Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea [1 ed.] 9789047426899, 9789004173439

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Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea

Publications on Ocean Development Volume 65 A Series of Studies on the International, Legal, Institutonal and Policy Aspects of Ocean Development

General Editors: Vaughan Lowe and Robin Churchill

Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea Edited by

Seoung-Yong Hong and Jon M. Van Dyke

LEIDEN • BOSTON 2009

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Maritime boundary disputes, settlement processes, and the law of the sea / edited by Seoung-Yong Hong and Jon M. Van Dyke. p. cm. — (Publications on ocean development volume 65) ISBN 978-90-04-17343-9 (hardback : alk. paper) 1. Territorial waters. 2. Economic zones (Law of the sea) 3. Boundary disputes. 4. Continental shelf. 5. Law of the sea. I. Van Dyke, Jon M. II. Hong, Seoung-Yong. KZA1450.M35 2009 341.4’48—dc22 2008055205

ISSN: 0924-1922 ISBN: 978 90 04 17343 9 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Contents Preface .................................................................................................... Harry N. Scheiber and David D. Caron, Co-Directors, Law of the Sea Institute, University of California at Berkeley Acknowledgments .................................................................................. Introduction ........................................................................................... Seoung-Yong Hong and Jon M. Van Dyke

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Chapter I. Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict ...... David D. Caron

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Chapter II. The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary delimitation ....................... Clive Schofield

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Chapter III. Disputes Over Islands and Maritime Boundaries in East Asia ............................................................................................. Jon M. Van Dyke

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Chapter IV. Sino-Japanese Jurisdictional Delimitation in East China Sea: Approaches to Dispute Settlement ............................................... Ji Guoxing

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Chapter V. Some Thoughts on Maritime Boundary Delimitation ........... Masahiro Miyoshi Chapter VI. Intertemporal Law, Recent Judgments and Territorial Disputes in Asia .................................................................................. Seokwoo Lee Chapter VII. Some Legal Aspects of Territorial Disputes over Islands ...... Kentaro Serita Chapter VIII. Okinotorishima: A “Rock” or an “Island”? Recent Maritime Boundary Controversy between Japan and Taiwan/China ... Yann-huei Song

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Chapter IX. Canada-U.S. International Ocean Law Relations in the North Pacific: Disputes, Agreements and Cooperation ....................... Ted L. McDorman Chapter X. Maritime Boundary Delimitation and Cooperative Management of Transboundary Hydrocarbons in the Ultra-Deepwaters of the Gulf of Mexico ............................................. Richard J. McLaughlin

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Chapter XI. The Law of the Sea Convention and the Antarctic Treaty System: Constraints or Complementarity? ............................... Marcus Haward

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Chapter XII. The Contribution of the International Tribunal for the Law of the Sea to International Law ................................................... Helmut Tuerk

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Chapter XIII. The Tomimaru Case: Confiscation and Prompt Release .... Bernard H. Oxman

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Index ......................................................................................................

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Preface This volume is the latest in a series that brings to publication selected papers from the Conferences of the Law of the Sea Institute, based at the University of California at Berkeley, School of Law.1 In 2006, the Law of the Sea Institute joined with Inha University (Incheon, Korea) to undertake a special series of three co-organized international meetings on ocean law, the first to be held in Seoul in 2006; it is from this conference and a second in Seoul in 2007 that the papers in this volume, now revised for publication, were presented in preliminary form. Thirteen distinguished scholars and jurists are the authors of the chapters that follow, each of their studies being concerned with an important aspect of maritime boundary disputes and their resolution in contemporary ocean affairs. When the United Nations Convention on the Law of the Sea was signed in 1982, a central objective of the “new order for the oceans” – for which the Convention would provide the legal framework and basic normative principles – was the delimitation of boundaries and the procedures for settlement of international disputes on maritime boundary questions. Success in the global acceptance of new rules and procedures in this area of international law would contribute in an essential way to realizing the central objectives of the Law of the Sea Convention: the reduction of international tensions through establishment of a regime reflecting the ideals of rule of law; and the advancement of cooperative international efforts toward constructive and peaceful uses of ocean space and marine resources. In the twenty-six years since signature of the Convention, however, major issues have continued to emerge, while inherited conflicts have persisted, with regard to maritime boundary delimitation. Disputed claims to sovereignty have caused potentially dangerous confrontations in many ocean areas globally; and troubling uncertainties continue to exist in international relations with regard to dispute resolution processes and ocean diplomacy. The studies included in this volume constitute a rich overview of recent developments in these areas of ocean affairs and the law of the sea, and they offer perceptive recommendations for addressing more effectively some of the festering disputes regarding ocean resources that are manifest in international relations today. In addition to a set of chapters offering close analysis of disputes in the Northeast Asia region, other individual chapters deal in depth with controversies in the waters of the North American and Antarctic regions.

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For a complete list of the publications of the Law of the Sea Institute and an overview of its activities, please visit its website at http://www.law.berkeley.edu/centers/ilr/lawofthesea.html.

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We are privileged to have obtained the dedicated participation in this project of our authors and also of the volume’s co-editors, President Seoung-Yong Hong and Professor Jon Van Dyke, all of them eminent scholars in the ocean law field. Professor Seokwoo Lee of Inha University, who is an author in this volume, has been unstinting in his devotion of time and effort for coordinating efforts from the Inha side in our joint planning and organizing. Ms. Karen Chin and Ms. Toni Mendicino of the Institute’s office at UC Berkeley have given skillful and devoted service to administration of our projects. We also acknowledge gratefully the financial support for the Law of the Sea Institute given by the Office of Dean Christopher Edley, Jr. of the UC Berkeley School of Law; for the principal financing of conference expenses in Seoul generously provided by Inha University (Dr. Seoung-Yong Hong, President) and the Korean institutional sponsors who joined in support of the 2006 and 2007 meetings; and the California Sea Grant Program (Dr. Russell Moll, Director) and the University of California Marine Council (Professor Gary Griggs, Chair), for supplementary support of LOSI conferences and research. Finally, we wish to express our gratitude for the inclusion of this book in the distinguished series, Publications on Ocean Development, under Professor Vaughan Lowe’s general editorship. This has provided us and our authors the opportunity to work once again with the editorial and production staffs who have long given Martinus Nijhoff Publishers its uniquely influential role in bringing scholarly work on ocean law and policy to the ocean studies community and to a general readership throughout the world. Harry N. Scheiber and David D. Caron Co-Directors, Law of the Sea Institute University of California at Berkeley

Acknowledgments The editors would like to extend special thanks to Professors Harry Scheiber and David Caron, the Co-Directors of the Law of the Sea Institute at the Law School of the University of California at Berkeley for their leadership in organizing the conferences that produced these fine essays and to Professor Seokwoo Lee at Inha University for his leadership in coordinating these conferences in Seoul. We would also like to thank Asami Miyazawa, of the Class of 2009 at the William S. Richardson School of Law, University of Hawaii, for her important assistance with the editing of these papers and the preparation of this book for publication.

Introduction This book presents a set of studies that address prominent contemporary issues of maritime boundary delimitation, disputed claims of sovereignty, and dispute resolution procedures in the context of modern ocean law. The principal regional focus is Northeast Asia, but included here also are studies of controversies facing the countries of North America as well as of the vexing issues related to Antarctica. The opening chapter is by Professor David D. Caron, Co-Director of the Law of the Sea Institute and Professor of Law at the University of California, Berkeley, School of Law. He addresses maritime boundary delimitation by discussing the impact of global climate change and sea-level rise on ocean boundaries. Although it is widely acknowledged that climate change will alter the world over the coming century, the effects these changes will have on different regions of the globe remain unclear. How much dryer or wetter will France be? How much more disease will be induced by the changes in Central America? But among this uncertainty, two impacts are clear: (1) the melting of the great ice sheets and glaciers will continue, and may melt even faster; (2) the oceans will rise over the next century on the order of 1.5 to three feet. This rise in sea level will be recognized around the world. Professor Caron focuses on how a rising sea level will create uncertainties as to the outer boundaries of the zones of valuable ocean territories and rights possessed by coastal states. Uncertainties in boundaries are bound to foster disputes in the form of conflicting claims over valuable ocean resources. This potential is particularly high given that climate change simultaneously stretches the resources of each state. Caron examines this potential for conflict, the reasons that boundaries will become uncertain, and suggests avenues, both normative and institutional, whereby this uncertainty and conflict may be avoided or mitigated. The paper concludes with proposals and strategies for addressing the present legal feedback, the ambulatory nature of baselines and the boundaries they generate, which is at the root of the uncertainty and potential for conflict. The author proposes that states move toward permanently fixing ocean boundaries and away from the current regime of ambulatory boundaries, and in doing so, design a process that will minimize costs and avoid possible abuse. University of Wollongong Professor Clive Schofield’s study of on islands, in Chapter II, is also a “big picture” paper, analyzing the impact of small, remote, and historically insignificant islands on maritime boundary disputes, particularly those in East and Southeast Asia. These tiny islands are involved in two interrelated categories of disputes: (1) contentious disputes over claims to their sovereignty; and (2) their impact on claims to extended maritime zones and their impact on maritime delimitation. Schofield analyzes the challenge of distinguishing an

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“island” from a “rock” in the context of Article 121 of the Law of the Sea Convention, a distinction that is crucial in resolving the claims to maritime jurisdiction that may be generated from such features. Schofield notes that Article 121 was drafted in a deliberately ambiguous fashion, and that a definitive, authoritative interpretation of what constitutes an “island” or a “rock” is currently out of reach. Nonetheless, developments in state practice and the jurisprudence of international courts and tribunals indicate that both state and international courts and tribunals have evolved numerous innovative ways in which to deal with insular features and achieve equitable resolutions. The author concludes that maritime disputes relating to islands are capable of resolution if the elusive but vital ingredient of political will can be found. The next six chapters focus more directly on the maritime boundaries in East Asia, particularly Northeast Asia. University of Hawaii Professor Jon Van Dyke’s study, in Chapter III, examines the unresolved sovereignty disputes and maritime delimitation controversies in East Asia, looking at the dispute over sovereignty of the Northern Territories between Japan and Russia, the dispute over Dokdo (Takeshima) between Korea and Japan, the dispute over the Daioyudao/Senkakus between Japan, China, and Taiwan, the dispute over the Paracel Islands between China and Vietnam, and the dispute over the Spratly Islands in the South China Sea between China, Taiwan, the Philippines, Vietnam, Malaysia, and Brunei. He addresses the difficult controversy between Japan and China in the East China Sea. Disputes also continue in East Asia regarding the proper drawing of straight baselines, historical claims to bays, the breadth of the territorial sea, and the principles that should govern maritime delimitation. Professor Van Dyke explains the competing positions regarding these disputes, and points out that because some controversies raise issues that are linked to other disputes, something of a gridlock exists, and not much progress has been made recently to reach permanent solutions to these disagreements. The author concludes that pragmatic solutions can be found to these disputes when the countries involved perceive that it is in their political and economic interest to resolve them. In Chapter IV, Professor Ji Guoxing of Shanghai University focuses on the maritime interests and rights in the East China Sea disputed between China and Japan, a significant controversy that has made the political relationship between China and Japan volatile and insecure, has affected their economic development and exploitation of marine resources, and has jeopardized regional maritime security and sea lines of communication. China has stressed the natural prolongation approach for continental shelf delimitation, has adopted the position of “equitable solution through negotiation,” and has maintained “shelving the disputes and working for joint development” until conditions for settlement have matured. Japan has argued that a median line should be drawn in the East China Sea to divide the sea equally between the two countries. These differences in approaches have made settlement difficult.

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Professor Ji proposes that China and Japan: (1) adopt two separate delimitation lines, one for the EEZ and a different one for the continental shelf; (2) “segregate” the Daioyudao/Senkakus and shelve the dispute regarding their sovereignty; (3) negotiate on the tri-junction point among China, Japan and South Korea; (4) consider establishing a joint development zone between the two delimitation lines; (5) sign an “incident at sea agreement”; and (6), as a long-term approach, accept third-party assistance in the event a settlement seems unlikely. The paper recommends that China and Japan work together to make the East China Sea a “sea of peace, cooperation and friendship.” Aichi University Professor Masahiro Miyoshi provides in Chapter V a normative background for an understanding of maritime boundary delimitation, explaining how it has developed through the jurisprudence of the International Court of Justice and international arbitral tribunals, as well as through international agreements reached during the past half century. The author explains how decisions of international arbitral and judicial tribunals have guided the practice of states, and how these various sources of law have worked together. His conclusion is that the proper role of lawyers is not to act as the mouthpiece for their governments, but rather to expound the correct rules or principles of law. In the next chapter, Inha University Professor Seokwoo Lee’s analysis focuses on colonialism in Asia and its impact on unresolved territorial and boundary disputes, including those between Japan and Russia, Japan and Korea, and China and Japan. Asian countries have sought to resolve these disputes using the international law that has developed and emerged in Asia, as opposed to the international law that has developed in Europe and the West. Asian disputes involve intertwined political and legal issues. Although dichotomizing politics and law in specific territorial disputes is not always simple, it is impossible to reach a conclusion as to the strength of the competing claims based solely on international legal principles and sources. Professor Lee’s study addresses the disputed Asian territories using relevant customary international law relating to territorial acquisition and loss. Rather than determining the ownership of the disputed territories, the author attempts to provide a broader framework for better resolution of the disputes present in Asia today, focusing particularly on the bilateral relationships between the claimants. In doing so, Professor Lee asserts the importance of intertemporal law, which raises questions about what legal rules to apply to particular disputes at particular times. In resolving the Asian boundary disputes, it is imperative to clarify the relevant norms of international law and develop new norms to address the very nature of the territories in dispute. In Chapter VII, Professor Kentaro Serita, Emeritus at Kobe University and on the law faculty at Aichigakuin University, provides a discussion of the controversy between Japan and Korea concerning Dokdo (Takeshima), two small and mostly barren islands located between the two countries. Professor Serita examines whether a “dispute” exists regarding these islets and what the “critical date” should

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be for this matter. He discusses relevant historical facts and decisions of international tribunals to provide guidance regarding this situation and explains that countries have a duty under international law to settle disputes by peaceful means. He closes by saying that “we have a bright future before us” and urges Japan and Korea to settle this dispute “by peaceful means in the near future.” Taiwanese scholar Dr. Yann-huei Song examines in Chapter VIII the ongoing dispute between Japan and China/Taiwan concerning whether the isolated islet Okinotorishima should be able to generate an extended maritime zone. Dr. Song explains that Okinotorishima is completely unsuitable for human habitation and is unable to support economic activity. Japan maintains, however, that Okinotorishima is an “island” rather than a “rock,” and has utilized various construction techniques to prevent its tiny features from being completely submerged by the sea. Song concludes that Okinotorishima must be viewed as a “rock” according to Article 121(3) of the Law of the Sea Convention, and that it is thus unable to generate an exclusive economic zone (EEZ) or a continental shelf. The two studies that follow have as their focus maritime delimitation issues in North America. Victoria University Professor Ted McDorman explains in Chapter IX the importance of the fact that Canada and the United States are geographic “salt water neighbors” in the North Pacific, with the Canadian EEZ adjacent to British Columbia interrupting the U.S. Pacific coast EEZ from southern California to Alaska. His analysis focuses on the disputes and the cooperative ocean relationships and agreements between Canada and the United States that directly involve or arise from issues of international ocean law in the North Pacific. The specific disputes mentioned in the paper include the overlapping offshore claims in the Dixon Entrance and seaward of the Juan de Fuca Strait, the differences respecting Canada’s claim that the waters of Dixon Entrance, Hecate Strait, and Queen Charlotte Sound are historic internal waters, and differing views on the salmon provisions of the 1982 Law of the Sea Convention and their implementation in the 1985 Pacific Salmon Treaty. In his concluding discussion, Professor McDorman notes that the ocean law relations in the North Pacific between Canada and the U.S. are on an “even keel” and that it is important to find ways to cooperate and agree on many operational matters despite the existence of boundary disputes between the two nations. In Chapter X, Texas A&M Professor Richard McLaughlin focuses on the Gulf of Mexico, which is one of the world’s most important oil and gas provinces and is a region of great importance to both the United States and Mexico. In a treaty signed in 2000, the two nations addressed the issue of the “Western Gap,” located in the western sector of the Gulf of Mexico; the agreement permitted both nations to proceed with hydrocarbon development in this area. As a result, discoveries of hydrocarbon resources in the ultra-deep waters of the Gulf of Mexico are accelerating, generating significant industry interest in the area. But lingering legal and policy disputes regarding the regime governing transboundary hydrocarbons in

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the deepest portions of the Gulf continue to hinder efficient development and conservation of the resources. Professor McLaughlin suggests that the U.S. and Mexican governments consider a proactive and collaborative approach in managing the area and its transboundary hydrocarbon resources. If successful, he argued, the region can serve as a model of cooperative management, instead of an arena for competition and legal strife. The author analyzes the customary and conventional legal norms that encourage cooperation in the exploitation of transboundary hydrocarbon resources, concluding with recommended future actions that will improve the prospects of creating an effective joint development mechanism. University of Tasmania Professor Marcus Haward, author of Chapter XI, shifts our attention to Antarctica, which is governed by its own unique legal regime. Although Antarctica was specifically excluded from the Third United Nations Conference on the Law of the Sea, the Convention nevertheless applies to the high seas around Antarctica by virtue of the application of Article VI of the Antarctic Treaty. Professor Haward’s paper explores the nexus between the Law of the Sea Convention and the Antarctic Treaty, arguing that their relationship raises interesting and important issues in the management of the Southern Ocean. Among the issues that remain unresolved are the extent to which claimant states can assert rights as coastal states, or even whether coastal states exist in Antarctica, given the particular status of the Antarctic claims under the Treaty. Furthermore, the unique characteristics of the Antarctic coastline make it difficult to delimit baselines, because the majority of the Antarctic coastline is ice-covered and subject to the annual expansion and retreat of sea ice. Although states-parties to the Antarctic Treaty will face a number of potential challenges to current arrangements, it is clear that they are committed to maintaining harmony between the Treaty and the Law of the Sea Convention. The author concludes that the Antarctic Treaty, through its ongoing interaction with the Law of the Sea Convention, has played a significant role in dispute resolution over the marine resources of the Southern Ocean. The final two papers examine dispute resolution procedures, focusing on the International Tribunal for the Law of the Sea. Judge Helmut Tuerk explains in Chapter XII that the 1982 Law of the Sea Convention is one of the most important treaties ever elaborated under the auspices of the United Nations, providing a comprehensive regime for the seas, regulating all ocean space and the uses of the oceans and its resources. Part XV of the Law of the Sea Convention imposes an obligation on contracting parties to settle disputes by peaceful means and, in particular, provides for compulsory procedures with binding decisions. The International Tribunal for the Law of the Sea is a specialized international judicial body established for the settlements of disputes concerning the interpretation or application of the Convention on the Law of the Sea. The jurisdiction of the Tribunal includes any dispute relating to the law of the sea, such as disputes concerning maritime boundaries, fisheries, sea pollution or marine scientific research.

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Its jurisdiction is not without limitations, however, as spelled out in Articles 297 and 298 of the Convention. The limitations relate to the exercise of certain discretionary powers by the coastal states, and to the rights of contracting parties to exclude several categories of disputes, such as those relating to sea boundaries or military activities, from compulsory settlement procedures. Judge Tuerk offers a thorough analysis of the structure and jurisprudence of the Tribunal, with examples of specific decisions it has issued. University of Miami Professor Bernard Oxman examines in our closing chapter the decision of the Tribunal rendered on August 6, 2007, involving the prompt release of the Japanese fishing vessel, Tomimaru, which had been seized by Russia for fishing beyond its allowable quota. The Tomimaru had been detained in Russia since October 2006, and criminal proceedings were instituted against the master for illegal exploitation of EEZ resources and for damaging the marine environment. Separate administrative proceedings were instituted against the owner for violating the terms of its license, and the Russian court found the owner in violation of Russian law and ordered the confiscation of the Tomimaru, imposing a fee on the owner. Japan petitioned, but the Supreme Court of Russia dismissed because of a lack of grounds for review. Japan and Russia are both parties to the Law of the Sea Convention, and are among the many states that permit confiscation of vessels engaging in illegal fishing. Japan alleged that Russia had violated Article 73(2) of the Convention regarding the prompt release of vessels after the posting of a bond or other forms of security. Russia, on the other hand, argued that confiscation of the Tomimaru rendered Japan’s application without object and that the Tribunal lacked competence to hear the case because the courts in Russia had already rendered and executed its decision. The Tribunal agreed with Russia’s contentions. The fundamental question posed by the Tomimaru Case concerned the Tribunal’s power to consider the circumstances of a confiscation. Professor Oxman concludes that the Tribunal was not asserting its power to review the confiscation itself, but rather whether the confiscation had the power to extinguish the obligation of a prompt release. Seoung-Yong Hong and Jon M. Van Dyke Seoung-Yong Hong served as the President of Inha University, Incheon, Korea, 2002– 2008. He was Vice Minister of Korea’s Ministry of Maritime Affairs and Fisheries, 1999–2002; President of the Korea Maritime Institute, 1997–1999, and Director of the Ocean Policy Center for the Korea Ocean Research and Development Institute, 1982–1995. Jon M. Van Dyke is Professor of Law and Carlsmith Ball Faculty Scholar at the William S. Richardson School of Law, University of Hawaii at Manoa, where he has taught since 1976, and is also Global Ocean Fellow at Inha University, Incheon, Korea. He has written widely on issues related to ocean law and international environmental law.

Chapter I Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict David D. Caron* I. Introduction Even as it is widely acknowledged that climate change will alter the world over the coming century, it is unclear how different regions of the globe will be affected by this change. How much dryer or wetter will France be, and how much more disease will be induced by the changes in Central America, are but two examples. Amidst this uncertainty, however, two impacts are known quite clearly. First, the melting of the great ice sheets and glaciers will continue, and perhaps, melt even faster. Second, the oceans will rise over the next century on the order of .5 to one meter (1.5 to three feet). This rise in sea level will be felt around the world. This Chapter focuses on how a rising sea level will create uncertainties as to the outer boundaries of the zones of valuable ocean territory and rights possessed by coastal states. Uncertainty in boundaries is undesirable and, in this instance, may foster conflicting claims to valuable ocean resources. The likelihood of such conflict may be particularly high given that this uncertainty in boundaries will arise as adaptation to climate change simultaneously stretches the resources of each state. The Chapter examines this potential for conflict, the reasons that boundaries will become uncertain, and suggests avenues, both normative and institutional, whereby this uncertainty and conflict may be avoided or mitigated. There are three parts to this story. Part II highlights those areas of the oceans that belong, to some extent, to adjacent coastal states and, in particular, concentrates on the practice of using the

* C. William Maxeiner Distinguished Professor of International Law, University of California at Berkeley. This Chapter draws upon and updates an earlier work of the author, When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level, 17 Ecology L. Q. 621-53 (1990). The author thanks the Berkeley Law Fund for its support of the Conference and this research. The author also thanks Jordan Diamond for her valuable research assistance.

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“law of baselines” to ascertain the outer boundary of such oceanic zones. The “law of baselines” is a set of detailed rules that, broadly speaking, seek to give content to the principle that baselines should follow the general direction of the coastline. Part III briefly reviews the present projections concerning a rising sea level as a consequence of climate change. Part IV brings these two points together and considers the implications of sea level rise for baselines and thus the ocean boundaries ascertained by reference to such baselines. Four key points emerge: (1) in many cases, the law of baselines allows such lines to be based on geographic features barely above sea level; (2) therefore, almost any change in sea level may have very dramatic effects on certain baselines; (3) these effects on baselines may have a potentially dramatic effect on boundaries because the baselines and boundaries generated from them are “ambulatory” (that is, the baselines – and therefore the boundaries – adjust themselves to a changing coastline); and (4) the rise in sea level in particular geographic situations will result in significant shifts in the outer boundaries of the oceanic zones claimed by coastal states. Elsewhere, I have described such aspects of our laws as “legal” feedbacks to climate change.1 A legal feedback, unlike a physical feedback, does not accelerate or mitigate the underlying process of climate change itself. Rather, it accelerates or mitigates the damage that will be felt as a consequence of any level of climate change. Moreover, a legal feedback, unlike a physical one, is not fixed in the laws of nature, but rather, can be changed. In the case of a rising sea level, the law of baselines gives rise to a legal feedback that increases the potential for the waste of resources as well as private and interstate conflict. This Chapter focuses on the potential for conflict. States and individuals amidst an ever increasing competition for resources in, or under, the oceans will be tempted to take advantage of the uncertainty in maritime boundaries that will result from a rising sea level and the movement of baselines. The Chapter closes with proposals and strategies for addressing the present legal feedback, the ambulatory nature of baselines and the boundaries they generate, which is at the root of the uncertainty and potential for conflict.

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In the science of climate change, a feedback is a physical process triggered by climate change that may either exacerbate or mitigate the underlying process of climate change. For example, melting of the tundra in the far North as a result of warming may lead to the release of significant amounts of methane which in turn may accelerate the process of warming. See When Law Makes Climate Change Worse, supra note *.

A Proposal to Avoid Conflict

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II. The Curious History of Baselines Under international law, coastal states may claim in the ocean adjacent to them up to a 12-mile territorial sea, a 24-mile contiguous zone, a 200-mile exclusive economic zone (EEZ) and, in some circumstances, a continental shelf out to 350 miles. Today, the same baseline serves as the line from which the outer boundaries of all these zones are measured.2 For a newcomer to oceanic boundaries, it can be surprising that the rules concerning the construction of baselines developed substantially after states first claimed a territorial sea (sometimes then referred to as marginal seas). The reason for the time lag is that the early claims to a territorial sea were of an indefinite, rather than fixed, width. For example, an early method of determining the width of the territorial sea was by reference to the “cannon shot” rule. Putting aside the fact that the range of cannons varied tremendously and certainly increased over time, the important aspect to note is that the cannon shot rule, as a means for determining the width of the territorial sea, carried within itself the outer boundary, and thus, there was no need to determine a baseline point. The question of the baselines arose only when states began to assert a fixed width. It is often stated

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The four present major ocean zones are most clearly discussed in the widely adopted Convention on the Law of the Sea, opened for signature Dec. 10 1982, U.N. Doc. A/Conf. 62/122 (1982), reprinted in 21 I.L.M. 1261 (1982). All of these zones are to be measured from the baseline from which the territorial sea is measured: (1) The territorial sea. The sovereignty of a coastal state extends to an adjacent belt of sea called the territorial sea. Id. art. 2. The territorial sea may not exceed 12-n.m. in breadth, “measured from baselines determined in accordance with this Convention.” Id. art. 3. (2) The contiguous zone. In a belt of sea contiguous to the territorial sea, the coastal state may exercise the control necessary to prevent or punish infringement of customs, fiscal, immigration, and sanitary laws in its territory or territorial sea. Id. art. 33(1). This contiguous zone may not exceed 24-n.m. in breadth “from the baselines from which the breadth of the territorial sea is measured.” Id. art. 33(2). (3) The exclusive economic zone. The exclusive economic zone is an area beyond and adjacent to the territorial sea in which the coastal state possesses certain rights and jurisdiction and all other states possess certain rights and freedoms. Id. art. 55. As a general matter, the coastal state possesses sovereign rights over the natural resources, whether living or nonliving, of the waters and seabed in the zone, id. art. 56(1), while all other states possess the freedoms of navigation and overflight. Id. art. 58. The breadth of the exclusive economic zone shall not exceed 200-n.m. “from the baselines from which the breadth of the territorial sea is measured.” Id. art. 57. (4) The continental shelf. The coastal state possesses sovereign rights over the continental shelf adjacent to it beyond those rights already recognized in the exclusive economic zone to the degree the shelf extends beyond the outer limit of that exclusive economic zone. Id. art. 77. The outer edge of the continental shelf is determined under a complex physical definition, but in almost all cases “shall not exceed 350-n.m. from the baselines from which the breadth of the territorial sea is measured.” Id. art. 76(6).

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that the first fixed width assertion came with President Jefferson’s declaration in 1793, where the new United States of America claimed a territorial sea with the relatively modest fixed width of three-nautical miles (n.m.). It is said this distance was chosen so as to clearly indicate the outer boundary of a modest claim thereby possibly avoiding foreign conflict. In time, the emergence of a fixed width to territorial sea claims gave rise to a natural question: from where was the fixed distance to be measured? State practice emerged in the 1800s regarding the proper selection of baselines, and by the year 1900 it was widely accepted that the basic baseline followed the “low water mark” along the coastline. Many questions remained, however, given the complexities of coastlines, such as the presence of rocks and islands, mud flats and fringing reefs, not to mention rivers, bays and fiords. Custom came to indicate some of the answers. To address the questions more definitely, a conference was called by the League of Nations in The Hague during the interwar period. The preparations for the conference revealed an interesting, and not altogether surprising, difference of opinion regarding the law of baselines. On the one hand, geographers who studied the functions of boundaries sought to bring their theory to bear on the baseline selection rules. Functionally, in their view, boundaries were meant to visibly demarcate an area and provide guidance to persons at sea as to whether they were or were not within, for example, the territorial sea of the coastal state. From this perspective, the geographers sought to have a system of baseline points sufficiently substantial so that fishers at sea would be able to triangulate their positions visibly. On the other hand, there was what might be called the “expansionist view,” which came, as a political matter, quite naturally to the states involved. It gave primacy to the extent of each state’s territorial sea into the ocean above the functionality of the baseline system that allowed such extension. Given the interstate character of the 1930 Conference of States in The Hague, the expansionist view, not surprisingly, won the day and is now manifest in the baseline rules.3

3

A concern for the ascertainability of boundaries by those at sea heavily influenced the position of the United States delegation to the 1930 Hague Codification Conference. See Samuel Whittemore Boggs, Delimitation of the Territorial Sea: The Method of Delimitation Proposed by the Delegation of the United States at the Hague Conference for the Codification of International Law, 24 Am. J. Int’l L. 541 (1930). Samuel Whittemore Boggs, then Geographer of U.S. Department of State, wrote: Since the legal rights of the coastal state and of foreign states within the territorial sea differ greatly from the rights of all states on the high sea, it should be made possible for a navigator, or a fisherman, or the coastal state, to determine with certainty whether or not a vessel is in territorial waters on the high sea. .... The difficulties hitherto encountered in delimiting portions of the territorial sea have arisen, however, largely from the viewpoint of a man on the land rather than the viewpoint of the navigator.

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An example of the prevailing perspective is seen in a rock that emerges and dries in the sun at low tide (a “low tide elevation”). Although most certainly not a functional base point from the perspective of the geographers, expansionists accepted such a rock as a valid basic point because it would possibly extend the territorial sea of the coastal state a little further.4 The crucial point to recognize is that by this fundamental predisposition, the law of baselines authorizes, quite intentionally, the most insubstantial, sometimes ephemeral and transient, geographic features to serve as anchors for baselines thus maximizing for each coastal state the reach of their oceanic zones into the ocean. The rules continued to develop and solidify during the 50 years following the 1930 Hague Conference, and came to have specific provisions addressing highly indented coastlines and archipelagoes. In addition, more zones arose both for maritime spaces and for the seabed and subsoil. The baseline rules developed for the territorial sea were then adopted for the delimitation of these new zones, thus gaining in application and importance. When the law of baselines was first formulated in the 1930s, and even as it was revised and refined through the 1970s, the prospect of a rising seal level was not in the minds of the drafters.5 As we have seen, the development of the law of baselines almost pathologically listed and adopted quite insubstantial geographic features as valid baseline points. The individuals involved must have been aware that coastlines changed occasionally in specific locations, but they apparently viewed such changes as rare and isolated. The prospect of a global rise in sea level, however, fundamentally challenges this assumption. The coasts of the world are constantly changing due to particular local circumstances. The land may be rising because the weight of glaciers has been removed. The land may sink because of the depletion of aquifers. And, of course, the land along the coastline may erode. A sustained and global rise in sea level, however, is altogether another matter.

4

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But although concern for how the mariner and fisher were to locate a boundary upon the sea was occasionally present, it generally was overwhelmed by economic or security concerns. See, e.g., Yoshifumi Tanaka, Low-Tide Elevations in International Law of the Sea: Selected Issues, 20 Ocean Y.B. 189–219 (2006). Jose Luiz Jesus, Judge with the International Tribunal for the Law of Sea, wrote of the negotiation of the 1982 Law of the Sea Convention that “[t]he prospect of sea-level rise and its effect on maritime space and borderlines was not specifically addressed by the 1982 Convention. Indeed, during the Conference this was not a major concern.” Jose Luiz Jesus, Rocks, New-Born Islands, Sea Level Rise and Maritime Space, in Negotiating for Peace – Liber Amicorum Tono Eitel 579, 601 (J.A. Frowein, K. Scharioth, I. Winkelmann and R. Wolfrum, eds, 2003).

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III. But the World Does Change: The Specter of a Rising Sea Level Jim Hansen, a leading climate scientist, recently wrote that the “greatest threat of climate change for human beings, I believe, lies in the potential destabilization of the massive ice sheets in Greenland and Antarctica.”6 Knowledge of where many of the impacts of climate change will be felt remains elusive. All agree, however, that a rising sea level will impact all coastal areas. Predictions concerning the extent of the rise in sea level over the next century tend to focus on two mechanisms: thermal expansion of surface waters (the “steric effect”)7 and the continued breakup and melting of land ice (meaning, the Greenland ice sheet and glaciers).8 Estimates for at least the next century tend to assume, although not exclusively, that there will not be a sufficient rise in temperature to require consideration of a third potential cause of sea level rise, the significant breakup or melting of the Antarctic ice sheets. The Intergovernmental Panel on Climate Change (IPCC) in its recent 2007 report estimated a range of 0.38 to 0.59meter rise in the sea level by the year 2100. At the same time, numerous scientists note that the IPCC methodology, for understandable reasons, is conservative in its estimations.9 An example recognized in the IPCC report itself is that its model 6

7

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Jim Hansen, The Threat to the Planet, The N.Y. Rev.of Books 12, 13 (July 13, 2006). Dr. Hansen is the Director of the NASA Goddard Institute for Space Studies and an Adjunct Professor of Earth and Environmental Sciences at Columbia. There has been some confusion over the past few years as to whether the upper ocean layers were cooling rather warming. But studies in 2007 suggest that the cooling conclusion reached in a study of a few years ago was a consequence of an instrumentation error. The original team is revisiting its data. See Seas Are Warming After All, 194 NewScientist 4, 5 (28 April 2007). The melting sea ice in the Arctic or elsewhere does not result in a rise in sea level because that ice is already present in the ocean. Its displacement is approximately equivalent. It should be noted that there is some uncertainty about the mechanisms at work in sea level rise. Working Group II of the IPCC in its April 2007 report wrote: the global average sea level rise for the last 50 years is likely to be larger than can be explained by thermal expansion and loss of land ice due to increased melting, and thus for this period it is not possible to satisfactorily quantify the known processes causing sea level rise. Climate Change 2007 – The Physical Science Basis: Summary for Policymakers – Contribution of Working Group I to the Fourth Assessment Report of the IPCC 421 (2007). In this regard, see also Laury Miller & Bruce C. Douglas, Mass and Volume Contributions to Twentieth-Century Global Seal Level Rise, 428 Nature 406 (25 March 2004). Sea level rise predicted over the next several centuries is distinct from very long term changes anticipated in the size and depth of the oceans basins, see Sea Levels Are Falling Over the Long Term Because of Lower Basins, N.Y. Times, March 11, 2008 at D3. Fred Pearce, But Here Is What They Didn’t Tell Us, NewScientist 7 (10 February 2007). See also Consensus Is Not Enough, NewScientist 3 (10 February 2007); Bill McKibben, Warning on Warming, The New York Review of Books 44 (March 15, 2007) (reviewing Climate Change 2007 – The Physical Science Basis: Summary for Policymakers – Contribution of Working Group I to the Fourth Assessment Report of the IPCC (2007)). McKibben describes the report as “a

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for the melting of glaciers does not fully track the speed with which they appear to be in fact breaking down.10 Predictions from scientists studying the melting of the Greenland ice sheet, in particular, raise their estimation of sea level rise to one meter, if not more, by the year 2100. Readers react differently to the IPCC projections of 0.4 to 0.6 meter rise for the coming century, and the less official and more contested estimations of a one-meter rise. Some think it unlikely that the sea could rise so much worldwide. Others find the estimates too small to be troubling. As for the idea that it is not possible for the sea to rise that much, it is clear from geologic records that the sea level has been much higher in the past than it is today. “When the last glacial period ended approximately 12,000 to 16,000 years ago, the sea was about 100 meters lower than it is today because the oceans were colder and great amounts of water were stored in enormous ice sheets covering much of North America and Europe.”11 But at the peak of the last interglacial period some 120,000 years ago, the oceans were approximately six meters higher than today’s level.12 This perspective demonstrates that over long periods of time the sea level can, and has, fluctuate dramatically. The height the oceans attained 120,000 years ago, however, neither indicates that current global warming will result in that much of a rise over the next century, nor insures that six meters is the maximum that the sea could eventually rise. The difference between the present sea level and the levels of the distant past is that a substantial amount of water is locked up in the major remaining ice sheets: those in Antarctica, Greenland and the Argentina-Chilean ice sheets. Jim Hansen of NASA writes that “the level of the sea throughout the globe is a reflection primarily of changes in the volume of ice sheets and thus of changes of global temperature.”13 The major ice sheets account for a significant percentage of today’s glaciers; other glaciers are isolated pockets of ice. Glaciers around the world have been in retreat for some time, although the speed of that retreat appears to have recently increased. The most significant potential contributor to sea level rise at present comes from the breakup and melting of the Greenland ice sheet. A number of scientists studying

10

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13

remarkably conservative document,” because it “sacrifices up-to-minute assessment of data in favor of lowest common-denominator conclusions that are essentially beyond argument . . . one result is that the ‘shocking’ conclusions of the new report in fact lag behind the most recent findings of climate science by at least several years.” Id. at 45. Id. (stating the “[c]urrent climate models assume that the ice sheets will melt only slowly, as heat works its way down through ice more than two kilometers thick. But many glaciologists no longer believe this is what will happen”). James G. Titus & Michael C. Barth, An Overview of the Causes and Effects of Sea Level Rise in Greenhouse Effect and Sea Level Rise 1, 7 (Michael C. Barth & James G. Titus, eds., 1984). See, e.g., John F. Marshall & Bruce G. Thom, The Sea Level in the Last Interglacial, 263 Nature 120 (Sept. 9, 1976) (two to nine meters above present sea level). Jim Hansen, supra note 6 at 13.

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the area point out that “Greenland alone could push-up sea level by three feet or so [one meter] over the next century.”14 In time periods longer than this century, a greater sea level rise is predicted. Again, the IPCC noted: Very large sea-level rises that would result from widespread deglaciation of Greenland and West Antarctic ice sheets imply major changes in coastlines and ecosystems, and inundation of low-lying areas, with greatest effects in river deltas. There is medium confidence that at least partial deglaciation of the Greenland ice sheet, and possibly the West Antarctic ice sheet, would occur over a period of time ranging from centuries to millennia for a global average temperature increases of 1–4°C (relative to 1990–2000), causing a contribution to sea level rise of 4–6 m or more. This complete melting of the Greenland ice sheet and the West Antarctic ice sheet would lead to a contribution to sea-level rise of up to 7 m and about 5 m, respectively.15

As to the reaction that a one-meter rise is not that significant, two things need to be emphasized. First, in certain areas of the world, a one-meter rise will result in very significant flooding. For example, 17 percent of Bangladesh’s land mass would be flooded by such a rise.16 Similarly, Bill McKibben writes that “a couple of feet is enough to inundate many low-lying areas and drown much of the earth’s coastal marshes and wetlands.”17 Second, it must be remembered that climate change will result in more than simple sea rise. Climate change is expected to also result in more intense storms and storm surges, thereby exacerbating local changes in coastlines, such as erosion, that already take place. It has not taken climatically driven sea level rise to alter, and even threaten, low lying islands and the communities that live, for example, in the Ganges River delta. Changes are already occurring.18 Climate change will exacerbate these already visible changes and facilitate new ones. Work-

14

15 16 17 18

Tim Appenzeller, The Big Thaw, 211 National Geographic 56, 69 (Feb. 2007). The article goes on: The latest signs from Greenland have persuaded many ice researchers that sea level could rise three feet by 2100. Rignot [Eric Rignot of NASA], who has measured the rush of glaciers to the sea, says even that figure may turn out to be an underestimate. Greenland, he notes, could ultimately add ten feet to global sea level, and if this happens in the next hundred years instead of the next several hundred years, that’s a very big deal. See also Shankar Vedantam, Glacier Melt Could Signal Faster Rise in Ocean Levels, Washington Post, Feb. 17, 2006, at A1 (reporting that “The scientists said they do not yet understand the precise mechanism causing glaciers to flow and melt more rapidly, but they said the changes in Greenland were unambiguous – and accelerating”). Climate Change 2007, supra note 8, at 16. Those in Peril by the Sea, The Economist 6, 8 (Sept. 9, 2006). Bill McKibben, Warning on Warming, The N. Y. Rev. of Books 44, 45 (Mar. 15, 2007). Somini Senguputa, Sea’s Rise in India Buries Island and a Way of Life, N.Y. Times, Apr. 11, 2007 (Nat’l ed.), at A1 (reporting on a recent study by Sugata Hazra of Jadavpur University finding that “in the last 30 years, nearly 31 square miles of the Suandarbans have vanished entirely” and more than 600 families have been displaced). The IPCC WGII Fourth Assessment Report (2007)

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ing Group II of the IPCC in its April 2007 report summarized the situation in this way: “Sea-level rise is expected to exacerbate inundation, storm surge, erosion and other coastal hazards, thus threatening vital infrastructure, settlements and facilities that support the livelihood of island communities.”19 Thus, even a modest rise in sea level may have significant impact on coastlines and, as we will see in Part IV, on geographic features that may serve as anchors for baselines.

IV. Sea Level Rise, Uncertainty in Oceanic Boundaries and the Potential for Conflict Even a modest rise in sea level will be significant for ocean boundaries because, as discussed in Part II, those boundaries are generated from baselines that are often tied to rather insubstantial geographic features that will be among the first inundated by a rising sea level. The fundamental reason that the inundation of some baselines by a rising sea level would cause uncertainty in oceanic boundaries is that both the baseline and the boundary generated by that baseline upon are “ambulatory,” that is: (1) if a baseline anchor is submerged, then the baseline is redrawn on the basis of still valid exposed baselines points; and (2) the ocean boundary that was generated from the previous baseline is now redrawn to the new baseline. Thus if the baseline moves, the boundary moves. If a baseline point such as an exposed rock disappears, the boundary generated by that point also disappears. Although this is obviously an important principle, it often goes unstated.20 The 1982 Law of the Sea Convention does not expressly provide that the boundaries shall move with the baselines. It does, however, do so by negative implication. In particular, the Convention has a special rule for deltas which provides that when straight baselines are used in an area “[w]here because of the presence of a delta and other natural conditions the coastline is highly unstable, . . . notwithstanding subsequent regression of the low water line, the straight baselines shall remain

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20

states that the prospect of rising sea levels render the islands, ecology and people of the Ganges river delta among the most threatened in the world. Climate Change 2007, supra note , at 12. The same report also states: “Coasts are projected to be exposed to increasing risks, including coastal erosion, due to climate change and sea-level rise. The effect will be exacerbated by increasing human-induced pressures on coastal areas.” Id. at 7. It should also be noted that as a practical matter “that once the normal baseline has been established and cartographically depicted on large scale charts, it remains in place until such time as it is redrafted, irrespective of whether or not the actual low-water line has physically moved.” D.C. Kapoor & Adam J. Kerr, A Guide to Maritime Boundary Delimitation 31 (1986). This circumstance, however, does not alter the legal question.

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effective. . . .”21 Arguably, the Convention also fixes the outer boundary of the continental shelf permanently. It provides that the “coastal state shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf.”22 Professor Bernard H. Oxman states that, given the fixed nature of investment in the continental shelf, the inclusion of the word “permanent” was intentional and that as far as the United States is concerned, its inclusion reflects earlier recommendations such as that made in an influential 1968 U.S. study: “The outer limit of the continental shelf should not be subject to change because of subsequent alterations in the coastline or revelations of more detailed surveys.”23 No provisions, other than Article 7(2)’s deltaic baselines, however, address the possibility that there might be regression of baselines or operate to freeze maritime boundaries except possibly that of the outer continental shelf. Rather, the 1982 Convention appears to provide that in situations other than Article 7(2), the outer boundary of the EEZ, the contiguous zone and the territorial sea are ambulatory in that they will move with the baselines from which they are measured. As stated above, the conference of experts who met throughout the 1970s did not anticipate that there could be a significant regression of coastlines generally. Nonetheless, it is noteworthy that in the two cases where they were presented with concern over such a possibility – deltas, and arguably the outer edge of the continental shelf – the negotiating states were apparently willing to fix such boundaries permanently. But will these shifts in baselines actually lead to any significant movement in boundaries? There is certainly reason to believe that in areas of the world with steeply rising coastlines that the projected rise in sea levels over the coming century will not have a significant impact on either baselines or boundaries. And although compiling a list of particular locations where a one-meter rise in sea level will result in substantial shifts in baselines is not the focus of this Chapter,24 such a list is not necessary for the purposes of this Chapter because the previously described predisposition of the law of baselines virtually ensures that some significant problems will arise. In developing the law regarding maritime boundaries, states sought to maximize their claims over the ocean by supporting a liberal set of baseline rules that claim a fixed width and, in effect, extend zones further to sea.25 The baseline rules do this by recognizing the least substantial points of land as valid baseline points.

21 22 23

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1982 Convention on the Law of the Sea, supra note 2, art. 7(2). Id. art. 76(9) (emphasis added). Telephone interview with Professor Bernard H. Oxman, University of Miami, Feb. 28, 1990, referring to Our Nation and the Sea 145 (1968). Identification of some areas is made in Eric C.F. Bird and John R.V. Prescott, Rising Global Sea Levels and National Maritime Claims, 1 Mar. Pol’y Rep. 177 (1989). See, e.g., discussion of drying rocks in I Daniel P. O’Connell, The International Law of the Sea 191–95 (1982).

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It is precisely these least substantial points that are most threatened by a rising sea level. These points of land fall into three main groups. First are low tide elevations, sometimes called “drying rocks.” A low tide elevation can serve as a baseline point if it is located within what otherwise would be the territorial sea.26 Assuming a drying rock was located just short of 12-miles from shore, permanent submergence of this rock by a rising sea level would mean a loss of as much as 12 miles in width of all ocean zones in that area.27 Fringing reefs comprise the second category. Such reefs can serve as a baseline point regardless of whether they are within what otherwise would be the territorial sea of the island they fringe. Fringing reefs are often substantially distanced from the low water mark along the coast. Their submergence could result in an equally substantial reduction in the width of oceanic zones. It is the third category, islands, however, that will potentially result in the most significant shifts. This is because islands, as opposed to uninhabitable rocks,28 are entitled to a 200-mile-wide EEZ. An island could be an offshore barrier island which in a practical sense, only extends the maritime zones of a coastal state somewhat in the same way as a drying rock.29 An offshore island could also be an anchor point of a straight baseline. Most significantly, a small island could be an island state or, more likely, one of a group of islands that form a state. This is significant because such island states do not merely extend the zones of the related adjacent coastal state, but can potentially generate an EEZ of their own, enclosing some 125,664 square nautical miles of ocean. Numerous island states exist. A rising sea level could taint the freshwater reservoir of an island, potentially rendering it an uninhabitable

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The 1982 Convention, supra note 2, art. 13, repeating the text of Article 11 of the 1958 Convention, provides: 1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. Bird and Prescott note that “a retreat of two nautical miles will have a significant impact on the location of the 12 nautical-mile outer limit of territorial seas, a proportionately smaller impact on the outer edge of the contiguous zone, which is 24 nautical miles distant and a negligible effect on the outer boundary of an exclusive economic zone 200 nautical miles wide.” See Bird & Prescott, supra note 24, at 185–86. As to the distinction between an island and a uninhabitable rock in Article 121(3) of the 1982 Convention, see Jon M. Van Dyke, Joseph Morgan & Jonathan Gurish, The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate An EEZ?, 25 San Diego L. Rev. 425 (1988). For a case study of such an offshore barrier island, see James Titus, Greenhouse Effect, Sea Level Rise, and Barrier Islands: Case Study of Long Beach Island, New Jersey, 18 Coastal Management 65 (1990).

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rock, submerge enough of it to leave only an uninhabitable rock, or submerge it entirely. In any of these circumstances, the island state would potentially lose its right to use that part of the island group to extend its EEZ. Consequently, for the island state, there is little doubt that the combination of a rise in sea level and the contingent nature of boundaries is, or will be, of grave concern. My emphasis on these less than substantial baseline points should not be taken to imply that there may not be some areas of the world where a significant alteration might occur in the normal combination of the low water mark and closing lines. For example, in an action by the federal government of the United States against the State of Alaska, the U.S. argued that a closing line may no longer be drawn across a certain point of Kotzebue Sound because erosion of a shoal on one side of the sound had increased the closing line for the sound (a line limited under the law of baselines to 24 miles) from 23.9 miles to 25.8 miles in length. Consequently, the U.S. argued that the closing line must fall back miles into the sound until a maximum allowed width of 24 miles was reached again.30 Thus, given the changing circumstances, a rising sea level may potentially lead to shifts in boundaries in the ocean and, may even lead to disputes concerning the valid location of boundaries in the oceans. It must be remembered that ocean zones can be extremely valuable, both in terms of living resources and oil and minerals, and that states have fought over control of marine resources for centuries. It also should be recognized that the value of such resources may be much greater by the year 2100, particularly if global climate change causes great dislocations and alters food production in a more populated world. The IPCC describes the future situation in the developing world in the following terms: Many millions more people are projected to be flooded every year due to sea-level rise by the 2080s. Those densely-populated and low-lying areas where adaptive capacity is relatively low, and which already face other challenges such as tropical storms or local coastal subsidence, are especially at risk. The numbers affected will be largest in the mega-deltas of Asia and Africa while small islands are especially vulnerable. Adaptation for coasts will be more challenging in developing countries than in developed countries, due to constraints on adaptive capacity.31

This suggests that a rising sea level and the consequent implications of that rise for ocean boundaries may lead to both waste and conflict. One plausible scenario for waste is that a state threatened with loss of oceanic areas will commit great amounts of resources to protect baselines threatened by a rising sea level, not because it cares about the baselines themselves, but rather because it values the oceanic zones that the baselines generate. In other words, one

30 31

See Law of the Sea Convention, supra note 2, art. 10. Climate Change 2007, supra note , at 6–7. See also Chapters 18 and 19 in Climate Change and Africa (Pak Sum Low ed., 2005).

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behavioral risk is that countries will act to maintain the assumption of constancy underlying the law of baselines. The hypothesis underlying this assertion is that an aspect of a legal order that continuously reincorporates the assumption of a constant climate will lead parties faced with a changing climate to react inefficiently. For example, assume that a portion of a legal order grants, and then ties, rights and entitlements to a physical aspect of the world, such as sea level, and presumes that the physical aspect is relatively constant. If the presumption of constancy is incorrect, then the rights and entitlements are potentially threatened. The holders of the entitlements may seek to preserve their rights and entitlements by committing resources to stabilize that aspect of the physical world which is threatened by climatic change. This is inefficient to the extent that resources are committed to preserve a physical aspect of the world, not because the aspect itself is valuable, but rather because the entitlements are valuable, and those entitlements, for purely conventional reasons, require its preservation. These costs are not only socially inefficient in that they do not relate to the production of wealth; they also do not relate to the potentially justifiable task of distributing wealth. These costs only ensure the retention of wealth. An example of waste that could flow from the combination of a rising sea level and the present law of baselines is Japan’s commitment of billions of yen to save Okinotorishima, two rocks located 1,400 yards apart and no more than two feet out of the water at high tide, from collapsing into the sea. Japan sought to preserve these rocks, not from a rising sea level, but from erosion by wave action, by constructing circular blocks of steel and concrete to save their deteriorating support.32 Such expenditures will be yet more wasteful, if that is possible, amidst the full impact of global climate change in the next century. Far more important will be the need to relocate habitats and species, feed people and protect coastal infrastructures. Yet the present assumptions of our law of maritime zones encourage nations to expend funds to preserve baselines. Although a state may justifiably attempt to protect a headland against a rising sea level because the nation values something as intangible as the headland’s beauty, a state should not be encouraged to preserve a headland solely because a dependent maritime zone is threatened. A graver risk than waste of resources is that shifting baselines will lead to uncertainty as to the boundaries of some maritime zones, eventually causing conflict. Uncertainty regarding ownership of a valuable resource is a fertile ground for conflict between nations or between fishers of different nations. Indeed, one governmental advisor expressed concern to the author that during the possibly great strains accompanying climate change, states might question the fairness of past delimitation agreements with neighboring states. Even though states generally have a great interest in upholding the sanctity of such agreements, it is entirely plausible

32

See the detailed Chapter by Yann-huei Song in this volume.

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that a state might argue that circumstances had changed in that the parties had not foreseen such a rise in sea level.33 Thus, the risks of waste and conflict are part and parcel of the rule that oceanic boundaries should recede in step with the baselines from which they are measured. The simple possibility of losing part of its fishing ground will encourage states to allocate resources to preserve the baseline underlying that zone. The uncertainty as to whether a fishing ground is still within one state’s exclusive economic control will tempt others to make use of the resource and create a situation ripe for conflict.

V. Conclusion: A Proposal for Addressing the Uncertainty The risk identified in this Chapter is that of conflicts resulting from uncertainty in ocean boundaries as the seas rise, the root of which is the ambulatory character of most ocean boundaries. An obvious way to address this legal feedback is to modify the rule that gives rise to it. But, this legal feedback results from a collective rule which is difficult for any one state to authoritatively alter. This final section considers the avenues by which to accomplish precisely that, the procedures that might be required, and questions asked since an earlier version of this proposal was made. The nub of the proposal is that states should move toward permanently fixing ocean boundaries and away from the current regime of ambulatory boundaries, and in doing so, design a process that will minimize costs and avoid possible abuse. As mentioned above, the fixing of boundaries is not new in the sense that the drafters of the 1982 Law of the Sea Convention quickly did so when confronted with the need to fix boundaries, such as the rule for deltaic formations. Nor is it new in the sense that many bilateral treaties on ocean boundaries fix the boundaries by reference to a chart, rather than by leaving their future position to be determined in accordance with possibly changing geographic features. The fixing of oceanic boundaries would fulfill a primary value underlying theoretical constructs regarding boundaries, namely that they be certain and undisputed and thereby allow stability of expectations on both sides of the border. The current stability afforded by zones of a fixed width is contingent in that rests upon the assumption that the coastal or island formations from which the width is measured will remain relatively unchanged. A rising sea level, however, calls this assumption into doubt. Since uncertainty in boundaries is a prime ingredient in many recipes for interstate or private transnational conflict, maintaining the

33

The reality of shifting baselines may be less significant in lateral delimitations because less substantial baselines points, such as drying rocks or even islands, may already have been discounted somewhat in the agreement. See, e.g., Malcolm D. Evans, Relevant Circumstances and Maritime Delimitation 156–59 (1989).

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current system of moving baselines invites such conflict. The fixing of boundaries would create more certainty. Although there are no technical barriers to the fixing of oceanic boundaries, there are practical questions regarding costs and abuse. For example, one can imagine the fashioning of a process analogous to the Commission on the Outer Limits of the Continental Shelf, whereby the burden would be on the coastal state seeking to fix its maritime boundaries to file a declaration that its boundaries are fixed as of a certain date and to provide the scientific support – charts and satellite imagery – for their existence. Such a process would possibly limit abuse but obviously do so at a price. But in considering the costs of such a process, it should also be borne in mind that uncertain boundaries also carry with them costs. The potential costs of adjustment are dramatically shown by the United States’ experience with its Submerged Lands Act of 1953.34 The Submerged Lands Act addressed the question of federal versus states’ rights in the offshore seabed through a quitclaim by the United States to several states of lands underlying the waters within three miles of the coastline. The “coast line” was defined as “the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.”35 In 1965, in United States v. California, the Court held that the line delimiting inland waters was to be determined in accordance with the 1958 Convention on the Territorial Sea and the Contiguous Zone.36 By doing so, the Court rendered ambulatory the baseline described in the Submerged Lands Act. Given that title to valuable offshore oil reserves would move with this ambulatory baseline, litigation was inevitable, particularly in the case of Louisiana where the shoreline of the soft silt-like delta of the Mississippi River constantly shifts. In 1969, in United States v. Louisiana, the Supreme Court stated that because the Submerged Lands Act, referred to the 1958 Convention, it could not accept Louisiana’s argument that the Court should adopt a fixed, rather than ambulatory, line. Justice Black in his Dissent wrote: [T]he doctrine is tending to bring about interminable litigation. . . . Shorelines are constantly changing, and under the Court’s formula even this painstaking work cannot provide a means of marking the boundary for all time. .... [Adoption of a fixed boundary would have] put a stop to eternal litigation and help relieve this Court of the heavy burden repeatedly brought upon us to make decisions none of us have the time or competence to make.37

34 35 36 37

67 Stat. 29, 43 U.S.C.A. §§ 1301–1315(West 2007). 43 U.S.C.A. § 1301 (c) (West 2007). 381 U.S. 139 (1965). 394 U.S. 85, 88 (1969).

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To avoid such “interminable litigation,” the federal government and Louisiana in effect froze the boundary by entering into a special boundary agreement – although even with the agreement, a final decree was not entered until 1981.38 As a general solution to the possibility of such interminable litigation with other states, legislation was proposed in both the House and the Senate, authorizing the federal government to enter into seabed boundary agreements with the states and setting forth a process whereby such boundaries may become immovable.39 “Interminable litigation” may be unlikely in an interstate context, but “interminable negotiation” and “occasional conflict” are quite possible. Over the years since an earlier version of this proposal was first offered, two related questions have often arisen. First, is it equitable for a state to retain jurisdiction over an area of the ocean when the outer boundary is further than the authorized distance from the coast? Second (what I see as a natural law variation on the first question), since the right of a state in the ocean springs from the land, how can that right be maintained as the coastlines recedes or an island disappears entirely? The key to understanding the equity aspects of the choice between continuing with ambulatory boundaries or fixing them on the basis of presently agreed baselines is that no state under a system of fixed boundaries would gain any more than it presently possesses. The present complex set of maritime zones resulted from an exhaustive balancing during the Third Law of the Sea Conference of the oceanrelated interests of coastal states, maritime states, and the international community. These interests included fishing and fishery conservation, navigation, military uses, environmental and marine mammal protection, and marine law enforcement. Although the rules governing allocation would remain the same, the allocation of ocean space would in fact change if oceanic boundaries were to move with receding baselines. The fixing of maritime boundaries, on the other hand, does not affect the allocation agreed to at the Third Conference because it merely freezes the present division of authority over the oceans. In essence, if one regards the allocation of authority arrived at by the Conference to be appropriate, then the fixing of maritime boundaries will, more than the present regime of ambulatory baselines, preserve this allocation. Simultaneously, we must bear in mind that it is entirely possible that global climate change may

38

39

United States v. Louisiana, 452 U.S. 726 (1981). For a summary of the history of the case, see United States v. Louisiana, 446 U.S. 253 (1980). See, e.g., S. 1878, 98th Cong. (1st Sess.); S. 2068, 99th Cong. (2d Sess.). Both bills provided that the agreement on such a boundary would be without prejudice to the international claims of the United States. Although the proposal was ultimately not enacted, it provides an example of how concerns over uncertain boundaries might manifest in domestic legislation. See 98th CCH Cong. Index 14,244 (1983–84) (noting that S. 1878 was given to the Judiciary committee, and nothing further); 99th CCH Cong. Index 14,254 (1985–86) (noting that S. 2068 was given to the Energy and Natural Resources committee, and nothing further).

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make the present allocation of authority over the oceans less desirable or equitable. For example, it is unclear whether changes in surface ocean temperatures will lead fisheries to move. It is at least equally unclear how the present system for fisheries management could adapt to such shifts. Such possibilities, however, do not alter the conclusion that fixed boundaries best preserve the division of authority over the world’s oceans that resulted from the Third Law of the Sea Convention. Thus, the preceding discussion suggests that the fixing of ocean boundaries on the basis of presently-accepted baselines would be wise because it promotes stability in boundaries, be fair because it preserves the present allocation of authority over the oceans, and be efficient because it avoids the costs of adjustment while facilitating adaptation to climate change.40 Legal feedbacks do not alter the amount of climate change, but instead aggravate the suffering that will accompany such change. It is a task of legal scholarship to aid societal adaptation to global climate change by identifying and addressing these legal feedbacks. The example of such a legal feedback mechanism discussed in this Chapter is the present law of baselines. In particular, it is argued that the rule that maritime boundaries should be tied to ambulatory baselines, will, as the result of a rising sea level, encourage wasteful spending by states and lead to uncertainty in boundaries and hence conflict. Thus, it is concluded that states should move toward fixing ocean boundaries on the basis of presently-accepted baselines. The contingency of maritime boundaries upon the continued existence of baselines is a vestigial remnant of the naturalist’s position that the existence of land is the source of authority over the ocean. That it has persisted through more positivist times reflects the fact that until recently, it was assumed that baselines were relatively constant. But, as we have come to realize that our assumption regarding the constancy of nature was simplistic and, inasmuch as nature declines to negotiate, it is we and our laws which must adapt.

40

I leave unaddressed whether the same analysis applies to the domestic use of ambulatory boundaries, for example, in dividing the public ownership of the littoral zone and the private ownership of land extending toward the beach. For a history and analysis of the use and abuse of the “ordinary high water line” in Florida, see Sara Warner, Down to the Waterline: Boundaries, Nature and the Law in Florida (2005).

Chapter II The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary Delimitation Clive Schofield 1 I. Introduction Islands have become a particularly troublesome feature of the maritime political land and seascape around the world in recent years. This is certainly the case in East and Southeast Asian seas, which, in terms of the number and complexity of overlapping jurisdictional and sovereignty claims, comprise arguably the most keenly contested waters worldwide. Many of these disputes are linked to the presence of frequently small, remote and, at first glance, apparently worthless islands. Two broad but interrelated categories of disputes related to islands can be identified. First, contentious disputes over island sovereignty have emerged. Second, opposing views have arisen over the insular status to be accorded to particular features, and thus their capacity to generate claims to maritime jurisdiction. A further important concern is the role such insular features should play in the context of maritime boundary delimitation. This paper provides a maritime jurisdictional overview, against which context the importance of islands is assessed. In the process, disputes over islands are highlighted. The regime of islands in the context of the United Nations Convention of the Law of the Sea is then addressed.2 This is a significant issue, as the majority of potential maritime boundaries around the world remain undelimited, and disputes over islands frustrate or complicate access to and management of ocean resources. Such disputes also represent a significant source of discord among states with the

1

2

QEII Research Fellow, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Wollongong, NSW 2522, Australia. E-mail: [email protected]. Dr Schofield is the recipient of an Australian Research Council QEII Fellowship (DP0666273). United Nations, United Nations Conventions on the Law of the Sea, U.N. Sales No. E.97.V.10 (1983), available at http://www.un.org/Depts/los/convention_agreements/convention_overview _ convention.htm.

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potential to cause friction in bilateral relations and ultimately act as flashpoints for armed confrontation. The issue of distinguishing between types of insular feature, especially what constitutes an “island” versus a “rock” in the context of the Law of the Sea Convention Article 121, must be considered. This is a crucial distinction in respect of the claims to maritime jurisdiction that may be generated from such features. Developments potentially contributing towards the clarification of Article 121 are then discussed prior to a review of the role of islands in maritime boundary delimitation. Examples of islands being accorded variable effect in the construction of equidistance line boundaries are provided, drawn from the experience of state practice and the jurisprudence of international judicial and arbitral courts. Finally, some brief concluding observations and reflections are offered.

II. Claims to Maritime Jurisdiction and Islands Before the middle of the 20th Century, coastal state jurisdiction rarely extended more than three nautical-miles (n.m.) offshore.3 Since then, there has been a tremendous increase in the maritime space coming under the jurisdiction of coastal states, notably as a consequence of the establishment of the 200-n.m. breadth exclusive economic zone (EEZ) regime under the Law of the Sea Convention.4 Indeed, it has been estimated that if all coastal states were to exert their maximum possible claims (excluding extended continental shelf claims), approximately 44.5 percent of the world ocean would fall under some form of national jurisdiction.5 Inevitably, this significant extension of coastal states’ sovereignty seawards has generated the potential for many “new” maritime boundaries and a host of overlapping jurisdictional claims and offshore boundary disputes.6 1. The Importance of Islands Many disputes over islands appear to be over the possession of a handful of remote, barren, small and often uninhabited islands, rocks, low-tide elevations and reefs. Nonetheless, such features have the capacity to prompt fierce diplomatic exchanges between states, to sour bilateral relations, and even to act as a trigger for military 3

4

5 6

Technically the correct abbreviation for a nautical mile is “M” (“n.m.” being the abbreviation for nanometres). However, “n.m.” is widely used by many authorities (for example the United Nations Office of Ocean Affairs and the Law of the Sea) and appears to cause less confusion than “M”, which is often taken to be an abbreviation for metres. United Nations Conventions on the Law of the Sea, supra note 2, art. 57; see also John Robert Victor Prescott & Clive Schofield, Maritime Political Boundaries of the World 9–10 (2005). Prescott & Schofield, supra note 4, at 9. Id. at 217.

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confrontation. What prompts such fierce defence of national claims over such seemingly insignificant offshore features? Crucially, Paragraph two of Article 121 of the Convention provides that “islands,” in an identical fashion to mainland coasts, are capable of generating a full suite of maritime zones: . . . the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this convention applicable to other land territory.

In the context of extended claims to maritime jurisdiction, therefore, even small islands potentially have huge maritime zone generative capacity with significant resource and/or security implications. Critically, if an “island” had no maritime neighbors within 400-n.m., it could generate 125,664-sq. n.m. [431,014km2] of territorial sea, EEZ, and continental shelf rights. In contrast, if deemed a mere “rock” incapable of generating EEZ and continental shelf rights (see below), a territorial sea of only 452-sq. n.m. (1,550km2) could be claimed.7 The potential capacity of islands to generate maritime zones of jurisdiction provides the rationale underpinning the significance attached to islands in the recent past, and the allied rise in the number of international disputes involving islands. The “trouble with islands” therefore largely stems from the advent of extended claims to maritime jurisdiction and the perception that the possession of even extremely small insular features can potentially give rise to claims to jurisdiction over large areas of ocean space and, particularly, the marine resources contained therein. In this context it is worth emphasising that the broad maritime zones of the continental shelf and EEZ, which encompass the vast majority of this extension of coastal state jurisdiction offshore, are crucially important to coastal states, particularly in respect of access to and management of ocean resources. Fisheries remain significant to many states, especially in terms of food security. Offshore hydrocarbons have also taken on increasing importance, enhanced by growing global energy security concerns. Additionally, these extended zones of maritime jurisdiction are gradually acquiring greater importance in terms of maritime security.8 With regard to security, control over certain islands is especially attractive to states as a consequence of their strategic location. An oft-cited example of this factor is the proximity of the contested Spratly Islands in the South China Sea to a strategic waterway of global significance, providing the key maritime link between the Indian Ocean and East Asia.9

7 8 9

Id. at 248–49. Additionally, a contiguous zone out to 24 n.m. may be claimed. Id. See, for example, Ralf Emmers, Maritime Disputes in the South China Sea: Strategic and Diplomatic Status Quo at 7–9 (Institute for Defense and Strategic Studies (Sing.) Working Paper No. 87, Sept. 2005).

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A related consideration is that sovereignty disputes over islands and the waters associated with them, as well as disputes over the role that certain islands should have in maritime boundary delimitation, often give rise to overlapping maritime claims (see below). This leads to considerable uncertainties over the extent of coastal state jurisdiction, which in turn has implications for maritime security. Disputes over islands and a lack of agreed maritime boundaries result in a complex mosaic of overlapping jurisdictional and sovereignty claims, undermining maritime security enforcement efforts. This can be viewed as an urgent concern in a post-9/11 world which has elevated maritime security to an issue of leading importance, especially in light of the global economy’s dependence on seaborne trade. 2. Disputes Over Islands As previously noted, there are two broad types of island disputes: those relating to sovereignty over islands themselves, their land territories and their related maritime space; and those concerned with the capacity of particular insular features to generate claims to maritime jurisdiction and their role in the delimitation of maritime boundaries. With regard to the former category, the global scope and significance of the problem is discussed elsewhere, which provides an overview of sovereignty disputes over island territories worldwide.10 It is worth noting in this context, however, that it is possible to resolve sovereignty disputes over islands, and a number of such disputes have been settled in recent years, often through resort to international arbitration or the International Court of Justice (ICJ). These include the dispute between Eritrea and Yemen concerning sovereignty over the Hanish Islands, resolved through international arbitration tribunal decisions in 1998 and 1999, the dispute over the Hawar Islands between Bahrain and Qatar, ruled on by the ICJ in 2001, as well as Indonesia and Malaysia’s dispute over the Sipadan and Ligitan Islands, and Malaysia and Singapore’s dispute over Pedra Branca/Pulau Batu Buteh, Middle Rocks and South Ledge, also resolved through ICJ decisions of 2002 and 2008 respectively. It is also notable that a number of the sovereignty disputes over islands listed are currently subject to third-party dispute resolution proceedings, such as the disputes between Colombia and Nicaragua and between Malaysia and Singapore, both of which were, at the time of writing, before the ICJ. The question of the treatment of islands in maritime boundary delimitation is similarly vital to coastal states around the world, and there are numerous examples of this type of dispute (see below). The significance of the issue is also reinforced by the special protection accorded to boundary treaties in international law.11

10 11

See also Prescott & Schofield, supra note 4, at 265–84. Notably, Vienna Convention on the Law of Treaties art. 62 (2)(a), May 23, 1969, 1155 U.N.T.S. 331, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/ 1_1_1969.pdf, which serves to exclude boundary treaties from the rule that a party to a treaty may invoke “a fun-

The Trouble with Islands: The Definition and Role of Islands and Rocks

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These factors are clearly closely intertwined, and the potential role of islands in delimitation and the generation of claims to maritime jurisdiction can itself be a key factor influencing any dispute over sovereignty. In this context, the geopolitical dimensions of disputes over islands also cannot be ignored. States are inextricably linked to their territory, and any potential loss of claimed territory, however slight, can be construed as a threat to a state’s sovereignty, security and integrity. In consequence, such disputes frequently provide fertile ground for nationalistic rhetoric and flag-waving.12 Furthermore, disputes should be seen in their overall context, including the history of relations between the parties. The territory at stake may well be insignificant, but the dispute may often represent a useful pressure point and, in reality, may merely represent a symptom of an already strained or traditionally antagonistic relationship.13 3. The Regime of Islands The Law of the Sea Convention distinguishes between islands, rocks and low-tide elevations. The Convention also provides rules relating to artificial islands. Article 121 dealing with the regime of islands provides that: 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

The question of the definition of “islands” and their treatment in the context of the delimitation of maritime boundaries is a complex and crucially important one to coastal states. In consequence, the issue has generated considerable scholarly debate over a sustained period of time.

12

13

damental change in circumstances” as a ground for terminating a treaty on notice; and the Vienna Convention on Succession of States in Respect of Treaties art. 11, Aug. 23, 1978, 1946 U.N.T.S. 3, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf, which provides that a succession of states “does not as such affect a boundary established by a treaty or obligations and rights established by a treaty and relating to the regime of a boundary.” The United Kingdom and Argentina’s 1982 conflict and continuing dispute over the Falkland Islands (Islas Malvinas) being a case in point. The disputes between Greece and Turkey over Aegean issues, and between Japan and its neighbors where there is a long history of mutual animosity and historical baggage, provide good examples.

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4. Defining Islands Paragraph 1 of Article 121 identifies four requirements for a feature to qualify legally as an “island.” The insular criteria are that an island must be: “naturally formed;” an “area of land;” “surrounded by water;” and critically, “above water at high tide.” The “naturally formed” requirement clearly serves to disqualify artificial islands such as platforms, for example, constructed on submerged shoals, low-tide elevations or reefs. Island-building activities on the part of states, in an effort to enhance their claims to maritime space by creating new islands, is therefore contrary to the Convention. The provision that an island be composed of “an area of land” would seem, at first glance, to be a fairly self-evident requirement. However, in certain circumstances this aspect of insular definition can be problematic and open to dispute.14 Similarly, the status of small features claimed as islands but actually being no more than sand bars subject to cyclical erosion and deposition has been questioned.15 The “surrounded by water” requirement may be regarded as a largely uncontroversial rule. This is so because if a feature is indeed linked to the mainland coast by, for example, a sandbar, to such an extent that it may be considered an integral part of the mainland coast, then it follows that the feature takes on the characteristics of the mainland coast. As such, the feature would have a baseline and thus be capable of generating claims to the full suite of maritime zones, just as it would do as a full-fledged island. The question of an island being “above water at high-tide” is fundamental. A particular feature’s relationship to the tidal level is vital in distinguishing between islands (above high-tide), low-tide elevations (above low-tide but submerged at high-tide) and non-insular features (submerged at low-tide). This concern is, however, intimately linked to the choice of vertical tidal datum used to determine what represents the high and low tidal levels. The choice of vertical datum can therefore have a profound impact on the status of certain insular features, for example, whether a particular feature is an island or a low-tide elevation, and consequently on the capacity of a particular feature to generate extensive maritime

14

15

A fine example of this is that of Dinkum Sands, a formation lying off the Alaskan arctic coast. Composed of alternating layers of sea ice and gravel, the dispute over the feature between the Alaskan state authorities and the U.S. federal government turned on whether that part of the formation’s vertical height made up of ice could be counted when testing the feature against the “above water at high-tide” provision. See Clive Symmons, When is an “Island” Not an “Island” in International Law? The Riddle of Dinkum Sands in the Case of U.S. v. Alaska, 2 International Boundaries Research Unit [I.B.R.U.] Maritime Briefing No. 5, at 6 (1999). Aves Island/Bird Rock, which has influenced maritime boundary delimitation between its Venezuela, which exerts sovereignty over and occupies the feature, and the Caribbean territories of France, the Netherlands and the United States, represents a good example of this phenomenon (see infra).

The Trouble with Islands: The Definition and Role of Islands and Rocks

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claims to jurisdiction.16 No universally accepted vertical tidal datum is, however, in use – leaving the choice up to the coastal states and thus providing potential scope for dispute.17 Uncertainty has also been raised over whether the feature would have to be permanently above water or could, in exceptional circumstances such as freak weather or tidal conditions, be overtopped.18 Regarding this issue, there has been a plausible suggestion that the high-tide line on charts officially recognized by the coastal state could be used.19 The question of the definition of islands has provoked fierce debate over the years, particularly in the run up to the conclusion of the Law of the Sea Convention in 1982. The most significant issues of contention were related to island size and habitability. Many proposed that there should be some size limit coupled with the definition of what constitutes an “island,” such as to prevent small isolated islet, even if permanently above water, from generating maritime claims.20 In the end, Article 121 was drafted without any size criteria for defining islands. However, concerns over size and habitability were included in the Convention in the form of Paragraph Three of Article 121. 5. When Is an Island Not an Island? Article 121(3) of the Law of the Sea Convention states: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Rocks therefore represent a disadvantaged sub-category of islands. The distinction between what might be termed fully-fledged “islands” and mere “rocks” has, as previously noted, a profound impact on the maritime zone-generative capacity of such insular features, and thus value to a potential claimant. This provision provokes questions not only as to what constitutes a “rock,” but also presents a

16

17

18 19

20

Chris Carleton & Clive Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, 3 I.B.R.U. Maritime Briefing No. 3, at 38 (2001). Id. at 21–25. See also Nuno Sergio Marques Antunes, The Importance of the Tidal Datum in the Definition of Maritime Limits and Boundaries, 2 I.B.R.U. Maritime Briefing No. 7 (2000). See Clive Symmons, The Maritime Zones of Islands in International Law 43 (1979). See P.B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation, The Hydrographic Society: Special Publication No. 2, 3d (1987). This suggestion is analogous to the Law of the Sea Convention, supra note 2, art. 5 dealing with low-water line rather than high-water mark: “Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State.” See, e.g., David Hodgson, Islands: Normal and Special Circumstances, (U.S. Dep’t of State: Bureau of Intelligence and Research, Research Study, 1973).

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twofold interpretational problem, as the Convention provides no definition as to when a feature “cannot sustain human habitation,” or what constitutes the “economic life” of a particular feature. With regard to the term “rock,” debates have focused on the issue of whether a “rock” is to be interpreted in its ordinary meaning (a hard part of the earth’s crust), or the definition be broadened to encompass features such as islets, cays, sandbanks and barren islands.21 A brief review of the relevant literature is enough to indicate that no consensus has been reached on this issue. Concerning an insular feature’s capacity to “sustain human habitation” or an “economic life” of its own, there has been considerable scholarly debate on the issues, especially among international lawyers.22 Relevant literature indicates that commentators have advocated wildly differing interpretations of the text of Article 121(3).23 6. Low-Tide Elevations A low-tide elevation is defined in Article 13 of the Law of the Sea Convention, which repeats the terminology used in Article 11 of the Geneva Convention on the Territorial Sea and Contiguous Zone, as a “naturally-formed area of land which is surrounded by water at low-tide but submerged at high-tide.” Such a feature may be used as a territorial sea basepoint, but only if it falls wholly or partially within the breadth of the territorial sea measured from the normal baseline of a state’s mainland or island coasts. A low-tide elevation’s value for maritime jurisdictional claims is therefore geographically restricted to coastal locations. Such features have therefore been termed “parasitic basepoints” as their zone-generative capacity is reliant on their proximity to a mainland or island baseline.24 It is worth noting that low-tide elevations that fall wholly or partially within the territorial sea of another low-tide elevation (itself wholly or partially within the

21

22

23 24

See, e.g., Barbara Kwaitkowska & Alfred Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own, Netherlands Y.B. of Int’l L. XXI, 139–81 (1990); and Prescott & Schofield, supra note 4 at 61–75. See Jonathan Charney, Rocks That Cannot Sustain Human Habitation, 93 Am. J. of Int’l L. 863–78 (1999); Alex Oude Elferink, Clarifying Article 121 (3) of the Law of the Sea Convention: the Limits Set by the Nature of International Legal Processes, 6 Boundary and Security Bull. No. 2, 58–68 (1998); Kwiatkowska & Soons, supra note 21; Prescott & Schofield, supra note 4, at 57–91; Jon Van Dyke, Joseph Morgan & Jonathan Gurish, The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?, 25 San Diego L. Rev., 425–94 (1988); and Jon Van Dyke & Robert Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources, 12 Ocean Dev’t & Int’l L.J. 265–84 (1983). Prescott & Schofield, supra note 4, at 58. Clive Symmons, Some Problems Relating to the Definition of “Insular Formations” in International Law: Islands and Low-Tide Elevations, 1 I.B.R.U. Maritime Briefing No. 5, at 7 (1995).

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territorial sea of a mainland or island coast) are not entitled to generate a claim to a territorial sea. Thus there can be no “stepping stone” or “leapfrog” effect offshore of low-tide elevations linked by territorial seas. It follows that a low-tide elevation located beyond the territorial sea may not be used as a basepoint for generating maritime zones and therefore represents “no more than a navigation hazard.”25 The exception to this rule is provided by Article 7(4) of the Convention, whereby low-tide elevations may be used as appropriate basepoints for straight baselines if lighthouses or similar structures have been constructed on them, or where general international recognition of the drawing of baselines from such features exists. 7. Submerged Banks and Shoals and Artificial Islands Banks and shoals that are never above low-water have no capacity to generate claims to maritime jurisdiction under the Law of the Sea Convention. Additionally, Article 60(8) states unambiguously: “Artificial islands, installation and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.” Furthermore, entirely submerged features have no zone generative capacity even if a structure has been built on them, which is itself permanently above sea level. These apparently clear-cut international legal rules have not, however, prevented coastal states from advancing claims from such features. For example, it has been reported that in the South China Sea, both China and Taiwan claim the Macclesfield Banks as islands capable of generating maritime claims to jurisdiction, despite the fact that the features in question lie between 7 and 82 meters below sea level.26 8. Clarifying Article 121 Despite exhaustive analysis by eminent scholars, Article 121 of the Convention has, thus far, defied definitive interpretation. Indeed, it is almost inconceivable that such a definitive interpretation could be achieved merely on the basis of analysis of the text of Article 121 itself. This is in many ways unsurprising, as the regime of islands was drafted in an intentionally vague and ambiguous fashion. An examination of the drafting history of Article 121 shows that the states that were the key architects of these provisions had specific, and conflicting, national concerns which informed the debate. Thus, Romania, Turkey and Denmark were all keen on minimizing the potential impact of small islands on extended maritime zones and the delimitation of maritime boundaries with neighboring states.

25 26

Id. at 7. Daniel Dzurek, The Spratly Islands: Who’s on First?, 2 I.B.R.U. Maritime Briefing No. 1, at 54 (1996).

