The Senkaku Islands, Pt. I: UNCLOS, the EEZ, and the Conflict Between Land- and Sea-Based Sovereignty Regimes

In the East China Sea, north off the coast of Taiwan and south off the coast of Okinawa, there exists an island chain consisting of five small islets, and three smaller rocks. These islands — known as the Senkaku Islands in Japan, the Diaoyu Islands in China, and the Diaoyutai Islands by Taiwan — are the subject of a longstanding territorial dispute between those three states, and in recent months the dispute has become heated once again. military and diplomatic sparring over the islands has resumed once again.

China claims the islands are part of its sovereign territory, having been wrongfully stolen by Japanese military expansions in the late 19th century. Japan, in turn, claims that it is the rightful sovereign of the Senkakus, alleging that the islands were terra nullius until 1895, when Japan incorporated the islets by cabinet decision. Japan further asserts sovereign title to the islands owing to China’s failure to object to Japan’s claims of sovereignty for over seventy years, until China first raised a competing claim to the islands in 1970.

Not coincidentally, China’s first assertions of sovereignty over the Senkakus were made just one year after seismic surveys of the sea floor surrounding the islands had discovered the existence of significant oil and gas reserves. But while the discovery of natural resources in the East China Sea precipitated the ongoing territorial dispute between China and Japan, during this same time period there was another event occurring that would prove equally responsible: the development of modern international law of the sea. As result, the Senkaku Islands became a massively valuable commodity, and a previously dormant territorial dispute has become a flashpoint. Both Japan and China argue that, under international law, they are the rightful owners of the land.

The problem is, despite all the diplomatic strife and threats of military action, no one actually wants the Senkaku Islands.

And why would they? Seriously, look at these things:

Hardly anything there to speak of — and these are the three of the four biggest islets in the Senkaku Islands. In all, the island chain is nothing more than a barren 1,700 acres of sand, scrub, and rock. A few endangered moles live there, along with some feral goats, but the Senkakus are not suitable for human habitation. It is debatable whether any fresh water sources even exist on the islands, and previous attempts at establishing industry on Uotsuri, the largest islet, have all ended in failure.

The above-water portions of the Senkaku Islands are of negligible value. But the islands’ worthlessness is irrelevant to the intensity of the dispute over their ownership. China and Japan do not seek possession of the Senkakus because they wish to possess the islands, but because possession of the Senkakus is a mechanism for obtaining possession over the surrounding sea. In other words: possession of the Senkakus is a means, not an end.

In previous eras, when competing claims of sovereignty over a territory could not be determined by reference to either treaties or to customary international law, there did remain one additional mechanism that states could resort to for conclusively resolving the question of ownership. That particular mechanism, however, has now been expressly prohibited by Article 2 of the UN charter. With sovereignty-by-conquest no longer a sanctioned means of dispute resolution, and when the states involved in the dispute have no interest in submitting the matter to an adjudicative body, the result is an effective stalemate. In a fruitless attempt to resolve the conflict by reference to international law, Japan and China have now been reduced to squabbling over ancient maps and conflicting historical accounts.

This is the current status of the Senkaku Islands, and of numerous other disputed island territories off the coast of China and Japan. Japan and China can each point to various 19th century maps or little-noticed governmental decrees to bolster their claims of sovereignty. But based on the existing historical record concerning the occupation and use of the Senkaku Islands, neither China nor Japan can convincingly demonstrate a superior claim.

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Trades on the Sovereignty Market: Serbia Gives Iraq Weapons in Exchange For Non-Recognition of Kosovo

The rise of the relative importance of soft power in international relations has had an unintended consequence on international law: the creation of a sovereignty market.

The sovereignty market involves an international exchange of aid in return for recognition of an entity’s claims for statehood. This trading is sometimes carried out in a very blatant fashion, as was the case in Abkhazia’s outright purchase of Nauru’s recognition. More commonly, though, they are done in a more subtle fashion, with both the aid and the declarations of recognition done behind the disguise of normal diplomatic relations.

