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Despite the now complete loss of sovereignty over the rocks, the incident showed how unimportant they were to Japan in-and-of-themselves: the higher-level protest was made neither because it was legally necessary nor because it was believed it would have any effect, but rather it was made in view of the upcoming EEZ negotiations.
Aside from the new precedent of the free exercise of sovereignty by Seoul over the rocks, there was a further precedential element to the events of 1996 and 1997. In 1992 China passed the Law on the Territorial Sea and Contiguous Zone, which explicitly referred to the ‘Diaoyu Islands’ (Pinnacle Islands) as China’s territory, and in 1995 Chinese ships were spotted in the area. China also ratified UNCLOS in 1996, and so Japan and China were also facing EEZ negotiations on the waters around these disputed islands, with even higher stakes involved, given the potential strategic rivalry between the two, and not least the confirmed submarine deposits of oil and gas (see Chapter Four). As we have seen, the claim to the Liancourt Rocks has a precedential value in terms of the Pinnacles, increasing the importance of clear protests against South Korean actions. In 1996 there was also a political precedential value: taking a soft line on the Liancourt Rocks would reflect poorly on Japan’s claims over the Pinnacle Islands and could give the impression that Japan’s territorial policy was weak.
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Negotiations to delimit the respective EEZs began in August of 1996. The negotiations resulted in the 1998 Agreement of Fisheries between the Republic of Korea and Japan, which entered force on 22 January 1999 (Park, 2000: 57). However, the problem of how the Liancourt Rocks would be dealt with plagued the negotiations (The Japan Times, 02/08/2001). While South Korea used Ulleungdo as the base-line for its EEZ claim, Japan used the Liancourt rocks themselves (as per the secret pact) as the baseline for its claim (The Japan Times, 16/06/2006). The Korean argument was unacceptable to the Japanese, as a base line drawn from Ulleungdo would place the rocks on the Korean side of the median line, and thus in the Korean EEZ. On the other hand, the Japanese stance of using the rocks as the baseline of its claim, with the median line midway between them and Ulleungdo, was obviously unacceptable to the Koreans.
Thus, as a result of the territorial dispute, a final EEZ delimitation was impossible, and so solely for the purposes of the agreement the rocks were not recognised as generating their own EEZ. The final deal gave both sides a 35NM exclusive fishing zone, and created a large provisional/intermediate zone (92,719 km2), approximately the same size as Portugal) in which both sides could fish, and which would be regulated by a joint fisheries commission.107 For the discussion here, the most significant aspect of the deal was the way in which it dealt with the Liancourt Rocks, which lie inside this intermediate zone. In order to ensure that the agreement would not affect the territorial dispute, Article 15 of the agreement states that “no provision of this Agreement shall be deemed to prejudice the position of each Contracting Party relating to matters on international law other than matters on fisheries” (quoted in Park, 2000: 60). However, some Korean politicians and scholars,
107 The two sides could not even agree on a name for this zone. The Japanese side refers to it as a ‘provisional’ zone, the Korean side calls it a ‘middle’ or ‘intermediate’ zone (Kim, 2003:
99)
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angry at their government for a perceived capitulation, have argued that the agreement in and of itself is a form of acquiescence on the Korean side since it can be interpreted as “official confirmation of the fact that Korea and Japan have a sovereign dispute over Dokdo Island [sic]” (Kim, 2008: 24).108
The fisheries agreement, despite the fraught negotiations, ended up with a situation largely similar to previous agreements, and one which conformed with the original ‘secret pact’ formula of drawing baselines from the undisputed islands and coastline, leaving the rocks in a joint zone. Neither side could possibly allow the rocks to be enclosed by the other sides’ EEZ, or even after EEZ demarcation was deemed impossible, to be surrounded by the other state’s fisheries zone – despite the fact that in arbitration this would carry little or no legal weight. In fact Article 15 of the agreement itself makes it painstakingly clear that even though the islands are located in the so-called ‘intermediate zone’, this fact has no bearing on the dispute. When the Korean scholars refer to acquiescence to Japan – Kim goes as far as to state that the agreement “substantially enhances the Japanese legal position in asserting their sovereign title over Dokdo Island” (2008: 25) – they may be outwardly stating legal acquiescence, but what is really meant is political acquiescence.
Although there is nothing whatsoever in the agreement which compromises South Korea’s legal claim to the Liancourt Rocks, the political acquiescence in Japan’s sovereignty claims over the rock would further contribute to the ‘incompleteness’ of South Korea’s sovereignty over them in the sense that the recognition of Japan’s claims would constitute a recognition that a dispute exists, and thus that South Korea does not enjoy full recognition
108 Just as the official line from the Japanese government in the Pinnacle Islands dispute is that ‘there is no dispute’, so too does Seoul deny the existence of a dispute over the Liancourt Rocks.
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and that its sovereignty over the rocks is therefore incomplete. Further, despite Seoul’s push for a fait accompli from 1996 on, the 1998 Fisheries Agreement did not represent any significant gains for South Korea nor did Japan lose out despite its own political acquiescence in the wharf construction. In sum, while Japan had lost the rocks through its political acquiescence in 1996, the result of the 1998 Fisheries agreement was that Japan’s maritime claim was not affected by that acquiescence, and, indeed, if anything, South Korea may have politically acquiesced in the existence of the dispute, thus improving Japan’s position.109