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Specifically, Romania was concerned over the potential for Ukraine’s Serpents (Zmeinyy) Island, a small sheer-sided rock outcrop which lies around 23-n.m. east of the terminus of the land boundary between the two states on the coast, to impact on the delimitation of bilateral maritime boundaries.27 Similarly, Turkey had a clear interest in restricting potential claims from islands in the Aegean, the vast majority of which are under Greek sovereignty.28 For its part, Denmark, with claims for the Faeroe Islands in mind, was keen to minimize the United Kingdom’s potential claims for Rockall in the northeast Atlantic.29 Venezuela, on the other hand, was anxious to ensure that small insular features retained their potential of generating extended maritime jurisdictional zones in order to preserve its claims related to Aves Island (Bird Rock) in the eastern Caribbean Sea.30 If strict equidistance lines are constructed around Aves Island, the area so enclosed has been calculated at 19,270-sq. n.m.31 In light of this, it has been observed that clarification of Article 121 of the Convention is likely to be achieved only through developments in national legislation pertaining to this issue, and in terms of developing state practice and case law.32 State practice on this issue is, however, largely unhelpful as both states and international courts and tribunals have proved adept at side-stepping the issue. For example, where islands are present in the maritime boundary delimitation context, states tend to concentrate on dealing with the islands in question in relation to the delimitation lines, rather than addressing the issue of the insular status of each state’s features. Similarly, international courts and tribunals have proved reluctant to deliver a definitive and authoritative interpretation of Article 121 when the opportunity has arisen.33 Nonetheless, two notable developments potentially assisting in the clarification of the interpretation of the Article are worth highlighting: the United Kingdom’s “roll-back” of its claims in respect of the islet of Rockall; and some recent pronouncements emanating from the International Tribunal on the Law of the Sea. With regard to Rockall, this tiny and isolated rocky pinnacle lies nearly 200-n.m. off the northwestern coast of Scotland.34 Although sovereignty over the feature is uncontested, the United Kingdom used Rockall as a basepoint for defining its 200-n.m. fishery zone limit in 1977, raising protests from Denmark, Iceland and

27 28 29 30 31

32 33 34

Prescott and Schofield, supra note 4, at 65–68. Id. at 68–70. Id. at 70–72. Id. at 72–75. Robert Bradley, Martin Pratt and Clive Schofield, Jane’s Exclusive Economic Zones 2000–2001, at 331 (Coulsdon: Jane’s Information Group, 2000). Oude Elferink, supra note 22, at 58. Id. at 63. The area of Rockall is estimated at 642m2 according to Oude Elferink, see supra note 22, at 59.

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Ireland.35 However, as a prelude to its accession to the Law of the Sea Convention in 1997, the U.K. declared that Rockall was in fact a “rock” in line with Article 121(3), and was thus not a valid basepoint for its fishery zone. Specifically, it was stated that “The United Kingdom’s fishery limits will need to be redefined based on St Kilda, since Rockall is not a valid base point for such limits under Article 121(3) of the Convention.”36 This seems appropriate, as Rockall has been termed a “classic example of a rock that fails the tests of habitation and economic life.”37 Furthermore, Rockall was cited as an example of a “rock” in the course of the Third United Nations Conference on the Law of the Sea, which resulted in formation of the Law of the Sea Convention, including, Article 121.38 As a result, the fishery zone limit was rolled-back to a limit measured from basepoints located on the islands fringing the Scottish mainland, resulting in a loss to the U.K. of around 60,000-sq. n.m. of previously claimed fishery zone.39 Rockall itself now merely generates a 12-n.m. territorial sea claim as evidence of its “vestigial insular status in international law.”40 This remains the sole example to date, however, of a state voluntarily reclassifying an insular feature and downgrading it from a fully-fledged island to a mere rock and thus reducing the area of its claimed maritime zones. In the context of cases concerning illegal fishing before the International Tribunal, in the Volga case,41 Judge Budislav Vukas pronounced specifically on the issue of islands and Article 121 of the Convention. The Volga case concerned the prompt release of a Russian-flagged fishing vessel, apprehended in the vicinity of Australia’s Heard Island and McDonald Island. Judge Vukas made a point of recording his opposition to the EEZ claims that Australia had made from these features. In arriving at this view, he reasoned: The reason for giving exclusive rights to the coastal states was to protect the economic interests of the coastal communities that depended on the resources of the sea, and thus to promote their economic development and enable them to feed themselves.

35

36

37 38 39 40 41

See Clive Symmons, Ireland and the Rockall Dispute: An Analysis of Recent Developments, 6 Boundary and Security Bull. No. 1, at 78–93 (1998). House of Commons (HC) Hansard, Written Answers, July 21, 1997, cols. 397–98. An identical statement was made in the House of Lords (HL) a day later on July 22, 1997, Hansard, Written Answers, July 22, 1997, cols. 155–156. Quoted in David Anderson, British Accession to the UN Convention on the Law of the Sea, 46 I.C.L.Q. 761–86, 778 (1997); and Symmons, supra note 35, at 83. See also Oude Elferink, supra note 22, at 59. Symmons, supra note 35; and Prescott & Schofield, supra note 4, at 83. Anderson, supra note 36, at 778. Id. at 78–93. Id. at 93. The “Volga” Case (Russian Federation v. Australia) (Prompt Release) I.T.L.O.S. Case No. 11 (2002).

30

Clive Schofield This rationale does not apply to uninhabited islands, because they have coastal fishing communities that need such assistance.42

Although Judge Vukas acknowledged that the EEZ regime may be “useful for the more effective preservation of the marine resources,” he went on to state that “it is not necessary to give exclusive rights to achieve this goal,” and that there were alternative mechanisms to protect and preserve such fragile resources, for example, through the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).43 Judge Vukas had previously taken a similar position in relation to France’s claimed EEZ around the Kerguelen Islands, which adjoins that claimed by Australia from Heard Island and McDonald Island.44 The islands in question are undoubtedly remote and inhospitable in character. Heard Island is located in sub-Antarctic waters, more than 2,200-n.m. southwest of Perth in Western Australia (McDonald Island lies 23-n.m. further west and the Kerguelen group 238-n.m. to the northwest).45 They are by no means tiny features however. While McDonald Island and its associated islets are around 2.5km2 in area, Heard Island covers an area of 368km2 and the Kerguelen archipelago encompasses 7,215km2.46 Although Heard Island and McDonald Island lack permanent inhabitants, Kerguelen hosts a small settlement, largely devoted to supporting scientific research, which is staffed year-round.47 In this context, it is also worth observing that Australia and France have advanced claims to 200-n.m. maritime jurisdictional zones since the late 1970s.48 Australia and France also effectively recognised each other’s EEZ claims through their maritime boundary delimitation of 1982, and in doing so recognised each other’s insular features from which the maritime claims being divided have been made as “islands” rather than “rocks.”49 Neither Australia’s and France’s claimed EEZs surrounding

42 43

44

45

46

47 48

49

Id. Declaration of Vice-President Vukas, at para. 6. Id. at para. 7. See also Warwick Gullett and Clive Schofield, Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean, 22 Int’l J. of Marine & Coastal L. 545–583 (2007). The “Monte Confurco” Case (Seychelles v. France) I.T.L.O.S. Case No. 6, Declaration of Judge Vukas. See Geoscience Australia, Heard and McDonald Islands, available at http://www.ga.gov.au/ education/facts/dimensions/externalterr/heard.htm. See also Gullett & Schofield, supra note 43. See Australian Antarctic Division, About Heard Island, available at http://www.heardisland. aq/ about/location_geography.html; see also Ministère de l’Intérieur, de l’Outre-Mer et des Collectivités territoriales, Les T.A.A.F., available at http://www.outre-mer.gouv.fr/outremer/front?id=outremer/ decouvrir_outre_mer/taaf/publi_P_les_t_a_a_f_1082040279389. Heard Island has also supported sealers in the past. See also Gullett & Schofield, supra note 43. Australia claimed a 200-n.m. fishing zone in Nov. 1979, and an EEZ in 1994. France claimed an EEZ around the Kerguelen Islands in February 1978. See Gullett & Schofield, supra note 43. Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, Jan. 4, 1982 (in force Jan. 10, 1983). Treaty text available at http://www.un.org/

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these islands, nor their delimitation of a maritime boundary between them between these islands, has given rise to any formal protest from other states. Indeed, in the Volga case the Russian Federation did not challenge Australia’s claim of an EEZ around Heard Island and McDonald Island. Furthermore, the majority view at the International Tribunal appears to have been that Australia’s right to claim an EEZ was valid, and Judge Vukas’s comments were issued through a separate declaration.50 Finally, it can be observed that in the Jan Mayen case between Norway and Denmark (on behalf of Greenland), the ICJ found that Jan Mayen was clearly an “island” rather than a “rock.”51 As Jan Mayen has an area of 373km2, it can be viewed as being of comparable size to Heard Island, and considerably smaller than the main island of the Kerguelen Islands archipelago. It is therefore unclear to what extend Judge Vukas’s intervention clarifies the debate on the interpretation of the Law of the Sea Convention’s, Article 121.

III. The Role of Islands in Maritime Boundary Delimitation Wherever the maritime claims of neighboring states overlap, a potential maritime boundary situation exists. The delimitation of maritime boundaries between states is governed by the international law of the sea, and the relevant provisions on this issue codified in the Law of the Sea Convention can be regarded as reflecting customary international law. As previously noted, extended claims to maritime jurisdiction are of relatively recent vintage. In light of this, it is perhaps unsurprising that the maritime political map of the world is profoundly incomplete. Indeed, of an estimated 427 potential maritime boundaries, only about 168 (39 percent) have been formally agreed, and many of these only partially.52 Furthermore, whilst in the past, maritime boundary delimitation, confined in scope to such a relatively narrow band of inshore waters, was rarely controversial or problematic, this is no longer the case. Not only are the maritime zones subject to delimitation themselves far broader, but offshore

50

51

52

Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-FRA1982MD.pdf. See also 2 International Maritime Boundaries 1185–94 (Jonathan Charney & Lewis Alexander eds., 1993). See also Gullett & Schofield, supra note 43. Alternatively, other ITLOS Judges may have taken the view that this issue was not relevant to the issue of the prompt release of the fishing vessel which they were bound to consider without delay and therefore declined to comment one way or the other. See also Gullett & Schofield, supra note 43. Case Concerning maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of June 14, 1993, available at http://www.icj-cij.org/docket/in dex .php?p1=3&p2=3&k=e0&case=78&code=gjm&p3=4; see also Marius Gjetnes, The Spratlys: Are they Rocks or Islands?, 32 Ocean Dev’t & Int’l L., 191–204, 193, 199. Prescott & Schofield, supra note 4, at 217–18.

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activities have become considerably more diverse and offshore resources appreciably more important to the economic well being of coastal states. In addition to the considerably greater spatial scope of the maritime areas to be delimited, therefore, these developments have served to enhance the complexity of maritime boundary delimitation negotiations whilst simultaneously raising the stakes significantly.53 Where overlapping claims to territorial seas out to 12-n.m. exist, Article 15 of the Law of the Sea Convention applies.54 This article provides for delimitation on the basis of the equidistance method, unless the interested parties both agree to the contrary or there exists an “historic title or other special circumstances” in the area to be delimited.55 In respect of the broad resource-oriented national zones of sovereign rights, the continental shelf and EEZ, Articles 74 and 83 of the Convention respectively call in similarly general terms for agreement to be reached on the basis of international law in order to achieve “an equitable solution.”56 No preferred method of delimitation is indicated. The provisions relating to maritime boundary delimitation therefore provide only limited guidance and can be viewed as offering either great flexibility to coastal states, or alternatively, considerable scope for conflicting interpretations and hence disputes. Maritime delimitation is, however, achieved not solely by reference to the Law of the Sea Convention rules, such as they are, but to the abundant relevant state practices and the findings of international courts and tribunals. This practice indicates that application of the equidistance method has proved significantly more popular as the basis for international maritime boundary agreements over time.57 As geometrically exact expressions of the midline concept, equidistance lines offer objectivity, mathematical precision and, assuming agreement exists with regard to relevant baselines, lack of ambiguity.58 This is especially the case for delimitations between opposite coasts where equidistance-based solutions represent the dominant approach to an overwhelming degree.59

53 54

55

56 57 58 59

Id. at 215–16. Law of the Sea Convention, supra note 2, art. 3 provides that states have the right to establish a territorial sea “not exceeding 12 nautical miles” measured from its baselines. Art. 15 of the Convention represents a near verbatim repetition of art. 12 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone. Law of the Sea Convention, supra note 2, arts. 74 and 83. Prescott & Schofield, supra note 4, at 238. Id. at 236. Equidistance based delimitation lines provide 89% of delimited maritime boundaries with an opposite coastal relationship. Id. at 238. See also Leonard Legault & Blair Hankey, Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitation, in 1 International Maritime Boundaries, 203–42 (Jonathan Charney & Lewis Alexander, eds., 1993).

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Inevitably, in the construction of equidistance lines, issues related to coastal geography become critical in the delimitation equation.60 In this context, the question of how outstanding geographical features, such as islands significantly far offshore, are treated is one of the most contentious issues in maritime boundary delimitation, and has given rise to numerous maritime boundary disputes. As previously discussed, if a formation fulfils the definition of an “island,” it may generate the full suite of maritime zones known to the international law of the sea, and consequently, such a feature may be crucial to a state’s claims to maritime jurisdiction and maritime boundary delimitation with neighboring states. However, even if a feature can be categorized as a fully-fledged island under law of the sea rules, it must be borne in mind that islands are not always accorded “full effect” in maritime boundary delimitations achieved either through negotiations or with third-party assistance. Equidistance lines can, therefore, be flexibly applied to deal with the disproportionate effect of particular geographical features, including islands. Indeed, there are numerous examples of state practice and case precedents where islands have received a substantially discounted or reduced effect, been partially or wholly enclaved, or even completely ignored.61 For example, the Swedish islands of Gotland and Gotska Sandon were accorded a 75 percent weight in the maritime boundary delimitation between Sweden and the then-USSR.62 International courts and tribunals have also applied modified versions of equidistance lines to take into account the presence of islands. Thus, in the U.K.France Arbitration, for example, the Scilly Isles were granted a half-effect on the delimitation line.63 Indeed, the ICJ has opted for a two-stage approach to maritime boundary delimitation, whereby a provisional equidistant line is drawn and then consideration is given to the existence of any circumstances that may justify a shift in that line in order to achieve an equitable result.64 Both state practices and the jurisprudence of international courts and tribunals have also indicated a further way to deal with islands: enclaving. This methodology is particularly suitable where islands exist toward the middle of the area to be delimited or, alternatively, on the “wrong side” of median line between opposing mainland coasts. Italy and Tunisia were faced the former situation when they came to delimit their continental shelf boundary in the Mediterranean Sea in 1971, as four Italian islands are located centrally in the Channel of Sicily. This difficulty

60

61

62 63 64

Prescott & Schofield, supra note 4, at 215–44 and 248–52. See also Legault & Hankey, supra note 59 at 203–42. For example, see Derek Bowett, The Legal Regime of Islands in International Law (1979); Hiran Jayewardene, The Regime of Islands in International Law 3–12 (1990); and Symmons, supra notes 18 and 24. 2 Charney & Alexander, supra note 49, at 2057–76. Id. at 1735–54. Prescott & Schofield, supra note 4, at 240–41.

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was resolved by giving these islands a reduced effect on the delimitation line and partially enclaving them.65 Similarly, in the France-United Kingdom delimitation in the English Channel, the Court, having established that the Channel Islands are located “‘on the wrong side’ of the mid-Channel median line,” specified that they be enclosed in an enclave formed by 12-n.m. arcs from their baselines to the north and west and by a boundary between them and the nearby French coasts to their east, south and southwest to be negotiated by the two states.66 With regard to the role of insular features of differing types in maritime boundary delimitation, it is, however, worth emphasizing that lack of certainty over the interpretation of Article 121 of the Convention has led to diverse and, on occasion, contradictory state practice. Thus, in some instances, extremely small insular features have been accorded a full role in the delimitation of continental shelf and EEZ rights, whilst other substantial, populated islands have been given a partial or reduced effect. For example, in the boundary delimitation between Australia and France concluded in 1982,67 one of the Australian basepoints relating to the delimitation in the Coral Sea appears to be no more than a low-tide elevation beyond 12-n.m. from the nearest Australian mainland or island baseline. Middleton Reef, the Australian feature in question, is located 125-n.m. from Australia’s mainland coast, and 35-n.m. from Elizabeth Reef. According to the relevant Australian Pilot charts and plans, Middleton Reef appears to be a low-tide elevation68 and has been described as “periodically submerged.”69 As a low-tide elevation located over 12-n.m. from the nearest mainland or island baseline, Middleton Reef has no capacity to generate claims to maritime jurisdiction in accordance with

65

66

67

68

69

The islands in question were Pantelleria, Linosa, Lampedusa and Lampione. The first three of these islands were each accorded 13-n.m. breadth envelopes of jurisdiction, while Lampione, which is uninhabited, was provided with a 12-n.m. breadth semi-enclave. See Chris Carleton & Clive Schofield, Developments in the Technical Determination of Maritime Space: Delimitation, Dispute Resolution, Geographic Information Systems and the Role of the Technical Expert, 3 I.B.R.U. Maritime Briefing No. 4, 19–20 (2002). See also 2 Charney & Alexander, supra note 49, at 1611–26. The exact course of the boundary between the Channel Islands and the French mainland coast was beyond the scope of the Court’s jurisdiction and was not therefore specified, see 2 Charney & Alexander, supra note 49, at 1741. This has now been accomplished through maritime boundary agreements concerning the territorial sea between France and the United Kingdom, see Carleton & Schofield, supra note 65, at 19. See Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, supra note 49. See John Robert Victor Prescott, The Uncertainties of Middleton and Elizabeth Reefs, 6 Boundary and Security Bull. No. 1, 72–77 (1998). See Stuart Kaye, Australia’s Maritime Boundaries 149 (2d, Wollongong Papers on Maritime Policy, No. 12, 2001) (Wollongong Centre for Maritime Policy).

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the Law of the Sea Convention Article 13(2). Nonetheless, it appears to have been accorded full effect for the construction of an equidistance line maritime boundary. Although small rocks may be in fact present on Middleton Reef, this would still mean that a tiny island or rock has been accorded full effect in the context of the delimitation of an EEZ maritime boundary.70 Similarly, Aves Island, located centrally in the Eastern Caribbean, has been given full effect in the delimitation of maritime boundaries between Venezuela and the Netherlands, France and the United States, despite being no more than a sandy cay located 235-n.m. from the nearest Venezuelan territory.71 Antigua and Barbuda, St Kitts and Nevis and Saint Vincent and the Grenadines have all protested the use of Aves Island as a basepoint for claims to continental shelf and EEZ rights.72 In contrast to these examples, the cases involving the islands of Gotland, the Scilly Islands and the Channel Islands mentioned above, involve populated and substantially larger islands. Nonetheless, these islands have been accorded a reduced effect in the delimitation of the maritime boundaries in question. The variety in the treatment of islands could be considered unhelpfully inconsistent. Alternatively, this can be viewed as illustrative of the flexibility with which the equidistance methodology can be applied. Of particular importance is the fact that islands are often accorded a reduced effect in maritime boundary delimitation in recognition of a disparity in the relevant coastal lengths of the coastlines involved, for example, between a small island and a mainland coastline, and the consequent disproportionate impact an island may have on the construction of a strict equidistance line. This was the case in the ICJ case involving Libya and Malta, where the ratio between relevant coastal lengths was found to be around 8:1 in Libya’s favor.73 The Court noted that this “considerable disparity” between relevant coastal lengths constituted “a relevant circumstance which should be reflected in the drawing of the delimitation line.”74 A shift in the location of the boundary line must take into account the “very marked difference in coastal lengths,” and “the difference is so great as to justify the adjustment of

70

71

72 73

74

Prescott, supra note 68, at 72. Prescott states that Laser Airborne Depth Soundings may indicate the presence of small rocks standing above high tide on Middleton Reef. Prescott & Schofield, supra note 4, at 348. See also 1 Charney & Alexander, supra note 59, at 603–14, 615–38, and 691–704. Bradley, et al., supra note 31, at 331. The Court calculated the general direction of the relevant part of the Libyan coast at 192 miles and the relevant part of the Maltese coast at 24 miles. Case Concerning Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of Apr. 21, 1984, para. 68, available at http://www.icj-cij.org/ docket/index.php?p1=3&p2=3&k=a8&case=68&code=lm&p3=4. Id.

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the median line so as to attribute a larger shelf area to Libya.”75 Although no actual ratio was disclosed in the judgment, the equidistance line was shifted 18 minutes of latitude northwards (to Libya’s advantage) as a result, giving the Maltese islands less than full effect on the final delimitation line.76 Similar considerations have come into play in other cases, for example, the Gulf of Maine case between Canada and the United States of America, and the Jan Mayen case between Norway and Denmark (on behalf of Greenland), both of which were subject to rulings by the ICJ in 1984 and 1993 respectively.77 In light of these precedents, backed by the considerable state practice of according islands a reduced impact on determining the course of maritime boundary delimitation lines, there are strong reasons to doubt that small, isolated insular features with restricted coastal fronts would be awarded full effect in delimitation against large islands or mainland coastlines. It follows therefore, that the maritime jurisdictional claims often associated with small islands, frequently according these features full effect in the definition of strict equidistance lines, are often significantly overstated.

IV. Conclusion Clearly, many maritime disputes are associated with either sovereignty over islands or their treatment in the context of the delimitation of maritime boundaries. These disputes have come to light largely as a consequence of extended maritime jurisdictional claims made by coastal states in recent years. An allied consideration is the strong perception on the part of many of these states that small and previously inconsequential insular features can give rise to potentially large claims to maritime jurisdiction and that these claims will, in turn, give rise to sovereign rights over significant ocean resources. Analysis of the regime of islands indicates that Article 121, in common with a number of key provisions of the Law of the Sea Convention, was drafted in a deliberately ambiguous fashion, and that a definitive, authoritative interpretation of what constitutes an “island” or a “rock” is currently out of reach. Consequently, Article 121 has been open to multiple, and conflicting, interpretations. Relevant state practice and the jurisprudence of international courts and tribunals may well help to clarify matters, but a definitive ruling on this issue has yet to eventuate.

75

76 77

Id. It is worth noting, however, that the Court was simultaneously at pains to point out that “the degree of such adjustment does not depend upon a mathematical operation.” 2 Charney & Alexander, supra note 49, at 1649–62. 1 Charney & Alexander, supra note 59, at 401–16; and 4 International Maritime Boundaries 2507–26 (Jonathan Charney & Lewis Alexander eds., 1998).

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It remains to be seen whether the ICJ will address this issue directly in its Judgment on the case between Romania and Ukraine relating to maritime boundary delimitation in the Black Sea, in which the status and role of Serpents Island is a crucial issue. Nonetheless, these developments indicate that both states and international courts and tribunals have evolved numerous and innovative ways in which to deal with the “trouble with islands” and achieve equitable resolutions, especially in the context of maritime boundary delimitation. This experience also highlights that the maritime claims attributed to disputed islands often tend to be significantly overstated. Overall, therefore, maritime disputes relating to islands are certainly capable of resolution, if the elusive but vital ingredient of political will can be found.

Chapter III Disputes Over Islands and Maritime Boundaries in East Asia1 Jon M. Van Dyke I. Introduction A surprisingly large number of maritime boundaries remain unresolved around the globe, and East Asia has some particularly difficult disputes. According to one recent estimate, 259 of the planet’s 427 boundary disputes have not yet been delimited.2 About half of the unresolved maritime boundaries are linked in some ways to islands and 30 or 40 of these involve sovereignty disputes over territory. In East Asia, disputes over sovereignty continue at present between Japan and Russia over the Northern Territories; between Korea and Japan over Dokdo (Takeshima); between Japan, China, and Taiwan over Daioyudao/Senkakus; between China and Vietnam over the Paracel Islands; and between China, Taiwan, the Philippines, Vietnam, Malaysia, and Brunei over the Spratly Islands. Each of these disputes over islands affects the maritime delimitation of the region. Disputes also continue in East Asia over the proper drawing of straight baselines, historical claims to bays, the breadth of the territorial sea, and the principles that should govern maritime delimitation. This paper provides an overview of these disputes, with some recommendations regarding how some of them might be addressed.

1

2

This paper builds upon and updates material found in Jon M. Van Dyke, The Republic of Korea’s Maritime Boundaries, 18 International Journal of Marine and Coastal Law 509 (2003); Jon M. Van Dyke, North-East Asian Seas – Conflicts, Accomplishments, and the Role of the United States, 17 Int’l J. of Marine & Coastal L. 397 (2002); Mark J. Valencia, Jon M. Van Dyke & Noel A. Ludwig, Sharing the Resources of the South China Sea 183–87 (1997). An earlier version of this paper was presented to the International Workshop on The United States and the Law of the Sea, at the Academia Sinica, Taipei, Taiwan, Dec. 2, 2005. Clive Schofield, The Trouble with Islands, this volume, at 31.

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II. The Sea of Okhotsk The Soviet Union, and now Russia, has occasionally suggested that the Sea of Okhotsk consists of internal waters and has drawn aggressive baselines along certain coastal areas within the Sea. The United States and other maritime countries reject Russia’s view and characterize Okhotsk as a “semi-enclosed sea” governed by Articles 122 and 123 of the 1982 United Nations Law of the Sea Convention.3 According to this view, although much of the Sea is covered by Russia’s exclusive economic zones (EEZs), a “peanut hole” of high seas exists in the middle of the Sea, which is governed by the high seas provisions of the Convention.

III. Peter the Great Bay The Soviet Union, and now Russia, has claimed that Peter the Great Bay, near Vladivostok just north of Korea, is a “historic bay” under Article 10(6) of the Law of the Sea Convention and thus that the Bay consists of internal waters. The Bay, as defined by Russia, does not meet the “semi-circle” test required by Article 10(2) and has an entrance longer than 24 nautical miles (n.m.), and the United States has protested this claim.

IV. The Northern Territories One of the most contentious and festering of Northeast Asia’s disputes concerns the small islands north of Hokkaido controlled by Russia but claimed by Japan as an essential part of its national territory. These islands – usually called the “Northern Territories” – include the Habomai group, Shikotan, Kunashir (Kunashiri in Japanese), and Iturup (Etorufu), and they contain a combined land area of 5,000 square kilometers. The Soviet Union took these islands from Japan after World War II,4 and expelled the 17,000 Japanese residents. Russia now claims title based on the language in the 1951 San Francisco Peace Treaty, in which Japan “renounces all right, title and claim to the Kurile Islands.” But Japan argues that these islands are not covered by this phrase, because they were not among the islands Japan had acquired in 1875 in exchange for Sakhalin, and that, historically, they had 3

4

United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982) and The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83. V.5 (1983). According to Article 2 of the Peace Treaty of 1951, Japan renounced all claims to the Kurile Islands and to that part of Sakhalin and its adjacent islands that it had obtained in 1905.

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always been Japanese.5 The fishing resources around these islands are productive and intensively utilized, and include Pacific saury, Japanese anchovy, Japanese flying squid, pink salmon, Pacific cod, Alaska pollack, Pacific herring, and Japanese sardines.6 In the summer of 2001, Japan denounced South Korean fishing in this area, asserting that the fishing zones “are within the exclusive economic zone and under Japan’s sovereignty.”7 South Korea contended that it had been given permission to fish there by Russia, but to retaliate against the South Korean activity, Japan banned South Korean fishing off the Pacific coast areas of Aomori, Iwate, and Miyagi Prefectures.

V. The Maritime Boundaries Between North and South Korea 1. The East Coast of the Korean Peninsula North Korea apparently claims one single 300-n.m. straight baseline along its east coast connecting the northeast corner of the country at the mouth of the Tumen River to its southeast corner where the Armistice Line meets the sea.8 Such a claim certainly exceeds the permissible limits established by Article 7 of the Law of the Sea Convention, and this line is not recognized as legitimate by most countries, including the United States.9 This coastline is not particularly deeply indented10 and does not have any fringing islands, and North Korea has never made a serious claim that its two indentations on the East Sea should be viewed as historic

5

6 7 8

9

10

Mark J. Valencia and Noel Ludwig, Minerals and Fishing at Stake in Dispute over Northern Territories, Japan Times, Feb. 10, 1991; see also Mark J. Valencia & Noel Ludwig, Southern Kurile Islands/Northern Territories Resource Potential, 24:2 GeoJournal 227 (1991). Id. Japan: Limits on South Korean Fishing, N.Y. Times, June 21, 2001, at A8, col. 5 (nat’l ed.). See Jin-Hyun Paik, Some Legal Issues Relating to Maritime Jurisdictions of North Korea, in The International Implications of Extended Maritime Jurisdiction in the Pacific 94, 94–95 (John P. Craven, Jan Schneider, and Carol Stimson eds., Law of the Sea Institute, Honolulu, 1989) (citing references to two Soviet sources republished in U.S. Navy Dept., Manual of International Maritime Law 386–87 (1968), and G.S. Gorshkov, International Legal Regime of the Pacific Ocean, 7 Morskoy Sbornik 97 (1970)); J.R.V. Prescott, Maritime Jurisdiction in East Asian Seas 21 (Occasional Papers of the East-West Center Environment and Policy Institute, Honolulu, Hawaii, Paper No. 4, 1987). Statement by Morris Sinor, CINCPAC Fleet Judge Advocate, in International Navigation: Rocks and Shoals Ahead? 337 (Jon M. Van Dyke, Lewis Alexander, and Joseph R. Morgan eds., 1988); see generally Paik, supra note 8, at 94–96. Paik describes the east coast of North Korea as “simple and monotonous with few offshore islands.” Paik, supra note 8, at 100. Prescott calls the broad bay Tongjoson Man a “slight curvature.” Prescott, supra note 8, at 18.

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bays.11 Professor Paik has concluded that: “It seems very doubtful that the East Korea Bay and the small indentation north of it would fall under the category of historic bays.”12 South Korean vessels do not at present challenge North Korea’s trapezoidalshaped EEZ claim extending from this line, to avoid controversy and because the disputed area is not thought to be a resource-rich area. In February 2000, nongovernmental fisheries associations in North and South Korea negotiated an agreement that allowed South Korean vessels to fish in North Korea’s EEZ in the East Sea until 2005, with profits to be shared between the two countries.13 About 400 South Korean squid vessels took advantage of this arrangement. North Korea’s claimed maritime zones in the East Sea cannot be justified under the Law of the Sea Convention or any other principles of customary international law. It is true that North Korea is somewhat geographically disadvantaged, having a concave coastline and having two neighbors (Russia and South Korea) that wrap around it. North Korea is entitled to maritime zones that allow it to project into the sea, but the principles of maritime delimitation are not designed to restructure the realities created by physical geography. The delimitation line between North and South Korea should thus be the equidistance line, which would go north of the line now claimed by North Korea and would give South Korea more maritime space.14 2. The West Sea (Yellow Sea) It will be challenging to reach agreement on the maritime boundary in the West Sea/Yellow Sea because of the five South Korean islands nestled close to the North Korean coast, and because of the disputed status and location of the “Northern Limit Line.”15 South Korea controls the islands of Paengyong, Taechong, Sochong, Yongpyong, and Woo which hug the western North Korean coast, coming at the closest point to within seven-n.m. of North Korea. South Korea views the maritime boundary between the two countries as the median line between these islands and the North Korean coast, based on a line called the “Northern Limit Line” (NLL),

11

12 13 14

15

See, e.g., id. Prescott explains that: “Straight baselines would only be appropriate on the east coast [of North Korea] if they enclosed historic bays.” Id. at 19. Paik, supra note 8, at 101. Agence France Presse, South-North Korean Fishermen’s Accord in Troubled Waters, Feb. 28, 2000. See Paik, supra note 8, at 105 (“Considering coastal geography around North Korea, the equidistance line can be regarded as an equitable solution to the delimitation with its neighbors”). See generally Jon M. Van Dyke, Mark J. Valencia & Jenny Miller Garmendia, The North/South Korea Boundary Dispute in the Yellow (West) Sea, 27 Marine Policy 143 (2003); Alex G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation 313–14 (1994). Apparently, the actual coordinates of the Northern Limit Line are classified.

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which was drawn by the United Nations Command a month after the Armistice Agreement of July 27, 1953, leaving very little ocean space for North Korea.16 These five islands have a total of five square miles and were said in 1978 to be occupied by 13,000 people.17 North Korea does not challenge South Korean sovereignty over the islands themselves, but because the islets are within 12-n.m. of North Korea’s coast, North Korea has contended that the waters around the five islets are part of North Korea’s territorial sea. In September 1999, North Korea unilaterally announced that it had redrawn the line so as to extend from the land boundary perpendicular from the coastline into the Yellow Sea, and was prepared to enforce this line “by various means.”18 The immediate cause of this dispute was apparently a concentration of crabs south of the Northern Limit Line and efforts by North Korean vessels to harvest these crustaceans.19 Incidents are not uncommon in this area, and violent clashes occurred during the crab seasons in June 1999 and June 2002.20 The NLL has served a useful purpose as a line of military control and should continue in place until the two Koreas can reach agreement to end their state of war. But if the two Koreas were independent countries, the NLL would probably not stand as a legitimate maritime boundary under the “equitable principles” that have evolved from the decisions based on Articles 74 and 83 of the Law of the Sea Convention, because it denies North Korea access to adjacent sea areas. The NLL is thus contrary to the principle of “non-encroachment”21 because it blocks North Korea’s access to the ocean in this region. Further, according to legal precedents

16 17

18

19

20 21

See Prescott, supra note 8, at 48–51. Choon-ho Park, The 50-Mile Military Boundary Zone of North Korea, 72 Am. J. of Int’l L. 866 (1978). Sonni Efron, N. Korea Unilaterally Shifts Maritime Border, L.A. Times, Sept. 3, 1999, at 1, col. 3 (nat’l ed.). Mark J. Valencia & Jenny Miller Garmendia, Work to Resolve the Maritime Conflict, International Herald Tribune, Dec. 17, 1999. See Van Dyke, Valencia & Garmendia, supra note 15. The principle of non-encroachment is included explicitly in Article 7(6) of the Law of the Sea Convention, which says that no state can use a system of straight baselines “in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.” It played a significant role in the delimitation of the exclusive economic zone (EEZ) in the Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway), 1993 I.C.J. 38, 69 para. 70, and 79–81 para. 92, where the Court emphasized the importance of avoiding the blockage of a coastal state’s entry into the sea. Even though Norway’s Jan Mayen island was minuscule in comparison with Denmark’s Greenland, Norway was allocated a maritime zone sufficient to give it equitable access to the important capelin fishery that lies between the two land features. The unusual 16-n.m.-wide and 200-n.m.-long corridor drawn in the Delimitation of the Maritime Areas Between Canada and France (St. Pierre and Miquelon), 31 I.L.M. 1149 (1992), appears to have been based on a desire to avoid cutting off these islands’ coastal fronts into the sea. But, at the same time, the arbitral tribunal accepted Canada’s argument

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and international practice, islands do not have an equal capacity with land masses to create maritime zones, nor do they command equal strength with an opposing continental area or land mass.22 Using an analogy from the Anglo-French Arbitration,23 territorial sea enclaves could be drawn around the five South Korean islands, but the islands themselves would be ignored in drawing the main maritime boundary. Although the territorial sea around these islands would normally be 12-n.m., because they are all so close to the North Korean coast and crowded among each other, this geographical situation might dictate the drawing of smaller territorial seas.24 Maps have also been prepared showing a hypothetical median line that would give North Korea a “finger” through these islands.25 Because the five South Korean islands are within 12-n.m. of North Korea, careful negotiation will inevitably be necessary to address and resolve this dispute.

VI. The East Sea/Sea of Japan The East Sea/Sea of Japan is a resource rich semi-enclosed sea that presents a difficult boundary delimitation challenge. 1. Baselines Article 7(1) of the Law of the Sea Convention allows countries to use straight baselines if their coastline is deeply indented or a fringe of offshore islands masks the coastline, but under Article 7(3), the straight baselines must not depart appreciably from the general direction of the coast.26 Once straight-baselines are drawn, the waters landward of these lines are “internal waters,” which are totally controlled by

22 23

24 25

26

that the French islands should not be permitted to cut off the access of Canada’s Newfoundland coast to the open ocean. See infra text accompanying notes 114–18 and 163–64. Case Concerning the Delimitation of the Continental Shelf Between the United Kingdom of Great Britain and Northern Ireland and the French Republic, 18 United Nations Reports of International Arbitral Awards (RIAA) 74 (1977), reprinted in 18 I.L.M. 397 (1979) [hereafter cited as AngloFrench Arbitration]. See infra text accompanying notes 86 and 159–61. See the map entitled “Potential Maritime Zones of Northern East Asia,” prepared by the Office of the Geographer, U.S. Department of State, in December 1977, showing hypothetical equidistant lines, which was republished in Bruce D. Larkin, East Asian Security Zones, 2 Ocean Y.B. 282, 291 (1980), and in Paik, supra note 8 at 106. See generally J. Peter A. Bernhardt, Straightjacketing Straight Baselines, in International Navigation: Rocks and Shoals Ahead? 85–99 ( Jon M. Van Dyke, Lewis Alexander, and Joseph R. Morgan eds., 1988).

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the coastal country, and the next 12-n.m. are “territorial sea,” which is sovereign territory, and through which vessels can pass only if the passage is “innocent.” For maritime boundary purposes, baselines become crucial because any median or equidistance line that might be drawn to divide overlapping maritime zones would start from the baselines. Japan’s baseline claims are of questionable legitimacy in some locations. Japan’s first effort at baseline delimitation occurred in 1977 in its Law on the Territorial Sea (Law No. 30), which went into effect on July 1, 1977. Its straight-baseline claims are disputed because Japan’s coastline is not generally viewed as being “deeply indented” nor does it have “fringing islands.” Some baselines connect remote islands far from the main islands, and some are more than 50 miles long. Deputy Minister Lark-Jung Choi of Korea’s Ministry of Maritime Affairs and Fisheries (MOMAF) has explained that 46 of Japan’s straight baselines exceed 24-n.m. in length and 21 exceed 40-n.m.27 The longest baseline is 62.26-n.m. in the area west of Kyushu. Korean scholars and officials complain in particular about the straight baselines that are drawn around Wakasa Bay, Toyama Bay, and Kyushi Bay, which do not meet the definition in Article 10 of the Law of the Sea Convention of a legal bay,28 as well as those drawn in the Shikoku area, Nodu Bay, and Hekurajima, “and in many other places.”29 These straight baselines, if accepted, would have the effect of increasing Japan’s territorial sea by about 13% and its EEZ by almost 25%.30 Deputy Minister Choi has said that “Korea must make it clear during the EEZ delimitation negotiations that [Japan’s] unlawful baselines cannot be accepted as the proper basis of establishing maritime delimitation.”31 In June 1997, a South Korean captain was arrested by the Japanese Maritime Safety Agency for violating the Japanese “Law concerning Regulation of Fishing Activities by Foreigners,” which prohibits foreign fishing in Japan’s territorial sea. His vessel was 18.9 miles off the coast of Hamada, Shimane Prefecture, but was deemed by Japan to be within its territorial waters because of its baseline claims. Japan adopted its baselines without consultation or acquiescence by South Korea, and in apparent violation of the 1965 Fishery Treaty between the two countries,

27

28

29 30 31

Lark-Jung Choi, Lessons from Korea’s Bilateral Fisheries Agreements with Japan and China (Republic of Korea Ministry of Maritime Affairs and Fisheries, Jan. 2002). See Gab-Yong, Jeong, Legal Issues of Delimitation of Maritime Boundaries 4 (Korean Maritime Institute, Feb. 17, 2003). Prescott has observed that “Japan closes bays that have mouths less than 24-n.m. wide without any apparent reference to the semi-circle test contained in the 1958 and 1982 Conventions on the Law of the Sea.” Prescott, supra note 8, at 24. Choi, supra note 27, at 5. Id. Id.

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which required such consultations.32 Japanese courts at first reached inconsistent conclusions on the legal issues raised by this and other arrests, but eventually reached the conclusion that Japan had the unilateral right to declare and define its territorial sea and could exercise exclusive jurisdiction in the area.33 2. Dokdo (Takeshima) Dokdo consists of two rocky islets and 32 even smaller outcroppings in the East Sea/Sea of Japan, which have a combined land area of 0.18 square kilometers. East Island (Dong-Do in Korean) has a circumference of 1.9 kilometers, and West Island (Seo-Do) has a circumference of 2.8 kilometers.34 These islets are located 88 kilometers (about 55 miles or 47-n.m.) from Korea’s Ullungdo35 and are about 158 kilometers (about 99 miles or 86-n.m.) from Japan’s Oki Islands.36 They have limited water sources, and have been uninhabited historically.37 But since 1954, about 45 South Korean marine police have been stationed there (and one family stays there in the summer) in order to support Korea’s claim to sovereignty over the islets. Once a year, “Japan sends a protest note rejecting South Korea’s claim to ownership of these features.”38 Their location in the middle of the East Sea/Sea of Japan – 50 miles southeast of Korea’s Ullungdo and 90 miles northwest of Japan’s Oki Islands – gives them an importance and status if they were to have an effect on the delimitation of marine space. They have served as a fishing station for harvesting abalone and seaweed and hunting seals, and they are near rich fishing grounds. Korea’s claim to Dokdo goes back many centuries and is based on contacts during many previous eras.39 Japan asserts, on the other hand, that Dokdo (which it calls Takeshima) was terra nullius in 1905 and that Japan acted in accordance with international law in claiming and incorporating the islets into Japanese territory at that time. Korea views this initiative as part of Japan’s aggressive and illegal

32

33

34

35 36

37 38 39

Tsuneo Akaha, Japan-South Korea Fishery Agreement: Pursuing Pragmatic Interests Without Compromising Sovereignty in Law of the Sea: The Common Heritage and Emerging Challenges 249, 253–54 (Harry N. Scheiber ed., 2000). Id., at 255 (citing Asahi Shimbun, June 25, 1998, at 25 (Nagasaki District Court decision of June 24, 1998), and Sept. 12, 1998, at 22 (Matsue Branch of the Hiroshima Superior Court decision of Sept. 11, 1998)); Hee Kwon Park, Japan v. Kim Sun-Ki, 92 Am. J. Int’l L. 301 (1998). Beautiful Island, Dokdo (Republic of Korea Ministry of Maritime Affairs and Fisheries, 2000). Id. at 10. “South Korea’s Ullung-Do is only 47 nm from Take Shima, whereas Japan’s Oki Gunto is 86 nm distant from the disputed islands.” Prescott, supra note 8, at 48. See infra text accompanying notes 73–77. Prescott, supra note 8, at 48. See generally Jon M. Van Dyke, Legal Issues Related to Sovereignty Over Dokdo and Its Maritime Boundary, 38 Ocean Dev. & Int’l L. 157–224 (2007).

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expansionism that led to the formal annexation of Korea in 1910. In the years immediately following World War II, the United States occupied both Japan and Korea, and it issued decrees and later entered into agreements regarding the territory of these two nations. But the 1951 San Francisco Peace Treaty40 between the Allied Powers and Japan did not mention Dokdo. After World War II, Korea reestablished its occupation of the islands and has, as explained above, maintained a small contingent of marine guards on the islets during the past half century. Korea’s claim to sovereignty over the islets is stronger than that of Japan, based on the historical evidence of its exercise of authority, the connection between Japan’s 1905 claim of annexation and its expansionist activities over the Korean Peninsula, the principle of contiguity (because the islets are closer to Korea’s Ullong-do than to Japan’s Oki Islands), and Korea’s actual physical control of the islands during the past half century.41 The judicial and arbitral decisions regarding sovereignty disputes over islands since World War II have focused more on which country has exercised actual governmental control over the feature during the previous century, than on earlier historical records.42 The first major decision by the International Court of Justice (ICJ) regarding ownership of an isolated uninhabited island feature was the decision in the Minquiers and Ecrehos Case,43 where the Court explained that: “What is of decisive importance, in the opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups.”44 This view was followed in the Gulf of Fonseca Case,45 where the court focused on evidence of actual recent occupation and acquiescence by other countries to determine title to disputed islets, and in the decision in the Eritrea-Yemen Arbitration,46 where the tribunal relied explicitly on the Minquiers and Ecrehos judgment for the proposition that it is the relatively recent history of use and possession of the islets that is most instructive in determining sovereignty and that the historical-title claims offered by each side were not ultimately helpful in resolving the dispute: “The modern international

40

41

42 43 44 45

46

Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169, 136 U.N.T.S. 45 (hereinafter cited as San Francisco Peace Treaty) available at http://www.taiwandocuments.org/sanfrancisco01.htm. See, e.g., Douglas M. Johnston & Mark J. Valencia, Pacific Ocean Boundary Problems – Status and Solutions 113–15 (1991); Benjamin K. Sibbett, Tokdo or Takeshima? The Territorial Dispute Between Japan and the Republic of Korea, 21 Fordham Int’l L.J. 1606 (1998); articles in Korea Observer, Vol. 28, No. 3 (Autumn 1997), and Vol. 29, No. 1 (Spring 1998); Mark J. Valencia, Calming the Tok-do (Takeshima) Controversy, Trends 1 (Mar. 10–31, 1996). See generally Valencia, Van Dyke, & Ludwig, supra note 1, at 17–19. Minquiers and Ecrehos Case (France/United Kingdom), 1953 I.C.J. 47. Id. at 57 (emphasis added). Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), 1992 I.C.J. 351 [hereafter cited as Gulf of Fonseca Case]. Eritrea-Yemen Arbitration, available at http://www.pca-cpa.org (1998–99).

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law of acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis.”47 This very same approach was utilized by the Court in its decision resolving a dispute between Malaysia and Indonesia over two tiny islets – Ligitan and Sipadan.48 The larger of the islets (Sipadan) is 0.13 square kilometers in size.49 Neither has been inhabited historically, but both have lighthouses on them and Sipadan has recently been “developed into a tourist resort for scuba-diving.”50 The Court first addressed arguments based on earlier treaties, maps, and succession, but found that they did not establish any clear sovereignty.51 It then looked at the “effectivités” – or actual examples of exercises of sovereignty over the islets, and explained that it would look at exercises of sovereignty, even if they did “not co-exist with any legal title.”52 Indonesia claimed title based on various naval exercises in the area conducted by themselves and previously by their colonial power (the Netherlands), but Malaysia prevailed based on the governmental actions of its colonial power (the United Kingdom) exercising control over turtle egg collection and constructing lighthouses on both islets.53 The language and rulings provided by the Court are directly relevant to the Dokdo dispute. The Court’s opinion explained that “a claim of sovereignty based on . . . continued display of authority . . . involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.”54 In “areas in thinly populated or unsettled countries,” the Court “has been satisfied with very little,”55 but the contrary claims of other countries will also be relevant.56 The Court relied upon only those displays 47 48 49 50 51 52

53 54

55 56

Id. 1998 Award, para. 239. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), 2002 I.C.J. 625. Id. para. 14. Id. Id. paras. 58, 72, 80, 92, 94, 96, 114, and 124. Id. para. 126 (citing Frontier Dispute (Burkina Faso/Republic of Mali), 1986 I.C.J. 587, para. 63; Territorial Dispute (Libyan Arab Jamahiriya/Chad), 1994 I.C.J. 38, paras. 75–76; Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), 2002 I.C.J. 303, para. 68). Id. para. 132. Id. para. 134 (quoting from Legal Status of Eastern Greenland (Denmark v. Norway), P.C.I.J. Series A/B, No. 53, at 45–46). Id. para. 134 (quoting from Legal Status of Eastern Greenland, id. at 45–46). Id. para. 134 (quoting from Legal Status of Eastern Greenland, id. at 45–46). In this regard, the Court noted that it was significant that Indonesia’s map of its archipelagic baselines “do not mention or indicate Ligitan and Sipadan as relevant base points or turning points.” Id. para. 137. The Court also found significant that neither Indonesia nor its predecessor the Netherlands “ever expressed its disagreement or protest” regarding the construction of lighthouses on Ligitan and Sipadan in the early 1960s. Id. para. 148.

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of sovereignty that occurred before “the dispute between the Parties crystallized [which was 1969 in the Ligitan/Sipadan dispute] unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them.”57 In the course of its decision, the Court explained that actions of private parties will not be relevant “if they do not take place on the basis of official regulations or under governmental authority.”58 The consistent reasoning in these ICJ decisions strengthens Korea’s claim of sovereignty to Dokdo. Korea was not in a position to exercise control during the first part of the twentieth century because it had been annexed by Japan, but as soon as it regained its independence it asserted control over the islets, and has continued to exercise sovereignty over them since then. In July 2001, the South Korean National Maritime Police Agency announced it would commission a 5,000-ton-class vessel carrying a crew of 97 – entitled the Sambong, the name of Tok-do during the Choson Dynasty – to patrol the waters around Tok-do beginning in February 2002.59 Article 121(3) of the 1982 United Nations Law of the Sea Convention60 says that “rocks” that “cannot sustain human habitation or economic life of their own” are entitled to a 12-n.m. territorial sea, but not an EEZ or a continental shelf. The terms in this provision are not defined elsewhere in the Convention, and commentators have debated whether a geological feature must literally be a “rock” to be denied an EEZ or continental shelf or whether all features that “cannot sustain human habitation or economic life of their own” are in this category.61 Judge Budislav Vukas has recently explained that the latter interpretation is the correct one, because of the underlying purposes of establishing the EEZ.62 The reason for giving exclusive rights to the coastal states was to protect the economic interests of the coastal communities that depended on the resources of the sea, and thus

57 58 59

60 61

62

Id. para. 135. Id. para. 140. Yonhap News Agency, South Korea Commissions New Patrol Boat for Disputed Isle Area (July 13, 2001). Law of the Sea Convention, supra note 3. See, e.g., Jon M. Van Dyke & Robert A. Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources, 12 Ocean Development & International Law 265–300 (1983); Valencia, Van Dyke, and Ludwig, supra note 1, at 41–45; Jon M. Van Dyke, Joseph R. Morgan & Jonathan Gurish, The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ, 25 San Diego L. Rev. 425 (1988); Barbara Kwiatkowska and Alfred H.A. Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own, 21 Netherlands Yearbook of International Law 153 (1990). “Volga” (Russian Federation v. Australia), Prompt Release, Judgment, Declaration of Judge Vukas, ITLOS Reports 2002, available at http://www.itlos.org/start2_en.html.

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to promote their economic development and enable them to feed themselves.63 This rationale does not apply to uninhabited islands, because they have no coastal fishing communities that require such assistance.64 The EEZ regime may also be “useful for the more effective preservation of the marine resources,”65 but it is not necessary to give exclusive rights to achieve this goal, and multilateral solutions such as Convention on the Conservation of Antarctic Marine Living Resources66 can serve to protect fragile resources.67 An important example of “state practice” relevant to the meaning of Article 121(3) occurred in 1997 when the United Kingdom renounced any claim to an EEZ or continental shelf around its barren granite feature named Rockall which juts out of the ocean northwest of Scotland.68 Rockall is a towering granite feature measuring about 200 feet (61 meters) in circumference, which is about seventy feet (21 meters) high.69 An earlier regionally-important example of state practice on this issue occurred in 1970, when the Republic of China (Taiwan) issued a reservation when ratifying the Convention on the Continental Shelf,70 apparently with reference to the Daioyu-Dao (Senkakus), stating that in “determining the boundary of the continental shelf of the Republic of China, exposed rocks and islets shall not be taken into account.”71 One prominent scholar from the People’s Republic of China has reported that the position of the People’s Republic of China is similar: “China holds that the Diaoyudao Islands are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have a continental shelf.”72

63 64 65 66

67 68

69

70

71

72

Id. paras. 3–5. Id. para. 6. Id. para. 7. Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), May 20, 1980, 33 U.S.T. 3476, 1329 U.N.T.S. 48 (1980). Vukas Declaration, supra note 62, para. 8. Fishery Limits Order (United Kingdom), S.I. 1997, No. 1750; see generally D.H. Anderson, British Accession to the UN Convention on the Law of the Sea, 46 International and Comparative Law Quarterly 761, 778 (1997) (citing House of Commons Hansard, vol. 298, written answers, col. 397). Van Dyke, Morgan & Gurish, supra note 61, at 452; see generally O’Donnell, Rockall – The Smallest British Isle, 23 Sea Frontiers 342 (1977). Convention on the Continental Shelf, April 29, 1958, 15 U.S.T. 471, T.I.A.S. 5578, 499 U.N.T.S. 311. See Clive Symmons, The Maritime Zones of Islands in International Law 136 and 270 n. 539 (1979) (citing Allen & Mitchell, The Legal Status of the Continental Shelf of the East China Sea, 51 Oregon Law Review 789, 808 (1972)). Ji Guoxing, The Diaoyudao (Senkaku) Disputes and Prospects for Settlement, 6 Korean Journal of Defense Analysis 285, 306 (1994). See also Ji Guoxing, Maritime Jurisdiction in the Three China Seas: Options for Equitable Settlement (before n. 22) (Institute on Global Conflict and Cooperation, University of California at San Diego, Policy Paper No. 19, October 1995) (“China holds that the

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Whatever emerges as the ultimate definition of “rock” in Article 121(3) of the 1982 Convention, it would appear to be clear that Dokdo will be covered by this term. The two tiny rocky islets that make up Dokdo consist of barren and windswept structures with limited water sources. In a 1966 publication, the features of the islets were described as follows: Both islets are barren and rocky, with the exception of some grass on the eastern islet, and their coasts consist of precipitous rocky cliffs. There are numerous caves where sea-lions resort. These islets are temporarily inhabited during the summer by fishermen.73

Fishing vessels have visited the islets during the mild summer months, and, since 1954, the Republic of Korea has kept marine police on them, but Korean scholars have acknowledged that these islets are unsuitable for human habitation.74 Two distinguished foreign commentators have stated that: “These islets are uninhabitable, and under Article 121 of the 1982 U.N. Convention on the Law of the Sea should not have an EEZ or continental shelf.”75 Another widely-published Korean scholar has written, after discussing the language in Article 121(3), that “the natural conditions of the Dokdo Islands would suggest that these islands might not generate their own EEZs or continental shelves.”76 One of the early Korean names given to the islets was “Sokdo,” which is significant because “sok” means “rock” in Korean.77 Japan, on the other hand, has tended to take the position that all islands and islets, no matter how small, should be able to generate extended maritime zones, without regard to their size or habitability, and Japan has apparently claimed

73

74

75 76

77

Senkaku Islands are small, uninhabited, and cannot sustain economic life of their own, and that they are not entitled to have continental shelf ”). See also Ji Guoxing, Sino-Japanese Jurisdictional Delimitation in East China Sea, this volume, at 100. Hydrographer of the Navy, 1 Japan Pilot 200 (HMSO, London, 1966). See also Hideki Kajimura, The Question of Takeshima/Todka, 28 Korea Observer 423, 434 (1997), reprinted from the original Japanese version in Chosen Kenkyu (Study of Korea), No. 182, Sept. 1978 (“As the entire islets are rocks, there is almost no sand, let alone soil”). See, e.g., Choung Il Chee, Korean Perspectives on Ocean Law Issues for the 21st Century 15 (The Hague: Kluwer, 1999) (stating that Dok-Do “is a rocky island and unsuitable for human inhabitation”); Han Key Lee, Korea’s Territorial Rights to Tokdo in History and International Law, 29 Korea Observer 1, 5 (1998), translated and reprinted from Lee Han-key, Chapter II: Tokdo, in Han’guk ui Yongt’o. (Korea’s Territory) 227–303 (Seoul: Seoul National University Press, 1969) (“These natural features make Tokdo unfit for sustained human habitation”), id. at 33 (“this barren group of islets unfit for sustained human habitation”). Johnston & Valencia, supra note 41, at 113. Jin-Hyun Paik, Evolution of Maritime Boundary Delimitation Law and Its Implications on Northeast Asia Law 4–2–13 (paper delivered at the 1st Annual Korean-US Marine Policy Forum, Seoul, Oct. 22–23, 1998). Choung Il Chee, supra note 74, at 8–9.

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an EEZ around all its islets, no matter how small or uninhabitable. Japan ratified the Law of the Sea Convention on June 7, 1996 and promulgated its Law on the Exclusive Economic Zone and the Continental Shelf on July 20, 1996, but the exact extent of the Japanese EEZ remains unclear. A Japanese foundation has published a map that draws 200-n.m. zones around every Japanese islet, no matter how small and uninhabitable, but the Japanese government has never produced an official map showing the full extent of its claims.78 Japan has apparently argued that Dokdo qualifies as “an island and should not be disregarded in a continental shelf delimitation, without indicating the weight to be attributed to [them] in a delimitation.”79 A 1996 newspaper article quoted a Japanese Foreign Ministry official who requested anonymity as saying that “I think Takeshima actually can sustain some human habitation.”80 Some other countries, including the United States,81 have also been expansive in claiming extended maritime space around features that are clearly rocks, and the legitimacy of such claims remains in dispute.82 The better approach appears to be the one that the Republic of Korea has tended until recently to accept – that small uninhabited islets should not be able to generate EEZs and continental shelves.83 If Japan and Korea could agree that Dokdo would not be entitled to generate a continental shelf or EEZ, that agreement might go a long way to reducing the tension over sovereignty of the islets. If the maritime boundary eventually becomes the equidistance line between Korea’s Ullong-do and Japan’s Oki Islands, then Dokdo would be on the Korean side and should not affect the boundary delimitation. 3. The 1998 Fisheries Agreement In 1998, Japan and Korea entered into a new fisheries agreement84 designed to accommodate their continuing dispute over the area around Dokdo, which intro78

79 80

81 82

83

84

For an example of what Japan’s EEZ would look like if it were claimed around every Japanese islet, see Mark J. Valencia, Domestic Politics Fuels Northeast Asian Maritime Disputes, 2 AsiaPacific Issues 43 (April 2000). Oude Elferink, supra note 15, at 302 (citing 29 Japanese Ann. Int’l L. 131(1986)). Cameron W. Barr, Tiny Islands Emerge as Big Disputes, Christian Science Monitor, Feb. 16, 1996, at 6. See generally Van Dyke, Morgan, and Gurish, supra note 61, at 429–33. Statement of Robert Smith (U.S. Department of State), at Second Biennial Forum on Joint Marine Policy Research, University of Rhode Island, Oct. 8, 2004 (stating that the United States has taken the same position as Japan regarding the interpretation of Article 121(3) of the Law of the Sea Convention, and pointing out that Dokdo does now support human habitation – the marine police stationed there by Korea). See Johnston and Valencia, supra note 41, at 113; Daniel J. Dzurek, Deciphering the North Korean-Soviet (Russian) Maritime Boundary Agreements, 23 Ocean Development & Int’l L. 31, 42 (1992). Japan-Republic of Korea Agreement on Fisheries of 28 November 1998, entered into force Jan. 22, 1999; revised Mar. 17, 1999.

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duced two “provisional zones” or “intermediate zones” in disputed areas, where fishing vessels from each country can operate, and also included a commitment by both countries to reduce their overall catch. One shared zone is in the East Sea/Sea of Japan near the disputed islets of Dokdo and the other is in the East China Sea south of Cheju Island and just north of the Japan-China Provisional Measure Zone. Third countries do not have rights to fish in these shared zones. The agreement also gave each country a zone that extends 35-n.m. from the coastlines, which is called an EEZ, allowing each country, after the first three years during which historic fishing rights are phased out, to harvest an equal amount from the other’s zone. This agreement has been seen as a “provisional agreement” as called for in Article 74(3) of the Law of the Sea Convention pending final determination of the maritime boundary.85 The 1998 Treaty established a compromise joint-use zone around Dokdo, and carefully regulated how much fish of each species could be caught within the zone, and in the adjacent national-jurisdiction zones. The agreement had the effect of reducing South Korean fishing in Japanese waters, but South Korea did retain access to part of the productive Yamato Bank, where some 1,000 South Korean vessels had been catching about 25,000 metric tons of squid each year (but the Korean catch was to be gradually reduced to the same level as that of the Japanese vessels). 4. The Territorial Sea in the Straits Japan – which asserts a 12-n.m. territorial sea in general – claims only a three-n.m. territorial sea in the Soya Strait, the Tsugaru Strait, the eastern and western channels of the Tsushima Strait, and the Osumi Strait.86 South Korea has also limited its territorial-sea claim around the land areas adjacent to the Korean Strait to threen.m., in order to permit unimpeded passage through this area. 5. Agreed Boundaries Between Japan and Korea Japan and the Republic of Korea entered into two agreements in 1974 – a delimitation of part of their continental shelf boundary87 and the creation of a joint

85 86

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Choi, supra note 27, at 4. Japanese Law on the Territorial Sea No. 30 of May 2, 1977, listed in National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone 177–82 (U.N. Sales No. E.95. V.7, 1995); see also U.S. Dept. of State, Limits in the Sea No. 120, Straight Baseline and Territorial Sea Claims: Japan (1998). Agreement Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries of Jan. 30, 1974, in The Law of the Sea; Maritime Boundary Agreements (1970–1984) 283 (U.N. Office for Ocean Affairs and the Law of the Sea, 1987); Limits in the Sea No. 75 (U.S. State Dept. 1979); 1 Jonathan Charney and Lewis Alexander, International Maritime Boundaries 1057 (1993).

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development zone in disputed territory.88 The agreed continental shelf boundary is based on a median line which starts at the midpoint between Korea’s Cheju Island and Japan’s Goto Retto and then heads north, moving closer to the Korean coastline because of the Japanese island of Tsushima in the Korean Strait and then veering back away from the Korean coast as it heads north. This line stops abruptly at a spot known as Point 35 because of the claims both countries have for sovereignty over Dokdo and their disagreement over whether it should play a role in determining the boundary delimitation in that region. 6. The Joint Development Zone In the second agreement, Japan and Korea established a joint development zone in a disputed area south of Cheju Island to permit each country to explore for hydrocarbons. Korea argued that Japan’s “Tori-shima group [of islands], separated by a deep trench on the seabed from the main Japanese islands, was not entitled to claim a continental shelf ”89 and thus that, using the natural-prolongation principle, Korea’s boundary should extend almost to these Japanese islands.90 Japan disagreed, advocating use of an equidistance line. It took protracted negotiations to develop a joint development zone in the disputed area. Korea ratified the agreement right away in 1974, but Japan’s ratification did not occur until 1978.91 That same year, Japan and Korea established an agreed framework whereby both countries agreed to engage in joint exploration of the continental shelf by 2028. This joint exploration has been underway, and in August 2002, the Korea National Oil Corporation agreed with the Japan National Oil Corporation to resume cooperation which had begun in 1986.92 The natural prolongation theory relied upon by Korea was prominent in 1974, but it has not been utilized by any tribunal adjudicating a maritime boundary during the past two or three decades. It may be, therefore, that when it is time to reexamine this agreement, Korea’s negotiating position will be weakened. Abandoning the natural-prolongation argument would not mean, however, that Korea must give Japan the entire area now covered by the Joint Development Zone, because “[t]he

88

89 90

91 92

Agreement Between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, Jan. 30, 1974, in Charney & Alexander, supra note 87, at 1073. Johnston & Valencia, supra note 41, at 65–66. The small Japanese islets called Danjo Gunto, located on the 32nd parallel just east of 128 degrees latitude, are awkwardly located from Korea’s perspective. “South Korea does not dispute Japan’s ownership of Danjo Gunto, but takes the view that these are Japanese islands standing on South Korea’s continental shelf.” Prescott, supra note 8, at 37. Id. at 66. Yonhap News Agency, South Korea, Japan to Resume Joint Exploration for Oil, Gas Reserves, BBC Monitoring Asia Pacific – Political, Aug. 1, 2002.

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northwest side of the zone . . . corresponds almost exactly to the line of equidistance between Japan and South Korea if the Danjo Gunto are given full effect.”93 Korea need not allow the tiny and isolated Danjo Gunto islets to have full effect or even any effect in drawing the equidistance line, and the other small southern Japanese islands can also be discounted because their coastlines are limited in relationship to that of the opposite Korean coast. Korea should be entitled, therefore, to a portion – probably between one-fourth and one-third – of the area now covered by the Joint Development Zone.

VII. The Maritime Boundary Between Korea and China 1. China’s Baseline Claims China’s use of a high-tide elevation about 70-n.m. off Shanghai called Dongdao (Barren Island) is of dubious legitimacy and has been challenged by its neighbors because it is so far from the coast and thus departs dramatically from the general direction of the coastline. China has also used some low-tide elevations as basepoints for its baselines.94 These basepoints are proper under Article 7(4) of the Law of the Sea Convention only if the low-tide elevations have lighthouses or other permanent fixtures on them. China’s coast south of the Yangtze estuary is deeply indented, but the coastline north of the Yangtze appears to be more regular and the use of baselines there is inconsistent with the requirements of Article 7 of the Law of the Sea Convention.95 Korean scholars have challenged all the basepoints north of the mouth of the Yangtze as violating the principles established in Articles 7 and 13 of the Law of the Sea Convention.96 Lark-Jung Choi, Deputy Minister of Korea’s Ministry of Marine Affairs and Fisheries, has said that “Korea must make it clear that [at least three of China’s basepoints] are not an acceptable basis for drawing the straight baseline during the talks for the delimitation of the EEZ between Korea and China.”97

93 94

95

96 97

Prescott, supra note 8, at 39. For a map showing the effect of the Dongdao basepoint, see Choon-ho Park, Prospects for Maritime Policy Coordination in the Asia-Pacific: Agenda for Peace of the Oceans, in Marine Policy, Maritime Security and Ocean Diplomacy in the Asia-Pacific 27 (Dalchoong Kim, Choon-ho Park, Seo-Hang Lee & Jin-Hyun Paik, eds., Yonsei University Institute of East and West Studies, Seoul, 1995). See, e.g., U.S. State Dept. Bureau of Oceans and International Environmental and Scientific Affairs, Straight Baseline Claim (Limits in the Sea No. 117, 1996), at 3 (“Much of China’s coastline does not meet either of the two LOS Convention geographic conditions required for applying straight baselines,” i.e., a deeply indented coastline or a fringe of islands along the coast). See Gab-Yong, Jeong, supra note 28, at 4–9. Choi, supra note 27, at 8.

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2. Bohai Bai China has always claimed the large Bohai Bay just below Korea as a historic bay. The distance between the headlands defining the bay is 55-n.m. across,98 and thus challenges the definition of a juridical bay in Article 10(4) of the Law of the Sea Convention (which limits such bays to bodies of water with an entrance point less than 24-n.m. across), but China argues that the small islands scattered across the mouth of the Bay strengthen its claim. These small islands could be viewed as “a fringe of islands” that mask the coast under Article 7(1) of the Law of the Sea Convention, thus justifying the drawing a straight baselines across the mouth of the Bohai, or as the “natural entrance points” of the bay under Article 10(5). The Republic of Korea understands China’s claim, but has never acknowledged its legitimacy. Japan has raised reservations about the claim. The United States has apparently not objected to China’s historic-bay claim for Bohai Bay.99 3. Delimiting the Boundary China has always argued that the “natural prolongation” approach should be used in both the Yellow Sea (West Sea) and the East China Sea, which, according to China’s theory, entitles China to ownership of the entire continental shelf off its coast to a “silt line,” “which divides the sands derived from Korea and the silty sediments that have flowed out from the Hwang Ho and Yangstze Rivers and given name to the Yellow Sea.”100 This sedimentation apparently “is also reflected in the topography of the seabed, feature by an axial valley two-thirds across the Yellow Sea towards Korea, which divides a smooth gentle slope extending from the Chinese shore from the steep and less regular slope off the Korean coast.”101 This “silt line” has been drawn on a published map,102 and it would cover about half of the maritime zone the Republic of Korea would be entitled to if an equidistance line were drawn between its coast and that of China. At times, China has made an even more expansive claim, arguing that it is entitled to all the submerged land

98 99

100 101

102

Prescott, supra note 8, at 16. See J. Ashley Roach & Robert W. Smith, United States Responses to Excessive Maritime Claims 33–34 (2d ed. 1996) (omitting any reference to China’s Bohai Bay when they list the U.S. protests to historic waters claims). Johnston and Valencia, supra note 41, at 106. Id. (citing Choon-ho Park, Maritime Claims in the China Seas: Current State Practices, 18 San Diego L. Rev. 443–54 (1981)). See also Paul C. Yuan, The New Convention on the Law of the Sea from the Chinese Perspective, in Consensus and Confrontation: The United States and the Law of the Sea Convention 184, 195–204 (Jon M. Van Dyke ed., 1985). Johnston & Valencia, supra note 41, at 112 (citing Mark J. Valencia, Northeast Asia: Petroleum Potential, Jurisdictional Claims, and International Relations, 20 Ocean Development & Int’l L. 35 (1989)).

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in the East China Sea to the Okinawa Trough, which is just west of Japan’s small southern islands. Under this approach, China’s continental shelf would include most, if not all, of the Japanese-Korean Joint Development Zone, which China has consistently denounced as a violation of its rights. China disputes the western boundaries of all South Korean leases in the Yellow and East China Seas and has also condemned the shared fishing zone Japan and Korea established south of Cheju Island.103 But China has been able to act pragmatically and has set aside its position on natural prolongation in order to enter into a sophisticated fishing agreement with the Republic of Korea. The two countries normalized their diplomatic relationship in 1992, and began discussing fishing issues in 1993. Their conflicting positions came into focus after both countries ratified the Law of the Sea Convention and proclaimed EEZs. These claims overlap, and China’s straight baseline claim, which South Korea has officially protested as incompatible with the Law of the Sea Convention, also has created difficulties.104 As explained above,105 Korea has challenged China’s use of Dongdao (a barren islet about 70-n.m. east of Shanghai) as a basepoint, and also challenges several other basepoints north of Shanghai.106 In 1997–98, the two countries finally agreed: (a) to recognize coastal EEZ areas where each country can exercise exclusive sovereign rights over the resources (the width of this zone varies but averages 60-n.m. from the coastline and provides each country with roughly equal areas);107 (b) to establish a joint fishing area (“Provisional Regulatory Zone”) in the central area where their claimed EEZs overlap (drawn from a hypothetical median line), where they exercise equal rights and manage the species through the Korea-China Joint Fisheries Committee; and (c) to create a transitional area (“Interim Co-management Zone”) extending 20 miles in both directions from the joint fishing area, where the resources were shared for four years, and thereafter became part of each countries’ coastal EEZ, under exclusive coastal state control. They established a Joint Fisheries Commission to recommend measures for conserving and managing the resources. And, very significantly, they agreed to conduct joint surveillance operations – with authorities of both countries physically present on the patrol boats – to monitor and control illegal and indiscriminate fishing activities.

103

104 105 106 107

Agence France Presse, China Denounces Japan-South Korea Fisheries Pact, Jan. 22, 1999. For different reasons, North Korea also denounced the agreement, calling it a violation of the sovereignty of the Korean nation and a “brutal trample” on international law. Xinhua News Agency, North Korea: DPRK Lashes Out at South Korean-Japanese Fishery Accord, Oct. 7, 1998. Choi, supra note 27, at 8. See supra text accompanying notes 94–97. Choi, supra note 27, at 8. Id. at 6.

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This fishing agreement is a significant step forward, and it indicates that China may be willing to abandon its natural-prolongation approach, at least with regard to delimitation of the living resources. Korea’s position has always been that its boundary with China should be drawn with an equidistance line. Article 5(2) of the Korean Exclusive Economic Zone states that the equidistance line should be used if no other agreement can be reached, and MOMAF Deputy Minister Choi has expressed the view that: “Since there is no other factor to affect the principle of equity, the equidistance line seems to be the equitable standard in the EEZ delimitation between Korea and China.”108

VIII. The Maritime Boundary Between Japan and China in the East China Sea China claims that the whole continental shelf of the Yellow Sea belongs to China on the basis of the natural prolongation theory. China utilizes the natural prolongation theory to claim the continental shelf across the East China Sea to its “silt line” or beyond to the Okinawa Trough, and challenges the Joint Development Agreement and the fishing agreement covering the area south of Cheju Island between Korea and Japan as infringing upon its sovereign resources.109 The “natural prolongation” approach emerged from the 1969 decision of the ICJ in the North Sea Continental Shelf Cases,110 but it has not been utilized in decisions rendered during the past two or three decades. The demise of the natural prolongation theory has been explained to be a product of the recognition in the Law of the Sea Convention that coastal states are entitled to 200-n.m. continental shelves even if the sea floor around them does not conform to a geographic definition of a continental shelf. The ICJ explained in the Libya/Malta Case that “since the development of the law enables a State to claim that the continental shelf appertaining to it extends up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.”111 Prescott explained after the Libya/Malta Case that “the court seemed to decide that natural prolongation was not a matter to be considered when the waters between the states were less than 400 nm wide. It is

108 109 110

111

Id. at 8. See supra text accompanying notes 100–03. North Sea Continental Shelf Cases (Fed. Rep. Of Germany v. Denmark; F.R.G. v. Netherlands), 1969 I.C.J. 3. Case Concerning the Continental Shelf (Libya v. Malta), 1985 I.C.J. 13, at para. 39.

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almost as though countries sharing seas less than 400 nm wide would be drawing EEZ boundaries rather than continental shelf boundaries.”112 Douglas M. Johnston and Mark J. Valencia have reported that the natural prolongation doctrine “is now somewhat discredited as a basis for continental shelf delimitation.”113 Japan argues that the boundary in the East China Sea should be the equidistance or median line between China’s coastline and the small Japanese islands that extend south of Japan’s main islands. The equidistance line is now commonly used as the starting point for delimitation, but it is adjusted generally to provide some rough proportionality between the lengths of the opposite coasts. It has now become well established that an essential element of a boundary delimitation is the calculation of the relative lengths of the relevant coastlines. If this ratio is not roughly comparable to the ratio of the provisionally-delimited maritime space allocated to each country, then the tribunal will generally make an adjustment to bring the ratios into line with each other.114 In the Libya/Malta Case, for instance, the ICJ started with the median lines between the countries, but then adjusted the line northward through 18’ of latitude to take account of the “very marked difference in coastal lengths”115 between the two countries. The Court then confirmed the appropriateness of this solution by examining the “proportionality” of the length of the coastlines of the two countries116 and the “equitableness of the result.”117 In the Jan Mayen Case, the ICJ determined that the ratio of the relevant coasts of Jan Mayen (Norway) to Greenland (Denmark) was 1:9, and ruled that this dramatic difference required a departure from reliance on the equidistance line. The final result was perhaps a compromise between an equidistance approach and a proportionality-of-the-coasts approach, with Denmark (Greenland) receiving three times as much maritime space as Norway (Jan Mayen).118

112 113 114

115 116 117

118

Prescott, supra note 8, at 38. Johnston & Valencia, supra note 41, at 116 n. 85. This approach has been used, e.g., in the Case Concerning Delimitation of the Maritime Boundary in Gulf of Maine Area (US v. Canada), 1984 I.C.J. 246; Case Concerning the Continental Shelf (Libya v. Malta), 1985 I.C.J. 13; the Jan Mayen Case, supra note 21, and the St. Pierre and Miquelon Case, supra note 21. See generally Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, 88 Am. J. Int’l L. 230, 241–43 (1994). Libya/Malta Case, id. 1985 I.C.J. at 49 para. 66. Id. at 53 para. 74. Id. para. 75. In the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 25 I.L.M. 252 (1986), the arbitral tribunal also evaluated the “proportionality” of the coasts to determine whether an “equitable solution” had been achieved by the boundary line chosen. Id. para. 120. See also the Eritrea-Yemen Arbitration, supra note 46, where the tribunal relied upon the test of “a reasonable degree of proportionality” to determine the equitableness the boundary line; the tribunal was satisfied that this test was met, in light of the Eritrea-Yemen coastal length ratio

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Using this approach, the boundary line would be moved eastward from the equidistance line toward Japan’s islands. Therefore, although China’s natural prolongation approach does not have the clout it used to, Japan’s strict equidistance approach is also unsupported by recent arbitral and judicial decisions. A tribunal today would move the line eastward, thus giving China more ocean space than Japan, but perhaps less than the distance to the Okinawa Trough, which is what China is seeking. This dispute has been heating up and presents the possibility of a major confrontation. In September 2005, China sent five warships, including a guided missile destroyer, to the Chunxiao gas field, which is on China’s side of the equidistance line, which Japan worries may be draining gas from Japan’s side.119 According to Admiral Lang Ning-li, the recently retired head of Taiwan’s naval intelligence: “It is like the 1930s again, when the Central Pacific became a vital concern to both the United States and Japan, whose navy was expanding. That means there could be conflict between China and Japan, which both see these seas as vital, and can’t share this space.”120 A few months earlier, Japan had granted rights to the Japanese firm Teikoku Oil Company to test drill for gas and oil in a part of the East China Sea disputed by the two countries, a move that the China Daily said would make conflict between the two nations inevitable.121 1. The Senkakus/Daioyudao122 These eight uninhabited features in the East China Sea (five islets and three barren rocks) are disputed between China/Taiwan and Japan. Altogether, they have a land area of seven square kilometers, and the largest (Daioyudao/Uotsurishima) has an area of 4.3 square kilometers, with two peaks rising to about 1100 feet, but with no anchorages for any but the smallest ships to use for landings. The islets are 170

119 120 121 122

(measured in terms of their general direction) of 1:1.31 and the ratio of their water areas of 1:1.09. 1999 Award, paras. 20, 39–43, 117, and 165–68. Chinese Warships Remind Japanese of Challenge on Seas, NY Times, Sept. 11, 2005. Id. Japan’s Move in East China Sea Makes Conflict “Inevitable,” China Daily, July 16, 2005. See generally Daniel Dzurek, The Senkaku/Diaoyu Islands Dispute, available at http://www-ibru .dur.ac.uk/docs/senkaku.html (site visited Oct. 23, 2004); William B. Heflin, Note, Diayou/Senkaku Islands Dispute: Japan and China, Oceans Apart, 1 Asian-Pacific Law & Policy Journal 18 (2000); K.T. Chao, East China Sea: Boundary Problems Relating to the Tiao-Yu-T’ai Islands, [1982] Chinese Yearbook of International Law and Affairs 45, 52; Ying-jeou Ma, The East Asian Seabed Controversy Revisited: Relevance (or Irrelevance) of the Tiao-yu-T’ai (Senkaku) Islands Territorial Dispute, [1982] Chinese Yearbook of International Law and Affairs 1; Thomas R. Ragland, A Harbinger: The Senkaku Islands, 10 San Diego L. Rev. 664 (1973); Toshio Okuhara, The Territorial Sovereignty Over the Senkaku Islands and Problems on the Surrounding Continental Shelf, 15 Japanese Ann. Int’l L. 97 (1971).

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kilometers from Taiwan and 410 kilometers from Okinawa. The 2,270-meter-deep Okinawa Trough separates these islets from the nearest undisputed Japanese island. Historically, these outcroppings have been used only as navigational aids. China and Taiwan claim these islets based on discovery by Chinese in 1372, plus they were mentioned in a Chinese text in 1403, and were incorporated into China’s coastal defense system by the Ming Government in 1562. They also explain that fishers from northern Taiwan used the islets as shelters for a long period of time; that the Dowager Empress Tsu Hsi awarded property rights to three of them to a U.S. citizen of Chinese ancestry in 1893 to gather rare and precious medicinal herbs; that the islets were transferred to Japan in the Treaty of Shimonoseki in May 1895 after the 1894–95 Sino-Japanese War (as “islands appertaining or belonging to the said Island of Formosa”) and therefore should have been returned after World War II according to the 1943 Cairo Declaration (which proclaimed that Japan would be required to return all “territories which she has taken by violence and greed”), the 1945 Potsdam Proclamation, and Article 2 of the San Francisco Treaty; and that, prior to 1945, Japan administered the islets through the Taipei Prefecture, not the Okinawa Prefecture.123 China’s 1992 territorial-sea legislation asserted control over the islets and claims territorial seas around them. Japan’s claim is based on “discovery” of the islets by a Japanese national (Tatsushiro Koga) in 1884, followed by formal incorporation of the islets into Japanese territory by the Japanese Cabinet on January 14, 1895, after the islets were deemed to be “terra nullius.”124 Koga attempted economic activity such as fish and bird-canning and the collection of birds’ feathers and guano between 1896 and his death in 1918, but these activities were not economically successful and no other economic activity has been attempted. The United States administered the islets after World War II and transferred jurisdiction to Japan in 1951, but specified that this action did not affect the determination of sovereignty over the disputed islands.125 Japan has administered the islets from 1895 to 1945 and from 1951 to the present. In June 2005, a flotilla of Taiwanese fishing vessels circled around these islets to protest Japanese restrictions on fishing in the region. Professor Lee Keun-Gwan has observed that Japan’s claim to the Senkakus/ Daioyudao and to Dokdo (Takeshima) are both based on an argument that they were terrae nullius, “discovered,” and then “effectively occupied” by Japan, and that

123

124

125

Tao Cheng, The Sino-Japanese Dispute Over the Tiao-yu-tai (Senkaku) Islands and the Law of Territorial Acquisition, 14 Va. J. Int’l L. 221, 253–60 (1974). But Japan had refused three earlier applications by the Okinawa Prefecture (in 1885, 1890, and 1893) to incorporate the Senkakus because of concern that such a move might lead to conflict with China. Choon-ho Park, Oil Under Troubled Waters: The Northeast Asia Sea-Bed Controversy, in East Asia and the Law of the Sea 33 (Seoul: Seoul National University Press, 1983). See generally Jean-Marc F. Blanchard, The U.S. Role in the Sino-Japanese Dispute over the Diaoyu (Senkaku) Islands, The China Quarterly 95 (No. 161, March 2000).

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“in both cases the measure of occupation was taken during armed conflicts, that is, the Sino-Japanese War and the Russo-Japanese War respectively in which Japan emerged victorious.”126 He observed that although “occupation” may sound “neutral on its own,” during the age of imperialism it “became a powerful conceptual tool for the acquisition or aggrandizement of territory by European states” and that this method of acquiring territory “is, quite often, deeply tainted with European expansionism and colonialism.”127 And, as applied to Japan’s claims to the Senkakus and Dokdo, the doctrines of “discovery” and “occupation” are “a technical or legal camouflage that serves to justify an essentially expansionist and colonialist act on the part of the pre-1945 Japan.”128 As explained above,129 Chinese and Taiwanese scholars have acknowledged that the Daioyudao do not qualify under Article 121(3) of the Law of the Sea Convention to generate EEZs and continental shelves, but it is not clear whether Japan accepts that position, and when Taiwan ratified the 1958 Continental Shelf Convention in 1970, it specifically stated that in “determining the boundary of the continental shelf of the Republic of China, exposed rocks and islets shall not be taken into account.”130 In any event, these tiny islets should not play a role in determining how the maritime boundary in this region should be delimited.

IX. The South China Sea 1. Sovereignty Issues: Who Owns the Spratlys? China, Taiwan, Vietnam, Malaysia, Brunei, and the Philippines all make claims to some or all of the Spratly Islands and to some or all of the ocean space of the surrounding waters.131 The most unusual of the claim’s is China’s, which is based on historical data but was brought into focus with the publication of an unusual map in 1947. In that year, the Chinese government (which was then still the Kuomintang or Nationalist Government) “published an official map of the archipelagoes of

126

127 128 129 130

131

Lee Keun-Gwan, Preliminary Report on the Question of Neutrality in the Context of the Japanese Annexation of Korea and a New Methodological Approach to the Annexation Question 4 (paper presented to Workshop on the 1905 Convention, Kookmin University, Seoul, Oct. 3, 2004) (citing Nihon gaiko monjo vol. 3, document no. 87 (15 April 1870)). Id. at 4–5. Id. at 6. See supra text accompanying notes 70–72. See Clive Symmons, The Maritime Zones of Islands in International Law 136 and 270 n. 539 (1979) (citing Allen & Mitchell, The Legal Status of the Continental Shelf of the East China Sea, 51 Oregon L. Rev. 789, 808 (1972)). These claims are described and analyzed in detail in Valencia, Van Dyke, and Ludwig, supra note 1, at 17–76.

