Welcome to another edition of “What’s the Deal?”, the blog that doesn’t repeat itself that often.
In this week’s post we’ll discuss the continuing squabbles in different coastal regions of the world over water boundaries and country ownership. If this subject seems familiar to our massive* readership, it should be because I wrote about the dispute in the South China Sea earlier this year. But never fear, I’m not running out of ideas!
This overlapping post merely continues the discussion over maritime laws and political disagreements on a global scale and puts the current disputes and debates into context.
*Note: massive is subjective
On November 19, the International Court of Justice (ICJ) in The Hague ruled on a dispute between Nicaragua and Colombia over who had sovereignty over a region in the Caribbean Sea. The ICJ (after a 10 year process) drew a new maritime boundary that grants Nicaragua a 200 nautical mile exclusive economic zone (EEZ) from its Eastern coast while leaving small islands within the EEZ in the possession of Colombia (see map).
While Nicaragua’s President Daniel Ortega gleefully extolled the decision and sent his navy to patrol Nicaragua’s newly granted territory, Colombia’s reaction was markedly the opposite. Juan Manuel Santos, the Colombian President, refused to recognize the ICJ ruling, saying it was filled with mistakes and argued that treaties, not the ICJ, should be the legal avenue to resolving territorial disputes. Santos on November 30 said that Colombia would no longer recognize the jurisdiction of the ICJ (which legally does nothing for Colombia’s claims). Santos has so far refused to withdraw the Colombian navy, but aggression between Nicaragua and Colombia is unlikely, especially following the cordial meeting between Ortega and Santos in Mexico City on December 1st.
This ruling by the ICJ is being closely monitored elsewhere in Latin America because Chile and Peru are also facing off over maritime boundaries. A 38,000 sq. km area with a rich fishing stock is becoming an issue because though Chile has long controlled the area, Peru says the maritime border and claim were never officially defined.
Meanwhile, tensions between Japan and China have risen significantly this year over the rights to the islands in the East China Sea known as the Senkakus to the Japanese and the Diayous to the Chinese. The row intensified in September when the Japanese government paid $26 million to their private owner for the three islands in the archipelago that Japan didn’t own, prompting a fierce response from Chinese diplomats and press. A nationalistic rally from the Chinese public followed with significant protests along with boycotts and destruction of Japanese businesses.
Neighboring countries and the world have looked on with a concerned eye as China sent surveillance and naval ships to the waters around the area; raising the stakes for the potential for conflict. At the same time, Japanese diplomats and politicians have been stirring popular nationalism as well, such as controversially visiting a WWII memorial. While the hot stove issue has cooled off in recent weeks, many see this problem as another example of Chinese aggression and military expansion.
But there’s more than meets the eye here.
While China has looked to expand its maritime and international muscle, it is also seeking to balance their own territorial claims under the United Nations Convention on the Law of the Sea (UNCLOS) which are significantly smaller than Japan’s. China feels that Japan received an unfair distribution of maritime territory in the treaties following WWII. In addition, China holds its own historical claims to the islands and is also seeking potential resources, which the rocks may hold.
So what we have here are three examples of squabbles of maritime sovereignty but that also have political, national, and economic motives. These incidents in 2012 follow the continuing dispute in the South China Sea and are probably going to continue to turn up in increasing numbers in the years to come. So what better time to try and understand the underlying issues and long term implications than right now, right?
From the Caribbean to the East China Sea, we’ll look at the background on these issues and see what they mean globally.
Historical Claims and Political Gains #1: A Fair Treaty?
The Colombia-Nicaragua territorial spat goes back to the ending days of Spanish colonial dominance in Central America when Colombia gained independence in 1822. A federation in Latin America called the United Provinces of Central America (UPCA) did not recognize Colombia’s claim to the islands off the Nicaraguan coast, and neither did the resulting state of Nicaragua when the UPCA dissolved in civil war in 1834.
Of course, Colombia back in the 19th century looked a bit different than its modern borders suggest. Colombia owned what is now Panama up until 1895 when an American backed revolt against Colombia brought Panamanian independence. So, with an extra isthmus of land in Central America, Colombia’s claim to the islands makes more geographic sense.
The crux of the maritime dispute, however, lies with the controversial Esguerra-Barcenas Treaty between Colombia and Nicaragua in 1928 which granted the islands of San Andres and Providencia to Colombia along with a generous portion of nautical territory that included several islets within the disputed area.
