On Owning the Seas: Japanese Exclusive Economic Zones and Fisheries Management

By Tyler Armstrong

For nearly four decades, signatories of the United Nations Convention on the Law of the Sea have voluntarily subjected themselves to certain geographical and administrative limitations regarding ownership of the seas.[1] The convention came into existence after several hundred years of particularly limited rights, extending just narrowly along the nations’ shorelines.[2] While non-landlocked countries enjoyed sovereign access to these shorelines, “the remainder of the seas was proclaimed to be free to all and belonged to none.”[3] As one may imagine, several claims for natural resources in certain areas became problematic as overcrowding and demand by several nations led to fear of depletion and pollution.[4] The island nation of Japan has recently experienced a significant overstep by Chinese fishing vessels that have wandered into Japan’s Exclusive Economic Zone, believed to be laying claim to fish within Japan’s jurisdiction.[5]

The United States was the first key player in the shift toward an extension to sovereignty over offshore resources when President Harry Truman extended a national claim over the nation’s continental shelf.[6] It was not long until other nations followed suit, oil exploration and commercial fishing being the areas of consistent demand.[7] Late in 1967, Ambassador Arvid Pardo of Malta delivered a moving speech on the UN floor, calling for an improved regime which would protect the ocean and its abundant resources while at the same time respecting the sovereignty and explorative desires of the nations.[8] The speech led to the passing and ratification of the Convention on the Law of the Seas by more than one hundred countries, providing for increased oversight for “navigational rights, territorial sea limits, economic jurisdiction, legal status of resources on the seabed beyond the limits of national jurisdiction, passage of ships through narrow straights, conservation and management of living marine environment, a marine research regime and . . . a binding procedure for settlement of disputes between [nations].”[9] Noted as “one of the most revolutionary features of the Convention,” the creation of Exclusive Economic Zones (“EEZs”) permits coastal nations to “exploit, develop, manage and conserve” natural resources such as fish, oil, gravel, gas found in the water and both on – and underneath – the ocean, extending two hundred miles from the shore.[10] Such rights to coastal nations extend only to the resources within and beneath the ocean, yet does not limit navigation or overflight.[11] This is different than the maritime rules protecting territorial seas, however, where nations are able to control innocent passage and aircraft flyover.[12]

The Yamatotai fishing grounds in the center of the Sea of Japan, aggressively claimed by Japan, are particularly controversial in terms of ownership, and have been extensively patrolled and enforced by Japanese fisheries agents.[13] This particular zone is considered especially important since it is a “treasure trove of ‘surumeika’ Japanese flying squid and crab hauls.”[14] In 2019, Japanese officials ordered approximately 4,000 North Korean fishing vessels to leave the Yamatotai grounds, and, as of late October 2020, only one had been ordered to leave.[15] Just as North Korean vessels decreased in Japan’s EEZ, Chinese fishing boats picked up the slack, amounting to just under 3,000 that Japanese fisheries agents ordered to leave the waters in 2020.[16] Regardless of the country infringing upon Japanese EEZ boundaries, there is a need for the Japanese government to engage in stricter enforcement action against all boats conducting illegal fishing expeditions within all EEZ regions, for the sake of consistency and to provide economic predictability and resource management for Japanese fishermen.[17]

While enforcement mechanisms exist in the forms of permission to board, inspect, arrest, and subject persons to judicial proceedings, the Japanese government seems hesitant to do much more than order illegal fishing vessels to leave the area.[18] In order to take full advantage of the U.N. Convention and to fulfill its goals of protecting natural resources internationally recognized as belonging to the Japanese people, the Japanese government should increase its enforcement efforts via the Coast Guard and Fisheries Agencies by boarding these foreign vessels and subjecting infiltrators to judicial hearings. Beyond this, the Japanese also have the ability to engage in diplomatic discussions with North Korea and China in order to settle any disputes relating to Japan’s sovereign control of the resources within its Exclusive Economic Zones. Of course, one of the major tipping points of such proposed diplomatic process is the fact that multiple countries claim some of the islands granting increased EEZ access.[19] Located just north-east of Taiwan, the Senkaku Diaoyu Islands, comprising a total area of just seven square miles, are claimed by both Japan and China.[20] The result is an enforcement battle where the Japanese Coast Guard consistently fights to both keep fishing vessels from looting Japanese marine life within the 200 mile EEZ and to keep Chinese ships out of the twelve-nautical-mile Territorial Sea around the Senkaku Islands altogether.[21]  The inverse is also true. From China’s perspective, Japan’s interference should be acknowledged as “an obstruction of China’s jurisdictional rights” over its EEZ.[22] Japan’s stance is that there is absolutely no question about the territorial sovereignty of the Senkaku Islands; international reality seems to contradict the sentiment.[23]

[1] See generally United Nations Convention on the Law of the Sea, 10 December 1982, available at https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

[2] The United Nations Convention on the Law of the Sea (A Historical Perspective), 1998, available at https://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm.

[3] Id.

[4] Id.

[5] Asahi Shimbun, Chinese Fishing Boats Swarming into Japan’s EEZ Fishing Ground, The Asahi Shimbun (Oct. 21, 2020), https://www.asahi.com/ajw/articles/13856515.

[6] The United Nations Convention on the Law of the Sea (A Historical Perspective), supra note 7.

[7] Id.

[8] See id.

[9] Id.

[10] See id.; see also Law of the Sea: A Policy Primer, Chapter 2: Maritime Zones, The Fletcher School at Truft’s University, available at https://sites.tufts.edu/lawofthesea/chapter-two/ (last visited Sept. 2, 2021).

[11] Law of the Sea: A Policy Primer, supra note 14.

[12] Id.

[13] Asahi Shimbun, supra note 10.

[14] Id.

[15] Id.

[16] Id.

[17] Daily NK, Japanese Fisherman Call for Stronger Measures Against Illegal North Korean Fishing Vessels, Daily NK (Oct. 5, 2018), https://www.dailynk.com/english/37941-2/.

[18] See id.; see also Valentin J. Schatz, Combating Illegal Fishing in the Exclusive Economic Zone- Flag State Obligations in the Context of the Primary Responsibility of the Coastal State, 7 Goettingen J. Int’l Law 2, 383 – 414 (2016), https://www.gojil.eu/issues/72/72_article_schatz.pdf.

[19] Miyoshi Masahiro, Exercising Enforcement Jurisdiction Around the Senkaku Islands, Sasakawa Peace Foundation (Oct. 17, 2014), https://www.spf.org/islandstudies/research/a00013.html.

[20] BBC News, How Uninhabited Islands Soured China-Japan Ties, BBC (Nov. 10, 2014), https://www.bbc.com/news/world-asia-pacific-11341139.

[21] Masahiro, supra note 19.

[22] Id.

[23] Ministry of Foreign Affairs of Japan, Japanese Territory: Senkaku Islands, Question 1, available at https://www.mofa.go.jp/region/asia-paci/senkaku/qa_1010.html#q1.