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the South China Sea, using 11 interrupted lines to indicate the boundary of the islands, islets, reefs, banks and adjacent waters over which China exercised sovereignty.”132 Two of these lines in the Tonkin Gulf area were later eliminated,133 and so this configuration has come to be known as the “nine interrupted lines.” They swing deep into the South China Sea making a tongue-like configuration. Some commentators view these lines benignly, and describe them simply as a claim to the islets enclosed in the lines,134 but at least some Chinese view it as a claim to the waters as well. China has not yet claimed an EEZ. It issued a listing of baselines on May 15, 1996 that connected the Paracels, but made no mention of the Spratlys, saying cryptically that “[t]he Government of the People’s Republic of China will announce the remaining baselines of the territorial sea of the People’s Republic of China at another time.”135 The nature of the claim thus remains shrouded in mystery. Occasionally, however, Chinese statements – and, more importantly, Chinese actions – indicate that China actually claims all the waters and resources within these lines. In a paper delivered in 1994 by Pan Shiying, a senior research fellow at the Institute for International Technological Economic Studies in Beijing who is thought by some to speak for the People’s Liberation Army – Navy (PLAN), the author characterized this line as making a claim for “historic title” to the area.136

132

133 134

135

136

Pan Shiying, South China Sea and the International Practice of the Historic Title 5 (Paper delivered to American Enterprise Institute conference on the South China Sea, Sept. 7–9, 1994) [hereafter cited as Pan Shiying, Historic Title]. Pan Shiying includes a reproduction from a Chinese atlas showing the “nine interrupted boundary lines surrounding the area and the archipelagoes” in Pan Shiying, The Nansha Islands: A Chinese Point of View, Window (Hong Kong), Sept. 3, 1993, at 35. A “redrawn” version of this map appears in Steven Kuan-Tsyh Yu, Who Owns the Paracels and Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims, in Fishing in Troubled Waters: Proceedings of an Academic Conference on Territorial Claims in the South China Sea 48, 55 (R.D. Hill, Norman G. Owen and E.V. Roberts, eds., Hong Kong: Centre of Asian Studies, University of Hong Kong, 1991). Pan Shiying, Historic Title, id. See Kuan-Ming Sun, Policy of the Republic of China Towards the South China Sea, 19 Marine Policy 401, 405 (1995) (the “map, upon which the ROC bases its claim, was mainly used (as indicated by its title) to depict the location of the ROC-claimed Islands in the South China Sea” (emphasis in original); see also Hungdah Chiu, The Legal Regime of Our Nanhai Historic Waters, 32:8 Issues & Studies (Chinese Edition) 23 (Aug. 1993); Steven K.T. Yu, On the Legal Status of ROC’s Nanhai U-shaped Line: Based upon the Regime of “Historic Waters,” 8:1 Lilun yu Zhengce (Theory and Policy) 96 (Nov. 1993), both cited in Yann-huei Song, The Issue of Historic Waters in the South China Sea Territorial Sea Dispute 34–35 nn. 81 & 82 (paper delivered to the American Enterprise Institute Conference on the South China Sea, Sept. 7–9, 1994). Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic of China, May 15, 1996. Pan Shiying, Historic Title, supra note 132; see also Pan Shiying, Nansha Islands, supra note 132, at 23.

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He defended this claim based on the international law that existed at that time, and noted that no nation protested the line for a number of years after it appeared, and that several scholars have reprinted it. His paper noted that “the application of the interrupted lines, rather than uninterrupted lines make future adjustments possible,” and ultimately recommended some form of joint development of the region. A second paper delivered by the Taiwanese scholar Yann-huei Song at the same conference137 similarly defended the historic land claim but did not conclude exactly what the status of the waters within this line should be. He noted that neither the People’s Republic of China (PRC) nor the Taiwan government had ever protested the movement of ships through these waters and stated that “the PRC government has never claimed the waters enclosed in the line as historic waters.” He hinted that China might try to connect baselines between the Spratlys and claim the waters within those baselines as internal waters, with the waters outside being within a claimed EEZ, but he also seemed to understand the difficulties with such a claim.138 On May 18, 1995, Chinese Foreign Ministry spokesperson Shen Guofang stated that China’s claim to the Spratlys is not designed to impede freedom of navigation through the area, but he refused to explain how China defined its claims around the islets.139 Some commentators writing after May 1995 have stated that China has abandoned its previous ambiguous claim to the waters of the South China Sea based on the “nine-interrupted-lines” map,140 but China’s actual position remains shrouded in ambiguity. China’s historical claim is a weak one, but its persistence in maintaining this claim makes it difficult to delimit the maritime boundaries of the South China Sea.

137

138 139

140

Yann-huei Song, The Issue of Historic Waters in the South China Sea Territorial Sea Dispute (paper delivered to the American Enterprise Institute Conference on the South China Sea, Sept. 7–9, 1994). This paper referred to a January 1948 map official published by the Republic of China’s Ministry of Interior entitled, “Nan-hai-zhu-dao-wei-tz-tu” (or “Map of Locations of South China Sea Islands), containing the U-shaped broken line. Id. at 8. The title of the map would appear to indicate that it was a claim to the island features rather than to the waters and subsoil. See generally Valencia, Van Dyke & Ludwig, supra note 1, at 25–28. Patrick E. Tyler, China Pledges Safe Passage for All Foreign Ships Around Contested Islands, N.Y. Times, May 19, 1995, at A5, col. 2 (nat’l ed.). See also Reuters, China Says Ready to Solve Spratly Dispute by Law, July 30, 1995 (quoting Shen Guofang as saying that China had always attached great importance to the safety and freedom of navigation through international lanes in the South China Sea, and that there would not be problems in this regard in the future). See, e.g., Barry Wain, China Moderates Its Spratlys Claim, Asian Wall Street Journal, Feb. 2, 1996, at 6.

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2. The Role of Taiwan Taiwan’s involvement in the South China Sea controversies increases the complexity of these issues. On March 10, 1993, Taiwan adopted “Policy Guidelines for the South China Sea,” which asserted sovereignty over “the Spratly Islands, the Paracel Islands, Macclesfield Bank and the Pratas Islands” and also stated that: “The South China Sea area within the historic water limit is the maritime area under the jurisdiction of the Republic of China, in which the Republic of China possesses all rights and interests.”141 In April 1995, Taiwan’s Ministry of Foreign Affairs reemphasized this position by saying: “Undoubtedly, our government has sovereignty over the historic U-shaped territory, including the Spratly Islands.”142 Taiwan now occupies the largest of the Spratly islets – Itu Aba (Tai Ping Dao) – and reportedly has stationed 600 marines there.143 Taiwan’s activities in the Spratlys as well as its position on the issues have often supported those of China. In fact, it has been reported that the Chinese garrisons in the Spratlys receive fresh water supplies from the Taiwanese troops on Itu Aba. 3. Resolving the Sovereignty Disputes The key decisions addressing sovereignty disputes over small islets – the Clipperton, Palmas, Minquiers and Ecrehos and Gulf of Fonseca precedents144 – all focus on “discovery,” and, in particular, on “occupation” of small islets. Although they do not require too much activity when the islet is uninhabitable, they do demand some formal acts and a sufficient presence to let others know of the claim. In the Spratlys, no nation’s claim appears to have been sufficiently strong or unchallengeable to persuade others to keep out of the region. Although China has argued that Western requirements of formal declarations of sovereignty should not apply in Asia, their suggested substitute – long contact with a region – does not appear to

141 142

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Reprinted in 19 Marine Policy 408 (1995) (emphasis added). FBIS-CHI-95-066 (Apr. 6, 1995), citing OW0604093695 Taipei LIEN-HO PAO in Chinese, Apr. 5, 1995, at 1. Mark J. Valencia, The Spratly Islands: Dangerous Ground in the South China Sea, 1 Pacific Review 382–95 (1988); B.A. Hamzah, Jurisdictional Issues and Conflicting Claims in the Spratlys 4 (paper submitted to Bali Workshop on Managing Potential Conflicts in the South China Sea, Jan. 22–24, 1990). Arbitral Award of His Majesty the King of Italy on the Subject of the Difference Relative to the Sovereignty over Clipperton Island (France v. Mexico), Jan. 28, 1931, 26 Am. J. Int’l L. 390 (1932); Arbitral Award Rendered in Conformity with the Special Agreement Concluded on January 23, 1925, Between the United States of America and the Netherlands Relating to the Arbitration of Differences Respecting Sovereignty over the Island of Palmas (Miangas), April 4, 1928, reprinted in 22 Am. J. Int’l L. 867, 909 (1928); The Minquiers and Ecrehos Case (France/United Kingdom), 1953 I.C.J. 47; Gulf of Fonseca Case, supra note 45.

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be sufficient because it does not put others on notice that a claim of exclusion has been made. Besides, China has stated several times that it will resolve the South China Sea issues according to international law and the principles in the 1982 United Nations Law of the Sea Convention. If the historic claims do not resolve the question of ownership, then do the recent occupations of the islets lend weight to any of the claims? France made some minimal attempts to exert physical control over seven of the islets in the 1930s, but it was not until Japan entered the region in August 1938 that anything akin to “effective control” occurred. Japan used Itu Aba, the largest Spratly islet, as a submarine base to intercept shipping in the area. Their installations were abandoned in 1945, and, more recently, the islets have been occupied by others. In the Peace Treaty signed by Japan on September 8, 1951, Japan renounced its rights to the Spratlys, but no recipient was named. Taiwan has effectively controlled Itu Aba from 1946 to 1950 and from 1956 to the present. Vietnam has controlled many Spratly features since 1973. The Philippines has controlled some islets since 1978. Malaysia began controlling features in the southern portion of the area in 1983, and China began its efforts to occupy islets in 1988. In each case, other nations have challenged the occupations. The result has been a crazy-quilt pattern of occupation and an uneasy stalemate. Nevertheless, some of these occupations may at some point ripen into a legitimate entitlement of sovereignty. Is “contiguity” or geographical proximity relevant here? Malaysia, the Philippines, and even Vietnam argue that they are entitled to some or all of the Spratlys because these islands are near their main land territories. Contiguity was rejected in both the Clipperton and Palmas decisions, and was not a factor in the Minquiers and Ecrehos case, but the argument has a persistent practical appeal. China, of course, thoroughly rejects it.145 In summary, international legal principles will not unambiguously resolve the competing sovereignty claims to the Spratlys. All the claims are weak, because the claimants cannot demonstrate continuous and effective occupation, administration, and control, as well as acquiescence by other claimants. Each claimant undoubtedly realizes that if the dispute was presented to a tribunal or arbitrator, it may not ultimately or completely prevail. An independent decision-maker is likely to allocate these tiny islets according to the common legal principles of equity and fairness. In the long run, each claimant might be better served by putting aside the issue of sovereignty over the islets and working with the other claimants to multilaterally develop the resources of the disputed area. Such an approach would

145

See, e.g., Ji Guoxing, The Spratlys Dispute and Prospects for Settlement 18 (ISIS, Malaysia, 1992): “To lay claim to islands proximate to one’s country contravenes not only international law but also international justice and peace. . . . If each country acts like that, the world would be in a muddle.”

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not formally reject any of the claims, would allow each nation to maintain its legal position, and would also allow the resources to be developed for the benefit of the people of the region. 4. Boundary Delimitation in the South China Sea China, Vietnam, the Philippines, Malaysia, Brunei, Indonesia, and Singapore are parties to the Law of the Sea Convention. As a formal matter, Taiwan does not appear to be eligible to be a party. Many countries have said that they view the Convention as expressing the customary international law that applies to ocean issues, and the ICJ has recognized that the central parts of the Convention are now customary international law. The Convention provides some guidance to resolve the South China Sea disputes, and other principles can be discovered through an examination of state practice. Features That Are Submerged at High Tide Cannot Generate Maritime Zones This traditional principle of customary international law is confirmed in Article 121 of the Law of the Sea Convention. Claims to maritime zones based on reefs that are submerged at high tide, even if artificial structures have been built on them, are not valid.146 Do Any of the Spratly Islets Have the Capacity Under Article 121 to Generate EEZs or Continental Shelves? The central question that must be addressed before the maritime boundary issues can be unraveled is whether any of the Spratly islets have the capacity to generate an EEZ or continental shelf. Between 25 and 35 of the 80–90 distinct features in the Spratly region are above water at high tide, and these outcroppings qualify as “islands” under Article 121 of the Law of the Sea Convention and appear to be entitled to territorial seas. As explained above,147 however, Article 121(3) says that “[r]ocks which cannot sustain human habitation or an economic life of their own” do not generate EEZs or continental shelves. Until recent times, the Spratlys were not inhabited except by occasional wandering fishers. Although they were occasionally visited, they had no independent

146 .

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Article 60(8) of the Law of the Sea Convention states that artificial islands generate no zones. See Jonathan I. Charney, Central East Asia Maritime Boundaries and the Law of the Sea, 89 Am. J. Int’l. L. 724, 736 (1995): “There is no support [for a claim based on a submerged reef ] in the LOS Convention or in general international law.” Article 47(1) of the Law of the Sea Convention does allow dying reefs to be used as archipelagic basepoints, and Article 7(4) allows baselines to be drawn from low-tide elevations if they have lighthouse on them or have received “general international recognition.” See supra text accompanying notes 60–72.

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economic life of their own. The language in Article 121(3) appears to require that the relevant “economic life” of features must be “of their own.” Thus an artificial economic life supported by a distant population in order to gain control over an extended maritime zone is not sufficient. The largest islet, Itu Aba, is 0.43 square kilometer in area. Spratly Island is 0.15 square kilometer and only five others are larger than 0.1 square kilometer – Thitu Island, West York Island, Northeast Cay, Southwest Cay, and Sand Cay. The others are truly small. The highest feature is Namyit Island, at 6.2 meters.148 Only ten of the islets appear to sustain trees naturally – Itu Aba, Loaita Island, Namyit, Nanshan Island, Northeast Cay, Sand Cay, Southwest Cay, Thitu Island, West York Island, and Sin Cowe.149 Only a few of the islets have been used for guano exploitation – Spratly Island and Amboyna and Southwest Cays. Itu Aba and Thitu have been used historically as regional bases for fishers from Hainan Island and elsewhere. In an earlier writing, I drew upon the writings of Gidel to suggest that only islands that have shown the ability to sustain stable human populations of at least 50 persons should be allowed to generate maritime zones, and that the Spratlys do not meet this requirement.150 Other authors have reached similar conclusions regarding the inability of these islets to sustain human habitation and thus to generate EEZs or continental shelves.151 More important is state practice. Vietnamese 148

149

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Two authors have listed Namyit’s elevation as 19 meters. J.R.V. Prescott, Maritime Jurisdiction in Southeast Asia: Commentary and Map 32 (Honolulu: East-West Center, 1981); Ying Cheng Kiang, China’s Boundaries 43 (Northeastern Illinois University Institute of China Studies, 1984). 1 & 2 Office of the Hydrographer (United Kingdom), South China Sea Pilot 107–13, 271–75 (1965). Jon M. Van Dyke & Dale L. Bennett, Islands and the Delimitation of Ocean Space in the South China Sea in Ocean Yearbook 10 at 75–80, 89 (1993). See, e.g., Lee G. Cordner, The Spratly Islands Dispute and the Law of the Sea, 25 Ocean Dev. & Int’l. L. 64, 69 (1994) (“It is unlikely, however, that the islet [referring to Itu Aba] could ‘sustain human habitation or economic life of [its] own’ and, therefore, while it would generate a territorial sea and a contiguous zone, the application of an EEZ or a continental shelf is less certain under Article 121”). See also Gerardo M.C. Valero, Spratly Archipelago Disputes, 18 Marine Policy 314, 315 (1994) (“The islands constituting the Spratlys, in and of themselves, are, on the one hand, too small and too barren to independently support permanent human settlements and, on the other, are not distinguished by any significant on-shore natural resource”). Reaching the same result is Michael Bennett, The People’s Republic of China and the Use of International Law in the Spratly Islands Dispute, 28 Stanford J. Int’l L. 425, 430 (1992) (“The [Spratly] islands have no permanent inhabitants and are too small to sustain permanent, independent settlements”). Quite significant is the statement made by the Legal Adviser for the Philippine Department of Foreign Affairs, who wrote that the “disputed Spratly Islands are mostly coral reefs which allow only sparse growth of mangroves, shrubs, and stunted trees. This area can hardly support human habitation.” Jorge R. Coquia, Maritime Boundary Problems in the South China Sea, 24 U.B.C.L. Rev. 117, 120 (1990). A consultant for the Crestone Oil Company has characterized the islets as “tiny” and “of virtually no economic value.” Daniel Dzurek, Boundary and Resources Disputes

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officials now appear to have adopted the view that the Spratly islets cannot generate EEZs or continental shelves.152 Ambassador Hasjim Djalal of Indonesia has also expressed that view.153 Although the arguments against allowing any of the Spratlys to generate extended maritime zones seem strong, occasional authors continue to suggest that at least some of the islands can generate zones.154 And China frequently acts as if it assumes the islets can generate extended zones. It is most logical and practical to conclude that none of the Spratlys can generate any extended maritime zones, but if agreement cannot be reached on this approach, a fallback position might be to allow the islets to generate a “regional” zone that would be shared and jointly managed. This position would recognize that the Spratlys have been visited and, to some minimal extent, used by the people of the region for centuries, and that it should continue to be viewed as a shared resource.

152

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in the South China Sea, 5 Ocean Y.B. 254, 259, 271 (1985); see also Daniel J. Dzurek, Southeast Asian Offshore Oil Disputes, in Ocean Yearbook 11 at 157, 171 (1994), (where he says the “reefs and islands in the Spratly Islands are minuscule and had no economic importance until the development of the new Law of the Sea . . .”). (Nonetheless Dzurek asserts that Spratly Island is entitled to generate a continental shelf, because the garrisoning of troops there establishes that it “can sustain human habitation.” Id.) An Australian scholar generally sympathetic to the Chinese position has written that “any argument that such islands [as the Spratlys] should . . . have a much wider shelf claim – rather than for example constitute a territorial sea enclave – would be one equally without established precedent or authority.” Jeannette Greenfield, China’s Practice in the Law of the Sea 165 (Oxford: Clarendon Press, 1992). Ho Si Thoang, chair of Petro Vietnam, has been quoted as saying that “by international law a chain of atolls like the Spratlys are not entitled to a 200-nautical mile economic zone.” Dzurek, Offshore Oil Disputes, id. l.c., at 171 (citing Petro Vietnam Official on Spratlys Exploration, Bangkok Post, Inside Indochina (supplement), Nov. 2, 1993, at 2, as transcribed in FBIS, Daily Report: East Asia, Nov. 3, 1993, at 54.) At the First Meeting of the Technical Working Group on Legal Matters in the Indonesian-Canadian workshops on the South China Sea, held in Phuket, Thailand, July 2–5, 1995, the Vietnamese Legal Adviser, Nguyen Qui Binh, told the author that Vietnam did not think the Spratly islets had the capacity to generate exclusive economic zones or continental shelves. (But in its May 12, 1977 Statement Declaring a Territorial Sea, a Contiguous Zone, a Continental Shelf and an Exclusive Economic Zone, para. 5, Vietnam made a broad claim for all such zones which one commentator has interpreted to include the Spratlies and Paracels as well as its mainland coasts. See Valero, id. at 317 n. 12). See Summary of Proceedings of the First Technical Working Group Meeting on Legal Matters in the South China Sea, Phuket, Thailand, July 2–5, 1995, at 10. See, e.g., Dzurek, Offshore Oil Disputes, supra note 151, at 171; Prescott, Commentary and Map, supra note 148; Victor Prescott, Sharpening the Geographical and Legal Focus on the Potential Regional Conflict in the Spratly Islands 5 (paper presented at the Workshop on the Spratly islands: A Potential Regional Conflict, Institute of Southeast Asian Studies (ISEAS, Singapore, December 8–9, 1993); R. Haller-Trost, International Law and the History of the Claims to the Spratly Islands (South China Sea Conference, American Enterprise Institute, Sept. 7–9, 1994); Coquia, supra note 151, at 120, also appears to believe that ownership of the Spratly islets “will enable a claimant state to declare jurisdiction and/or sovereignty over wide areas of the ocean,” even though he acknowledges that the islets “can hardly support human habitation.”

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This conclusion has a precedent in the Gulf of Fonseca case,155 where Honduras, Nicaragua, and El Salvador were recognized as having a “condominium” ownership over the waters and resources of the Gulf of Fonseca, which were characterized as jointly-owned historic waters. Should Some of the Spratly Features Now Be Characterized as “Artificial Islands,” and, If So, What Is Their Legal Status? Article 60(8) of the Law of the Sea Convention states clearly that artificial islands do not have the capacity to generate EEZs or continental shelves. Some of the current structures built on reefs can only be characterized as “artificial islands.” The Chinese occupations of Subi Reef, Johnson South Reef, and Mischief Reef, the Malaysian occupation of Dallas Reef and Investigator Shoal, and the Vietnamese occupations of Vanguard and Prince of Wales Banks, all seem to fit this description. Article 60(8) was designed to discourage nations from building up submerged reefs and low-tide elevations in order to generate extended maritime zones. If it is not interpreted according to its clear language, then we would foresee continued efforts to reclaim submerged features in order to lay claim to open ocean areas. Are the Spratly Islets That Are Above Water at High Tide Entitled to Generate 12-Nautical-Mile Territorial Seas? Article 3 of the U.N. Law of the Sea Convention allows “Every State” to establish territorial seas around its land areas “to a limit not exceeding 12 nautical miles,” and Article 121 allows every feature that is above water at high tide to generate such a zone. Vietnam declared a 12-n.m. territorial sea around the Spratlys in a 1977 statement156 and China did so in its 1992 Territorial Sea Law.157 One commentator has reported that Malaysia has claimed a 12-n.m. territorial sea around Swallow Reef and Amboyna Cay but not around its other claimed features.158 Even though the Law of the Sea Convention allows countries to declare 12n.m. territorial seas around coasts and islands, it does not necessarily follow that a territorial sea of this size is legitimate in all locations and for all purposes. Article 300, entitled “Good faith and abuse of rights,” reminds countries that they must not invoke rights under the Convention in a manner that imposes an unacceptable burden on other nations. Examples can be found where states have agreed to establish

155 156

157

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Gulf of Fonseca Case, supra note 45. Statement of May 12, 1977, reprinted in 2 North America, Asia-Pacific and the Development of the Law of the Sea (Myron Nordquist and Choon-ho Park, eds., 1981), and cited in Valero, supra note 151, at 317 n. 12. Law on the Territorial Sea and the Contiguous Zone of February 25, 1992 (Order of the President of the People’s Republic of China No. 55), reprinted in 21 Law of the Sea Bulletin 24–27 (1992). Haller-Trost, supra note 154, at 66.

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territorial seas of less than 12-n.m. around islands that are on the “wrong” side of a median boundary line. The Venezuelan island of Isla Patos, between Venezuela and Trinidad & Tobago, the Abu Dhabi island of Dayyinah, between Abu Dhabi and Qatar, and the Australian islands in the Torres Strait, between Australia and Papua New Guinea, all have territorial seas of only three-n.m.159 These examples provide a logical precedent for the South China Sea, because these islands, like the Spratlys, are all small and have no permanent civilian population. The islands in the crowed Aegean Sea generate only six-n.m. territorial seas.160 Hasjim Djalal has observed that the Spratly islets are not entitled to any territorial seas at all, and instead should simply be protected by small “safety zones.”161 Certainly the claimant parties could agree that the islets that are above water at high tide generate territorial seas of less than 12-n.m., and such an agreement would be consistent with the view that the resources of the region should be shared by the peoples of the region, or possibly by the international community as a whole. What Continental Shelf Claims Can Be Made by the Claimant States? The geography of the South China Sea presents an interesting challenge in interpreting and applying Article 76 of the Law of the Sea Convention. If one concludes that the Spratly islets do not have the capacity to generate EEZs or continental shelves, then these zones must be determined by reference to the continental land masses and the larger bordering islands. The continental shelf southeast of Vietnam and northwest of the Sarawak (Malaysia)/Brunei border extends substantially beyond 200-n.m. from their irrespective coasts. Under Article 76(5), Vietnam and Malaysia would each apparently be allowed to claim the resources on this shelf out to 350-n.m., in the absence of competing claims. Malaysia’s extended continental shelf claim to the north and east and Brunei’s extended continental shelf claim do not appear to be justified, however, because of the East Palawan Trough near the coast. A Philippine claim based on an extended continental shelf also would not be justified because of the deep indentation on the sea floor just west of the main Philippine islands.

159

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161

Hiran W. Jayewardene, The Regime of Islands in International Law 425, 437, 441, 455, 485 (Dordrecht: Martinus Nijoff, 1990). See generally Jon M. Van Dyke, The Aegean Sea Dispute: Options and Avenues, 20 Marine Policy 397 (1966); also published in Aegean Issues: Problems – Legal and Political Matrix 59 (Ankara: Foreign Policy Institute, 1995); Jon M. Van Dyke, An Analysis of the Aegean Disputes Under International Law, 36 Ocean Development and International Law 63, 83–85 (2005). Summary of Proceedings of First Technical Working Group Meeting on Legal Matters in the South China Sea, Phuket, Thailand, July 2–5, 1995, at 10.

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What Is the Role of the Continental Shelf Commission? Article 76 and Annex II of the Law of the Sea Convention establish a 21-member Continental Shelf Commission, which has the responsibility to evaluate claims by coastal nations for shelves extending beyond 200-n.m. Because of the complex formula found in Article 76, it is necessary to have some neutral body evaluate the claims made by nations seeking additional resources. It is not clear, however, what this Commission should do in a situation where the extended claims overlap. Although phrased as “recommendations,” the Commission’s decisions must be respected by the concerned nations. If any of the South China Sea nations were to submit a claim to the Commission, the Commission’s ruling could have an important impact on the ultimate delimitation of boundaries in this region. What Principles Govern the Delimitation of Maritime Boundaries? Once the difficult and complex issues identified above are addressed and resolved, it then becomes appropriate to determine how the maritime boundaries in the region should be drawn. Article 6 of the 1958 Convention on the Continental Shelf and Article 12 of the 1958 Convention on the Territorial Sea and Contiguous Zone adopted the “equidistance principle” as the method for resolving competing claims to surrounding waters. Under this principle, a disputed area is divided along a line equidistant between the countries involved. But the 1982 Law of the Sea Convention carefully avoided referring to “equidistance” as the proper approach, and instead provided in Articles 74(1) and 83(1) a carefully crafted formula that gives only subtle hints regarding how disputes should be resolved: The delimitation of the exclusive economic zone [and continental shelf ] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

The goal is thus to achieve an “equitable” resolution to boundary disputes, and a variety of principles have been developed to achieve this goal.162 The “equitable principle” with the most direct relevance to the South China Sea maritime boundary dispute is that islands do not have an equal capacity with land masses to generate maritime zones. Because of this principle, even if one or more of the tiny Spratly islets were deemed to be capable of generating extended maritime zones, they would not command equal strength with an opposing continental area or a larger island. The focus on control of the Spratlys may, therefore, be misdirected.

162

See, e.g., Van Dyke, Korea’s Maritime Boundaries, supra note 1, at 510–16.

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Islands can generate maritime zones,163 but they do not generate full zones when they are competing directly against continental land areas. This conclusion has been reached consistently by the Court and arbitral tribunals.164 Although the language of Article 121(3) would appear to dictate the result that the Spratly islets should not be allowed to generate any extended maritime zones, even if they are allowed to do so, their capacity to generate such a zone would be very weak in relation to competing claims from continental or large-island land masses. Because the features in the Spratly group are extremely tiny outcroppings, it is virtually certain that a tribunal would give these features only limited relevance in delimiting maritime boundaries. Will High Seas Areas Remain After the Maritime Boundaries Are Delimited, and, If So, How Will This Area Be Governed? If the Spratly islets are not permitted to generate extended maritime zones, and if the principles laid out in the Law of the Sea Convention are applied, then an area beyond national jurisdiction will remain in the center of the South China Sea. Under the Law of the Sea Convention, the fishery resources in this zone would be governed by the requirements of Articles 116–19 and the 1995 Agreement on Straddling and Migratory Stocks.165 The seabed mineral and hydrocarbon resources in areas beyond national jurisdiction, if any, which are of more importance to the South China Sea disputes, would apparently be governed by the International Sea-Bed Authority. It is unclear how that body would operate in a semi-enclosed sea such as the South China Sea. Outside powers would certainly need the approval of the International Sea-Bed Authority to explore and exploit sea-bed resources there. But it might also be

163

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1982 U.N. Law of the Sea Convention, supra note 3, art. 121; the I.C.J. ruled in the Jan Mayen Case, supra note 21, that Jan Mayen could generate an EEZ and continental shelf even though this 380-square-kilometer barren islet has never sustained a permanent population, and maintains only a scientific station staffed by 25 rotating individuals. 1992 I.C.J. at 38, 69, 73–74, paras. 70, 80. See Van Dyke & Bennett, supra note 150, at 54–64 (discussing Anglo-French Arbitration, supra note 23; Case Concerning the Continental Shelf (Tunisia/Libya), 1982 I.C.J. 18; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 I.C.J. 246; and Continental Shelf (Libya/Malta), 1985 I.C.J. 13). See also Jonathan I. Charney, Central East Asia Maritime Boundaries and the Law of the Sea, 89 Am. J. Int’l L. 724, 741 (1995): “small features distant from the mainland shore usually have a limited impact on the overall maritime delimitations within the 200-nautical-mile EEZ as a result of the application of various techniques for enclaving and discounting these features.” Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, U.N. Doc. A/CONF. 164/37, Sept. 8, 1995, reprinted in 34 I.L.M. 1542 (1995).

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appropriate to have a regional advisory board to ensure regional involvement in the decision-making. A Shared Regional “Common Heritage”? Although the Convention does not explicitly authorize this approach, it may be appropriate for the nations of this region to assert a regional claim of ownership over the resources of the South China Sea beyond areas of national jurisdiction. This result may be appropriate in light of the unique problem created by the ambiguity over whether the Spratly islets can generate extended maritime zones. The unusual 1992 decision of the ICJ Chamber in the Gulf of Fonseca Case concluding that El Salvador, Honduras, and Nicaragua hold undivided interests in the maritime zones both landward and seaward of the closing line across the Gulf of Fonseca may provide a useful precedent for a solution to the South China Sea disputes.166 If one accepts the early Chinese contacts with the Spratlys, one has to also recognize that China was in some sense a colonial power over Vietnam and other areas of this region. Once this colonial domination ended, Vietnam and the other areas would logically have inherited the sovereign claims made by the colonial master, just as the Central American republics inherited the claims made by their colonial master, Spain. But the islets and the maritime space cannot be easily divided, because China still exists and still claims this region. It may therefore be appropriate to see the jurisdiction over the islets and the surrounding marine space as shared between China and Vietnam, as well as the other nations that were dominated by China in earlier periods. It has also become increasingly common for countries to establish joint development areas in disputed maritime regions, and this approach may be a logical solution in the Spratly area. Jose de Venecia, a close confidant of the then-President Fidel Ramos and a leading member of the Philippine Congress, introduced a resolution proposing a “condominium system: for the whole South China Sea.”167 Further, the then-Legal Adviser to the Philippine Department of Foreign Affairs has stated that the marine resources of this region “should be explored, exploited and managed by all nations jointly for the benefits of all peoples.”168 In August 1995, Taiwan’s President Lee Teng-hui proposed that the 12 nations and territories with interests in the region give up their claims to the disputed islets and invest $10 billion to establish a South China Sea Development Co. to develop the natural resources cooperatively.169 166 167

168 169

Gulf of Fonseca Case, supra note 45. Coquia, supra note 151, at 125 n. 19 (citing House of Representatives Resolution No. 1010 introduced by Congressman Jose de Venecia). Id. at 125. Kyodo, Lee Urges Joint Venture Plan for South China Sea Works, Japan Times, Aug. 22, 1995, at 4.

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In 1990, in Singapore, Li Peng, who was then China’s Premier, proposed that the question of sovereignty be set aside and the resources of the South China Sea be jointly developed.170 It has never been clear what China’s vision of joint development is, but it appears that it involves cooperating in areas where the other Southeast Asian nations have strong claims to ocean resources. In any event, this idea is clearly one worth exploring in more detail.171 The Claimant States Have a Duty to Cooperate in Managing the Resources and Protecting the Environment of a Semi-Enclosed Sea Articles 122 and 123 of the Law of the Sea Convention establish the concept of a “semi-enclosed sea” and require the nations bordering such seas to cooperate with regard to a number of issues. The South China Sea meets the definition of a “semi-enclosed sea” under Article 122, because it consists “entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.” Article 123 provides that the coastal states “shall endeavor, directly or through an appropriate regional organization” to coordinate (a) management, conservation, and exploitation of the living resources, (b) protection and preservation of the marine environment, and (c) scientific research.

X. Conclusion These unresolved sovereignty and maritime boundary issues create obstacles limiting the ability of the people of East Asia to exploit the resources of their coastal areas. Some disputes concern resources of potential value and some involve matters of substantial national importance related to historical wrongs. They are complex, but are certainly capable of resolution. Because some controversies raise issues that are linked to other disputes, something of a gridlock exists, and not much effort has been expended recently to reach permanent solutions to these disagreements. The peoples of East Asia have reached pragmatic provisional solutions to many of their maritime controversies,172 and permanent solutions will be found to these maritime boundary disputes when the countries involved perceive that it is in their political and economic interest to resolve them.

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At a press conference in Singapore on Aug. 13, 1990, the visiting Chinese Premier Li Peng said that “China is ready to join efforts with Southeast Asian countries to develop the [Spratly] Islands, while putting aside for the time being the question of sovereignty. . . . Under the proposal, Vietnam, China and the Philippines would withdraw their military units from the islands in favor of joint development of the area’s seabed and marine resources.” For examples of joint developments elsewhere, see Valencia, Van Dyke & Ludwig, supra note 1, at 183–87. See, e.g., Van Dyke, North-East Asian Seas, supra note 1, at 409–17.

Chapter IV Sino-Japanese Jurisdictional Delimitation in East China Sea: Approaches to Dispute Settlement Ji Guoxing I. Introduction Maritime security in the East China Sea is an important component of Northeast Asian maritime security, which relates to the overall security of the region. Northeast Asian security is closely related to the maritime security in its seas.1 Maritime jurisdiction is an important aspect of maritime security, and disputes in jurisdiction directly affect maritime security. Maritime jurisdictional disputes in Northeast Asian seas include two dimensions of disputes: territorial sovereignty disputes over islands; and disputes over exclusive economic zone (EEZ) and continental shelf delimitation. The two different kinds of disputes are related to each other. Territorial disputes are questions left over by history, and maritime jurisdictional disputes have arisen because of the expansion of jurisdictional sea areas, along with the development of the modern law of the sea. The disputes over maritime interests and rights in the East China Sea between China and Japan involve these two issues. With the 1982 UN Convention on the Law of the Sea entering into force in 1994, Northeast Asian countries have tried to apply those stipulations of the Convention best suited to expand their maritime interests and rights. Because Northeast Asia has a wide gap between the supply and demand of energy, thirst for offshore oil and gas has made maritime jurisdictional disputes in Northeast Asian seas ever more tense. Since late May 2004, the Japanese mass media have spread like wild-fire the news of “Chun Xiao Gas Field,” which China has been exploiting in the East China Sea, asserting that China’s exploitation of the Field “oversteps the median line,” and “encroaches upon Japan’s maritime interests and rights in its EEZ.” Since then, the Japanese government has adopted a series of measures: spending 16.8 billion yen

1

This research was supported by Ford Foundation. The views expressed here are those of the author.

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to rent a Norwegian ship to survey sea-bed resources east of the unilateral “median line”; demanding that China hand over the survey information regarding Chun Xiao and other gas fields; giving the Japanese Imperial Oil Company the authority for a trial exploration of gas resources along its unilateral “median line”; asserting that China “siphons off ” resources that may lie under Japan-claimed waters; and suggesting that the two sides of the “median line” should be areas for joint development in an attempt to embrace Chun Xiao and other gas fields that are not in the disputed areas. These moves have escalated the delimitation disputes between China and Japan in the East China Sea. Japan has further laid the groundwork for military intervention in the East China Sea in an attempt to force China to give in. It was reported in Nihon Keizai Shimbun on September 23, 2005 that the then-Trade-Minister Shoichi Nakagawa proposed to enact a law permitting Japan’s MSDF to patrol in the sea areas of the disputed gas fields so as to provide “legal protection” to the trial exploration of Japanese oil companies. Asahi Shimbun reported on September 26, 2005 of the SDF’s “Defense Alert Plan,” which illustrated in detail “the scene of China’s invasion on Japan,” and revealed various SDF’s defense dispositions in case of China’s different possible attacks on Japan.2 Since late October 2004, China and Japan have held several rounds of talks on the East China Sea delimitation issue. Both agree to continue the dialogues and consultations to seek solutions, and to reach a consensus on the direction of settling the issue through joint development. Since Prime Minister Abe Shinzo’s visit to China in October 2006, bilateral relations between China and Japan have improved, and the tension has deescalated; however, the Sino-Japanese relations are still faced with variables, and the disputes in East China Sea still remain. How to handle properly the disputes is still a problem the two countries face. The unresolved maritime jurisdictional disputes seriously affect Northeast Asian security and development. It has made the political relationship between China and Japan volatile and insecure, has affected their economic development and marine resource exploitation, and has jeopardized regional maritime security and sea lines of communication (SLOC) security. China has adopted the position of “equitable solution through negotiation” and has stood for “shelving the disputes and working for joint development” until conditions for settlement have matured. This principle was first enunciated in regard to the Diaoyudao Islands. While discussing the signing of the Sino-Japanese Treaty of Peace and Friendship in 1978, Deng Xiaoping said that both sides agreed not to get involved in the Diaoyudao Islands issue. “It doesn’t matter to shelf such issues, and to wait for ten years. A settlement acceptable to both sides would surely

2

Lianhe Zaobao, Singapore, Oct. 11, 2005.

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be worked out in the future.” In responding to the question of Diaoyudao during his visit to Japan in October 1978, Deng Xiaoping said, “Such questions could be shelved. Probably the next generation would be cleverer than us, and would find a way to settle them.”3 Now that the 21st century has begun, China and Japan should actively explore and move toward a steady settlement of their maritime delimitation, and, until conditions permit such a settlement, should shelve the disputes and promote joint development. During Premier Wen Jiabao’s visit to Japan in April 2007, a consensus was reached between China and Japan for properly handling the East China Sea issue. The press communique issued after talks between Wen Jiabao and Shinzo Abe on April 11, 2007 stated: “The two sides will conduct joint development in accordance with the principle of mutual benefit as a temporary arrangement pending the completion of demarcation of sea borders; the two sides also agree to conduct joint development in a relatively wide area that is acceptable to both sides; the two countries will accelerate the process of consultations so that they could report to the two countries’ leaders this fall about specific plans for joint development.”4 China and Japan should work together to make the East China Sea a “sea of peace, cooperation and friendship.”

II. Japan’s Position Japan has delineated unilaterally a “median line” in East China Sea to divide the sea equally with China. An American scholar holds, “The equidistance line between the undisputed islands of Japan and the Chinese mainland leaves an area of 9,000 square nm of the Asian continental shelf landward of the 200 meter isobath on the Japanese side of the line.”5 Japan has further propagated its self-delineated “median line” in its mass media, to make those in Japan who do not know the truth believe that any adjustment of the median line in East China Sea “is encroaching upon Japan’s EEZ interests and rights.” It should be noted that as the Japanese self-delineated “median line” has not been discussed between China and Japan, it has no legal effects. In addressing the delimitation principles during the negotiations at the Law of the Sea Convention, Japan belonged to the median-line group. The negotiations revealed the existence of three virtually irreconcilable approaches: (1) delimitation should be effected by the application of equitable principles with special

3 4 5

Selected Works of Deng Xiaoping, Vol. III at 87, People’s Publishing House, Beijing (1993). A news release of Xinhua News Agency from Tokyo, Apr. 11, 2007. Mark J. Valencia, Northeast Asia: Petroleum Potential, Jurisdictional Claims, and International Relations, 20 Ocean Dev. & Int’l L. 47 (1989).

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circumstances taken into consideration; (2) delimitation should be effected by the application of the median line or equidistance line; and (3) delimitation should be effected by the principle of natural prolongation. Eventually, two groups were formed: the equitable principle group and the median-line group. The equitable principle group had more than 50 countries including China, and the median line group had more than 20 countries including Japan. After the endless debate between the two groups, the Convention, by adopting a compromise approach, made a principled stipulation in Articles 74 and 83 that the delimitation of the EEZ and the continental shelf between States with opposite or adjacent coasts “shall be effected by agreement . . . in order to achieve an equitable solution.” Japanese scholars have explained that the reasons for Japan’s insistence on the delimitation by the median line are: (1) The continental shelf regime is declining, and the regimes of the continental shelf and EEZ have been “merged.” For example, Professor Miyoshi Masahiro of Aichi University says, “The law of continental shelf boundary delimitation evolved first and then merged with that of the exclusive economic zone which arrived on the scene some time later.”6 According to Professor Shigeki Sakamoto of Kobe University, “The theory on the natural prolongation can only be applied to the continental shelf beyond 200 nautical miles.”7 Professor Masahiro states, “The advent of the EEZ has ‘absorbed,’ as it were, the continental shelf up to 200 nm from the baseline in disregard of any irregular formations on the sea-bed.”8 (2) The equidistance principle and the natural prolongation principle are in equal status. Professor Masahiro asserts, “The distance criterion is established, along with the natural prolongation doctrine, as the basis for title to the continental shelf;” and “The two alternative definitions (of Article 76, paragraph 1) are on an equal footing.”9 According to Professor Sakamoto: “Although the Law of the Sea Convention does not require the parties to draw a common line for the delimitation of the EEZ and that of the continental shelf . . . it is common practice to draw a single line for delimitation of the EEZ and the continental shelf. . . . Japan insists that for the delimitation of both the EEZ and the continental shelf, the median line should be drawn, referring to the latest international precedents on this issue.”10 6 7

8 9 10

Miyoshi Masahiro, Some Thoughts on Maritime Boundary Delimitation, in this volume. Shigeki Sakamoto, Searching for the Joint Development of the Natural Resources in the East China Sea – From the Sea of Conflict to the Sea of Cooperation, paper for the international conference “Ocean Security in Northeast Asia: Issues and Prospects” co-sponsored by School of International and Public Affairs, Shanghai Jiaotong University and Ocean Policy Research Foundation of Japan in Shanghai, May 25–26, 2006. Masahiro, supra note 6. Id. Sakamoto, supra note 7.

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(3) The disputed areas are the overlapping areas in the EEZ claims of Japan and China in the East China Sea. In Professor Shigeki Sakamoto’s view: “The median line drawn by Japan is only provisional. Until the two countries concerned agree to draw a common line, the Japanese title over the EEZ and the continental shelf under international law, which extends to 200 nautical miles from the baseline, continues to be valid.”11 Joint development should be unfolded on both sides of the median line. Professor Sakamoto says: “Japan insists that the disputed area is where Japan’s EEZ overlaps China’s EEZ, and that they should jointly develop this area on both sides of the median line.” If China “accepts the Japanese assertion concerning the disputed area, Japan could pay a part of profits from joint development to China, in proportion to the fund and energy which China has already spent for the project. . . . If it is possible for both countries to agree on the approach of the joint development, they can shelve the thorny issue, or the territorial dispute over the sovereignty of the Senkaku (Diaoyudao) Islands.”12 (4) By citing the stipulation of Paragraph 3 of Articles 74 and 83 of the Law of the Sea Convention (“Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional agreements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.”), Professor Sakamoto says: “Japan drew the median line only in order not to aggravate the situation. One can not say that Japan violated the LOS Convention which imposes an obligation not to hamper the reaching of the final agreement.” “Japan has respected those provisions, and refrained from approving the private company’s application of mining. Its decision to approve an experimental drilling was only a countermeasure against China’s actions.” On the other hand, Professor Sakamoto says: “China, by unilaterally exploiting resources, appears to have violated Arts. 74(3) and 83(3) of the LOS Convention. . . . Such an activity constitutes the impeding of the agreement. . . . In other words, when a state concerned unilaterally exploits resources in the disputed area (the area on which countries compete the title), it is acting against the obligation under which a state concerned must avoid such activities that infringe the other state’s right.”13 (5) Professor Sakamoto asserts: “Needless to say, the dispute over the delimitation is appropriate for the judgment of the International Court of Justice. Taking that into consideration, I, as an international law scholar, would like to recommend

11 12 13

Id. Id. Sakamoto, supra note 7.

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submitting this dispute to the Court. . . . Although judgment is never without creating a definite winner and loser, Japan is not afraid of losing a case.”14

III. China’s Position On the basis of my understanding, the following are the elements of China’s position: (1) The two regimes of the EEZ and the continental shelf, although closely related to each other, are different in basic concept and legal nature. The Law of the Sea Convention contains Part V for EEZ, and Part VI for Continental Shelf. The regime of the continental shelf is primarily aimed at mineral resources in the seabed and subsoil, and the EEZ regime is primarily aimed at living resources of the waters superjacent to the seabed. In respect of the seabed and subsoil, the application of the regime of continental shelf takes precedence. The views that the regime of continental shelf “is declining,” that the regimes of continental shelf and EEZ have been “merged” and “absorbed,” and that one regime has “replaced” another regime, are groundless. The two regimes of EEZ and continental shelf have similarities and differences, and the delimitation of the two should be done separately. (2) The principle of natural prolongation and the principle of equidistance are not in equal status, with the former as primary and the latter as secondary. The 200-nautical miles (n.m.) distance criterion cannot replace the principle of natural prolongation. “The stipulation in Article 76 of the Law of the Sea Convention on the continental shelf does not equate the 200-n.m. distance concept with the principle of natural prolongation of land territory, and instead makes the difference between the primary and the secondary. It first affirms the principle of natural prolongation, and makes clear that the adoption of the so-called ‘distance criterion’ would only be considered under specific circumstances. The stipulations in Article 76(1)–76(6) are all closely linked with the actual conditions of geography and geology of natural prolongation of land territory. The idea that ‘the principle of natural prolongation has been replaced by the distance criterion’ is fundamentally groundless.”15 The problems of the Japanese unilateral “median line” which is based on distance criterion are: First, it does not accord with the stipulation of the Convention, which reads that delimitation of the EEZ and the continental shelf between states, “shall be effected by agreement . . . in order to achieve an equitable solution.” Japan’s intention to incorporate the larger part of East China Sea by equal treatment of the continental shelves of Liuqiu (Okinawa) Islands and of the Chinese mainland does not accord with equitable principles. Second, it does not accord with the

14 15

Id. Zhao Lihai, Literature on the Law of the Sea 69–70 (1996).

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judicial precedents of the International Court of Justice (ICJ), which make clear that equidistance (or median line) is only a delimitation method, not a principle of customary international law in the delimitation. (3) The Chinese exploitation of Chunxiao and other gasfields relates to the mineral resources of the continental shelf, not to the living resources of EEZ. It mainly concerns the regime of continental shelf. Based on the continental shelf ’s principle of natural prolongation of land territory, China has inherent sovereign rights over the natural resources in the East China Sea continental shelf up to the Liuqiu (Okinawa) Trough. The exploitation of Chunxiao and other gasfields is undoubtedly in the undisputed Chinese sea areas, and is quite reasonable and legitimate. The issue of “violating Articles 74(3) and 83(3) of the Law of the Sea Convention” does not exist, nor does it “hamper the reaching of the final agreement.” The Japanese view of “200-n.m. overlapping areas” neglects the principle of natural prolongation of continental shelf, and is void of legal basis. (4) Ample scientific evidence support the natural prolongation of China’s continental shelf in the East China Sea to the Okinawa Trough. The Okinawa Trough is a special geographical unit, which separates the East China Sea continental shelf from the Liuqiu (Okinawan) Islands. “In terms of geology, East China Sea continental shelf and the Okinawa Trough are two evidently different units. East China Sea continental shelf belongs to stable continental earth’s crust; whereas the Okinawa Trough belongs to structural belt in the transition from continental earth’s crust to ocean earth’s crust, and is a basin in the edge of the continental margin and the outer limit of the East China Sea continental shelf. Furthermore, the Okinawa Trough is also the end of respective natural prolongation of China’s continental shelf and Japan’s Liuqiu (Okinawan) Islands’ continental shelf in the East China Sea. The trough’s axis line is the natural dividing line of China and Japan.”16 “The trough is 1,200 km long, 36–120 km wide, and the trough’s bottom has an average width of 104 km. The trough is shallow in the northern part, and deep in the southern part; the water depth is 894 meters in the north, 1188 meters in the center, and 2700 meters in the south.”17 The seabed, with a depth of 1,000 meters, exceeds half of the total trough area, and the seabed, with a depth of more than 2,000 meters, constitutes one-fifth of the total area. In terms of geography, topography, geomorphology, and geological structures, the Okinawa Trough has evident characteristics of separating the East China Sea continental shelf and slope from the Liuqiu (Okinawan) Islands. The Liuqiu (Okinawan) Trough is the dividing line between China’s continental shelf and the Liuqiu (Okinawan) Islands’ continental shelf, separating the continental shelf in the East China Sea in two. The geological features between China’s

16 17

Id. at 85. Id. at 80.

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continental shelf and China’s coasts fully meet the definition requirements of natural prolongation of land territory. Moreover, in its discussion on joint development with South Korea, Japan recognized the legal status of the Okinawa Trough, and agreed to have joint development between them in their disputed areas west and north of the trough.

IV. Positions of Other Countries’ Scholars The positions representative of other countries’ scholars on the Sino-Japanese delimitation disputes in East China Sea include: (1) The maritime delimitation in the whole East China Sea also involves South Korea. South Korea asserts that separate boundaries exist for the EEZ and the continental shelf. Chang-Wee Lee, Chair of Law of the Sea Forum and Professor at Daejeon University of Korea, says that although distance criteria have grown stricter within the 200 miles of the maritime zone, the continental shelf and the EEZ remain widely apart in terms of their formation process, legal grounds, and substance; Korea is opposed to the blanket application of equidistance principle to boundary delimitation. Korea believes it will benefit by drawing separate boundaries for the continental shelf and the EEZ if possible. He further says that Korea does not specify any consistent criteria or principles of delimitation in negotiations with neighboring countries; it prefers reaching agreements based on the general principles of international law.18 (2) Dr. Mark J. Valencia, an American maritime policy expert, holds that in negotiating a solution of the East Chins Sea disputes, China and Japan should reach the following agreements: “The first agreement is that the disputed territory (Senkakus/Diaoyutai) cannot be used as a basis for EEZ or continental shelf claims. Since Japan claims an EEZ and continental shelf from the Senkakus, this would be a concession by Japan that should be compensated by China. The second agreement is that there be a unified boundary for both the EEZ and continental shelf. This would be a major concession on China which should be compensated by Japan. EEZ and continental shelf are two regimes, but having two lines would create troubles in the management and would be politically messy and impractical as well as a constant source of irritation and provocation as bilateral relations wax and wane. The third agreement is that regardless of where the boundary is located, joint development of fish, minerals and hydrocarbon resources will be undertaken.” He further suggests that Japan makes a concession by agreeing that “the disputed territory (Senkakus/Diaoyutai) cannot be used as a basis for EEZ or

18

Comments made at the international conference: Towards a Framework for the New Order of the Sea, Seoul, Oct. 24–25, 2006.

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continental shelf claims,” and China makes a concession that “there be a unified boundary for both the EEZ and continental shelf.”19 As to joint development, he suggests that the area between Japan’s median line and the Okinawa Trough could be divided into two subareas; revenues from the joint development may start with a 50/50 division in the west (two thirds of the way to Okinawa), and from there, 75/25 in Japan’s favor. (3) Dr. Ted L. McDorman, professor at University of Victoria Law School in Canada, says that the adoption of one single line or two lines in the demarcation of East China Sea is legal. The key issue is whether China and Japan can reach an agreement on it.20 (4) Based on Australian experiences, Professor Sam Bateman, an Australian maritime policy expert, says that the boundary agreement between Australia and Papua New Guinea is not linked with the median line. As to its disputes with East Timor, Australia is afraid that if the disputes be submitted to ICJ, the Court might sympathize and make a decision in favor of East Timor due to the big size and rich resources of Australia. Thus, Australia has set up a joint development zone through negotiation with East Timor. He favors a settlement of islands sovereignty disputes by the ICJ, and the settlement of maritime delimitation disputes through negotiation.21 (5) Professor Hasjim Djalal, special advisor to the Minister, Department of Maritime Affairs and Fisheries, Indonesia, says that the present delimitation disputes between China and Japan arising from Chun Xiao gasfield have confused the differences between the two regimes of the EEZ and the continental shelf, and Japan’s connection of oil and gas exploitation with the EEZ has obscured the nature of the issue. China and Japan could consider the delimitation of two lines in the East China Sea, in which China draws a continental shelf line according to the principle of natural prolongation of land territory, and Japan draws an EEZ line based on an adjusted median line. A joint development zone could then be established between the two lines. He further suggests that China and Japan could invite an interlocutor to participate in the dialogue as a third party, so as to convey one side’s positions to the other, to close divergences, and to seek compromise. The views of the interlocutor do not have binding force on both sides.22

19 20

21

22

Mark Valencia, The East China Sea Dispute: Ways Forward, Pacnet 47, Sept. 15, 2006. Comments made at the international conference: Towards a Framework for the New Order of the Sea, Seoul, Oct. 24–25, 2006. Comments made at the international conference: Ocean Security in Northeast Asia: Issues and Prospects, Shanghai, May 25–26, 2006. Views expressed in his discussions with the author in Tokyo, Sept. 15, 2005.

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V. Principles and Methods Usually Adhered to in Maritime Delimitation The principles and methods usually adhered to in international maritime delimitation practices are discussed in the paragraphs that follow. 1. The Principle of Equity The principle of equity is a principle of customary international law. The Truman Proclamation in 1945 stated: “In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles.” Since then, the principle of equity has been confirmed by important legal documents of many countries. International judicial practices all apply principles of equity. In the North Sea Continental Shelf Case in 1969, the International Court of Justice (ICJ) affirmed: “Delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other.”23 In the 1982 Continental Shelf Case between Tunisia and Libya, the ICJ observed: “It is the result which is predominant; the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result.”24 In affirming the primary role of the principle of equity in the maritime delimitation, in the 1985 Continental Shelf Case between Libya and Malta, the ICJ observed: “The normative character of equitable principles applied as a part of general international law is important because these principles govern not only delimitation by adjudication or arbitration, but also, and indeed primarily, the duty of parties to seek first a delimitation by agreement, which is also to seek an equitable result.”25 The ICJ elaborated in the above cases that equidistance was not a binding approach to use in delimitation: “To put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. . . .”26 “The equidistance method is not a mandatory rule of customary law.”27 “Equidistance is not, in the view of Court, either a mandatory legal

23 24 25 26 27

Case Concerning North Sea Continental Shelf, 1969 I.C.J., at para. 101. Case Concerning the Continental Shelf (Tunisia/Libya), 1982 I.C.J., at para. 70. Case Concerning the Continental Shelf (Libya/Malta), 1985 I.C.J., at para. 46. Case Concerning North Sea Continental Shelf, supra note 23, at para. 72. Id. at para. 83.

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principle, or a method having some privileged status in relation to other methods.”28 State practice “falls short of proving the existence of a rule prescribing the use of equidistance, or indeed of any method, as obligatory.”29 Besides, the application of the equidistance method would be restricted by “special circumstances.” As to the “median line,” it is mentioned in the 1958 Geneva Convention on the Continental Shelf, Article 6(1): “Where the same continental shelf is adjacent to the territories of two or more states whose coasts are opposite each other, the boundary of the continental shelf appertaining to such states shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured.”30 But that stipulation met with great contradictions in its implementation afterwards. In its judgment on the North Sea Continental Shelf Case in 1969, the ICJ “held, inter alia, that article 6 of the 1958 Convention on the Continental Shelf did not embody or crystallize any pre-existing or emergent rule of customary law,”31 stressing that “Delimitation must be the object of agreement between the states concerned, and that such agreement must be arrived at in accordance with equitable principles.”32 The ICJ affirmed: “The Parties were under an obligation to act in such a way that in the particular case, and taking all the circumstances into account, equitable principles were applied. It was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably lead to inequity. Other methods existed and might be employed, alone or in combination, according to the areas involved.”33 The Law of the Sea Convention, deeply influenced by the 1969 judgment, reflects this spirit. Article 74 (1) and Article 83 (1) of the Convention stipulate that the delimitation of the EEZ and the continental shelf between states with opposite or adjacent coasts “shall be effected by agreement on the basis of international law . . . in order to achieve an equitable solution.” Concerning relationships to other conventions and international agreements, Article 311 (1) of the Convention reads: “This Convention shall prevail, as between states parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.” It is clear that “the principle of the median line” does not possess the effects of international law. The ICJ has affirmed that:

28 29 30

31 32 33

Case Concerning the Continental Shelf (Tunisia/Libya), supra note 24, at para. 110. Case Concerning the Continental Shelf (Libya/Malta), supra note 25, at para. 44. 2 United Nations, United Nations Convention on the Law of the Sea 1982: A Commentary 953 (1993). Case Concerning North Sea Continental Shelf, supra note 23, at para. 69. Id. at para. 85. Id.

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“Any indication of a specific criterion which could give guidance to the interested states in their effort to achieve an equitable solution has been excluded. Emphasis is placed on the equitable solution which has to be achieved.”34 In this respect, the consensus in the international community is that agreements through consultation should take precedence over the median or equidistant line; the median or equidistant line can only be applied when it accords with the equitable principle; the median or equidistant line can only serve as a starting point when the related parties enter into negotiation; and the median line cannot be used to negate the equitable principle. The delimitation of the continental shelf and the EEZ is an important issue relating to sovereign rights and vital interests of countries. It is understandable that both China and Japan are trying their best to strive for more rights and interests. The question is whether the principles of equity should be utilized, and whether a solution can be reached through negotiations. “In the maritime delimitation in East China Sea, the principle of equity would play a leading role. Any other delimitation principles and methods, such as the principle of natural prolongation, the principle of proportionality, or the method of equidistance, can only be applied on the basis of conformity to the principle of equity.”35 2. The Principle of Natural Prolongation of Land Territory The principle that the continental shelf is “the natural prolongation of land territory of a coastal state,” was first enunciated by the ICJ in the judgment on the North Sea Continental Shelf Case. The Court affirmed: “The most fundamental of all the rules of law relating to the continental shelf, namely, that the rights of the coastal state in respect of the area of continental shelf constituting a natural prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right was inherent. In order to exercise it, no special legal acts had to be performed. More fundamental was the concept of the continental shelf as being the natural prolongation of the land domain. . . . What conferred the ipso jure title was the fact that the submarine areas concerned might be deemed to be actually part of its territory in the sense that they were a prolongation of its land territory under the sea. Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one state to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine.”36

34

35 36

1 United Nations Convention on the Law of the Sea 1982, A Commentary, supra note 30, at 983. Zhao Lihai, supra note 15, at 63. North Sea Continental Shelf Case, supra note 23, paras. 37–59.

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In the Tunisia/Libya Continental Shelf Case, the ICJ emphasized the value of the principle of natural prolongation in a geographical sense. It stated: “The geographical correlation between coast and submarine areas off the coast is the basis of the coastal state’s legal title. . . . A marked disruption or discontinuance of the sea-bed may constitute an indisputable indication of the limits of two separate continental shelves, or two separate natural prolongations.”37 This spirit is reflected in the Law of the Sea Convention. Article 76 stipulates: “The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”38 Regarding the limit of the outer edge of the continent wherever the margin extends beyond 200-n.m., Article 76 (4) of the Law of the Sea Convention specifies: (a) The coastal State shall establish the outer edge by either (1) a line delineated by reference to the outmost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such points to the foot of the continental slope; or (2) a line delineated by reference to fixed points not more than 60-n.m. from the foot of the continental slope. (b) In the absence of evidence to the contrary, the foot the continental slope shall be determined as the point of maximum change in the gradient at its base. The Convention further specifies that the fixed points comprising the line of the outer limits either shall not exceed 350-n.m. from the baseline from which the breadth of the territorial sea is measured, or shall not exceed 100-n.m. from the 2,500 meter isobath, which is a line connecting the depth of 2,500 meters.39 Article 76 (8) specifies that a coastal state planning to delineate the outer limits of its continental shelf beyond 200-n.m. shall submit information on the limits to the Commission on the Limits of the Continental Shelf set up under Annex II. The Commission shall make written recommendations to coastal states on matters related to the establishment of the outer limits of their continental shelf. “The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.” If the coastal state does not agree to the recommendations, it shall submit revised or new information within a reasonable period. For those states which ratified and effectuated the Convention before May 6, 1999, delineation of the outer limits of continental shelf exceeding 200-n.m. and relevant legal procedures must be completed before May 6, 2009.

37 38 39

Case Concerning the Continental Shelf (Tunisia/Libya), supra note 24. Related Conventions on the Law of the Sea 29 (Xiamen University Press, 2005). Id. at 29.

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3. The Principle of Proportionality in Maritime Boundary Delimitation The principle of proportionality is important in the practices of international maritime boundary delimitation. Proportionality refers to the relationship between the relevant length of the coastline of the coastal state and the extent of the relevant sea areas it acquires by the delimitation methods. The primary basis of proportionality is the principle of “the land’s domination over the sea,” i.e., the continental shelf is the prolongation of land territory under the sea, and the length of the coastline is naturally also a basis for the due extent of the continental shelf. The North Sea Continental Shelf Case is the first application of the principle of proportionality between the continental shelf and the coastline. The ICJ affirmed: “In the course of negotiations, the factors to be taken into account were to include: the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved; the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each state; and the length of its coast measured in the general direction of the coastline.”40 In the Libya/Malta Continental Shelf Case, the ICJ measured the lengths of the relevant coastline of Malta (from Ras il-Wardija to Dalimara Point) and compared it with the length of the coastline of Libya. The ratio was 24 to 192 miles, or approximately one to eight. “In the view of the Court, this difference is so great as to justify the adjustment of the median line so as to attribute a larger shelf area to Libya; the degree of such adjustment does not depend upon a mathematical operation and remains to be examined.”41 In the 1977 UK-France Continental Shelf Arbitration, the Court of Arbitration pointed out that the objective standard used was the relationship between the areas of continental shelf allocated to the parties, and the length of their coastlines. “If the ratio of coastline lengths and shelf areas allocated by a delimitation are not roughly the same, the proportionality should be questioned; and alternative lines might be produced to achieve a better, more reasonable ratio.”42 The principle of proportionality used in the above continental shelf delimitation cases is also applicable in the EEZ delimitation.

40 41 42

North Sea Continental Shelf Case, supra note 23, paras. 37–59. Case Concerning the Continental Shelf (Libya/Malta), supra note 25, at para. 68. Arbitration between UK and France on the Delimitation of the Continental Shelf, Decision of the Court of Arbitration dated 30 June 1977 and 14 March 1978, 18 International Legal Materials 60 (1979).

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4. Separate Delimitation for EEZ and Continental Shelf The continental shelf and the EEZ are two separate regimes. The regime of the continental shelf is primarily aimed at mineral resources in the seabed and subsoil, and the EEZ regime is primarily aimed at living resources of the waters superjacent to the seabed. The rights which the EEZ entails over the seabed of the zone are defined by reference to the regime laid down by the continental shelf. The continental shelf is originally a geological concept, and the regime of the continental shelf as a legal regime in the international law of the sea formed gradually since World War II. The continental shelf primarily refers to the seabed and subsoil of the submarine areas, and the relevant stipulation in the Law of the Sea Convention is primarily aimed at mineral resources in seabed and subsoil. Article 77 (4) of the Convention stipulates: “The natural resource referred to in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species.” Article 77 (1) states: “The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” The Law of the Sea Convention emphasizes that the rights the coastal state exercises over the continental shelf are “exclusive”; Article 77 (3) stipulates: “The rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.”43 The EEZ is a new concept and a specific legal regime in the Law of the Sea Convention, building on the “exclusive fishing zones” and “fishing conservation zones” already in existence. As mentioned earlier, the EEZ regime in the Convention is primarily aimed at living resources of the waters superjacent to the seabed. Although Article 56 (1 )(a) stipulates that in the EEZ, “the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil,” Article 56 (3) affirms that “[t]he rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.”44 This language clearly shows that oil and gas resources do not belong within the scope of EEZ, but belong to the scope of the continental shelf. The ICJ pointed out in the Libya/Malta Case: “The rights which the EEZ entails over the sea-bed of the zone are defined by reference to the regime laid down for the continental shelf. . . . This is not to suggest that the idea of natural prolongation is now superseded by that of distance.”45 The two regimes of the EEZ and the continental shelf have similarities and differences. The similarities include: (1) both are sea areas under national jurisdiction; 43 44 45

Related Conventions on the Law of the Sea, supra note 38, at 30. Id. Case concerning the Continental Shelf (Libya/Malta), 1985 I.C.J. at para. 34.

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(2) they share a similar distance criterion of 200-n.m.; (3) the sovereign rights the coastal state enjoyed in the EEZ and the continental shelf are all aimed at exploring and exploiting natural resources; and (4) they have identical jurisdiction on artificial islands, installations, and structures. The differences of the two regimes include: (1) A distinction in the scope. The EEZ shall not extend beyond 200-n.m. from the baselines; whereas the outer limits of the continental shelf “either shall not exceed 350 nautical miles from the baselines . . . or shall not exceed 100 nautical miles from the 2,500 metre isobath.” (2) A distinction in the legal system. The establishment of the EEZ needs the proclamation by the coastal state, which can choose the arrangement of either an EEZ or an exclusive fishing zone;46 but the sovereign rights the coastal state exercises over the continental shelf are “exclusive” and “[t]he rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.” (3) The scope of sovereign rights is different. The EEZ is primarily aimed at living resources of the waters superjacent to the seabed; whereas the continental shelf primarily refers to the seabed and subsoil of the submarine areas. Furthermore, the EEZ involves residual fishing rights, and Article 62(2) states that the coastal state “shall give other states access to the surplus of the allowable catch.”47 On the other hand, the sovereign rights the coastal state exercises over the continental shelf are “exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state.”48 Thus, no residual rights exist in the continental shelf. The delimitation of maritime jurisdiction between states with opposite or adjacent coasts involves the delimitation of the two jurisdictional areas of the EEZ and the continental shelf. Because of the differences in the two regimes, the delimitation should be done separately, and two different lines should be delimited in principle. With respect to countries with wider continental shelf, because they are qualified to have sovereign rights over more seabed and more natural resources, they have not adopted a single line for the EEZ and the continental shelf. Of course, for reasons of simplicity and to avoid the overlapping of sovereign rights, some cases use one single line for the EEZ and the continental shelf. There are also cases delimiting two lines initially and adjusting to one line later. International delimitation practices do not exclude the incorporation of the delimited two lines into one line. This wholly depends on the circumstances of the case.

46

47 48

Lian Chuncheng, On Delimitaiton Principles of Continental Shelf, Chinese Int’l L. Annals 205 (1983). Related Conventions on the Law of the Sea, supra note 38, at 23. 1982 United Nations Law of the Sea Convention, art. 77(2).

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There are cases that delimitate two lines in international practice. One is the 1978 treaty between Australia and Papua New Guinea concerning maritime boundaries in the Torres Strait, which uses one line for delimiting the seabed jurisdiction line and another for the fisheries jurisdiction line. At Point E of the Torres Strait, the lines branch off to enclose a zone of fisheries jurisdiction, with the seabed jurisdiction line moving on to Point G. “The zone thus enclosed in the name of fisheries jurisdiction is where the surface boundary and the seabed boundary are not identical . . . . Although the discrepancy between the surface and the seabed boundary in the present instance has its own particular reasons, this would be a good example to show that the two boundaries do not nave to be identical in all circumstances.”49 Another case is the 1972 treaty between Australia and Indonesia on the Timor and Arafura Seas, in which two separate lines are delimited for the EEZ and the continental shelf. The seabed boundaries were drawn in 1971 and 1972, which extend from Papua New Guinea in the east to the waters between Ashmore Island and Pulau Roti in the west. The width of the Australian continental shelf exceeds 200-n.m., whereas the width of Indonesian continental shelf is only 40 to 70-n.m. After the establishment of the EEZ regime in the Law of the Sea Convention, the EEZ line was delimited, which is basically an equidistant line. Abiding by the Convention, the parties administered mineral resources in the seabed and subsoil within their own continental shelf lines, and administered living resources of the waters superjacent to the seabed within their own EEZ lines.

VI. Approaches to Settling Maritime Delimitation Disputes In international practice, there are several approaches to maritime delimitation disputes’ settlement. These will be discussed below. 1. Solution through Negotiation with Related Countries Since the Law of the Sea Convention came into force in 1994, related parties have had common and unified criteria to follow, which could be considered a starting point for negotiation. No matter what method is used, a fair and equitable result must be achieved in the delimitation. Numerous precedents of settlement through negotiation exist in international delimitation practices. One recent example is the agreement on the territorial sea, EEZ, and continental shelf delimitation in the Beibu Gulf (Tonkin Gulf ) reached between China and Vietnam through negotiation. The agreement went into effect on June 30, 2004, after the two countries had

49

Choon-Ho Park, International Maritime Boundaries-Central Pacific/East Asia 931–34 (1993).

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completed domestic legal procedures. The bilateral agreement on fishery cooperation in the Beibu Gulf also went into effect simultaneously. The delimitation in the Beibu Gulf reveals that boundary disputes can be settled peacefully through negotiation; that the negotiation can be held within the framework of the Convention and international law; and that negotiation can achieve results on the basis of mutual benefit and mutual interests and in consideration of the historical and current situation. 2. Solution through Third-Party Arbitration or Other Means of Third-Party Intervention The Law of the Sea Convention regards arbitration as one of the important methods for peaceful settlement of maritime disputes, and identifies the arbitral tribunal as the default procedure. Parties to the disputes are free to select the arbitrators and to jointly determine the tribunal’s composition and terms of reference; arbitration depends upon the willingness of related parties to agree to and participate in the arbitration. The Anglo-French Continental Shelf Arbitration in 1977 was the next important continental shelf delimitation case after the North Sea Continental Shelf Case by the ICJ. The United Kingdom and France had serious divergences in the negotiations from 1970 to 1974 regarding continental shelf delimitation in the English Channel and the Atlantic Ocean areas, and signed an arbitration agreement on July 10, 1975 to set up an arbitral tribunal consisting of five members. In its ruling on June 30, 1977, the arbitral tribunal continued to assert that the equity principle is a principle of customary international law; the tribunal insisted that whether to adopt the equidistance method is decided by geographic and other concrete circumstances of each case so as to make the delimitation lines conform more to the equity principle. The arbitration gives islands different legal status in the delimitation. The tribunal did not allow the British Channel Islands (which are on the “wrong side” of the median line drawn between the French mainland and England) to affect the delimitation at all, and gave them only 12-n.m. territorial sea enclaves; the British Scilly Islands, which penetrate into the Atlantic Ocean far more than the French Isles de Quessant, are given “half effect” by the tribunal. The Island of Palmas (Miangas) Case in 1928 was examined by the Swiss jurist Max Huber as the sole arbitrator. The island of Palmas lies about half way between Cape San Augustin (Mindanao, Philippines) and the most northerly island of the Nanusa group (Nanoesa; present Indonesia). The island is two miles in length and 0.75 miles in width, and had 750 inhabitants. The United States and the Netherlands both claimed sovereignty over the island. The United States then governed the Philippine Islands as a colonial power after the 1898 Spanish-American War, and the Netherlands then governed Indonesia. Judge Huber made legal analysis from the aspects of discovery, jurisdiction after the discovery, taxation, contiguity, accuracy of proof, etc. He concluded: “The

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Netherlands title of sovereignty, acquired by continuous and peaceful display of state authority during a long period of time going probably back beyond the year 1700, therefore holds good. For these reasons the Arbitrator. . . . decides that: The Island of Palmas forms in its entirety a part of Netherlands territory.”50 Other means of third-party dispute resolution include mediation and conciliation. The famous Norway (Jan Mayen)-Iceland Continental Shelf Agreement was reached in accordance with the recommendation of a conciliation commission. The disputes over the Beagle Channel between Argentina and Chile, which lasted for 150 years, was finally settled in 1984 through the mediation by the Holy See. 3. Solution through Adjudication by the International Court of Justice (ICJ) The adjudication by the ICJ is a procedure of international judicial settlement and has binding force. The ICJ, formally set up in The Hague in April 1946, is a U.N. judicial institution, and is the successor to the Permanent Court of International Justice. Its organization, jurisdictional rights, and procedures are based on the Statute of the ICJ and the U.N. Charter. The ICJ has 15 judges, elected for nine-year terms by the U.N. General Assembly and Security Council. States that voluntarily submit themselves to such a binding procedure will be bound regardless of their reaction to the result. This is an effective way of securing, without dispute, rights and entitlements that would not otherwise be forthcoming. Asian countries are not accustomed to resorting to international judicial settlement, but changes in attitude have taken place in recent years. The ruling by the ICJ in December 2002 on the ownership of Sipadan and Ligatan Islands in the Celebes Sea is something of a landmark, being one of the first in which two Southeast Asian states sought to resolve a territorial dispute by taking it to the ICJ. The two islands had been claimed by Malaysia and Indonesia and were in dispute for more than 30 years. Since talks between Indonesia and Malaysia on their status made no progress, the two states agreed in 1996 to submit their dispute to the ICJ, which ruled in favor of Malaysia’s claims. Indonesia, although unhappy over the ruling, expressed its readiness to accept it. The adjudication by the ICJ seems to be a realistic approach for a fair and equitable settlement of maritime disputes when there is no hope of compromise between the disputed parties in their negotiations. The ICJ has handled the North Sea Continental Shelf Case in 1969, the Case Concerning the Continental Shelf (Tunisia/Libya) in 1982, the US-Canada Gulf of Maine Area Maritime Boundary Case in 1984, and the Case Concerning the Continental Shelf (Libya/Malta) in 1985. The ICJ’s adjudications on these cases all emphasize the primary effect of the equity principle in the delimitation.

50

Island of Palmas (Miangas) Case, Netherlands v. United States, Perm. Ct. Of Arb. (1928), Sole Arbitrator: Max Huber.

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4. Joint Development and Other Transitional Measures Shelving the disputes for a period and working for joint development among relevant parties in the disputed areas is a good approach. Although not a permanent solution to the problem and merely an expedient measure in the transitional period towards the final equitable settlement, joint development is a practical and realistic approach, and the preferred alternative to no action. All parties could reap the benefits from the resources. Joint development usually refers to gas exploration and exploitation in disputed areas where no delimitation lines exist, or in areas where delimitation lines exist but with resources striding across the delimitation lines. Joint development can be initiated either before the final delimitation or after the delimitation agreement. Joint jurisdiction refers to shared jurisdiction in disputed areas. The disputing parties share jurisdictional powers. It can exist simultaneously with joint development, or independently, and can be regarded as a measure to alleviate disputes. Like joint development, it is an expedient measure in the transitional period towards the final equitable settlement. An example of joint jurisdiction is the Gulf of Fonseca Case. The decision of the ICJ Chamber in the Gulf of Fonseca Case concluded that El Salvador, Honduras, and Nicaragua hold undivided interests in the maritime zones both landward and seaward of the closing line across the Gulf of Fonseca. “Except for the three-nautical-mile zones directly adjacent to the coasts of Nicaragua and El Salvador, the territorial sea, exclusive economic zone, and continental shelf in front of the closing line of the Gulf are to be shared by the three neighboring states.”51 A Russian proposal for joint ownership of the disputed Northern Islands between Russia and Japan is similar to the above approach. The Japanese NHK TV Station reported on June 4, 2005 that the Russian ambassador to Tokyo announced: “Russia and Japan have to explore a new approach to solve the ‘Four Northern Territories’ issue,” and “He raised the possibility of ‘shared rights’ and ‘joint ownership’ of the four Northern Islands.”52 Joint development has become common practice worldwide. Up until now, there have been some 21 joint development cases around the globe. Among them, 13 belong to disputed areas where no delimitation lines exist, and eight belong to the areas where delimitation lines exist but with resources striding across the delimitation lines. The former includes the agreement between Australia and Indonesia on cooperative development in the Timor Gap. The latter includes the 1958 continental shelf agreement between Bahrain and Saudi Arabia, which resolved two sovereignty disputes over islands and made arrangements for joint sharing of profits from the 51

52

Mark J. Valencia, Jon M. Van Dyke & Noel A. Ludwig, Sharing the Resources of the South China Sea 56–57 (1997). Lianhe Zaobao, Singapore, June 4, 2005.

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gas field of Fashtu bu Saafa, and the 1969 continental shelf agreement between Qatar and Abu Dhabi, which resolved sovereignty disputes over three islands and arranged the profit sharing from the oil field Al-Bunduq. Joint developments in disputed areas where no delimitation lines exist do not affect sovereignty, such as the Timor Gap agreement between Australia and Indonesia. Australia and Indonesia are neighboring countries separated by the Timor Sea and the Arafura Sea. In the early 1970s, Australia and Indonesia concluded treaties that established seabed boundaries. In the treaties, the Timor Trough, with the depth of 3,200 meters, is considered as the most important “relevant circumstances” by both sides.53 As East Timor was then a colony of Portugal, a gap of approximately 200-n.m. was left in the boundary south of East Timor, called “the Timor Gap.” After Indonesia incorporated East Timor in July 1976, Australia and Indonesia began to negotiate the delimitation in the gap. Australia has held that there are two continental margins between Timor and Australia. A wide Australian continental margin is in the south, a narrow Indonesian continental margin is in the north, and the two are separated by the Timor Trough. Australia has claimed that the trough’s axis, or a line halfway down the Australian margin, should be the boundary as an extension of the 1972 agreed seabed line. Indonesia has claimed that there is only a single continental margin between the two countries, that the Timor Trough is just a depression in the continuous feature, and that the boundary should be an equidistant line between their territories. The disputed area in the Timor Gap is approximately 12,000 square-n.m. The Timor Gap consists of the Timor Basin and the Bonaparte Gulf Basin. If the equidistant line is the boundary as Indonesia proposes, the Timor Basin and one-third of the Bonaparte Gulf Basin would belong to Indonesia; if an extension of the 1972 agreed seabed line is the boundary as Australia proposes, then a small portion of the Timor Basin and the whole Bonaparte Gulf Basin would belong to Australia. After ten years of difficult negotiations, in December 1989, Indonesia and Australia reached an Agreement on the Zone of Cooperation (ZOCA) in the Timor Sea. In October 1999, Indonesia recognized the result of the plebiscite by East Timor nationals and agreed to let East Timor break away from it. On the day of its independence on May 20, 2002, East Timor signed the Timor Sea Treaty with Australia. The Joint Petroleum Development Area (JPDA) in the Australian-East Timor Treaty replaced the Joint Development Zone (Areas A, B, and C) in the ZOCA. In fact, the JPDA is exactly the same as Area A in the ZOCA in its scope and coordinates. As to the profit-sharing in the JPDA, Australia made concessions, and for apparent political considerations, was willing to apportion 90 percent of the profits for East Timor and 10 percent for Australia. However, there is an

53

Zhao Lihai, Contemporary International Law 150 (China Law Publishing House, 1993).

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understanding between them that the petroleum crude would be brought to Darwin for processing, which would bring benefits to Australia, particularly in terms of business and employment. The Australian-Indonesian agreement on joint development in the Timor Sea is the most comprehensive and idealistic document on joint development in disputed sea areas, and is an innovation in the mechanism of joint development. It mainly includes: (1). The Establishment of Areas A, B, and C. The joint development zone stipulated in the agreement amounts to 61,000 square kilometers, and is divided into Area A, Area B, and Area C. Area A is situated in the center of the zone, lying between the median line claimed by Indonesia and the center line of the trough claimed by Australia, and is larger than Area B and Area C. It is the joint development area in a real sense. “In Area A, there shall be joint control by the Contracting States of the exploration for and exploitation of petroleum resources, aimed at achieving optimum commercial utilization thereof and equal sharing between the two Contracting States of the benefits of the exploitation of petroleum resources, as provided for in this Treaty.”54 Area B and Area C are situated on the north and south of Area A, and are administered by Australia and Indonesia respectively. Area B is an Australian independent administrative area, and Area C is an Indonesian independent administrative area. In Area B, Australia is supposed to obtain 90 percent of the profit from hydrocarbon exploitation, and Indonesia would obtain 10 percent. Similarly in Area C, Indonesia would obtain 90 percent, and Australia 10 percent. The limits of the whole joint development zone are defined as follows: the northern limit is the farthest continental shelf line claimed by Australia; the southern limit is the farthest EEZ line claimed by Indonesia. The eastern and western limits are defined according to equidistant lines. The northern limit of Area A is delimited according to a simplified 1500 isobath, and the southern limit of Area A is delimited according the median line. (2). The Dual Administrative Institutions in Area A. The agreement sets up two administrative institutions: the Ministerial Council and the Joint Authority, with the purpose of dividing the policy-decision body from the management body. The former comprises an equal number of government ministerial chiefs, and the latter comprises an equal number of persons nominated by each Contracting State. The Joint Authority shall be responsible to the Ministerial Council, and shall have juridical personality and the capacity to contract. (3) The Formulation of Detailed Regulations on Managing Joint Development. The appendixes of the agreement formulate a series of regulations to guide and

54

Treaty between Australia and Indonesia on the Zone of Cooperation in an area between the Indonesian Province of East Timor and Northern Australia (Timor Gap Treaty), Dec. 11, 1989, art. 2, 2(a).