The latest swap on the sovereignty market’s trade floor is between Serbia and Iraq. It’s a reverse sovereignty swap, though, in that Serbia is not seeking recognitions of itself — it’s claims to statehood are secure — but rather it is seeking non-recognition of Kosovo. Kosovo’s claims to statehood have steadily grown, and although the recent ICJ opinion on the legality of its declaration of independence was somewhat ambivalent, with 69 out of 192 nations recognizing its sovereignty, Kosovo is well on the path to statehood.

To battle the rising recognition of Kosovo, Serbia is attempting to woo other nations into agreeing to non-recognition. However, because the importance of any state’s decision to recognize or not recognize is decreased where ulterior motives for the decision exist, Serbia has to be subtle about it. In the case of Iraq, the purchase of Iraq’s non-recognition of Kosovo has been disguised behind flowery declarations of long-standing friendship, and, oh, by the way, we’ve just given them three fighter jets:

The [Serbian] Ministry of Defence said that Iraq did not recognise the unilaterally proclaimed independence of Kosovo, and added that that Iraq’s support to the sovereignty and territorial integrity of Serbia was confirmed.

Sutanovac highlighted that Serbia and Iraq have a long tradition of having a good, quality, partnership and friendly relations, adding that the two countries have common views on Kosovo-Metohija.

The Defence Minister stressed that the government of Iraq intends to purchase weapons and equipment in Serbia, and added that he spoke with the Prime Minister of Iraq about cooperation in the field of the military industry, after yesterday’s delivery of three aircraft.

He declared that the Iraqi side is very satisfied with the fulfilment of deadlines and quality standards.

Sutanovac affirmed that Iraq wants to engage Serbia in the reconstruction of an air base, building a military hospital and for the supply of ammunition of all calibres.

-Susan

[Edit: Another interesting angle that just occurred to me is the political-religious intersection at work here. Kosovo is, of course, an overwhelmingly Muslim state*, while Serbia is not. It might seem odd that Iraq is willing to barter its non-recognition of a Muslim nation in return for military goods, but I wonder if this trade reflects a more different political divide at play: while Kosovo's population is largely Sunni, Iraq's government is now Shia and has been since the overthrow of Saddam. Conflict between Iraq's majority Shia population and its minority (but still substantial) Sunni population plays a huge role in Iraqi domestic politics, and non-recognition of Sunni Kosovo may have been both a bid for Serbian aid and a way for the Shia government to give the Sunni factions in Iraq a poke in the eye.]

* Yes, LL2 (or at least the Susan-half of it) does extend its diplomatic recognition to the state of Kosovo.

A Nation’s HTML Source Code Doesn’t Lie — North Korea is STRONG

When I decided that, henceforth, sovereignty was to be determined through the Website Theory of Statehood, whether or not an entity qualified as a state was based upon the visual appearance of the would-be state’s online presence. Perhaps, though, the theory should be expanded to take a state website’s source code into consideration.

Case in point, North Korea. From The Daily WTF, check out the website coding behind North Korea’s homepage:

If North Korea throws in just a couple more <STRONG> tags, it will surely reach global super power status. Dear Leader is an Internet Genius.

-Susan

Sorry, Wirtland, You’re Not a Sovereign– Try Again In A Couple Centuries or So, Maybe Custom Will Have Changed Enough By Then

A few days ago, I got a comment on my post about Nauru’s recognition of Abkhazia. It linked to the blog for the Sovereign Cybernation of Wirtland:

According to official press release, Wirtland approached the government of Nauru with a formal proposal to transfer a piece of its territory to Wirtland. Nauru, one of world’s smallest island nations situated in the South Pacific, has vast barren terrain left over after several decades of phosphates mining. “Proposal for Monetization of Unused Land by cooperation between Republic of Nauru and Wirtland” is intended to utilize a piece of Nauru’s barren terrain. According to the Proposal, “Republic of Nauru officially assigns a piece of its territory, of any quality and size, to Wirtland. Nauru will have a major stake in future sales of land from this territory, agreed in contract”. In his letter addressed to the President of the Republic of Nauru, Chancellor of Wirtland underlined his hope that “such a plan, if realized, will make a positive effect on the economy of Nauru”.

