Taipei-Tokyo Fisheries Agreement: A Raw Deal

Taipei-Tokyo Fisheries Agreement: A Raw Deal
China Times editorial (Taipei, Taiwan, ROC)
A Translation
May 6, 2013

Summary: On November 5 last year, this paper published an editorial. We observed that Japan denies the existence of any sovereignty disputes. Yet our side prattles on about "shelving disputes," about "consultations," and about "joint development," including "fishing rights negotiations." Our side is essentially selling out the territorial sovereignty of the Republic of China, for nothing more than superficial, temporary, fishing rights without assurances. In addition to forfeiting sovereignty over the Diaoyutai Islands in perpetuity, we could well lose any fishing rights as well. The real beneficiary of these "fishing rights" negotiations is Japan, which has taken advantage of internal strife within China for over a century. For Taiwanese fishermen, for the Kuomintang government, and for the Chinese people as a whole, the fisheries agreement is a raw deal.

Full Text below:

Between August 1996 and February 2009, Taipei and Tokyo engaged in 16 negotiations over fishing rights in the East China Sea ""exclusive economic zone," all to no avail. The key was sovereignty over the Diaoyutai Islands. In September of last year, the Japanese government "nationalized" the Diaoyutai Islands. This provoked a new round of sovereignty disputes. Unexpectedly, Beijing adhered firmly to its position, refusing to yield even an inch. Tokyo found itself riding a tiger, unable to dismount. Therefore it resorted to an old trick. It drove a wedge between Taipei and Beijing. . As a result, the Taipei-Tokyo fishing rights negotiations, stalled for three years, suddenly moved ahead by leaps and bounds, and yielded "instantaneous" results. On the 10th of last month the two sides signed a "Taiwan-Japan Fisheries Agreement."

On the surface, an imperious Japan finally "made concessions." It relinquished its claim to the "exclusive economic zone," per international law. It agreed to cease driving out or harassing Taiwan fishing vessels from nearly 80,000 square kilometers of ocean area. The agreement includes a provision for our side to exercise temporary jurisdiction over approximately 4530 square kilometers of ocean. President Ma and the Ministry of Foreign Affairs have repeatedly emphasized that Article Four of the agreement includes a "disclaimer." The disclaimer, they assure us, protects our claims of sovereignty, and "does not trade sovereignty for fishing rights." The agreement is trumpeted as the successful culmination of Ma Ying-jeou's "East China Sea Peace Initiative." It is purportedly a masterpiece that embodies his four principles: "preservation of sovereignty, shelving of disputes, peace and mutually beneficial exchanges, and joint development."

But the "exclusive economic zone" is an extension of "territorial waters." The baselines for territorial waters are determined by land territory. Diaoyutai sovereignty is the ultimate determinant of the "exclusive economic zone." Everyone knows this. During the recent round of negotiations, the Japanese side viewed the dispute, from beginning to end, as one over Diaoyutai Islands sovereignty. The Taiwan side may unilaterally refrain from asserting territorial sovereignty. In exchange, it may obtain fishing rights. But the Japanese side will interpret this as proof that "Taiwan fishermen used Diaoyutai Islands waters as no more than fishing grounds," and acquired only sea use rights.

Japan is allowing Taiwanese fishing vessels access to waters outside the Diaoyutai Islands' 12 nautical mile limit. Japan refers to these waters as "Japan's territorial waters." Reports are that the agreement prohibits landing on the island. The Ma administration, astonishingly, has not underscored our sovereignty over the Diaoyutai Islands. For example, Ma clearly failed to assert our right to land on the island. He failed to highlight the fact that a dispute persists. Instead he unilaterally "shelved disputes," and gushed about "joint development." By doing so, he relinquished our rights to the "exclusive economic zone." Did the Taiwan side in fact promise not to land on the island? If it did, then it relinquished its claims to territorial sovereignty. Japan meanwhile, obtained enormous substantive benefits. Naturally Japan was willing to make a few minor concessions. Outside the Taiwan side's temporary line of jurisdiction, it "sacrificed" the fishing rights of Ryukyu fishermen. In short, Japan conceded nothing more than the "right to use," which it can take back at any time. In exchange it received a transfer of sovereignty from the Taiwan side.

This concession by our side, may be very difficult to undo. Article V of the agreement states that the two sides may unilaterally repudiate the agreement within six months. On the surface this is consistent with international fisheries agreements precedents. In fact, as everyone knows, these provisions constitute a greater threat to the Taiwan side than the Japanese side. On the issue of Diaoyutai, the Ma administration kowtows to U.S. demands. It refuses to cooperate with Mainland China. As a result, it can only rely on the "goodwill" of Japan. Japan can use this provision to demand that Taiwan cease disputing sovereignty. For example, it can demand that people from Taiwan desist from landing on the island, and law enforcement vessels from Taiwan desist from entering "Japan's territorial waters." Otherwise, it can rescind Taiwan's fishing rights at any time. These "fishing rights" are nothing more than sugar-coated poison pills. Taiwan has essentially relinquished its sovereignty over the Diaoyutai Islands. Japan on the other hand, can rescind its fishing rights at any time.

The Ma administration aggressively negotiated fisheries agreements with Japan. It purportedly "fought for the interests of Taiwan fishermen." But it had a hidden agenda. Recently Vice Minister of Foreign Affairs Shih Ting said the ultimate goal of the "East China Sea Peace Initiative" is make the transition from "three separate bilateral dialogues," to "unified trilateral consultations between Beijing, Tokyo, and Taipei." In other words, the Ma administration's approach remains the same as Lee Teng-hui's, to internationalize cross-Strait relations. This Taipei-Tokyo Fisheries Agreement, which is suspected of "trading away sovereignty for fishing rights," is the first step. Does Ma Ying-jeou intend to sacrifice cross-Strait relations for the sake of this peace agreement? Does he intend to forfeit sovereignty and humiliate the nation in his opportunistic quest for short-term advantage? If the answer to these questions is yes, then he will undermine Mainland confidence in the Kuomintang, and seriously undermine his stature in the history books.