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administer joint development in Area A. Those formulations include a Petroleum Mining Code, a Model Production Sharing Contract, and a Taxation Code for the Avoidance of Double Taxation.55

VII. Proposals for the Settlement of Sino-Japanese Delimitation Disputes in East China Sea 1. The Adoption of Two Separate Lines for EEZ and Continental Shelf In seas less than 400-n.m. wide, especially in semi-enclosed seas, the claims of maritime interests and rights of countries with opposite coasts will inevitably overlap. This requires the parties to seek a negotiated settlement on the basis of international law and international practices. In view of the two different regimes of the EEZ and the continental shelf, and in the light of actual conditions of the East China Sea, it is quite suitable for China and Japan to draw two separate lines. With respect to the continental shelf, China adheres to the principle of natural prolongation of its land territory. This is made clear in China’s EEZ and continental shelf law in 1998, and meets with the stipulations of the Law of the Sea Convention. Meanwhile, China holds that the Liuqiu (Okinawa) Trough should be a factor to be fully considered in the delimitation. “The principle of natural prolongation is the basis of the legal regime of the continental shelf, and plays a leading role in the delimitation on the continental shelf in East China Sea. It provides China with the legal basis for its jurisdiction over the continental shelf in East China Sea to the axis of the Liuqiu Trough.”56 With respect to the EEZ, considering the fact that the breadth of East China Sea is less than 400-n.m., China and Japan should take into account various factors such as the configuration of the coasts, the length of the coastlines, geomorphological features, population, the level of industrial development, and historic title, to delimit an adjusted equidistance line through negotiations. The principle of proportionality is an important factor in the EEZ delimitation in the East China Sea. “The length of China’s coastline in East China Sea south of 30°N is 900 kilometers, and the length of the coastline of Japan’s Liuqiu Islands facing East China Sea is 380 kilometers. If the principle of proportionality is applied in the areas south of 30°N, the ratio between China’s coastline and Liuqiu’s coastline is 64.3%:35.7%.”57 The length of China’s coastline is a factor which should be considered in its EEZ delimitation with states of opposite or adjacent coasts.

55

56 57

See Cai Penghong, Managing Models of Joint Development in Disputed Sea Areas: Comparative Study, 217–3 1 (Shanghai Social Sciences Publishing House, 1998). Zhao Lihai, supra note 15, at 69. Id. at 79.

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After comprehensive consideration of various factors, China and Japan could draw an adjusted median or equidistance line as their EEZ line. China’s claimed EEZ line could be a parallel line shifted northeastward on the present Japanese unilateral “median line,” with reference to the ratio of the coastlines. Thus, there would be two separate lines for EEZ and continental shelf in the East China Sea. Certainly, the possibility of drawing one line through negotiation after delimiting two lines first is not to be excluded. 2. The “Segregation” of Diaoyudao Islands with their Shelved Sovereignty So that the disputes over Diaoyudao Islands do not affect maritime jurisdictional delimitation, China and Japan should first reach agreement that these five islets are not entitled to generate an EEZ or continental shelf, and then “segregate” the islands with their-12 n.m. territorial seas and shelve the issue of sovereignty for subsequent solution. In fixing the joint development zone at present, the segregation of Diaoyudao is also a suitable arrangement. The suggestion by Mark Valencia that Japan makes a concession by agreeing that “the disputed territory (Senkakus/Diaoyutai) cannot be used as a basis for EEZ or continental shelf claims,” and China makes a concession that “there be a unified boundary for both the EEZ and continental shelf,” does not work. Because Diaoyudao Islands involve territorial sovereignty, it is impossible for the islands to be exchanged with the delimitation of the EEZ and the continental shelf. 3. Negotiation on the Tri-Junction Point among China, Japan, and South Korea Apart from China and Japan, the delimitation issue in the East China Sea also involves South Korea. Japan stands for the principle of equidistance on the delimitation, while South Korea stands for the principle of natural prolongation of land territory in the East China Sea reaching the Liuqiu (Okinawa) Trough, and China stands for the principle of natural prolongation of land territory with claims reaching the center line of the Liuqiu (Okinawa) Trough. The boundary delimitation among them must first settle the issue of the tri-junction point of the three sides. Japan and South Korea signed an agreement on the establishment of joint development zone in 1974. The area encompassed in the zone is approximately 24,092 square n.m., more than eight percent of the total area of the East China Sea. The zone reflects roughly their respective claims. The southwestern and southeastern sides reflect the continental shelf limits claimed by South Korea, with its southernmost reaching south of 30°N, which overlaps with China’s continental shelf limits. The western side of the zone is the continental shelf boundary between Japan and South Korea based on the principle of equidistance adhered to by Japan, and the southward extension of the line is Japan’s median line vis-à-vis China. Because this joint development zone affects China’s claims of its interests and rights, China has taken up the matter with Japan (China did not have diplomatic relations with South Korea at the time).

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The three sides must negotiate for the settlement of the tri-junction point of their boundaries. Negotiated settlement for achieving an equitable result is the main approach, and the method of equidistance is not a suitable approach to solve the tri-j unction point. International practices show that the equitable consideration becomes more important when more than two states are trying to decide a common boundary intersecting point. “The CSB Agreements in the North Sea and the Persian Gulf areas suggest that in every such case, the common point is always a negotiated point, not settled by any mathematical formula.”58 One perspective is that “Point 6 of the Zone (30° 46.2’ N, 125° 55.5’ E) is the approximate location of the PRC-Japan-South Korea trijunction point.”59 This has not been negotiated with China, and needs to be agreed upon by all three sides through negotiation. My suggestion is that the tri-junction point be shifted northeastward from this point. 4. The Limits of China-Japan Joint Development Zones A, B, and C in the East China Sea If China and Japan could agree to delimit two separate lines for the EEZ and the continental shelf, the establishment of a joint development zone between the two lines could be considered. Because of China’s sovereign rights over the seabed and subsoil, and because of Japan’s sovereign rights over the waters superjacent to the seabed, the establishment of joint development zone is beneficial to resource exploitation and to both sides’ economic interests. The Timor Gap Treaty signed between Indonesia and Australia serves as a good example for the joint development between China and Japan in the East China Sea. Although the Timor Gap Treaty is invalid now, it remains the most comprehensive document on joint development in disputed sea areas. There are many similarities between the disputes of China and Japan in the East China Sea and the Australia-Indonesia disputes in the Timor Sea. Both involve a continental country (China/Australia) and an island country (Japan/Indonesia); the former has a large and shallow geological continental shelf extending from its coast, and the latter faces a trough with the depth of more than 2,000 meters at a short distance from its coast. The Liuqiu (Okinawa) Trough and the Timor Trough are also similar. The seabed in the Timor Trough has a depth of more than 1,400 meters (the deepest point is 2,380 meters), much deeper than the nearby shelf; and the seabed in the Liuqiu (Okinawa) Trough, with the depth of 1,000 meters, exceeds half of the total trough area, and the seabed with the depth of more than 2,000 meters constitutes one-fifth of the total (the deepest point being 2,940 meters). 58

59

Kuen-chen Fu, Equitable Consideration in Maritime Boundary Agreements, An Analysis, Essays on International Law of the Sea 199 (Xiamen University Press, 2006). Park, supra note 49, at 1072, 1074.

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Based on the Australian-Indonesian experiences in establishing the joint development zone in the Timor Sea, I suggest that China and Japan consider the establishment of a Joint Development Zone (Areas A, B, and C) in the East China Sea. The detailed suggestions are: (a) Regarding the limits of the joint development zone, the eastern limit is the center line of the Liuqiu (Okinawa) Trough, i.e., the farthest line China claims for its continental shelf; the western limit is Japan’s unilateral median line; the northern and southern limits are to be decided. (b) Regarding the limits of Area B near China’s side, the western limit is Japan’s unilateral median line; the eastern limit is the China-claimed EEZ line, which is an adjusted line on Japan’s median line. Regarding the limits of Area C near Japan’s side, the eastern limit is the center line of the Liuqiu (Okinawa) Trough, the western limit is a compensation line China makes to Japan in reference to the scope between Japan’s median line and China’s adjusted EEZ line. (c) The area between Area B and Area C is Area A. Area A is a joint development zone in a real sense. Both sides would jointly administer its oil and gas exploration and exploitation, and would share equally the benefits. Area B is administered independently by China, and Area C is administered independently by Japan. China and Japan would respectively pay each other 10 percent or 25 percent of the profits. 5. The Signing of INCSEA Between China and Japan As the delimitation disputes and the Diaoyudao sovereignty disputes between China and Japan have a tendency of being intensified from time to time, there exists a danger of armed conflicts between their navies in the East China Sea. If no measures are taken, armed conflicts might occur. How to guarantee security in sea areas in the East China Sea and to avoid incidents at sea are now on the agenda. The signing of an “incident at sea agreement (INCSEA)” between China and Japan is a desirable approach. The Sixth Round of the Sino-Japanese Consultation on the East China Sea held on July 8–9, 2006 reached consensus in principle on the setting-up of a maritime hotline liaison mechanism to deal with any contingency.60 The bilateral press communiqué issued on April 11, 2007 stated that this mechanism was aimed at

60

Xinhua Net, Beijing, July 9, 2006.

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“strengthening the liaison mechanism between the defense authorities of the two countries, to prepare for any maritime contingency.”61 In his talk with Shinzo Abe on the same day, Wen Jiabao mentioned the need “to strengthen the exchanges and the dialogues on defense and security between the two armies, to have mutual notification on important moves relating to the military security realm, and to speed up the establishment of maritime crisis management mechanism between two armies.” The earliest INCSEA is the one signed between the U.S. and Soviet navies in May 1972, with the purpose of regulating the interaction of their fleets on the high seas, and of avoiding collision and unexpected incidents. It proved to be quite effective. Apart from a formal document, INCSEA has an important appendix, which uses various “codes” used in NATO countries’ navies. Different codes represent different meanings. The application of codes is not restricted by different languages, and no interpretation is needed. Navies encountered will contact each other by codes, not by speaking.62 The importance of an INCSEA agreement lies in the obligation of countries to consult on safety issues on a regular basis. The purpose of INCSEA is to avoid collisions at sea and in the air that could affect relations; to minimize the chances of accidents that could result from everyday activities; to reduce the likelihood of inadvertent clashes; to promote understanding; and to develop a more predictable standard of operating procedures at sea for promoting mutually beneficial cooperation in naval operations. Because of the positive role of INCSEA in avoiding incidents at sea, many countries have signed similar agreements. In West Asia, Egypt and Israel signed an INCSEA, and no conflicts have ever taken place between their navies since then. In Southeast Asia, the navy commanders of Malaysia and Indonesia signed an INCSEA in 2001. At that time, no final conclusion had yet been reached on the disputes between the two countries over Sipadan Island and Ligatan Island, and naval ships often encountered each other in sea areas adjacent to the two islands. The signing of an INCSEA constrained the activities of the two navies, prevented the escalation of tension, played an important role in guaranteeing the security in disputed areas, and created favorable conditions in settling the disputes. In Northeast Asia, Japan and South Korea signed INCSEA arrangements with Russia in 1993 and 1994 respectively. An INCSEA was also signed between Japan and South Korea. Despite their sovereignty disputes over Dokdo (Takeshima), no unexpected incidents have ever taken place. China has not yet signed an INCSEA

61 62

Xinhua News Agency, Tokyo, Apr. 11, 2007. Views expressed by Canadian scholar David N. Griffiths in his discussions with the author in Hainan, Dec. 9, 2005.

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with Japan, South Korea, or North Korea. Neither has North Korea signed such an agreement with any of its neighboring countries. Since the settlement of the disputes between China and Japan in the East China Sea will be a long process, INCSEA-type agreements should be put on the agenda of the two countries. The two navies should first try to negotiate for the signing of an INCSEA to avoid and minimize effectively the likelihood of conflict escalation. This agreement would not involve their national maritime interests and rights, nor would it affect their negotiations on the delimitation issue. By avoiding the occurrence of conflicts, it would create conditions for the negotiated settlement through diplomatic channels. 6. As a Long-term Approach, Acceptance of Third-Party Assistance If a Settlement Seems Hopeless a. Arbitration If China and Japan cannot resolve their disputes over the maritime delimitation and Diaoyudao sovereignty, the acceptance of a third-party assistance for the settlement should be considered. The indefinite procrastination in resolving the disputes would affect bilateral relations and maritime security in Northeast Asia. Arbitration handles disputes in the form of adjudication, which is similar to judicial resolution, but arbitration is voluntary. China and Japan are free to select arbitrator(s) of their choice. According to international experiences, such as the case of Sipadan and Ligatan Islands between Indonesia and Malaysia, arbitration is the most desirable approach involving a third-party. b. International Court of Justice The Diaoyudao sovereignty disputes between China and Japan may be submitted to ICJ for adjudication when there is no hope for a settlement. China holds that the islands have been an inalienable part of Chinese territory since ancient times and China has indisputable sovereignty over the islands. Japan holds that the islands were discovered by a Ryukyu fisherman, Tatsushiro Koga, in 1884. The crux of the islands’ ownership is whether the islands were terra nullius (land belonging to no country) before the discovery by Tatsushiro Koga in 1884. If they were, the Japanese assertion of discovery is valid. If they were not, then the Japanese assertion is invalid. Thus, the provision of evidences before 1884 is of importance. One factor to consider is that in 1893, Empress Dowager Ci Xi (Tsu Shih) of the Qing Dynasty issued an imperial edict granting three islets of the Diaoyu Islands to one of her subjects, Sheng Xuanhuai. This was an official act on China’s side, proving that the islands were a part of Chinese territory. When submitting to the ICJ, related parties must put in much work in providing forceful evidence and argument. In handling cases, the ICJ would carefully examine evidence provided by disputed parties, but some evidence may be more

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important than others. For example, in the Minquiers and Ecrehos Case in 1953 between the UK and France, the key factor in leading to the ICJ conclusion that the islands belonged to the United Kingdom was evidence that the UK had collected taxes from the islands’ inhabitants, whereas France could not give the evidence of tax collection.63 If China and Japan cannot reach an agreement on the delimitation in the East China Sea through negotiation, they may consider submitting the case to the ICJ. c. International Tribunal for the Law of the Sea The International Tribunal for the Law of the Sea is an international institution set up under the decision arrived at the Third UN Conference on the Law of the Sea. According to the Law of the Sea Convention, it enforces compulsory procedures to solve any disputes on the explanation or application of the Convention. If China and Japan have disputes over the interpretation of the Convention, they could consider submitting them to the Tribunal for ruling. 7. Adoption of Provisional Agreements for Promoting Settlement (Current Approach) The current approach being utilized by Japan and China includes the following: (a) The establishment of a Track-II forum of jurists from China and Japan to exchange views regularly on relevant issues of the law of the sea. (b) The establishment of a consultation mechanism between geographers and geologists of the two countries to exchange data, clarify the facts, and seek common points on geographical, geological and geomorphological circumstances of the Okinawa Trough in the East China Sea. (c) Both sides are trying to avoid legal actions on disputed issues so as to prevent them from being intensified. (d) Both sides are trying to pay attention to the media to discourage the emergence of extreme nationalist sentiments. (e) Both sides are trying to maintain the momentum of negotiation and concentrate efforts at present on joint development to strive for a breakthrough. (f ) Both sides are considering the development of an INCSEA-type agreement between the two navies to avoid incidents that could lead to greater confrontations.

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Chapter V Some Thoughts on Maritime Boundary Delimitation Masahiro Miyoshi I. Introduction Over the past half century, the international law of maritime boundary delimitation has developed through the jurisprudence (or case law) of the International Court of Justice (ICJ) and the international arbitral tribunals, as well as a great number of international agreements on maritime boundary delimitation. But the more important of the two sources is the relevant ICJ judgments and arbitral awards.1 Although international agreements are certainly important evidence of the practice of sovereign states, the trouble with them is that there is generally little or no record of how the negotiations were conducted and what produced the eventual agreement. One can only surmise what factors were taken into account in reaching the agreement.2

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See, for example, Prosper Weil, Perspectives du Droit de la Délimitation Maritime 13 (1988) (Fr.), where the author who has abundant experience of acting as counsel for parties to maritime boundary delimitation cases before the ICJ and arbitral tribunals says: La conquête de la délimitation maritime par le droit n’est en fin de compte l’œuvre ni de la convention ni de la coutume, mais celle de la jurisprudence qui, loin d’apparaître comme une source subsidiaire du droit international, remplit ici la mission d’une source primaire et directe de droit, même si elle a choisi modestement d’en porter le credit au compte du droit coutumier. (Emphasis added). This is not, of course, meant to say that the practice of states is not important in the development of the law of maritime boundary delimitation. Indeed, the agreements between the states concerned, mostly in the form of bilateral agreements, are the treasure-house of such practice, as evidenced in the massive, over 4,000-page collection of international maritime boundary agreements under the auspices of the American Society of International Law: International Maritime Boundaries Vols. I and II ( Jonathan Charney & Lewis Alexander eds., 1993); Vol. III (1998); Vol. IV ( Jonathan Charney & Robert Smith eds., 2002); and Vol. V (David Colson & Robert Smith eds., 2005). Especially the “Global Analyses” of nine factors of relevance to delimitation at Vol. I, pages 3–262 and the “Regional Analyses” of ten regions of the world seas at Vol. I, pages 267–365, are reliable sources of information provided and analyzed on the chosen topics by nine and ten world experts, some with first-hand knowledge of the negotiations of agreements. Yet, it is submitted that what is stated in the text above remains true.

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By contrast, with the judgments of the ICJ or the awards of the international arbitral tribunals, one has access to the reasoned decisions, and for ICJ judgments, to the written and oral pleadings of the parties as well. These documents greatly help our understandings of the formation and development of the law. For these reasons, the more reliable sources of law in the area are the jurisprudence of the ICJ and the international arbitral tribunals.

II. The Natural Prolongation Doctrine and the Distance Criterion What does this jurisprudence inform us about the law of maritime boundary delimitation? The law of continental shelf boundary delimitation evolved first and later merged with that of the exclusive economic zone (EEZ), which arrived on the scene some time later. The first international judicial case of continental shelf boundary delimitation was the 1969 North Sea Continental Shelf Cases before the ICJ.3 Although the Court was requested to apply the principles of boundary delimitation, it started with the analysis of the concept of the continental shelf, in order to explain the basic concept before instructing the parties on the applicable rules and principles of boundary delimitation. The Court defined the continental shelf as “the area . . . that constitutes a natural prolongation of its land territory into and under the sea.”4 This is the genesis of the concept and doctrine of “natural prolongation.”5 It is clear that this definition gives title to the coastal state when the continental shelf extends into and under the sea. But it is important to note that the Court did not intend to expand this statement beyond “natural prolongation”; it did not regard the definition as the applicable rule or principle of boundary delimitation. Unfortunately, most international lawyers of the day, both academic and practicing lawyers, seem to have either gained the impression or felt it was decreed by

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The Abu Dhabi Oil Arbitration of 1951 may be claimed to be the first-ever arbitration of continental shelf boundary delimitation. The arbitrator found, however, that the concept of the continental shelf had not yet established itself in international law. 18 Int’l L. Rep. 155. Therefore, this case is not treated here as the first case of continental shelf boundary delimitation. 1969 I.C.J. 3, 22, para. 19 (emphasis added). The arbitrator in the Abu Dhabi Oil Arbitration of 1951 characterized the continental shelf: The doctrine of the “Shelf ” as proclaimed in the Truman Declaration of 1945 arrogated to the United States “jurisdiction and control” over “the resources” of the American Continental Shelf which was described as “appertaining” to the United States. 18 Int’l L. Rep. 153 (emphasis added). His use of the word “arrogated” seems to imply that the Truman Proclamation intentionally attributed to the United States what was not yet established as a legal concept under international law at that time. The arbitrator was not acting on the understanding that the continental shelf was defined as an appurtenance or natural prolongation of the land territory of the coastal State.

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the ICJ, that “natural prolongation” is not only the basis of title to the continental shelf, but also the rule or principle of delimitation. For one thing, the Court found that the coastal state’s sovereign rights in respect of such area under the sea are “the most fundamental of all the rules of law relating to the continental shelf ” and that “[t]here is here an inherent right.”6 To make matters worse, the operative part of the judgment itself repeats the reference to “natural prolongation”: (1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitutes a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other. . . .7

Carefully read, this language merely suggests that the delimitation must not encroach upon the continental shelf area of the other party. This paragraph does not infer anything more than that in so far as “natural prolongation” is concerned. Indeed, the judgment clearly states in its earlier part: “The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights.”8 “The appurtenance of a given area” refers to the natural prolongation of the land territory of the coastal state into and under the sea, and this “in no way governs the precise delimitation of its boundaries.” Nothing is more clear than this in denying the role of natural prolongation in delimiting the boundaries of its extension into and under the sea. Despite such a clear distinction made by the Court between the basis of title to the continental shelf and the rule or principle of its boundary delimitation, most international lawyers gained the wrong impression that the former controlled the latter.9 This unfortunate doctrinal confusion came about at the very beginning of

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North Sea Continental Shelf, supra note 4, at 22, para. 19 (emphasis added). The Court stated that the “rights of the coastal state” in respect to such area are “the most fundamental of all the rules of law relating to the continental shelf, enshrined in Article 2 of the 1958 Geneva Convention [on the Continental Shelf ],” and that those rights “exist ipso facto and ab initio, by virtue of [the coastal state’s] sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right.” Id. Id. at 53, para. 101(C) (emphasis added). Id. at 32, para. 46. But at least one author rightly interpreted the reasoning of the ICJ in respect of natural prolongation: when read in the context of the complete opinion, it becomes manifest that the passages which contain the “natural prolongation” principle consistently deal not with the North Sea controversy but with the Court’s elucidation of the theoretical understructure of continental shelf doctrine in general. . . . Such passages bear little relevance to the precise issue before the Court, but are merely preliminary steps in the Court’s deductive process, establishing such fundamental notions

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the issue of continental shelf boundary delimitation. But international tribunals seem to have gradually and carefully come to adjust and eventually revise the confusing reasoning of the ICJ in the North Sea Cases. In the subsequent cases of continental shelf delimitation before arbitral tribunals and the ICJ, some corrective considerations have been given, in a very subtle way, to this widely accepted misunderstanding. The first continental shelf case that came after the North Sea Cases of 1969 is the Anglo-French Continental Shelf Arbitration of 1977, in which the Court of Arbitration qualified the significance of natural prolongation in these words: it is clear both from the insertion of the “special circumstances” provision in Article 6 (of the 1958 Convention on the Continental Shelf ) and from the emphasis on “equitable principles” in customary law that the force of the cardinal principle of “natural prolongation of territory” is not absolute, but may be subject to qualification in particular situations.10

This explanation of “natural prolongation” has been followed in subsequent maritime boundary delimitation cases. The International Conciliation Commission, which was entrusted with the continental shelf boundary delimitation in the Jan Mayen ridge area between Iceland and Norway, expressed in its report of 1981 that the concept of “natural prolongation” was not the proper basis for a solution of the matter submitted to it,11 showing its negative appraisal of the notion. In the Tunisia-Libya Continental Shelf Case of 1982 before the ICJ, the parties vigorously argued for the natural prolongation doctrine, alleging that the identification of natural prolongation could

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as that of the coastal State’s intrinsic right to sovereignty over the shelf per se. At no point in the opinion is it even hinted that the “natural prolongation” principle supplies a means or method for determining what portion of, or even whether, the particular continental shelf at issue may be subject to a particular coastal State’s jurisdiction. L.B. Terr, The “Distance Plus Joint Development Zone” Formula: A Proposal for a Speedy and Practical Resolution of the East China and Yellow Seas Continental Shelf Oil Controversy, 7 Cornell Int’l L.J. 49, 56–57 (1973). Some years later, Judge Oda, in his dissent to the judgment in the Tunisia-Libya Continental Shelf case of 1982, denied that “natural prolongation” defined the outer limit of the continental shelf, 1982 I.C.J. 18, 192, para. 57. Award, para. 191, 18 Reps. of Int’l Arbitral Awards 91 (emphasis added). Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, 20 I.L.M. 822 (1981).

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in itself be the boundary delimitation12 or satisfy equitable principles,13 but the Court rejected both allegations and stated that the boundary delimitation could be effected only by reference to international law.14 In the Gulf of Maine Case of 1984, in which not only the continental shelf but also the superjacent water column was to be delimited, the parties themselves thought the geological factors to be of no relevance,15 and the Chamber of the ICJ found that neither geological, geomorphological, ecological, nor other factors showed “a single, incontrovertible natural boundary.”16 In the Guinea – Guinea-Bissau Continental Shelf Arbitration of 1985, the parties recognized no physical division of the continental shelf,17 and the tribunal repeatedly referred to the award of the Court of Arbitration of 1977, stressing that the continental shelf is subject not only to physical factors but also to rules of law.18 Further, in the Libya-Malta Continental Shelf Case of 1985, Libya maintained that the natural prolongation principle was the criterion for boundary delimitation, alleging that the “rift zone” to the south and south-west of Malta constituted the divisional areas of the two parties,19 but the ICJ held that because the distance

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Libya contended that “once the natural prolongation of a State is determined, delimitation becomes a simple matter of complying with the dictates of nature.” 1982 I.C.J. 18, 47, para. 44 (1982). Tunisia argued that the satisfying of equitable principles in a particular geographical situation is just as much a part of the process of the identification of the natural prolongation as the identification of the natural prolongation is necessary to satisfy equitable principles. Id. The Court even examined the plate tectonics theory in response to the pleadings of the parties arguing for geological and geomorphological features as the basis for delimitation. Id. at 50–54, paras. 51–61. But the Court eventually rejected these considerations as irrelevant to the issue of delimitation by stating: “In the present case, in which Libya and Tunisia both derive continental shelf title from a natural prolongation common to both territories, the ascertainment of the extent of the areas of shelf appertaining to each State must be governed by criteria of international law other than those taken from physical features.” Id. at 58, para. 67 (emphasis added). The Chamber found that “both Parties recognize that the geological structure of the strata underlying the whole of the continental shelf of North America, including the Gulf of Maine area, is essentially continuous. They are in fact in agreement that geological factors are not significant in the present case.” 1984 I.C.J. 246, 273, para. 44. Id. at 277, para. 56. 89 Revue Générale de Droit Int’l Pub. 496, para. 18 (1985). Id. at 531, para. 117, where the arbitral tribunal says: Mais, si par hypothèse le plateau continental est unique, aucune caractéristique en l’état actuel du droit international ne saurait valablement être invoquée à l’appui d’un raisonnement fondé sur la règle du prolongement naturel et ayant pour objectif de jusitifier une délimitation consacrant une séparation naturelle. Libya stated in its Memorial: “A criterion for delimitation of continental shelf areas in the present case can be derived from the principle of natural prolongation because there exists a fundamental discontinuity in the sea-bed and subsoil which divides the areas of continental shelf into two

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between the opposite coasts was less than 400 nautical-miles (n.m.), title to the continental shelf “depends solely on the distance from the coasts of the claimant states,” reasoning that “the geological or geomorphological characteristics” of “any areas of sea-bed claimed by way of continental shelf ” were “completely immaterial.”20 Thus, it would not be excessive to conclude that the “distance criterion” has been established, along with the “natural prolongation” doctrine, as the basis for title to the continental shelf. This criterion is incorporated in the definition of the continental shelf in Article 76, paragraph 1, of the UN Convention on the Law of the Sea. The UN Convention was adopted for signature in December 1982, just after the ICJ judgment of the Tunisia-Libya Continental Shelf Case in February of the same year, but its draft versions had been prepared at the earlier sessions of the Third United Nations Conference on the Law of the Sea. The earlier draft versions had already included the same provisions for the definition of the continental shelf as is now found in Article 76, paragraph 1: The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not reach up to that distance.21

The two alternative approaches were on equal footings, rather than the “natural prolongation” definition being the norm and the “distance criterion” the exception. This resulted partly from the “natural meaning of the word” rule as provided for in Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties of 1969.22 If the “distance criterion” is accepted as it should be, as the basis for title to the continental shelf in a sea area where the distance between the two opposite coasts does not exceed 400-n.m., as in cases of the Japan-Korea, Japan-China, and KoreaChina sea areas, the most reasonable, equitable boundary would be the median line, subject to possible modifications taking account of the relevant or special circumstances of the sea areas in question.

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distinct natural prolongations extending from the land territories of the respective Parties.” See 1985 I.C.J. 13, 18, para. 11. It further elaborated on this point, see id. at 34–35, paras. 35–38. Id. at 35, para. 39. Earlier in the Tunisia-Libya Case of 1982, Judge Oda had predicted the advent of the distance criterion in lieu of natural prolongation. See infra note 31. United Nations Convention on the Law of the Sea, art. 76, para. 1, opened for signature Dec. 10 1982, U.N. Doc. A/CONF.62/122 (1982), 1833 U.N.T.S. 397, reprinted in Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, U.N. Sales No. E.97.V.10 (1997). The Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 31, para. 1 provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty and in the light of its object and purpose.”

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On a similar note, it is also worth recalling that the jurisprudence treats geographical circumstances with primary importance in the delimitation process, at times disregarding relevant economic factors, which would have been the very reason why the parties went to the ICJ or agreed to set up an arbitral tribunal. The emphasis on geographical factors or configurations in the relevant delimitation area implies that less importance is attributed to the sea-bed configurations and other circumstances. In the Gulf of Maine Case of 1984 before an ICJ Chamber, for example, the parties’ main concern was the fisheries interests in the disputed sea areas, especially on the Georges Bank, and huge volumes of relevant documents were presented before the Chamber. But the Chamber clearly distinguished between the geographical and nongeographical factors, emphasizing the former, and denied the use of economic factors as a criterion to be applied in the delimitation process, despite conceding that they might be of some relevance in the process of assessing whether the delimitation effected on the basis of geography is equitable.23

III. Equitable Principles and the Equidistance (Median Line) Principle The preceding considerations regarding title to the continental shelf lead to the next discussion: whether there is any valid distinction in the application of “equitable principles” and the “equidistance (or median line) principle.” Broadly speaking, the “natural prolongation” doctrine is known to be linked to “equitable principles” in regards to maritime boundary delimitation, and the “distance criterion” to the “equidistance principle.” The North Sea Cases of 1969 did indeed adopt “equitable principles” as applicable under customary international law in cases where the parties were situated laterally, rather than oppositely. This finding, with repeated reference to the inequity that may result from the application of the equidistance principle in a lateral situation of adjacent states, has also given a fairly widespread 23

The Chamber said that factors other than “the factors provided by the geography of the Gulf itself ” were “in the Chamber’s opinion ineligible for consideration as criteria to be applied in the delimitation process itself ” in the first instance. See supra note 15, at 340, para. 232. The Chamber, however, admitted that “[those other non-geographical factors] may . . . be relevant to assessment of the equitable character of a delimitation first established on the basis of criteria borrowed from physical and political geography.” Id. See also id. at 342, para. 237, where the Chamber stated: the respective scale of activities connected with fishing – or navigation, defense or, for that matter, petroleum exploration and exploitation – cannot be taken into account as an equitable criterion to be applied in determining the delimitation line. What the Chamber would regard as a legitimate scruple lies rather in concern lest the overall result, even though achieved through the application of equitable criteria and the use of appropriate methods for giving them concrete effects, should unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned.

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impression that the application of equitable principles, rather than the equidistance principle, should be the rule of maritime boundary delimitation. But one should recall that the Court did not wholly deny the validity of the “equidistance principle” as such. It admitted its validity in cases of opposite states: The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; … such a line must effect an equal division of the particular area involved.24

In the subsequent continental shelf cases before the ICJ or arbitral tribunals, the equidistance or median line principle was frequently applied with necessary modifications made for equitable results.25 It is true that the jurisprudence has repeatedly denied the customary nature of the equidistance principle. But there is ample evidence indicating that the principle was applied in the first instance and that the equidistance or median line thus established was adjusted with necessary considerations at a later stage of delimitation. Furthermore, the practice of states in their agreements on the delimitation of continental shelf boundaries supports the application of the equidistance principle.26 The initial editor of the International Maritime Boundaries, a comprehensive collection of international maritime boundary delimitation agreements with analyses thereof, acknowledges in the introduction that “it appears from the practice that the equidistant line has played a major role in boundary delimitation agreements, regardless of whether they concern boundaries between opposite or adjacent states.”27

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North Sea Continental Shelf, supra note 4, at 36, para. 57 (emphasis added). See the Anglo-French Arbitration of 1977 in its main part of the delimitation areas, the Gulf of Maine Case of 1984 in its second segment of the delimitation area, and the Libya-Malta Case of 1985 in its basic delimitation with an adjustment. In a more recent case of delimitation of maritime areas between Eritrea and Yemen of 1999, the arbitral tribunal found: It is a generally accepted view, as is evidenced by the writing of commentators and in the jurisprudence, that between coasts that are opposite to each other the median or equidistance line normally provides an equitable boundary in accordance with the requirements of the Convention, and in particular, those of its Articles 74 and 83. . . . Award, 22 Reps. of Int’l Arbitral Awards 365, para. 131. A similar reasoning may be found in the Cameroon/Nigeria Land and Maritime Boundary Case of 2002 with further elaboration on adjustments of the equidistance line: “That method . . . involves first drawing an equidistance line, then considering whether there are factors calling for adjustment or shifting of that line in order to achieve an ‘equitable result.’” 2002 I.C.J. 303, 441. para. 288. See US Dep’t of State, Bureau of Intelligence and Res., Office of the Geographer, Limits in the Seas series; see also Int’l Mar. Boundaries; Vols. I–V, supra note 2. Charney, Introduction, 1 Charney & Alexander, supra note 2, at xlii. A basic analysis of the equidistance method is provided in the same volume by Leonard Legault and Blair Hankey in their contribution: Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimi-

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Thus, it is safe now to conclude that the equidistance principle is applied first in the delimitation process, and some necessary adjustments are made at a later stage to suit the particular circumstances of the case in light of, for example, the presence of small islets, the length of the coastlines, the peculiar configurations of the coastlines involved, etc.28 This method of maritime boundary delimitation, applying the equidistance principle in the first stage and then taking into account the relevant circumstances to adjust or modify the equidistant line, has also been employed in domestic maritime boundary delimitation disputes, such as the Newfoundland-Nova Scotia Maritime Boundary Arbitration of 2002.29 This approach is logical because the advent of EEZ has “absorbed” the continental shelf up to 200-n.m. from the baseline, making any irregular geomorphological formations on the sea-bed irrelevant. The EEZ, including its sea-bed, extends seaward to a distance of 200-n.m., and therefore presents fewer difficult factors in its boundary delimitation in a dispute concerning opposite coasts, such as in the Japan-Korea, Japan-China, or Korea-China cases. Such cases could logically dictate the application of the equidistance principle.

IV. The Continental Shelf and the Exclusive Economic Zone A few words must be said about the relationship between the continental shelf and the EEZ. The concept of the continental shelf was introduced into international law much earlier than the EEZ, and consequently, the boundary delimitation methods that have evolved for the former have influenced those for the latter. At the same time, however, the incorporation of the EEZ in the UN Convention on the Law of the Sea has come to influence the continental shelf. The two régimes have one thing in common: the inclusion of sea-bed up to 200-n.m. from the baseline. The uniform distance of 200-n.m. is also incorporated in the UN

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tation, id. at 206–11. In the mid-1980s, a writer had already pointed out that the equidistance principle had been used more in state practice than in jurisprudence. L.A. Willis, From Precedent to Precedent: The Triumph of Pragmatism in the Law of Maritime Boundaries, 24 Canadian Y.B. of Int’l L. 50 (1986). A most notable example is the Libya-Malta Case of 1985, in which the median line first determined between the two opposite coasts was later shifted towards Malta for an “equitable” division of the sea area between the opposite coasts with a great disparity in length. 1985 I.C.J. 13, 52, para. . The Tribunal identified its method of delimitation: to first draw a “provisional equidistance line,” and then make necessary adjustments/modifications taking into account the “relevant circumstances” or “special circumstances.” Arbitration between Newfoundland and Nova Scotia Concerning Portions of the Limits of Their Offshore Areas as Defined in the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act: Award of the Tribunal in the Second Phase 85–86, paras. 5.2–5.3 (Ottawa, Mar. 26, 2002 (mimeo.)).

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Convention as the distance criterion for title to both the EEZ and the continental shelf.30 Since the basis for title is the same for the two regimes up to 200-n.m. from the baseline “where the outer edge of the continental margin does not extend up to that distance,” it would only seem natural that sea-bed boundary delimitation between opposite states should follow the equidistance principle for a reasonable division of the sea-bed. This impact of the distance criterion was pointed out by Judge Oda as early as 1982, in his dissenting opinion in the Tunisia-Libya Case,31 in which the parties were laterally adjacent states. His thesis focused on the relationship of the two régimes, and the judgment in the Libya-Malta Case, a continental shelf delimitation case which stated in unambiguous words that the boundary line should be a median line in a situation where the distance between the opposites states is less than 400-n.m.32

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United Nations Law of the Sea Convention, supra note 21, art. 57: “The exclusive economic zone shall not extend beyond 200 nautical miles. . . .” Art. 76, para. 1: “The continental shelf . . . comprises the sea-bed and subsoil of the submarine areas that extend . . . to a distance of 200 nautical miles . . . where the outer edge of the continental margin does not extend up to that distance.” 31 Judge Oda said: [A]lthough the outer limit of the area (i.e. of the continental shelf ) has as yet hardly been established, even with the abandonment of the depth/exploitability test, it can at least be said that a 200-mile distance test has found wide acceptance. On the other hand, the nature of the Exclusive Economic Zone, and its regime, particularly in regard to the rights and duties of the coastal State, is still comparatively unclear, but the 200-mile limits has been firmly established. 1982 I.C.J. 157, 233, para. 129 (emphasis added). He went on to say: Yet noteworthy as of great importance is the change in the concept of the continental shelf arising out of the universal introduction of the 200-mile distance, which may certainly override the traditional concept of ‘continuity’ or ‘contiguity’ that has been supplemented, in particular through the 1969 Judgment, by the notion of natural prolongation. Id. at 248, para. 146 (emphasis added). He further stressed the point in these words: [T]his trend towards the absorption of the continental shelf regime into that of the Exclusive Economic Zone is too pronounced to be ignored. . . . [W]hat ought to have been considered by the Court was whether criteria of distance, being intrinsic to the Exclusive Economic Zone and also favoured by the latest concept of the continental shelf (which sounds the knell of both the depth and the exploitability tests), ought not to play a role in the common delimitation of the area. Id. at 249, para. 146 (emphasis added). 32 1985 I.C.J. 13, 35, para. 39, where the Court said: . . . since, at least in so far as those areas are situated at a distance of under 200 miles from the coasts in question, title depends solely on the distance from the coasts of the claimant States of any areas of sea-bed claimed by way of continental shelf, and the geological or geomorphological characteristics of those areas are completely immaterial (emphasis added).

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On the other hand, there are a few instances in which the EEZ and the continental shelf boundary lines differ in the same sea areas.33 These differences result from different considerations of the relevant circumstances of those sea areas, depending on whether the EEZ or the continental shelf is delimited. The UN Convention seems to have intended to integrate one régime with the other34 and formulate common provisions for the two régimes,35 but has failed to overcome their different historical backgrounds. When the EEZ made its first appearance in international law in the early 1970s, it was mainly meant to cover fisheries resources in the water column, although not excluding the sea-bed resources altogether, because the continental shelf had already been established as a régime to cover the natural resources on the sea-bed and its subsoil. But because there was fear that the “exploitability test” of the continental shelf could result in the entire sea-bed of the world coming under the national jurisdiction of coastal states, the global community decided to launch a wholly new régime of the “deep sea-bed” as a “common heritage of mankind” beyond a certain limit of the continental shelf. Thus an attempt was made to include the continental shelf in the new régime of the EEZ, with an attempt to subsume the whole 200-n.m. zone under a single régime.36 This attempt, however, failed to prevail in the end.37

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A well-known example is the Australian-Indonesian agreements on the sea-bed boundary and the EEZ boundary, the former agreements concluded in the early 1970s being more or less based on the axis line of the Timor Trough and the latter agreement of 1997 more or less based on a median line. See Map in John Donaldson & Martin Pratt, International Boundary Developments in 2003, 9 Geopolitics 512 (2004). Art. 56, para. 3, Part V (EEZ) provides: “The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI [continental shelf ).” Arts. 74 and 83 on the boundary delimitation of the EEZ and the continental shelf have identical wordings except for reference to the respective régime. At least one author interpreted the discussions on the two régimes at the Third UN Conference on the Law of the Sea and the relevant provisions of the resulting Convention as leaning towards an assimilation of the two régimes. Hutchinson D.N., The Seaward Limit to Continental Shelf Jurisdiction in Customary International Law, 56 British Y.B. of Int’l L. 169–70 (1986). Judge Oda, while admitting the development of the two parallel or separate régimes despite the desirability of a single comprehensive régime, argued for a “realistic attitude . . . to await, and meanwhile to promote, the harmonization of the two régimes,” supra note 31, at 233, para. 129. The clear evidence is that there are two separate régimes provided in the UN Convention. Some authors describe the course of developments in this connection and analyze the relevant provisions. See, e.g., Francisco Orrego Vicuña, La Zone Economic Exclusive: Régime et Nature Juridique dans le Droit International (1986); David Joseph Attard, The Exclusive Economic Zone in International Law 138–39 (1987); and Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea 9–17 (1989).

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V. Concluding Remarks Boundary delimitation of maritime areas is considered to be almost as vitally important as land boundary delimitation by the states concerned. Thus, parties tend to rely on what they believe to be the governing doctrines or theoretical basis in their claimed maritime boundaries. If their negotiations come to an agreement, as they often have done in the past, such conclusions would be the most satisfactory form of settling the boundary dispute. But experience shows that negotiated solutions are not always available, and that a number of arbitral or judicial decisions have aided in resolving such disputes during the past four decades. Such decisions have not only settled, or helped to settle, the specific disputes, but have also contributed to the formation of the law of maritime boundary delimitation.38 The basic role of lawyers is to expound the correct rules or principles of law, rather than act as the mouthpiece for their government (unless specifically requested to serve as counsel). It is based on such belief that this paper has highlighted some essential points of the jurisprudence of international arbitral and judicial tribunals dealing with maritime boundary delimitation, which seem to be broadly supported by the practice of states today.

38

See supra notes 1 and 2.

Chapter VI Intertemporal Law, Recent Judgments and Territorial Disputes in Asia Seokwoo Lee* I. General Overview of the Territorial Disputes in Asia Asian colonialism1 has produced many unresolved conflicts that have divided parts of the region since the end of World War II. Japan continues to claim sovereignty over the Southern Kurile Islands/Northern Territories (Kurile Islands)2 against Russia (formerly part of the Soviet Union); over the Pinnacle Islands/Senkaku Islands/ Diao-yu-tai (or Tiao-yu-tai)3 against the People’s Republic of China (China) and the Republic of China (Taiwan);4 and over Liancourt Rocks/Dokdo (Takeshima)

* This article is based on the author’s following three presentations: “The Authority and Legal Basis for Territorial Dispositions by International Powers,” Border Management in an Insecure World, 7th International Conference, The International Boundaries Research Unit (IBRU), University of Durham, UK, Apr. 5–7, 2006; “Territorial Disputes over Islands and Recent Judgments of the International Court of Justice,” Towards a Framework for the New Order of the Sea, 2006 INHALOSI International Conference, INHA University, Korea and the Law of the Sea Institute, UC Berkeley, USA, Oct. 24–25, 2006 (Seoul, Korea); “Intertemporal Law and Territorial Disputes in Asia,” International Law in Asia – Past, Present and Future, Inaugural Conference of the Asian Society of International Law, the Planning Committee for the Establishment of the Asian Society of International Law and the Faculty of Law, National University of Singapore, Apr. 7–9, 2007. 1 Asia is the world’s largest and most populous continent. It covers 8.6% of the Earth’s total surface area (and 29.4% of its land area) and contains more than 60% of the world’s current human population, http://en.wikipedia.org/wiki/Asia (last visited Mar. 1, 2007). 2 For further information on this dispute, see Seokwoo Lee, Towards a Framework for the Resolution of the Territorial Dispute over the Kurile Islands, 3:6 Boundary and Territory Briefing (IBRU 2001). 3 For further information on this dispute, see Seokwoo Lee, Territorial Disputes among Japan, China, and Taiwan concerning the Senkaku Islands, 3:7 Boundary and Territory Briefing (IBRU 2002). 4 This paper treats China and Taiwan as separate entities, without prejudice to their respective claims.

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against Korea.5 Resolutions to these territorial disputes are impeded by the deeprooted historical bitterness between Japan and its neighbors. In addition to the territorial disputes over the aforementioned islands, competing claims over the Spratly Islands (by China, Malaysia, Philippines, Taiwan, Vietnam, and Brunei),6 Paracel Islands (by China, Vietnam, and Taiwan),7 New Moore/South Talpatty/Purbasha Island in the Bay of Bengal (by Bangladesh and India),8 Kashmir (by China (Aksai Chin), India (by Jammu and Kashmir), and Pakistan (by Azad Kashmir and Northern Areas))9 still impact international relationships in these regions. Other key issues deserving attention include the division of Korea into two ideologically opposed States as well as the so-called Taiwan Straits issue,10 which influences the bilateral relations between China and Taiwan. Almost all Asian countries are involved in territorial and boundary disputes with their neighboring countries. Regional stability in Asia is still heavily influenced by the legacy of colonialism and is partly dependent on the outcome of ongoing territorial disputes in which former colonising countries take part as disputants.11

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7 8

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For further information on this dispute, see Seokwoo Lee, The Resolution of the Territorial Disputes between Korea and Japan over the Liancourt Rocks, 3:8 Boundary and Territory Briefing (IBRU 2002). For further information on this dispute, see generally M. Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands (2000). Id. For further information on this dispute, see generally Border and Territorial Disputes ( J. Allcock et al. eds., 1992). Id. For further details on the international legal status of Taiwan, see J.I. Charney & J.R.V. Prescott, Resolving Cross-Strait Relations between China and Taiwan, 94 Am. J. Int’l L. 453–77 (2000). See also Hungdah Chiu, The International Legal Status of Taiwan 3–8; H. Kuijper, Is Taiwan a Part of China? 9–20; J.C. Hsiung, The Paradox of Taiwan-Mainland China Relations 209–20; and C.W. Tsai, The Development of Cross-Strait Policies in China and Taiwan, in The International Status of Taiwan in the New World Order: Legal and Political Considerations 221–37 ( J.M. Henckaerts ed., 1996). The final disposition of territories in East Asia at the end of World War II was effected by the San Francisco Peace Treaty of 1951, 136 U.N.T.S. 45, 3 U.S.T. 3169 (1951), entered into force Apr. 28, 1952 [hereafter cited as SF Peace Treaty]. The San Francisco Peace Treaty failed to define the “Kurile Islands,” and to specify the entity in whose favor Japan had renounced sovereignty over the disputed islands. Furthermore the Senkaku Islands and the Liancourt Rocks were not specifically mentioned in the territorial clauses of the San Francisco Peace Treaty. Accordingly, there is a need to examine carefully how a series of drafts of the Treaty defined the terms regarding these disputed islands in East Asia. The territorial clause of the San Francisco Peace Treaty regarding the Kurile Islands can be interpreted as follows: (1) the Soviet Union is the only recipient of the Kurile Islands envisaged by the Allied Powers; (2) there were no agreed definition of the “Kurile Islands” among the Allied Powers; and (3) there are strong indications that the Allied Powers preferred not to resolve the matter of the ultimate disposition of the Kurile Islands in the San Francisco Peace

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Although the claimants for ownership of the disputed territories often rely on ancient historical sources for support, much of the uncertainty surrounding territorial disputes is a by-product of the post-World War II boundary decisions and territorial dispositions. The controversies in question did not arise as independent territorial disputes within East Asian countries, but are reflections of the legacies of post-war decision-making. The ongoing territorial disputes in Asia involve intertwined political and legal issues. This is particularly so given that historical facts were not regarded as major factors in the post-World War II territorial dispositions in Asia.12 Although it is not always easy to dichotomize politics and law in specific territorial disputes, it is also impossible to reach a conclusion as to the strength of the competing claims based solely on international legal principles and sources. Therefore, this paper will address the very nature of the disputed territories in Asia using relevant customary international law relating to territorial acquisition and loss.13

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Treaty. The Senkaku Islands were not included as either Chinese and Taiwanese or Japanese territory by the drafters of the San Francisco Peace Treaty, and Article 3 of the Treaty did not, to the point of specificity, define the territories that were placed within the area of the United Nations trusteeship with the United States as the sole administering authority. The territorial clause on Dokdo could indicate that the “Korea” renounced in the San Francisco Peace Treaty included Dokdo. For further information on Dokdo, see generally, Seokwoo Lee, The San Francisco Peace Treaty with Japan of 1951 and the Territorial Disputes in East Asia, 11 Pacific Rim L. & Pol’y J. 63–146 (2002). Id. For further discussion on territorial disputes in international law, see Ian Brownlie, Principles of Public International Law 125–67 (1998); C.G. Fenwick, International Law 404–35 (1965); R.Y. Jennings, The Acquisition of Territory in International Law 16–35 (1963); 1 Oppenheim’s International Law 677–718 (R.Y. Jennings & A. Watts eds., 1992) [hereafter cited as Jennings & Watts]; M.F. Lindley, The Acquisition and Government of Backward Territory in International Law 123–302 (1926); P. Malanczuk, Akehurst’s Modern Introduction to International Law 147–60 (1997); 1 D.P. O’Connell, International Law 405–48 (1970); S. Sharma, Territorial Acquisition, Disputes and International Law 35–160 (1997); Malcolm Shaw, International Law 338–54 (1997); Malcolm Shaw, Title to Territory in Africa – (1986); I.A. Shearer, Starke’s International Law 144–55 (1994); G. von Glahn, Law Among Nations 367–81 (1992). For article/periodical references, see D.W. Greig, Sovereignty, Territory and the International Lawyer’s Dilemma, 26 Osgoode Hall L. J. 140–63 (1988); F.D. Heydte, Discovery, Symbolic Annexation and Virtual Effectiveness in International Law, 29 Am. J. Int’l L. 463 (1935); Robert Jennings, Acquisition and Loss of Territorial Sovereignty,  Collected Writings of Sir Robert Jennings 88–103 (1998); D.H.N. Johnson, Consolidation as a Root of Title in International Law,  Cam. L. J. 215–25 (1955) (Consolidation); D.H.N. Johnson, Acquisitive Prescription in International Law, 27 British Y. B. Int’l L. 332–54 (1950); Seokwoo Lee, Continuing Relevance of Traditional Modes of Territorial Acquisition in International Law and a Modest Proposal, 16 Connecticut J. Int’l L. 1–22 (2000); I.C. MacGibbon, Some Observations on the Part of Protest in International Law, 30 British Y.B. Int’l L. 293–319 (1953); I.C. MacGibbon, The Scope of Acquiescence in International Law, 31

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The main purpose of this research, however, is not to determine the ownership of the disputed territories. Beyond the question of ownership, this research will attempt to provide a broader framework for better resolutions of the territorial disputes that bedevil the Asian region, focusing on the bilateral relationship between the claimants in particular.

II. The General Rules of International Law on Territorial Acquisition and Loss When territorial and boundary disputes issues came to the surface in Asia, the biggest challenge was to determine how to resolve these disputes using the international law that was developed and formulated in this area, rather than the European/Western international law. No rule of international law exists prescribing a single mode for the acquisition and loss of territory. Customary international law provides traditionally recognized modes of territorial acquisition and loss, which have been developed through decisions and awards14 of international judicial and arbitral bodies. States can acquire

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British Y.B. Int’l L. 143–86 (1954); J. McHugo, How to Prove Title to Territory: A Brief, Practical Introduction to the Law and Evidence, 2:4 Boundary and Territory Briefing – (IBRU 1998); P.K. Menon, Title to Territory: Traditional Modes of Acquisition by States, 72 Revue de Droit International de Sciences Diplomatiques et Politiques 1 (1994); A.L.W. Munkman, Adjudication and Adjustment – International Judicial Decision and the Settlement of Territorial and Boundary Disputes, 46 British Y.B. Int’l L. 91–116 (1972); H. Post, International Law Between Dominium and Imperium; Some Reflections on the Foundations of the International Law on Territorial Acquisition, Reflections on Principles and Practice of International Law 147–73 (T.D. Gill & W.P. Heer eds., 2000); G. Schwarzenberger, Title to Territory: Response to a Challenge, 51 Am. J. Int’l L. 308–24 (1957); Malcolm Shaw, Territory in International Law, 13 Netherlands Y’b Int’l L. 79–88 (1982); O. Svarlien, The Eastern Greenland Case in Historical Perspective, University of Florida Monographs 49–74 (Social Sciences, No. 21, Winter 1964). Among the key cases are: Islands of Palmas Arbitration (U.S. v. Neth.), 2 R.I.A.A. 829 (1928); Clipperton Island Arbitration (Fr. v. Mex.), 2 R.I.A.A. 1105 (1931), reprinted in 26 Am. J. Int’l L. 390 (1932); Legal Status of Eastern Greenland Case (Den. v. Nor.), 1933 P.C.I.J. (Ser. A/B) No. 53 (Apr. 5) [hereafter cited as Eastern Greenland Case]; Minquiers and Ecrehos Case (Fr. v. U.K.), 1953 I.C.J. 47 (Nov. 17); Advisory Opinion on the Status of Western Sahara, 1975 I.C.J. 12 (Oct. 16) [hereafter cited as Western Sahara]; Case Concerning the Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.: Nicar. intervening), 1992 I.C.J. 351 (Sept. 11) [hereafter cited as El Salvador v. Honduras Case]; Eritrea-Yemen Arbitration, Phase I: Territorial Sovereignty and Scope of Dispute (Perm. Ct. Arb. Oct. 9, 1998), reprinted in 40 I.L.M. 900 (2001), available at: http://www .pca-cpa.org/ER-YEAwardTOC.htm (last visited Mar. 1, 2007) [hereafter cited as Eritrea-Yemen Arbitration]; Case concerning Kasikili/Sedudu Island (Bots. v. Namib.), 1999 I.C.J. 1045 (Dec. 13), [hereafter cited as Kasikili/Sedudu Island Case]; Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 2001 I.C.J. 40 (Mar. 16) [hereafter cited as Qatar v. Bahrain]; Case concerning the Land and Maritime Boundary between Cameroon and

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territory through five traditional methods: discovery and occupation, cession, accretion, conquest, and prescription. The seven traditional ways of losing territory in international law are: abandonment (or dereliction), relinquishment (or renunciation), cession, operations of nature, subjugation, prescription, and revolt. Important factors relevant to establishing sovereignty over specific territories include: (1) a state’s activities over a given region displayed in an actual, continuous, peaceful, and sufficient manner;15 (2) displays of sovereignty which may take different forms according to the character of the territory in question;16 (3) the evidence produced by both claimants as to the exercise of functions of state and governmental authority by acts generally indicative of sovereignty;17 and (4) the relationship between the states’ activities to the claim and the possession of the territory in question.

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Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), 2002 I.C.J. 303 (Oct. 10) [hereinafter cited as Cameroon v. Nigeria]; Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), 2002 I.C.J. 625 (Dec. 17); Frontier Dispute (Benin/Niger) (2005), available at http://www.icj-cij.org/icjwww/idocket/ibn/ ibnframe.htm (last visited Oct. 14, 2007). See Sharma, supra note 13, at 100–04. Given that the extent of the “effectiveness required varies with circumstances, such as the size of the territory, the extent to which it is inhabited and, as in deserts or polar regions, climatic conditions,” the degree of effective exercise of authority is directly dependent on the ecological, climatic, geographic and other natural conditions of the claimed territory. See G. Schwarzenberger & E.D. Brown, A Manual of International Law 97 (1976); Schwarzenberger, supra note 13, at 315–16. The need for differentiating unpopulated or barely inhabitable territory from populated territory in assessing the exercise of sovereignty has been widely recognized by international legal scholars and international tribunals. Generally see Akehurst, supra note 13, at 149; O’Connell, supra note 13, at 411; Shaw, Africa, supra note 13, at 411; Johnson, Consolidation, supra note 13, at 223; Clipperton Island Arbitration, supra note 14, at 394; Eastern Greenland Case, supra note 14 at 46; Western Sahara, supra note 14 at 43; Eritrea-Yemen Arbitration, supra note 14, at paras. 452, 523. In other words, as Brownlie points out, although “the collection of taxes, the building of public roads, the opening of post offices and the maintenance of public order” are examples, “the most important element is the manifestation of state authority by acts normally indicative of sovereignty” in proving established sovereignty over the specific territories by means of effective occupation. See Ian Brownlie, Lecture and Discussion on International Boundary and Territorial Disputes: Seminar Notes 4 (at the Practitioner’s Meeting of the British Branch of the International Law Association, Mar. 15, 2000).

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III. Intertemporal Law and the Territorial Disputes in Asia Intertemporal law18 raises questions about what legal rules to apply to particular disputes at particular times. The claims of parties to disputed territory must therefore be evaluated using the international law and the prevailing legal standards in existence at the “critical date” when the disputes arose19 and the issue must be discussed within the context of the critical date. Other questions that must be explored within the context of the critical date include: (1) whether, at the material time, legal concepts or a legal regime on territorial acquisition existed in Asia; (2) and more importantly, assuming that such a regime existed, what role, if any, should it play in the resolution of the disputes in question; (3) and, if such a regime existed, what impact do subsequent factual and legal developments have, especially if the areas in question have been subject to significant factual and legal changes over the years?20 Again, this research will not attempt to determine which country has the stronger claim to the disputed area but rather will focus on the legal implications of the territorial and boundary disputes in Asia at the material times. It is debatable whether Asian history shows an essential difference between Asian legal concepts and the principles of general international law regarding the

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In the Island of Palmas Arbitration, the issue of intertemporal law was addressed: As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law. Islands of Palmas Arbitration, supra note 14, at 845. According to the principle of intertemporal law, only the rules of international law valid at the time of the act can be applied. A principle closely related to intertemporal law is uti possidetis, according to which colonial boundaries, however arbitrarily drawn by the imperial powers, are to be respected. See also T.O. Elias, The Doctrine of Intertemporal Law, 74 Am. J. Int’l L. 285 (1980); 1 J. Westlake, International Law 112 (1904) (“Titles must be judged by the state of international law at the time when, if at all, they arose”). Akehurst, supra note 13, at 155–56. See also Western Sahara, supra note 14, at 37–40. For a discourse on “eurocentrism and the territorial acquisition in international law,” see generally Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (2004); The Third World and International Order: Law, Politics and Globalization (Anthony Anghie et al. eds., 2003); Anthony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int’l L.J. 1 (1999); J. McHugo, How ‘Eurocentric’ Are the Rules for Acquisition and Maintenance of Title to Territory in International Law (presented at the seminar organized by Scottish Centre for International Law & British Branch of the International Law Association, Feb. 3, 2000); E. McWhinney, The International Court of Justice and the Western Tradition of International Law 1–19 (1987).

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modes of acquiring and losing territory.21 Two possible interpretations exist. On the one hand, one study of Chinese practice of acquiring and losing state territory has pointed out that: Close study of the records of imperial China’s foreign relations does not support the thesis that China in the past always dictated the terms of its relations with other states, as suggested by the traditional “tributary system” model. Rather, this record reveals a complex mixture of rules and practices, some reflecting the hierarchal presuppositions of the tribute model, others representing ad hoc working compromises between China and other countries. Yet another category of rules and practices appears to have been grounded in shared notions of fairness, equality, reciprocity, and mutual respect for “territorial sovereignty.” Indeed, Qing boundary rules and cases spanning more than one hundred years indicate that substantive equality and reciprocity, coupled with Sinocentric hierarchy in form, were the dominant characteristics of the border control system, at least with regard to Qing relations with Korea, Vietnam, Siam and Burma.22

On the other hand, from the Chinese perspective, the Western practice of putting everything in black and white is not all-important.23 “Based on the long history of Chinese administrative geography, the Chinese had their own way to demarcate legitimate political space and marine space in the East China Sea. In particular, the Chinese created the Sinitic world order by networking their investiture-tributary system to demonstrate the Chinese way of hegemony during traditional periods.”24 For the Chinese, history, geography, and actual circumstances have combined to make their ownership of certain territories a reality; thus, they had frequented these territories uninterrupted and unchallenged by other countries for centuries.25 Prior to the 18th century, discovery alone sufficed to entitle states to establish and maintain sovereignty over the specific territories under rules of international law. According to the principle of intertemporal law, the evaluation and determination of historic titles must be made in light of the rules of international law which were in force at the time such title was allegedly acquired. It is also debatable, however, 21

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G. Austin, China’s Ocean Frontier: International Law, Military Force and National Development 355–62 (1998); L. Tung, China and Some Phases of International Law 13 (1940). R.R. Edwards, Imperial China’s Border Control Law, 1 J. of Asian L. 33–34 (1987). See R. Braibanti, The Ryukyu Islands: Pawn of the Pacific, 48 Am. Pol. Sci. Rev. 975–81 (1954), for another example of the difference between traditional Chinese diplomacy and the political and juridical concepts of Western international relations. U. Suganuma, Sovereign Rights and Territorial Space in Sino-Japanese Relations: Irredentism and the Diaoyu/Senkaku Islands 17 (2000). For further information on the historical background of the Chinese practices on this issue, see generally The Chinese World Order ( J. Fairbank ed., 1968); C.P. FitzGerald, The Southern Expansion of the Chinese People: Southern Fields and Southern Ocean (1972); S. Jagchid & V.J. Symons, Peace, War, and Trade along the Great Wall: Nomadic-Chinese Interaction through Two Millennia (1989); O. Lattimore, Inner Asian Frontiers of China (1940); R.H.G. Lee, The Manchurian Frontier in Ch’ing History (1970); S.S. Yen, Taiwan in China’s Foreign Relations – (1965).

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whether claims of sovereignty in Asia can be judged by norms developed in Europe, particularly since the general understanding of how to establish a valid claim to territory has been established through decisions and awards by international judicial and arbitral bodies many centuries later, mainly in the early 20th century. Accordingly, evaluating Asian countries’ claims of sovereignty over the specific territorial and boundary disputes would depend, as pointed out earlier, on whether legal concepts or legal regimes on territorial acquisition existed at the time in Asia, and the implications of such concepts and regimes for the resolution of the disputes over the specific territorial and boundary disputes in contemporary times.

IV. The Authority and Legal Basis for Territorial Dispositions There is no uniform rule of international law defining any single manner for cession of territory. Territorial dispositions are generally matters of considerable importance to the various nations concerned, and most nations would doubtless desire that the disposing document be of substantial dignity, namely, a treaty. Because territorial questions are often threats to peaceful international relations, methods that result in an unequivocal settlement are desirable. For these reasons, cession by a peace treaty is the common manner of disposing territories of a defeated state.26 Power of disposition, limited or unlimited depending on circumstances, however, is often given by the defeated state in the treaty without naming the recipient.27 In those cases in which this method has been used, two circumstances are generally present: (1) the disposition is not agreed to by all concerned at the peace conference; (2) some action must be taken outside the peace conference before definitive disposition can be agreed to by those concerned, such as a plebiscite on the establishment of a mandate through international organizations such as the League of Nations.28 Brownlie has explained that “on a number of occasions a group of leading powers, perhaps in association with a large number of other states, have assumed 26

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See, e.g. Treaty of Peace with Italy, Feb. 10, 1947, Articles 6, 11, 14, 61 Stat. 1369, 1374, 1376, 1377–78, 49 U.N.T.S. 126, 131, 133, 134–35; Treaty of Peace with Hungary, Feb. 10, 1947, Article 1, 61 Stat. 2109, 2111–12, 41 U.N.T.S. 168, 171–72. The Italian Treaty of 1947 illustrates: the cessions of certain territories to Greece (Article 14), France (Articles 6–8), and Yugoslavia (Article 12), and the disposition of power to the Big Four (US, UK, USSR, France), or the failure of agreement to the General Assembly, concerning the case of Italian Colonies whose disposition could not be agreed at the Peace Conference. See Treaty of Peace with Italy, id., 61 Stat. 1374–75, 1377–78, 49 U.N.T.S. 131–32, 134–35. The Versailles Treaty of 1919, see Treaty of Peace, Jun. 28, 1919, 225 C.T.S. 188, available at http://www.yale.edu/lawweb/avalon/imt/menu.htm (last visited Oct. 14, 2007), is a good example of this method. See, e.g., id. at 236–37 (Article 87, Polish frontier); id., at 255 (Articles 118–19, German Colonies). Article 23 of the Italian Treaty of 1947 (Italian Colonies) is another example. See Treaty of Peace with Italy, id. 61 Stat. 1436, 49 U.N.T.S. 139.

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a power of disposition although the legal bases of such a power were problematical.”29 Under the subheading of “Disposition by Joint Decision of the Principal Powers,” Brownlie mentions: After the defeat of the Central Powers in the First World War, and the Axis Powers in the Second World War, the leading victor states assumed a power of disposition, to be exercised jointly, over the territory of the defeated states. . . . States losing territory as a consequence of dispositions in this wise might, and often did, renounce title by the provisions of a peace treaty to the areas concerned, but the dispositions were assumed to be valid irrespective of such renunciation and the recipients were usually in possession prior to the coming into force of a peace treaty. The existence of this power of disposition or assignment is recognized by jurists, but they find it difficult to suggest, or to agree upon, a satisfactory legal basis for it. Some translate political realities into legal forms by supposing that the community of states has delegated such a power to the ‘principal’ or ‘great’ powers. . . .30

Where renunciation confers a power of disposition to another state or a group of states, legal weight is given to such right of disposal.31 With regard to the power of disposition over renounced territory, it has not been the practice of states to give due consideration to the historical interests of the state that has been dispossessed of the subject territory.32 According to the law of succession, “when by cession or otherwise, a part of a state’s territory is transferred to another, a succession to certain rights and obligations associated with the transferred territory occurs.”33 Therefore, it seems that the successor state’s right to title, whether such title was acquired directly from renunciation or indirectly through disposition, shall be equal to that of the relinquishing state and shall continue to prevail over other rights in its territory.

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30 31 32

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Brownlie, supra note 13, at 169. Concerning the general juridical character of peace treaties, Fitzmaurice also opined that: while a peace treaty is contractual in form, and partly contractual in character, it is also partly in the nature of a sort of piece of legislation. In many respects it has what European jurists call a [dispositive] character, creating a situation or state of affairs rather than a set of rights and obligations. This is a point constantly to be borne in mind in considering peace treaties, partly because it affects the interpretation and effect to be given to certain clauses, and partly because much that is juridically obscure and puzzling if a peace treaty is considered merely as a contract, becomes relatively clear and understandable if it is considered as being also in the nature of a piece of legislation (Italics in original). G.G. Fitzmaurice, The Juridical Clauses of the Peace Treaties, 73 Recueil des Cours 260 (1948). Brownlie, id. at 133–34. See O’Connell, supra note 13, at 446. For example, there is no evidence in the decision in the Lighthouses Arbitration (Fr. v. Greece) that the Allied Powers considered the historical rights of previously dispossessed states in exercising the power to dispose of all Ottoman islands in the Aegean, entrusted to the Allied Powers by Article V of the Treaty of London. See Lighthouses Arbitration (Fr. v. Greece), 23 I.L.R. 659 (Perm. Ct. Arb. 1956). Jennings & Watts, supra note 13, at 224.

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There may also be a circumstance where a state relinquishes territory without expressing its intention as to who is to have title to, or the power to dispose of, the territory. The question then is whether the sovereign title of territory should automatically vest in the state that maintains the best sovereign claim, or whether the territory should be disposed of by collective powers.34 If the territory is to be disposed of by collective dispositive powers, it seems equitable that those powers give adequate consideration to any existing claims held by a previously dispossessed state. 1. Precedents for the Blanket Renunciation of Territory in Peace Treaties and Their Implications In the treaties discussed below, territory was relinquished without explicit stipulation as to the disposition of sovereignty over the territory, either ultimately or intermediately. The relinquishing country simply renounced its sovereignty over the territory without conveying it to any other country. Thus, questions arose regarding the status of these territories. Under these circumstances, another power may acquire sovereignty: (1) through war and the results of war; (2) by occupation as defined in international law under a claim of right; and (3) by an international agreement among the interested powers. In the 18th and 19th centuries, Europe and its foreign territories were carved up successively through these processes. It thus became customary to provide for the blanket renunciation of territory and the cession of territory to specific countries in peace treaties. The extent to which previous treaties provide a precedent for the 1951 San Francisco Peace Treaty35 will be discussed in the examples that follow.

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Regarding interpretation of Article 16 of the Treaty of Lausanne which contained an express Turkish renunciation of all rights and title to former Ottoman territories and islands, the tribunal in the Eritrea-Yemen Arbitration held that after Turkish renunciation of those islands, they did not become res nullius, nor did they automatically revert to Yemen. Sovereign title over them remained indeterminate pro tempore. See Eritrea-Yemen Arbitration, supra note 14, paras. 19, 165. San Francisco Peace Treaty, supra note 11. The full text is also available at http://newtaiwan.virtualave.net/sanfrancisco01.htm (last visited Mar. 1, 2007). See also D.P. O’Connell, Legal Aspects of the Peace Treaty with Japan, 29 British Y.B. Int’l L. 423–35 (1952), for the legal background of the treaty; see U.S. Department of State [hereafter cited as USDOS], Conference for the Conclusion and Signature of the Treaty of Peace with Japan: Record of Proceedings (1951), for a list of participants, agenda, rules of procedure, verbatim minutes, and treaty documents; see Z. Ohira, The Territorial Problems of the Peace Treaty with Japan, 7:2 The Annals of the Hitotsubashi Academy – (Apr. 1957) (also appeared in 25 Far Eastern Economic Review 17–20, 26 (Jul. 3, 1958)), for discussion of the territorial dimension of the San Francisco Peace Treaty. For general information on the San Francisco Peace Treaty, see also: F.S. Dunn, Peace-Making and the Settlement with Japan (1963); Lee, supra note 11; The Palo Alto Peace Club, Report on the Japanese Peace Treaty (Aug., 1951); U.S. Congress, Foreign Relations Committee, 82nd Congress 1st Session, Japanese Peace Treaty and Other Treaties Relating to Security in the Pacific (Nov. 30, 1951); USDOS, Dept.

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The Treaty of Paris of 1814, concluded between the victorious allies and defeated France, defined the new French boundaries. A sweeping renunciation of territory was inserted in Article III: “France on her part renounces all rights of Sovereignty, Suzeraineté, and of possession, over all the Countries, Districts, Towns, and places situated beyond the Frontier above described, the Principality of Monaco being replaced on the same footing on which it stood before the 1st of January, 1792.”36 The Treaty of Paris of 1814, like the Japanese renunciation in the San Francisco Peace Treaty, did not make the renunciation specifically in favor of any particular power or powers. This treaty, like the 1951 San Francisco Peace Treaty, contained three further provisions indicating the ultimate disposition of considerable portions of territory relinquished by France:37 “The States of Germany shall be independent, and united by a Federative Bond. Switzerland, Independent, shall continue to govern herself. Italy, beyond the limits of the Countries which are to revert to Austria, shall be composed of Sovereign States.” However, unlike the San Francisco Peace Treaty and its subsequent circumstances, additional and more detailed dispositions of the renounced territories were later made by Allied Powers in the definitive Treaty of Paris of 1814, the Final Act of the Conference of Vienna, and other subsequent treaties among the allies.38 The Treaty of Peace of 1898 between the United States and Spain also contained a territorial clause on blanket renunciation. Regarding the disposition of Cuba, Article I of this treaty reads: Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the facts of its occupation, for the protection of life and property.39

The history of negotiations of this article reveals that the Spanish delegates originally proposed that Spain “relinquishes her sovereignty over the Island of Cuba, transferring it to the United States Government, which accepts it, in order that they may in turn transfer it at the proper time to the Cuban people, upon the conditions established in this treaty.” The United States negotiators rejected this proposed language because the United States disclaimed any disposition or intention to

36 37 38

39

of State Bulletin (International Organization and Conference Series II, Far Eastern 2) (Sept. 17, 1951); M.M Yoshitsu, Japan and the San Francisco Peace Settlement (1983). Treaty of Paris, 63 C.T.S. 171;  British and Foreign State Papers 158 (pt. 1) (1841). Art. VI, British and Foreign State Papers, id., at 160. 1 E. Hertslet, The Map of Europe by Treaty: Showing the Various Political and Territorial Changes which Have Taken Place since the General Peace of 1814, at 346, 486, 589, 636 (1875). Art. 1, 187 C.T.S. 100, 101; 90 British and Foreign State Papers 382 (1901).

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exercise sovereignty over Cuba.40 The language that was finally accepted provided for Spain’s renunciation of sovereignty over Cuba, but did not specify to whom that sovereignty was to be transferred, directly or indirectly. Thus, although a provision was made for the United States to act as an occupying power over Cuba, the issue of Cuban sovereignty was left unresolved. The two treaties cited above are analogous to the 1951 San Francisco Peace Treaty in their provisions for renunciation of territory by the vanquished. Neither of these treaties contained an explicit and adequate stipulation as to the disposition of sovereignty over the relinquished territory. For both the Treaties of 1814 and 1898, political understandings or expressions among the victors were designed to provide for the disposition of sovereignty over all the relinquished territories, and these intentions were accepted without challenge. Thus, the concept of “terra nullius” did not arise, despite the existence of a gap in title between the renunciation and the final acceptance of the new status quo. On the other hand, in the 1919–1920 peace treaties, the cession of territory to specific countries was executed, country by country, by means of “political clauses.” In the Treaty of Versailles, for example, Germany turned its colonies over to the principal Allied Powers. There was no individual cession of territory, and no case of a territory having an ambiguous status.41 2. Eritrea-Yemen Arbitration and Article 16 of the Treaty of Lausanne In the Treaty of Peace concluded at Lausanne on July 24, 1923 (Treaty of Lausanne),42 Turkey specifically renounced the Dodecanese Islands and Castellorizzo in favour of Italy,43 but renounced all other territories without explicit stipulation.44 Likewise, the Treaty of Peace with Italy signed at Paris on February 10, 1947, provides that: “[t]he final disposition of these possessions [the Italian colonies] shall be determined jointly by the Governments of the Soviet Union, of the United Kingdom, of the United States of America, and of France, within one year from the coming into force of the treaty. . . .”45 It is instructive, in this respect, that in the recent Eritrea-Yemen Arbitration, the tribunal devoted a significant portion of its award to the determination of the import of Article 16 of the Treaty of Lausanne, which is to the effect that: 40

41

42 43 44 45

U.S. Congress, 55th Congress 3rd Session, A Treaty of Peace between the United States and Spain 53 (U.S. Senate Doc. No. 62, pt. 3) (Congressional Set Vol. 3732) (1898). For general understanding on the Versailles Treaty of 1919, see The Treaty of Versailles: A Reassessment after 75 Years (M.F. Boemeke et al. eds., 1998). Treaty of Peace between the Allied Powers and Turkey, 28 L.N.T.S. 11 ( July 24, 1923). Id. art. 15. Id. art. 16. Treaty of Peace with Italy, art. 23, 61 Stat. 1369, 49 U.N.T.S. 126 (Feb. 10, 1947). See also Fitzmaurice, supra note 29, at 279–300 (Territorial Clauses of the Peace Treaties).

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Turkey hereby renounces all rights and title whatsoever over or respecting the territories situated outside the frontiers laid down in the present Treaty and the islands other than those over which her sovereignty is recognized by the said Treaty, the future of those territories and islands being settled or to be settled by the parties concerned.46

On the demise of the Ottoman Empire, were the disputants, not being parties to the Treaty of Lausanne, at liberty to treat the islands as terra nullius and therefore subject to occupation? In this regard, Eritrea argued that because Article 16 did not transfer the islands to any particular state and did not specify any particular procedure for conveying ownership of the islands, their ultimate disposition was left to the general principles of international law for territorial acquisition.47 The tribunal took the view that the islands could not be so treated on account of Article 16 of the Treaty of Lausanne. The arbitrators held that: “[it] is not unreasonable to conclude that what was envisaged was a settlement of the matter in the future by all those having legal claims or high political interest in the islands, whether Treaty of Lausanne High Contracting Parties or not.”48 Accordingly, the territories over which Turkey renounced title “did not become terra nullius” and “[s]overeign title over them remained indeterminate pro tempore.”49 Such indeterminacy could be resolved by the “parties concerned” at some stage in the future, by present (or future) claimants inter se.50 Therefore, the territories “did not become . . . open to acquisitive prescription by any State, including any of the High Contracting Parties . . . [n]or did they automatically revert (insofar as they had ever belonged) to the Imam [of Yemen].”51 The tribunal emphasized that under Article 16, the question of sovereignty over the islands in dispute remained indeterminate until the “parties concerned” made the appropriate determination. There is no indication in the award, however, as to when, if ever, such a determination was made. Neither is there any indication that, in the view of the tribunal, the treaty had fallen into desuetude. Additionally, except in the case of Italy, which renounced any rights and interests that accrued to it under the Treaty of Lausanne pursuant to the Treaty of Peace with Italy of 1947,52 the tribunal did not mention any denunciation of the Treaty of Lausanne by the “parties concerned.” 53

46 47 48 49 50 51 52 53

Eritrea-Yemen Arbitration, supra note 14, at para. 157. Id. para. 19. Id. para. 158. Id. para. 165. Id. Id. See id. para. 195. But the Award stated in its footnote 18 that “Nor has Italy, or for that matter, any state asserted that it considers itself to be ‘a party concerned’ for this purpose. The Tribunal therefore concludes that, with respect to the islands in dispute, the only present-day ‘parties concerned’ are the Parties

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The Imam was not a party to the Treaty of Lausanne, thus in a technical sense, the treaty was res inter alios acta as to Yemen. If title had been with Yemen at that time, the parties to the Treaty of Lausanne could not have transferred title elsewhere without Yemen’s consent. The title, however, as indicated above, remained with Turkey. Boundary and territorial treaties made between two parties are res inter alios acta vis-à-vis third parties. But this special category of treaties also represents a legal reality that necessarily impinges upon third States, because they have effect erga omnes. If State A passes its title to territory to State B, then State C is legally without purpose to invoke the principle of res inter alios acta, unless its title is better than that of State A. In the absence of such better title, a claim of res inter alios acta is without legal import. How and why does the Treaty of Lausanne “have effect erga omnes”? As a nonparty to the Treaty of Lausanne, was Yemen not at liberty to assert a claim contrary to that of the “parties concerned”? The tribunal held that nonparties were not at liberty to treat the islands independently from the Treaty of Lausanne after the demise of the Ottoman Empire.54 If, as the tribunal held, treaties such as the Treaty of Lausanne operate erga omnes, could the exercise of governmental authority by the disputants, with knowledge of the indeterminate status of the islands, be a basis for a sovereignty claim over those islands? The exercise of governmental authority by the disputants should not, in such circumstances, have been treated as a basis for sovereignty claims. As a matter of fact, although the tribunal dismissed Eritrea’s argument to that effect, the islands became terra nullius. The tribunal’s basis for award based on the exercise of the functions of governmental authority by the disputants, is analogous to a treatment of the islands as terra nullius. If, as far back as 1947, Italy had ceased to be a “party concerned,” how could Eritrea, which claimed to have inherited title from Ethiopia which in turn, inherited title from Italy, become a “party concerned” within the ambit of Article 16 of the Treaty of Lausanne? If the tribunal made its determination solely on the strength of the exercise of the functions of governmental authority, without reference to the Treaty of Lausanne, there would be no basis for the statement that the disputants were the remaining “parties concerned.” What became of the so-called erga omnes effect of the Treaty of Lausanne? How could the actions of disputants qualify as evidence of the exercise of State and governmental authority when they had knowledge of the existence of the treaty, and gave it erga omnes effect? At best, the tribunal could have avoided criticism of its ultimate decision that the islands were terra nullius if it had based its decision on the acquiescence of the “parties

54

to this arbitration.” See id. at n. 18. For further criticism of this reasoning, see W. Michael Riesman, International Decisions: Award on Sovereignty over Disputed Islands in the Red Sea, 93 Am. J. Int’l L. 671 (1999) (“The analysis is also oddly incomplete.”) Eritrea-Yemen Arbitration, supra note 14, at para. 153.

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concerned” to the acts of the disputants on the islands. The tribunal failed to make that connection and instead raised the acquiescence argument only in terms of the relationship between the disputants. What the tribunal should have done in the circumstance was to hold that the Treaty of Lausanne had no relevance to the case and confined itself to the evaluation of the evidence of the exercise of governmental authority, disregarding the subsisting indeterminate status of the islands.55 According to Riesman: The Tribunal’s construction of Article 16 of the [Treaty of Lausanne] is the basis for the rejection of Eritrea’s central argument. But if that provision suspended resolution of the question of sovereignty disputes over the islands, such that Italian actions did not constitute effectivités, when did Article 16 become caducous? If Article 16 is still in force, then the concurrence of all concerned parties (whoever they may be) is required for the settlement of the issue of sovereignty over the Red Sea islands or, alternatively, is required for the submission of the question to a third party. However, the parties to the Lausanne Treaty did not concur in the compromis, and it is not certain that all other concerned parties were consulted or even notified. Thus, the Tribunal’s construction of Article 16 raises questions about the integrity of the Tribunal’s own jurisdiction. This problem might have been obviated if the parties had elected to place the dispute before the International Court of Justice (ICJ), which has limited competence to deal with the procedural challenge of essential third parties.56

3. Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain and the British Decision of 1939 In Qatar v. Bahrain, which concerned disputes between the two states over Zubarah, Hawar Islands, and Janan Island,57 the ICJ concluded that Bahrain had sovereignty over the Hawar Islands. Although Bahrain claimed, in support of its argument, that “its sovereignty over the Hawar Islands has been exercised continuously and uninterruptedly over the last two centuries and has been acknowledged by the inhabitants of the islands, and Qatar has never exercised any kind of competing

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Interestingly, the tribunal stated that the parties presented voluminous factual evidence that was “sparse in useful content.” See Eritrea-Yemen Arbitration, id. at para. 239. Riesman opined that “[d]espite the fact that the Tribunal’s theory was based on a reading of Article 16 that deprived manifestations of sovereignty of acquisitive force, almost one-third of its opinion assesses the quality of the parties’ factual evidence of alleged ‘effectivités.’” Riesman, supra note 53, at 672. Riesman further submits that “[the] Tribunal catalogues many different forms of effectivités and indicates the circumstances under which they may be probative of title. However, no comparative appraisals of the relative value of different forms of effectivités are vouchsafed. Thus, there is no way of reconstructing the actual reasons for the decision.” Id. at 680. Riesman, id. at 676 (emphasis in original). The other issues concerned sovereign rights over the shoals of Dibal and Qit’at Jaradah, and the delimitation of the maritime areas of the two states. See Qatar v. Bahrain, supra note 14, at para. 1.