How intriguing. Looks like someone is trying to implement my “buy a sandbar, become a nation!” idea. And if you’re interested in becoming a part of this burgeoning new developing country, you can of course get your citizenship application here. [PDF]

It’s almost too bad the scheme could never work. But Wirtland does get points both for creativity and for dreaming large.

Still, I’m a bit unclear as to how Wirtland plans exactly to carry out its ambitious national goals, given its limited “citizenship” base and non-existent power of taxation:

Wirtland aims to become economically self-sustaining. Wirtland builds communities, which will offer political and economic benefits, generate employment opportunities, provide new sources of artistic creativity and independent opinion-sharing.

To take Wirtland seriously for a moment, what happens if Nauru agrees to the deal they’re offering? Don’t say it won’t, if anyone will go along with the Wirtland scheme, it’s Nauru — they’ve already made clear their recognition goes to the highest bidder, and Nauru’s state recognition powers are arguably far more valuable than are the bleached and stripped patches of land in question. I’d say it’s extremely unlikely, given Wirtland’s limited financial resources, and the fact that Nauru’s recognition normally comes with a multi-million dollar price tag, but I’ll concede the idea is at least plausible.

So Nauru agrees. Now what? Wirtland has “land”, but not permanent population, no government with control over the territory, no capacity to enter into foreign relations, and (unless they convince Nauru to toss it in to sweeten the deal) no recognition. (Although I’m sure Wirtland would counter by pointing out that that they so can too enter into international relations. See, just check out their press release on the Georgia-Russia conflict! That’s totally a capacity to engage in foreign diplomacy!)

But private entities purchase land all the time, and don’t thereby become “sovereign” under international law due to their ownership. Even if Nauru bizarrely agreed to cede all rights and ability to control the land (which is unlikely), that would not necessarily change Nauru’s status as sovereign over it. Guantanamo Bay, for instance, is rented by and occupied by the United States, but formally, the area is still a part of Cuba’s sovereign territory.

In the event of Nauru ceding land to Wirtland, the most likely result is that the rest of the world simply continues to treat the “Wirtland” territory as Nauruan sovereign soil, and completely fails to acknowledge the existence of any entity calling itself Wirtland. As a practical matter, the issue is probably moot, as it’s not as if anyone else in the world is remotely interested in that particular piece of Nauruan real estate. So there will be no invasions or occupations or other scenarios which might present a legal challenge to the national character of the land, and so no reason for the precise legal status of the phosphate mines to be determined. But under international law, it is about as close to black letter law as you can get that the territory will not be considered Wirtland sovereign soil.

This would be due in part to the fact that Wirtland does not meet any of the other indicia of statehood. But, mostly, it would be due to the fact no other State on earth would give Wirtland recognition. The idea is just too preposterous, too cognitively jarring, for enough people all over the world to simply begin believing in the communal fiction of its statehood — and furthermore, Wirtland is too small to be a potential political benefit or a potential threat to other States, so Wirtland has no hope of short circuiting the normal process of recognition by bullying its way into statehood either.

Not to mention, under the Website Theory of Statehood, the most Serious and Authoritative barometer of statehood ever invented, Wirtland does not really present a strong case for sovereignty. Wirtland’s website only rates somewhere in the middle of the pack. Which sounds all right, until you consider that, as a “cybercountry,” really it should be held to a much higher standard with regards to its online presence than are the rest of the world’s currently unrecognized sovereigns.

-Susan

How Exactly Did The U.S. Come to Be In Charge of the Port-au-Prince Airport, Anyway?

Hundreds of media articles covering the ongoing events in Haiti report that the U.S. has “taken over”or is “running” the airport in Port-au-Prince. This has, predictably, already caused conflict with other States regarding the coordination of relief efforts, with France in particular criticizing U.S. administration of the airport.

What I cannot find, however, is any explanation of what the nature of the U.S. authority over the airport is and how it came to be. Did the Haitian government — which has taken no official action that I am aware of since the earthquake happened (and weren’t making that many before the earthquake either, for that matter) — come together long enough to authorize a U.S. administration of the airport? Is the U.S. simply in charge of the flight schedules, or is it literally in charge of the entire airport area?