The issue was not just that Nicaragua emerged a territorial loser in the treaty, but that Colombia had won with the strict backing of the United States. The U.S. had been involved publicly and clandestinely in Nicaragua between 1909 and 1933. Nicaraguan-American relations soured when Nicaragua, under President Jose Santos Zelaya, offered generous contracts to Germany and Japan to build a competing canal to the Panama canal. (The U.S. was initially going to build the canal in Nicaragua, but heavy lobbying from business interests against this route changed the location to Panama). This effort from the Zelaya administration caused a break in diplomatic relations with the U.S. while at the same time, a civil war erupted in Nicaragua between pro-Zelaya and anti-government movements. The U.S. sent 400 marines to the coast to secure their interests, a contingent force that would remain in Nicaragua continuously between 1912-1933.
With the U.S. troops remaining in Nicaragua and several treaties hindering Nicaragua’s ability to intervene against American business interests (see Chamarro-Bryan Treaty), Nicaragua essentially became an American protectorate. The U.S. used this influence to bring conservative, American business friendly leaders to power including the dictator Anastachio Somoza Garcia in 1937.
At the same time, the Nicaraguan government dealt with a troublesome rebel-liberal force under Agusto Cesar Sandino, a nationalist who denounced the American intervention and subsequent conservative governments. The Nicaraguan government that signed the maritime treaty with Colombia in 1928 was heavily influenced by the United States, and the U.S. may have wished to grant more influence in the Caribbean to the more stable Colombian government instead of the conflict-riddled and potentially unfriendly environment in Nicaragua.
When the Sandinista rebels (named after the aforementioned Sandino) overthrew the Garcia reign, and took power in 1980 (and prevented an American backed coup by the Contra rebels), they renounced the Esguerra-Barcenas Treaty because of the U.S. influence involved in Nicaragua signing the treaty. Therefore, Nicaragua has assumed the claim to the same territory that Colombia “legally” had through the treaty. Colombia asserts that the final ratification, in 1930, was sufficiently past the point of American intervention and therefore should continue to be valid. But, U.S. troops didn’t officially leave Nicaragua until January 1933, so Nicaragua may have a point in saying that the U.S. forced their hand in signing the treaty.
Nicaragua filed claims in 2001 with the ICJ to remove the “legal uncertainties” around the maritime boundaries between Colombia’s territorial claims versus the 1982 United Nations Convention on the Law of the Sea (the international convention that updated maritime laws) – which of course was just decided on Nov. 19th.
Historical Claims and Political Gains #2: Historical vs. Legal
While China may have historical precedent to ownership of the uninhabited Diaoyu/Senkaku islands, legal technicalities may override their precedent. Let’s review both sides of this complicated legal issue that has led to the dispute and sabre rattling. Two op-ed pieces from a Chinese and Japanese scholar explore the issues, and I relay their main points here.
According to Qing Dynasty (1644-1911) records in China, the Diaoyu/Senkaku islands lied within Chinese borders, and Japan recognized China’s ownership of the islands in the 19th Century. Prior to Japan’s acquisition of the Diaoyu/Senkaku islands after the 2nd Sino-Japanese War in 1895, Japan in the Meiji period had recognized the islands as territory of China. For example, during surveys of East China Sea islands by Japan in 1885, the Japanese foreign minister acknowledged referred specifically to islands next to Taiwan “belonging to China.” Further, the first citizen to lease the islands from the Japanese government, Koga Tatsushiro, wrote that Japan had acquired the islands through the “gallant military victory of our imperial forces.” So, Japan assumed ownership through the spoils of war in 1895, not through historical possession.
Both Taiwan and the Diaoyu/Senkaku islands were under Japanese occupation during WWII, but per post-WWII conditions, Japan was required to surrender territories gained through aggression and revert them to their pre-1895 legal status: Chinese for the Senkakus.
Game over, right? Per historical precedent, China should be rewarded with the Diaoyu islands right? Well, unfortunately, it’s not that simple (and Japan contests this historical argument). A more recent legal precedent may give Japan the legal ownership.
According to an article from the People’s Daily in 1953, the mouthpiece of the Communist Leadership in China, China demanded that the Ryukyu Islands (which included the Senkaku) which in the 1950s were under American administration, be allowed self-determination with an option for returning to Japanese administration.
Judging a current Chinese claim that the Diaoyu/Senkakus should be theirs then would look at that claim and say that China was allowing for self-determination for the Ryukyu islands (with the Senkaku) and had given up their claim. Therefore, the common law doctrine of estoppel (a principle used by the ICJ in prior island disputes) would take precedent, stating that,
“the law precludes a party from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied.”
So, basically, since China had called for self-determination of the islands prior to 1970 and not Chinese ownership (essentially disowning the islands), they can’t now call the islands Chinese. Japan also asserts that China only made the claim to the Diaoyu/Senkaku islands after oil deposits were discovered. Therefore, if the case over ownership were to come to an international court, the court would rule in favor of Japanese ownership of the Diaoyu/Senkakus.