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authority over the islands”58 the ICJ considered only the British decision of 1939 throughout its reasoning,59 and this 1939 decision virtually served as the sole basis of the judgment.60 Likewise, the ICJ found that Qatar had sovereignty over Janan Island including Hadd Janan, on the basis of the British Government’s decision in 1939 on the question of sovereignty over Janan Island, as interpreted in 1947.61 Although the British Government concluded that Hawar Islands belonged to Bahrain and not to Qatar, no remarks were made regarding Janan Island, nor was it specified which islands were to be considered “Hawar Islands.”62 Qatar, on its part, referred to the letters dated December 23, 1947, drafted in identical terms and sent by the British Political Agent in Bahrain to the Rulers of Qatar and Bahrain, in which the sea-bed between the two states was delimited by the British Government.63 In those letters, 58

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See Qatar v. Bahrain, id. at para. 101. Bahrain cited many examples of the alleged exercise of its authority over the Hawar Islands from both before and after 1938–39 to buttress its effective occupation claim. For detailed information on this issue, see id. paras. 101–04. Meanwhile, for Qatar’s position on this issue, see generally id. paras. 105–09. For criticism of this reasoning, see Joint dissenting opinion of Judges Bedjaoui, Ranjeva and Koroma; Declaration of Judge Vereshchetin; Separate opinion of Judge Kooijmans; Separate opinion of Judge Al-Khasawneh; Dissenting opinion of Judge ad hoc Torres Bernárdez; and, Separate opinion of Judge ad hoc Fortier. Qatar v. Bahrain, id. All available at http://www.icj-cij .org/icjwww/idocket/iqb/iqbframe.htm (last visited Oct. 14, 2007). 13. What has the Court done in the present case? In order to convince the Court, the Parties have argued at length on the following grounds of law put forward by each of them on the question of the Hawars: (a) the existence of an original title; (b) the presence of effectivités; (c) the legal principle of proximity and the matter of territorial integrity; (d) the map evidence; (e) the principle of uti possidetis juris; and lastly, (f ) the British decision of 11 July 1939 awarding the Hawars to Bahrain. Far from examining all of these grounds and according them such full value as they deserved to be given as support for the position of one or other of the Parties, the Court deliberately ignored the first five, in order to base its solution on the British decision of 11 July 1939 alone. Id. Bedjaoui, Ranjeva and Koroma, J., dis. op., at para. 13. Qatar v. Bahrain, id. at paras. 146–48: 146. The Court . . . concludes that the decision taken by the British Government on 11 July 1939 is binding on the Parties. 147. For all of these reasons, the Court concludes that Bahrain has sovereignty over the Hawar Islands, and that it therefore cannot uphold the submissions of Qatar on this question.

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148. The conclusion thus reached by the Court on the basis of the British decision of 1939 makes it unnecessary for the Court to rule on the arguments of the Parties based on the existence of an original title, effectivités, and the applicability of the principle of uti possidetis juris to the present case. Id. para. 165. Id. para. 157. Id. para. 61.

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Janan Island was not regarded as being part of the islands of the Hawar group.64 The ICJ thus concluded that the British Government’s 1947 letter provided an authoritative interpretation of the 1939 decision and its results.65

V. Concluding Remarks Notable decisions and awards by international judicial and arbitral bodies for formulating the relevant international law relating to territorial acquisition and loss include: Islands of Palmas Arbitration, Clipperton Island Arbitration, Legal Status of Eastern Greenland Case, Minquiers and Ecrehos Case, Western Sahara, Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras Case), Eritrea-Yemen Arbitration, Case concerning Kasikili/Sedudu Island, Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Land and Maritime Boundary between Cameroon and Nigeria, Sovereignty over Pulau Ligitan and Pulau Sipadan, and the recent decision in Frontier Dispute (Benin/Niger). The general understanding of territorial disputes in international law has developed through decisions and awards by international judicial and arbitral bodies, and these cases generally involve either colonising countries or colonised/newly independent countries. Consequently, none of these cases parallels the situation of the cases involving both colonising countries and colonised/newly independent countries. In other words, cases involving former colonies and former imperial powers did not count as major factors in formulating the relevant international law relating to territorial acquisition and loss. Thus, it is debatable whether the general rule of international law on territorial disputes can be applied, without modification, to the specific cases which cannot clearly fit into those general terminologies and categories. In such circumstances, it is imperative to clarify the relevant norms of international law and develop new norms to address the very nature of the territories in dispute. This will be critical for formulating a broader framework for the appreciation of the nature of territorial disputes in Asia. For this purpose, it is well worth noting that only “by taking into account the full spectrum of the Parties’ history, can their present rights be properly evaluated. By not giving the full historical context its due, however, the Court has . . . unnecessarily curtailed its scope for settling the dispute in a persuasive and legally convincing way.”66 “The inequality and denial of rights inherent in colonial practice in relation to . . . colonies is currently recognized

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Id. para. 160. Id. para. 164. Id. Kooijmans, sep. op., at para. 4.

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as an elementary truth; there is a resultant duty to memorialize these injustices and at the same time to acknowledge an historical fact.”67 Although the main purpose of intertemporal law is to strengthen legal security in international relations,68 it is criticized that intertemporal law is "a mere political handmaiden to the politics of power of the imperial states who set out on a worldwide conquest of territory,”69 and that it has been used to legitimize “blind acceptance of past manipulations of a legal system that was created by, dominated by and imposed by imperial states upon the rest of the world.”70 International law has operated in historical periods to validate the acquisition of territory by states regardless of the intentions of colonised states. Earlier formulations of general principles of international law for territorial acquisition upheld the imperial empires that led to the current political configuration of the Asia, and beyond.

67 68 69

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Cameroon v. Nigeria, supra note 14, Ranjeva, sep. op., at para. 3. Id. J. Castellino & S. Allen,Title to Territory in International Law: A Temporal Analysis 3 (2003). Id.

Chapter VII Some Legal Aspects of Territorial Disputes over Islands Kentaro Serita I. Introduction This paper discusses a continuing dispute between Korea and Japan. As I am a Japanese, I would like to begin with a sincere apology to the Koreans for the Japanese colonial rule. On the 50th anniversary of the war’s end on August 15, 1995, Japanese Prime Minister Murayama stated: The world has seen fifty years elapse since the war came to an end. Now, when I remember the many people both at home and abroad who fell victim to war, my heart is overwhelmed by a flood of emotions. . . . During a certain period in the not too distant past, Japan, following a mistaken national policy, advanced along the road to war, only to ensnare the Japanese people in a fateful crisis, and, through its colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those of Asian nations. In the hope that no such mistake be made in the future, I regard, in a spirit of humanity, these irrefutable facts of history, and express here once again my feelings of deep remorse and state my heartful apology. Allow me also to express my feelings of profound mourning for all victims, both at home and abroad, of that history.

On the 60th anniversary of the end of the war, Prime Minister Koizumi affirmed Murayama’s Statement.1 Facing the facts of history, I hold the same feelings of deep remorse and heartfelt apology with former Japanese Prime Ministers Murayama and Koizumi.

1

“On the 60th anniversary of the end of the war, Prime Minister Koizumi reaffirmed his determination that Japan must never again take the path to war, reflecting that the peace and prosperity we enjoy today are founded on the ultimate sacrifices of those who lost their lives for the war against their will.” He stated as follows: “In the past, Japan, through its colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those Asian nations. Sincerely facing these facts of history, I once again express my feelings of deep remorse and heartfelt apology, and also express the feelings of mourning for all victims, both at home and abroad, in the war. I am determined not to allow the lessons of that horrible war to erode, and to contribute to the peace and prosperity of the world without ever again waging a war.”

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II. Definition of “Dispute” First of all, a “dispute” must be defined. In the Case of the Mavrommatis Palestine Concessions, the Permanent Court of International Justice (P.C.I.J.) stated as follows: “[a] dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. The present suit between Great Britain and Greece certainly possesses these characteristics.”2 In the Mavrommatis Palestine Concessions case, the Greek government asserted its own rights by claiming an indemnity from the British government on the grounds that M. Mavrommatis, one of its subjects, had been treated by the Palestine or British authorities in a manner incompatible with certain international obligations which they were bound to observe. Indeed, the dispute started initially between a private person and a State; between M. Mavrommatis and Great Britain. Subsequently, the Greek Government took over the case. The dispute then entered a new phase under the domain of international law, and developed into a dispute between two States. Judge Waldock, in his separate opinion in the Fisheries Jurisdiction Case, stated that a “dispute,” as has frequently been said both by the P.C.I.J. and by this Court, “is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.”3 III. Does a “Dispute” Exist Between Japan and Korea? Immediately after President Lee issued the Proclamation of the President of the Republic of Korea of January 18, 1952 claiming sovereignty over the shelf and seas adjacent to Korean territory, the Japanese Government sent a Note Verbal of January 28, 1952, considering that the contents of the Proclamation “are entirely incompatible with the long internationally established principles of the high seas.” In the same Note Verbal, the Japanese Government said: “[f ]urthermore, in the proclamation the Republic of Korea appears to assume territorial rights over the islets in the Japan Sea known as Takeshima (otherwise known as Liancourt Rocks). The Japanese Government does not recognize any such assumption or claim by the Republic of Korea concerning these islets which are without question Japanese territory.”

2 3

Mavrommatis Palestine Concessions case, 1924 P.C.I.J. Ser. A, No. 2, at 11. Fisheries Jurisdiction (U.K. v. Iceland ), Merits, Judgment, 1974 I.C.J. 3, 125 para 45. See, e.g., Mavrommatis Palestine Concessions case, supra note 2 at 11; Case concerning Right of Passage over Indian Territory), Judgment of Apr. 12, 1960, 1960 I.C.J. 6, 34. See also Case concerning Certain German Interests in Polish Upper Silesia: 1925 P.C.I.J. Ser. A, No. 6 at 14; Request forIinterpretation of the Judgment of Nov. 27, 1950 in the Asylum Case, Judgment of Nov. 27, 1950, 1950 I.C.J. 395, 403.

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Setting aside the law of the sea issues, I would like to focus on the territorial issue. In the Note Verbal of February 12, 1952, the Korean Government said that “the Government of Korea does not feel inclined to enter into full arguments, here in this note, over the ownership of Liancourt Rocks, known as ‘Dokdo’ in Korea throughout long centuries,” and reminded the Japanese Government of the SCAPIN No. 677.4 The Japanese Government refuted in their Note Verbal of April 25, 1952, asserting: “it must be stressed that these islets in question have been Japanese territory up to the present,” and “according to investigation by the Japanese Government, the fact that the Take-Shima have belonged to Korea as ‘Dokdo’ for centuries is groundless.” These are portions of the correspondence between Japan and Korea. Here, it is enough to assume that a “dispute” exists between Japan and Korea, although Korea denied the existence of such a dispute over Dokdo (Takeshima) in 1954 when the Japanese Government proposed that the dispute be submitted to the International Court of Justice. The Korean Government responded as follows in their Note Verbal of October 28, 1954: The proposal of the Japanese Government that the dispute be submitted to the International Court of Justice is nothing but another attempt at the false claim in judicial disguise. Korea has the territorial rights ab initio over Dokdo and sees no reason why she should seek the verification of her rights before any international court of justice. It is Japan who conjures up a quasi territorial dispute where none should exist.

IV. When Did the Dispute Arise? In the Case of the Island of Palmas, the subject of which was the sovereignty over the Island of Palmas (or Miangas), the origin of the dispute is to be found in the visit paid to the island on January 21, 1906 by the then Governor of the Province of Moro, General Wood. This visit led to the statement that the Island of Palmas, undoubtedly included in the “archipelago known as the Philippine Islands” as delimited by the Treaty of Peace of December 10, 1898 between the U.S. and Spain, was considered by the Netherlands as a part of their East Indies territory. A diplomatic correspondence followed on March 31, 1906, leading up to the Special Agreement of January 23, 1925. The Netherlands and the United States then asked Max Huber to accept the mandate to act as a sole arbitrator. Huber accepted the task.5 4

5

In SCAPIN (Supreme Commander for the Allied Powers Instructions) No. 677, issued Jan. 29, 1946, the Allied Powers said that Dokdo was not part of the territory within the definition of “Japan.” The Arbitral Award Rendered in Conformity with the Special Agreement Concluded on January 23, 1925 Between the United States of America and the Netherlands Relating to the Arbitration of Differences

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Before beginning to consider the arguments of the parties, Arbitrator Huber stated: “we may at the outset take as established certain facts which, according to the pleadings, are not contested. Before 1906 no dispute had arisen between the United States or Spain, on the one hand, and the Netherlands, on the other, in regard specifically to the Island of Palmas (or Miangas), on the ground that these Powers put forward conflicting claims to sovereignty over the said island.” Arbitrator Huber summed up the arguments of the parties in a general way as follows: The United States, as successor to the rights of Spain over the Philippines, bases its title in the first place on discovery. The existence of sovereignty thus acquired is, in the American view, confirmed not merely by the most reliable cartographers and authors, but also by treaty, in particular by the Treaty of Munster, of 1648, to which Spain and the Netherlands are themselves Contracting Parties. As, according to the same argument, nothing has been occurred of a nature, in international law, to cause the acquired title to disappear, this latter title was intact at the moment when, by the Treaty of December 10th, 1898, Spain ceded the Philippines to the United States. In these circumstances, it is, in the American view, unnecessary to establish facts showing the actual display of sovereignty precisely over the Island of Palmas. The United States finally maintains that Palmas forms a geographical part of the Philippine group and in virtue of the principle of contiguity belongs to the Power having the sovereignty over the Philippines. . . . According to the Netherland Government, on the other hand, the fact of discovery by Spain is not proved, nor yet any other form of acquisition, and even if Spain had at any moment had a title, such title had been lost. The principle of contiguity is contested. . . The Netherland Government’s main argument endeavours to show that the Netherlands, represented for this purpose in the first period of colonisation by the East India Company, have possessed and exercised rights of sovereignty from 1677, or probably from a date prior even to 1648, to the present day. This sovereignty arouse out of conventions entered into with native princes of the Island of Sangi (main island of Sangi isles), establishing the suzerainty of the Netherlands over the territories of these princes, including Palmas. The state of affaires thus set up is claimed to be validated by international treaties . . . The facts alleged in support of the Netherlands arguments are, in the United States Government’s view, not proved, or even if they were proved, they would not create a title of sovereignty, or would not concern the Island of Palmas.

Among the methods of indirect proof, not of the exercise of sovereignty, but of its existence in law, submitted by the United States in the case of Palmas Island, consisted of evidence of maps. Arbitrator Max Huber said as follows: “Any maps which do not precisely indicate the political distribution of territories, in particular the Island of Palmas(or Miangas) clearly marked as such, must be rejected forthwith, unless they contribute – supposing that they are accurate – to the location of the geographical names. . . . Above all, then, official or semi-official maps seem capable

Respecting Sovereignty over the Island of Palmas (or Miangas), 2 R.I.A.A. 829 (1928), reprinted in 22 American Journal of International Law 867, 909 (1928).

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of fulfilling these conditions.”6 And further he said: “If the Arbitrator is satisfied as to the existence of legally relevant facts which contradict the statements of cartographers whose sources of information are not known, he can attach no weight to the maps, however numerous and generally appreciated they may be.”7 Anyhow, a map affords only an indication – and that a very indirect one – and, except when annexed to a legal instrument, has not the value of such an instrument, involving recognition or abandonment of rights.”8 Another important statement made by Judge Huber is that: “The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in intenational law.”9 The Arbitrator confirmed that no dispute on the matter had arisen until General Wood visited the Palmas Island in 1906. Applying the standards of this case, it can be concluded that a dispute between Japan and Korea arose in 1952.

V. The Significance of the Critical Date In the case of Palmas Island, the title alleged by the United States as constituting the immediate foundation of its claim was that of cession, brought by the 1898 Treaty of Paris. The Arbitrator said, “it is evident that Spain could not transfer more rights than she herself possessed.” As successor of Spain, the U.S. bases its claim on discovery. “[I]f the view most favourable to the American arguments is adopted – with every reservation as to the soundness of such view – that is to say, if we consider as positive law at the period in question the rule that discovery as such, i.e. the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an ‘inchoate title,’ a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date, i.e. the moment of conclusion and coming into force of the Treaty of Paris [of 1898].” Max Huber said, “[a] s regards the 20th century, it is to be observed that events subsequent to 1906 must in any case be ruled out, in accordance both with the general principles of arbitral procedure between States and with the understanding arrived at between the Parties.” “The events falling between the Treaty of Paris, December 10th, 1898, and the rise of the present dispute in 1906, cannot in themselves serve to indicate the legal situation of the island at the critical moment

6 7 8 9

Id., 2 U.N.R.I.A.A. at 852. Id. at 853. Id. at 853–54. Id. at 866.

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when the cession of the Philippines by Spain took place.”10 In the case of Dokdo (Takeshima), Japan confirmed the island in question as part of Japanese territory, named it “Takeshima,” and put it under the jurisdiction of Shimane Prefecture in 1905. But Korea insisted that the island had been part of Korean territory until 1905. From these circumstances, 1905 may be considered the appropriate critical date. If so, as Arbitrator Huber stated in his award, events subsequent to 1905 must be ruled out in accordance with the general principles of arbitral procedure between the States. If a State in dispute founds its claim of sovereignty on the title of peaceful and continuous display of State authority over the island, it suffices that sovereignty had existed at the critical period. In the case of Dokdo (Takeshima), the critical period would be before 1905.11

VI. The Relative Strength of Opposing Claims Appraised in Light of Historical Facts Next, the Minquiers and Ecrehos Case between France and U.K. must be examined.12 The Minquiers and Ecrehos Case was submitted to the Court by virtue of a Special Agreement concluded between the United Kingdom and France on December 29, 1950. Under the Special Agreement, the Court was asked to determine which of the parties had produced more convincing proof of title, setting aside any possibility of applying to them the status of terra nullius. In addition, the question of burden of proof was reserved; each party therefore had to prove its alleged title and the facts upon which it relied. In a unanimous decision, the Court found that sovereignty over the islets and rocks of the Ecrehos and the Minquiers groups, in so far as these islets and rocks were capable of appropriation, belonged to the United Kingdom. First, the Court found that none of the medieval treaties invoked by both parties specified the ownership of the islands. Other ancient documents and facts existed, but in the opinion of the Court, what was decisive was not indirect presumptions based on matters in the Middle Ages, but the evidence which related directly to the possession of the groups. The Court then examined the situation of each group. With regard to the Minquiers, the Court noted that in 17th century the Manorial Court of the fief

10 11

12

Id. Max Huber also stated: “The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law.” Id. Minquiers and Ecrehos case (France v. United Kingdom), Judgment of Nov. 17, 1953, 1953 I.C.J. 47.

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of Noirmont in Jersey exercised its jurisdiction in the case of wrecks found at the Minquiers, because of the territorial character of jurisdiction. Other evidence from the 18th, 19th, and 20th centuries concerned inquests on corpses found, the erection on the islets of habitable houses or huts by persons from Jersey who paid property taxes on that account, and the registration in Jersey of contracts of sale relating to real property in the Minquiers. These various facts showed that Jersey authorities had, in several ways, exercised ordinary local administration with respect to the Minquiers during a long period of time and that, for a considerable part of the 19th and 20th centuries, British authorities had exercised State functions in respect of this group. The French Government alleged that (i) since 1862, the French Government had assumed the sole charge of the lighting and buoying of the Minquiers, and (ii) French officials had made various official visits to the Minquiers and a house had been erected on one of the islets with a subsidy from the Mayor of Granville, in continental Normandy in 1939. The Court found that the facts invoked by the French Government were insufficient to show that France had a valid title to the Minquiers. Particularly regarding the above-mentioned facts from the 19th and 20th centuries, such acts could hardly be considered as sufficient evidence of the Government’s intention to act as a sovereign over the islets. Nor were those acts of such a character that they could be considered as involving a manifestation of state authority. With regard to the Ecrehos, the Court held the view that the King of England exercised his justice and levied his rights in these islets. From the beginning of the 19th century, the connection became closer again, because of the growing importance of an oyster fishery. The court attached probative value to various acts relating to the exercise by Jersey of jurisdiction and local administration and to legislation, such as criminal proceedings concerning the Ecrehos, the levying of taxes on habitable houses or huts built in the islets since 1889, and the registration in Jersey of contracts dealing with real estate on the Ecrehos. In a note to the Foreign Office of December 15, 1886, the French Government claimed for the first time sovereignty over the Ecrehos. Appraising the relative strength of opposing claims in the light of these facts, the Court found sovereignty over the Ecrehos belonged to the United Kingdom.13

VII. The Duty of States to Settle Disputes by Peaceful Means Before concluding my paper, I would like to point out the duty of States to settle their international disputes by peaceful means.

13

Id. at 67.

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The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations14 declares as follows: “States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.” It also states: “The parties to a dispute have the duty, in the event of failure to reach a solution by any one of the above means (negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice), to continue to seek a settlement of the disputes by other peaceful means agreed upon by them.” The Manila Declaration on the Peaceful Settlement of International Disputes15 affirms that every state shall settle its international disputes exclusively by peaceful means. The Manila Declaration further states: In the event of failure of the parties to a dispute to reach an early solution by any of the above means of settlement, they shall continue to seek a peaceful solution and shall consult forthwith on mutual agreed means to settle the dispute peacefully. States should, without prejudice to the right of free choice of means, bear in mind that direct negotiations are a flexible and effective means of peaceful settlement of their disputes. When they choose to resort to direct negotiations, States should negotiate meaningfully, in order to arrive at an early settlement acceptable to the parties.

For a peaceful settlement of a dispute, first of all, thorough discussions and negotiations based on historical facts selected from the above mentioned legal point of views between peoples and governments of both countries are necessary. When this is done, it becomes clear which party “relies solely on an uncorroborated assertion of sovereignty, on geographical propinquity and on the alleged statements of certain unidentified person.”16 We have a bright future before us. I strongly believe that Japan and Korea could settle their dispute over Dokdo (Takeshima) by peaceful means in the near future.

14 15 16

U.N.G.A. Res. A/RES/2625 (XXV), Oct. 24, 1970. U.N.G.A. Res. A/RES/37/10, Nov. 15, 1982. Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, Judgment, 2001 I.C.J. 40, 80 para. 128.

Chapter VIII Okinotorishima: A “Rock” or an “Island”? Recent Maritime Boundary Controversy between Japan and Taiwan/China Yann-huei Song I. Introduction In 1987, it was reported that Japan had begun construction of defensive facilities surrounding Okinotorishima1 in order to protect it from submersion caused by wind and water erosion. In January 1988, after reading news reports, Professor Jon Van Dyke of the University of Hawaii at Manoa, William S. Richardson School of Law, wrote a letter published in the New York Times stating that: “Okinotorishima – which consists of two eroding protrusions no larger than king-size beds – certainly meets the description of an uninhabitable rock that cannot sustain economic life of its own. It is not, therefore, entitled to generate a 200-mile exclusive economic zone.”2 Supporters of Okinotorishima, however, maintain that it conforms to the description of an “island” in Article 121 paragraph 1 of the 1982 United Nations Convention on the Law of the Sea,3 and thus they claim that it is entitled to generate

1

2

3

Okinotorishima, in Japanese 沖ノ鳥島, was formerly called Parece Vela (Portuguese or Spanish for “it looks like a sail”) or Douglas Reef (named after the British navigator John Meares’ subordinate officer William Douglas in 1789). For more information, visit Wikipedia, the Free Encyclopedia, available at http://en.wikipedia.org/wiki/Okino_Torishima. Jon Van Dyke, Letter to the Editor, Speck in the Ocean Meets Law of the Sea, N.Y. Times, Jan. 21, 1988, at A26. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (1982), 1833 U.N.T.S. 397, reprinted in Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, U.N. Sales No. E.97.V.10 (1997). As of September 2008, it has 157 contracting parties. For the text of the Convention, visit the United Nations website, available at http://www.un.org /Depts/los/. For status of the Convention, visit http://www.un.org/Depts/los/convention_agreements/convention_ overview_convention .htm.

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a 200-nautical mile (n.m.) exclusive economic zone (EEZ) and a continental shelf. Japan has carried out a variety of actions, such as drawing up plans to build a lighthouse, constructing surveillance radar, fostering coral reefs, opening a fishing station, establishing a domicile (on paper only), establishing official address plaques, promoting ocean data surveys, banishing foreign fishing vessels or survey boats, and so on. The main objective of these measures is to maintain the “island” status of Okinotorishima as well as to give credence to the claim that sets the 200-n.m. EEZ around Okinotorishima. Starting in 2004, China began raising questions concerning the legal status of Okinotorishima and the Japanese claims regarding sovereign rights and jurisdiction in the waters surrounding this feature. China argues that because Okinotorishima does not sustain human habitation or economic life of its own, according to Article 121 paragraph 3 of the Law of the Sea Convention, it cannot have a 200-n.m. EEZ or a continental shelf. In July 2005, Taiwan also raised questions against Japan concerning the legal status of Okinotorishima, and, mirroring China’s viewpoint, Taiwan took the position that Okinotorishima’s 200-n.m. EEZ is insupportable in light of the relevant international legal regulations. On October 8, 2005, a Taiwanese registered fishing boat, Long Rong No. 2, was detained by a Japanese Coast Guard patrol boat at 22°30’3’’ N and 136°14’9’’ E (close to Japan’s Okinotorishima) for fishing in the Japanese-claimed EEZ. On October 11 of the same year, after the fishers deposited financial securities in the amount of 4,083,000 Japanese Yen into the designated account in Japan, Long Rong No. 2 was released. After this incident, Taiwan’s fishing industry officials lodged complaints against Japanese law enforcement measures, because they considered Okinotorishima completely uninhabited and thus incapable of generating a 200n.m. EEZ. At the same time, they supported the idea of filing of an international lawsuit regarding this incident.4 The main purpose of this paper is to discuss, from an international law viewpoint, the legal status of Okinotorishima, which is currently uninhabitable and unable to sustain economic activity. In particular, this paper is concerned with answering the question whether this islet enjoys the right to claim a 200-n.m. EEZ and a continental shelf. According to Article 121 paragraph 3 of the Law of the Sea Convention, if Okinotorishima cannot sustain human habitation or economic life of its own, then Japan’s behaviours such as banishing, arresting, detaining and then imposing fines on Taiwanese fishing boats in the waters surrounding Okinotorishima, which should be treated as high seas, is a violation of existing international law. On the other hand, if Japan can prove that Okinotorishima is an “island,” then its right to generate a 200-n.m. EEZ and a continental shelf can-

4

The Incident of Okinotori, Fishermen’s Anti-Japanese Signature, Yam News (P.R.C.), available at http://yam.udn.com/yamnews/daily/2981207.shtml (in Chinese).

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not be limited by the application of Article 121 paragraph 3 of the Law of the Sea Convention, and the rights of Taiwanese fishing boats to operate in the maritime zone of Okinotorishima will be forfeited. The structure of this paper is as follows: after the introduction, the second section will give a background on the history and geography of Okinotorishma; the third section will explain the importance of Okinotorishima; section four outlines the principal reasons why official disputes have arisen in the arena of East Asian international politics and foreign affairs; section five explains Japan’s claim for special laws for Okinotorishima, detailing how Japan has adopted various methods for maintaining the reefs above the waterline and strengthening the status of the island, in order to support the claims that Okinotorishima can enjoy an EEZ and a continental shelf; the sixth section looks at international law and international legal scholars’ analysis of Japan’s position; finally, in the conclusion, the author will offer a personal commentary on the legal validity of Japan’s actions in expelling and detaining Taiwanese fishing boats that are found operating in the waters surrounding Okinotorishima in the Pacific Ocean.

II. History and Physical Geography of Okinotorishima According to Japanese documents, Bernardo de la Torre, a Spanish sailor, first discovered Okinotorishima in 1643. He had discovered the islet during an expedition in the northern Pacific Ocean, naming it Abre Ojos, which translates as “open the eyes.” Another more plausible story of the discovery of the islet comes from 1665, when Miguel Lopez de Legazpi, another Spanish explorer called it Parece Vela, which translates as “looks like a sail.”5 In 1789, William Douglas, a ship captain under the English navigator John Meares, saw the coral reef of Okinotorishima on a journey from North America to mainland China, and subsequently, it came to be known as Douglas Reef. Thereafter, Okintotorishima also became known by the names of Parce Vela (Looks Like a Sail) Reef or Douglas Reef. There is no mention of Okinotorishima in Japanese documents prior to 1888. In 1922, the survey vessel Manshu from the Japanese Naval Sea Lane Department (the forerunner of the current Coast Guard Maritime Intelligence Department) paid its first visit to Okinotorishima. Japan did not claim sovereignty over Okinotorishima, however, until 1931. In July of that year, in Official Decree No. 163 of the Japanese

5

See Ryo Hasegawa, The Secrets of Okinotorishima (¢望夢樓Õ/¢幻想諸島航海記Õ), first published July 6, 2002; updated Sept. 29, 2005, available at http://homepage3.nifty.com/boumurou/ island/sp01/ (in Japanese). See also Andrew Sharp, The Discovery of the Pacific Islands 39 (Oxford: The Clarendon Press, 1960), available at http://homepage3.nifty.com/boumurou/island/ sp01/.

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Ministry of the Interior, the name of the islets were changed from Douglas Reef or Looks Like a Sail Reef, to Remote Bird Islands (i.e., Okinotorishima), and they were placed under the jurisdiction of Tokyo-fu (now Tokyo prefecture) as part of the Ogasawara sub-prefecture.6 This Claim of territorial sovereignty over Okinotorishima was controversial in Japan in the early 1930s, mainly because this reef system was nearly completely submerged by water at high tide. In addition, despite Okinotorishima being called the Remote Bird Islands, no sea birds have ever been discovered there, and there is no clear historical explanation for this name.7 The actual location of Okinotorishima is 20º25’ N 136º05’ E, 1,700 kilometers south of Tokyo, 910 kilometers from Chichi-jima of the Ogasawara Islands, 1,100 kilometers from Naha, Okinawa, and 720 kilometers from Iwo-Jima. It is Japan’s most southerly tropical territory and its only territory situated south of the Tropic of Cancer. Japanese scholar Tayama Risaburo (田山利三郎) has described Okinotorishima’s geological structure as an “almost table reef.” It is not an atoll, because an atoll contains a lagoon, whereas Okinotorishima has a flat table reef in the center.8 Okinotorishima has a slender elliptical shape and is aligned in an east to west direction, extending 4.5 kilometers from east to west, 1.7 kilometers from north to south, with a circumference of 11 kilometers. The depth of the water around Okinotorishima is approximately three to five meters. In the 1930s, before the tides rose, the elliptical sea area surrounding Okinotorishima displayed six rock reefs above the water (in Japanese known as “exposed rocks”), but by 1952, only five remained. Between March 1937 and May 1938, the Southern Islet (Minamikojima) disappeared because of the rising tide, making the Eastern Islet (Higashikojima) and the Northern Islet (Kitakojima) the only two reefs visible. The Eastern and Northern Islets, despite their names, are located rather towards the west of the elliptical area of Okinotorishima. The Eastern Islet is normally visible 90 centimeters above the surface of water, and the Northern Islet is usually visible one meter above the water’s surface. However, at the highest tide, the Northern Islet is visible only 16 centimeters above the water, and the Eastern Islet only six centimeters. Japan has currently changed the names from “Eastern Exposed Rock” and “Northern Exposed Rock” to Eastern Islet and Northern Islet.9

6

7

8 9

Id. The zip code for Okinotorishima is 100–2100. The address for Kitakojima (Northern Islet) is No. 1, Okinotorishima; for Higashikojima (Eastern Islet) is No. 2, Okinotorishima. See Immagini Relative Ai Miei Messaggi, Per Il Forum Filatelia e Francobolli 64 (Italy), available at http://www.cifr.it/forum64.html (in Italian). Hasegawa, supra note 5, at 5. Japan Spent Lots of Money to Develop and Construct Okinotori Reef for the Purpose of Expanding Boundary of Maritime Territory, LongHoo Net (P.R.C.), available at http://mil.longhoo.net/n5686c41 .aspx (in Chinese).

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According to Japanese research, Okinotorishima has sunk 13 meters over the last 125,000 years, and is sinking, on average, another centimeter every year. To counter this phenomenon, in 1987, Japan began constructing an embankment around these islets, encasing in concrete those parts of the islets above the surface water to prevent Eastern Islet and Northern Islet from being completely submerged. Japan has also constructed an observation structure on the west side of Okinotorishima.

III. The Importance of Okinotorishima Okinotorishima truly lives up to its description as an incredibly barren place, completely unsuitable for human habitation and unable to support economic activity. However, Japan has gone through a lot of trouble, spending substantial amounts of money on preventing the features from being completely submerged by the sea. Japan has used various methods to make Okinotorishima into an “island” rather than a reef, and is seeking ways to promote the development of a fishing industry and other types of economic activity. Why would Japan do this? The reasons are very simple. Japan wants to increase its maritime territory, its maritime political, economic, and legal rights, and its influence on foreign affairs, and shore up its strategic interests. Under international law, a country cannot claim sovereignty over land submerged by the sea. In addition, according to the international legal principle of “the land dominates the sea,” if a country does not have sovereignty over land territory, it cannot claim sovereignty, sovereign rights, or jurisdiction over the maritime zone extending from that land to the ocean.10 Thus, Japan cannot claim sovereignty once Okinotorishima is submerged by the sea. Moreover, Japan cannot claim the 12-n.m. territorial sea, the 24-n.m. contiguous zone, the 200-n.m. EEZ, and the continental shelf. On the other hand, if Okinotorishima is a “naturally formed area of land, surrounded by water, which is above water at high tide,” as stated in Article 121 paragraph 1 of the Law of the Sea Convention, Japan at least has the right to claim the 12-n.m. territorial sea and the 24-n.m. contiguous zone around the Northern and Eastern Islets of Okinotorishima. Japan would enjoy sovereignty within the 12-n.m. territorial sea of Okinotorishima, and within this territorial sea, other countries would have only the right of innocent passage.

10

See North Sea Continental Shelf Cases (F.R.G./Den.; F.R.G./Neth.), 1969 I.C.J. 3 (Judgment of February 20) and Case Concerning the Continental Shelf (Tunis./Libya/Arab Jamahiriya), 1982 I.C.J. 18, reprinted in 21 I.L.M. 225 (1982). See also Mark B. Feldman, The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise?, 77 Am. J. Int’l L. 219, 230–32 (1983).

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In the event that Article 121 paragraph 3 of the Law of the Sea Convention were found not to apply to the Northern and Eastern Islets of Okinotorishima, Japan would have the right to claim the 200-n.m. EEZ and the continental shelf. In such case, Japan’s “blue territory” would increase by 400,000 square kilometers. This new territory would account for about one-tenth of Japan’s total EEZ,11 and is larger than Japan’s entire landmass of 380,000 square kilometers.12 Within this enlarged “blue territory” or “maritime territory,” Japan has the right to claim sovereign rights over the living and non-living marine resources including fish, oil and gas, gas hydrate resources, and jurisdiction over the building and use of artificial islands and reefs, facilities and structures, as well as marine scientific research and the preservation and protection of the marine environment.13 Apart from maritime territory and the associated maritime economic rights, it is noteworthy that Okinotorishima is important to navigation and marine transportation strategies as well as to the development of China-Taiwan-Japan triangular political relationship. As Okinotorishima is situated midway between Taiwan and Guam, it is very close to the Shanghai-Sydney-Wellington shipping route, and if this rock is built up into an “island,” Japan will be able to profit economically by providing military and civilian vessels with berths and supplies. In addition, a 200-n.m. EEZ for Okinotorishima would enable Japan to widen its sphere of influence in the Western Pacific Ocean. Furthermore, when a dispute arises with Taiwan over maritime rights near Okinotorishima, Japan would be able to play this card to impede China’s policies toward Japan and Taiwan. Militarily, Okinotorishima is of great strategic importance because of its proximity to Guam, Saipan, the Philippines, and Taiwan. It would not be as easily invaded as Iwo-Jima Island, and has particular military value for controlling Taiwan’s eastern seaboard. In times of trouble, it could become Japan’s advance base of operations. Japan has already constructed one observation station in Okinotorishima’s interior reef, and actively plans to construct a power station and a monitoring radar capable of conducting surveillance on vessels within a 20-kilometer radius around Okinotorishima. Clearly, it is quite possible that Japan could make a serious attempt to build Okinotorishima into a large artificial island. In sum, Okinotorishima is important to Japan for the following reasons: it provides a possible basis for the expansion of Japan’s maritime territorial sovereignty, could provide Japan with greater maritime economic profits, could expand Japan’s maritime naval strategic space, and could help Japan become a leading power in the

11

12

13

The information can be found in Wikipedia, the Free Encyclopedia, available at http://en.wikipedia .org/wiki/Exclusive_economic_zone. For more information, visit U.S. CIA website, available at https://www.cia.gov/library/publications/the-world-factbook/index.html. Law of the Sea Convention, supra note 3, arts. 56 and 77.

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Pacific Ocean.14 Japan believes that China places importance on Okinotorishima because of its strategic importance in military operations related to its location between the Ryukyu Islands and the Ogasawara Islands, the Marianas, Guam, and Hawaii.15 Japan also believes that one of China’s primary interests in carrying out maritime scientific work at Okinotorishima is to investigate submarine routes.16

IV. The Okinotorishima Dispute Appears on Stage Japan’s attempts to transform the status of Okinotorishima from an uninhabited reef into an island capable of supporting economic activity will be explained in Section V. Here, it should be pointed out that although Japan began active constructions of wave breakers and concrete embankments to prevent the submersion of the Northern and Eastern Islets in the late 1980s, this action did not raise protests from other countries. Similarly, in 1996, when Japan promulgated its law for exclusive economic zones and continental shelves,17 there were no queries raised from other countries regarding the inconsistency between Japan’s domestic law and international law. Two years after the Japanese EEZ announcement, Japan and its neighbors, China in particular, started to have disputes over fishing rights, the outer boundary of EEZ, rights to explore and exploit marine resources in the overlapping maritime zones, and jurisdiction over maritime scientific research activities in the claimed EEZ. The main reason for the rise of these legal disputes was that after China passed its EEZ and continental shelf law in 1998,18 Beijing started actively carrying out investigations of maritime resources in the East China Sea and the Pacific Ocean. These investigations included hydrological surveys for military purposes, and exploration and research of oil, gas, and manganese nodule mineral deposits outside the outer limit of the 200-n.m. continental shelf. 14

15

16

17

18

Wong Hain Song, What Does the Okinotorishima Incident Tell?, People’s Daily (P.R.C.), June 21, 2006, available at http://world.people.com.cn/GB/1030/3484039.html (in Chinese). Chu Fong Lan, Japan Spent a Lot to Build and Develop Okinotorishima for the Purpose of Expanding Boundary of Maritime Territory, LongHoo Net (P.R.C.), Oct. 15, 2005, available at http://mil.longhoo.net/ n5686c41.aspx (in Chinese). See Wikipedia, the Free Encyclopedia, available at http://ja.wikipedia.org/wiki/沖ノ鳥島; and Planning National Strategies – Resources and Energy, The Daily Yomiuri (Japan), Apr. 30, 2005. See Ishihara Urges U.S. to Contain China Economically, Mainichi Daily News (Japan), Nov. 4, 2005; and China’s Forces Killed Own People in 1937 Nanjing Massacre: Ishihara, Jiji Press Ticker Serivce ( Japan), Nov. 4, 2005. See Japan’s Law on the Exclusive Economic Zone and the Continental Shelf, art. 1(1), Law No. 74 (1996). For the Chinese maritime legislation and possible disputes between China and its neighboring countries, see Yann-huei Song & Zou Keyuan, Maritime Legislation of Mainland China and Taiwan: Developments, Comparison, Implications, and Potential Challenges for the United States, 31 Ocean Dev. & Int’l L. 303–45 (2000).

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In August 2000, Japan accused China of more than 17 unannounced movements by navy or survey vessels into waters that it considered within its EEZ.19 Subsequently, the number of incursions by Chinese scientific observation vessels or hydrological survey vessels increased, as did the number of disputed incursions into waters claimed by Japan, leading to both parties signing an agreement in 2001, stipulating that two months’ prior notice must be given before scientific observation vessels enter into the other party’s EEZ. It is worth noting that prior to 2003, Chinese maritime scientific vessels operated mostly in the East China Sea, and the Sea of Japan. After 2003, Chinese maritime scientific observation vessels started entering Japan’s southeast Pacific zone to carry out survey activities, precipitating new maritime disputes between China and Japan. In August 2003, Japanese media reported that a Chinese maritime survey vessel, Xiangyang Hong No. 9, had entered the Japanese EEZ around Iriomote Island, Okinawa prefecture. The Japanese government considered this survey activity a violation of the prior notification agreement reached by both parties in 2001, because, although China had initially announced that the survey activities of Xiangyang Hong No. 9 would be carried out in the East China Sea, the Japanese Maritime Self-Defense Force had discovered the vessel carrying out survey activities on the Pacific side of Japan’s claimed EEZ. In light of this incident, the Japanese Ministry of Foreign Affairs requested China either to stop this vessel from carrying out survey activities, or to have it return to its original maritime zone. In addition, the Japanese Ministry of Foreign Affairs also pointed out that in June 2003, a Chinese naval ice-breaker/intelligence-gathering vessel, Haibin No. 723, also entered Japan’s EEZ to carry out survey work.20 In March 2004, Japan again protested when the Chinese maritime survey vessel, Dongfanhong No. 2 entered the claimed Japanese EEZ of Minamidaitojima, approximately 310 kilometers south of Japan, to carry out survey work. Japanese news reports stated that on February 29, 2004, and from March 2 to 4 of that year, Dongfanhong No. 2 had entered the maritime zone of Okinotorishima and carried out surveys. On February 17, 2004, the Dongfanhong No. 2 was positioned near the maritime zone of Nishinoshima.21 In addition, in March 2004, a Japanese Defense Department official pointed out that in 2003, Chinese maritime survey vessels had entered Japanese EEZs eight times. These surveys increased in 2004, with 11 incidents involving Chinese maritime survey vessels entering into Japanese-claimed EEZs being recorded as of March 8, 2004. Japan believed these

19 20

21

Japan, China Agree to Resolve Disputes Later, The Hindu, Sept. 1, 2000. See China’s State Oceanic Administration, North China Sea Branch, Chinese Marine Survey Vessel Caused Concern of Japanese Media, Aug. 19, 2003 (in Chinese). Japan Expresses Concern over Chinese Ship Entering Exclusive Zone, BBC Worldwide Monitoring, Mar. 8, 2004.

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surveys were not only related to seabed mineral resources, but also possibly related to hydrographic information about submarine routes.22 On April 22, 2004, when Chinese and Japanese maritime security officials met in Beijing for two-party negotiations, both parties discussed the incidents of China’s maritime survey vessels entering Japanese-claimed EEZs. China pointed out that although it had no objection to Japan’s claim of territorial rights to Okinotorishima, it did not agree with the claim of a 200-n.m. zone around it as an EEZ, because Okinotorishima is a “rock,” not an “island.” Moreover, China stated that it regarded half of the 11 so-called incidents reported by Japan as not being in violation of the Law of the Sea Convention, because the area where the maritime survey work was carried out was in the maritime zone around Okinotorishima, not in a legitimate 200-n.m. EEZ.23 In June of the same year, the Japanese media reported that another Chinese maritime survey vessel, Dongfanghong No. 14, carried out survey work in the most southerly section of Okinotorishima’s EEZ without Japanese permission. In this report, Chinese Foreign Affairs spokesperson, Liu Jianchao, reiterated China’s position that Okinotorishima was not an “island,” and that the Chinese maritime survey vessel was not in Japan’s EEZ, and therefore completely legitimate.24 Subsequently, a new maritime dispute over the legal status of Okinotorishima arose between China and Japan, regarding whether a 200-n.m. EEZ and a continental shelf could be claimed according to international law.25 The official viewpoint of China towards Okinotorishima can again be seen in a statement by a Chinese Foreign Affairs spokesperson. On December 10, 2004, Zhang Qiyue, in a statement made at a press conference regarding the issue of Chinese maritime survey vessels entering the vicinity of Okinotorishima’s maritime zone, said: According to Article 121 of the Law of the Sea Convention, rocks cannot be a basis for claiming an exclusive economic zone, and the treaty states: first, islands must be a naturally formed area of land, which is above water at high tide; secondly, rocks that cannot support human habitation or economic activity cannot claim EEZs or continental shelves. These two items are the original text of the treaty and form a

22 23

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China Research Boats Breach EEZ 11 Times, The Daily Yomiuri (Tokyo), Mar. 11, 2004. China’s Argument on Japan Island Unacceptable: Fukuda, Jiji Press Ticker Service, Apr. 23, 2004; China Says Okinotorishima a Mere Rock, Not an Island, The Daily Yomiuri (Tokyo), Apr. 24, 2004. See the statement of Liu Jianchao, spokesperson of Chinese MOFA, at a regular press conference on May 13, 2004, available at http://www.china-embassy.org/chn/FYRTH/t105269.htm. Sino-Japanese maritime disputes also include ownership of Diaoyutai (Senkaku) Islands in the East China Sea, fisheries conservation and management in the East China Sea, and the right to develop oil/gas resources in the East China Sea. The fisheries dispute was settled pursuant to the signing of a fisheries agreement between the two countries in 1997, which entered into force in June 2000. The disputes over the islands and the right to develop oil/gas resources in the East China Sea have become more acute since 2003.

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In March 2005, when Chinese Foreign Affairs spokesperson, Liu Jianchao, was asked at a press conference what viewpoint China would adopt concerning the incident of a Japan survey group landing on Okinotorishima to carry out a survey, he reiterated Zhang Qiyue’s statement.27 This has remained the official Chinese viewpoint until the present. The viewpoint of Japanese officials regarding the “islandization” of Okinotorishima will be outlined in the following section. However, before concluding this section, it must be stated that China and Japan are surveying continental shelves because of the possibility of future disputes over Pacific Ocean seabed mineral and marine living resources, giving Okinotorishima greater significance. In June 2004, the United Nations Commission on the Limits of Continental Shelf held its 13th session. At this session, in a resolution to change the procedural rules, it was decided that for parties to the 1982 Law of the Sea Convention, there would be a ten-year period in which to make submissions to establish the outer limits of their continental shelves beyond 200-n.m. The new deadline for submission was set for May 13, 2009.28 Because China and Japan both ratified the Law of the Sea Convention before 1999, they must provide scientific and technical data in support of their claims for establishing the outer limits of their continental shelves before this deadline.29 Thus, after May 2004, more Chinese maritime survey vessels were seen entering into Japan’s eastern and southern Pacific maritime zones to carry out maritime investigation and survey research work. For more than 20 years since signing the Law of the Sea Convention in December 1982, Japan has maintained that the maritime zones surrounding Okinotorishima, Kita Daito, Minami Daito, Oki Daitojima, Ogasawara Islands, Minamidorishima, and Hachijojima, should be entitled to the sovereign rights over the continental shelves that extend beyond the 200-n.m. outer limits. In June 2002, the Japanese Cabinet Office established the “Continental Shelf Survey Liaison Council” comprised of the Chief Cabinet Secretary; Defense Agency; Ministry of Foreign Affairs; Ministry of Education, Culture, Sports, Science, and Technology; Min-

26

27

28

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For the statement, see People’s Net, Dec. 10, 2004, available at http://www.people.com.cn/GB/ shizheng/1027/3047511.html. Liu Jianchao’s remarks made on Mar. 31, 2005, available at http://www.fmprc.gov.cn/chn /xwfw/ fyrth/1032/t189665.htm. See UN: Commission on Limits of Continental Shelf concludes thirteenth session, M2 Presswire, May 25, 2004. At the end of 2008, 16 Submissions had been filed with the Commission on the Limits of the Continental Shelf. See Oceans and Law of the Sea, Division for Ocean Affairs and the Law of the Sea, available at http://www.un.org/ Depts/los/clcs_new/clcs_home.htm.

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istry of Agriculture, Forestry, and Fisheries; Agency for Natural Resource and Energy; Ministry of Land, Infrastructure and Transport; Japan Coastal Guard; and Ministry of the Environment. In June 2003, under this Liaison Council, a “Continental Shelf Survey Evaluation and Advisory Council” was established, containing marine scientists and international legal experts. In December 2003, the Cabinet Office established a “Continental Shelf Survey Strategy Office.” In August 2004, the “Continental Shelf Survey Liaison Council” was absorbed into the “Ministries and Agencies Concerned with the Continental Shelf Survey and Maritime Resources Liaison Council” with the Deputy Chief Cabinet Secretary as its head, and the “Basic Plan for Drawing the Outer Limits of the Continental Shelf ” was adopted and implemented in several stages. Japan planned to complete its survey for geographical data of continental shelves before December 2007, to classify and sort the collected survey data in 2008, and transmit the completed data to the United Nations’ “Commission on the Limits of the Continental Shelf ” before the May 2009 deadline.30 In its budget, the Japanese government planned to invest 110 billion Yen to be used for the application and surveys for extending the limits of its continental shelf. This included survey expenses of 1.7 billion Yen in the year 2003, 10.4 billion Yen in 2004, increasing to 13 billion Yen in 2005. At the same time, the Japanese government appropriated special funds amounting to 20 billion Yen for construction of an 8000-ton high-performance ocean survey vessel. In February 2004, the “Japanese Continental Shelf Survey Corporation” was established by five large industries, such as the Japan Oil Development Corporation and the New Japan Iron Stock Corporation, to cooperate with the Japanese Coastal Guard’s survey. The Japanese ruling party and opposition also rushed to offer their views and suggestions. From June 2004 to March 2005, the LDP’s Policy Research Council and the Alliance for Promotion of the Continental Shelf Survey successively handed over to the government “Nine Motions for Protecting Maritime Rights and Interests” and “Urgent Motions for Protecting the Maritime Rights and Interests in the East China Sea.” The purposes of these motions were to urge the government to establish a Maritime Rights and Interests Council at the Cabinet level, to establish and carry out strategically significant maritime policies, hasten the rate of progress of the continental shelf survey, and strengthen the defense and surveillance system in the maritime zone around the Senkaku (Diaoyutai) Islands. At the same time, many Japanese academics began researching the issue of extending the limits of the continental shelf from scientific, technological, and international legal viewpoints. A number of research meetings were convened with the United Nations and

30

Japan filed its submission to the Commission on the Limits of the Continental Shelf on Nov. 12, 2008, and updated the submission on Dec. 22, 2008. Available at http://www.un.org/Depts/los/ clcs_new/submissions_files/jpn08/.

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well-known international maritime law specialists, and both parties started planning research for the continental shelf.31 In order to extend seabed resource mining rights, on August 25, 2004, the Japanese government announced in the “Basic Plan of the Delimitation of the Continental Shelf,” that it had decided to invest 100 billion Yen between 2004 and 2009, with the aim of providing the United Nations Commission on the Limits of Continental Shelf with detailed survey data on the Japanese continental shelf before May 2009. According to the Japanese surveys, the area surrounding Okinotorishima is abundant in fishery resources and manganese nodules. Given the fact that Japan has taken actions to explore and develop the potential mineral resources deposited in deep sea areas of the Pacific Ocean, it may logically be concluded that Japan will not be paying less attention to the potentials of Okinotorishima. Japan intends to invest a large sum of money to obtain the EEZ of Okinotorishma, which is larger than the land territory of Japan.

V. Japan’s Actions Regarding Claims for Okinotorishima’s Legal Status and “Islandization” In 1956, the Japanese Diet enacted the “Law on the Territorial Sea,” and in 1977 adopted the “Law on the Territorial Sea and the Contiguous Zone,”32 which stipulated that “[t]he territorial sea of Japan comprises the areas of the sea extending from the baseline to the line 12-n.m. seaward thereof,”33 and “the contiguous zone extended from the baseline to the line 24-n.m. seaward thereof.”34 In June 1996, at the same time that Japan ratified the Law of the Sea Convention, the Japanese parliament also passed the “Law on the Exclusive Economic Zone and the Continental Shelf.”35 This law stipulated that the EEZ comprises the areas of sea extending from the baseline of Japan to the line which is 200-n.m. from the nearest point on the baseline of Japan (excluding the territorial sea) and its subjacent seabed and subsoil.36 According to the definition contained in Article 2(1) of the

31

Id. Law on the Territorial Sea and the Contiguous Zone, Law No. 30 (1977), amended by Law No. 73 (1996), available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ JPN_1996_Law.pdf. 33 Id. art. 1(1). 34 Id. art. 4(2). 35 Law on the Exclusive Economic Zone and the Continental Shelf, Law No. 74 (1996), available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/JPN _1996_Law74 .pdf . 36 Id. art. 1(2). 32

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“Law on the Territorial Sea and the Contiguous Zone,” the baseline is to be the low-water line and the straight line drawn across the mouth of, or within, a bay, or across the mouth of a river.37 The “Law on the Exclusive Economic Zone and the Continental Shelf ” also stipulates that the continental shelf extends from the baseline of Japan to the line, every point of which is 200-n.m. from the nearest point on the baseline of Japan, and comprises the seabed and its subjacent subsoil and the areas of adjacent sea seaward to these areas referred to in Article 2 paragraph 1 as prescribed by the Cabinet Order and in accordance with Article 76 of the Law of the Sea Convention.38 In June 1996, Japan also passed the “Law on the Exercise of Sovereign Rights related to Fisheries within the Exclusive Economic Zone,”39 which was amended in June 2001. The aim of this law was to prevent fishing by foreign fishers in the Japanese EEZ. If foreign fishers are in violation of this law, they will be subject to detention of fishing vessels, arrest of fishing crews, confiscation of catch and fishing tackle and fines.40 Between 1997 and 2000, in accordance with Article 16 paragraph 2 of the Law of the Sea Convention, Japan publicized charts and lists of the geographical co-ordinates of baselines, and deposited copies of these charts with the SecretaryGeneral of the United Nations.41 Because of difficulties in obtaining the document, it was not possible for this author to ascertain whether Japan had deposited its claim concerning the outer limits of the EEZ. However, it is clear that the outer limits of Japanese EEZ are measured seaward 200-n.m. from its baselines. Using normal baselines such as the lower-water lines, instead of the straight baselines, to measure the outer limit of the territorial sea of Okinotorishima, Japan claims an EEZ of 400,000 square kilometer, taking Okinotorishima as the center, with a radius of 200-n.m. For a modern history of the Japanese government’s management of Okinotorishima (from May 1922 to August 2005), the reader can refer to “The Mystery of Okinotorishima,” written in Japanese and available at the website of BOUMUROU

37 38

39

40 41

Japan’s Law on the Territorial Sea and the Contiguous Zone, supra note 32, art. 2(1). Japan’s Law on the Exclusive Economic Zone and the Continental Shelf, supra note 35, arts. 1 and 2 (1996). Law on the Exercise of Sovereign Rights Related to Fisheries within the Exclusive Economic Zone, Law. No. 76 (1996), amended by Law No. 91 (June 29, 2001). Id. art. 4, 18–22. These include: Maritime Zone Notification, No. 14, 1997 (LOS of 6 June 1997), M.Z.N. No. 18, 1997 (LOS of 23 June 1998), M.Z.N. No. 20, 1998 (LOS of 19 Aug. 1998), M.Z.N. No. 21, 1998 (LOS of 30 Nov. 1998), M.Z.N. No. 26, 1999 (LOS of 3 June 1999), M.Z.N. No. 28, 1999 (LOS of 28 June 1999), and M.Z.N. 33, 2000 (LOS of 28 Mar. 2000). See Oceans and the Law of the Sea, Division for Ocean Affairs and the Law of the Sea, Deposit of Charts (updated Nov. 3, 2005), available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ depositpublicity.htm.

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(the Dreamer’s Tower).42 Before World War II, however, the management of Okinotorishima by the Japanese government was largely confined to the construction of a lighthouse in 1939. Because of the commencement of war in the Pacific in December 1941, attempts at building the lighthouse were interrupted seven times. The US administered the island from the end of World War II until 1968, when jurisdiction was returned to Japan, which administered Okinotorishima as part of Ogasawara Village. Subsequently, the Japanese government resumed management of the island with surveys related to communication, foundations for lighthouses, and the fishing industry being carried out on an ongoing basis. In 1970, the Japanese Coast Guard survey vessel, Meiyo (明洋號), was sent to Okinotorishima to carry out surveys. In 1978, the Japanese Science and Technology Agency proposed plans for the construction of weather and oceanic observation bases. In June 1982, the Japanese Coast Guard survey vessel, Takuyo (拓洋號), installed six observation points, with correct longitude and latitude determined by the American naval satellites. In September 1987, Japan convened the first meeting of “Special Reviewing Committee of Urgency and Defense Strategies for Okinotorishima,” headed by Osamu Toyoshima. In September of that year, the survey vessel Koyomaru (航洋丸), constructed by the Center of Land and Technological Development under the former Ministry of Construction, was sent to Okinotorishima to conduct survey work. In April 1988, construction was started on an embankment surrounding the Northern and Eastern Islets in Okinotorishima’s lagoon, with the islets being strengthened with concrete and encased in titanium nets. The main reason for these measures was to prevent the two rocks from being submerged. In addition, a maritime observation station and an unmanned weather monitoring station were constructed on the old foundation of the lighthouse, the construction of which had been abandoned during World War II. In October 1989, the strengthening of the embankment surrounding the Northern and Eastern Islets was completed. Thus, since 1987, Japan has spent 60 billion Yen on Okinotorishima.43 In July of 1993, the foundation for the observation station in Okinotorishima’s lagoon was completed. In 1999, in accordance with Government Orders No. 193–195, the Japanese government handed over administrative jurisdiction of Okinotorishima from Tokyo City to the former Ministry of Construction. After the restructuring of the governmental organizations in 2001, the administrative jurisdiction over Okinotorishima was moved to the Ministry of Land, Infrastructure, and Transport. In 2004, because of the Chinese claim that Okinotorishima is not an “island” but a “rock” under Article 121 of the Law of the

42 43

Hasegawa, supra note 5, at 5. Making Waves: Tokyo’s Governor Says China Has No Right to Explore, The Asahi Shimbun, June 14, 2005.

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Sea Convention and therefore cannot generate a 200-n.m. EEZ, Japan undertook a series of actions aimed at strengthening its interpretation of the legal status of Okinotorishima as an “island,” and able to generate a 200-n.m. EEZ. Towards the end of November 2004, the Ocean Club under the Nippon (Japan) Foundation dispatched an expedition to Okinotorishima for study and observation. In December 2004, Ishihara Shintaro, the governor of Tokyo, stated at a press conference, that in order to support the status of the EEZ surrounding Okinotorishima, the city of Tokyo would cooperate with Ogasawara fishing association in carrying out fishery development activities in waters around Okinotorishima.44 In February 2005, the Japanese Ministry of Foreign Affairs also started to explain its official position regarding the legal status of Okinotorishima. When asked by journalists whether the Ministry of Foreign Affairs supported Tokyo’s plans to establish power facilities on Okinotorishima, Hatsuhisa Takashima, the spokesperson for the Ministry, replied: The Ministry of Foreign Affairs has no jurisdiction over the Okinotorishima Island because it is the territorial island of Japan. All those domestic issues are handled by appropriate government agencies. My understanding is that Governor of Tokyo, Shintaro Ishihara, presented his ideas, including the construction of electric power generators using waves, and other plans regarding the fishing industry in Okinotorishima. We are not in a position to discuss it any further.45

The same month, the Ministry of Foreign Affairs made clear the Japanese official view regarding the status of Okinotorishima, stating that Okinotorishima was to be regarded as an “island” according to Article 121 paragraph 1 of the Law of the Sea Convention. After ratifying the Convention, Japan submitted its domestic laws related to territorial sea to the UN Secretary-General in 1997, in which Okinotorishima is treated as an island. No country has challenged these documents. Moreover, according to Japan, the criteria regarding human habitation or economic life as provided in Article 121 paragraph 3 of the Law of the Sea Convention are for the purpose of determining whether or not rocks can have an EEZ or a continental shelf, not for the purpose of defining which of those rocks should be treated as islands. Accordingly, no foreign country has the right to interfere with the question concerning the nature of land territory that belongs to other counties. The Japanese Ministry of Foreign Affairs further charged that a vessel of a certain country (namely China) had repeatedly trespassed into the waters in the Pacific which are subject to Japan’s jurisdiction, particularly in the waters around Okinotorishima.

44 45

Id. See The Ministry of Foreign Affairs of Japan, Press Conference 1 (Feb. 2005), available at http:// www.mofa.go.jp/announce/press/2005/2/0201.html.

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These intruding acts violated the EEZ law of Japan.46 At the beginning of March 2005, Ministry of Foreign Affairs spokesperson, Hatsuhisa Takashima, in response to the question of whether the government of Japan had a plan to construct a lighthouse on Okinotorishima, stated that although the ministries and agencies within the Japanese government, along with the Tokyo Metropolitan Government, had been discussing plans and projects to further utilize Okinotorishima economically, no decisions had yet been made.47 Based on the aforementioned explanations made by Japan’s Ministry of Foreign Affairs, it is clear that Japan believes Okinotorishima to be an “island” in accordance with Article 121(1) of the Law of the Sea Convention, and thus to have the right to generate a 200-n.m. EEZ. At the beginning of April 2005, fishing vessels were chartered by the Fishermen’s Association of Ogasawara Island under the financial support of 500 million Yen, provided by the Tokyo metropolitan government for the year 2005, to conduct fishing activities in the waters around Okinotorishima. The main purpose of these fishing operations is to support the Japanese claim that Okinotorishima has the right to claim a 200-n.m. EEZ.48 In the middle of May 2005, 122 Japanese were registered as being domiciled at Okinotorishima.49 On May 20, 2005, Tokyo Governor Ishihara himself toured Okinotorishima to inspect the conservation and management efforts, went snorkeling to see firsthand the condition of the surrounding waters, and released Japanese horse mackeral fry to show support for the local fishing industry. In addition to waving the national flag of Japan on the islet, he also kissed an official address plaque saying, “1 Okinotori Island, Ogasawara Village, Tokyo” in Japanese.50 In August 2005, Japan’s Coast Guard decided to build a lighthouse on Okinotorishima for the purpose of “islandization, ”and in support of Japan’s claim for an EEZ surrounding it.51 In August 2005, Japan’s Fisheries Agency asked the government for 400 million Yen to research coral reefs in the

46

47

48

49

50

51

See The Ministry of Foreign Affairs of Japan, Press Conference 18 (Feb. 2005), available at http:// www.mofa.go.jp/announce/press/2005/2/0218.html. See The Ministry of Foreign Affairs of Japan, Press Conference 11 (Mar. 2005), available at http:// www.mofa.go.jp/announce/press/2005/2/0311.html. Tough-talking Ishihara Sends Fishing Boat to Disputed Islands, Mainichi Daily News ( Japan), Apr. 12, 2005. 44 Japanese Registered Disputed Islands as Domicile of Origin, Japan Economic Newswire ( Japan), May 17, 2005. See Governor Takes Trip, The Statesman (India), May 21, 2005; Governor Visits Islet to Assert National Claim, Los Angeles Times, May 21, 2005; Mr. Notorious Seeks Olympic Boycott and Little Local War, The Times (London), June 1, 2005; and Japan: Japan Signals Ownership of Disputed Islets, Ottawa Citizen, June 21, 2005. Lighthouse Planned for Disputed Isle, The Daily Yomiuri (Tokyo), Aug. 25, 2005.

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area surrounding Okinotorishima.52 Moreover, Japan has taken actions to expel foreign fishing vessels that are found in the claimed EEZ around Okinotorishima. In October 2005, Japan seized the Taiwanese fishing boat Long Rong No. 2, releasing it only after the fishers’ families paid a 4.08 million Yen bond. This incident raised questions about the legality, under international law, of the Japanese acts in the claimed EEZ around Okinotorishima against foreign fishing vessels that have the right to operate in the waters considered high seas.

VI. Can Rocks Have an EEZ or a Continental Shelf under the International Legal Regime of Islands? In the progressive development of international law, the establishment of the legal regime concerning islands began in 1930 when the League of Nations convened the Codification Conference at the Hague. Thereafter, the establishment of a legal regime for islands was successively discussed at the First United Nations Conference on the Law of the Sea in 1958, at the UN Sea-Bed Committee between 1972 and 1973, and at the Third United Nations Conference on the Law of the Sea between 1974 and 1982.53 According to the Final Act of the 1930 League of Nations Codification Conference, an island was defined as “an area of land, which is permanently above high-water mark.”54 However, French legal scholar B. Gidel gave another definition of an island. In his opinion, an island “is a natural elevation of the sea-bed, surrounded by water, which is above high-tide and the natural conditions of which permit the stable residence of organized groups of human beings.”55 In addition, D.H.N. Johnson also proposed that “mere pin-point rocks” should not be regarded as islands, because they are not visible at surface above the sea under normal weather conditions.56 In 1958, the Geneva Convention on the Territorial Sea and Contiguous Zone57 did not include the suggestions of legal scholars regarding the two requirements for an area of land to be treated as islands, namely, the size and human habitation. 52

53

54 55

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Japan to Research Coral Reefs near Islets at Center of Dispute with China, Associated Press Worldstream, Aug. 31, 2005. Jon M. Van Dyke & Robert A. Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources, 12 Ocean Dev. & Int’l L. 265, 271 (1983). Id. at 272. 3 B. Gidel, Le Droit International Public de la Mer 684 (1934), cited in Alfred Soons, Artificial Islands and Installations in International Law, Law of the Sea Inst. Occasional Paper No. 22, 18 (1974). D.H.N. Johnson, Artificial Islands, 4. Int’l L.Q. 203, 205 (1951), cited in Van Dyke & Brooks, supra note 53, at 273. The Geneva Convention on the Territorial Sea and Contiguous Zone, held at Geneva on Apr. 29, 1958 and entered into force on Sep. 10, 1964, 516 U.N.T.S. 205.

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As a result, an island is defined in Article 10 paragraph 1 of the Geneva Convention on the Territorial Sea and Contiguous as “a naturally-formed area of land, surrounded by water, which is above water at high-tide.”58 At the third Law of the Sea Conference, the Pacific Island nations, Greece, Romania, Turkey, and a number of African nations, submitted different draft proposals regarding the regime of islands according to their specific geographical circumstances.59 In order to reach consensus, the chair adopted the relatively ambiguous definition of an island as used in Article 10 paragraph 1 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, but added a special regulation, which states that, “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”60 Part VIII of the Law of the Sea Convention has only one article, Article 121, regarding the Regime of Islands, which states: 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

This ambiguous language has led to difficulties in interpretation. In 1979, S.H. Amerasinghe, then President of the Law of the Sea Conference, noted that the regime of islands, should be the subject of further negotiation and discussion. However, because pressure was being felt to complete the text, many participating states believed that Article 121 of the Law of the Sea Convention was consistent with their national interests. Thus, there was no further discussion on the regime of islands at the Conference after 1980, and the definition of an “island” and a “rock” remained ambiguous.61 The Law of the Sea Convention was adopted after lengthy negotiation and discussion in December 1982, and entered into force on November 16, 1994. As of September 2008, the Law of the Sea Convention had 157 parties. How should we decide which interpretation of the ambiguous Article 121 regarding the Regime of Islands is correct? It is suggested here that this Article should be interpreted in accordance with the purpose of the adoption of the Law of the Sea Convention, the legal meaning and implication of the text of the Article in question, state prac58 59 60 61

Id. art. 10(1). For more discussions, see Van Dyke & Brooks, supra note 53, at 280–82. Law of the Sea Convention, supra note 3, art. 121(3). Van Dyke & Brooks, supra note 53, at 282.

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tice, relevant international judicial decisions, and the opinions of the most highly qualified international legal scholars of various nations. 1. The Purpose for Adopting the Law of the Sea Convention Jon M. Van Dyke and Robert A. Brooks have explained that Article 121 of the Law of the Sea Convention should be interpreted according to Article 31 of the 1969 Vienna Convention on the Law of Treaties, which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”62 Because the purposes for establishing coastal EEZs cannot justify claims to EEZs around uninhabited islands situated far away from their coasts, Van Dyke and Brooks have argued that it is not consistent with the main purpose for adopting the Law of the Sea Convention for remote rocks or reefs to generate extended maritime zones. Accordingly, only if stable communities of people live on the island and use the surrounding ocean areas, can islands generate ocean space, such as an EEZ or a continental shelf.63 International legal scholars such as

62

63

The 1969 Vienna Convention on the Law of Treaties, held at Vienna on May 23, 1969, entered into force on Jan. 27, 1980, United Nations Treaty Series Vol. 1155 at 331, available at http:// untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. Article 31 of the Convention provides: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. See Van Dyke & Brooks, supra note 53, at 286.

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Ely,64 Pardo,65 Gidel,66 and Hodgson67 hold similar views. Other legal scholars have pointed out the existence of a conflict of interests at the Law of the Sea Conference between the states that stressed the need to protect humankind’s common heritage in the ocean beyond national jurisdiction and those coastal states that sought to expand the scope of coastal ocean space to maximize their national jurisdiction and interests. The ambiguous language in Article 121 could be considered to be a victory for those coastal states concerned more about the expansion of their own ocean space and the maximization of their maritime interests.68 2. Legal Implications of the Wording of Article 121 of the Law of the Sea Convention Article 121 of the Law of the Sea Convention is concerned with the legal regime of islands. The Law of the Sea Convention also contains codification of the existing customary rules of international law, which include the rights and obligations of the coastal and third states in the adjacent coastal waters. But the three paragraphs of Article 121 of the Law of the Sea Convention do not completely have customary international law properties. Article 121 paragraphs 1 and 2 stipulate the definition and regulations that regard islands as having territorial seas and contiguous zones. These two paragraphs should be considered customary law because of the observation of state practices after the adoption of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, in which most nations accepted being bound by these regulations. Thus, even non-parties to the Law of the Sea Convention are bound by Article 121 paragraphs 1 and 2. However, given that paragraph 3 of Article 121 has not evolved into a rule of customary international law, its application is restricted to the parties of the Law of the Sea Convention. The main reasons for the paragraph not becoming a rule of customary international law are: (1) lack of state practice; and (2) lack of opinio juris.69 64

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Ely stated: “If an island is too small or insignificant to have attracted its owner’s national resources, in terms of population and investments, it is too small to serve as a baseline.” Van Dyke & Brooks, supra note 53, at 286 (citing, Ely infra note 113). Ambassador Pardo argued that the “equity and reasonableness” that justify the allocation of ocean resources to a coastal state simply do not apply where “no population exists.” Van Dyke & Brooks, supra note 53, at 286 (citing, Pardo infra note 112). Gidel attempted to define “habitability” more precisely than others had by stating that to be an “island,” a land formation had to have “natural conditions” that permitted “stable residence of organized groups of human beings.” Van Dyke & Brooks, supra note 53, at 287 (citing Gidel, infra note 110). Hodgson stated specifically that he felt the word “rocks” in Article 121(3) should be defined in terms of whether a land formation is habitable. Van Dyke & Brooks, supra note 53, at 287 (citing Hodgson infra note 111). See, for example, Jonathan I. Charney, Rocks That Cannot Sustain Human Habitation, 93 Am. J. Int’l L. 863, 865–66 (1999). R.R. Churchill & A.V. Lowe, The Law of the Sea 164, (3d ed. 1999); Jonathan I. Charney, id. at 872.

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Article 121(1) of the Law of the Sea Convention should be interpreted in accordance with the international law rules on treaties. Accordingly, for an area of land to gain legal status of islands, the following requirements must be met. First, there must be an area of land. This area must be connected to the seabed, have the property of terra firma, and have a degree of permanence. Thus, once the area of land is submerged by water due to wind, erosion, rising water levels, external explosions or other natural catastrophes, the legal status of the island is lost. In United States v. Alaska (1997),70 Dinkun Sands, situated in northeast offshore area of Alaska, was not considered an area of land and thus unable to generate territorial sea baselines.71 Second, in order to be treated as an island, this area of land must be “naturally formed,” and cannot be an artificial island. However, if this naturally formed area of land undergoes reinforcing works to prevent against erosion and submersion by the sea, this activity does not influence this area of land being treated as an island. An example of this includes the concrete reinforcing work by Iceland to prevent against erosion and flooding by seawater undertaken at Kolbeinsoy Island.72 Clive Symmons believes that preserving an area of land that has island status, and creating an area of land to obtain legal island status are two completely different actions. The former in no sense decreases the legal status of the island.73 However, Professor Jon Van Dyke does not agree with this view, and has suggested that the extensive reinforcement work undertaken by Japan at Okinotorishima could be considered as having changed a reef into an artificial island, which would be unable to claim an EEZ or a continental shelf under Article 60.74 The third requirement for an area of land to obtain the legal status of an island is for it to be “surrounded by water, which is above water at high tide.” Article 10 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone and Article 121(1) of the Law of the Sea Convention both contain definitions of islands, and although neither use the term “permanently” above water, they do use “is above water at high-tide.” Thus, the use of the present tense “is” denotes that the land must be continuously above water at high-tide. In the aforementioned United States v. Alaska (1997), the US Supreme Court pointed out that Dinkun

70 71

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United States v. Alaska, 521 U.S. 1144 (1997). See Yann-huei Song, The Dispute over Drawing Territorial Straight Baselines: An Analysis of the Decision in United States v. Alaska, 33 EurAmerica: A Journal of European and American Studies No. 3 at 629–83 (2003) (in Chinese). Marius Gjetnes, The Legal Regime of Islands in the South China Sea, Master Thesis of Law at 35, Fall 2000, submitted to Department of Public and International Law, University of Oslo. Clive Symmons, Some Problems Relating to the Definition of Insular Formations in International Law: Islands and Low-Tide Elevations, 1 Int’l Boundaries Res. Unit Maritime Briefing No. 5 at 3 (1995). Jon M. Van Dyke, Legal Status of Islands – With Reference to Article 121(3) of the UN Convention on the Law of the Sea at 5, paper presented in Seoul, Korea, Dec. 9, 1999, available at http://www .hawaii.edu/law/faculty/publications/KoreanPaper-Islands12999.htm.

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Sands was not an island because it is often submerged under water at high-tide.75 Although the size of an area of land is relevant for obtaining the legal status of an island, Article 121(1) of the Law of the Sea Convention contains no regulations regarding this. Accordingly, it can be concluded that if an area of land is naturally formed, and is surrounded by and above water at high-tide, it can be regarded as an island. In other words, regardless of the size of the land in question, it only needs to be an area of land that is naturally formed and surrounded by and above water at high tide, to be regarded as an island. Thus whether it is a volcanic eruption, high tide elevation, rock, reef, or atoll, according to Article 121(1), it can be called an island. Under Article 121 paragraph 2 of the Law of the Sea Convention, an island can enjoy a 12-n.m. territorial sea and a 24-n.m. contiguous zone. If this area of land can support human habitation or its own economic activity, according to Article 121 paragraph 3 of the Law of the Sea Convention, then it can claim a 200-n.m. EEZ and a continental shelf. Interpretation of the words of Article 121 paragraphs 1 and 2 of the Law of the Sea Convention does not give rise to much dispute, except for the requirement of an island being above water at high-tide. However, disputes exist over the legal interpretation of paragraph 3 of Article 121, which states that, “[r]ocks, which cannot sustain human habitation or economic life of their own, shall have no exclusive economic zone or continental shelf.” Why so? First, are the “rocks” a subcategory of “islands”? The answer should be obvious. Professor Charney has written that “rocks” visible above water at high-tide can be a type of an island, because if a rock is not an island, then Article 121 of the Law of the Sea Convention does not need to include the third paragraph. Article 121 paragraphs 1, 2, and 3 are all included in Part VIII of the Law of the Sea Convention, which is related to the Regime of Islands. In addition, while under Article 121 paragraph 3, a rock cannot have an EEZ or a continental shelf, it can still claim a 12-n.m. territorial sea and a 24n.m. contiguous zone.76 Churchill and Lowe also point out that every island or rock, regardless of size, has a territorial sea.77 This shows that rocks are a special kind of island. However, no answer can be found regarding the size of the rock to be treated as an island. Nevertheless, if a 200-n.m. EEZ or a continental shelf is being claimed for the rock, then it must be able to “sustain human habitation” or “support economic life of its own.” It is worth noting that Article 121 paragraph 3 of the Law of the Sea Convention uses the word “or,” and not “and.” Thus, if a rock can sustain either human habitation or an economic life of its own, then it can have an EEZ or a continental shelf Now, we turn to the interpretation of the wording, “sustain human habitation.”

75 76 77

Yann-huei Song, supra note 71. Charney, supra note 68, at 864. Churchill & Lowe, supra note 69, at 49.

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Does the use of “human” in the phrase refer to an organized group of people or community? Should the number of the said people be more than ten, one hundred or one thousand? Or would two or three people be enough? Should these people be ordinary people, fishers, miners, soldiers, marine scientists, lighthouse managers, or workers constructing maritime research facilities? As far as the term “habitation” is concerned, should it be habitation year-round, or would seasonal habitation be acceptable? What if the place is currently uninhabited, but people could be living there in the future? Based on the travaux preparatoires at the Law of the Sea Conference, it seems that the requirement of “human habitation” referred to in paragraph 3 of Article 121 does not require that people be permanent residents living on the rock. But how long should the habitation be? Can fishers who live on shelters built on reefs or rocks be counted as habitation? All of the questions raised above remain to be answered. However, a common view is that if a rock or reef has enough food and drinking water, and is suitable for housing, then it meets the requirement of “sustain human habitation” and is therefore entitled to the right to claim a 200-n.m. EEZ or a continental shelf. The other condition to be met for the purpose of excluding the application of Article 121 paragraph 3 is that the rocks in question must be able to support “economic life of their own.” However, this wording is also ambiguous. Does it mean self sustaining, or is some degree of dependency allowed? Should rocks or reefs have their own food and water, and tillable soil? Should they be self-sufficient, or can they depend on supplies transported from afar? Do the living and seabed resources in the maritime zones surrounding rocks count? Can activities related to fisheries, mining, oil and gas development, scuba diving, snorkeling, rock-climbing, whale watching, eco-tourism, setting up lighthouses, weather stations, communication facilities, or tidal monitoring stations, be regarded as “economic life of their own”? Does economic life mean current life, or future life? These questions all lead to difficulties of interpretation and application of Article 121 paragraph 3. More than 20 years ago, researchers suggested that Article 121 of the Law of the Sea Convention related to the Regime of Islands should be revised, especially the two conditions contained in Article 121 paragraph 3 of the Law of the Sea Convention concerning whether rocks can have a 200-n.m. EEZ or a continental shelf.78 Given that all decisions were taken through consensus at the Third Law of the Sea Conference, and that many participating states at the meeting considered first their own maritime interests, the delegates adopted the broad, ambiguous language now found in the text of Article 121 of the Convention, creating difficulties in interpretation. In addition, if parties to the Law of the Sea Convention have disputes over the application of Article 121, it may be difficult to resolve these disputes in accordance with Part XV, Section 2 (Compulsory Procedures Entailing Binding Decisions) of the Law

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of the Sea Convention, because Article 298, Paragraph 1(a)(i) of the Convention provides that: “any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission.” 3. International Judicial Decisions A satisfactory answer cannot be found by referring to the international judicial decisions to help interpret the application of Article 121 of the Law of the Sea Convention, mainly because relevant judgments have dealt with the issue of disputed islands’ roles in, or effect on, maritime delimitation, instead of the legal status of the islands. There are virtually no judicial precedents that have made specific judgments on whether an island in question, in accordance with Article 121 paragraph 3 of the Law of the Sea Convention, can or cannot claim a 200-n.m. EEZ or a continental shelf. Still, the existing judicial decisions of the international courts or tribunals are worthy of consideration to help answer the question of whether or not a rock or a reef can have a 200-n.m. EEZ or a continental shelf. For example, the International Court of Justice in the 1969 North Sea Continental Shelf Cases79 pointed out that “the presence of islets, rocks and minor coastal projections” in the delimitation of continental shelves should be ignored. In other words, this ruling rejected the claim that all islands are entitled to the same ocean space. In 1982, the International Court of Justice in the Tunisia/Libyan Arab Jamahiriya Continental Shelf Case,80 ruled that Kerkennah Island, with an area of 180 square kilometers and a population of 15,000 people, had “half effect” in the delimitation of the boundary between Tunisia’s and Libya’s continental shelves.81 In the 1984 Gulf of Maine Case between the United States and Canada,82 the International Court of Justice ruled that Seal Island, situated south-west of Nova Scotia, should have only a half effect in the maritime boundary delimitation. In 1985, the International Court of Justice in the Libya v. Malta Case, pointed out that based on the principle of equality, Malta’s uninhabited, small Filfla Island would not be taken into account at all in the delimitation of maritime boundaries between the two countries. In addition, although the size of Malta’s main island is 122 square kilometers, containing 350,000 residents, it had only a partial effect in the delimitation of the boundary of a continental shelf, because the Court adjusted the dividing line based on the larger

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For the judgment, visit the ICJ website, available at http://www.icjcij.org/icjwww/idecisions/ isummaries/icssummary690220.htm. See para. 57 of the judgment. For the judgment, visit http://www.icj-cij.org/icjwww/icases/itl/itlframe.htm. Id. para. 129. For the judgment, visit http://www.icj-cij.org/icjwww/icases/icigm/icigmframe.htm.