I am beginning to suspect that the United States simply showed up first and announced it was in charge of the airport, and then because no one objected to this claim too loudly, it became a self-fulfilling declaration.

This article from the American Forces Press Service seems to suggest that is exactly what happened:

In his update, Elton underscored the speed with which Air Force personnel began operations after landing at the badly damaged airport around 7 p.m. on Jan. 13.

“Within 28 minutes of landing our first aircraft, we had special tactics combat control teams controlling the airspace around the airfield, and sequencing in the arriving aircraft that night,” he said.

That the United States simply seized control over the airport is not necessarily a bad thing, at all — someone needed to take point on the situation, and because the U.S. is the closest major power, it is the obvious choice — but it also raises a lot of thorny jurisdictional questions.

A quote from this article seems to suggest a possible legal source of authority, however:

Tucked between Port-au-Prince airport and the giant UN compound is a one-storey building with no security or reliable communications and only two small suites of grubby offices.

Before the earthquake hit, this was the headquarters of Haiti’s judicial police. It is now the seat of the Haitian Government and the office of President Préval, but it is seldom occupied, has no reception staff and people peer through the windows.

Hillary Clinton, the US Secretary of State, insisted yesterday that [President] Préval remained in full charge of both Haiti and the aid effort that is still failing to reach those who need it most. Mr Préval himself declares that he is in charge of events and the UN says that it directs rescue teams and distributes aid according to information received from his administration.

The idea that President Préval is currently exercising any significant government control right now is not credible. However, from a legal standpoint, it is in the best interest of the U.S. and the UN insist that yes, Préval is in charge, and yes, he has authorized various foreign and international entities to exercise jurisdiction over parts of Haiti. It clears up a lot of very messy legal problems that would otherwise exist, even if, in reality, the authority for the intervention comes ex post from a man sitting in a shack who has absolutely zero real power to exercise any control over Haiti.

-Susan

Update: As soon as I put up this post, I stumbled across a better explanation how the U.S. presence is being justified under international law. Note that the following was issued just this weekend — a full four days after the U.S. took control over the airport.

A joint statement Saturday from the Haitian president and U.S. Secretary of State Hillary Clinton referred to an expanded U.S. security role.

“President Préval, on behalf of the Government and people of Haiti, welcomes as essential the efforts in Haiti by the government and people of the United States to support the immediate recovery, stability and long-term rebuilding of Haiti and requests the United States to assist as needed in augmenting security in support of the government and people of Haiti and the United Nations, international partners and organizations on the ground,” the document reads.

How much do you want to bet that the statement in question was a legal formality, drafted by some State Department lawyers and handed over for Préval to rubber stamp? Shoot, I’d probably even take a bet that Préval never actually read the document.

The Website Theory of Statehood

Although the definition of statehood under international law has not been definitively resolved, traditionally, per the Montevideo Convention, “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” In addition, recognition of a state by other states arguably plays a more important role in the statehood process.

However, I would like to propose a new criteria by which the claims of would-be sovereigns can be evaluated. In today’s world, e-governance is rampant. Politicians stay in contact with their constituents via their homepages, agencies administer regulations online, and court filings can be done with the click of a mouse. So whether or not an autonomous region has a permanent, defined web presence that has the capacity to assist its governmental activities is a vital consideration when examining claims of statehood. So, using the Website Theory of Statehood, how do existing unrecognized states stack up?

Taiwan: Taiwan’s somewhat unique status in the “Is it or is it not a state?” debate makes it a good starting place to test the theory. Taiwan’s pseudo-official statehood is reflected in the fact that it has its own country code top-level domain, of .tw. However, ccTLD’s are poor indicia of statehood in themselves; they are distributed by ICANN, and substate regions can also be issued them, such as Jersey’s .je and the Virgin Island’s .vi.