In short, "shelving disputes" on the Diaoyutai Islands controversy has a precondition. One must uphold territorial sovereignty. Only by doing so can one force Japan to recognize that a dispute persists. On November 5 last year, this paper published an editorial. We observed that Japan denies the existence of any sovereignty disputes. Yet our side prattles on about "shelving disputes," about "consultations," and about "joint development," including "fishing rights negotiations." Our side is essentially selling out the territorial sovereignty of the Republic of China, for nothing more than superficial, temporary, fishing rights without assurances. In addition to forfeiting sovereignty over the Diaoyutai Islands in perpetuity, we could well lose any fishing rights as well. The real beneficiary of these "fishing rights" negotiations is Japan, which has taken advantage of internal strife within China for over a century. For Taiwanese fishermen, for the Kuomintang government, and for the Chinese people as a whole, the fisheries agreement is a raw deal.

台日漁業協議得未必償失
2013-05-06
中國時報

從一九九六年八月到二○○九年二月，台日間就東海「專屬經濟海域」重疊部分的漁權問題進行了十六次談判，毫無結果。其中關鍵，即在釣魚台列嶼的主權歸屬。去年九月日本政府將釣魚台「國有化」，挑起新一輪主權紛爭，未料大陸堅持立場，寸步不讓。日本騎虎難下，遂重施離間故技。於是，台日漁權談判在停擺三年多後突飛猛進，「瞬間」有了結果，並於上月十日簽訂了「台日漁業協議」。

表面看來，一向強勢的日本終於「讓步」，放棄對國際公法所定「專屬經濟海域」的堅持，同意在總面積近八萬平方公里的海域裡不再驅趕、騷擾台灣漁船，其中還包括我方暫定執法線以外共計約四五三○平方公里的海域。馬總統和外交部更不斷強調該協議第四條「免責條款」確認了各項規定不損及我方主權主張，因此並未「以主權換漁權」。此一協議遂被誇稱為馬英九「東海和平倡議」的「主權在我、擱置爭議、和平互惠、共同開發」四原則之傑作。

然而，「專屬經濟海域」是「領海」的延伸，領海基線又決定於陸地領土。釣魚台的主權歸屬，最終決定了「專屬經濟海域」誰屬。眾所周知：日方此次談判，自始至終是以釣魚台主權歸屬「沒有爭議」作為前提。如果台方單方面不爭領土主權，即使得到漁權，也會被日方解釋成只是依據「台灣漁民傳統漁場」而爭取到的海域使用權。

日本允許台灣漁船自由進入釣魚台周邊十二海浬（所謂「日本領海」）以外的海域作業，據說其條件就是不得有登島舉動。馬政府竟未強調釣魚台「主權在我」（例如明示不排除登島）以凸顯爭議存在，反而片面「擱置爭議」，與日本直接談「共同開發」。如此，不但放棄了我方「專屬經濟海域」的權利，如果台方在談判中確實答應不再登島，更等於放棄主張（爭議）領土主權。獲取巨大實利之後，日本當然願施小惠，亦即在台方暫定執法線外，額外「犧牲」琉球漁民的漁權。總之，日本出讓的只是隨時可收回的「使用權」，換得的卻是台方出讓的主權！

但我方這一讓步，以後可能很難挽回。協議第五條規定雙方可片面於六個月前通知對方而中止協議。表面上這是國際漁業協議慣例，實際上人盡皆知此規定對台方的威脅遠大於日方。由於馬政府在釣魚台問題上順應美國要求，選擇不與中國大陸合作，那麼就只能仰賴日本的「善意」，而日本可依據此條要脅台灣：不可再爭主權（例如人員登島、執法船進入日本「領海」），否則隨時取消漁權！此種「漁權」，實為糖衣毒藥。久而久之，台灣等於放棄爭取釣魚台主權，日本卻可隨時中止施捨台灣的漁權。

其實，馬政府如此積極與日本談判漁業協定，除了所謂「爭取台灣漁民權益」外，還有更深一層的目的。正如外交部政務次長石定日前來函所言，「東海和平倡議」的最終目標是要由「三組雙邊對話」邁向「一組三邊（中日台）協商」。換言之，馬政府念茲在茲的還是李登輝制訂的路線：將兩岸關係國際化。而此番疑似「以主權換漁權」的台日漁業協定，就是第一步。如果馬英九在兩岸關係上捨和平協議的正途不走，卻想以喪權辱國來行險僥倖，不但會增加大陸對國民黨的猜疑，也會對馬英九的歷史地位造成極負面影響。

總之，在釣魚台問題上，「擱置爭議」必須以「爭議存在」為前提，而只有堅持「主權在我」才能逼使日本承認「爭議存在」。本報去年十一月五日的社論曾指出：現在日本既已否認「主權爭議」的存在，我方若還對日侈談「擱置爭議」，或甚至與其協商「共同開發」（包括「漁權談判」），就等於出賣中華民國的領土主權。現在台灣只是爭取到了表面的、不定期的、無保證的漁權，卻可能永遠失去了釣魚台列嶼的主權─日後仍將因此失去漁權！真正在這場「漁權」談判中得到最大利益的「漁翁」，還是百餘年來不斷藉著中國人內訌而得利的日本。無論從台灣漁民、國民黨政府或全體中國人的角度而言，這個漁業協定都是得不償失。