But there are some problems with this second argument from the Japanese scholar. First, the evidence cited for the Chinese call for self-determination of the Ryukyu islands is an article in the People’s Daily. Even though the People’s Daily is edited to give the Communist Party’s line, it is still an article in a newspaper, not an official governmental proclamation. Therefore, it may be difficult to use this as evidence as disownership. Second, the article doesn’t even state an option for a return to Japanese administration; it merely states the demand for self-determination.
International Rulings and Their Global Implications
The ICJ’s ruling in the Caribbean over Nicaragua’s newly won maritime borders closely follows the rules laid down in the UNCLOS for an economic exclusive zone (EEZ) which grants Nicaragua jurisdiction over the resources of some 38 million square nautical miles of ocean space. To the coastal State (Nicaragua, in this case) falls the right to exploit, develop, manage and conserve all resources – fish or oil, gas or gravel, nodules or sulfur – to be found in the waters, on the ocean floor and in the subsoil of an area extending 200 nautical miles from its shore. The coastal state is required to allow transient navigation and abide by environmental conservation laws.
Colombia, who for the most part has shown significant respect for international laws was upset with the ICJs decision mostly because the EEZ granted to Nicaragua surrounds two Colombian islands: San Andres and Providencia and their archipelagos. In addition, Colombia probably didn’t want to lose out on the current and potential resources that the maritime zone offers. As stated earlier though, Colombia and Nicaragua’s leaders have met and promised to work things out, with or without international organization.
Colombia’s reaction of refusing to recognize the ICJ rulings may be a pattern, however, for further maritime disputes that arrive down the road. The Peruvian-Chilean dispute over a coastal fishing region is one, but as fishing stocks dwindle and newly found oil pops up in previously unforeseen locations, the need for international codifications rises significantly.
As we continue to see in the South China Sea dispute, the potential for American intervention and some sort of large-power conflict exists. Given the mutual defense treaty between Japan and the U.S. and the American desire to keep freedom of navigation in all waters, American intervention over the Senkaku/Diaoyu flare-up was a conversation piece up until recently. A provisional compromise has been a short term solution and kept tempers cooler, but is not a long term solution for the dispute.
Like the Caribbean territorial issues, island and maritime boundary disputes in the Pacific and elsewhere show the continued need for international oversight. China should consider filing a claim to gain a larger EEZ or to challenge Japan’s current maritime boundaries which are quite large despite their lack of coastline mileage. A judicial ruling hopefully would be expedited a bit faster than the decade-long Nicaraguan claim, but this is certainly a better outcome for all parties than any sort of military conflict.
Conclusion: Bring Your Legal Pad
With these two territorial issues, we’ve seen some patterns:
- Territorial gains via military campaign or political instability
- Uncertain or disputed historical ownership
- American intervention has played a huge role: influencing Nicaragua’s signing of the Esguerra-Barcenas Treaty and in mediating Japan’s military acquisition in the post-WWII period
- The huge implications that these squabbles can have if left unresolved and the influence they have on future disputes.
It is certainly safe to say that the issue of countries shouting for control over slightly exposed, uninhabited rocks is not going away anytime soon.
Speaking of shouting…
In the Senkaku/Diaoyu squabble, nationalistic demonstrations and political stances have taken center stage from both China and Japan. Japan’s purchase of the final three Senkaku islands along with recently reelected Prime Minister Shinzo Abe visiting a WWII military shrine, have not only showed increased nationalism from Japan, but only inflamed feelings in China.
The politicization of the Diaoyu/Senkaku island dispute can only worry international bodies and the U.S. Further, the recent elections in Japan which have brought Mr. Abe back into power as the PM in the Diet (Japanese Parliament) has worried peace keepers and China that “China hawks” in power in Japan will not be good news for the island dispute. Meanwhile, the newly installed leader of the Communist Party, Xi Jinping, has made a clear appeal to popular nationalism through his effort to bring about the “revival of the Chinese nation.”
Making a ruling on the Diaoyu/Senkaku dispute won’t be easy, but it certainly would set a precedent. Perhaps this would set the table for a resolution for the more dangerous squabble in the South China Sea.
As more countries realize the economic and political potential of their coastal areas, the more disputes will likely surface. We can only hope that international law is respected and that they bring their legal pads.
Until my own EEZ is granted,
Your Faithful Historian,
Eric G. Prileson
Sources and Further Reads:
Overthrow! America’s Century of Regime Change, Stephen Kinzer