNCLOS.
The current situation, in which domestic laws protecting the rights recognized by UNCLOS have yet to be enacted, is the greatest vulnerability for Japan's maritime security. International law scholar Atsuko Kanehara has long been sounding the alarm over Japan's lack of a law on the protection of territorial waters and the absence of a legal definition of the protected interests in territorial waters, even for areas more important than the EEZ.*6 The Japanese government should urgently enact the necessary legislation to remedy this weakness.
Note
*1「中国 日本のEEZ内にブイ設置 日本側求める即時撤去に応じず[China has refused to comply with Japan's request for the immediate removal of a buoy it placed in Japan's EEZ.]」NHK Web, December 28, 2024, https://www3.nhk.or.jp/news/html/20241228/k10014681601000.html
*2 United Nations Convention on the Law of the Sea, Chapter XXI LAW OF THE SEA, The United Nations Treaty Collection,
*3外務省[Ministry Foreign Affairs Japan]「尖閣諸島に関する３つの真実{Three facts regarding the Senkaku Islands}」, November 2012, https://www.mofa.go.jp/mofaj/area/senkaku/pdfs/3shinjitu.pdf
*4 Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone, China’s Leader in Online Legal Research, https://www.lawinfochina.com/display.aspx?lib=law&id=670
*5 高橋杏璃[Anri Takahashi], “中国ブイ10カ月経つも放置 尖閣周辺「法的グレー」に苦慮する日本[China's buoy left for 10 months, Japan struggling with ‘legal gray’ waters around Senkaku]”, Asahishinbun Digital, May 8, 2024, https://www.asahi.com/articles/ASS572QBTS57UTFK00LM.html
*6 兼原敦子[Atsuko Kanehara], “領海警備にかかる法整備の提言[Proposal for the development of legislation for territorial waters security]”, 上智大学法学論集第65巻第4号[Volume 65, Number 4 of the Sophia Law Review ], March 20, 2022, https://digital-archives.sophia.ac.jp/repository/view/repository/20220602003
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