Ships of the Japan Maritime Self-Defense Force, and US and Indian naval ships. Photo: Reuters

As a member of the 1982 UN Convention on the Law of the Sea (UNCLOS), Japan spoke out against China's Note CML/63/2020 dated September 18, 2020 in response to notes from three European countries – the UK, France and Germany - sent to the Secretary-General of the United Nations on the dispute in the East Sea on September 16, 2020.

Different from the notes of three European countries that fully list the notes of China (No. CML/14/2019 dated 12/12/2019, No. CML/11/2020 on 23/3/2020, No. CML/42/2020 dated 17/4/2020, No. CML/46/2020 dated 2/6/2020, No. CML/48/2020 dated 18/6/2020, No. CML/54/2020 dated 29/7/2020, and No. CML/56/2020 dated 7/8/2020, as well as the Appendix to the Official Letter of 9/6/2020), the note of Japan only named the note CML/63/2020.

Does not accept China's argument

The note of Japan shows the disapproval of the Chinese arguments shown in the previous notes and is generally repeated in the note CML/63/2020. The note also affirmed Japan’s support for the point of view of European countries above. That is:

Considering UNCLOS to be universal and unified, establishing the legal framework for all activities carried out on sea and ocean.

The Permanent Court of Arbitration (PCA)'s ruling in 2016 is final and compulsory for the parties, the Philippines and China.

Freedom of the high seas must be respected.

The archipelagic baseline cannot be illegally applied to the offshore islands of the coastal state.

The note said: does not accept extensive activities to change the legal status of island features; and does not recognize historic rights in the East Sea that are inconsistent with the UNCLOS provisions.

In Note SC/21/002 dated January 19, 2021, Japan emphasized three issues: the use of archipelagic baselines, legal regulations of semi-submerged shoals and the maritime, and aviation freedom rights.

In its Note CML/63/2020, China argued that there is a long-established practice in international law regarding the offshore islands of mainland states and that such practice should be respected.

This is the reason to justify China's application of the archipelagic baseline that is only applied to the archipelagic states for Vietnam's Hoang Sa Archipelago (Paracel Islands) on June 15, 1996 and the Senkaku/Diaoyu Islands which is in dispute with Japan on September 10, 2012.

The Japanese note stated: "There is no room for a member state to justify the application of baselines that do not satisfy the provisions of UNCLOS."

The objections of the US, three European countries, Australia and Japan show that there is no national practice that allows the application of archipelagic baselines to the offshore island groups of mainland countries like China argued. The semi-submersible shoals in Truong Sa have no island status, or rocks, no territorial sea and national airspace.

Therefore, it is unacceptable for China to object to the passage of Japanese aircraft over the airspace over the Vanh Khan (Mischief Reef) and the attempt to limit the freedom of overflight in the East Sea.

This is the first time Japan has introduced concrete practice on restricting its freedom of overflight in the East Sea and this action can be construed as a response to any intention to establish an Air Defense Identification Area (ADIZ) in this waters.

The first Asian country outside of Southeast Asia raises its voice

Japan, the first Asian country outside of Southeast Asia, has spoken out for its own interests and coordinated with other countries to prevent excessive activities that threaten peace, stability and development in the region as well as the freedoms of high sea in the East Sea. Japan's Note contributes to accelerating the internationalization of the East Sea, which China does not want.

Japan issued the note at the time the US had a new government and Chinese Foreign Minister Wang Yi had just completed a visit to nine ASEAN countries. This partly shows the fierce competition of major countries for influence in this area.

It also represents Japan's efforts to strengthen relations with countries in the region in order to response to Chinese aggression in both the East Sea and East China Sea. It represents the policy pursued by Prime Minister Suga's administration against any action that escalates tensions in the East Sea.

Settlement of disputes in the East Sea or East China Sea cannot be based solely on the threat of using force, but on international law and peaceful measures.

Nguyen Hong Thao

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