China‟s increasing demand for oil in the recent years and Japan‟s perennial heavy dependence on imported oil drive the two countries to explore for sources of oil supply, and the potential oil deposits in the East China Sea has emerged as a desired source.508 However, there is presently a great difficulty in any attempt to develop the potential oil deposits in the East China Sea. This is due to the fact that the boundary lines between the
506Ibid.
507Ibid.
508M. Masahiro, Law of the Sea Issues and the Prospects for Joint Development (Japan: Aichi University Press, 2012) 1.
196 continental shelf areas appertaining to the two countries remain undefined as a result of the conflicting territorial claims to the Senkaku Islands around which the potentially oil rich sea area lies. So, the overlapping claims of China and Japan over the East China Sea present another good example of divergent State interest in the sea, worthy of mention in this research work.
Basically, jurisdiction over a sea area derives from sovereignty over the land territory facing it. The point of departure in discussing offshore oil exploration or exploitation is who owns a given land territory facing the sea, whether it is a continent or an island.509 Only when the answer to such question became clear as to who owns the land territory, will it become possible to delimit the sea area adjacent to it. Research reveals that Japan had had sovereignty over the SenkakuIslands over a long period of time before China began to assert its sovereignty over them in the early 1970s.510 The Japanese Government has argued through it officers that Japan has maintained its undisputed sovereignty over the islands for so long a period that there is no territorial dispute with China over the islands.
A series of geological surveys conducted in the Yellow and East China Seas under the auspices of the Committee for Co-ordination of Joint Prospecting for Mineral Resources in Asia Offshore Areas (CCOP) of the United Nations Economic Commission for Asia and the Far East (ECAFE) in October - November, 1968 reportedly showed promising signs of oil reserves in the sea areas around the Senkaku Islands. Spurred by the finding of this research, South Korea began to lease Sea-bed areas for exploration in the north-eastern part of the East China Sea which overlapped some Japanese oil
509Ibid.
510Ibid, p.2.
197 Company‟s interests.511 When Japan and South Korea, together with Taiwan were negotiating as to how the maritime boundaries should be delimited in the East China Sea, involving the overlapping claim areas, China made its first official protest in its morning radio broadcast on 4 December 1970. In February 1971 China repeated its protest during which it called for the Japanese-Chinese “Memorandum of Understanding” trade negotiations. It made a further protest on 30 December 1971 where it published a number of historical or legal grounds for its claim to the SenkakuIslands. In its claim to the islands, China postulates the following historical grounds: first, the Ryukyu kingdom (now Okinawa) had tributary relations with China from the 14th to the mid-19th century, and China sent investiture missions to Ryukyu to legitimize new kings some twenty times during the period in question. These missions used the Senkaku Islands as navigational aids and some of their reports referred to the Islands by that name;secondly, in the mid-16th century, the Ming dynasty established a coastal defence system against the then active Japanese pirates or smugglers (Wakoin Japanese). The documents and maps concerning this system included the Senkaku Islands within the coastal defense area of China; thirdly, fishermen from China
fished in the Sea areas surrounding the Islands from ancient times and used them for shelter in bad weather; and fourthly, Empress Dowager TsuHsi issued an imperial edict in 1893 to award three of the islands to a person for collecting medical plants there.512
The Japanese position is, by contrast, based more on the modern rules of international law on the acquisition of territory, although it does not altogether deny the relevance of historical grounds.
511Ibid.
512M. Yoshiro, „International Law of Territorial Acquisition and the Dispute over the Senkaku(Diaoyu) Islands‟ (1997) 4 Japanese Annual of International law, 11.
198 6.2.6 The Maritime Boundary Dispute between Cameroon and Nigeria513
Nigeria and Cameroon are adjacent States, with a land border that stretches to the sea in the South on the Gulf of Guinea. The two countries formerly had some dispute over the area of the sea beyond the limits of their respective territorial seas. They had divergent claims as to the extent of each State‟s jurisdiction over the exclusive economic zone and continental shelves respectively.
Both countries decided to submit this dispute to the International Court of Justice for peaceful determination. In their pleadings, both States asked the Court inter alia, to delimit a “single maritime boundary” beyond the limits of territorial sea that would divide both the continental shelves and exclusive economic zone of the two States. The Court, while entertaining the suit stated that both Nigeria and Cameroon were parties to the United Nations Convention on the Law of the Sea, 1982. Accordingly, the relevant provisions of the Convention were applicable to the dispute between them particularly, Articles 74 and 83 thereof, which concern delimitation of the continental shelf and the exclusive economic zone between States with opposite or adjacent coasts.514 While reacting to the written pleadings by both countries, which prayed the Court and requested that, the delimitation of the maritime areas should be effected by a single line,the Court had an occasion to recall its earlier judgment in a similar case concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain515where it stated that:
513Cameroon v. Nigeria (October 10 2002) ICJ Reports. General List N0. 94.
514Para.1 of those Articles provides that such delimitation must be effected in such a way as to “achieve an equitable solution”.
515(2001)ICJ Rep. para. 173.
199 The concept of a single maritime boundary does not
stem from multilateral treaty law but from State practice, and … finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various-partiallycoincident-zones of maritime jurisdiction appertaining to them….
The Chamber formed by the Court in the maritime dispute between Canada and the United States (Delimitation of the Maritime Boundary in the Gulf of Maine Area)516 noted that the determination of such a line “can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of the zones to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them”.
The ICJ noted while deciding this case that the geographical configuration of the maritime areas that the Court was called upon to delimit was a given one. According to the Court, it was not an element open to modification by the Court but a fact on the basis of which the Court must effect delimitation. According to the Court, although certain geographical peculiarities of maritime areas to be delimited may be taken into account by the Court, this is solely as relevant circumstances, for the purpose, if necessary, of adjusting or shifting the provisional delimitation line.517
The Court held that it did not deny the submission by Cameroon that the concavity of the coast line may be a circumstance relevant to the delimitation, as was
516(1984)ICJ Reports, para.194.
517Cameroon v. Nigeria, supra. 295.