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coastal area of Libya.83 Also, in 1992, the International Court of Justice in the Case Concerning Land, Island and Maritime Frontier Dispute, El Salvador/Honduras ruled that the islands of El Tigre, Menguera, and Menguerita would have no effect on the maritime delimitation.84 As far as the relevant arbitral cases are concerned, in the 1977 France v. United Kingdom: Arbitration on the Delimitation of the Continental Shelf Case,85 the Tribunal denied the British claim that the Channel Islands could have their own continental shelves. The Tribunal ruled that the inhabited islands of Jersey and Guernsey could claim only a 12-n.m. continental shelf under “special circumstances.”86 The Tribunal further ruled that the existence of other small rocks and islets situated in the Channel Islands should not be taken into account in the maritime delimitation, because they were uninhabited.87 In addition, the Scilly Islands, consisting of 48 small islets, were given only “half effect” in the maritime delimitation, in part because six of these islets were inhabited.88 In the 1985 Case Concerning the Delimitation of the Maritime Boundary between Guinea and GuineaBissau,89 the Tribunal did not take into consideration the role of Alcatraz, a small island belonging to Guinea, in the maritime delimitation.90 Judging from the previously cited international judicial decisions, it is suggested that international courts or tribunals tend not to give small islets or reefs a full effect in maritime delimitation. These cases are all relevant to the overlapping ocean space and the delimitation of their boundaries. Accordingly, once a dispute occurs that is related to the question of the legal status of insular territories and the claim to generate an EEZ or a continental shelf, is it possible to refer to these judicial decisions to resolve the dispute? This remains to be seen. In addition, regarding those disputes that are related to the application and interpretation of Article 121 paragraph 3 of the Law of the Sea Convention, but not relevant to the delimitation of maritime boundary, it might be possible that the international courts or tribunals would rule differently. Nevertheless, because no cases have addressed the application and interpretation of Article 121 paragraph 3 of the Law of the Sea Convention, there still exist

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For the judgment, visit http://www.icj-cij.org/icjwww/icases/ilm/ilmframe.htm. See para. 64 of the judgment. For the judgment, visit http://www.lawschool.cornell.edu/library/cijwww/icjwww/icases/ish/ ish_isummaries/ish_isummary_19920911.htm. See paras. 390–95. Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf, Decisions of the Court of Arbitration dated 30 June 1977 and 14 Mar. 1978, 18 I.L.M. 397 (1979). Id. para. 202. Id. para. 184. Id. para. 227. Case Concerning the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 25 I.L.M. 295 (1986). Id. para. 103, 106–07.

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difficulties in answering the question of whether or not uninhabited islets, reefs, or rocks can have an EEZ or a continental shelf. We therefore turn to the discussion of state practice in next section. 4. State Practices State practice that could possibly involve the application and interpretation of Article 121 paragraph 3 of the Law of the Sea Convention include: the United Kingdom’s Rockall located in the Atlantic Ocean, French Polynesia in the Pacific, Mozambique Channel and Clipperton Islands belonging to France, Fiji’s island of Ceva-i-Ra (also called Conway Island) in the Pacific Ocean, Venezuela’s Aves Island in the Caribbean Sea, Mexico’s Clarion (also called Santa Rosa Islands) of the Revilla Gigedo Islands group and the island of Roca Portida, Iceland’s Kolbeinsoy Island, South Africa’s 12 tiny guano islands off the Namibia coast, Brazil’s St. Peter and St. Paul Rocks, Chile’s Sala y Gomez Island, New Zealand’s Raoul, Chatam, Antipodes Islands of the Kermadec Island group, and L’ Esperance Rock, and Japan’s Okinotorishima.91 Charney has written that the following existing disputes over ownership of islands have the potential to give rise to the legal problem concerning the status of an island and its right to claim a 200-n.m. EEZ or a continental shelf, and therefore the possible application of Article 121 of the Law of the Sea Convention and its interpretation: the Pratas Islands, the Paracel Islands, Scarborough Reef and the Spratly Islands in the South China Sea; the Diao-yu-tai/Senkaku Islands, Danjo Gunto and some of the Ryukyu Islands in the East China Sea; and Dokdo (Takeshima) in the East Sea/Sea of Japan; Abu Musa, the Tumb Islands and the Hawar Islands in the Persian Gulf; the Hanish/ Zuqar Islands, Jabal al-Tayr, and Zubayr Islands, the Mohabbakahs, the Haycocks and South West Rocks in the Aegean Sea and the Red Sea; and Aves Island in the Caribbean Sea.92 Professor Van Dyke has also pointed to the issues arising out of the claiming of island status, EEZs, and continental shelves for the uninhabited islands of Johnston Island, Kingman Reef, and Palmyra Island, all to the south of Hawaii, and the uninhabited islands northwest of Hawaii, as well as Baker Island, Howland’s Island, and Jarvis Island, located east of Kiribati.93 The most often cited dispute arising from the legal status of an island and its right to claim a 200-n.m. EEZ or a continental shelf is the dispute between the United Kingdom and its neighboring countries over the legal status of Rockall, which is situated in the North Atlantic Ocean, 160 kilometers from the north-west coast of

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Churchill & Lowe, supra note 69, at 50, 164; Marius Gjetnes, supra note 70, at 65–67. Charney, supra note 68, at 863. Van Dyke & Brooks, supra note 53, at 267–68; Jon Van Dyke, Joseph Morgan & Jonathan Gurish, The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?, 25 San Diego L. Rev. 425–94 (1988).

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Scotland and is claimed as English territory. In 1976, the United Kingdom passed the Fisheries Limits Act, drawing a 200-n.m. maritime zone extending from its baseline as its exclusive fishing zone. Subsequently, the United Kingdom’s maritime maps showed a 200-n.m. maritime zone surrounding Rockall,94 which led to objections being raised by Ireland, Iceland, and Denmark. Ireland considered the United Kingdom’s actions to be in violation of Article 121 paragraph 3 of the Law of the Sea Convention, which stated that rocks without human habitation or economic life of their own were not entitled to claim an EEZ or a continental shelf.95 In 1997, the United Kingdom gave up its claim to a 200-n.m. EEZ for Rockall when it acceded to the Law of the Sea Convention.96 French claims to a 200-n.m. EEZ for Clipperton Island in the Eastern Pacific Ocean and the application and interpretation of Article 121 paragraph 3 of the Law of the Sea Convention are also closely related and worthy of further discussion. Clipperton Island was named after the English pirate, John Clipperton, when he escaped to the island to hide. In 1858, France claimed the island. In 1897, Mexico occupied and claimed the island. Subsequently, the two countries submitted the dispute to an arbitrator who ruled in favor of France in 1931.97 In 1979, France proclaimed 200-n.m. EEZs around all its islands, including Clipperton Island. This island is an uninhabited coral atoll situated 1,120 kilometers from Mexico and has an area of six square kilometers. The only economic activity is tuna fishing in its adjacent waters.98 Even though France has claimed a 200n.m. EEZ for this uninhabited island, international legal scholars like Van Dyke and Brooks are in disagreement, believing that France is not entitled to make this claim.99 Another potential dispute can be found in Brazil’s claim of an EEZ and a continental shelf for Saint Peter and Paul Rocks, which are made up of 12 small volcanic rocks situated in the South Atlantic Ocean, about 950 kilometers northeast of Natal in Pernambuco State, Brazil. The tallest is Southwest Rock, 22.5 meters above the water. Saint Peter and Paul Rocks are distributed in an area at sea that is over 350 meters from north to south, and 200 meters from east to west, with a total size of approximately 10,000 square meters.100 A lighthouse was built on Northwest Rock in 1930, with a height of six meters. 20 meters to the south of

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Clive Symmons, The Maritime Zones of Islands In International Law 261 (1979). Id. at 126. Robin Churchill, United Kingdom Accession to the UN Convention on the Law of the Sea, 13 Int’l J. M. & C.L. 263, 271–73 (1998). See Background on Clipperton Island, The CIA World Fact Book, available at http://www.cia .gov/cia/publications/factbook/geos/ip.html. Id. Van Dyke & Brooks, supra note 53, at 288. See http://en.wikipedia.org/wiki/St_Paul’s_Rocks.

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the lighthouse is a simple shelter for army personnel and researchers. Should these rocks be able to claim an EEZ or a continental zone according to Article 121 of the Law of the Sea Convention? On May 17, 2004, Brazil made a submission through the UN Secretary-General to the Commission on the Limits of the Continental Shelf in accordance with Article 76 paragraph 8 of the Law of the Sea Convention, regarding the proposed outer limits of Brazil’s continental shelf and its claim of a continental shelf for the Saint Peter and Paul Rocks.101 The U.S. challenge to Brazil’s claim was dismissed by the Commission on the Limits of the Continental Shelf on the ground that it did not originate from a party that was involved in a boundary dispute with Brazil at the time.102 5. Opinions of International Legal Scholars The teachings of the most highly qualified publicists of various nations are examined by the international courts or tribunals as subsidiary means for the determination of rules of law in disputes submitted to them. Accordingly, the views held by highly respected international legal scholars are also helpful in applying and interpreting Article 121 of the Law of the Sea Convention. Jonathan Charney, a recently-deceased U.S. international public law scholar, has adopted a broad interpretation of the issue of whether rocks can enjoy rights to EEZs or continental shelves. Because Article 121 paragraph 3 uses the word “or” between “human habitation” and “economic life of their own,” it is only necessary to prove that an island or rock can sustain human habitation OR economic activity of its own to be able to claim an EEZ or continental shelf.103 After examining the travaux preparatoires of the Law of the Sea Convention, Charney argued that the habitation referred to in the article does not need to be of a permanent nature, and economic activity does not need to be capable of sustaining a human being throughout the year.104 In addition, the economic activity referred to in Article 121 paragraph 3 can also include industry or exploitation of the living or mineral resources found in the territorial sea of the island or rock in question.105 Moreover, Charney is of the opinion that this economic activity can be a future condition, based on future technological advances. Profits from ocean minerals could support the equipment and staff necessary to extract the resource

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For the Brazilian submission, visit the UN website, available at http://www.un.org/Depts/los/ clcs_new/submissions_files/submission_bra.htm. United States of America: Notification Regarding the Submission Made by Brazil to the Commission of the Limits of the Continental Shelf, available at http://www.un.org/Depts/los/clcs_new/ submissions_files/bra04/clcs_2004_los_usatext_2.pdf. Charney, supra note 68, at 868. Id. Id. at 869.

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and to import energy, food, and water for a long period of time. Under these circumstances, can a rock claim an EEZ or a continental shelf according to Article 121 paragraph 3 of the Law of the Sea Convention?106 Charney has suggested that a feature would not be subject to Article 121 paragraph 3 if it were found to have mineral resources, such as oil or gas, or other resources of value such as newly harvestable fishery species, or even a location for a profitable business (such as casino), whose exploitation could sustain an economy sufficient to support that activity through the purchase of necessities from external sources. Given the compatibility of the French, English, Spanish, and Arabic texts of Article 121 paragraph 3 as well as the ambiguity of the Russian text and the clarity of the Chinese text, Charney holds that Article 121 paragraph 3 of the Law of the Sea Convention should be interpreted as permitting the finding of an economic life as long as the feature can generate revenues sufficient to purchase missing necessities.107 Charney concludes that changes in circumstances may help those features (reefs or rocks) that are subject to the application of Article 121 paragraph 3 of the Law of the Sea Convention to obtain the legal status of island and the rights to claim EEZs and continental shelves.108 British law of the sea scholars Churchill and Lowe have not provided their opinions on the interpretation of Article 121 paragraph 3 in their writings, but have consistently pointed out the poor drafting of this provision.109 U.S. international law scholar Van Dyke seems to adopt a stricter stance towards the interpretation of Article 121 paragraph 3 of the Law of the Sea Convention. He considers the claims of Gidel,110 Hodgson,111 Ambassador Pardo,112 and Ely,113 which support the common heritage of humankind, to be the correct interpretation of the article: In order to remain true to the central goal of retaining a substantial portion of the oceans as the “common heritage” of humankind, Article 121 should be interpreted to grant an exclusive economic zone and a continental shelf only to those islands that can truly sustain “stable” communities “of organized groups of human beings.”114

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Id. at 870. Id. at 871. Id. at 876. Churchill & Lowe, supra note 69, at 49–50, 150–51, and 163–64. 3 B. Gidel, Le Droit International Public de la Mer 684 (1934). See Robert D. Hodgson, Islands, Normal and Special Circumstances, in Law of the Sea: The Emerging Regime of the Oceans (John King Gaimble and Pontecorve ed., 1973); and Robert D. Hodgson and Robert W. Smith, The Informal Single Negotiation Text (Committee II): A Geographical Perspective, 3 Ocean Devel. Int’l L. 225 (1976). Arvid Pardo, An International Regime for the Deep Sea-Bed: Developing Law or Developing Anarchy? 5 Tex. Int’l L.F. 205 (1970). Northcut Ely, Seabed Boundaries Between Coastal States: The effect to be Given Islets as “Special Circumstances,” 6 Int’l Law 219 (1972). Van Dyke & Brooks, supra note 53, at 288.

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Professor Van Dyke has argued that from the perspective of history, if a rock or reef cannot sustain human habitation permanently for 50 people, then it cannot claim an EEZ or a continental shelf.115 Although the text of Article 121 paragraph 3 of the Law of the Sea Convention does not give definitive answers to these questions, by referring to the relevant international treaties, judicial decisions, state practice, and the opinions of the international legal scholars, a conclusion can be drawn. To determine whether or not rocks, reefs, or islands can claim a 200-n.m. EEZ or a continental shelf, the following factors must be considered: – Is the island feature relevant to a dispute over overlapping EEZs and/or continental shelves? – Is it related to a territorial dispute? – How close or how far is it located to the mainland? – How big is the size of the disputed island? – Is it possible to develop living and/or non-living resources in the surrounding waters? – Does the disputed island have drinking water, plants, food, land, or inhabitants? – Is it located near or in a major shipping route? – Are there any countries that have registered their protests?

VII. Legality of Japan’s Claim Regarding Okinotorishima As a party of the Law of the Sea Convention, Japan is obligated to abide by the provisions of the treaty. The legal status of Okinotorishima and the issue of whether or not it can claim an EEZ or a continental shelf should be examined in accordance with Article 121 of the Law of the Sea Convention. As stated previously, Okinotorishima is an oval extending in an east to west direction, 4.5 kilometers from east to west, 1.7 kilometers from north to south, with a circumference of 11 kilometers. The Okinotorishima lagoon has only two rocks or reefs exposed above the water line at high tide. These are located on the west side of Okinotorishima and are known as the Northern Exposed Rock (Japan calls it the Northern Small Islet) and Eastern Exposed Rock (Japan calls it the Eastern Small Islet). The Eastern Exposed Rock is usually 90 centimeters above water and the Northern Exposed Rocks is usually one meter above water. However, at high-tide, the Northern Exposed Rock is only 16 centimeters and the Eastern Exposed Rock six centimeters above water. The area of

115

Jon Van Dyke & Dale Bennett, Islands and the Delimitation of Ocean Space in the South China Sea, 10 Ocean Y.B. 54, 79 (1993).

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the two exposed rocks is 4.5 square meter, but the surrounding concrete enforcing work has two layers, meaning that the naturally formed area of land is completely enclosed and cannot be submerged by water.116 Also, this two-layer concrete encasing protects the feature (rock) from being damaged by waves. Okinotorishima is uninhabited, with no fresh water and no tillable soil. Accordingly, can it be argued that Okinotorishima has obtained the legal status of “island” in accordance with Article 121 paragraph 1 of the Law of the Sea Convention? An island is defined in Article 121 paragraph 1 as “a naturally formed area of land, surrounded by water, which is above water at high tide.” This area of land, regardless of size, is not regulated in the text of the provision. Because Okinotorishima is a naturally formed area of land, surrounded by water and above water at high-tide, it seems that Okinotorishima can claim island status. Therefore, according to Article 121 paragraph 2 of the Law of the Sea Convention, it can have a 12-n.m. territorial sea and 24-n.m. contiguous zone. According to Article 121 paragraphs 1 and 2, thus, there should be no difference between the word “shima” (island) used by Japan and “jiao” (reef ) used by China. In other words, it makes no difference whether it is called “Okinotori-shima” or “Okinotori-reef ”. What gives rise to greater difficulties in interpretation is whether or not Article 121 paragraph 3 of the Law of the Sea Convention applies to Okinotorishima. That is, is Okinotorishima a rock incapable of sustaining human habitation or its own economic life? Looking at the current situation of Okinotorishima, although there are two manmade facilities in Okinotorishima’s lagoon for the purposes of maritime research and weather observation, they are not sitting on either Northern Exposed Rock or Eastern Exposed Rocks, even though the two rocks are naturally formed areas of land surrounded by water and above the water at high-tide. The tiny Northern Exposed Rock and Eastern Exposed Rock cannot sustain human habitation and support economic life of their own, and do not have drinking water, food, or tillable soil. In addition, there are no fisheries, oil and gas, or other mineral with commercial development value in the territorial sea of Okinotorishima. Thus, Okinotorishima has no means of supporting human habitation or economic life of its own, currently or in the near future. Accordingly, Article 121 paragraph 3 of the Law of the Sea Convention is applicable to Okinotorishima. In other words, Okinotorishima cannot claim an EEZ or a continental shelf. In addition, manmade constructions and concrete embankments on Northern Exposed Rock and Eastern Exposed Rock cannot be used in support of Japan’s claim for an island or ocean space because Article 60 paragraph 8 of the Law of the Sea Convention states: “[a]rtificial islands, installations and structures do not possess the status of islands.

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To help waters recede after entering the center of the concrete embankment at high tide, channels were built at the sides of embankment.

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They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.” This provision is at Japan’s disadvantage in claiming a 200-n.m. EEZ or a continental shelf for Okinotorishima. Recently, Japan has taken a series of actions to support its claim that Okinotorishima is capable of sustaining economic life of its own, which include: constructing power facilities by utilizing the difference in temperatures between warm waters near the sea surface and cold waters deep down to generate electricity, finding or developing new fishing grounds, building a light house, and breeding coral reefs and sand by various ways such as planting glauconite and foraminifera (hard-shelled microscopic organisms whose bodies become sand as they die). The possibility cannot be ruled out that Japan might learn from the experience of Malaysia in building a five-star scuba diving resort on the disputed island called Layang-Layang (Swallow Reef ) in the southern part of the South China Sea and perhaps Japan may someday build a scuba diving or snorkelling sites on Northern Exposed Rock or Eastern Exposed Rock of Okinotorishima. In addition, it would also be possible for Japan to discover important seabed oil, gas, or other mineral resources, develop deepsea mineral waters, discover large pods of whales, or develop ecological tourism in the area surrounding Okinotorishima. Under such hypothetical circumstances, the legality of claiming the right to have a 200-n.m. EEZ or a continental shelf for Okionotorshima could possibly be enhanced. However, based on current situation, Okinotorishima still falls under the definition of a “rock” according to Article 121 paragraph 3 of the Law of the Sea Convention, and it is therefore unable to generate an EEZ or a continental shelf.

VIII. Conclusion Based on the above analysis, the following conclusion can be drawn: (1) Japan’s statement that Okinotorishima is an island as defined in Article 121 Paragraph 1 of the Law of the Sea Convention is not in violation of the provision of the treaty; (2) Japan is entitled in accordance with international law to claim a 12-n.m. territorial sea and 24-n.m. contiguous zone for Okinotorishima; however, (3) Japan’s actions in drawing a 200-n.m. EEZ for Okinotorishima are not consistent with the regulations provided in Article 121 paragraph 3 of the Law of the Sea Convention. Accordingly, Japan’s arrest of the Taiwanese fishing vessel, Long Zong No. 2, at 22 degrees 30.3 minutes N, and 136 degrees 14.9 minute E, in the surrounding waters of Okinotorishima in accordance of the Japanese domestic EEZ law, was in violation of international law.

Chapter IX Canada-U.S. International Ocean Law Relations in the North Pacific: Disputes, Agreements and Cooperation* Ted L. McDorman I. Introduction Canada and the United States are geographic “salt water neighbors” in the North Pacific, with the Canadian 200 nautical mile (n.m.) zone adjacent to British Columbia “interrupting” the U.S. Pacific coast 200-n.m. zone from southern California to Alaska. As with all neighborly ocean relations, there are a wide variety of marine issues and disputes that arise between the participants. The focus of this paper is on the disputes and the cooperative ocean relationships and agreements between Canada and the United States that directly involve or arise from issues of international ocean law in the North Pacific.

II. The Context of Canada-U.S. International Ocean Law Relations 1. The Law of the Sea Convention The 1982 United Nations Convention on the Law of the Sea1 is the foundational document of modern international ocean law and the Canada-United States ocean relationship. Referred to as the “constitution of the oceans,” the Law of the Sea Convention, amongst other things, sets out legal regimes for the 12-n.m. territorial

* This paper is drawn from the project – Salt Water Neighbours: Canada-United States International Ocean Law Relations – being prepared while the author is the 2007 Fulbright Visiting Chair in Canada-U.S. Relations at the Woodrow Wilson International Center for Scholars, Washington, D.C. 1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10 1982, U.N.Doc. A/CONF.62/122 (1982), 1833 U.N.T.S. 397 (entered into force 16 Nov. 1994), reprinted in Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, U.N. Sales No. E.97.V.10 (1997).

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sea, the 200-n.m. exclusive economic zone (EEZ), international straits, and freedom of navigation. These are all matters of importance in the Canada-U.S. ocean relationship in the North Pacific. Canada and the United States have had differing perspectives and interests regarding the Law of the Sea Convention. In the 1970s, both states supported the need for the development of a modern law of the sea treaty, but the approaches of the two states to the negotiations and the issues were significantly different. On issues such as the width of territorial sea, environmental protection of Arctic waters and exclusive national control over offshore resources, Canada took direct action in the early 1970s and sought international legal justification for its actions during the negotiation of the Convention.2 The United States entered into negotiations looking for international consensus on a number of issues before taking national action.3 The general posture of the two states is at odds with the popularly accepted images of Canada as measured and internationalist, and the United States as the unilateralist belatedly involving the international community to accept its actions. The positions of the two states realigned with the popularly accepted images in the 1980s when Canada embraced the Law of the Sea Convention and the United States rejected the treaty as not meeting its needs.4 Nevertheless, Canada still took almost 20 years before formally becoming a party to the Law of the Sea Convention,5 and the United States has still not acceded to the Convention.6 In its ocean relationship with the United States, Canada is still seen as being “aggressive,” seeking greater coastal state control over adjacent ocean areas and the resources within the area, while the United States is viewed as being more reluctant in pursuing similar coastal state interests, and being more mindful than Canada of the risk of collision

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See Ted L. McDorman, 1970: The Landmark Year in the Canadian-United States International Ocean Law Relationship (work in progress). See United States, Statement of President Nixon, United States Policy for the Seabed, May 23, 1970, reproduced in 2 New Directions in the Law of the Sea 751–52 (S.H. Lay, R. Churchill & M. Nordquist eds., 1973); and Summary of Provisions of Draft, United Nations Convention on the International Seabed Area, prepared by John R. Stevenson, Legal Adviser, U.S. Department of State, reproduced in Lay, Churchill & Nordquist, at 753–68. Regarding the U.S. rejection of the Convention, see J.B. Morell, The Law of the Sea: An Historical Analysis of the 1982 Treaty and Its Rejection by the United States (1992). See Ted L. McDorman, Canada Ratifies the 1982 United Nations Convention on the Law of the Sea: At Last, 35 Ocean Dev. & Int’l L. 103–14 (2004). See John A. Duff, A Note on the United States and the Law of the Sea: Looking Back and Moving Forward, 35 Ocean Dev. & Int’l L. 195–219 (2004); Marjorie Ann Browne, The U.N. Law of the Sea Convention and the United States: Developments Since October 2003 (Congressional Research Service Report for Congress, Order Code RS21890, updated Jan. 27, 2006); and Marjorie Ann Browne, The Law of the Sea Convention and U.S. Policy (Congressional Research Service Issue Brief for Congress, Order Code IB95010, updated May 12, 2006).

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between coastal state authority and navigational interests central to the security concerns of a nation with global defense responsibilities and interests. 2. Ocean Issues in the Overall Canada-U.S. Relationship The position of ocean matters in recent Canada-United States relations is best described as being episodic. Only rarely do specific maritime issues get on the formal high-level Canada-U.S. agenda. This has not always been the case. Historians of the Canada-United States relationship refer frequently to fisheries matters and maritime boundaries as being major components of the Canada-U.S. relationship well into the early 1900s.7 In the 1970s and 1980s, ocean disputes figured prominently in Canada-United States relations as result of fisheries (Pacific salmon8 and east coast fisheries that led to the Gulf of Maine Case)9 and the passage of U.S.-flagged vessels in the Canadian Arctic.10 In recent years, ocean issues have not attained as high a profile in bilateral relations. 3. Sovereignty and the Ethos of Cooperation Two aspects of the Canada-U.S. “salt water” relationship have an important role in the North Pacific: sovereignty and the ethos of cooperation. Many of the North Pacific Ocean issues between Canada and the United States involve assertions of sovereignty over ocean areas by one or both countries. Negotiations involving sovereignty matters “tend to be heavily laden with emotional freight” and negotiators, mindful of “symbolic significance,” are often “required to negotiate with relatively little flexibility.”11 Resolution of many of the North Pacific bilateral ocean law disputes between Canada and the U.S. would require compromise and/or a perceived backing down on sovereignty. The “public face” of a resolution, therefore, is highly likely to be problematic for any government. It is to be noted that the only significant international ocean law dispute that can be said to have been fully “resolved” between Canada and the United States in the

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See J.L. Granaststein & Norman Hillmer, For Better or For Worse: Canada and the United States to the 1990s 9–42 (1991). See infra and see generally M.P. Shepard & A.W. Argue, The 1985 Pacific Salmon Treaty: Sharing Conservation Burdens and Benefits (2005). Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States), 1984 I.C.J. 246 (1981). See generally Politics of the Northwest Passage (Franklyn Griffiths ed., 1987); and E.B. Elliot-Meisel, Arctic Diplomacy: Canada and the United States in the Northwest Passage (1998). Douglas M. Johnston, The Theory and History of Ocean Boundary-Making 27 (1988).

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modern law of the sea era (since 1970) is the maritime boundary in the Gulf of Maine, which was settled by the International Court of Justice in 1984.12 Of greater significance, however, is that despite the sovereignty disputes and differences of perception that can be said to exist between Canada and the United States regarding maritime boundaries, fisheries, and navigational matters, few of these disputes create significant turbulence on a regular basis between the two neighbors. There is an ethos of cooperation between the two states. Canada and the United States have often found ways to “agree to disagree” respecting international ocean law matters and proceed in pragmatic ways to overlook the international legal disputes. Cooperation, coordination, and some benign neglect of disputed matters are fundamental characteristics of the Canada-U.S. “salt water” relationship.

III. The Principal North Pacific Canada-U.S. International Ocean Law Disputes 1. British Columbia/Alaska (Dixon Entrance) Maritime Boundary The 1903 United States-United Kingdom Alaska Boundary Arbitration, which was asked to resolve differing interpretations of the 1825 Treaty between Great Britain and Russia concerning the boundaries of Alaska, established the land boundary between Alaska and British Columbia.13 In the area seaward of the coast known as Dixon Entrance, which includes the waters separating the Queen Charlotte Islands of British Columbia and the Alexander Archipelago of Alaska, the Tribunal constructed a line (the A-B Line) connecting Cape Muzon (the agreed point of commencement of the area to be considered by the Tribunal) and a point south of the mouth of Portland Canal. It is the long-standing disagreement by Canada and the United States over the role and character of the A-B Line that has resulted in the existence of disputed waters in the Dixon Entrance. Canada asserts that the A-B Line is the ocean boundary in the Dixon Entrance, whereas the United States sees the A-B Line as a line dividing the ownership of islands and not as an ocean boundary.14 The United States’ position is that the ocean boundary in Dixon Entrance should be based upon equidistance which produces a line generally favorable to the United States by moving the ocean boundary south of

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Gulf of Maine Case, supra note 9. Decision of the Alaska Boundary Tribunal under the Treaty of January 24, 1903 Between the United States and Great Britain in Proceedings of the Alaska Boundary Tribunal Vol. I, 29–97, S. Doc. No. 162 (58th Cong., 2d Sess. 1903). See generally C.B. Bourne & D.M. McRae, Maritime Jurisdiction in the Dixon Entrance: The Alaska Boundary Re-examined, 14 Canadian Y.B. of Int’l Law 175, 178–79 (1976).

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the A-B Line throughout most of its length.15 The area in dispute is approximately 806 square-n.m.16 The resources at stake are salmon, halibut, sole, and cod. In the ocean area of Dixon Entrance, the seaward lines of Canada and United States’ 200-n.m. zones are largely congruent because both nations utilize equidistance, but the Canadian starting point is Cape Muzon while the U.S. starting point is the equidistance point between Cape Muzon and Langara Island (part of the Queen Charlotte Islands), in accordance with the claims of each state in Dixon Entrance.17 2. British Columbia/Washington (Juan de Fuca Strait) Maritime Boundary Although both Canada and the United States have utilized equidistance in the construction of their ocean zones seaward of the Juan de Fuca Strait, the points relied upon by each state to construct their equidistance lines are different, and hence, the lines are not congruent, resulting in a small area of overlap.18 The United States’ equidistance line is constructed using land base-points along both the U.S. and Canadian coasts. The Canadian equidistance line uses the relevant land base-points along the U.S. coast, and on the Canadian side uses points along the straight baselines that were established along Vancouver Island in 1969. In 1969, the United States protested the use of straight baselines by Canada, including those along Vancouver Island, noting that the baselines were constructed “contrary to established principles of international Law of the Sea.”19 The difference between the Canada and U.S. equidistance lines is calculated as being 15.4 square-n.m. (52.9 square-kilometers), spread primarily over two areas, one near the mouth of the Juan de Fuca Strait and the other further seaward.20 The area near the mouth of the Strait encompasses a small part of Swiftsure Bank that is a fishing area.21 The small areas of disputed waters seaward of the Juan de Fuca Strait have caused little concern and have not been the subject of CanadaU.S. discussions.

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Mark B. Feldman & David Colson, The Maritime Boundaries of the United States, 75 Am. J. Int’l L. 729, 750 (1981). David H. Gray, Canada’s Unresolved Maritime Boundaries, 48:2 Geomatica 131, 133 (1994). Id. at 134. Id. at 132. United States, Summary of the Note from the United States Department of State to Embassy of Canada, Dated 1 November 1967; and United States, Note from the Secretary of State to Embassy of Canada, Dated 25 April 1969, both reprinted in Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), Pleadings, Oral Arguments, Documents, Vol. V, Annex 4 to Reply of the United States, at 503–04. Gray, supra note 16, at 132. Id.

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3. Canadian Claims of Historic Internal Waters Canada claims that Dixon Entrance, Hecate Strait, and Queen Charlotte Sound are historic internal waters.22 The precise delineation, however, of the waters claimed by Canada as historic internal waters has not been articulated. It is assumed that the claimed areas are the waters enclosed by the 1971 “fisheries closing lines,”23 drawn across the Dixon Entrance and Queen Charlotte Sound in order to create an exclusive Canadian fishing zone.24 It is not the intention here to evaluate the Canadian historic waters claim as regards the Dixon Entrance, Hecate Strait, and Queen Charlotte Sound, but a few comments can be made. First, the Canadian historic waters claim to the part of Dixon Entrance also claimed by the United States is subservient to the maritime boundary delimitation issue. Second, one authority has noted that, as regards Dixon Entrance and Hecate Strait, “the Canadian government since the 1890s has maintained that these are Canadian waters.”25 This same authority acknowledges, however, that U.S. fishing activity has long taken place “in the waters of both Dixon Entrance and Hecate Strait up to three miles from the Canadian shore” and that Canadian customs laws were not enforced in this area.26 Third, this author explicitly notes that the claim to Queen Charlotte Sound as historic internal waters emerged in the 1960s and “had no apparent antecedent in British and Canadian practice.”27 Fourth, there was opposition by the United States dating from the 1960s to the possibility of the use of straight baselines to enclose the waters of Dixon Entrance, Hecate Strait, and Queen Charlotte Sound as internal waters, and the 1971 “fisheries closing lines” were objected to by the U.S.28 The validity of the Canadian claim

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26 27 28

Canada, Department of External Affairs, Bureau of Legal Affairs, Letter Dated 17 December 1973, reprinted in 12 Canadian Y.B. of Int’l Law 277, 279 (1974). It is not to be understood that this 1973 letter is the first indication by Canada of a claim of Dixon Entrance, Hecate Strait, and Queen Charlotte Sound as historic internal waters. The 1973 letter, however, is a clear articulation of the claim. Fishing Zones of Canada (Zone 1, 2 and 3) Order, 105 Canada Gazette Part II, No. 5, at 36 came into effect on Mar. 10, 1971. Bureau of Legal Affairs, Letter Dated 17 December 1973, supra note 22, at 279 states: You should note that these bodies of water [including Dixon Entrance, Hecate Strait and Queen Charlotte Sound] were enclosed in February 1971 as exclusive Canadian fishing zones by “fisheries closing lines”. . . . While this legislation makes no claim to sovereignty over these bodies of water, but only claims jurisdiction for fishing purposes and for the prevention of pollution, it does not bar a subsequent claim to full sovereignty on historic or other grounds. Leonard Legault, Maritime Claims, in Canadian Perspectives on International Law and Organization 377, 381 (R. St. J. Macdonald, G.L. Morris & D.M. Johnston eds., 1974). Id. Id. at 383 and 388. The U.S. State Department issued a Statement specifically on the fisheries closing lines which referred to the Canadian measure as a “unilateral act . . . totally without foundation in international

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that the waters of Dixon Entrance, Hecate Strait, and Queen Charlotte Sound are internal waters remains untested, but this ambiguity has not created any significant difficulty between Canada and the United States thus far.

IV. Examples of Canadian-U.S. Cooperation and Agreement in the North Pacific 1. Two Agreed Maritime Boundaries A maritime boundary exists between Canada and the United States in the waters between Vancouver Island and the State of Washington which originated in the 1846 Oregon Treaty and provided that the maritime boundary in the Juan de Fuca Strait was to follow the middle of the channel and that navigation in the Strait was to “remain free and open to both parties.”29 Disagreement between the United Kingdom and United States arose respecting the location of the channel through the San Juan Islands located east of Vancouver Island and west of Washington.30 In 1871, the Emperor of Germany was asked to resolve the controversy,31 and in 1872, the Emperor sided with the United States.32 In 1873, the United Kingdom and the United States reached final agreement on the implementation of the 1846 Oregon Treaty and the 1872 Arbitration Award, and the maritime boundary was demarcated.33 The second Canada-U.S. agreed maritime boundary in the North Pacific arose from the 1903 Alaska Boundary Arbitration, which established a maritime boundary landward of the A-B Line in Dixon Entrance that extends through the Portland

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law.” United States Statement on Canadian Fisheries Closing Lines Announcement, Dec. 18, 1970, reproduced in 1 New Directions in the Law of the Sea 74, para. 2 (S.H. Lay, R. Churchill & M. Nordquist eds., 1973). Treaty Establishing the Boundary in the Territory on the Northwest Coast of America Lying Westward of the Rocky Mountains, June 15, 1846, entered into force Aug. 5, 1846 (The Oregon Treaty), art. 1, reprinted in 100 The Consolidated Treaty Series 39–42 (C. Parry ed., 1969). The dispute is discussed in detail in J.O. McCabe, The San Juan Boundary Question (1964). Treaty between Great Britain and the United States for the Amicable Settlement of All Causes of Difference between the Two Countries, May 8, 1871, entered into force June 17, 1871, art. XXXIV, reprinted in 143 The Consolidated Treaty Series, supra note 29, at 145–62. Award of the Emperor of Germany Under the XXXIVth Article of the Treaty of May 8, 1871, Giving the Island of San Juan to the United States, reprinted in United States Treaties and Conventions, 1776–1889 at 494 ( J.H. Haskell ed., Washington, U.S. Government Printing Office 1889). Protocol Between Great Britain and the United States Defining the Boundary Line Through the Canal de Haro, Mar. 10, 1873, entered into force Mar. 10, 1973, reprinted in 146 The Consolidated Treaty Series, supra note 29, at 35–39.

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Channel, a lengthy fjord that reaches inland from the coast to the Alaska-British Columbia land boundary terminus.34 2. Submarine Passage in Dixon Entrance The United States maintains the Southeast Alaska Submarine Noise Measurement Facility (SEAFAC) in the Behm Canal in Alaska. Access to this facility by submarines is through the Dixon Entrance. In 1991, “in view of U.S.-Canadian mutual defense interests,” the United States consulted with Canada regarding submarine passage in these waters.35 As noted above, Canada claims the waters of the Dixon Entrance as Canadian by virtue of the A-B Line and as internal waters. There may have been agreement in 1991 between Canada and the United States respecting the passage of the submarines in Dixon Entrance. The Canadian Minister of External Affairs told the House of Commons: that we have discussed with them [the United States] and we have consent from them concerning their use of our sovereign waters and that we have received from them assurances on how these waters will be passed through by . . . submarines to reach the acoustic testing facility.36

In 1992, the Minister referred to “an agreement that we signed with the Americans regarding their travel through Dixon Entrance.”37 A Parliamentary Secretary indicated that the submarine traffic in the Dixon Entrance “has to do with our agreements with the United States through NATO and NORAD.”38 A different minister indicated that the U.S. submarines “can only pass with advance notice and with the appropriate protection with respect to compensation if there should be an accident.”39 As regards advance notice, it appears that the U.S. Navy would give 72 hours advance notice “of the commencement and duration of operations” at SEAFAC which would be communicated to U.S. sources and to Canadian

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Alaska Boundary Arbitration, supra note 13. United States, Department of State, Diplomatic Note to Canada, 24 December 1991, para. 3, reprinted in United States, Dept. of State, Digest of United States Practice in International Law, 1991–1999 at 1594 (Washington, Int’l Law Inst. 2005). The full text of the Note is available at www.state.gov/s/l/c81883.htm, which is a documentary supplement to DIGEST 1991–1999, and referred to therein at 1593. Barbara McDougall, Minister of External Affairs in Canada, House of Commons, Debates, 30 Oct. 1991 at 4212–13. Barbara McDougall, Minister of External Affairs in Canada, House of Commons, Debates, 10 Mar. 1992 at 7933. Benno Friesen, Parliamentary Secretary for External Affairs in Canada, House of Commons, Debates, 19 Nov. 1991 at 5062. Mary Collins, Associate Minister of National Defense in Canada, House of Commons, Debates, 6 Nov. 1991 at 4635.

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officials.40 On the compensation point, in August 1991, the United States communicated with the Canadian Embassy on the general policies and procedures of the United States respecting the handling of claims or losses that might occur as a result of submarine transits.41 In October 1991, Canada issued an Order-inCouncil granting “Canada’s prior consent for United States submarines to transit Dixon Entrance” on their way to SEAFAC.42 If agreement existed between Canada and the U.S., it is clear that, despite the comments above, the United States did not “consent” that the proposed passages of submarines through Dixon Entrance involved Canadian waters. The United States made it clear in a diplomatic note to Canada that the intended navigation would be in the claimed U.S. waters within Dixon Entrance only.43 A Canadian diplomatic note in November 1991 informed the United States that it was consenting “to the transit of Canadian internal waters in Dixon Entrance.”44 The United States’ response was clear: Consent of the Government of Canada was never sought for the transits of the submarines . . . [W]hile . . . the United States did consult Canada concerning the transits, the United States cannot accept that its authority to transit these waters is premised on Canada’s consent to those transits.45

SEAFAC has been in operation since 1991 and submarine passage through the Dixon Entrance has taken place since then without incident and without much notice by the public, or need for Canada and the United States to revisit the apparent “agreement-to-disagree” on the international ocean law matters in dispute. 3. Tanker Traffic Involving Canadian Waters For almost 30 years, tankers have transported Alaskan oil along the coast of British Columbia to refineries and depots in the southern United States, particularly to depots and refineries in Washington State, which requires the tankers to pass through

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United States, Letter from Alan J. Kreczko, Deputy Legal Adviser, Department of State, to the Embassy of Canada, 2 August 1991, reprinted in Digest of United States Practice in International Law 1991–1999, supra note 35, at 1595. Id. at 1594–95. See P.C. 1991–2082, approved Oct. 30, 1991 (unpublished) available through the Library of Canada, copy on file with author. The Order-in-Council is referred to by Jim Fulton in Canada, House of Commons, DEBATES, Nov. 19, 1991 at 5061–62. United States, Diplomatic Note to Canada, 24 December 1991, supra note 35, at 1594, para. 2. Canada, Diplomatic Note to the United States, 13 November 1991, reprinted in part in Digest of United States Practice in International Law 1991–1999, supra note 35, at 1593; and see United States, Diplomatic Note to Canada, 24 December 1991, supra note 35, at para. 1 (see website). United States, Diplomatic Note to Canada, 24 December 1991, supra note 35, at 1594, para. 3.

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the Juan de Fuca Strait. The most famous of these tankers is the ill-fated Exxon Valdez, which ran aground in Alaska in 1989. Although this tanker traffic continues to be of concern to Canada, it was a more prominent issue in the late 1960s and 1970s when it had not yet been decided how Alaskan oil would be delivered to the southern United States.46 In the early 1970s, Canada expressed to the United States its concerns about and opposition to tanker traffic carrying oil from Alaska along the British Columbia coast.47 In expressing these views, the Canadian government was “. . . well aware of the fact that in opposing seaborne exports from Alaska they were incurring some responsibility for helping the Americans find an alternative solution. . . .”48 Pipelines through Canada were proposed as a possible solution but ultimately not pursued by the United States. In 1973, the United States enacted the Trans-Alaskan Pipeline Authorization Act,49 which cleared the way within the United States for tankers to transport Alaskan oil to southern U.S. destinations. The legislation, passed in haste and exempted from environmental review: . . . did not satisfy those who had concerns over the environmental risks that the Alaskan tanker traffic posed to the west coast, particularly Canadians, to whom the route posed risks but provided no benefits. Recognizing this, the United States authorities included the Canadian west coast under the compensation scheme for Alaskan oil pollution damage on the same basis as the United States west coast.50

The Act specifically provides that “residents of Canada” may make claims to compensation from the liability fund established by the legislation “for all damages . . . as the result of discharges of oil” from tankers engaged in transporting oil from Alaska.51 Although not specifically related to the Pacific coast tanker issue, in 1974, Canada and the United States agreed on the creation and maintenance of a Joint Marine Contingency Plan to deal with spills of oil and other noxious substances from vessels

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See generally W.R.D. Sewell & N.A. Swainson, West Coast Oil Pollution Policies: Canadian Responses to Risk Assessment, in Resources and the Environment: Policy Perspectives for Canada 216, 216–29, 234–42 (O.P. Dwivedi ed., 1980); and John E. Carroll, Environmental Diplomacy: an Examination and a Prospective of Canadian-U.S. Transboundary Environmental Relations 72–79 (1983). Sewell & Swainson, supra note 46, at 221. Id. Trans-Alaskan Pipeline Authorization Act, U.S. Pub. L. No. 93–153, 87 Stat. 584, 43 U.S.C. § 1651–55. David Anderson, Report to the Premier [Of British Columbia] on Oil Transportation and Oil Spills 105 (1989). See also Sewell & Swainson, supra note 46, at 240. 43 U.S.C. § 1653(c)(1).

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to be administered by the Canadian Coast Guard and the U.S. Coast Guard.52 Annex III of the Contingency Plan dealt with the Juan De Fuca Strait, Puget Sound, Gulf of Georgia, and other North Pacific coast waters. A further annex for the waters of the Dixon Entrance was added to the Joint Contingency Plan in 1982.53 The core of the Plan is that where incidents occur in the waters of one state that potentially threaten the other, the incident is to be reported to the other state, and resources from both states are to be made available to deal with the incident.54 The regional Annexes define the jurisdiction, roles, and response procedures, and other topics such as communications, reporting systems, and points of contact.55 The Plan is tested every two years by a joint Canada-U.S. exercise.56 In 1979, in direct response to the increasing North Pacific coastal oil tanker traffic, Canada and the United States entered into the Vessel Traffic Management Agreement for the Juan de Fuca Region.57 The purpose of the Agreement was the creation of “a cooperative system of vessel traffic management” throughout the Juan de Fuca Strait.58 Vessels entering the traffic management area are required to obtain clearance from the appropriate vessel traffic management center.59 The traffic management centers maintain information on vessels in the management area and provide navigational information to such vessels.60 The 1979 Agreement makes it clear that the purpose of the traffic management system is not to “maneuver or navigate vessels from the shore” and that the responsibility for safe navigation is with the master of the vessel.61 Pursuant to the traffic separation scheme, inbound vessels use the U.S. side of the Juan de Fuca Strait and outbound vessels use the Canadian side.

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56 57

58 59 60 61

Exchange of Notes between Canada and the United States Constituting an Agreement Concerning the Establishment of a Joint Marine Pollution Contingency Plan, June 19, 1974, Canada Treaty Series 1974/22. Agreement in the Form of an Exchange of Notes Between Canada and the United States Adding a Further Annex (Annex V) to the Joint Marine Pollution Contingency Plan, Mar. 5, 1982, Canada Treaty Series 1982/32. A.H.E. Popp, Legal Aspects of International Oil Spills in the Canada/U.S. Context, 18 Canada-U.S. L.J. 309, 322–23 (1992). See Canada, Environment Canada, Environmental Emergencies: Contingency Planning, available at www.ec.gc.ca/ee-ue/default.asp?lang=en&n=0187A1E9#marine (last visited Jan. 15, 2008). Id. Exchange of Notes between Canada and the United States constituting an Agreement on Vessel Traffic Management for the Juan de Fuca Region, entered into force Dec. 19, 1979, Canada Treaty Series 1979/28. Regarding the background to the 1979 Agreement, see Carroll, supra note 46, at 72–75. Id. annex, para. 100.1. Id. annex, paras. 301.1 and 303.1(f ). Id. annex, para. 303.1. Id. annex, para. 206.

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A key “legal” matter in the 1979 Agreement is the application and enforcement of laws regarding vessels navigating on the U.S. side of the Juan de Fuca Strait but headed for Canadian ports, and vice-a-versa. The Agreement provides that each state, in applying its laws to vessels in its waters, “will consider compliance with the requirements of the other Party to be effectively equivalent to material compliance with its own requirements,”62 but that this does not prevent a state from taking action in regards to a vessel in its waters where “the condition or activities” of a vessel “may pose an actual threat to marine safety or the marine environment.”63 Specific to the tanker traffic from Alaska is the tanker exclusion zone (TEZ) agreed upon in 1988 amongst Canada, the United States, and the tanker industry.64 The TEZ grew from the establishment by the United States in 1977 of a routing system that kept laden tankers from Alaska 100-n.m. west of the Queen Charlotte Islands and up to 85-n.m. west of Vancouver Island.65 Complaints from the industry regarding the costs of complying with the routing system led to the cancellation of routes in 1982.66 Subsequent tripartite discussions led to an interim TEZ along the Canadian coast in 1985, which was finalized in 1988.67 The width of the exclusion zone is tied to studies of the drift of a disabled tanker and the timelines of salvage tugs being able to reach a disabled tanker, taking into account such factors to determine why tanker traffic close to shore is usually more economic.68 The existing TEZ is approximately 115-n.m. west of the Queen Charlotte Islands, 73-n.m. from the northern end of Vancouver Island tapering to 40-n.m. near the mouth of the Juan de Fuca Strait.69 The TEZ is not a compulsory routing system; rather, it is voluntary and only applies to the tankers involved in Alaskan oil carriage.70

62 63 64

65 66 67 68 69 70

Id. annex, para. 204.2. Id. annex, para. 204.3. See Douglas Alpen, Information on the Tanker Exclusion Zone (TEZ) for Canada’s West Coast, in Canada, Department of Fisheries and Oceans, Bowie Seamount Ecosystem Overview: Appendices, app. F, (May 1998), at para. 9, available at www.pac-mpo.gc.ca/oceans/Bowie/bowie_appx_e/htm (last visited Sept. 21, 2006). Regarding the tanker exclusion zone, see Canada, Department of Fisheries and Oceans, Notice to Mariners: Annual Edition 2006, para. 10.2.5, at A10–2. Alpen, supra note 64, at para. 5; and see Anderson, supra note 50, at 50. Alpen, supra note 64, at para. 6. Id. paras. 7 and 8. Id. paras. 13–14; and Anderson, supra note 50, at 50. Notice to Mariners, supra note 64. These aspects of the TEZ have been criticized by Anderson, supra note 50, at 50; and by Suzanne Hawkes & R. Michael M’Gonigle, A Black (and Rising?) Tide: Controlling Maritime Oil Pollution in Canada, 30 Osgoode Hall L.J. 165, 203–04 (1992).

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4. Fisheries Enforcement Cooperation and Agreement Canada and the United States exercise restraint as regards enforcement of fisheries law against harvesters from the other state operating in the disputed waters of Dixon Entrance. As a matter of practice and policy, the two states enforce their laws only against their nationals. The basis of this bilateral understanding is the 1979 Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea and Fishing Off the West Coast of Canada Agreement.71 Paragraph 3 provides that “pending delimitation of maritime boundaries . . . off the west coasts of the United States and Canada,” the two states, as an interim measure, would exercise flag state enforcement.72 The Agreement dealt with specific fishing matters up until 198173 and was not renewed, although the Agreement does not contain a specific termination clause. Specifically, as regards the Dixon Entrance, Canada and the United States exchanged notes in August 1980, reaffirming that each side would continue to observe flag state enforcement respecting fisheries.74 In 1990, Canada and the United States completed the Fisheries Enforcement Agreement, which has application to both the Atlantic and Pacific coasts.75 The Agreement arose primarily from issues on the Atlantic coast created by the bilateral maritime boundary in the Gulf of Maine, where it was alleged that when U.S. vessels were found encroaching onto the Canadian side of the line, they scampered back to the U.S. side, thus complicating enforcement.76 The 1990 Agreement solved the Atlantic coast problem by obligating the two states to make it an offence under their national laws to fish in the waters of the other state without authorization,77 an obligation that both states have implemented. Another part of the 1990 Agreement is the obligation to consult concerning its implementation, including: “standard fisheries law enforcement practices in the vicinity of maritime boundaries.”78 This has resulted in yearly meetings of the Canadian and U.S. Coast Guards, which have enhanced cooperation and reduced

71

72 73 74

75

76

77 78

Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea and Fishing Off the West Coast of Canada, Agreement by an Exchange of Notes, Mar. 29, 1979, Canada Treaty Series 1979/27, 30 U.S.T. 9448, T.I.A.S. 9448, para. 3. Id. para. 3. Id. para. 2. Referred to in United States, Department of State, Cumulative Digest of United States Practice in International Law 1981–1988 at 1930 (Washington, 1994). Agreement between Canada and the United States on Fisheries Enforcement, Sept. 26, 1990, entered into force Dec. 16, 1991, Canada Treaty Series 1991/36. See John W. Lavers & Iain S. Stewart, Fisheries Surveillance and Enforcement, in Canadian Ocean Law and Policy 173, 182–83 (D. VanderZwaag ed., 1992). 1990 Fisheries Enforcement Agreement, supra note 75, art. 1. Id. art. II(c).

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possible misunderstandings.79 Since the early 1990s, there have been remarkably few instances of fishers of one state being arrested by the other in or near CanadaU.S. disputed waters in the North Pacific. 5. Canada, the United States, and Pacific Salmon Both Canada and the United States have special interests in the Pacific salmon originating in their rivers. These interests were first formally manifested internationally in the 1952 tripartite International Convention for the High Seas Fisheries of the North Pacific Ocean80 with Japan, the primary purpose of which was to curb Japanese fishing of Pacific salmon originating in the rivers of Canada and the United States.81 During the negotiation of the Law of the Sea Convention, Canada and the United States, together with several other states with special interests in salmon, worked to draft and adopt Article 66, the special regime on salmon that expressly recognizes the importance of the state-of-origin of the salmon.82 a. The 1985 Pacific Salmon Treaty 83 Since the 1930s, Canada and the United States had jointly managed Fraser River sockeye salmon, and in 1958, extended the management to Fraser River pink salmon. This regime essentially split the resource on a 50–50 basis. In 1971, Canada and the United States commenced discussions to revise the treaty regime for Pacific salmon management, and both countries, having endorsed the state-of-origin principle and the requirement for cooperation at the Law of the Sea Conference, sought to implement these approaches. Salmon from Canadian rivers (for example, the Fraser River) migrate to the waters off the coast of Alaska before returning to the Canadian rivers, and salmon from U.S. rivers in Washington and Oregon, on their way to and from Alaskan waters, utilize the waters adjacent to British Columbia. Because of these migratory

79

80

81 82

83

See United States Coast Guard, 17th Coast Guard District Enforcement Report 3 (Juneau, 2005), available at www.fakr.noaa.gov/npfmc/USCG/JUN05USCG.pdf (last visited Jan. 15, 2008). International Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952, entered into force 12 June 1953, 205 U.N.T.S. 65. See William T. Burke, The New International Law of Fisheries 157 (1994). See generally Burke, supra note 81, at 162–65; Shepard & Argue, supra note 8, at 49–52; and Ted L. McDorman, The West Coast Salmon Dispute: A Canadian View of the Breakdown of the 1985 Treaty and the Transit License Measure, 17 Loy. L.A. Int’l & Comp. L. Rev 477, 480–83 (1995). For a detailed study, see Shepard & Argue, supra note 8. This section is drawn, with modification, from McDorman, supra note 82, at 487–91; and Ted L. McDorman, A Canadian View of the Canada-United States Pacific Salmon Treaty: The International Legal Context (I), 6 Williamette J. of Int’l L. and Disp. Resol. 79, 86–95 (1998).

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patterns, salmon originating from Canadian rivers may be caught or “intercepted” by fishers in Alaskan waters, and the salmon originating from Washington and Oregon rivers may be caught or “intercepted” by fishers in Canadian waters. The historic patterns of salmon harvesting (U.S. fishers having had access to 50% of Fraser River salmon) and species intermingling made it impossible to adhere strictly to the state-of-origin principle. What the negotiators contemplated was a trading of salmon interceptions to achieve balance. The outcome of the bilateral negotiations was the 1985 Canada-U.S. Pacific Salmon Treaty.84 The Treaty Annex outlined short term agreements on the harvesting of specific stocks, directing that the newly established Pacific Salmon Commission was to achieve agreement on subsequent arrangements utilizing the principles in the Treaty regarding how both states were to “conduct its fisheries,”85 and to direct the two states on what must be taken into account in fulfilling these principles.86 In 1985, Canada was of the view that there existed “a rough, albeit imperfect, balance” of interceptions.87 b. The 1990s88 Serious problems with the Pacific Salmon Treaty arose in 1992. Canada believed that United States’ interceptions of Canadian salmon had increased dramatically during the late 1980s, while Canadian interception of U.S. salmon had significantly declined due to the weak coho and chinook runs from the northwestern United States.89 Canada and the United States commenced negotiations to renew arrangements for Fraser River sockeye and pink salmon management, to alter the perceived high interception levels in Alaskan waters, and to extend and renew other parts of the Pacific Salmon Treaty. Attempts to find common ground between Canada and the United States, including the use of a mediator,90 bore little fruit. Both Canada and the United

84

85 86 87

88

89

90

Canada-United States Pacific Salmon Treaty, Jan. 28, 1985, entered into force Mar. 18, 1985, Canada Treaty Series 1985/7. Id. art. III(1). Id. art. III(3). Gordon R. Munroe & Robert L. Stokes, The Canada-United States Pacific Salmon Treaty, in Canadian Oceans Policy: National Strategies and the New Law of the Sea 25, 153 (D. McRae & G. Munro eds., 1989). See Donald McRae, The Negotiation of the 1999 Pacific Salmon Agreement, 27 Canada-U.S. L.J. 267, 267–69 (2001). This section is drawn, with modification, from McDorman, supra note 82, at 491–97; and McDorman, supra note 83, at 95–96. Pacific Salmon Commission, Statement Regarding the Canadian Position, 3 December 1992, 1992/1993 th Annual Report 5 (1993). The report of the mediator, Christopher Beebe, has not been made public. However, one Canadian newspaper has recounted much of its contents. See Jeffrey Simpson, Americans Have A Lot of Vetoes When It Comes to Salmon, Toronto Globe and Mail, Nov. 27, 1997, at A-24.

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States remained deadlocked on the extent of limitations, if any, that were necessary on Alaskan fishers; how to balance interceptions, and what was meant by “benefits equivalent” and how it was to be implemented in a practical manner, needed to be determined. c. The 1999 Agreement 91 In June 1999, Canada and the United States reached an agreement that provided a multi-year resolution of the Pacific salmon dispute.92 The 1999 Agreement does not supersede or replace the 1985 Pacific Salmon Treaty. The principal part of the 1999 Agreement is the adoption of new management arrangements replacing the expired Annex IV to the 1985 Treaty. With the exception of the Fraser River Sockeye and Pink Salmon chapter of new Annex IV, which lasts through 2010, the remaining chapters of Annex IV were to last through 2008.93 What made achievement of the 1999 Agreement possible was that Canada and the United States both accepted the importance of conservation and sustainability of the Pacific salmon resources.94 Moreover, as noted by Canada’s negotiator: “What was obvious was that in spite of notorious and difficult public battles over Pacific salmon, there was the potential for a high degree of cooperation at the technical level on both sides of the border.”95 In Canada’s case, adopting conservation as its primary negotiating objective replaced Canada’s long-standing goal of attaining a balance of the value of the interceptions. In all of the Canadian government publicity trumpeting the completion of the 1999 Agreement, no notion was made of the balance of interceptions, although much was made of the predicted reductions in the U.S. takings of Canadian-origin salmon.96 The shift in emphasis to salmon conser91

92

93 94 95 96

See McRae, supra note 88, at 269–78. This section is drawn, with modification, from Ted L. McDorman, A Canadian View of the 1999 Canada-United States Pacific Salmon Agreement: A Positive Turning Point? 6 Williamette J. of Int’l L. and Disp. Resol. 99, 101–04 (1998); and Ted L. McDorman, The 1999 Canada-United States Pacific Salmon Agreement: Resolved and Unresolved Issues, 15 J. of Env’t L. and Litig. 1–20 (2000). Exchange of Notes between Canada and the United States Constituting an Agreement Relating to the Pacific Salmon Treaty, June 30, 1999, Canada Treaty Series 1999/58. The 1999 Agreement is contained in an exchange of letters between the two governments: Letter from Canadian Ambassador Raymond Chretien to the United States, Note No. 0225, dated June 30, 1999 and Letter from the United States Acting Secretary of State to the Government of Canada, dated June 30, 1999. The exchange of letters is available at www.ncr.dfo.ca/pst-tsp/agree/letter-can_e.htm and www.ncr.dfo .ca/pst-tsp/agree/letter-use.htm (last visited 4 Nov. 2006). See also Pacific Salmon Commission, 1999/2000 15th Annual Report 109–69 (2001). Id. para. 8. McRae, supra note 88, at 270–71. Id. at 272–73. Canada, Department of Fisheries and Oceans, Press Release, Canada and U.S. Reach A Comprehensive Agreement Under the Pacific Salmon Treaty (June 3, 1999); and Canada, Department of Fisheries and Oceans, Backgrounder, Announcement Highlights (June 3, 1999).

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vation was not unwarranted. Salmon stocks, such as chinook, were in serious need of protection, and the only appropriate response was the joint American-Canadian action. In the end, Canada and the United States decided that an agreement with the goal of placing some constraints on salmon fishing activity, irrespective of an absolute balance of interceptions, was better than no agreement. 6. Other Fisheries Agreements97 a. Pacific Halibut Canada-United States agreements regarding Pacific halibut date back to 1923,98 with the most recent complete text being the 1979 Protocol to the 1953 Halibut Convention.99 The 1923 Halibut Convention is noteworthy in that it was the first treaty to be concluded that contained provisions for the conservation of a deep-sea fisheries stock.100 The International Pacific Halibut Commission (IPHC), created by the halibut agreements, is the longest-standing international fisheries management organization in the world. The IPHC has broad authority to study and manage the Pacific halibut fishery, and regulates all halibut found in the Pacific waters of the United States and Canada.101 The IPHC is empowered to establish open and closed seasons in each area, limit the size of the fish and the quantity of the catch to be taken from each area, regulate incidental catch, establish the size and character of halibut fishing appliances to be used in any area, and make regulations to aid in data collection.102 The IPHC is responsible for establishing the total allowable catch (TAC) for the Canada-U.S. commercial halibut fishery. The Commission has created ten regulatory areas and one closed area.103 Part of the annual TAC determination is the allocation of the total TAC amongst each of these areas. In 2006, the total recommended TAC was

97

98

99

100

101 102 103

This section is based primarily on research undertaken by Jennifer Bond as the basis for Jennifer Bond & Ted L. McDorman, Canada’s Other West Coast Fisheries Agreements: Halibut, Hake, Tuna and Salmon Outside 200 (in progress). Convention Between the United States and Canada for the Preservation of the Halibut Fisheries of the Northern Pacific Ocean, Mar. 2, 1923, entered into force Oct. 21, 1924, 32 L.N.T.S. 93. Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, Mar. 2, 1953, entered into force Oct. 28, 1953, Canada Treaty Series 1953/14, as amended by Preservation of Halibut Fishery of Protocol, with Annex, Amending the Convention of March 2, 1953, Mar. 29, 1979, entered into force Oct. 15, 1980, Canada Treaty Series 1980/44. International Pacific Halibut Commission, History, available at http://www.iphc.washington . edu/halcom/pubs/pamphlet/1IPHCHistoryPage.pdf (last visited Jan. 15, 2008). Pacific Halibut Convention, supra note 99, art. I(3). Id. art. III(3). International Pacific Halibut Commission, IPHC Regulatory Areas, available at http://www. iphc .washington.edu/halcom/commerc/regmap.htm (last visited Jan. 14, 2008).

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69,860,000 pounds.104 The region off the coast of British Columbia is designated “Area 2B,” and in 2006, the IPHC recommended a TAC of 13,220,000 pounds for this jurisdiction (19 percent of the overall TAC).105 The U.S. waters south of British Columbia, Area 2A, were allocated 1,380,000 pounds, and the remaining TAC was assigned to Alaskan waters.106 b. Albacore Tuna In August 1979, 19 U.S. tuna vessels were arrested for fishing without authorization in Canada’s Pacific coast 200-n.m. fishing zone.107 The U.S. vessels were acting consistently with the then-U.S. policy that tuna (and other highly migratory species) were exempt from a coastal state’s exclusive authority over fisheries resources within the state’s 200-n.m. zone.108 One of the ramifications of the Canadian seizure of the U.S. tuna vessels action was the 1976 Magnuson Fishery Conservation and Management Act, under which the United States automatically imposed a trade embargo on tuna and tuna products from Canada.109 Although the embargo was lifted in 1980, Canada successfully argued before a dispute settlement panel of the General Agreement on Tariffs and Trade (GATT) that the U.S. measure was inconsistent with the trade obligations owed to Canada by the United States under the GATT.110 The more productive outcome was the 1981 Canada-U.S. Albacore Tuna Treaty.111

104

105 106 107

108

109

110

111

International Pacific Halibut Commission, News Release, Halibut Commission Completes 2006 Annual Meeting, Jan. 23, 2006, on the IPHC website available at www.iphc.washington.edu (last visited Jan. 15, 2008). Id. Id. See generally N. Peter Rasmussen, Tuna War: Fishery Jurisdiction in International Law, 1981:1 U. Ill. L. Rev. 755, 764–65 (1981). This U.S. position on tuna (and other highly migratory species) is described in William T. Burke, Highly Migratory Species in the New Law of the Sea, 14 Ocean Dev. & Int’l L. 273, 303–10 (1984). See also Christopher J. Carr, Transformations in the Law Governing Highly Migratory Species: 1970 to the Present, in Bringing New Law to Ocean Waters 55, 65–69, 75–83 (David D. Caron & Harry N. Scheiber eds., 2004). Fishery Conservation and Management Act, Public Law 94–265, 90 Stat. 331, sec. 205, 16 U.S.C. § 1825(a). The operation of this legislation is described in detail in Ted L. McDorman, The GATT Consistency of U.S. Fish Import Embargoes to Stop Driftnet Fishing and Save Whales, Dolphins and Turtles, 24 Geo. Wash. J. Int’l L. & Econ. 477, 501–04 (1991). United States – Prohibition of Imports of Tuna and Tuna Products from Canada (Panel decision), reprinted in General Agreement on Tariffs and Trade, Basic Instruments and Selected Documents 29th Supp. 91–109 (Geneva, 1983). See McDorman, supra note 109, at 511–12 n. 239. Treaty Between Canada and the United States on Pacific Coast Albacore Tuna Vessels and Port Privileges, May 26, 1981, entered into force July 29, 1981, Canada Treaty Series 1981/19.

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The 1981 Albacore Tuna Treaty was principally a reciprocal fishing rights agreement with no restrictions placed on the number of vessels from one state that could harvest in the waters of the other, and a similar absence of restrictions on the amount of albacore tuna that could be taken by these vessels. An important proviso was that visiting vessels had to meet registration and reporting requirements.112 The Treaty also allowed fishing vessels to access certain ports in the other party’s jurisdiction without incurring special fees or duties.113 From Canada’s point of view, the 1981 Treaty represented United States’ acknowledgement of Canadian authority over the tuna resources in Canada’s 200-n.m. fisheries zone. Complaints by U.S. fishermen that Canadian vessels were “overcrowding” U.S. fishing grounds, and that albacore tuna stock migration had resulted in Canadians receiving “disproportionate benefits” under the 1981 Treaty, led the United States to initiate negotiations to amend the 1981 Treaty.114 In 2002, an Amendment to the 1981 Treaty was agreed upon.115 The 2002 Amendment substantially changes the 1981 Treaty in that fishing vessels from each state are allowed into the other state’s waters for only a limited amount of time each year. The time allotments were agreed upon for a three-year period, with the Amendment providing that if a new arrangement is not in place by the end of the third year, the last agreed upon time allocation will carry forward.116 c. The Hake/Whiting Agreement 117 Canadian and U.S. scientists, fisheries managers, and fishers have been working together since the 1970s to establish a common total allowable catch (TAC) for Pacific hake/whiting,118 and a formal joint scientific assessment process was established in 1997.119 Despite these collaborative efforts, the two countries were unable to agree on how to divide the TAC between them, with the United States generally

112 113 114

115

116 117 118

119

Id. annex A, paras. (1) and (4). Id. art. II. The specific ports were listed in annex B. Letter of Submittal from Colin Powell to President of the United States regarding the Agreement Amending the Treaty between the United States and Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges, Oct. 9, 2002, U.S. Senate, Treaty Doc. No. 108–1. Agreement Amending the Treaty between the United States and Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges, notes exchanged Aug. 21, 2002 and Sept. 10, 2002, entered into force May 28, 2004 (copy on file with author). Id. annex C, (3), (4), (5) and (8). “Hake,” the Canadian term, and “whiting,” the U.S. term, refer to the same species of fish. David Balton, Deputy Assistant Secretary of State for Oceans and Fisheries, Comments to the Senate Committee on Foreign Relations, 29 September 2005, available at http://www.state.gov/g/oes /rls/rm/54128.htm (last visited Jan. 15, 2008). Canada, Department of Fisheries and Oceans, Canada and the United States Sign Treaty to Improve Stewardship of Pacific Hake, available at http://www-comm.pac.dfo-mpo.gc.ca/pages/release/ p-releas/2003/nr066_e.htm (last visited Jan. 15, 2008).

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claiming 80 percent of the TAC and Canada claiming 30 percent.120 This resulted in overfishing and a rapidly declining fish stock. In November 2003, Canada and the United States finalized the Hake/Whiting Agreement.121 The Agreement applies to all hake/whiting located in the Pacific coast waters of the United States and Canada, except for the stock found in Puget Sound and the Strait of Georgia. The Agreement provides that the U.S. allocation is to be 73.99 percent of the TAC, and the Canadian allocation 26.12 percent.122 Despite the fact that the Agreement is not yet in force, data on 2005 hake/whiting landings suggest that both countries are roughly adhering to this allocation, with the United States harvesting 72.1 percent of total landings and Canada harvesting 27.8 percent.123 The 2002 Agreement establishes a complex arrangement involving four distinct but interactive bodies for the identification of the TAC. Although the Hake/ Whiting Agreement is not yet in force, the pre-existing mechanisms involving the Stock Assessment Teams and Stock Assessment Review Panels have indicated that their work has been “undertaken in the spirit and intent” of the Hake/Whiting Agreement.124

V. Conclusion Generally speaking, Canada and the United States ocean law relations in the North Pacific are currently on an “even keel.” The two states have found ways to cooperate and agree on many operational matters, despite the existence of international ocean disputes between the two states. These disputes involve, amongst other things: overlapping offshore claims in Dixon Entrance and seaward of the Juan de Fuca Strait; differences respecting Canada’s claim that the waters of Dixon Entrance, Hecate Strait, and Queen Charlotte Sound are historic internal waters; and differing views on the salmon provisions of the 1982 Law of the Sea Convention and their implementation in the 1985 Pacific Salmon Treaty. As regards the 120 121

122 123

124

Balton, supra note 118. Agreement between Canada and United States on Pacific Hake/Whiting, Nov. 21, 2003, not yet in force, text available at Department of Fisheries and Oceans Canada, www-comm.pac.dfo-mpo .gc.ca/pages/release/bckgrnd/2003/HakeAgreement_e.htm (last visited Jan. 15, 2008). The United States Senate approved the Hake/Whiting Agreement in Nov. 2005, see www.senate.gov/pagelayout/ legislative/one_item_and_ teasers/trty_act.htm (last visited Jan. 15, 2008). Id. art. III(2). Thomas Helser, Ian Stewart, Guy Fleischer, and Steve Martell, Stock Assessment of Pacific Hake (Whiting) in U.S. and Canadian Waters in 2006, 17–18, available at http://www.pcouncil.org/ groundfish/gfsafe0406/2006_hake_assessment_FINAL_ENTIRE.pdf (last visited Jan. 15, 2008). Id. at 17.

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disputed Dixon Entrance maritime boundary, Canada and the United States have found ways to cooperate, while “agreeing-to-disagree.” This is exemplified by the explicit understandings by the two states respecting U.S. submarine passage and the fisheries enforcement arrangements, the latter of which are designed to defuse potential problems. Regarding the Alaska tanker traffic matter, an ocean issue that did not directly engage international ocean law, the two states are willing to undertake pragmatic steps to respect the position of each other. The 1985 Pacific Salmon Treaty and the 1999 Agreement are examples of a bilateral accord taking precedence over continued disagreement on principles. The halibut, hake/whiting, and albacore tuna arrangements fit the general approach of the two states cooperating on ocean law matters.

Chapter X Maritime Boundary Delimitation and Cooperative Management of Transboundary Hydrocarbons in the Ultra-Deepwaters of the Gulf of Mexico Richard J. McLaughlin I. Introduction1 The Gulf of Mexico has long been recognized as one of the world’s most important oil and gas provinces. Access to the hydrocarbon resources in the ultra-deepwaters of the U.S.-Mexico maritime boundary region is of immense importance to the two nations. In 1997, the United States ratified a maritime boundary agreement with Mexico that delimited the Gulf of Mexico based on an equidistance method.2 Although most of the Western Gulf of Mexico falls within the 200 nautical mile (n.m.) exclusive economic zones (EEZs) of either the United States or Mexico, the water body’s geography creates a triangular area roughly the size of the State of New Jersey, known as the Western Gap, which falls beyond the national jurisdiction of either nation.3 A succeeding bilateral treaty finalized in the year 2000 asserted the extention of each nation’s continental shelf into the Western Gap and delimited that portion of the Gulf of Mexico between the two nations as well.4 These treaties allow both nations to move forward with hydrocarbon development along the entire U.S.-Mexico maritime boundary without the potential threat of territorial dispute claims by the other.

1

2

3 4

This chapter has been adapted from a longer article published in the journal Ocean Development and International Law. See infra note 154. Treaty on Maritime Boundaries between the United States of America and Mexico, May 4, 1978, 17 I.L.M. 1073 (1978). The Treaty languished in the Senate for 19 years prior to being ratified. For a discussion of why the United States delayed ratification, see Dabney Welsh, Access to Our Backyard Reserves: A Final Resolution of the Western Gulf of Mexico’s Maritime Boundaries, 23 Hous. J. Int’l L. 609, 614–21 (2001). See infra text at notes 51–61. See Treaty Between the Government of the United States of America and the Government of the United Mexican States on the Delimitation of the Continental Shelf in the Western Gulf of Mexico Beyond 200 Nautical Miles, June 9, 2000, U.S.-Mex., S. Treaty Doc. No. 106–39 (2000).

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Discoveries of hydrocarbon resources in the ultra-deepwater areas of the Gulf of Mexico are occurring at an accelerated pace.5 An enormous new offshore find made public in September 2006 has been projected to boost current U.S. oil reserves by as much as 50 percent.6 This, along with a number of other recent major discoveries, are generating significant industry interests in the deepest frontier areas along the U.S.-Mexico maritime boundary. This optimism, however, must be tempered by the recognition that efficient development and conservation of these important resources will be hindered by the uncertain and confused legal and policy regime currently governing transboundary hydrocarbons in the deepest portions of the Gulf. This paper examines the geographical locations and commercial potentials of these newly discovered ultra-deepwater production zones. The following sections analyze evolving customary and conventional legal norms that encourage cooperation in the exploration and exploitation of transboundary hydrocarbon resources such as those found in the maritime boundary region of the Gulf of Mexico. Existing legal and political obstacles to improved collaboration are also highlighted. The paper will conclude by recommending future actions that will improve the prospects of creating an effective joint development mechanism for transboundary hydrocarbons in the Gulf of Mexico. It is the author’s contention that the U.S. and Mexican Governments should take a more proactive and collaborative approach towards managing the transboundary hydrocarbon resources in the deep waters of the Gulf of Mexico. Efforts beyond those put forward by private sector interests need to be examined. If successful, the U.S.-Mexico Maritime Boundary Region can serve as a model of cooperative management, rather than an arena for competition and legal strife. Such a model would benefit both nations as well as serve as a useful guide for the rest of the international community.

5

6

The term “deepwater” is defined by the U.S. government as water depths of greater than 1,000 feet (305m), and “ultra-deepwater” as water depths of greater than 5,000 feet (1,524m). Leanne S. French et al., Deepwater Gulf of Mexico 2005: Interim Report of 2004 Highlights, U.S. Dept. of Interior, Minerals Management Service, May 2005, O.C.S. Rep. M.M.S. 2005–023. Russell Gold, In Gulf of Mexico, Industry Closes in on New Oil Source, Wall St. J. Online, Sept. 5, 2006, at A1. Although not clear, the author seems to assume that this estimate reflects all of the recent discoveries in the ultra-deepwater Wilcox Trend and not the Jack discovery alone.

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II. Hydrocarbon Development in the Ultra-Deep Gulf of Mexico 1. Status of Ultra-Deepwater Development Despite tremendous costs and risks associated with deep water exploration and production, the United States is encouraging the development of hydrocarbon resources in deeper and more remote parts of the Gulf for a variety of reasons. First, soaring global oil prices make expensive ultra-deep drilling technologies more cost competitive.7 Second, legal constraints prohibiting offshore exploration in large portions of the U.S. coastal waters and diminishing production in existing offshore fields require that more focus be placed on deepwater areas of the Gulf where drilling is allowed.8 Finally, there is a growing and broad-based recognition that the United States is dangerously dependent on energy supplies imported from geopolitically unstable parts of the world and must quickly move to domestic sources of hydrocarbons, alternative fuels, and renewable energy supplies.9 Mexico is also aggressively searching for new sources of oil in the deepwaters of the Gulf. According to government estimates, production at its largest producing area, the Cantarell offshore oil field located in the shallow Bay of Campeche, is expected to decline from its current 2.1 million barrels per day to between 1.4 million and 520,000 barrels per day by 2008.10 The oil industry provides more than one-third of Mexico’s government revenues, and any decline in current production levels

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Extreme physical conditions coupled with myriad technical difficulties make ultra-deepwater drilling exorbitantly expensive. Each rig may cost upwards of one to two billion dollars in up-front capital expenditures. Roger N. Anderson & Albert Boulanger, Prospectivity of the Ultra-Deepwater Gulf of Mexico, Jan. 24, 2003, at 8, available at http://leanenergy.ldeo.columbia.edu/. See also Laura Peterson, Big Oil Wields Ultra Deep Influence, Energy Bull., Dec. 20, 2004, available at http://www.energybulletin.net/3691.html. In 1990, President Bush placed a moratorium on offshore exploration in approximately 80 percent of the nation’s EEZ. President Clinton extended the moratorium until 2012. Currently, 54 percent of leases in the Gulf of Mexico are classified as deepwater. See generally U.S. Department of the Interior, Minerals Management Service, Leasing Oil and Natural Gas Resources Outer Continental Shelf, Feb. 13, 2006, at 7. In a recent survey of over 100 of America’s most influential national security experts, sponsored by Foreign Policy magazine and The Center for American Progress, 82 percent listed reducing dependence on foreign oil as a major corrective for enhancing national security. The Terrorism Index, Center for American Progress Website, June 14, 2006, available at http://www.americanprogress .org. For an important and thoughtful explanation of the U.S.’s concern over energy security, see remarks by Senator Richard Lugar, Energy Security: Cause for Cooperation or Competition?, The Brookings Institution 90th Leadership Forum Series, Mar. 13, 2006. Robert Collier, Mexico’s Oil Bonanza Starts to Dry Up, San Francisco Chron., June 30, 2006. See also David Shields, Pemex: Problems and Policy Options, Center for Latin American Studies, U.C. Berkeley Policy Papers, Feb. 2006, at 2–5.

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will likely have dire consequences on the nation’s economy.11 A decline may also impact the United States because it has been suggested that a significant reduction in oil revenues will leave the Mexican government with less money to deal with domestic issues and thus prompt more of its citizens to contemplate emigrating north to the U.S.12 On the positive side, geologic studies have shown that the deepwater and ultradeepwater areas of the Gulf of Mexico contain huge quantities of hydrocarbons. Industry estimates range as high as 50 billion barrels of crude oil equivalent (BOE).13 These potential reserves are located on both sides of the U.S.-Mexico maritime boundary. The U.S. has drilled more than 900 exploration wells in its portion of the deepwater Gulf during the past decade.14 The most recent oil and gas lease sale in August 2006 was the best in nine years, with 67 percent of all tracts in water depths of greater than 400 meters.15 Much of this industry interest can be attributed to a recent series of important discoveries in a large geological structure known as the Lower Tertiary Wilcox Trend (Wilcox Trend). During the past five years, more than 12 billion barrels of oil in place have been discovered in this giant 34,000 square-mile region that straddles the maritime boundary between the United States and Mexico.16 Nine out of 13 exploratory wells that have been drilled in the Wilcox Trend have resulted in recoverable oil, an incredible 69 percent success rate.17 In contrast, Mexico is just beginning to explore its deepwater regions. It has acquired seismic surveys of promising areas of the Gulf and has drilled a small number of wells out to a depth of about 3,000 feet.18 One industry analyst, refer-

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Shields, id. at 5 (indicating that the oil industry accounted for 37.6 percent of government revenue in 2005, up from just 30 percent at the beginning of the decade). Mexico: Oil Depletion and Illegal U.S. Immigration, Worldpress.org, Apr. 25, 2006, available at http://www.worldpress.org/Americas/2326.cfm. John C. Roper, Deep Seas Hold Key to Oil’s Future, The Houston Chron., May 1, 2005, Business at 1. See also Anderson & Boulanger, supra note 7, at 2. In September 2004, President Vicente Fox created an international stir by confirming statements made by Pemex officials that Mexico’s Perdido Foldbelt geologic region alone potentially contains 54 billion B.O.E. Shields, supra note 10, at 10. This large estimate provided by the Mexican Government has been questioned by many observers as highly speculative. Mexico’s Pemex in a Corner After Oil Find Boast, Sept. 10, 2004, available at http://www.planetark.com/dailynewsstory.cfm/newsid/ 27056/story.htm. French 2005, supra note 5, at ix. Western Gulf of Mexico Sale 200 Attracts $462.8 Million in Bids, Minerals Management Service Press Release #3547, Aug. 16, 2006. Dave Meyer et al., Emergence of the Lower Tertiary Wilcox Trend in the Deepwater Gulf of Mexico, World Oil, May 2005, at 72–77, also available at: http://www.worldoil.com/magazine/ MAGAZINE_DETAIL. asp?ART_ID=2596&MONTH_YEAR=May-2005. Id. Don Lyle, Mexico Zeroes in on Deep Water: Pemex Hooks Big Pay in Deepwater Gulf of Mexico, E&PNet.Com, July 4, 2006, available at www.eandpnet.com/articles/everyMonth/5927.htm.

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ring to the deepwaters and ultra-deepwaters of Mexico, asserted that “there are not many untouched basins around the world. In fact I can’t think of any untouched basins around the world, with such high potential that remain unexplored.”19 2. Obstacles to Development Despite its extraordinary potential, exploring and exploiting the ultra-deepwater hydrocarbon resources of the Gulf of Mexico present daunting technological and financial challenges. Rigs in the deepest waters carry price tags of between $1 to 2 billion, and it costs between $50 to 100 million to drill a single well.20 Despite the tremendous costs and time associated with ultra-deepwater research and development, the potential rewards of discovering a huge play21 has encouraged so-called “major” and “non-major” companies to participate in ultra-deepwater discovery efforts.22 In addition, financial incentives contained in the 1995 Deepwater Royalty Relief Act (DWRRA) reduce the risks substantially.23 Through 2005, there have been 219 discoveries in waters deeper than 1,000 feet in the U.S. Gulf of Mexico.24 Of these discoveries, 49 lie at depths greater than 5,000 feet.25 Unlike the U.S., Mexico is currently incapable of exploiting hydrocarbon resources in the deeper waters of the Gulf. Mexico’s state-run oil company, Petroleos Mexicanos (Pemex), has publicly stated that it will need investments of an additional $15 billion annually to be in a position to develop its ultra-deepwater hydrocarbons.26 It will also need technical expertise and access to U.S.-based infrastructure, such as pipelines, that are currently controlled by major oil companies. Efforts to

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Marshall DeLuca, Deepwater Dreams, OilOnline, Oct. 26, 2005, available at http://www.oilonline .com/news/features/oe/20051026.deepwate.19507.asp. Roper, supra note 13. The term “play” is defined as “a group of geologically related hydrocarbon accumulations that share a common history of hydrocarbon generation, accumulation, and entrapment.” Catherine Dunkel & Kenneth Piper, 1995 National Assessment of United States Oil and Gas Resources Assessment of the Pacific Outer Continental Shelf, O.C.S. Rep. M.M.S. 97–0019, at 5. According to the Minerals Management Service, “[i]n the past, major companies were responsible for the majority of discoveries and led the way into the deepest waters. However, the number of discoveries by nonmajor companies has surpassed that by major companies.” Leanne S. French et al., Deepwater Gulf of Mexico 2006: American’s Expanding Frontier, U.S. Department of Interior Minerals Management Service, O.C.S. Rep. M.M.S. 2006–022, May 2006, at 19. Deepwater Royalty Relief Act (DWRRA) of 1995, 43 U.S.C. 1337. The DWRRA was enacted to spur deepwater leasing activity. It provides suspension of royalty payments up to certain levels of production based on water-depth. French 2006, supra note 22, at fig. 13. Id. at app. A. David Shields, Pemex Struggles to Keep Up Output, Offshore, at 3, available at http://www .offshore-mag.com/Articles/Article_Display.cfm?Article_ID=237137.

