In the recent fishing dispute concerning the overlapping maritime claims of Taiwan and Japan near the Diaoyutais, is it true, as the media has suggested, that the government has made no effort to back up its claim to the islands? Have the Japanese really ridden roughshod over everyone as reported by the media and fishermen? Have the patrol vessels of the Coast Guard Administration (CGA) really turned against their own people?
I would like to present the following opinions, grounded in the international law of the sea, to provide information for my countrymen when pondering the present dispute.
First, does Japan despise Taiwan, and is it therefore bullying it?
In fact, since 2000, the Japanese government has detained more than 100 South Korean fishing vessels and 38 Chinese ones. But only 38 Taiwanese fishing boats were detained. Given that Taiwanese boats are more active in the disputed waters than boats of any other country, the relatively low number of Taiwanese boats detained indicates that the Japanese government has treated Taiwan with leniency.
Japan's leniency toward Taiwan is not limited to the number of maritime detentions and warnings issued. As far as enforcement measures are concerned, Japan has also been more restrained toward Taiwan than any other country. In recent years, Japan's expulsion of foreign fishing vessels from disputed waters has usually been carried out by armed vessels of Japan's Coast Guard Agency. But Taiwanese vessels have been escorted away by unarmed fishery administration vessels and officers of Japan's Department of Forestry and Fisheries.
Take the example of the South Korean vessel Sinpung-ho, which was chased from disputed waters 50km northeast of Japan's Tsushima islands by the Japanese coast guard's patrol vessel Tatsugumo at the end of last month. The chase continued until the vessels reached South Korea's exclusive economic zone, where the ships remained in a standoff. Wishing to detain the ship, five additional Japanese patrol vessels were called in to help resolve the stalemate.
Let's return the focus to the recent Taiwan-Japan fishing dispute. Although Japan's fishery administration vessels chased Taiwanese fishing boats from Japan's exclusive economic zone into an area claimed by Taiwan as its exclusive economic zone, Japan's patrol vessels left Taiwanese waters as demanded by the Taiwanese government after a brief standoff. Both countries showed restraint. Neither Japanese nor Taiwanese law enforcement agencies sought to intensify the dispute, and the matter was resolved in a swift and praiseworthy manner.
Another question: Has Taiwan's navy been cowardly by passing the buck to the CGA and putting them on the front lines?
It's been argued that maritime missions, such as protecting Taiwanese fishermen and advocating Taiwan's maritime rights, should be carried out by the navy because it has the strength to fight effectively. Thus, the government could show through a naval deployment its determination to safeguard the interests of Taiwanese fishermen. Based on international practice, this idea has merit.
But when examined in the context of recent disputes, other aspects of the issue should be taken into consideration.
For one thing, Taiwanese fishermen were confronted by Japan's unarmed fishery administration boats. The Taiwanese coast guard vessels dispatched to help protect Taiwanese fishermen and resolve the confrontation are classified as lightly armed vessels. This was deemed sufficient since Japan clearly had no intention of initiating a conflict. It was therefore unnecessary to confront them with a strong military threat, for this might force them to respond in a similar manner, which would be to nobody's benefit.
In the recent incident, from the standpoint of both government policy and the law, dispatching coast guard vessels was sufficient to demonstrate that the government was determined and prepared to defend its interests, without creating a military confrontation.
Why did the coast guard boats not protect Taiwanese fishing boats, but instead protected Japan's fishery administration boats?
In terms of the Taiwanese fishing boats' attempt to confront Japanese patrol boats, let us put aside the question of where such action puts Taiwan in relation to the international community. We should focus on the fact that the Japanese patrol boats acted with restraint and left the disputed waters. Perhaps Taiwan's fishermen acted to protect their livelihood, but let's not forget that if it came to conflict between the 100-tonne fishing boats and the 500-tonne patrol boats, the fishermen would certainly come out badly, in addition to harming the country's interests.
The government exists for its people, and has an obligation to protect them. Some fishermen may bear a grudge and question the government's decision to allow the Japanese boats to depart. It is up to the authorities to explain the situation to them.
Are talks on fishing rights between Taiwan and Japan stalled on the issue of the Diaoyutais?
Some say that the Diaoyutais dispute is the reason Taiwan and Japan have been unable to reach an agreement after 14 rounds of negotiations. This is also the prevailing view among some of Taiwan's fishery officials. But this is in fact a misunderstanding of the flexibility offered by international law and the practices of the international community.
In international practice and the law of the sea, territorial disputes alone would not block talks over fishery conservation and management. In this case, the Diaoyutais issue is not a factor that prevents the two countries from reaching a fishery management agreement, and it has never hindered such talks in the past.
Neither Taiwan nor Japan has, or will, make a concession regarding claims to the Diaoyutais. The two sides have made clear through different channels on different occasions that the Diaoyutais are an integral part of their territories.
Such unilateral statements are taken for granted in fishery management talks. But with the understanding that no immediate resolution will be found to such disputes, negotiations on maritime conservation and the sustainable use of resources can progress amicably. In other words, the premise for such talks is to first put aside territorial disputes.
Despite all the above, I have to admit that the tough attitude of the Japanese patrol boats in disputed waters is unacceptable. If the Japanese government does not exercise self-restraint, there is no reason for Taiwan's government to make unilateral concessions.
But such problems do not result from a single incident on a single day. If such routine arguments ever turn into a fierce political conflict, both sides will lose flexibility in negotiations.
Therefore, both Taiwan and Japan need to clarify their responsibilities and areas in an agreement on joint fishery management. Otherwise the friction between the two sides will only increase until the situation gets out of hand. By that time, not only fishermen but also the two governments will suffer. This is harmful for both Taiwan and Japan.
Chiang Huang-chih is an associate professor in the College of Law at National Taiwan University.
TRANSLATED BY LIN YA-TI AND EDDY CHANG
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