Still, Taiwan starts off on a good note by displaying two strong hallmarks of internet statehood — numerous web domains for each different branch of government and the use of the .gov subdomain for its various state webpages. For instance, the president is located at http://www.president.gov.tw/en/, while the National Assembly is at http://www.na.gov.tw/en/index-en.jsp. (Bonus Trivia Fact from the president’s web page: What do the U.S. and Taiwan have in common? Both out presidents have law degrees from Harvard.)

None of the websites of the various Taiwanese government branches get particularly high marks for style, but they aren’t offensively ugly at least, and they amply satisfy all requirements for accessibility and content.

Verdict: Although Taiwan may not be a recognized sovereign under international law, it is a thriving Internet State.

Somaliland: Although Somaliland’s website is not nearly as sophisticated as the Transitional Federal Government of Somalia’s, Somaliland gets credit for the fact it actually operates from within its own territory. The prominently placed waving Somaliland flag image is annoying, but by itself, not particularly offensive. All in all, in terms of web design, it’s about on the level of a page created by a marginally talented middle school student.

Of course, the webmaster’s yahoo email address is a significant mark against a finding of web sovereignty. And although the fact it maintains a separate website for its Upper Parliament might have won it back some points, as the website does not appear to have been updated at any point in the past three years, it’s really more of a net loss.

Interestingly, the neighboring autonomous state of Puntland has a much more sophisticated web presence, although it is not seeking sovereignty but rather continues to maintain it is a part of Somalia. Aside from the annoying page intro, Puntland’s website is respectable and decent looking. It actually reminds me of the websites of several county governments from my home state of Georgia: clearly governmental in nature and reasonably active, but still small-time government.

Verdict: Not a state, but I’ll give them a solid E for Effort. Somaliland ought to seek advice from Puntland on how to manage its e-statehood.

Kosovo: The websites for the various government branches of Kosovo are all clean, sharp, and authoritative, with a faint air of bureaucratic staleness. In other words, they look exactly like what you would expect for a sovereign state government’s website.

Meanwhile, the website for the Serbian Government of Kosovo is, while passable, somewhat clunkier. More importantly, the dismal imagery and content of the site is all extremely negative in tone, focusing on pictures of bombed out buildings and emphasizing the fear, instability, and chaos of the region.

The contrast between the two certainly weighs in Kosovo’s favor. Kosovo’s website is professional and businesslike, and gives the impression that it is the model of responsive and diligent governance. In direct opposition to this is the Serbian website, which stresses its inability to control the region and is primarily concerned with advancing a political agenda rather than engaging in ah actual governmental capacity.

Verdict: Although the facts on the ground may be drastically different, in terms of its website, Kosovo qualifies for Virtual Statehood.

Cabinda: The wannabe sovereign territory of Cabinda, located in Angola, is a classic example of the self-deluded unrecognized state. Cabinda’s inability to exercise sovereign governmental control over the region is rivaled only by its complete incompetence at web design. Tiled backgrounds, flying bird gifs, scrolling text, spinning “email” icon, images unapologetically created by MS Paint? My god. I’d call this a sad excuse for a geocities webpage, but that would be a gross insult to Geocities webpages everywhere — Cabinda hasn’t even yet progressed past the Angelfire-level of web design.

Verdict: Does not meet even the most minimal of qualifications for Internet Statehood.

Western Sahara: The proclaimed government of Western Sahara has no access to a ccTLD, but .eh has been specifically reserved for the nation once it manages to obtain a unified voice. In 2007, the Sahrawi Arab Democratic Republic, the government that claims to speak for the sovereign territory of Western Sahara, tried to lay claim to the domain, but Morocco objected. As a result, ICANN refused to release .eh, stating that because of competing claims,

ICANN does not see a way to approve the .EH ccTLD delegation to one of the applicants without violating its long-standing policy unless the contesting parties are able to reach an agreement.

The Sahrawi Arab Democratic Republic still has a website, however: http://www.rasd-state.ws/

Note the .ws in the domain name. Now that’s actually a rather clever bit of statehood marketing right there. The .ws ccTLD is in fact registered to Samoa, although the Sahrawi Arab Democratic Republic is cleverly passing off the “ws” as standing for Western Sahara. Who needs .eh, the intended ccTLD for the nation you claim control over, when your Samoan buddies will lend you a domain name that sounds like it was actually meant for you?