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attract foreign participation have, however, been obstructed by Mexico’s domestic legal system. Most importantly, Article 27 of Mexico’s Constitution provides that the state has “inalienable” ownership of its subsoil resources.27 This provision has been interpreted to mean the state cannot sell any part of its resources and prohibits foreign private investment in any type of joint venture or partnership with Pemex.28 Citing Article 27, a number of international oil companies have rejected Pemex’s offers to bid on contracts relating to its ultra-deepwater exploration activities. According to these oil company officials, the contracts “do not recognize the high cost and high risk of deep water.”29 Informed observers believe that it is unlikely that Mexico will be able to acquire the investments and technology it needs to develop its ultra-deepwater hydrocarbon reserves in the absence of significant legal reform relating to foreign participation in the nation’s oil and gas industry.30 Technological advancements and market conditions have finally reached a point in which production of hydrocarbons in the ultra-deepwater U.S.-Mexico boundary region of the Gulf of Mexico is commercially feasible. Before actual production begins, however, both nations must ensure that their activities are in strict compliance with the principles of international law and in conformance with evolving standards of environmental stewardship. Taking into account the transboundary characteristics of many of these hydrocarbons, some form of bi-national cooperation is necessary to effectively manage the shared resources, protect the oceanic environment, and comply with evolving norms of international law.31 It is important that the U.S. and Mexico address these issues today rather than put them off until they become a critical political problem in their bilateral relations.

III. Description of the Transboundary Hydrocarbon Resources in the U.S.-Mexico Maritime Boundary Region 1. Wilcox Trend The Wilcox Trend is a geologic formation that underlies much of the Gulf of Mexico’s maritime boundary region. The Trend contains a thick hydrocarbon-rich sand section deposited in the Lower Tertiary period (from 66 to 38 million years ago). Most of the oil produced to date in the Gulf of Mexico is trapped in deposits

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Mex. Const. Tit. I, Art. 27. David Luhnow, As Mexico’s Oil Giant Struggles, Its Laws Block Foreign Help, Wall St. J., June 15, 2005, at 1. See also discussion infra notes 161–168 and accompanying text. Exxon, BP Reject Mexico Offer for Oil Drill Contracts, Bloomberg News, Feb. 24, 2006. Shields, supra note 10, at 5–7; Luhnow, supra note 28. See infra Part IV.

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from the later Miocene period (24 million years and later).32 Commercially viable reserves in the older and deeper rocks of the Lower Tertiary period were discovered only recently and promise even more potential play than the Miocene deposits.33 These Lower Tertiary reservoirs are located in some of the deepest waters in the Gulf ranging from about 6,000 to 10,000 foot depth. Tapping into these Lower Tertiary reservoirs will require wells of at least 30,000 foot depth. Despite the technological difficulties and high costs associated with drilling in such deep and remote areas, industry analysts believe that existing appraisal wells indicate sufficient commercial potential to warrant the high costs.34 An important feature of the recent discoveries on the Wilcox Trend is that they are widely dispersed over the entire geologic structure, a distance of several hundred miles or more. Major discoveries are located from the Walker Ridge area in the eastern portion to the Alaminos Canyon area in the far western portion. Another recent discovery, the Kaskida well, yielded the second thickest oil bearing zone ever found in the Gulf of Mexico.35 Kaskida is located roughly in the middle of the Wilcox Trend in Keithley Canyon. These initial efforts indicate that many additional discoveries in the region, on both sides of the international boundary, are likely in coming years. The larger Wilcox Trend contains two especially important plays: the Perdido Foldbelt and the Walker Ridge. a. Perdido Foldbelt Located about 125 miles east of the South Texas mainland, near the U.S.-Mexico maritime boundary, is an especially promising ultra-deep water area known as the Perdido Foldbelt. This foldbelt is a series of northeast-southwest trending anticlines that are a deep basin component of the Wilcox Trend.36 To date, there have been more than six major discoveries in the Alaminos Canyon region of the Perdido Foldbelt, containing a combined 1 billion BOE or more.37 Over 20 years ago, petroleum geologists identified the Perdido Foldbelt as likely containing the

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French 2005, supra note 5, at 10 (99 percent of total Gulf of Mexico proved reserves are in reservoirs younger than 24 million years. However, this figure does not include the most recent Tertiary discoveries). Angel Gonzalez, U.S. Gulf Oil Discovery Lifts Hopes of New Geological Play, Market Watch from Dow Jones, Aug. 31, 2006, available at http://www.rigzone.com/news/article.asp?a_id=35748. Gold, supra note 6. Id. Id. at 10; see also Larry Zarra, Wilcox Depositional Systems: Shelf to Deep Basin, New Orleans Geological Society Log, Apr. 2006, at 7, 26. These discoveries include: Unocal’s Trident and Tobago; Shell’s Baha and Great White; Chevron’s Tiger and Silvertip; and Total’s Gotcha. Don Lyle, Discoveries Wait for Infrastructure, E&P Net. Com, Apr. 4, 2004, available at http://www.eandpnet.com/articles/everyMonth/2527.htm. See also Total Boosts Alaminos Canyon Find, Offshore 247.Com, July 13, 2006.

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largest and most attractive structural traps for significant quantities of oil and gas in the deepwater regions of the Western Gulf of Mexico.38 Recent discoveries have justified those predictions and have placed the play at the forefront of ultra-deepwater exploration regions. The Perdido Foldbelt extends south more than 100 miles beyond the U.S.-Mexican maritime boundary. Given the declining opportunities in its existing shallowwater offshore fields, Mexico has asserted that production from ultra-deep water is an important part of its energy future.39 After undertaking extensive 3D seismic surveys and drilling three wildcat wells in the area, Pemex recently announced that it will drill 11 exploratory wells near the U.S.-Mexico border, opposite the prolific Alaminos Canyon group of discoveries on the U.S. side.40 Production of hydrocarbons in the ultra-deep waters of the Perdido Foldbelt is significantly hindered by the lack of supporting infrastructure in this remote part of the Gulf. Shell Offshore plans to begin production on the Great White, Tobago, and Silvertip discoveries in 2010.41 The nearest pipelines, however, are about 50 miles away at ExxonMobil’s Hoover-Diana complex, and there are no immediate plans to expand this infrastructure south to service the Alaminos Canyon discoveries.42 Some observers have speculated that this region could be the location of the Gulf of Mexico’s first floating production, storage and offloading vessel (FPSO), which would alleviate the need for pipelines.43 However, no public announcements

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See R.Q. Foote, R.G. Martin, and R.B. Powers, Oil and Gas Potential of the Maritime Boundary Region in the Central Gulf of Mexico, 67:7 The Am. Ass’n of Petroleum Geologists Bull. 1047–65, 1063 (July 1983). Estimates of in-place resources (not of recoverable amounts) in the U.S.-Mexico maritime boundary region of the Gulf range from 2.24 to 21.99 billion barrels of oil and 5.48 to 44.40 trillion cubic feet of natural gas. Id. See supra notes 18–19 and accompanying text. Lyle, supra note 18, at 2. See also Vinicio Suro-Perez (Acting Planning and Evaluation Vice President Pemex), Mexico GOM: Offshore E&P Activities and Objectives for the Years Ahead, Powerpoint presentation to the International Oil and Gas Business Days, Oslo, Norway, Aug. 2005, available at www.intsok.no/PHP/index. php?id=3821. Ray Tyson, Spar System Chosen for Perdido Project, Petroleum News, Dec. 10, 2006. Shell is building a regional processing hub capable of handling 130,000 barrels of oil equivalent per day and designed to gather, process, and export production within a 30-mile radius of the hub. It is unclear how this oil will be transported from the hub to shore. Don Lyle, Discoveries Wait for Infrastructure, E&PNet.Com, Apr. 2004. FPSOs offer an option to develop remote areas of the Gulf of Mexico that do not currently have existing infrastructure. They are large moored tanker ships that processes and temporarily hold production from nearby sub sea-wells. The ships offload the stored oil to lighter vessels that transport it to onshore facilities. FPSOs have been used for years in international operations, such as in the North Sea. However, they were just approved by the Minerals Management Service for use in the Gulf of Mexico in 2002. See MMS Reaches Decision About FPSP’s in Gulf of Mexico, M.M.S. News Release, Jan. 2, 2002, available at http://www.gomr.mms.gov/homepg/ whatsnew/newsreal/020102.html.

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have been made regarding any plans for an FPSO, nor has there been any request to the Minerals Management Service for a permit.44 Complying with customary and conventional norms of international law may also impede the development of these transboundary offshore oil and gas fields. The Perdido Foldbelt straddles the U.S.-Mexico maritime boundary, and it is currently unclear precisely what rights and obligations each nation has in regards to ownership and management of the transboundary fugacious resources located on its side of the boundary.45 Unlike most natural resources, transboundary fugacious resources may be located in one nation one day, but migrate to another the next day. For example, the United States may pump oil from a transboundary pool, causing the oil to migrate across the boundary and thereby deprive the co-owning nation, Mexico, of its potential share of the resource.46 The international legal implications of developing transboundary hydrocarbon resources will be further discussed in Part IV. b. Walker Ridge The second major ultra-deepwater play in the Wilcox Trend is Walker Ridge. To great public fanfare, industry representatives announced in September 2006 that massive amounts of hydrocarbons may be located in the Walker Ridge play.47 Successful flow tests showing 6,000 barrels of crude oil a day from the Jack II well alone have been touted as the largest new domestic source of oil since the discovery of Alaska’s North Slope more than 30 years ago.48 Analysts have estimated that the Walker Ridge finds could boost the nation’s current reserves of 29.3 billion barrels by 50 percent.49 As in the Perdido Foldbelt, it is unclear how many years it may take before sufficient supporting infrastructure is extended to this portion of the Gulf of Mexico to permit full commercial production. However, the Cascade project is scheduled to begin commercial production in 2009, becoming the first Wilcox Trend discovery to come on line.50

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Id. The term “fugacious” is related to the word “fugitive” and means “fleeing or apt to flee; passing quickly away.” Websters New World Dictionary 584 (C. Ed. 1962). So-called fugacious resources include liquid oil and gas, migratory wild animals and water resources. See Richard J. McLaughlin, Foreign Access to Shared Marine Genetic Materials: Management Options for a Quasi-Fugacious Resource, 34 Ocean Dev. & Int’l L. 297, 316–17 (2003). See also infra Part IV. Devon Energy Announces Positive Results From Production Test of Jack Well, Devon Energy Corporation Investor Relations, Sept. 5, 2006, available at http://phx.corporate-ir.net/phoenix.zhtml? c=67097&p=irol-newsArticle&t=Regular&id=901621&. Devon owns 25 percent of the Jack Well, Chevron owns 50 percent, and the remaining 25 percent is owned by Norway’s Statoil. Gold, supra note 6. Id. Gonzalez, supra note 33.

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Although existing wells located in the Walker Ridge are not as close to the boundary with Mexico as those in the Perdido Foldbelt, it is likely that future discoveries will be made in areas much closer to the border. Consequently, there are important reasons to begin planning for the possibility of transboundary reservoirs on the eastern portion of the Wilcox Trend, just as in the Perdido Foldbelt to the west. c. Western Gap A third transboundary region of the Gulf of Mexico that is receiving increased attention from the international oil and gas industry is the area known as the Western Gap, which lies on the Wilcox Trend approximately halfway between the Yucatan Peninsula and the coast of Texas. The Western Gap is a region slightly smaller than the State of New Jersey, and falls outside of the 200-mile EEZ of the United States and Mexico. Geological surveys suggest that favorable conditions exist for the occurrence of oil and natural gas resources in many parts of the Western Gap region.51 Because of its unique international location and hydrocarbon potential, access to the Western Gap is of extreme importance to both nations for legal, economic, environmental, and national security purposes. International law provides exclusive coastal state dominion and control over the seabed resources of the continental shelf beyond 200 miles, out to a maximum distance of 350 miles from the coast.52 After scientific studies provided evidence that the Gap qualifies as part of each nation’s extended continental shelf, the U.S. and Mexico engaged in negotiations to divide the area between them.53 International legal concerns prevented both nations from attempting to explore or exploit the petroleum resources of the Western Gap until they finalized negotiations on a Delimitation Treaty that defined the boundary and claimed the region as an extension of each nation’s continental shelf. Treaty negotiations were premised on the assertion by both nations that all of the seabed and subsoil of the submarine areas beyond the 200-mile EEZ met the legal requirements described in Article 76 of the 1982 United Nations Convention on the Law of the Sea.54 The Delimitation Treaty, signed on June 9, 2000, gave Mexico access to approximately 62 percent of the Western Gap, while the U.S. retained about 38 percent.55 The treaty also established a 2.8-n.m. buffer zone along the new boundary to account for the possibility that straddling oil and gas reservoirs may be located

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See generally Foote et al., supra note 38, at 1063. See infra notes 95–120 and accompanying text. See infra notes 121–30 and accompanying text. Letter of Submittal, U.S. Dept. of State, Washington D.C., July 5, 2000, Sen. Treaty Doc. No. 106–39; reproduced in Ted L. McDorman, et al., International Ocean Law: Materials and Commentaries 139–46, 140 (2005). See also infra note 70 and accompanying text. Treaty, supra note 4.

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there.56 The nations agreed to a ten-year drilling moratorium in the buffer zone while the geological characteristics of the area can be surveyed.57 During the tenyear moratorium period the, two nations “shall meet periodically for the purpose of identifying, locating and determining the geological and geophysical characteristics of such reservoirs.”58 The drilling moratorium automatically expires ten years following the entry into force of the treaty, unless the Parties modify the period by an exchange of diplomatic notes.59 Should the moratorium expire, exploitation of the resources in the buffer zone will still be subject to significant restraints pursuant to customary international law.60 Since the year 2000, nearly 40 ultra-deepwater oil and gas lease tracts have been acquired by a variety of U.S. and international companies on the U.S. side of the Western Gap. Interestingly, a substantial number of these leases adjoin the 2.8-n.m.-wide buffer zone and are subject to the ten-year drilling moratorium. Despite its huge potential as part of the oil-rich Wilcox Trend, developing the resources of the Western Gap faces more than technological obstacles. Significant legal and policy uncertainties also confront companies that seek to exploit the region’s hydrocarbons.61 To date, no nation has engaged in oil drilling on the extended continental shelf beyond its 200-mile EEZ. Moreover, there is no precedent for oil production along an international maritime boundary on the extended continental shelf, such as in the 2.8-mile buffer zone that separates the U.S. and Mexico in the Western Gap. Consequently, those seeking to manage and develop the resources of the Western Gap will face a challenging and unmarked political and legal trail.

IV. International Law and Transboundary Offshore Hydrocarbon Fields 1. International Customary Law Customary international law constitutes a primary basis for cooperation in the exploration and exploitation of transboundary resources. Well-established customary

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Id. art. 4. Id. art. 4(1)–(6). Id. art. 5(1)(a). To the author’s knowledge, no such meeting has yet been held. Id. art. 4(1) & (3). See discussion infra Part IV. See infra notes 131–49 and accompanying text.

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norms place an obligation on every state to prevent activities that may cause damage to the legitimate rights and interests of other states.62 Nations that share transboundary fugacious resources such as oil and gas have long recognized the danger of the so-called “rule of capture” approach to allocating ownership and, conversely, the benefits of cooperative management and exploitation.63 For example, by 1986, about 40 nations that share offshore transboundary hydrocarbon resources had adopted agreements of cooperative management and exploitation.64 Although the precise parameters under customary international law of this obligation to cooperate are still evolving, the absolute ownership or sovereignty over the shared resource granted under the traditional rule of capture has been unambiguously rejected as both wasteful and inequitable.65 It is still too early in the progressive development of any customary rule to determine whether nations that share transboundary oil and gas fields are obligated to adopt certain types of cooperative mechanisms, such as joint development or unitization agreements, before exploitation can begin.66 David Ong, however,

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Gao Zhiguo, Legal Aspects of Joint Development in International Law, in Sustainable Development and Preservation of the Oceans: The Challenge of UNCLOS and Agenda 21 at 629–44, 634 (1995) (citing Judge Jessup in the North Sea Continental Shelf Cases). The “rule of capture” arose in the late 19th century as U.S. courts tried to deal with ownership issues involving oil and gas production from pools underlying the lands of two or more owners. Basically, it provides that ownership is granted to that party that “captures” the natural resource by bringing it within its dominion and control. As early as 1900, the U.S. Supreme Court in Ohio Oil Company v. Indiana, 177 U.S. 190, rejected the “rule of capture” and found that co-owners of oil and gas pools have “co-equal” or correlative rights to extract the common resource and that local governments have the authority to enact conservation legislation designed to secure its “just distribution.” See McLaughlin, supra note 46, at 319–20. Alberto Szekely, The International Law of Submarine Transboundary Hydrocarbon Resources: Legal Limits to Behavior and Experiences for the Gulf of Mexico, 26 Nat. Resources J. 733,766 (1986). McLaughlin, supra note 46, at 320. On evolving international law and transboundary hydrocarbon deposits, see generally Masahiro Miyoshi, The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation (International Boundaries Research Unit, Maritime Briefing No. 5 1999); Rainier Lagoni, Oil and Gas Deposits Across National Frontiers, 73 Am. J. Int’l L. 215 (1979); William Onorato, Apportionment of an International Common Petroleum Deposit, 26 Int’l L. & Comp. L.Q. 324 (1979); William Onorato, Apportionment of an International Common Petroleum Deposit, 17 Int’l L. & Comp. L.Q. 85 (1968). Id. “Joint development” has been broadly defined as “a decision by [two or more nations] to pool any rights they may have over a given area and, to a greater or lesser degree, undertake some form of joint management for the purposes of exploring for and exploiting offshore minerals.” Ian Townsend-Gault, Joint Development of Offshore Mineral Resources – Progress and Prospects for the Future, 12 Nat. Resources J. 275, 275 (1988). “Unitization” refers to a process whereby separate interest owners in a common oil and gas reservoir poll such interest to form a single unit under the sole operation of a single operator, who conducts unit operations for all so that maximum efficiency recovery is accomplished and production and/or revenues therefrom may be shared out in

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summarized the existing customary rules as follows in his comprehensive study of the status of customary law and shared offshore hydrocarbon deposits: First, there is an established obligation to cooperate in reaching agreement on the exploration and exploitation of transboundary deposits. Second, in the absence of such an agreement, there is an obligation to exercise mutual restraint with respect to the unilateral exploitation of the resources.67

According to Ong, unilateral exploitation is strictly prohibited, and even exploration is subject to a general obligation to notify, inform, and consult the other interested states in good faith, because exploratory drilling can be construed as representing irreparable prejudice to the interests of other states.68 This duty to notify and inform is “triggered by the detection of a common deposit, and is to be followed by mutual consultations on the most effective or optimum way to exploit the resources concerned without damaging the legitimate interests of the other interested states.”69 2. The Law of the Sea Convention and Mutual Restraint Mutual restraint in the absence of a cooperative agreement to explore and exploit hydrocarbon resources is strengthened further by Articles 81, 78, and 56 of the 1982 United Nations Convention on the Law of the Sea.70 Mexico has signed and ratified the Convention,71 but the U.S. is not yet a party, although it affirms that most of the Convention represents international customary law.72 Despite broad

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accordance with the agreed basis established in the unit plan. William T. Onorato, Apportionment of an International Common Petroleum Deposit, 26 Int’l L. & Comp. L.Q. 324, 332–33 (1977). David M. Ong, Joint Development of Common Offshore Oil and Gas Deposits: “Mere State Practice or Customary International Law,” 93 Am. J. Int’l L. 771, 802 (1999). Id. Id. at 803. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (1982), 1833 U.N.T.S. 397, reprinted in Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, U.N. Sales No. E.97. V.10 (1997). On November 16, 1993, Guyana became the 60th state to deposit its ratification or accession with the United Nations. The Convention entered into force one year after the date of this 60th deposit. Mexico became a contracting party to the Law of the Sea Convention on Mar. 18, 1983. According to the Restatement (Third) of Foreign Relations Law of the United States: the United States in effect agreed to accept the substantive provisions of the Convention, other than those dealing with deep-seabed mining, in relation to all states that do so with respect to the United States. Thus, by express or tacit agreement accompanied by consistent practice, the United States, and states generally, have accepted the substantive provisions of the Convention . . . as statements of customary international law binding upon them apart from the Convention. Restatement (3d) of Foreign Relations Law of the United States 5, intro. at n. 5 (1987). It should be noted that the deep-seabed mining provisions in Part XI of the Law of the Sea Convention

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consensus in favor of acceding to the Law of the Sea Convention, a small number of Senators, using special procedures of the institution, have kept the Convention from being voted on by the full Senate.73 It is unclear how long the U.S. will remain outside of the Convention as a result of this ongoing political stalemate.74 Article 81 of the Convention grants each coastal state the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. This exclusive right prevents a state from relinquishing its sovereign rights to the minerals in place in its continental shelf or EEZ, if it fails to explore or exploit those resources or remains inactive after another state requests that it cooperate in determining the perimeter or contents of the deposit.75 Articles 78 (dealing with the continental shelf ) and 56 (dealing with the EEZ) further support the notion of mutual restraint by requiring coastal states to exercise due regard to the rights and duties of other states and to act in a manner compatible with the provisions of the Convention. In light of the numerous provisions in the Convention that provide coastal states with the sovereign and exclusive right to explore and exploit the non-living resources of the EEZ and continental shelf, the need for mutual restraint over the unilateral exploration and exploitation of transboundary hydrocarbons is obvious. Moreover, Article 300 requires that “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdic-

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were renegotiated and an agreement was reached in 1994 that substantially modified the provisions that were most objectionable to the United States and other nations. In a footnote to the Restatement (3d), the reporters point out that there is disagreement concerning the customary nature of Articles 64–67, Article 82, Articles 76 and 82 together, the deep seabed mining provisions of Part XI (since renegotiated), and the dispute settlement provisions of Part XV. Id. introductory note, at 6 n. 6. But see William T. Burke, Customary Law of the Sea: Advocacy or Disinterested Scholarship? Yale J. Int’l L. 508, 510 (1989) (criticizing the Restatement for making no attempt to provide details of state practices to support its assertions). According to the U.S. Commission on Ocean Policy, a blue-ribbon panel appointed by the President to make recommendations for a coordinated and comprehensive national ocean policy: If the United States is to ensure that its interests as a maritime power and coastal state are protected, it must participate in this process [of participating in the progressive development of the Law of the Sea Convention]. The best way to do that is to become a party to the Convention, and thereby gain the right to place U.S. representatives on its decision-making bodies. Participation in the Convention would also enhance America’s prestige and credibility as a leader on global ocean issues. U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century, Final Report 445 (2004). See also The U.S. Ocean Action Plan: The Bush Administration’s Response to the U.S. Commission on Ocean Policy 35 (2005). Paul Kelly, Marine Science and Policy: Continental Shelf Petroleum Development, presented at the 30th Virginia Law of the Sea Conference 8 (Dublin, Ireland 2006) (discussing obstacles by “a handful of Senators” and likelihood of accession in the future). Copy on file with author. Lagoni, supra note 65, at 238; Ong, supra note 67, at 774.

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tion and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” Interpretation of this article is open to conjecture, but it has been suggested that it should be read to restrict both the unnecessary or arbitrary exercise of rights, jurisdiction and freedoms, as well as the misuse of powers by the contracting parties.76 Failing to exercise mutual restraint and exploring and exploiting transboundary hydrocarbons unilaterally may be viewed as a violation of good faith or an abuse of rights. 3. Enclosed and Semi-Enclosed Seas under the Law of the Sea Convention The Gulf of Mexico qualifies as a semi-enclosed sea under Article 122 the Law of the Sea Convention.77 Article 123 provides that “States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties.” Despite the hortatory nature of the duty to cooperate, as indicated by the use of the word “should,” rather than “shall,” Article 123 has been interpreted as requiring states with interests in a common resource, such as transboundary hydrocarbons, to negotiate in good faith with a view to concluding an agreement when their interests collide.78 Article 123 contains additional obligations to cooperate in the conservation of marine living resources, protection of the marine environment, and coordination of marine scientific research.79 Development of hydrocarbon resources is not included among this list of activities subject to heightened obligation. It has been suggested, however, that there would be no reason why a principle enjoining cooperation in respect to the management of common marine resources in semi-enclosed seas would be included in the Convention at all if it was meant to establish only a moral obligation, and to have no legal effect.80 At the very least, the Convention provides additional impetus to the view that mutual restraint regarding transboundary hydrocarbons in the U.S.-Mexico maritime boundary region is required, and that additional steps toward cooperatively managing those resources must be undertaken prior to exploration or exploitation.

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Richard J. McLaughlin, UNCLOS and the Demise of the United States’ Use of Trade Sanctions to Protect Dolphins, Sea Turtles, Whales, and Other International Marine Living Resources, 21 Ecology L.Q. 1,57 (1994). The Law of the Sea Convention, supra note 70, art. 122 provides that “‘enclosed or semi-enclosed sea’ means a gulf, basin, or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.” Rainer Lagoni, Commentary in Law of the Sea in the 1980s: Proceedings 517, 519 (Choon-ho Park ed., 1983). The Law of the Sea Convention, supra note 70, art. 123(a)(b)(c)(d). Ong, supra note 67, at 783.

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4. Unity of a Common Hydrocarbon Deposit The purpose of international customary and conventional legal obligations to cooperate in the development of hydrocarbons that straddle boundaries between states is to preserve of the “unity of deposit.”81 One commentator has described the problem associated with protecting the unity of deposit as follows: These deposits are characterized by a complicated “equilibrium of rock pressure, gas pressure and underlying water pressure,” so that extracting natural gas or petroleum at one point unavoidably changes conditions in the whole deposit. One possible result is that other states cannot extract the minerals from their part of the deposit, even if the first state has extracted only that portion originally situated in its territory or continental shelf.82

Protecting the unity of deposit through cooperative measures such as joint development and transboundary unitization balances efficient exploitation with the inherent sovereign rights of coastal states over natural resources on their continental shelves. Estimates of reservoir volume and size for purposes of protecting the unity of deposit depend on a range of geological and engineering factors and are difficult to determine. Although seismic studies can provide loose estimates, the only way to estimate a reservoir with precision is to drill on both sides of the boundary and to share and compare the resulting well data.83 Further technical complexity arises from the fact that deposits are not homogeneous or of equal value throughout.84 In the Gulf of Mexico, the unity of deposit in the Western Gap has already been estimated to the satisfaction of the government parties as falling within the 2.8-n.m. buffer zone.85 Whether or not the buffer zone will still be accepted by the parties after more appraisal and development work remains to be seen. In contrast, the unity of deposit along the U.S.-Mexico boundary in the Perdido Foldbelt region is more problematic. Given the geological and geographical continuity of the deposits, more studies and exploratory drilling will be required to determine the precise perimeters of the unity of deposit. As exploration continues

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Id. at 778. Lagoni, supra note 65, at 217. For example, variables that can be determined only by drilling are the thickness of the hydrocarbon-bearing reservoir and well pressures. See Kendall Freeman Law Firm, Oil and Gas Deposits at International Boundaries: New Ways for Governments and the Oil and Gas Companies to Handle an Increasingly Urgent Problem, Guidance Note 9 (Mar. 2006), available at www.kendallfreeman .com. Id. Supra note 56–60 and accompanying text.

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closer to the boundary, greater political, economic, and legal urgency will be placed on precise determinations of the unity of deposit in the region.86

V. Western Gap – Extending Continental Shelves Beyond 200 Miles Under Article 76 of the Convention 1. Procedures for Extending Continental Shelves Beyond 200 Miles Troublesome legal questions confront coastal states that seek to extend their continental shelves beyond 200 miles. This observation is especially true in regard to the international legal status of the Western Gap. Unique geological characteristics of the region, coupled with the fact that the U.S. is not a state party to the Law of the Sea Convention, make claims of jurisdiction complicated.87 The United States and Mexico will need to resolve these issues prior to oil and gas production beginning on either side of the boundary. As a result of President Truman’s famous Proclamation in 1945, the United States became the first nation to assert “jurisdiction and control” over the natural resources of its continental shelf.88 Prior to this assertion, the continental shelf merely defined a particular geologic feature and had no independent legal status. Within a short period of time, however, other nations also asserted jurisdiction over their adjacent continental shelves and the practice was substantially codified in the 1958 Convention on the Continental Shelf.89 The U.S. and Mexico are parties to the 1958 Convention, which provides in Article 1 that the continental shelf of a coastal state extends beyond a depth of 200 meters to “where the depth of superjacent waters admits of the exploitation of the natural resources” of the shelf.90 This ambiguous definition of the limits to the continental shelf based on the notion of exploitability proved unsatisfactory, and it was superseded by Article 76 of the Law of the Sea Convention.91 Article 76 radically changed the extent of each coastal state’s continental shelf by expanding the minimum outer limit of the legal continental shelf to 200-n.m. offshore, even if the geologic continental shelf does not extend that far.92 Moreover,

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For example, Pemex’s planned Alaminos exploratory well will be drilled within a few miles of the U.S. boundary. See discussion infra notes 113–49 and accompanying text, Proclamation No. 2667, 3 C.F.R. 67 (1943–1948 Comp.); see also Statement Accompanying Continental Shelf Proclamation, reprinted in 13 U.S. Dep’t of St. Bull. 484 (1945). Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, T.I A.S. No. 5578, 499 U.N.T.S. 311. Id. art. 1. The Law of the Sea Convention, supra note 70. Id. art. 76(1).

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the Convention allows extension of the coastal state’s continental shelf beyond 200 miles if certain criteria relating to the geologic continental shelf, slope and rise are met.93 To prove entitlement to an extension beyond 200 miles, coastal states must submit evidence to the U.N. Commission on the Limits of the Continental Shelf (CLCS), which “shall make recommendations to coastal states on matters related to the establishment of the outer limits of their continental shelf.”94 Establishment of the CLCS was part of the political compromise reached during the Law of the Sea negotiations that ultimately allowed some nations to claim continental margin areas beyond 200 miles. As part of this compromise, coastal states are required to make payments or contributions to the International Seabed Authority if they exploit non-living resources on the continental shelf beyond 200 miles.95 Originally, submissions to the CLCS were to take place “as soon as possible, but in any case within ten years of the entry into force of this Convention for that state.”96 Some delegations began to express concerns regarding the difficulty of compliance with this time limit.97 Among other arguments, they pointed out that the CLCS did not adopt its Scientific and Technical Guidelines until May 13, 1999. Consequently, they argued that the ten-year time period specified in Article 4 of Annex II should not begin to toll until that later date. After extensive discussions, it was decided by a meeting of states parties that May 13, 1999 should be the date of commencement of the ten-year time period for making submissions to the CLCS for a state for which the Convention entered into force.98 Consequently, the current rule provides for submissions before May 13, 2009, or within ten-years of a state’s ratification of, or accession to, the Law of the Sea Convention. The submission requires proof of natural prolongation by the use of either one of the two formulae. The distance formula allows an extension 60 miles from the base of the foot of the continental slope.99 The sediment-thickness formula allows an extension to “a distance where the thickness of the sedimentary rocks is at least

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Id. art. 76(4). Id. art. 76(8). Id. art. 82. Coastal states that exploit nonliving resources beyond 200 miles must make payments starting in the sixth year of production, at a rate of one percent of the value or volume of the production, which is increased by one percent each year until the 12th year when the rate remains at seven percent for the remainder of production. For a useful summary, see Szekely, supra note 64, at 740. Id. annex II art. 4. For a summary of the efforts to postpone the ten-year time limit for submissions see Issues With Respect to Article 4 of Annex II to the Convention (ten-year time limit for submissions), United Nations Division for Ocean Affairs and the Law of the Sea, available at http:/www.un.org/depts./los/ clcs_new/ issues_ten_years.htm. Id. at 4. The Law of the Sea Convention, supra note 70, art. 76(4)(a)(ii).

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one per cent of the shortest distance from such point to the foot of the continental slope.”100 Coastal states must go through expensive and time-consuming process of collecting and analyzing detailed bathymetric and seismic data to satisfy the requirements of Article 76.101 Scientific and technical guidelines were adopted by the CLCS in 1999 to assist coastal states in making submissions.102 Article 76 (8) provides that the CLCS “is to make recommendations to coastal states on matters related to the establishment of the outer limits of the continental shelf.”103 It goes on to state that “[t]he limits of the shelf established by a coastal state on the basis of these recommendations shall be final and binding.”104 It is currently unclear what responsibilities the submitting state has once it receives “recommendations” by the CLCS. Nor is it precisely clear what is meant by the term, “on the basis of,” these recommendations. Annex II, which establishes the governing framework for the CLCS, provides that a coastal state that disagrees with a recommendation shall make a new submission to the CLCS.105 However, it is hard to predict how this potential ping-pong match of submission/recommendation/resubmission between a submitting state and the CLCS should end if a serious disagreement over a recommendation emerges. There is no question that coastal states, rather than the CLCS, have the final say on the outer limits of their continental shelves.106 Accordingly, the main purpose of the CLCS is to provide guidance to coastal states to assist them in properly

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Id. art. 76(4)(a)(i). It has been estimated that completing a submission before the CLCS should generally take about seven or eight years. Victor Prescott, National Rights to Hydrocarbon Resources of the Continental Margin Beyond 200 Nautical Miles, Boundaries and Energy: Problems and Prospects 51–82, 69 (G. Blake et al. eds., 1998). However, Australia’s submission took over ten years, Ireland’s nine years, and Brazil’s 16 years. Peter S. Prows, Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law, New York University Public Law and Legal Theory Working Papers No. 30 at 36 (2006), available through The Berkeley Electronic Press. Commission on the Limits of the Continental Shelf, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, CLCS 11, adopted 13 May 1999, available at http://www.un.org/Depts/los/clcs_new/commission_guidelines.htm. The Law of the Sea Convention, supra note 70, art. 76(8). Id. (emphasis added). Id. annex II art. 8. See Ted McDorman, The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World, 17:3 Int’l J. of Marine & Coastal L. 301–24, 306, 315 (2002); S. Cockburn, S. Nichols, D. Monahan and T. McDorman, Intertwined Uncertainties: Policy and Technology on the Juridical Continental Shelf, Proceedings 2001 Ablos Conference, Monaco, Oct. 2001, at 5–6; and Report of the Committee on Legal Issues of the outer Continental Shelf, 11–15 International Law Association, Seventy-Second Conference (ILA, Toronto: 2006) (hereafter cited as ILA Second Report).

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complying with the requirements contained in Article 76.107 Although the CLCS may communicate to the international community that a particular submission is not in accordance with Article 76, it does not have the competence to assess whether the coastal state has properly established the outer boundaries of the continental shelf beyond 200 miles.108 It is up to the individual states, the international community, or even the International Seabed Authority, to decide whether to accept or challenge the outer continental shelf boundary proclaimed by a particular coastal state.109 Despite the limited authority of the CLCS, the Commission’s role in legitimizing or de-legitimizing a claim made by a coastal state should not be underestimated.110 Finally, there is an important caveat in Article 76(10) and Paragraph 5(a) of Annex I of the Rules of Procedure, which is intended to prevent the Commission from examining a submission where a land or maritime boundary dispute exists.111 This sensitivity to the sovereign rights of nations to determine their maritime boundaries is not present concerning the Western Gap because no maritime dispute exists between the U.S. and Mexico.112 2. Article 76 and the Western Gap Every coastal state is entitled to the continental shelf throughout the natural prolongation of its land territory or up to a distance of 200 miles.113 These rights are inherent aspects of each state’s sovereignty and do not depend on occupation or any express proclamation by the coastal state.114 It is ultimately the coastal state that establishes the outer boundary of its continental shelf. Nevertheless, submitting a claim to the CLCS serves an extraordinarily important purpose of assuring the international community that a nation’s claim complies with Article 76, as

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According to one commentator, its primary mission is “to act as a watchdog to prevent excessive coastal state claims.” L.D.M. Nelson, The Continental Shelf: Interplay of Law and Science, Liber Amicorum Judge Shigeru Oda, 1235–53, 1237 (N. Ando et al. eds., 2002). Cockburn, supra note 106, at 6; ILA Second Report, supra note 106, at 14–15. But see ILA Second Report, id. at 26 (asserting that the International Seabed Authority cannot be a party to proceedings concerning a dispute over the outer limits of the continental shelf ). Cockburn et al., supra note 106, at 7. See McDorman, supra note 106, at 305. See discussion supra notes 51–61 and accompanying text. The Law of the Sea Convention, supra note 70, art. 76(1). See also ILA Second Report, supra note 106, at 2; and Continental shelf (Libyan Arab Jamahiriya/Malta), Judgment of June 3, 1985, 1985 I.C.J. 13 at 30, para. 27; 34–35, para. 34. The Law of the Sea Convention, id. art. 77(3).

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well as removing the threat that the claim will be legally or politically challenged as illegitimate.115 As regards the Western Gap, Mexico is required to make its submission to extend its continental shelf by May 13, 2009 because it became a states party to the Law of the Sea Convention prior to May 13, 1999.116 In contrast, the latest date that the United States would be required to submit its claim is ten years after it accedes to the Convention. In December 2007, Mexico made a partial submission to the CLCS.117 Pursuant to CLCS procedures, the version of the partial submission that is available to the public contains limited information, but does indicate that Mexico intends to rely on Article 76(4)(i) as authority for its submission.118 Mexico’s submission is based on seismic and geological studies of the bathymetry of the Gulf of Mexico basin, which characterize it as a “geological continuum” that is a natural prolongation of the continental shelves of both the U.S. and Mexico.119 Beginning in the 1990s, to the surprise of U.S. and Mexico’s scientific communities, geological studies indicated that deep sediments have gradually covered the Gulf basin from continental shelves and slopes to the abyssal plain, including the Western Gap region.120 These sediments are thickest in the deepest part of the Gulf basin because of the force of gravity. The thickness of the sediments (many miles deep in places) seems to satisfy the requirement in Article 76(4)(a)(i), which requires that the “thickness of the sedimentary rocks is at least one percent of the shortest distance from such point to the foot of the continental slope.” It is unknown how much geological data Mexico possesses to substantiate its position. A desk-top study commissioned by the U.S. Government, however, 115

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If all of the parties involved are members of the Convention, then the challenge may be brought under the dispute settlement provisions in Part XV of the Convention. An exception to this involves disputes over delimitation of the continental shelf between states with opposite or adjacent coasts. The Law of the Sea Convention, supra note 70, arts. 298(1)(a)(i) and 83(1). If a nonparty is involved, then the dispute would be settled by other peaceful means in accordance with Article 2, paragraph 3 of the United Nations Charter. See supra note 71. A Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the United Mexican States Pursuant to Part VI and Annex II to the United Nations Convention on the Law of the Sea. An executive summary of the partial submission may be found at the CLCS website http://www.un.org/Depts/los/clcs_new/clcs_home.htm. Law of the Sea Convention, supra note 70, art. 76(4)(a)(i). Jorge A. Vargas, The Gulf of Mexico: A Binational Lake Shared by the United States and Mexico, A Proposal, 9 Transnat’l L. 459, 472 (1996). Id. (citing Richard T. Buffler, Seismic Stratigaphy of the Deep Gulf of Mexico Basin and Adjacent Margins, in The Geology of North America Vol. J.: The Gulf of Mexico Basin 353 (Amos Salvador ed., 1991)). Until this time, Mexico had publicly declared that the Western Gap was not part of its continental shelf and was instead part of the “deep ocean floor” belonging to the International Seabed Authority. Vargas, id. at 471.

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supports a finding that the Western Gap qualifies as an extension of the continental shelves of the U.S. and Mexico under the criteria contained in Article 76(4)(i). According to the study, “with a well-defined FOS (foot of slope), and given the very thick sediments in the area, there should be no question that all of the area outside of the present U.S. EEZ out to the Mexican EEZ is claimable by the U.S. or Mexico according to Article 76.”121 This assertion is based on existing information, and further geophysical and bathymetric data must be collected in the Gulf of Mexico before the United States will be in a position to make a proper submission to the CLCS.122 3. Benefits of U.S.-Mexico Collaboration in the Western Gap Although initial scientific studies indicate that the two nations will be able to satisfy Article 76(4)(i) because of the tremendous thickness of sediments in the deep Gulf basin, problems may still emerge given the potential difficulty in precisely measuring sediment distribution. The famed geologist, Hollis Hedberg, suggested that the so-called “Irish Proposal,”123 which was eventually incorporated as Article 76(4)(i), was technically impracticable. Hedberg expressed the following concerns: because of the irregularity of sediment distribution in the oceans, the very gradual changes in thickness in many areas, the difficulty of conclusively determining the true base of the sedimentary column due to interbedding of igneous and sedimentary rocks, and the technical impediments to accurate measurement of sediment thickness, this proposal would be too impracticable in application to deserve serious consideration. . . .124

Clearly, the delegates to the Third Law of the Sea Conference were not as concerned about the impracticability of the Irish Proposal as Hedberg, or they would not have incorporated it into the Convention. Nevertheless, problems associated with the issue of determining sedimentary thickness continue to raise concerns. For example, the CLCS has invoked the principle of continuity in its application

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Larry Mayer, Marin Jakobsson and Andrew Armstrong, The Compilation and Analysis of Data Relevant to a U.S. Claim Under United Nations Law of the Sea Article 76: A Preliminary Report 50 (Center for Coastal and Ocean Mapping/Joint Hydrographic Center, May 2002). J.V. Gardner, L.A. Mayer and A. Armstrong, Mapping Supports Potential Submission to U.N. Law of the Sea, EOS Vol. 87 No. 16, at 157, 160 (Apr. 18, 2006). Mexico may not extend its continental shelf into the Western Gap under the criteria in Article 76(4)(a)(ii) because the Gap lies farther than 60-n.m. from the foot of Mexico’s continental slope. Conversely, the United States should be able to use 76(4)(a)(ii) as well as 76(4)(a)(i) because all of its portion of the Gap probably lies within 60-n.m. of its continental slope. Also referred to as the “Gardner formula.” Hollis D. Hedberg, Comment, Relation of Political Boundaries on the Ocean Floor to the Continental Margin, 17 Virginia J. Int’l L. 57, 62 (1976).

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of Article 76(4)(1). This requires specific documentation of the continuity between the sediments at each fixed point, and the sediments at the foot of the continental slope. The commission has refused to accept calculation of average distribution of sediments as a solution to the problem of complex and irregular topography.125 At this point, there is no particular reason to believe that the ambiguity associated with irregular topography and uneven deposits of sediments may pose problems when Mexico or the U.S. submit their respective claims to the CLCS. However, the stakes for both nations in legitimizing their claims to the Western Gap are large. Any controversy over the legitimacy of either nation’s claim may place at risk the legal standing of the 2000 Delimitation Treaty and the oil and gas leasing regime that is currently in place. For example, should any questions be raised concerning the scientific legitimacy of Mexico’s CLCS submission, some states parties to the Convention may renew their former position that the Western Gap falls outside of national jurisdiction and is part of the “International Area” subject to the common heritage of humankind.126 This scenario would create legal uncertainty and significantly disrupt on-going efforts by the U.S. leaseholders to explore existing lease blocks in the Gap.127 In light of the important benefits that a successful CLCS submission by Mexico would bring to both nations, it would be in their joint interests to cooperate in collecting scientific data for purposes of meeting their Article 76 obligations, as well as to collaborate on a unified approach in making their submissions to the Commission. 4. Obstacles to Collaboration The greatest obstacle to collaboration between the U.S. and Mexico in efforts to extend their respective continental shelves in the Western Gap is the fact that the U.S. is not a state party to the Law of the Sea Convention.128 Joint submissions to the CLCS by states parties with adjoining continental shelves are a viable option under Article 76. Collective submissions help reduce costs, provide uniformity, and improve political relations. In May 2006, France, Ireland, Spain, Great Britain, and

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L.D.M. Nelson, The Continental Shelf: Interplay of Law and Science, Liber Amicorum Judge Shigeru Oda 1235, 1244 (N. Ando et al. eds., 2002) (citing CLCS/11, 67, paras. 8.5.3– 8.5.4). The Law of the Sea Convention, supra note 70, art. 133–37 (provides general definition of the “Area”). See Vargas, supra note 119, at 471–72 (discussing former official position of Mexico and other nations that Western Gap was part of the international area and subject to common heritage principles). In a worst case scenario, the delimitation treaty between the U.S. and Mexico would be rendered null and void, and a new treaty would have to be negotiated with the International Sea-Bed Authority as the representative of international community interests in the Area. See supra notes 72–74 and accompanying text.

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Northern Ireland collectively prepared a joint submission to the CLCS on the extended continental shelf in the Celtic Sea and Bay of Biscay area.129 As a noncontracting-party, the U.S. has foreclosed any opportunity to engage in a joint submission with Mexico.130 It is clear that the U.S. has sovereign authority to extend its continental shelf unilaterally beyond 200 miles in the Gulf of Mexico and that the CLCS is not competent to assess whether a coastal state has established its outer limits of the continental shelf, because this falls within the sovereign authority of claiming and non-claiming individual states.131 Nevertheless, because other states can react and either accept or not accept the established limits, the recommendations by the CLCS will likely still have important legal and political consequences. As long as the U.S. remains outside of the Law of the Sea Convention, it is unlikely to ever gain the sanctity and legitimization yielded by a positive recommendation of its claim by the CLCS, either jointly with Mexico or unilaterally. In fact, the U.S. Government has officially stated that it does not need the imprimatur of the CLCS to claim the extended continental shelf in the Western Gap because Article 76 reflects international customary law.132 Consequently, the United States asserts that as long as it bases its claim on the criteria of Article 76, there is no reason to submit to the CLCS until ten years after it accedes to the Convention, nor is it necessary to comply with the revenue-sharing provisions in Article 82 until it accedes.133 However, these U.S. assertions are certainly questionable. It is in the interest of both nations and the private sector leaseholders to answer these questions and to create a stable legal environment in the Western Gap.

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France, Ireland, Spain, United Kingdom of Great Britain and Northern Ireland, Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect of the Area of the Celtic Sea and the Bay of Bascay, Part 1 Executive Summary, May 19, 2006, available at http://www.un.org/Depts/los/clcs_new/ submissions_files/submission_frgbires .htm. See discussion infra notes 138–49 and accompanying text. Supra note 106 and accompanying text. J.A. Roach and R.W. Smith, Excessive Maritime Claims, U.S. Naval War College 124–25 (1994). International Law Association, Preliminary Report from the Committee of Legal Issues of the Outer Continental Shelf 14 (New Delhi Conference, 2002) (describing the U.S. position). For a discussion of the revenue sharing provisions in Article 82, see supra note 95 and accompanying text. In the lease stipulations applied to oil and gas leases in the Western Gap, the U.S. Minerals Management Service explicitly requires that royalty payments under Article 82 will be collected only “[i]f the U.S. becomes a party to the 1982 Law of the Sea Convention prior to or during the life of a lease issued by the U.S. on a block or portion of a block located beyond the U.S. EEZ and subject to such conditions that the Senate my impose through its constitutional role of advice and consent.” Minerals Management Service, Lease Stipulations: Oil and Gas Lease Sale 196, Western Gulf of Mexico, Final Notice of Sale, Stipulation No. 4, at 10.

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There have been objections to the assertion that Article 76 represents international customary law since the earliest days of the Law of the Sea Convention. Conference President, Tommy Koh, stated in his statement at the final session of the Conference: Even in the case of Article 76 on the continental shelf, the Article contains new law in that it has expanded the concept of the rise. This concession to the broad margin states was in return for their agreement for revenue-sharing on the continental shelf beyond 200 miles. It is therefore my view that a state which is not a party to this Convention cannot invoke the benefits of Article 76.134

Other commentators have observed that although continental shelf claims consistent with Article 76 are likely to be compatible with customary law, use of procedures and mechanisms of the CLCS are new and do not reflect customary norms.135 It has been argued by some authors that nothing in the Convention precludes nonparties from making submissions to the Commission.136 In fact, the Commission had requested a legal opinion on whether it could respond to submissions by non-parties to the Convention. At the eighth meeting of the states party held in 1998, it was decided that the issue did not need to be answered until a non-party actually attempted to make such a submission.137 In the most recent scholarly effort to address the question, however, the influential Committee on Legal Issues of the Outer Continental Shelf of the International Law Association (ILA) has determined that nonparties do not have a right to make submission to the CLCS.138 The Committee cited language by the Permanent Court of International Justice in the Free Zones of Upper Savoy and the District of Gex Case for the proposition that rights under a treaty can be accorded to nonparties by parties to the treaty only if such rights are stated in a sufficiently clear manner and there is an intention on the part of the states parties to accord a right, and an acceptance of the right by the third state.139 To ascertain this intention, the Committee examined language in Article 4 of Annex II of the Convention, which provides that a coastal state shall make a submission “as soon as possible but in any case within

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Tommy T.B. Koh, A Constitution for the Oceans, statements by the President on 6 and 11 December 1982, at the Final Session of the Conference at Montego Bay. R.R. Churchill & A.V. Lowe, The Law of the Sea 150 (3d ed. 1999); McDorman, supra note 106, at 303. T.A. Clingan, Jr., The Law of the Sea in Prospective: Problems of States Not Parties to the Law of the Sea Treaty 30, German Y.B. of Int’l L. 101–19, 112 (1987); McDorman, supra note 106, at 303–04. Report of the Eighth Meeting of the State Parties, Doc. SPLOS/31 of 4 June 1998, available at http:// daccessdds.un.org/doc/UNDOC/GEN/N98/161/23/PDF/N9816123.pdf?OpenElement. ILA Second Report, supra note 106, at 20–21. Id. at 20.

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ten years of the entry into force of this Convention for that state.”140 According to the Committee, the language and drafting history of Article 4 of Annex II supports a finding that it was not intended to accord a right to nonparties.141 Moreover, it was noted that compromise on the acceptance of Article 76 was conditioned on the inclusion of Article 82’s requirements for revenue-sharing in continental shelf areas beyond 200 miles.142 Article 82 has not created an obligation on nonparties, and therefore should not be presumed that rights were granted to third parties without imposing concomitant obligations at the same time.143 Under similar reasoning, disputes concerning the interpretation or application of Article 76 between states parties are subject to the compulsory dispute settlement provisions in Part XV of the Convention.144 Nonparties are not subject to the same dispute settlement obligations and therefore should not be entitled to the benefit of utilizing CLCS procedures. Finally, the Committee shed light on the meaning of the term “final and binding.” It pointed out that Article 76(8) provides that the limits of the continental shelf established by a coastal state on the basis of the recommendations of the CLCS shall be “final and binding.”145 Once the outer limits of the continental shelf has been established, it will be final and binding on the coastal state concerned and other states parties to the Convention.146 Conversely, if the outer limits of the continental shelf have not been established in accordance with the substantive and procedural requirements of Article 76, the limits may be challenged.147 These conclusions by the ILA cast considerable doubt on any notion that a nonparty, such as the U.S., can comfortably rely on international customary law as authority for its claim to extend its continental shelf beyond 200 miles. To the contrary, until a nonparty becomes a member of the Convention and completes the substantive and procedural requirements of Article 76, its claim will never be viewed as “final and binding” and will remain vulnerable to challenge. From the perspective of the oil and gas industry, this means that any rights granted by the U.S. Government to explore or exploit resources in the Western Gap are clouded and potentially subject to legal challenge.148 This unsettled legal

140 141 142 143 144 145 146 147 148

Id. Id. at 20–21. Id. at 21. See discussion supra note 95 and accompanying text. Id. Id. at 25. Id. at 15–16. Id. Id. Paul L. Kelly, Break the Boundaries and Explore New Frontiers: Evaluating the Impact of the Law of the Sea Treaty on Future Offshore Drilling, Adaptation from a Presentation to the Global Offshore Drilling 2005 Conference, 13–17 (Houston, Texas Apr. 19, 2005). Copy on file with author.

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circumstance is the primary reason why the oil and gas industry strongly advocates quick U.S. accession to the Law of the Sea Convention.149 Until the U.S. becomes a party to the Convention and successfully submits its claim to the CLCS, it is very unlikely that the industry will take the risk of investing large sums in the hydrocarbon resources of the Western Gap. The preceding discussion of evolving principles of international law applicable to the potential transboundary hydrocarbons in the Perdido Foldbelt, Walker Ridge, and Western Gap indicates that it is in the national interest of both the U.S. and Mexico to engage in a much more robust program of cooperation than is currently in place. Meaningful cooperation should no longer be viewed as entirely the burden of private sector business interests. It is time for the U.S. and Mexican Governments to work together to manage comprehensively the transboundary regions in the Gulf of Mexico.

VI. Recommendations for Future Action Offshore transboundary resource exploitation triggers a broad range of challenges. In the absence of a workable cooperative agreement between the United States and Mexico, commercializing the enormous reservoirs of hydrocarbons that exist in the ultra-deepwater maritime boundary region will be more difficult, legally and politically. The value of cooperation in overcoming many of these challenges is evidenced by the large number of international cooperative agreements dealing with the equitable allocation of transboundary hydrocarbons that already exist.150 Although many of these transboundary resource agreements may serve as useful models, one existing model agreement may serve as an especially important

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Kelly, supra note 74, at 8. See generally Szekely, supra note 64 and accompanying text. Most recently, on Mar. 20, 2007, Trinidad-Tobago and Venezuela signed an agreement that unifies the oil and gas reserves found along their maritime border, available at http://www.venezuelanalysis.com/news.php?newsno=2246. In 2005, Canada and France signed an agreement that provides a management regime for hydrocarbon exploration off the coasts of Newfoundland, Labrador and Nova Scotia, and the French islands of St. Pierre and Miquelon. The agreement provides for an information exchange in the transboundary area, mechanisms for identifying transboundary fields and sharing benefits, and procedures for negotiating unitization agreements for specific fields. The full agreement has not been released to the public awaiting domestic regulatory changes required for its implementation. Foreign Affairs and International Trade Canada, Canada and France to Work Together in Atlantic Waters, News Release #87, May 17, 2005, available at http://w01.international.gc.ca/minpub/Publication. aspx?isRedirect=True&public cation_id=382568&Language=E&docnumber=87. See also Francis N. Bochway, The Context of Trans-Boundary Energy Resource Exploitation: The Environment, the State, and the Methods, 14 Colo. J. Int’l Envt’l L. & Pol’y 191, 232–40 (comparing the Frigg Field Reservoir Agreement and the Gabcikovo-Nagymaros System of Locks Treaty).

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template because it has incorporated many features that are uniquely suited to the Gulf of Mexico. A group of distinguished scholars produced the model Puerto Vallarta Draft Treaty (PVD Treaty) in 1991 to assist the two nations to better coordinate transboundary oil and gas development in the Gulf of Mexico.151 This group recognized that in the past, the abundance of oil and gas resources on each side of the maritime boundary made the issue of cooperation primarily commercial. But those deposits situated in areas near political borders will affect the sovereign rights of the nations themselves and will be protected sooner or later.152 They noted that neighboring countries rarely address alternative policy scenarios until they have reached the level of a crisis. By that point solutions may be much more difficult to attain because the parties become burdened with intransigence and enflamed by nationalist attitudes.153 The PVD Treaty was created to prevent crises from developing by serving as an anticipatory master plan for all of the transboundary hydrocarbons in the Gulf of Mexico. Included in its provisions is a mechanism to identify and notify the parties of transboundary hydrocarbon deposits to establish a Joint Permanent Coordinating Commission, and to provide a detailed set of operating criteria to be incorporated into a bilateral coordination scheme for specific hydrocarbon fields. An analysis of specific provisions in the PVD Treaty is beyond the scope of this paper and can be found elsewhere.154 It is sufficient for our purposes to note that the model treaty represented a very important initial effort at developing a conventional legal regime to coordinate the hydrocarbon development activities of two nations with completely different legal philosophies in the field of natural resources.155 Mexico’s legal regime provides for exclusive state participation in all aspects of natural resource exploration and exploitation.156 In contrast, the U.S. allows private participation

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Model Puerto Vallarta Draft Treaty on Guiding Principles and Criteria for the Coordination of Activities Regarding Submarine Transboundary Hydrocarbon Resources Lying in the Maritime Boundary Between Neighboring Coastal States, reproduced in Alberto Szekely, Albert E. Utton, Ulises Canchola, Carmen Pedrazzini, William J. Waggoner and Ross Shipman, The Puerto Vallarta Draft: A Proposed Treaty for Developing Oil and Gas in the Gulf of Mexico, in Boundaries and Energy: Problems and Prospects 485–508 (G. Blake et al. eds., 1998). Szekely et al., id. at 489–90. Id. at 491. See Richard J. McLaughlin, Hydrocarbon Development in the Ultra-Deepwater Boundary Region of the Gulf of Mexico: Time to Reexamine a Comprehensive U.S.-Mexico Cooperation Agreement, 39 Ocean Dev. & Int’l L. 1–31 (2008). Szekely et al., supra note 151, at 491. See notes supra 27–30 and infra 161–68 and accompanying text.

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of any nationality through leasing policies and governmental regulation.157 The PVD Treaty recognized these differences and attempted to integrate both systems into its framework provisions. Unfortunately, for a variety of reasons, the PVD Treaty did not receive the kind of attention it deserved from policy-makers in either the U.S. or Mexico.158 Despite its relative obscurity, reexamining the PVD Treaty in light of the significant changes that have taken place since 1991 may be a very useful starting point in developing a potential framework for cooperative management between the two nations. Much work needs to be done in advance to create a cooperative agreement. Resolving several preliminary issues would be helpful in setting the stage for negotiations over any future agreement. Of primary importance is for the United States to become a State Party to the Law of the Sea Convention. This is especially crucial in regards to future hydrocarbon development in the Western Gap. For example, if the U.S. remains outside the Convention, private sector investors and other nations will be placed in the precarious situation of having to rely solely on unilateral interpretations of customary legal rights for authority over U.S. claims in the Western Gap.159 It will be very difficult to convince the international oil industry to risk investing in the Western Gap without the legal assurances that can be attained only by U.S. membership in the Convention, coupled with the imprimatur provided by the CLCS legitimizing the nation’s claim to an extended continental shelf. Moreover, in the absence of a final decision on the validity of the U.S. claim, Mexico will be placed in an awkward negotiating position in regards to the moratorium on drilling in the 2.8-n.m. buffer zone, which is scheduled to expire in 2010.160 Furthermore, any successful cooperation agreement is dependent on clarifying and reforming Mexico’s domestic law prohibiting foreign exploitation of natural resources.161 These reforms would not necessarily require drastic changes such as allowing direct investment into the Mexican energy extraction industry. All that may be required initially is to clarify the legal status of fugacious transboundary hydrocarbons located in reservoirs shared by the two countries. Mexican law currently prohibits the awarding of concessions to any variety of joint venture between foreign corporations and Pemex that may imply sharing investments, reserves,

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For a good overview of the U.S. regulatory regime governing offshore energy development, see J. Kalo, R. Hildreath, A. Rieser, D. Christie, and J. Jacobson, Coastal and Ocean Law: Cases and Materials 373–434 (2d. 2002). See McLaughlin, supra note 154. Supra notes 132–49 and accompanying text. Supra notes 56–60 and accompanying text. See notes supra 27–30 and infra 162–68 and accompanying text.

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outputs, or profits.162 This interpretation would have to be clarified to allow the kind of coordinated international effort to develop transboundary deposits jointly as envisioned by any cooperative agreement. For example, it could be persuasively argued that shared fugacious resources located in transboundary reservoirs do not fall within the ambit of Article 27 of the Mexican Constitution.163 The international community’s rejection of the rule of capture to common pools of fugacious resources and its acceptance of correlative rights to a just share by all co-owning parties strongly supports such the interpretation of Article 27.164 However, national sensitivity to anything that resembles relinquishing sovereignty over Mexico’s resources may make this argument controversial.165 It is unclear whether this type of legal clarification is possible at this time. The Vicente Fox Administration and his National Action Party (PAN) tried to promote energy reform in 2004 with little success.166 Similarly, the recently elected President, Felipe Calderon, who was Fox’s Energy Minister, has spoken publicly about his desire to open Mexico’s energy industry to foreign investment. But he has been silent on the subject since his razor-thin and politically divisive victory over Manuel Lopez Obrador.167 Some observers believe that as a consequence of the painful 2006 national election, any political movement toward opening up the nation’s oil industry will be shelved and replaced with initiatives addressing poverty reduction and other social deficiencies ingrained in the country.168 Regardless of the near-term political situation in Mexico, further study regarding the legal obstacles under Mexican domestic law to joint development of transboundary hydrocarbons in the Gulf of Mexico would be quite useful. This research and dialogue should begin as soon as possible in anticipation of the day in the near future when a viable production plan is put forward for one of the ultra-deepwater transboundary discoveries. Additionally, clarification of U.S. law will also be important. A host of legal questions surround the development of the hydrocarbon resources located in the U.S.-Mexico maritime boundary region. A detailed analysis of domestic legal issues that may impede such development is complex and beyond the scope of this study, nevertheless, it may be helpful to pose a few questions in need of resolution.

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Shields, supra note 10, at 6. Supra note 27. Supra notes 63–69 and accompanying text. See Szekely, supra note 64, at 735–36 (arguing that the term “shared” resource should only be used to describe physical or ecological phenomenon and that “transboundary” is the only term that adequately reflects the sovereignty a state has over its resources). Shields, supra note 10, at 5. Duncan Kennedy, Tightrope Awaits Mexico’s Calderon, BBC News, Sept. 7, 2006, available at http://news.bbc.co.uk/2/hi/americas/5322360.stm. Id.

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These questions include: (1) how would actions taken by a U.S.-Mexico joint development authority fit within the regulatory structure of the Outer Continental Shelf Lands Act, the existing federal statute governing oil development on the continental shelf and its associated regulations?169 (2) Given the fact that “rights of the coastal state over the continental shelf do not affect the legal status of the superjacent waters or air space above those waters,” what, if any, legal authority is available in the Western Gap to regulate activities above any seabed lease?170 (3) Would the federal government have to compensate lease holders for breach of contract or an unconstitutional taking of property for any damages resulting from their leases falling under the jurisdiction of a joint development authority?171 (4) Do the National Environmental Policy Act and other environmental statutes apply to exploration and drilling in the Western Gap buffer zone and other transboundary deposits, and how would any environmental requirements prescribed by a joint development authority be integrated with existing environmental statutes and regulations?172 Resolving these and an entire host of other legal and policy questions relevant to developing the hydrocarbon resources in the ultra-deepwater Gulf of Mexico should be undertaken as quickly as possible. If private sector oil and gas investment and exploration activities are allowed to move forward prior to addressing these

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Pub. L. 83–212; 43 U.S.C. §§1331 et seq. The Law of the Sea Convention, supra note 70, art. 78(1). Little judicial guidance on these issues has been provided to date, and any answer is necessarily case specific. However, the U.S. Supreme Court expressed its willingness to expand the availability of restitution in Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604 (2000). This case required the federal government to compensate two oil companies after the government repudiated its offshore lease contracts by delaying its permission for the oil companies to begin exploration. According to the Supreme Court, “we find that the oil companies gave the United States $158 million in return for a contractual promise to follow the terms of pre-existing statutes and regulations. The new statute prevented the Government from keeping that promise . . . and therefore the Government must give the companies their money back.” Id. at 624. See generally Deena B. Bothello, An Unequal Balance: Repudiation and Restitution in Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 80 Or. L. Rev. 1469 (2001). The question of whether NEPA must be applied extraterritorially is the subject of dozens of law journal articles. For a flavor of this scholarship, see Lois J. Shiffer, The National Environmental Policy Act Today, With an Emphasis on its Application across U.S. Borders, 14 Duke Envt’l L. & Pol’y Forum 325 (2004); and Browne C. Lewis, It’s a Small World After All: Making the Case for the Extraterritorial Application of the National Environmental Policy Act, 25 Cardozo L. Rev. 2143 (2004). Given the fact that none of the branches of government has reached a definitive conclusion regarding the conditions under which NEPA must be applied extraterritorial, it is difficult to predict whether it will be applied to transboundary hydrocarbon resources along the U.S.-Mexico border or in the Western Gap. The extraterritorial application of many other U.S. environmental laws is equally baffling.

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issues, it will substantially increase the likelihood of future contract and propertybased disputes and litigation. It is not a question of if, but of when, the United States and Mexico exploit the hydrocarbon resources of the ultra-deepwater boundary regions in the Gulf of Mexico. Increased government-to-government collaboration is an essential feature of all future efforts to develop these resources efficiently and equitably. The objective of this collaboration should be to identify, in both governmental and nongovernmental sectors, where innovative new efforts may provide a framework for a more sustained and systematic approach to developing and wisely managing the transboundary hydrocarbon resources located in the Gulf of Mexico. Models such as the PVD Treaty and other international cooperative oil and gas agreements exist to guide this effort. It is now up to the leaders in the United States and Mexico to recognize that much work needs to be done today to develop an architecture for strengthened cooperation, and to not wait until unacceptable options are forced upon them by future events.

Chapter XI The Law of the Sea Convention and the Antarctic Treaty System: Constraints or Complementarity? Marcus Haward*

I. Introduction The 1982 Law of the Sea Convention1 is at the center of the regimes governing the management of world’s oceans, including those within the jurisdiction of the 1959 Antarctic Treaty.2 The Law of the Sea Convention provides the basis for a comprehensive “constitution for the oceans,” a framework convention in relation to, inter alia, exploitation of the marine living resources, marine environment, and the seabed. The Antarctic Treaty and its associated instruments and arrangements have been developed to provide a management regime south of latitude 60° South, based on consensus and collaboration. The Antarctic Treaty was developed to address the “Antarctic Problem,” which includes disputes emerging over the status of territorial claims and sovereignty in Antarctica. Article IV of the Antarctic Treaty has effectively “frozen” existing and any further territorial claims, although allowing states to maintain and recognize claims at the same time. Although Antarctica was specifically excluded from discussion at the Third United Nations Conference on the Law of the Sea, the Law of the

* Associate Professor, School of Government and the Antarctic Climate and Ecosystems Cooperative Research Center, University of Tasmania, Australia. I wish to acknowledge the comments from participants and discussants at the workshop and comments received from colleagues Rob Hall, Julia Jabour, and Andrew Jackson on the paper. In thanking my colleagues I remain responsible for the material presented in this paper. I wish also to acknowledge the support of the Antarctic Climate and Ecosystems Cooperative Research Centre (ACE CRC) funded through the Australian Government’s Cooperative Research Centres Program. 1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (1982), 1833 U.N.T.S. 397, reprinted in Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, U.N. sales No. E.97. V.10 (1997). 2 Antarctic Treaty, opened for signature Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71 (1959), entered into force June 23, 1961.

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Sea Convention applies to the high seas within the Antarctic Treaty Area by virtue of the application of Article VI of the Antarctic Treaty. More contentious issues focus on the extent to which claimant states can claim rights as coastal states3 and delimit maritime zones, including an extended continental shelf. The situation is complicated in the case of sub-Antarctic islands, all of which are under national jurisdiction and most of which are within the area covered by the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR),4 which is part of the Antarctic Treaty System. This paper explores the nexus between the Law of the Sea Convention and the Antarctic Treaty, arguing that this nexus raises interesting and important issues in the management of the Southern Ocean.

II. Antarctica Antarctica comprises approximately ten percent of the terrestrial surface of the planet, with a total area of 36 million km2 south of latitude 60° South. Early exploration of Antarctica in what has been termed the “heroic age” from the 1880s to the 1930s, had ongoing influence in Antarctic geo-politics. Exploration and discovery are the recognized elements of claims to sovereignty, and it is significant that all Antarctic claimant states use exploration and discovery as basis of their Antarctic interests. Exploration in Antarctica resulted in territorial claims being established. The Antarctic claimant states include Australia, France, New Zealand, Chile, Argentina, United Kingdom, and Norway.5 Territory claimed for the United Kingdom was ceded to New Zealand and Australia respectively. Parts of the claims of the United Kingdom and Chile overlap, and Argentina’s claim is overlapped in its entirety. It is also interesting that the first claims to Antarctic territory were made in the heroic era, prior to the First World War. Argentina’s claim, for example, is founded on the inheritance of Spanish imperial claims following the Treaty of Tordesillas in 1492, with a formal claim on the continent made in 1943. Chile’s claim is founded on a Papal doctrine of 1493, and effective presence was established in 1947. Proclamations of Antarctic Territory gave rise to potential (and actual) competing claims, and helped shape Antarctic geo-politics for the twentieth century. It is also important to recognize that the heroic age was part of the “Age

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United Nations Law of the Sea Convention, supra note 1, art. 2(1). Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), May 20, 1980, 33 U.S.T. 3476, 1329 U.N.T.S. 48 (1980). Australia’s claim was made in 1933, with the other claims made as follows: France (1924), New Zealand (1923), Chile (1940), Argentina (1943), United Kingdom (1908), and Norway (1929 & 1939).

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of Empire,” of colonization of distant lands by European powers, with British imperial influence contributing to its role as a “great power,” by virtue of the scale of its colonial possessions. The establishment of claims, disputes, and differences over the status of territorial claims that contributed to “the Antarctic Problem”6 continues, albeit in a muted fashion, to influence the intersection between the law of the sea and the Antarctic Treaty.

III. The Law of the Sea During the twentieth century, there was considerable progress on the codification of the law of the sea. Key milestones included attempts in the 1930s to draft a binding convention under the auspices of the League of Nations. This failed for a number of reasons, and collapsed with the failure of the League and the beginning of the Second World War. In 1945, United States President Truman announced that the US claimed sovereignty over the continental shelf off the coast of the United States. The Truman Proclamation was a major impetus for the development of international instruments dealing with the law of the sea, as other states followed the United States in declaring sovereignty over their continental shelves. Following work by the United Nations International Law Commission, a report was produced on the status of the law of the sea.7 In 1958, the first United Nations sponsored conference on the law of the sea was held, which resulted in the drafting of four instruments that became known as the Geneva Conventions on the Law of the Sea.8 These Geneva Conventions did not, however, achieve widespread acceptance or sufficient ratifications to effectively address problems of ocean governance. In 1960, a second UN conference on the law of the sea was held, but this effort was inconclusive. As Rothwell and Joyner note: “perusal of the proceedings of UNCLOS I reveals that during the negotiations, the terms ‘Arctic,’ ‘Antarctic,’ or ‘polar’ were never mentioned, much less critically discussed as particular considerations pertinent to ocean law matters.”9

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Eric W.H. Christie, The Antarctic Problem: An Historical and Political Study (1951). Donald R. Rothwell & Christopher C. Joyner, The Polar Oceans and the Law of the Sea, The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (A.G. Oude Elferink & D.R. Rothwell eds., 2001). 1958 Law of the Sea Conventions: Convention on the High Seas, 450 U.N.T.S. 11 (No. 6465); Convention on the Continental Shelf, 499 U.N.T.S. 311 (No. 7302); Convention on the Territorial Sea & Contiguous Zone, 516 U.N.T.S. 205 (No. 7477); and Convention on Fishing and the Conservation of Living Resources of High Seas, 559 U.N.T.S. 285 (No. 8164). Rothwell & Joyner, supra note 7, at 3.

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In the mid-to late-1960s, increased concerns were expressed over the state of the marine environment as major oil tanker disasters gave graphic images on the problems of oil pollution. The Maltese Ambassador to the United Nations, Arvid Pardo, gave a major speech in 1967 calling for concerted action over governing the world’s oceans. Support for Pardo’s call for a United Nations conference was made in a UN General Assembly resolution in 1970, which led to the Third United Nations Conference on the Law of the Sea. The Third U.N. Law of the Sea Conference was held between 1974 and 1982, and included 15 sessions (585 days) plus inter-sessional meetings. A total of 150 countries were represented, with approximately 3000 delegates and an open-ended time frame. This Conference has been described as the most complex United Nations multilateral exercise in diplomacy yet held.10 It took eight years to negotiate the Convention, but the issues were so significant that it took another 12 years for the ratification by the required 60 States. The Law of the Sea Convention entered into force in 1994. The focus of the Third Law of the Sea Conference was set by the words of the resolution that established the Conference: “dealing with all matters relating to the law of the sea . . . bearing in mind the problems of ocean space are closely interrelated and need to be considered as a whole.”11 This focus remained throughout the years of debate. It is a comprehensive convention that was negotiated as a ‘package deal’; all of its provisions had to be accepted, not only its key sections. Although the Antarctic was not included in deliberations at the Law of the Sea Conference, the Convention that emerged provides a comprehensive “constitution for the oceans.”12 The Convention establishes the basis for managing ocean space, including the Southern Ocean within the Antarctic Treaty Area. It also provides definitions of coastal states and maritime zones, based on establishing baselines

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Anthony Bergin, Australia’s Contribution to the Convention, in The United Nations Convention on the Law of the Sea: What it Means to Australia and Australia’s Maritime Industries (M. Tsamenyi, S. Batemand & J. Delaney eds., Wollongong Papers in Maritime Policy No. 3, Center for Maritime Policy, University of Wollongong 1996). United Nations General Assembly Resolution 2750 (XXV), 17 Dec. 1970. The Third U.N. Law of the Sea Conference was convened through United Nations General Assembly Resolution 3067 (XXVIII), 16 Nov. 1973 (A/9278). Tommy B. Koh, Statement at Final Session of Third UN Conference on the Law of the Sea, Montego Bay December 1982, reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea (1983).

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from which these zones are delimited13 – the territorial sea/contiguous zone;14 the exclusive economic zone (EEZ);15 the continental shelf;16 and the high seas.17 As will be noted in the following section, the question of coastal States and their maritime zones and boundaries are, in the context of the Antarctic Treaty and operation of the Antarctic Treaty System, contentious. Part XI of the Law of the Sea Convention deals with “The Area,” which is outside the EEZ or the extended continental shelf of coastal states’ national jurisdiction. Part XI (Articles 133–83) elaborates the “common heritage” principle, and establishes the institutions and regimes governing deep-seabed mining. These provisions necessarily intersect with the Antarctic Treaty, which covers marine areas south of latitude 60° South.18 The common heritage principle, as elaborated in the Law of the Sea Convention, was to become the basis of a challenge to the Antarctic Treaty when Malaysia raised the “Question of Antarctica” in the United Nations General Assembly in 1982.19

IV. The Antarctic Treaty The Antarctic Treaty was a significant diplomatic effort balancing the aspirations and interests of a number of different actors. Formal negotiations in Washington lasted 18 months from June 1958, including 60 preparatory meetings and a formal diplomatic Conference on Antarctica that began on October 15, 1959. The Antarctic Treaty was opened for signature on December 1, 1959. The claimant states differed sharply with other states on territorial claims and sovereignty. A number of options were considered in relation to the “Antarctic problem” leading up to 13

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Although the Law of the Sea Convention provides clear rights for coastal states, these rights have concomitant obligations, including the duty to cooperate. Article 61, for example, notes that the coastal state shall determine the allowable catch of the living resources of its exclusive economic zone, but also introduces the need to take into consideration the effects on species associated or dependent upon harvested species with a view to maintaining or restoring populations of such associated and dependent species. See Law of the Sea Convention, supra note 1, art. 61 (4). This introduces a broader focus than just target species and foreshadows what have become known as ecosystem approaches to fisheries harvesting, embodied specifically in the operation of CCAMLR. Articles 63 and 64 indicate that coastal states and other states shall cooperate over the utilisation of straddling and high migratory stocks. Law of the Sea Convention, supra note 1, arts. 2–33. Id. arts. 55–75. Id. arts. 76–85. Id. arts. 86–119. Other provisions of the Law of the Sea Convention that have relevance to the Antarctic Treaty Area include Part XII (arts. 192–237) which addresses protection and preservation of the marine environment, and Part XIII (arts. 238–65) addressing marine scientific research. Rohan Tepper & Marcus Haward, The Development of Malaysia’s Position on Antarctica: 1982–2004, 41 Polar Record 113–24, (2005).

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the conference.20 States, such as Australia, that had territorial claims wished to maintain the status of their claims. This position was opposed by the United States and the Soviet Union, states that did not recognize any claim, but had reserved their rights to claim any or all of the continent. This “wait-and-see” approach of the two superpowers was evident in the strategic nature of their scientific research activities on the continent. The Soviet Union established research stations in the territory of each of the claimants, including the Australian Antarctic Territory (AAT), prior to and during the International Geophysical Year in 1957–58, while the U.S. established the Amundsen–Scott station at the South Geographic Pole, effectively within all claims (noting, however, that Norway does not define either the southern or northern limits of its claim), as well as stations elsewhere, including in the AAT. The International Geophysical Year of 1957–58 (IGY) is generally seen as giving impetus to the development of the Antarctic Treaty of 1959. At the height of the Cold War, the IGY provided an opportunity to overcome the Antarctic problem, setting aside differences over the status of territorial claims to sovereignty in Antarctica, and reinforcing the role of science and scientific collaboration.21 Scientific developments during World War II (particularly in the areas of rocketry, radar, and radio), together with increased awareness of the importance of polar areas for understanding the earth’s magnetic field, drove interest in large-scale scientific experiments. This imperative was further enhanced by the successes of the USA’s Operations, Highjump (1946–47) and Deep Freeze (1955–56). These expeditions reinvigorated Antarctic science and also inflamed debates over Antarctica’s geopolitics.22 Thus, the countries decided to hold another polar year beginning in 1957.23 The Antarctic, by virtue of the paucity of existing scientific information, was singled out for special attention, along with outer space. In 1955, the Soviet Union registered its intention to participate in the Antarctic programs of the IGY, and in 1957, launched its first Sputnik spacecraft.24 These activities by the Soviets caused significant concern throughout the scientific community. Notwithstanding such concerns, the ensuing 18 months of data collection from July 1957 to December 1958 by 12,000 scientists from 67 nations generated

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These options included a United Nations Trusteeship or a condominium of key states, see G.C.L. Bertram, Antarctica Today and Tomorrow (1958). The following paragraphs are derived from Marcus Haward & Julia Jabour, Science and Politics in the Polar Regions, paper presented at International Studies Association Conference, Chicago, Feb. 28 – Mar. 3, 2007. Jason Kendall Moore, Bungled Publicity: Little America, Big America and the Rationale for NonClaimancy, 1946–1961, 40 Polar Record 19–30 (2004). Antarctic Science 32 (D.W.H. Walton ed., 1987). P.W. Quigg, A Pole Apart 47 (1983).

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a total of 48 volumes and an unprecedented number of Antarctic scientific papers.25 Many nations benefited from the international cooperation engendered by the IGY, and were keen to see the cooperation continue. Although it was originally envisaged that the IGY infrastructure and programs would be downgraded, both the U.S.A. and U.S.S.R. independently intimated that they were considering retaining a presence on the continent, thereby encouraging the other to commit to long-term scientific programs.26 During the IGY, the Special (later Scientific) Committee on Antarctic Research, SCAR, was created as a non-governmental coordinating body. Today, six decades later, SCAR is an inter-disciplinary committee of the International Council for Science (ICSU) and it initiates, develops, and coordinates scientific research in and about the Antarctic.27 It has a number of standing scientific groups reporting to it, which represent the scientific disciplines active in Antarctic research. SCAR is an observer at Antarctic Treaty Consultative Meetings (ATCMs), and is often invited to provide scientific advice to the parties to help inform their decision-making. These differences over the status of territorial claims and sovereignty in Antarctica were resolved during the negotiation of the Antarctic Treaty. A Chilean initiative provided a modus vivendi to resolve the differences between claimants and others. The drafting of the Antarctic Treaty successfully balanced competing demands, and managed to accommodate different views and interests within the one instrument for the pursuit of peaceful scientific exploration. The Chilean initiative, the Escudero proposal,28 developed into Article IV, effectively “freezing” existing and any further territorial claims while allowing states to recognize existing claims.29

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Id. at 47. See also Walton, supra note 23, at 7. H. Robert Hall, International Regime Formation and Leadership: The Origins of the Antarctic Treaty (Unpublished PhD Thesis, University of Tasmania 1994). Scientific Committee on Antarctic Research (SCAR) (2007), available at http://www.scar.org (last visited Oct. 5, 2007). Named after its initiator, Professor Julio Escudero, a former Legal Adviser in the Chilean Foreign Ministry and unofficial consultant to the Ministry. See Hall, supra note 26, at 7. Art. IV states: 1. Nothing contained in the present Treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; c. prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State’s rights of or claim or basis of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create

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The Antarctic Treaty embodies a number of key principles regarding the use of Antarctica. The first of these, peaceful use, is given expression in the Preamble: “it is in the interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.” It can be seen as a “peace” treaty demilitarizing the continent,30 and an important precedent through its inspection regime, for a range of disarmament instruments including the Chemical Weapons Treaty.31 Peace is also achieved through Article IV, which removes any tensions over sovereignty. Science is also a key principle. Articles II32 and III33 of the Antarctic Treaty provide for the freedom and the promotion of international cooperation of scientific investigations.

V. The Antarctic Treaty System (ATS) The Antarctic Treaty System (ATS) is used to describe the instruments and institutions that provide a framework for managing uses of the Antarctic and Southern Ocean. The ATS is centered on the 1959 Antarctic Treaty and includes: – Antarctic Treaty, 1959;34 – Convention for the Conservation of Antarctic Seals, 1972;35

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any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force. Hall, supra note 26, at 7. Chris Moraitis, The Antarctic Treaty, Presentation at Treaty Territory Symposium, Hobart, June 2006. Art. II: Freedom of scientific investigation in Antarctica and cooperation toward that end, as applied during the International Geophysical Year, shall continue, subject to the provisions of the present Treaty. Art. III: 1. In order to promote international cooperation in scientific investigation in Antarctica, as provided for in Article II of the present Treaty, the Contracting Parties agree that, to the greatest extent feasible and practicable: (a) information regarding plans for scientific programs in Antarctica shall be exchanged to permit maximum economy and efficiency of operations; (b) scientific personnel shall be exchanged in Antarctica between expeditions and stations; (c) scientific observations and results from Antarctica shall be exchanged and made freely available. 2. In implementing this Article, every encouragement shall be given to the establishment of cooperative working relations with those Specialized Agencies of the United Nations and other international organizations having a scientific or technical interest in Antarctica. Antarctic Treaty, supra note 2. Convention for the Conservation of Antarctic Seals, 29 U.S.T. 441, 11 I.L.M. 251 (1972).