Sadly, the website is in Arabic, which I don’t actually speak. The page gets medium marks: although it is simple, it manages to avoid being hideous, and I am reasonably confident that if I could read Arabic the site would be easily navigable. However, judging by the page URL’s (in Spanish, which I can pretend to read), the website does not provide anything in the way of government services, which is a mark against it. However, there do appear to be “official government documents” in PDF form, which gives it a little cred.

Verdict: Although Western Sahara’s separatist government displays some promising signs of Virtual Statehood, they are still a fair distance away from achieving internet sovereignty.

Abkhazia and South Ossetia: Aesthetically speaking, South Ossetia’s webpage is my favorite of all the unrecognized states’. It is official looking and professional in appearance, and yet still manages to be friendly and pleasantly warm and inviting. You’d totally want to vacation in a country with a website like that — they seem like such nice people. Also, it’s got snow leopards.

Abkhazia’s website is slightly more severe in appearance, comes across as a no-nonsense kind of nation, and may or may not have been a law firm before it decided to declare itself state. The blue-grey color scheme? The overlapping boxes lay out? That is seriously every D.C. small-to-medium sized law firm homepage ever.

Tellingly, however, both Abkhazia and South Ossetia lack their own ccTLD, do not have separate web pages for different branches of government, and do not employ the use of.gov subdomains.

But this doesn’t rule them out entirely. One major point in the break-away regions’ favor is that their websites far outclass Georgia’s websites for the region. Just take a look at Georgia’s Abkhazia homepage: http://www.abkhazia.gov.ge/. It is ugly, slow to load, and contains graphics that appear to have been created by the same MS Paint artist that provided the images for Cabinda. Most of the English language pages are labeled “under construction,” and I’m honestly surprised they didn’t also include those little animated gifs of smileys wearing hard hats to show that. South Ossetia doesn’t even appear to have a .ge website that I could find, perhaps because Georgia revoked South Ossetia’s autonomy? At any rate, not having a web presence for it at all is a dismal way of showing your Internet Sovereignty over a region, Georgia.

Verdict for Abkhazia and South Ossetia: Have not yet achieved Internet Statehood, but are clearly serious contenders for the title. Recommend that Georgia take immediate steps to overhaul its own websites for the regions in order to firmly establish its claims of sovereignty.

Nagorono-Karabkh Republic: The website for the Nagorno-Karabkh Republic contains flashing banners and animated .gif files. This is an instant disqualification for statehood.

Verdict: Not a state. True sovereigns avoid anything that might induce epilepsy in their web visitors.

North Korea: Under International Law, North Korea is a recognized nation. However, under the new Website Theory of Statehood, North Korea should be considered a failed state. This may sound harsh, but given that the Admin of the website acknowledges that there is no internet access in North Korea and that no one in North Korea can actually see their own website, and that therefore the only people who use it are foreign North Korea enthusiasts, http://www.korea-dpr.com actually has more in common with a Beanie Babies fansite than it does a government webpage.

Although the website does at least exist and is moderately functional, it appears that a 13 year old goth boy was hired to design it. Sadly, the forum that was once featured on the site has since been removed. Apparently a web forum was too democratic for North Korea, as the old forum was replaced by a blog, which announced the change by stating: “Today we launch the new KFA Forum, which will mainly be driven by a few select moderators. Of course, everyone can still contribute with their thoughts, ideas, articles, etc, but we’ll be sure to have much more quality content for you.” In other words, the proletarians were not generating enough ‘quality content,’ so a more restrictive approach was adopted for their own good.

Notable features of the site include a FAQ, with helpful answers to questions such as, “Is North Korea a Dictatorship?”, “Is it true everyone in North Korea is starving?”, and “How can I join the North Korean army?”

Verdict: Not a state. I don’t care if the United Nations recognizes North Korea; when Transnistria, Puntland, and Nagorno-Karabkh have better web presences than you do, your statehood is officially revoked.

-Susan