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– Convention on the Conservation of Antarctic Marine Living Resources, 1980;36 and – Protocol on Environmental Protection to the Antarctic Treaty, 1991.37 The Convention for the Regulation of Antarctic Mineral Resource Activities, 1988 was negotiated by the Antarctic Treaty Consultative Parties (ATCPs) between 1981 and 1988, but because of opposition from key ATCPs, most notably Australia and France, the instrument did not enter into force. Instead, the ATCPs negotiated the Protocol on Environmental Protection to the Antarctic Treaty,38 which was opened for signature in 1991. The Protocol entered into force in 1998.39 The management of marine living resources in the Southern Ocean “between the Antarctic continent in the south and the Antarctic Polar Front in the north (at about 50°S),”40 with the exception of whale and seal species,41 is undertaken by the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).42 First raised at Antartic Treaty Consultative Meeting (ATCM) IX held in 1977, CCAMLR was developed in response to concerns over the potential unregulated harvesting of krill and was the impetus for negotiations over Antarctic marine living resources. This meeting resulted in Recommendation IX-2 “that established Interim Guidelines for the Conservation of Antarctic Marine Living Resources and called for a Special Consultative Meeting to establish a definitive conservation regime for such resources.”43 The CCAMLR Commission, like other institutions within the ATS, operates on a consensus model of decision-making. This approach has been criticized as leading to weaker, lower common denominator outcomes, yet, it has also been important in contributing to the “success” of the Commission in managing differences

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Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), supra note 4. Protocol on Environmental Protection to the Antarctic Treaty, 30 I.L.M. 1455 (1991). Id. The text of the Madrid Protocol and its Annexes I–IV entered into force in 1998. Annex V had a separate ratification process as it was concluded separately. It entered into force on 24 May, 2002. Annex VI to the Protocol Liability Arising from Environmental Emergencies was adopted at ATCP XXVIII in Stockholm in 2005 and has not yet entered into force. CCAMLR’s Mandate, available at www.ccamlr.org/pu/E/e_pubs/am/man-ant/p1.2.htm (last visited Oct. 6, 2007). See CCAMLR, supra note 4, art. 6: Nothing in this Convention shall derogate from the rights and obligations of Contracting Parties under the International Convention for the Regulation of Whaling and the Convention for the Conservation of Antarctic Seals. CCAMLR, supra note 4. James N. Barnes, The Emerging Convention on the Conservation of Antarctic Marine Living Resources: An Attempt to Meet the New Realities of Resource Exploitation in the Southern Ocean, in The New Nationalism and the Use of Common Spaces 248 ( J.I. Charney ed., 1982).

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between the parties.44 CCAMLR differs from other institutions within the ATS, because although “explicitly embedded” within the system,45 it is also clearly “free standing.”46 This has a number of consequences of relevance to dispute resolution, including, inter alia, the relationship between CCAMLR and the Protocol on Environmental Protection to the Antarctic Treaty. The Commission’s relationship with the Committee for Environmental Protection (CEP) established by the Protocol on Environmental Protection is of direct salience in relation to provisions related to marine protected areas being developed within Annex V of the Protocol. CCAMLR has emphasized the importance of addressing emergent issues within high seas fisheries in the years following the entry into force of the Law of the Sea Convention. As Edeson noted, “[t]he terminology “Illegal, Unreported and Unregulated Fishing” is generally accepted as having been initiated in the context of CCAMLR . . . and in particular at its sixteenth session” in 1988.47 IUU fishing within the CCAMLR area has posed significant management challenges for the Commission. It has also been instrumental in addressing the problem of incidental catch of seabirds associated with longline fisheries, action that led to the United Nations Food and Agriculture Organisation’s International Plan of Action International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries48 and the negotiation of the Agreement for the Conservation of Albatross and Petrels. The inherent problem of how to designate a boundary to an ecosystem, and the problem of jurisdiction over sovereign territory (the sub-Antarctic Islands of member states that lie north of the Antarctic Treaty Area) within this area has led to some different views between parties. Resolving these differences, or at least adopting the “Antarctic solution” of putting them aside49 and working through consensus processes, is a significant achievement. France, in particular, is concerned over the implications for its sovereignty over Crozet and Kerguelen Islands, and has refused to agree to proposals that it has felt inadequately protected its rights.

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Francisco Orrego Vicuña, The Effectiveness of the Decision-Making Machinery of CCAMLR: An Assessment, in The Antarctic Treaty System in World Politics (A. Jørgensen-Dahl & W. Østreng eds., 1991). Olav Stokke, The Effectiveness of CCAMLR, in Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System 120–51 (O.S. Stokke & D. Vidas eds., 1996). Richard Herr, CCAMLR and the Environmental Protocol: Relationships and Interactions in Implementing the Environmental Protection Regime for the Antarctic 273–84 (D. Vidas ed., 2000). W. Edeson, Closing the Gap: The Role of ‘Soft’ International Instruments to Control Fishing, 20 Australian Y.B. of Int’l L. 83–104 (1999). United Nations Food and Agriculture Organisation, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries (Rome FAO, 1999), avavilable at http://www.fao .org/docrep/006/x3170e/x3170e00.htm. Hall, supra note 26, at 7.

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As Barnes notes (in the best publicly available treatment of the negotiations over the Convention), “[m]ore than a year was spent in trying to agree on language that was acceptable to France.”50 This problem was resolved through what is known as “The Chairman’s Statement,” appended to the Convention as an Annex. The “Chairman’s Statement” retained French measures relating to the management of marine living resources that were in effect prior to the entry into force of the Convention. It also enabled France to make reservations regarding the application of Conservation Measures to the waters around Crozet and Kerguelen Islands. France would be bound by Conservation Measures “adopted by consensus with its participation,” but in the absence of consensus, “could promulgate any national measures which it might deem appropriate.” In addition to these instruments, the ATCPs developed arrangements for conservation – the Agreed Measures for the Conservation of Antarctic Flora and Fauna in 1964 – which were later incorporated into the Madrid Protocol as Annex II. Antarctic tourism has been a longstanding issue and is managed through voluntary codes of practice and site guidelines established by the International Association of Antarctica Tour Operators (IAATO), with support from the ATCPs as national Antarctic program operators.51 The institutional components of the ATS include: – – – –

Antarctic Treaty Secretariat; Antarctic Treaty Consultative Meetings (ATCM); Committee for Environment Protection (CEP); Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR Commission); – Scientific Committee on Antarctic Research (SCAR); – Council of Managers of National Antarctic Programs (COMNAP); and – Standing Committee on Antarctic Logistics and Operations (SCALOP). Science has been described as the “currency” of the Antarctic Treaty System,52 with the establishment of a scientific program the basis of gaining consultative party status. Scientific collaboration established under the IGY and later entrenched

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Barnes, supra note 43, at 10. Richard A. Herr, The Regulation of Antarctic Tourism: A Study in Regime Effectiveness, in Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System 203–26 (O.S. Stokke & D. Vidas eds., 1996); C. Murray & J. Jabour, Independent Expeditions and Antarctic Tourism Policy, 40 Polar Record 215, 309–17 (2004); L.K. Kriwoken & D.M. Rootes, Tourism on Ice: Environmental Impact Assessment and Antarctic Tourism, 18 Impact Assessment & Project Appraisal 2, 138–50 (2000). Richard A. Herr and H.R. Hall, Science as Currency and the Currency of Science, CRES Resource and Environmental Studies No. 1, ( J. Handmer ed., CRES, ANU, Canberra 1989).

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within the Antarctic Treaty also encourages close linkages between scientific programs of different consultative parties.53 The 12 original signatories to the Treaty – the states that were active in Antarctica during the IGY – have decision-making status at consultative meetings by virtue of Article IX of the Treaty. Article XIII provides for accession of other states to the Treaty and they, too, can achieve consultative party status by “conducting substantial research activity [in Antarctica], such as the establishment of a scientific research station or the despatch of a scientific expedition.”54 Collaboration is facilitated through linkages embedded within the ATS and through the work of COMNAP and SCALOP, as well as scientific links fostered by the Scientific Committee on Antarctic Research (SCAR), the CEP, the Scientific Committee of CCAMLR, and other international scientific bodies such as the World Meteorological Organisation (WMO) and the International Council for Science (ICSU).55 ICSU is a major partner in the development of the Polar Year 2007–08. SCAR was established during the IGY and is responsible for initiating and coordinating international scientific research in the Antarctic region.56 The ATS can be expected to continue to evolve and address emerging issues affecting the Antarctic and Southern Ocean, but the degree to which the ATS engages with other regimes remains to be seen. In addition to the interface with the Law of the Sea Convention, increased interactions with other international environmental instruments have been mooted. These instruments include the Convention on Migratory Species of Wild Animals (CMS or the Bonn Convention),57 the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),58 the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention),59 and the Convention on Biological Diversity.60 The World Heritage Convention has been utilized by Australia to secure World Heritage listing for the sub-Antarctic Macquarie Island

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Of the current 46 parties to the Treaty, 28 have decision-making status. This provision and the explicit statements relating to science within the Treaty and subsequent instruments have emphasized the centrality of science. See also Haward & Jabour, supra note 21. Antarctic Treaty, supra note 2, art. IX.2. ICSU, founded in 1931, is a nongovernmental organization representing a global membership that includes both national scientific bodies (103 members) and international scientific unions (27 members). 28 countries are full members of SCAR gained through maintaining an active scientific research programme in Antarctica. There are four associate members, countries without a current independent research program but with plans for the future, and seven scientific unions, members of the ICSU that have an interest in Antarctic research. 19 I.L.M. 15 (1980), entered into force 1 Nov. 1983. 993 U.N.T.S. 243, entered into force 1 Nov. 1975. 1037 U.N.T.S. 151, entered into force 17 Dec. 1975. 31 I.L.M. 818 (1992), entered into force 29 Dec. 1993.

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and Heard and McDonald Islands, but the direct application of the Convention to the Antarctic has been resisted. The impacts of incidental catching of seabirds, regarded as a major conservation problem within the CCAMLR and Antarctic Treaty Areas, have resulted in the Agreement for the Conservation of Albatrosses and Petrels (ACAP) being established under the CMS.61 Other challenges relate to the management of marine living resources within the ATS. There are significant differences over whaling amongst the ATCPs, and while discussion on whaling is quarantined within the International Whaling Commission, it is likely that this issue will continue to have an influence within the ATS. The issue of illegal, unreported, and unregulated (IUU) fishing was, as noted above, first raised in CCAMLR, and taken forward through the United Nations Food and Agriculture Organization. The problem of IUU fishing is not limited to the Southern Ocean, but the threats being posed by illegal fishing within the CCAMLR area illustrate the challenge in implementing and enforcing both national fishing laws and CCAMLR provisions against illegal fishers.62 Addressing the problem of IUU fishing in the Southern Ocean provides a direct link to the Law of the Sea Convention. The UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was negotiated during six sessions between June 1993 and December 1995. Despite significant differences between coastal and distant-water states, and between those states that wanted a legally binding agreement and those that did not, the conference concluded with a “strong and binding Agreement,” the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks63 (UN Fish Stocks Agreement – UNFSA).64 The compliance and enforcement provisions within the UNFSA65 provide that in order to ensure that flag vessels comply with regional and subregional measures,

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Agreement on the Conservation of Albatrosses and Petrels (ACAP), 5 ATS (2004), entered into force 1 Feb. 2004. Marcus Haward, Donald, R. Rothwell, Julia Jabour, Robert Hall, Aynsley Kellow, Lorne Kriwoken, Gail Lugten, & Alan Hemmings, Australia’s Antarctic Agenda, 60 Australian J. of Int’l Affairs 3, 439–56 (2006). Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (hereafter Straddling & Migratory Fish Stocks Agreement), 34 I.L.M. 1547 (1995), entered into force Dec. 11, 2001. For a detailed analysis of the background and negotiations during the conference, see David J. Doulman, The Structure and Process of the 1993–1995 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, FAO Fisheries Circular No. 898 (Rome 1995), available at www.fao.org/dcorep/v9929e/ v9929EOO.htm. Straddling & Migratory Fish Stocks Agreement, supra note 63, arts. 19, 20, 21, and 23.

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states shall enforce such measures irrespective of where violations occur. A state shall immediately and fully investigate any alleged violation of such measures, and shall require its vessels to give information to the investigating authority regarding vessel position, catches, fishing gear, fishing operations, and related activities in the area of an alleged violation. The UNFSA includes significant nonflag state enforcement powers. States parties that are members of regional or subregional fisheries management organizations may detain vessels that have engaged in activities that undermine the effectiveness of the organization’s conservation and management measures on the high seas until appropriate action is taken by the flag state.66 Furthermore, a port state has the right and duty to take certain measures, such as the inspection of documents, fishing gear, and catch on board vessels when such vessels are in its ports voluntarily.67 A port state may adopt regulations prohibiting landings and trans-shipments where it has been established that the catch has been taken in a manner that undermines the effectiveness of subregional, regional, or global conservation and management measures on the high seas.68

VI. The Law of the Sea and Antarctica As noted earlier, Antarctica was never specifically discussed in relation to the development of the law of the sea during the past 60 years, in the three Law of the Sea Conferences. Indeed, Antarctic was specifically excluded from discussion at the Third Conference, yet the common heritage principle which developed in this Conference became important in the debates on Antarctica. Prime Minister Mahathir of Malaysia called for the administration of “uninhabited lands,” such as Antarctica, so that future exploitation of Antarctica’s resources could benefit all nations, not just those who had the economic and technological capability. Mahathir appealed for a U.N. meeting to work towards an international agreement to ensure that the interests of all nations were served.69 Although he praised the Antarctic Treaty for its commitment to peace and scientific research, Mahathir remained adamant that the Treaty was an anachronistic agreement between a select group of nations, and was a legacy of colonial times.70

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Id. art. 21(8), see also art. 23(1). See Olav Schram Stokke, Managing Straddling Stocks: The Interplay of Global and Regional Regimes, 43 Oceans & Coastal Management 200, 205–34. Stokke describes the provisions of port state controls as a more controversial element of compliance regimes. Id. at 220. Straddling & Migratory Fish Stocks Agreement, supra note 63, art. 23(2). Id. art. 23(3). Statement by Prime Minister Mahathir of Malaysia at the 37th session of the United Nations General Assembly in New York, 29 Sept. 1982. 15 Foreign Aff. Malaysia 3, 173–84 (1982). Id.

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Malaysia was not successful in its proposal to establish a new regime for Antarctica, but achieved support in a Resolution that the question of Antarctica be discussed further. In 1985, despite lengthy negotiations, the debate broke down into a standoff between Malaysia and Australia, which spoke on behalf of the ATCPs.71 This debate saw Australia’s representative working to bridge the gap between Malaysia and the ATCPs. In 1985, the ATCPs objected to references in the U.N. resolutions linking the common heritage concept to the Convention to Antarctica. These objections led the ATCPs to decide not to “participate” in passing resolutions on the “question of Antarctica.”72 The relationship between the Law of the Sea Convention and the Antarctic Treaty continues to present unresolved issues, including the extent to which claimant states can assert rights as coastal states, or even whether coastal states exist in Antarctica, given the particular status of the Antarctic claims under the Antarctic Treaty. Where claimant states have asserted maritime rights, the legitimacy of these claims has been denied by nonclaimant states.73 There is no uniformity of approach to the territorial sea,74 nor is there any consistent approach to establishing an EEZ or continental shelf. A number of parties to the Treaty interpret Treaty provisions to preclude the declaration of maritime zones in the waters adjacent to Antarctica. The fundamental questions raised by these states over the status of territorial claims in Antarctica highlight the difficulties in the delimitation of territorial sea baselines in Antarctica under the provisions of the Law of the Sea Convention.75 A second difficulty in delimiting baselines occurs as a result of the particular character of the Antarctic coastline. The majority of the Antarctic coastline is ice-covered, and this coastline is subject to the annual expansion and retreat of sea ice.76 There has

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Richard Woolcott, The Hot Seat: Reflections on Diplomacy from Stalin’s Death to the Bali Bombings (2003). Richard Woolcott, Australian Ambassador to the United Nations, had extensive experience in South East Asia, including an appointment to the Australian High Commission in Malaysia in the early 1960s. P.J. Beck, Antarctica and the United Nations, 1985: The End of Consensus?, 23 Polar Rec. 143, 159–66 (1986). Patrizia Vigni, Antarctic Maritime Claims: “Frozen Sovereignty” and the Law of the Sea, in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction 87 (A.G. Oude Elferink & D.R. Rothwell eds., 2001). Id. at 104. J.A. Green, Antarctic EEZ Baselines: An Alternative Formula, 11 Int’l J. of Marine & Coastal L. 333–50 (1996); J.A. Green, Australian Maritime Boundaries: the Australian Antarctic Territory, 25 Marine Poly 1–11 (2001); Donald. R. Rothwell, Antarctic Baselines: Flexing the Law for IceCovered Coastlines, in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction – (A.G. Oude Elferink & D.R. Rothwell eds., 2001). The growth and decline of sea ice is a significant factor in world climate through the creation of bottom water that moves northwards through each of the great ocean basins.

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been debate over the unresolved status of ice within international law,77 because Article 234 of the Law of the Sea Convention relating to Arctic ice-covered waters has no direct application to the Antarctic. Emerging practice is to regard the coast as either rock or glacial ice (including ice shelves and ice tongues). Maritime rights in the Antarctic Treaty Area are subject to the limitation in Article IV on the assertion of new claims, but with the important qualification of the Treaty’s Article VI, which ensures that the Treaty is without prejudice to highseas rights under international law. The sub-Antarctic islands – under national jurisdiction and outside the Treaty Area – are not subject to Article IV limitations and can legitimately generate EEZs and continental shelves.78 For example, Heard Island, part of the Australian sub-Antarctic Heard and McDonald Islands Territory, generates a significantly large continental shelf due to its distinctive seabed geomorphology that can be delimited as “legal continental shelf ” under Article 76 of the Convention.79 More recently, the intersection of the Law of the Sea Convention and the ATS has helped focus attention on sovereignty.80 The declaration of maritime zones off the Australian Antarctic Territory (AAT) has been considered by some states as controversial, but any potential disputes were avoided by not enforcing territorial sea or EEZ rights off the AAT. The question of delimitating the AAT continental shelf posed not only important political and legal challenges to Australia, but also a dilemma in relation to its interests. Australia had included the continental shelf of the AAT in its 1953 declaration of a continental shelf,81 a move that pre-dated the negotiation and entry into force of the Antarctic Treaty.82 Australia was also the first of the Antarctic claimant states facing the deadline for submission of data supporting a claim for an extended continental shelf, having ratified the Law of

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F.M. Auburn, Antarctic Law and Politics, (1982); Christopher C. Joyner, The Status of Ice in International Law, in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction 23–48 (A.G. Oude Elferink & D.R. Rothwell eds., 2001). Stuart Kaye, Australia’s Maritime Boundaries, Wollongong Papers in Marine Affairs No. 4, Centre for Maritime Policy, University of Wollongong, 1995. For a discussion of Antarctic claimant states’ maritime zones. See also Vigni, supra note 63. Id. See also Alex G. Oude Elferinck & Constance Johnson, Outer Limits of the Continental Shelf and Disputed Areas: State Practice Concerning Article 76 of the LOS Convention 21 Int’l J. of Marine and Coastal Law 461–87 (2006). Stuart B. Kaye & Donald R. Rothwell, Southern Ocean Boundaries and Maritime Claims: Another Antarctic Challenge for the Law of the Sea?, 33 Ocean Dev. & Int’l L. 359–89 (2002). Commonwealth of Australia Gazette No. 56, at 563 (Sept. 11, 1953), reprinted in W.M. Bush, 2 Antarctica and International Law: A Collection of Interstate and National Documents 172 (1982). Ruth Baird, Can Australia Assert an Extended Continental Shelf off the Australian Antarctic Territory Consistent with the Law of the Sea and Within the Constraints of the Antarctic Treaty?, 138 Maritime Studies 1–19 (Sept.–Oct. 2004).

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the Sea Convention on October 5, 1994.83 Failure to include the AAT in survey work and data collection for the extended continental shelf would have indicated Australia’s weakening of its claims to sovereignty over the AAT.84 The solution to this dilemma was relatively simple: Australia lodged data for its claims to an extended continental shelf and requested that the Commission on the Limits of the Continental Shelf (CLCS) not examine the data associated with the AAT.85 The delimitation of the Antarctic continental shelf utilized a range of provisions available to Australia under Article 76 of the Convention, including the “sediment thickness formula,” and as a result, has provided significant scientific data for further research.86 Other Antarctic claimant states are addressing the issue of delimiting the continental shelf in different ways. At present,87 of the seven claimants states, only Australia (see above) and New Zealand, which made a partial submission to the CLCS, have mentioned Antarctica. The New Zealand submission was lodged on April 19, 2006. “The submission contains the information on the proposed outer limits of the continental shelf from the baselines from which the breadth of the territorial sea is measured . . . ‘not including areas of continental shelf appurtenant to Antarctica.’”88 Norway made a submission to the CLCS on November 27, 2006, addressing “three separate areas in the North East Atlantic and Arctic: the Loop in the Barents Sea, the Western Nansen Basin and the banana hole in the Norwegian Sea. . . . The present submission deals only with the continental shelf in these areas. A further submission may be made in respect of other areas.”89 The United Kingdom and France have made joint submission with Ireland and Spain relating

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Davor Vidas, Emerging Law of the Sea Issues in the Antarctic Maritime Area: A Heritage for the New Century?, 31 Ocean Dev. and Int’l L. 197–222 (2000). Baird, supra note 82. See also Andrew Serdy, Towards Certainty of Seabed Jurisdiction Beyond 200 Nautical Miles from the Territorial Sea Baseline: Australia’s Submission to the Commission on the Limits of the Continental Shelf, 36 Ocean Dev. & Int’l L. 201–17 (2005). Julia Jabour, High Latitude Diplomacy: Australia’s Antarctic Extended Continental Shelf, 30 Marine Pol’y 197–98 (2006). Sediment cores drilled offshore from the AAT, as part of the scientific research program to delimit the continental shelf, are providing important data on the paleo-climate record used in climate reconstructions as part of Australian research on global climate change. As of 2007. Commission on the Limits of the Continental Shelf, Submissions to the Commission: submission by Norway, available at www.un.org/Depts/los/clcs_new/ submissions_files/submission _nzl.htm (last visited Oct. 13, 2007). Commission on the Limits of the Continental Shelf, Submissions to the Commission: submission by Norway, available at www.un.org/Depts/los/clcs_new/ submissions_files/submission_ nor.htm (last visited Oct. 13, 2007). This statement reinforces Norway’s partial submission, but does not indicate intentions related to Norwegian Antarctic territory.

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to the Celtic Sea and Bay of Biscay90 and, like Norway, have not addressed other areas such as their Antarctic interests. In October 2007 media reports indicated that the United Kingdom was looking to prepare a submission to the CLCS relating to its Antarctic territory.91 Nonclaimant states that are party to the Antarctic Treaty have generally objected to national legislation and declarations of maritime zones off Antarctica made by the claimants. The basis of these objections is that such declarations are contrary to Article IV of the Antarctic Treaty (although those that have asserted such rights would say that they are asserting an area where rights can be exercised in accordance with international law pursuant to an existing claim – quite distinct from extending the claim itself, which is confined to land). Similar comments have been made in relation to the Australian and New Zealand submissions to the CLCS. In notes submitted to the U.N. Secretary-General following Australia’s submission, Japan, India, Germany, the USA, Russia, and the Netherlands all noted the provisions of Article IV. The communications from Japan, India, Germany, and the USA also confirmed the importance of “harmony between the Antarctic Treaty and the United Nations Convention on the Law of the Sea and thereby ensuring the continued peaceful cooperation, security and stability in the Antarctic area.”92 The note from the Netherlands on the Australian submission took a more explicit position, arguably cutting across the general understanding of the purpose of Article IV of the Antarctic Treaty in stating that “there is an unresolved land dispute in relation to Australia’s claim to territory in Antarctica.”93 In response to the Australian submission, the CLCS “acknowledged with appreciation Australia’s request to the Commission that it not take any action on the portion of its submission relating to areas of the seabed and subsoil adjacent to Antarctica.”94 In relation to its declaration of an EEZ off the Australian Antarctic Territory, Australia applies Australian law only to Australian citizens and chooses not to apply its law to other states. This position has been challenged by nongovernmental organizations (NGOs) over Japanese scientific research involving the lethal takings of whales occurring within the waters off the AAT. In 2004, Humane Society 90

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Commission on the Limits of the Continental Shelf, Submissions to the Commission: submission by France, Ireland, Spain, and the United Kingdom of Great Britain and Northern Ireland. Available at www.un.org/ Depts/los/clcs_new/submissions _files/submission_frgbires.htm (last visited Oct. 13, 2007). THE GUARDIAN, 17 October 2007. Notifications Regarding the Submission Made by Australia to the Commission on the Limits of the Continental Shelf, CLCS.03.2004. Netherlands, Notifications Regarding the Submission Made by Australia to the Commission on the Limits of the Continental Shelf, CLCS.03.2004. Notifications Regarding the Submission Made by Australia to the Commission on the Limits of the Continental Shelf, CLCS.03.2004.

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International (HSI) took action in the Federal Court of Australia against Japanese whalers, arguing that their action violated provisions of Australia s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).95 This case resulted in the unusual action of the Court inviting the Federal Attorney-General to intervene in order to provide a clear view of the Commonwealth government s position regarding Australian law enforcement in Antarctica against foreign nationals. Ultimately, this proved to be a pivotal ground upon which the Court declined to exercise its jurisdiction to decide the case on its merits.96 HSI appealed the decision and in 2006, and the Full Court of the Federal Court of Australia decided by a two to one majority in favour of HSI.97 After the appeal the case returned to Justice Allsop who had heard the original case. Justice Allsop then granted the HSI s application to serve the action on Kyodo Senpaku Kaisha Ltd. Following a direction hearing in July 2007, at which the Japanese company did not appear, the matter was listed for trial, and heard in September 2007. In January 2008 the decision in the case was released, with the Court granting the injunction sought by HSI (but acknowledging the difficulty of enforcement).98

VII. Challenges Australia and New Zealand have provided different solutions to the dilemma facing claimant states within the ATS in response to the issue concerning the extended continental shelf. This issue, arising from provisions of the Law of the Sea Convention, reinforces one of the challenges arising from the intersection of the two instruments. The nexus between the ATS and Convention regimes is likely to be a significant driver in the future. Although all parties (claimants and nonclaimants) are likely to work hard to ensure harmony between the regimes, clashes in the applicable international law regimes may arise through actions of nonparties to the ATS. Concerns over ship-sourced marine pollution arising from incidents associated with increased ship movements due to increased Antarctic tourism confirms the significance of flag-state responsibilities in ensuring compliance with relevant

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Humane Society International Inc v. Kyodo Senpaku Kaisha Ltd, FCA 664 (May 27, 2005), available at www.austlii.edu.au/au/cases/cth/federal_ct/2005/664.html (last visited Oct. 14, 2006). Joanna Mossop, When is a Whale Sanctuary Not a Whale Sanctuary? Japanese Whaling in Australian Antarctic Maritime Zones, 36 Victoria U. of Wellington L. Rev., 757–73 (2005). Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, FCFCA 116 (2006). Humane Society International v Kyodo Senpaku Kaisha Ltd, [2008] FCA 3.

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provisions of the Law of the Sea Convention, as well as the relevant instruments established by the International Maritime Organization.99 As the world’s fossil fuels diminish and technologies for mining in polar areas develop, and as the cost of oil rises and the economics of Antarctic oil drilling becomes competitive with other sources of oil, pressure may grow for exploration of Antarctica’s mineral resources, in areas including continental offshores. Currently, exploitation of these resources is prohibited under the Protocol on Environmental Protection to the Antarctic Treaty (Article 7), but this prohibition is capable of review after the year 2048, or earlier if there is consensus and if an agreed minerals management regime is in place for all parties. Although alteration of the prohibition is unlikely, “the area of application of the Protocol and that of the LOS Convention, as supplemented by the Implementing Agreement for Part XI do overlap at least in one part of the seabed south of 60o S, with all the legal and political problems this implies.”100 A further challenge may center on emerging issues such as Antarctic marine biological prospecting (bioprospecting). The issue of marine bioprospecting activities and related outcomes is relatively new to the ATCPs. Although bioprospecting has been taking place since the 1980s, it was not until 1999 that the Scientific Committee on Antarctic Research (SCAR) addressed this issue. Although the ATCMs have received information and working papers on this topic, there has not yet been any decision within the ATS on regulating biological prosecting.101 This topic was considered at ATCM XXX in 2007 and will be considered furthered at ATCM XXXI in 2008. Marine bioprospecting, at least in its initial phases, can be considered marine scientific research and is thus addressed with the relevant provisions of the Law of the Sea Convention. This issue is likely also to be examined at the meetings of the United Nations Informal Consultative Process on the Law of the Sea (UNICPOLOS) addressing marine genetic resources.102

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Christopher Joyner, The Emerging Legal Regime for Navigation through Antarctic Ice-Covered Waters, in Antarctica: Legal and Environmental Challenges for the Future 61–83 (Gillian Triggs & Anna Riddell eds., 2007). Vidas, supra note 83. J.A. Jabour & D. Nicol, Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the Southern Oceans, 4 Melbourne J. of Int’l L., 76–111 (2003). UNICPOLOS was initiated in 1999 following a decision of the UN General Assembly to facilitate the annual review of developments in oceans affairs and the law the sea. Meetings of UNICPOLOS have been held annually since 2000, and its agenda has direct relevance to issues discussed within the ATS. For example, 2002 – protection and preservation of the marine environment, capacity building regional cooperation and coordination of integrated oceans management; 2003 – safety of navigation, protecting vulnerable marine ecosystems; 2004 – new sustainable uses of the oceans marine biodiversity of the seabed beyond national jurisdiction; 2005 – fisheries and their contribution to sustainable development, marine debris; 2006 – ecosystems approaches and oceans.

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VIII. Conclusion The Antarctic Treaty System now provides a comprehensive management regime for Antarctica and the Southern Ocean. The Antarctic Treaty has successfully balanced the aspirations of claimant and nonclaimant states, and has maintained peaceful collaboration in the region. It has also, through the application of Article VI, respected “high seas” rights.103 It is clear that, notwithstanding a number of potential challenges to current arrangements, states party to the Antarctic Treaty are committed to maintaining harmony between the Antarctic Treaty and the United Nations Convention on the Law of the Sea. Challenges to harmony may, of course, arise. The ATCPs have shown that they can respond to emerging issues such as marine bioprospecting, or existing issues such as ship-based tourism or management of marine living resources, within the Antarctic Treaty area in ways that maintain harmony between instruments. Nonparties to the Antarctic Treaty may, however, attempt to utilize principles and provisions found within the Law of the Sea Convention in advancing their interests, including a return to assertions of the “common heritage” of humandkind in relation to Antarctic or Southern Ocean resources. The ATS has developed significantly in a near half-century of operation. CCAMLR originated out of concern for the need to conserve marine resources and ecosystems within the Southern Ocean. Over the past 25 years, the Commission has provided leadership in a number of key areas. These areas include the use of an ecosystems approach to marine resource management, adoption of precautionary decision rules, measures to address incidental catch of seabirds in longline fishing, and development of tools to combat what is now known as IUU fishing. There has been longstanding debate over the achievements and effectiveness of the ATS and its component instruments and institutions, but it nonetheless has played a significant role in dispute resolution over marine resources of the Southern Ocean through ongoing interaction with the Law of the Sea Convention.

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Antarctic Treaty, supra note 2, art. VI: “. . . but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.”

Chapter XII The Contribution of the International Tribunal for the Law of the Sea to International Law Helmut Tuerk* I. Introduction On November 16, 1994, after eight years of protracted and arduous negotiations, the United Nations Convention on the Law of the Sea of December 10, 19821 entered into force. This Convention is one of the most important treaties ever elaborated under the auspices of the United Nations, as it provides a well-nigh universally agreed regime for the seas, regulating all ocean space, its uses and its resources.2 At present, 156 states and the European Community are parties,3 and this number will probably continue to increase. The impetus for what has rightly been called a “constitution for the oceans”4 was the Memorandum of Malta, presented at the United Nations General Assembly in 1967, which proposed that the seabed and the ocean floor beyond the limits of national jurisdiction be declared “the common heritage of mankind,” not subject to national appropriation and reserved exclusively for peaceful purposes.5 It is

* The author is a judge of the International Tribune for the Law of the Sea in Hamburg, Germany. Opinions expressed in this article are personal and do not necessarily reflect those of the Tribunal as a whole. An updated version of this paper has been published in the Penn State International Law Review, Vol. 26, No. 2 (2007). 1 United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (1982), 1833 U.N.T.S. 3. 2 See Statement by Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea, Sixth Committee of the General Assembly of the United Nations at 1, New York, Oct. 20, 2006. 3 A list is on the website of the International Tribunal for the Law of the Sea, available at www.itlos .org. 4 Tommy T.B. Koh, A Constitution for the Oceans, Remarks made by the President of the Third United Nations Conference on the Law of the Sea, in Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index at xxxiii, U.N. Sales No. E.83.V.5 (1997). 5 Memorandum submitted by the Permanent Mission of Malta to the United Nations on Aug. 17, 1967, GA Doc. A/6695.

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doubtful whether such an overarching international instrument would ever have been negotiated without this initial spark. Since its entry into force, the United Nations Convention on the Law of the Sea has undoubtedly played a major role in bringing order to the oceans, particularly by laying down a clear and universal framework of coastal state maritime jurisdiction. The causes for many maritime disputes between states have thus been eliminated. At the same time, the Convention contains an innovative system for the settlement of such disputes. It has been recognized as one of the most far-reaching and complex systems of dispute settlement to be found anywhere in international law. There can be no doubt that the underlying rationale for the creation of such a system was to safeguard the many delicate compromises enshrined in the Convention and to secure its uniform interpretation and application.6 The Convention on the Law of the Sea created three important institutions: the International Seabed Authority in Jamaica, the International Tribunal for the Law of the Sea in Hamburg, and the Commission on the Limits of the Continental Shelf which meets in New York. Since the oceans and seas cover almost 71 percent of the Earth’s surface, the Tribunal for the Law of the Sea has, from a geographical point of view, the largest jurisdiction in the world, apart from the International Court of Justice (ICJ). Part XV of the Convention, which deals with the settlement of disputes, imposes an obligation on contracting parties to settle disputes by peaceful means and, in particular, provides for compulsory procedures with binding decisions.7 Annex VI of the Convention contains the Statute of the International Tribunal for the Law of the Sea, which is one of the four means for the settlement of disputes. The other alternative means are the ICJ, an arbitral tribunal constituted in accordance with Annex VII of the Convention, and a special arbitral tribunal under Annex VIII for certain categories of disputes such as fisheries, protection and preservation of the marine environment, marine scientific research, and navigation, including pollution from vessels and dumping.

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Robin Churchill, Some Reflections on the Operation of the Dispute Settlement System of the UN Convention on the Law of the Sea During its First Decade, in The Law of the Sea: Progress and Prospects 388 (D. Freestone, R. Barnes & D.M. Ong eds., 2006). See also Tullio Treves, The Exclusive Economic Zone and the Settlement of Disputes, in The Exclusive Economic Zone and the United Nations Convention on the Law of the Sea, 1982–2000: A Preliminary Assessment of State Practice 79 (Erik Franckx & Philippe Gautier eds., 2003). Treves underlines the fact that compared to the provisions concerning the settlement of disputes “contained in other ‘codification conventions,’ the system for the settlement of disputes in the United Nations Convention on the Law of the Sea is remarkably different, because it provides, as a rule, the possibility of compulsory settlement.”

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II. Jurisdiction, Composition, and Structure of the Tribunal 8 The International Tribunal for the Law of the Sea, which became operational on October 1, 1996, is a specialized international judicial body established for the settlement of disputes concerning the interpretation or application of the Convention on the Law of the Sea, and for rendering advisory opinions.9 In principle, the jurisdiction of the Tribunal includes any dispute relating to the law of the sea, such as disputes concerning maritime boundaries, fisheries, sea pollution, or marine scientific research. Its jurisdiction, however, is subject to certain limitations and optional exceptions, spelled out in Articles 297 and 298 of the Convention. These limitations relate to the exercise of certain discretionary powers by the coastal states, and contracting parties also have the right to exclude several categories of disputes, such as those relating to sea boundaries or military activities from compulsory settlement procedures. In two instances, the Tribunal has compulsory jurisdiction: Article 290 regarding provisional measures, and Article 292 concerning the prompt release of vessels and crews. The Convention does not contain any provision conferring advisory jurisdiction on the Tribunal as such, but the Tribunal may, on the basis of Article 21 of its Statute, give an advisory opinion on a legal question if this is provided for by an international agreement related to the purposes of the Convention.10 Thus far, no use has been made of this interesting option in any international instrument.11 The jurisdiction of the Tribunal may also derive from relevant clauses included in international agreements relating to the law of the sea. At present, there are eight international agreements, six of which are fisheries-related, containing provisions making specific reference to the dispute settlement procedures of Part XV of the

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See the publication of the Tribunal: A Guide to Proceedings before the Tribunal ( Jan. 2006); reproduced on www.itlos.org. See also P. Chandrasekhara Rao, ITLOS: The First Six Years, 6 Max Planck Yearbook of United Nations Law 185 (2002); and L. Dolliver M. Nelson, Reflections on the 1982 Convention on the Law of the Sea 35 (2006). Hugo Caminos, The International Tribunal for the Law of the Sea: An Overview of its Jurisdictional Procedure, in New International Tribunals and New International Proceedings 22 (Angela Del Vecchio ed., 2006). See Rüdiger Wolfrum, The Tenth Anniversary of the International Tribunal for the Law of the Sea, 3 Romanian J. of Int’l L. 76–77 (2006–II). Wolfrum points out that the advisory function of the Tribunal is a significant innovation in the international judicial system and may offer a potential alternative for those seeking a nonbinding opinion on a legal question or an indication as to how a particular dispute may be solved through direct negotiations. Such proceedings could be of particular assistance to parties to a dispute in the process of reaching a solution by negotiation, for example in maritime delimitation cases.

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Convention, and conferring therewith jurisdiction on the Tribunal.12 The best known are the Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995 and the UNESCO Convention on the Protection of the Underwater Cultural Heritage of 2001;13 the most recent example is the draft Convention on the Removal of Wrecks. With respect to these agreements, the procedures of Part XV apply, whether a party to the agreement is a state party to the Convention on the Law of the Sea or not. The inclusion of such jurisdictional clauses has thus become an established practice and it can only benefit the parties if such clauses are included in every new maritime agreement that is being negotiated.14 Finally, Article 22 of the Statute allows the Tribunal to exercise jurisdiction over disputes relating to the interpretation or application of treaties already in force that concern the subject-matter covered by the Convention, provided that all the parties to that treaty so agree.15 The law to be applied by the Tribunal comprises the Convention, and other rules of international law not incompatible with it. This does not, however, preclude the Tribunal from holding jurisdiction to determine a matter ex aequo et bono,16 if the parties so agree. Decisions are final and the parties to the dispute are required to comply. The decisions, however, have no binding force beyond the parties to the dispute, although they may be quite significant for the development of the law of the sea in general, and may, in addition, influence the future interpretation of this body of law. It should also be noted that parties have no recourse to appeal against a decision of the Tribunal.17 The Tribunal is, at present, the largest world-wide judicial body, being composed of 21 judges, who are recognized experts in the field of the law of the sea. They are elected by the states parties to the Convention for a term of nine years, with the term of one-third of the members of the Tribunal expiring every three years. The composition of the Tribunal must ensure adequate representation of the principal legal systems of the world, and an equitable geographical distribution. The contracting parties, which hold annual meetings in New York, have agreed to elect five judges each from Africa and Asia, four each from the Latin-American-and-Caribbean-States and the Western-European-and-Other-States groups,

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15 16

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See Statement by Mr. Doo-young Kim, Deputy Registrar of the International Tribunal for the Law of the Sea, to the First Meeting of the Regional Fishery Bodies – Secretariats Network at 4, Rome, Mar. 13, 2007. For a list of these agreements, see: A Guide to Proceedings before the Tribunal, supra note 8. Statement by President Wolfrum at the 16th Meeting of States Parties to the Convention on the Law of the Sea at 7, June 19, 2006. Id. at 8. Donald Rothwell, The International Tribunal for the Law of the Sea and Marine Environmental Protection: Expanding the Horizons of International Oceans Governance, 17 Ocean Y.B. 33 (2003). Id. at 34.

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and three from the Group of Eastern European States. The composition of the Tribunal clearly shows that added weight has been given to developing countries, in comparison with the ICJ,18 where, in practice, judges from the five permanent members of the Security Council occupy one-third of the 15 seats. In view of its larger size, the Tribunal is also more representative of the various legal systems and the different regions of the world. If the Tribunal does not include upon the bench a judge of the nationality of a party to a dispute, that party may designate a person of its choice to sit as a judge ad hoc. The Tribunal is open to states parties to the Convention, other states, and other entities, such as international organizations and natural or legal persons in any case expressly provided for in Part XI of the Convention regarding exploration and exploitation of the International Seabed Area, or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal accepted by all parties to the case. It has been pointed out that because the European Community can be a party before the Tribunal, it has become the Community’s preferred choice when it comes to disputes with third countries relating to the law of the sea.19 The jurisdiction of the Tribunal for the Law of the Sea is not as broad ratione materiae as that of the ICJ, being confined to matters provided for in the Convention and related instruments. However, it is certainly more comprehensive ratione personae, because in cases before the ICJ, only states may be parties. Access is probably the most significant difference between the Tribunal and the ICJ.20 Recourse to the Tribunal involves no costs for the states parties to the Convention. When a dispute involves an entity that is neither a state party nor the International Seabed Authority, the Tribunal fixes the amount which that party must contribute towards the expenses of the Tribunal. Other costs, notably the fees for legal representation, are borne by the party incurring them, unless decided otherwise by the Tribunal. A trust fund to assist developing states to settle their disputes through the Tribunal has been established by the Secretary General of the United Nations, following a decision of the General Assembly.

18

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20

Alan Boyle, The International Tribunal for the Law of the Sea and the Settlement of Disputes, in The Changing World of International Law in the Twenty-First Century 118 ( Joseph Norton, Mads Andenas & Mary Footer eds., 1998). Statement by Dr. Joe Borg, Commissioner for Fisheries and Maritime Affairs of the European Union on the occasion of his visit to the Tribunal on Sept. 2, 2005, as quoted by President Wolfrum on the occasion of the Information Session organized by the Tribunal for the Diplomatic Corps on Oct. 6, 2005. Alan Boyle, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction, 46 Int’l & Comp. L. Q. 51 (1997); see also Rudiger Wolfrum, Verfahren zur Freigabe von Schiffen vor dem Internationalen Seegerichtshof, in Seehandelsrecht und Seerecht: Festschrift für Rolf Herber zum 70, at 568 (1999).

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The principal provision of Part XV of the Convention is Article 287, which outlines various procedures available to parties to settle their disputes peacefully through the compulsory mechanisms established by the Convention.21 Article 287 provides that a contracting party, when signing, ratifying, or acceding to the Convention or at any time thereupon, is free to choose one or more of the four means for the settlement of disputes mentioned above, by submission of a written declaration to the Secretary-General of the United Nations. So far, only 39 States have made such a declaration and a mere 22 of those have accepted the Tribunal’s compulsory jurisdiction. In the absence of such a declaration, parties are deemed to have accepted arbitration which, in practice, has proven to be the general rule. Choosing the Tribunal or the ICJ has remained the exception, despite the fact that these two judicial bodies are institutions representing the international community.22 It may seem somewhat doubtful whether this development was really anticipated at the time of the negotiations on the Convention, or whether it was believed that arbitration, the default procedure, would turn out to be a subsidiary means for the settlement of disputes.23 The Statute of the Tribunal makes provision for the establishment of the Seabed Disputes Chamber as well as special chambers for dealing with particular disputes or categories of disputes. The Seabed Disputes Chamber, which is a “tribunal within a tribunal,” consists of 11 judges, including the author, selected every three years. The Conference on the Law of the Sea had originally envisioned the establishment of a Seabed Tribunal as one of the principal organs of the International Seabed Authority to deal exclusively with seabed disputes. This approach was, however, abandoned in favor of establishing a fully-fledged Tribunal as an autonomous international organ with a Seabed Disputes Chamber.24 That Chamber has not yet heard a single case, mainly because deep seabed mining is not yet commercially viable, and may not be anytime soon. Its future potential, however, cannot be denied. Experts from the German Federal Institute for Geosciences and Natural Resources25 have estimated that there is more dormant nickel and cobalt to be

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22 23

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Donald Rothwell, The International Tribunal for the Law of the Sea and Marine Environmental Protection supra note 16, at 32. Statement by President Wolfrum at the 16th Meeting of States Parties, supra note 14, at 7. See also Statement by President Wolfrum at the Plenary of the 61st Session of the United National General Assembly at 7, Dec. 8, 2006. Andronico Oduogo Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea – A Drafting History and a Commentary, 10 Publications on Ocean Dev. 173–74 (1987); see also Anne-Katrin Escher, Release of Vessels and Crews before the International Tribunal for the Law of the Sea, 3 Law & Practice of Int’l Cts. & Tribunals: A Practitioner’s J. (No. 2) 237–38 (2004). Quoted from the speech of the German Federal Minister of Justice, Brigitte Zypries, on the occasion of the Tenth Anniversary of the Founding of the International Tribunal for the Law of the Sea, Berlin, Sept. 18, 2006.

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found in the manganese nodules on the bed of the Pacific Ocean than in all terrestrial deposits currently being exploited. According to these estimates, the metal content of the manganese nodules is enough to meet the world’s nickel, cobalt, copper, and manganese needs for the entire twenty-first century. The Seabed Disputes Chamber may also give advisory opinions at the request of the Assembly or the Council of the International Seabed Authority on legal questions arising within the scope of their activities. In particular, the Chamber may be requested to give an opinion as to the conformity with the Convention of a proposal on any matter before the Assembly.26 Thus far, these organs of the Authority have not made use of that possibility. Following a similar system of the ICJ, the Tribunal has established several special chambers: the Chamber of Summary Procedure, composed of five members and two alternates; the Chamber for Fisheries Disputes; the Chamber for Marine Environment Disputes, which includes the author, each consisting of seven members of the Tribunal; and the Chamber for Maritime Delimitation Disputes comprising eight judges set up in March 2007. A judgment given by any of the special chambers is considered to have been rendered by the full Tribunal. More important in practice, however, seems to be the possibility to form an ad hoc special chamber, such as that convened to settle the dispute between Chile and the European Community regarding the conservation of swordfish stocks in the South-Eastern Pacific Ocean. An ad hoc chamber consists of at least three members, who may be chosen from the members of the Tribunal, and the parties may also designate ad hoc judges. This system should be of particular interest to parties considering arbitration, because as in arbitration, parties are given substantial freedom to choose the judges who are to sit in such a chamber, and may even propose modifications to the Tribunal’s rules of procedure for the chamber to apply. Thus, parties can enjoy all the benefits of arbitration without being required to bear the expenses of the chamber.27 So far, the system of special chambers, apart from ad hoc chambers, has not proven particularly successful. Until now, all the cases dealt with by the Tribunal have, with the aforementioned exception, been submitted to the full Tribunal. This reflects the reality that chambers neither deliver their orders or judgments any more quickly than does the full Tribunal, nor are the costs for the parties significantly lower. Parties to a dispute might even consider that the judgment of a full Tribunal stands on a higher footing than the judgment of a Chamber, although the legally binding nature of the decision rendered is identical in both cases.28

26 27 28

Statement by President Wolfrum at the 16th Meeting of States Parties, supra note 14, at 8. See P. Chandrasekhara Rao, ITLOS: The First Six Years, supra note 9, at 194. Id. at 195.

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Likewise, recourse has been had to the system of chambers offered by the ICJ in only a modest number of cases. The Tribunal’s compulsory jurisdiction in relation to disputes regarding the interpretation or application of the Convention in general is contingent upon declarations by contracting parties pursuant to Article 287. The Convention, however, does confer compulsory jurisdiction on the Tribunal in relation to two specific substantive matters – provisional measures and the prompt release of vessels and crews – independently of the choice of procedure mechanism. These particular instances of compulsory jurisdiction have been entrusted to the Tribunal because they concern functions that cannot be performed properly by an arbitral tribunal.29 The drafters of the Convention therefore considered that such matters should be resolved before a permanently established body. Furthermore, it should be borne in mind that only permanent tribunals can develop a corpus of jurisprudence, as they have the capacity and the obligation to create a body of decisional law that will serve the long-term interests of all states.30

III. Jurisprudence of the Tribunal 1. Cases Relating to Provisional Measures The Tribunal may be requested to prescribe provisional measures in two situations: first, where a dispute on the merits has been submitted to the Tribunal; and second, when a dispute on the merits has been submitted to an arbitral tribunal, pending its constitution.31 When provisional measures have been requested by a party to a dispute that has been submitted to an arbitral tribunal, the Tribunal is empowered, pursuant to Article 290 paragraph 5 of the Convention, to grant such measures pending the constitution of the arbitral tribunal, unless the parties have agreed to utilize another court or tribunal within two weeks from the date of the request for provisional measures. Thus, the Tribunal may, at the request of a state party, prescribe provisional measures against another state party pending the final decision to be given by an arbitral tribunal that is yet to be constituted, and not by the Tribunal itself. In order to prescribe provisional measures, the Tribunal must consider that

29

30 31

Tullio Treves, The Jurisdiction of the International Tribunal for the Law of the Sea, 37 Indian J. of Int’l L. 400, (1997). Statement by President Wolfrum to the 6th Committee, supra note 2, at 6. Id. at 5. According to President Wolfrum, it is also of interest to note that under the Straddling Fish Stocks Agreement of 1995 the Tribunal is empowered to prescribe provisional measures to protect the rights of the parties as well as to prevent damage to the fish stocks in question.

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the measures are required by the urgency of the situation and that, prima facie, the arbitral tribunal to be constituted would have jurisdiction. As regards disputes in relation to activities in the International Seabed Area, an arbitral tribunal dealing with a commercial dispute shall, according to Article 188 paragraph 2, refer any question of the interpretation of Part XI of the Convention and the annexes relating thereto to the Seabed Disputes Chamber for a ruling, either at the request of any party to the dispute, or proprio motu. In this regard, it is interesting to note some important innovations introduced by the Convention. First, the measures prescribed by the Tribunal are binding upon the parties to the dispute. Second, the Tribunal may prescribe provisional measures not only to preserve the respective rights of the parties to the dispute, but also to “prevent serious harm to the marine environment.” In addition, the Tribunal may follow up the measures it has prescribed by requesting the parties to submit reports on compliance.32 In order to strengthen the pressure of public opinion on the parties with respect to provisional measures, the Tribunal also has the power to send notices relating to the prescription, modification, or revocation of provisional measures,33 not only to the parties to the dispute, but also to such other states party to the Convention it considers appropriate. The Tribunal has so far made use of this authority only once.34 The Tribunal’s power to prescribe provisional measures has already been invoked in three cases dealing with the protection of the marine environment: the Southern Bluefin Tuna Cases, the MOX Plant Case, and the Case concerning Land Reclamation by Singapore in and around the Straits of Johor.35 In the Southern Bluefin Tuna Cases,36 applicants Australia and New Zealand sought relief from the Tribunal in relation to Japan’s unilateral decision to conduct an experimental fishing program, which was planned for a duration of three years.

32

33

34

35

36

Statement by President Wolfrum to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, New York, Oct. 24, 2005. To date, there are no cases where provisional measures prescribed by the Tribunal have been modified or revoked by the Tribunal or Annex VII tribunals. Only the Order of Aug. 27, 1999 in the Southern Bluefin Tuna cases made reference to Article 290 paragraph 4 of the Convention and Article 94 of the Rules of the Tribunal. The Tribunal decided that the provisional measures prescribed in this Order shall forthwith be notified by the Registrar through appropriate means to all States Parties to the Convention participating in the fishery for Southern Bluefin Tuna. There are no other cases which have been submitted to other courts or tribunals requesting provisional measures under Article 290 of the Convention. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures), Order of Aug. 27, 1999, in 3 International Tribunal for the Law of the Sea, Reports of Judgments, Advisory Opinions and Orders 1999 at 280–336; Press Releases No. 27 and No. 28 of the International Tribunal for the Law of the Sea, Aug. 26, 1999, ITLOS/Press 27, Aug. 27, 1999, ITLOS/Press 28.

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The two applicant countries argued that the fish stock was at its lowest historical level, and that Japan’s experimental fishing program would effectively increase its catch by 30%, despite the total allowable catch of this species having been agreed by the three countries under the 1993 Convention for the Conservation of Southern Bluefin Tuna. Australia and New Zealand, pending final settlement of the dispute, requested that the Tribunal prescribe provisional measures to the effect that Japan immediately cease its unilateral experimental fishing of southern bluefin tuna, restrict its catch to the national quotum as last agreed, and require all parties to act consistently with the precautionary principle exercising caution and vigilance in fishing for southern bluefin tuna. Japan contended that the Tribunal had no jurisdiction and that even if it did, the prescription of provisional measures would not be appropriate, because there was no risk of irreparable damage to the fish stock in question. In its Order of August 27, 1999, the Tribunal noted that there was no disagreement between the parties that the stock of southern bluefin tuna had been severely depleted. It further considered that the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment. An important finding in the Tribunal’s Order was that the parties should, under such circumstances, act with “prudence and caution” to ensure that effective conservation measures were taken to prevent serious harm to stocks of southern bluefin tuna. The Tribunal also ordered, inter alia, that the parties resume negotiations without delay, in order to reach agreement on measures for the conservation and management of these fish stocks, and that the parties restrict their catches. What may be considered quite striking was the fact that the Tribunal decided that all parties had to adhere to the annual national allocation that had last been agreed upon, unless the parties were able to agree otherwise. The prescription of fish catch totals is normally an exercise of authority taking place on a national basis, or cooperatively between the relevant states.37 Although there is no express reference in the Order to the precautionary principle itself, the Tribunal nevertheless prescribed de facto precautionary measures, and seems at least implicitly to have relied on that principle.38 It has been observed that the Tribunal’s intervention at the stage of provisional measures played a very significant role in bringing the parties – Australia, New Zealand, and Japan – back to negotiations with each other, eventually resulting in

37 38

N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea 81 (2005). Gwen Rashbrooke, The International Tribunal for the Law of the Sea: A Forum for the Development of Principles of International Environmental Law, 19 The Int’l J. of Marine and Coastal L. (No. 4) 523 (2004); Rosemary Rayfuse, The Future of Compulsory Dispute Settlement Under the Law of the Sea Convention, 36 Va U. World L. Rev. 698 (2005).

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the revitalization of the Southern Bluefin Tuna Commission, which is currently functioning well.39 In the MOX Plant Case,40 the Tribunal heard a dispute between Ireland and the United Kingdom regarding the potentially harmful impact on the marine environment of the operation of a MOX plant situated at Sellafield, United Kingdom, on the coast of the Irish Sea. A MOX plant recycles material from nuclear reactors and converts it into a new fuel called MOX – mixed oxide fuel – intended for use as an energy source in nuclear power stations. The Irish Government had pointed out that the operation of the plant would contribute to the pollution of the Irish Sea, and emphasized the risks involved in the transportation of radioactive material to and from the plant. Ireland requested that the dispute be submitted to an arbitral tribunal to be established under Annex VII of the United Nations Convention on the Law of the Sea, and further submitted a request to the Tribunal for the prescription of provisional measures under Article 290 paragraph 5 of the Convention, pending the constitution of the arbitral tribunal. Ireland requested inter alia that the United Kingdom immediately suspend its authorization of the MOX plant, or alternatively take such measures as necessary to prevent the operation of the MOX plant, and furthermore ensure that there are no movements of any radioactive substances or materials into or out of waters over which it has sovereignty. The United Kingdom requested that the Tribunal reject Ireland’s request for provisional measures. In its Order of December 3, 2001, the Tribunal found that the urgency of the situation did not, in the short period before the constitution of the Annex VII arbitral tribunal, require the prescription of provisional measures as requested by Ireland. However, the Tribunal did consider that the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention, as well as under general international law, and that rights arise therefrom which the Tribunal may consider appropriate to conserve under Article 290 of the Convention. The Tribunal therefore ordered the litigants – pending a decision by the arbitral tribunal - to cooperate and enter into consultations in order to exchange further information regarding the possible consequences to the Irish Sea arising from the commissioning of the MOX plant, and to devise appropriate measures to prevent pollution of the marine environment that might result from the plant’s operation.

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See Statement by Professor James Crawford, Counsel in the Southern Bluefin Tuna cases, as quoted by President Wolfrum at the Informal Meeting of Legal Advisers supra note 32, at 5. The MOX Plant Case (Ireland v. United Kingdom) (Provisional Measures), Order of 3 Dec. 3, 2001, in 5 International Tribunal for the Law of the Sea, Reports of Judgments, Advisory Opinions and Orders 2001, 89–112; Press Releases No. 61 and No. 62 of the International Tribunal for the Law of the Sea, Nov. 29, 2001, ITLOS/Press 61, Dec. 3, 2001, ITLOS/ Press 62.

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The Order itself contains no reference to the precautionary principle, except to note that Ireland had argued its application in the case.41 The reason therefore may have been that in the opinion of the Tribunal, provisional measures should not anticipate a judgment on the merits. In its judgment of May 30, 2006, in the Commission of the European Communities versus Ireland Case,42 the Court of Justice of the European Communities stated that it had exclusive jurisdiction to rule on disputes concerning the interpretation and application of provisions of the Convention on the Law of the Sea that form part of the Community legal order. Because the provisions of the Convention relied on by Ireland, in its dispute with the United Kingdom regarding the MOX plant, formed part of the Community legal order, the Court accordingly found that it had jurisdiction to deal with disputes relating to the interpretation or application of these provisions, and to determine whether a member state had complied with them. The declaration of Community competence, particularly the provisions of the Convention with respect to the prevention of marine pollution, made the transfer to the Community of areas of shared competence subject to the existence of Community rules. The Court held that by bringing proceedings under the dispute settlement procedure laid down in the Convention on the Law of the Sea, Ireland had failed to comply with its duty of cooperation under the European Community and Euratom Treaties, and was thus in breach of Community Law. This judgment met with criticism in Ireland,43 and clearly could not please the Tribunal, because the position taken by the Court of Justice of the European Communities may seriously affect the ability of member states of the European Union to make use of the dispute settlement mechanism of the Convention in cases of disputes among them. The Case of Land Reclamation by Singapore in and around the Straits of Johor 44 concerned a dispute between Malaysia and Singapore relating to land reclamation activities carried out by Singapore which, according to Malaysia, impinged upon its rights in and around the Straits of Johor, the body of water separating Malaysia from the island of Singapore. Malaysia claimed that Singapore’s actions were in 41

42

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Gwen Rashbrooke, The International Tribunal for the Law of the Sea: A Forum for the Development, supra note 38, at 527. Commission of the European Communities v. Ireland, ECJ Judgment of May 30, 2006, C-459/3; see also Nikolaos Lavranos, The MOX Plant Judgment of the ECJ: How Exclusive Is the Jurisdiction of the ECJ?, Eur. Envtl. L. Rev. 291–96 (Oct. 2006). See Statement by the Irish Minister for the Environment, Dick Roche, in the Irish Times, Dublin, May 31, 2006, at 14; see also Churchill, supra note 6, at 397. Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) (Provisional Measures), Order of Oct. 8, 2003, in 7 International Tribunal for the Law of the Sea, Reports of Judgments, Advisory Opinions and Orders 2003, at 10–64; Press Release No. 83 and No. 84 of the International Tribunal for the Law of the Sea, Oct. 6, 2003, ITLOS/Press 83, 8 Oct. 2003, ITLOS/Press 84.

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breach of its duties under international law, including, inter alia, its duty to preserve and protect the marine environment. The application of the precautionary principle was also argued. Malaysia requested that the Tribunal order Singapore to suspend all land reclamation activities in the vicinity of the maritime boundary between the two states, to provide Malaysia with full information as to the current and projected works, and to agree to negotiate with Malaysia concerning any remaining unresolved issues. Singapore requested the Tribunal to dismiss Malaysia’s request for provisional measures. In its Order of October 8, 2003, the Tribunal considered that in the particular circumstances of this case, land reclamation works may have adverse effects on the marine environment in and around the Straits of Johor. The Tribunal prescribed provisional measures, pending a decision by an Annex VII arbitral tribunal, requiring Malaysia and Singapore to cooperate and enter into consultation to establish promptly a group of independent experts to study the effects of Singapore’s land reclamation. Singapore was, furthermore, directed not to conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, taking into account the report of the group of experts. The Order also stated that “prudence and caution” require Malaysia and Singapore to establish mechanisms for exchanging information, assessing risks of the reclamation projects, and devising mechanisms to deal with it – without making reference to the precautionary principle as such. It should further be mentioned that on April 26, 2005, Malaysia and Singapore settled their dispute by signing an agreement to this effect. On September 1, 2005, a final arbitral award was made in the case in accordance with the terms specified in the settlement agreement. The provisional measures ordered by the Tribunal in 2003 were obviously instrumental in bringing the parties together and providing a successful diplomatic solution to the dispute.45 The record of the Tribunal on environmental disputes is thus a positive one, despite the absence of any opportunity to decide such a case on the merits.46 The aforementioned cases have enabled the Tribunal to contribute to the development of international environmental law, in particular by emphasizing the duty of cooperation,47 the notion of prudence and caution, and the importance of procedural rights, as essential components of environmental obligations. In its orders for provisional measures, the Tribunal followed the line of adopting a pragmatic

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President Wolfrum on the occasion of the Tenth Anniversary Ceremony at the Vertretung der Freien und Hansestadt Hamburg, Berlin, Sept. 18, 2006. Alan Boyle, The Environmental Jurisprudence of the International Tribunal for the Law of the Sea 13 (ITLOS 10th Anniversary Conference, Dec. 2, 2006). See also Philippe Weckel, Les Premieres Applications de l’Article 290 de la Convention sur le Droit de la Mer Relatif a la Prescription de Mesures Conservatoires, Revue Générale de Droit International Public 838, Tome CVIX (2005).

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approach and prescribing measures which, in its view, would assist the parties to find a solution.48 It should also be noted that these cooperation orders were made notwithstanding findings that the evidence failed to show imminent or likely irreparable harm.49 2. Cases Relating to Prompt Release of Vessels and Crews50 As already mentioned, the compulsory jurisdiction of the Tribunal encompasses cases in which it is alleged that by detaining a vessel flying the flag of another state and/or its crew for certain offences – for instance, in respect of illegal fishing or pollution – a state has violated the provisions of the Convention concerning the prompt release of the vessel and its crew upon the posting of a reasonable bond or other financial security. It is important to point out that the Convention permits coastal states to exercise enforcement jurisdiction through the seizure of vessels and crews in certain limited circumstances. Since its adoption, coastal states have, with increasing urgency, addressed the problem of illegal, unregulated, and unreported fishing in their maritime zones. Coastal states are entitled to board and inspect any vessel within their 200 nautical mile (n.m.) exclusive economic zones (EEZs), where approximately 90 percent of commercial fishing takes place,51 in order to enforce their laws and regulations in respect of the living resources of that area.52 Whenever it is alleged that the detaining state has not complied with its duty under the Convention of prompt release of vessels and crew, the flag state of the vessel is entitled, under Article 292 – a provision that constitutes a counterpart to the rights granted to coastal states – to request the release of the vessel before the Tribunal. The question of release may be submitted not only by the flag state, but also “on its behalf.”53 This permits states either once and for all, or on a case-bycase basis, to entrust the interested ship-owners or associations of such ship-owners with the power to act on their behalf. In this way, although not in principle but in practice, private parties may be allowed to further their interests directly before the Tribunal.54

48 49 50 51

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Wolfrum, Tenth Anniversary, supra note 11, at 76. Boyle, Environmental Jurisprudence, supra note 46, at 11. See also Escher, supra note 24. Robin Churchill, The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much In The Net? 29–30, Summary of Presentation, Symposium of the International Tribunal for Law of the Sea: Assessments and Prospects at 1, Sept. 2006, ITLOS, Hamburg. Klein, supra note 37, at 86. See also Wolfrum, Verfahren, supra note 20, at 577–78. Treves, supra note 29, at 401–02. Normal practice has been for the application to be submitted on behalf of the flag state. However, in the Volga case, the submission was made directly by the flag

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It is important to note that in prompt release proceedings, the Tribunal may deal only with the question of the release of vessel, without prejudice to the merits of any case before the appropriate domestic forum in respect of the vessel, its owner, or its crew. In its jurisprudence, the Tribunal has strictly applied this requirement of the Convention.55 The prompt release procedure before the Tribunal is also characterized by its swiftness. The Tribunal, according to its Rules, shall give priority to applications for the release of vessels or crews over all other proceedings. The hearing must take place within a period of 15 days commencing with the first working day following the date on which the application is received, and the judgment must not be read later than 14 days after the closure of the hearing.56 In its practice, the Tribunal has acted in prompt release proceedings with remarkable efficiency and speed, having delivered its decisions, in accordance with its Rules, within the time frame of approximately one month. The urgency of these proceedings is justified in view of the financial burden resulting from the detention of a vessel as well as humanitarian considerations regarding detained crews.57 The Tribunal has so far been seized of applications for prompt release in seven cases, nearly all of them connected with fisheries. The first of these cases concerned an application by Saint Vincent and the Grenadines for the prompt release of the oil tanker M/V Saiga and its crew from detention in Conakry, Guinea,58 the applicant state, inter alia, accusing Guinea of piracy. Guinea had claimed that the Saiga was engaged in smuggling activities off its coast when arrested. The arrest at a point outside Guinean waters was claimed to be pursuant to the exercise of the right of hot pursuit. Guinea maintained that the Tribunal had no jurisdiction in the matter and that the claim by Saint Vincent and the Grenadines was inadmissible. On December 4, 1997, after a procedure of only three weeks, the Tribunal delivered its judgment and ordered the prompt release of the vessel and its crew from detention

55 56

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state, as the agent of the Russian Federation was a member of the Foreign Ministry. See P. Gautier, Les Affaires de ‘Prompte Mainlevée’ Devant le Tribunal International du Droit de la Mer, 3(d) The Global Community Y.B. of Int’l L. and Jurisprudence 8532 (2003). Statement by President Wolfrum to the Informal Meeting of Legal Advisers, supra note 32, at 3. Vincent Bantz, Views from Hamburg: The Juno Trader Case or How to Make Sense of the Coastal State’s Rights in the Light of its Duty of Prompt Release, 24.2 U. of Queensland L.J. 418 (2005). Statement by President Wolfrum to the Informal Meeting of Legal Advisers, supra note 32, at 4; see also Wolfrum, Tenth Anniversary, supra note 11, at 74. M/V “Saiga” Case (Saint Vincent and the Grenadines v. Guinea) (Prompt Release), Judgment of Dec. 4, 1997, in 1 International Tribunal for the L. of the Sea, Rep. of Judgments, Advisory Opinions and Orders 1997 at 16–38; Press Release No. 9 of the International Tribunal for the Law of the Sea, Nov. 21, 1997, ITLOS/Press 9.

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upon the deposit of a bond of US$ 400,000, taking into consideration the value of the cargo, which was already with the Guinean authorities.59 The next case regarding prompt release concerned the fishing vessel Camouco,60 flying the Panamanian flag and arrested by France for alleged unlawful fishing in the EEZ of the Crozet Islands – French Southern and Antarctic Territories. The Tribunal was requested on behalf of Panama to order the prompt release of the Camouco and its master, whereas France requested the Tribunal to reject the submissions of Panama and declare the application inadmissible. In case the Tribunal would decide that the Camouco were to be released upon the deposit of a bond, France requested that the bond be no less than FF 20 million. In its judgment of February 7, 2000, the Tribunal ordered the prompt release of the vessel on the deposit of a financial security of French Francs (FF) 8 million, approximately 1.2 million U.S. dollars. The Tribunal observed in this case that Article 292 of the Convention provides for a quick, independent remedy during which local remedies – as France had argued – could normally not be exhausted. A case involving the Seychelles and France concerned the vessel Monte Confurco,61 registered in the Republic of the Seychelles, and licensed by it to fish in international waters. The vessel was apprehended by France for alleged illegal fishing and failure to announce its presence in the EEZ of the Kerguelen Islands. The Tribunal was requested on behalf of Seychelles to order a prompt release of the Monte Confurco and its master. France requested the Tribunal to declare that the bond set by the competent French authorities – 56.4 million FF – was reasonable and the application inadmissible. The Tribunal, in its judgment of December 18, 2000, ordered the prompt release of the vessel and its master by France upon the furnishing of a security of 18 million FF by the Seychelles, because the bond set by the national French court was not considered reasonable. The fishing trawler Grand Prince,62 at that time flying the flag of Belize, was arrested by the French authorities in the EEZ of the Kerguelen Islands for alleged illegal fishing. The competent French court confirmed the seizure of the vessel,

59

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Press Releases No. 10, No. 13, and No. 14 of the International Tribunal for the Law of the Sea, Dec. 4, 1997, ITLOS/Press 10, Feb. 28, 1998, ITLOS/Press 13, and Mar. 6, 1998, ITLOS/ Press 14. The “Camouco” Case (Panama v. France) (Prompt Release), Judgment of Feb. 7, 2000, in 4 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions and Orders 2000 at 10–37; Press Release No. 35 of the International Tribunal for the Law of the Sea, Feb. 7, 2000, ITLOS/Press 35. The “Monte Confurco” Case (Seychelles v. France) (Prompt Release), Judgment of Dec. 18, 2000, in 4 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions and Orders 2000 at 86–117; Press Releases No. 41 and No. 42 of the International Tribunal for the Law of the Sea, Dec. 15, 2000, ITLOS/Press 41, Dec. 18, 2000, ITLOS/Press 42. The “Grand Prince” Case (Belize v. France) (Prompt Release), Judgment of Apr. 20, 2001, in 5 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions

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and fixed a bond for its release in the amount of 11 million FF, which was later followed by a confiscation order. On April 20, 2001, the Tribunal delivered its judgment in that case and found that it had no jurisdiction under Article 292 of the Convention to entertain the application as the documentary evidence submitted by the applicant failed to establish that Belize was the flag state of the vessel when the application was made. This decision underlines the importance the Tribunal attaches to the issue of registration of ships. The proceedings in the “Chaisiri Reefer 2” case63 were instituted by Panama against Yemen for the prompt release of the vessel, its crew and cargo, which had been detained by the authorities of Yemen. Following an agreement between Panama and Yemen on July 13, 2001 – after the release of the vessel and its cargo and crew – the case was removed from the Tribunal’s list. In this case, the availability of the relief provided by the Tribunal helped in reaching an out-of-court settlement. The Russian vessel Volga64 was arrested in 2000 by Australia for alleged illegal fishing in the Australian fishing zone. The Russian Federation submitted an application to the Tribunal requesting the release of the Volga and its crew, the conditions for release imposed by Australia being neither permissible nor reasonable under the Convention. Australia requested that the Tribunal reject the application, maintaining that the bond sought was reasonable under the circumstances of the case. In its judgment of December 23, 2002, the Tribunal took note of the concern of Australia with regard to the depletion of stocks of Patagonian Toothfish in the Southern Ocean, and stated that the amount of 1,920,000 Australian Dollars sought for the release of the vessel was reasonable in terms of Article 292. The Tribunal, however, considered that the non-financial conditions laid down by Australia could not be considered as components of the bond or other financial security for the purposes of that provision of the Convention. The Juno Trader Case65 was submitted to the Tribunal on behalf of the flag state of the vessel, Saint Vincent and the Grenadines, against Guinea-Bissau. The dispute concerned the detention of the vessel and its crew by Guinea-Bissau for the alleged

63

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and Orders 2001 at 17–46; Press Releases No. 47 and No. 48 of the International Tribunal for the Law of the Sea, Apr. 19, 2001, ITLOS/Press 47, Apr. 20, 2001, ITLOS/Press 48. The “Chaisiri Reefer” 2 Case (Panama v. Yemen) (Prompt Release), Order of July 13, 2001, in 5 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions and Orders 2001 at 82–84; Press Releases No. 51 and No. 52 of the International Tribunal for the Law of the Sea, July 5, 2001, ITLOS/Press 51, and July 16, 2001, ITLOS/Press 52. The “Volga” Case (Russia v. Australia) (Prompt Release), Judgment of Dec. 23, 2002, in 6 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions and Orders 2002 at 10–41; Press Releases No. 74 and No. 75 of the International Tribunal for the Law of the Sea, Dec. 20, 2002, ITLOS/Press 74, and Dec. 23, 2002, ITLOS/Press 75. The “Juno Trader” Case (Saint Vincent and the Grenadines v. Guinea-Bissau) (Prompt Release), Judgment of Dec. 18, 2004, in 8 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions and Orders 2004 at 17–92; Press Releases No. 92 and No. 95

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infringement of national fisheries legislation in its EEZ. Guinea-Bissau objected to the jurisdiction of the Tribunal, arguing that according to its national legislation, the ownership of the vessel Juno Trader had reverted to the state of Guinea-Bissau and thus that Saint Vincent and the Grenadines could not any more be considered the flag state of the vessel. The Tribunal, however, considered that whatever the effect of a definitive change in the ownership of a vessel upon its nationality may be, there was no basis in the particular circumstances of the case to hold that there had been such a definitive change. In its judgment of December 18, 2004, the Tribunal thus ordered the prompt release of the vessel Juno Trader, upon the posting of a bond of Euro 300,000. It also declared that all members of the crew should be free to leave Guinea-Bissau without any conditions. In respect of the five cases in which the Tribunal ordered the release of the vessel or its crew upon the posting of a reasonable bond, it can fairly be said that it has developed a coherent jurisprudence, particularly as regards the relevant factors for determining a reasonable bond. In applying these factors, the Tribunal first considers the gravity of the alleged offences and notes that it is by reference to the penalties imposed, or imposable under the law of the detaining state, that the Tribunal may evaluate the gravity of the alleged offences, taking into account the circumstances of the case and the need to avoid disproportion between the gravity of the alleged offences and the amount of the bond.66 The procedure for the prompt release of vessels and crews, with the possibility for private parties to appear before the Tribunal if authorized by the flag state, is certainly a significant innovation provided by the Convention, if not the most important novel feature of its entire dispute settlement mechanism.67 This procedure constitutes an appropriate and cost-effective means for parties faced with arrest of vessels and crews. It seems, however, that the possibility to institute such proceedings is not yet known well enough either by ship owners or by flag States. It has been said not without some reason that the existence of the International Tribunal for the Law of the Sea is one of the better-guarded secrets of the United Nations system. Flag states may also hesitate to have recourse to the Tribunal. In this context, it has been suggested that owners who register their ships with flag states should, in the negotiations prior to registration, obtain the right to act on behalf of the flag state in the event of a dispute with a coastal state regarding prompt release of vessels and crew.

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of the International Tribunal for the Law of the Sea, Dec. 1, 2004, ITLOS/Press 92/Corr.1, and Dec. 18, 2004, ITLOS/Press 95. See also Thomas Mensah, Provisional Measures in the International Tribunal for the Law of the Sea, 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht at 46 (2002); Press Release No. 95 of the International Tribunal for the Law of the Sea, Dec. 18, 2004, ITLOS/ Press 95. See also Bantz, supra note 56, at 436–37.

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3. Cases Relating to the Merits The parties may also submit a particular dispute to the Tribunal at any time by means of a special agreement, which has to date been done on two occasions. In the M/V “SAIGA” (No. 2) Case,68 Saint Vincent and the Grenadines and Guinea agreed to submit to the Tribunal the merits of the dispute relating to the arrest and detention of the vessel M/V Saiga, the only case which has been decided on the merits by the Tribunal so far. The other case, also relating to the merits and still on the docket, is based on a special agreement and concerns the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean, a dispute between Chile and the European Community. In the M/V “SAIGA” (No. 2) Case, the Tribunal had to deal with both the merits and the request for the prescription of provisional measures. The vessel and its crew continued to be held by Guinea even after the Tribunal had prescribed their prompt release. Guinea had not only arrested the tanker M/V Saiga, but also its master for providing fishing vessels with gasoil – bunkering – off the coast of Guinea, which it alleged was an offence under its customs laws. Saint Vincent and the Grenadines claimed, however, that the bunkering of the vessels is within the freedom of navigation in the EEZ. The arrest of the Saiga took place at a point outside Guinea’s EEZ, with Guinea claiming that the arrest followed its right of “hot pursuit.” Saint Vincent and the Grenadines specifically requested the Tribunal to prescribe that Guinea should not interfere with the exercise of the freedom of navigation and related rights, to release the Saiga and its crew, to desist from enforcing its customs laws within the EEZ, and to refrain from undertaking hot pursuit of vessels otherwise than authorized under the Convention. Guinea asked the Tribunal to reject this request. On March 11, 1998, the Tribunal delivered its Order regarding the prescription of provisional measures69 in response to the request by Saint Vincent and the Grenadines. The Tribunal ordered Guinea to refrain from taking or enforcing any judicial or administrative measures against the Saiga, its master and the other members of the crew, its owners or operators, in connection with the incidents leading to the arrest and detention of the vessel and to the subsequent prosecution and conviction of the master. The vessel, its captain, and its crew had, in fact,

68

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M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) (Merits), Judgment of July 1, 1999, in 3 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions and Orders 1999 at 10–78; Press Release No. 23 of the International Tribunal for the Law of the Sea and Supplement No. 1, July 1, 1999, ITLOS/Press 23, ITLOS/Press 23/Add.1. M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) (Provisional Measures), Order of Mar. 11, 1998, in 2 International Tribunal for the L. of the Sea, Reports of Judgments, Advisory Opinions and Orders 1998 at 24–40; Press Release No. 15 of the International Tribunal for the Law of the Sea ITLOS/Press 15.

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already been released shortly before by Guinea in compliance with the judgment of December 4, 1997. The Tribunal delivered its judgment on the merits on July 1, 1999, within 15 months of the proceedings being instituted. Compared with other judicial bodies, this can certainly be considered a reasonable period of time.70 The Tribunal declared that Guinea had violated the rights of Saint Vincent and the Grenadines in arresting the Saiga, awarding Saint Vincent and the Grenadines 2,123,357 U.S. dollars with interest as compensation. In that judgment, the Tribunal made several important pronouncements concerning issues such as freedom of navigation, enforcement of customs laws, nationality of claims, reparation, use of force in law enforcement activities, hot pursuit, and the question of genuine link between the vessel and its flag state,71 thereby making an important contribution to the development of international law regarding these aspects. The points made by the Tribunal in this case will be highlighted in the following paragraphs. In considering whether the arrest was lawful, the Tribunal found that by applying its customs laws to a customs radius, which includes parts of the EEZ, Guinea acted in a manner contrary to the Convention and that, consequently, the arrest and detention of the Saiga, the prosecution and conviction of its master, the confiscation of the cargo, and the seizure of the ship, were unlawful. With respect to the right of hot pursuit claimed by Guinea, the Tribunal came to the conclusion that the alleged pursuit was interrupted, that no applicable laws or regulations of Guinea consistent with the Convention were violated by the Saiga and thus that there was no legal basis for the exercise of the right of hot pursuit. The Tribunal furthermore found that Guinea’s officials used excessive force and endangered human life before and after boarding the Saiga. In addition, the Tribunal, in dealing with the contention by Guinea that the ship was unregistered for a certain period of time under Article 91 of the Convention, observed that it was for Saint Vincent and Grenadines to fix the conditions for the grant of its nationality to ships, the registration of ships in its territory, and the right to fly its flag. As to the question also raised by Guinea regarding genuine link between the Saiga and Saint Vincent and the Grenadines, the Tribunal concluded that the purpose of the provision of the Convention requiring a genuine link between a ship and its flag is to secure a more effective implementation of the duties of the flag state, and not to establish criteria by reference to which the validity of the registration of ships in a flag state may be challenged by other states. In examining the question whether certain claims could be entertained because they relate to violations of the rights of persons who were not nationals of Saint

70 71

Statement by President Wolfrum to the Informal Meeting of Legal Advisers, supra note 32, at 8. Statement by President Wolfrum at the Sixteenth Meeting of States Parties, supra note 14, at 6.

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Vincent and the Grenadines, the Tribunal declared that the relevant provisions of the Convention consider the ship as a unit, concerning the obligations of the flag state with respect to the ship and the right of a flag state to seek reparation for loss or damage caused to the ship by acts of other states and to institute proceedings under Article 292 of the Convention. Thus, the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag state. The nationalities of these persons are irrelevant. If each person sustaining damage were obliged to look for protection to the state from which such person is a national, undue hardship would ensue. In the Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean,72 the Tribunal, at the request of Chile and the European Community, formed a special chamber on December 20, 2000 to deal with the dispute, consisting of four judges of the Tribunal and one judge ad hoc.73 This has so far been the only case where one of the parties to the dispute is an international organization, namely the European Community. The case, inter alia, concerns whether the European Community has complied with its obligations under the Convention to ensure the conservation of swordfish in the fishing activities undertaken by vessels flying the flag of its member states in the high seas adjacent to Chile’s EEZ. At the request of the parties, the time limits for the proceedings continue to be suspended, with both parties maintaining their right to revive them at any time.74

IV. Conclusion In September 2006, the International Tribunal for the Law of the Sea celebrated its tenth anniversary. It has established a reputation for the expeditious and efficient management of cases,75 and has already made a substantial contribution to the

72

73

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Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the SouthEastern Pacific Ocean (Chile v. European Community), Order of Dec. 29, 2005, in International Tribunal for the Law of the Sea, Reports of Judgments, Advisory Opinions and Order (to be published). Press Release No. 43 of the International Tribunal for the Law of the Sea, Dec. 21, 2000, ITLOS/ Press 43. Statement by President Wolfrum at the Plenary of the 61st Session of the General Assembly, supra note 23, at 4; Press Releases No. 45, No. 87 and No. 102 of the International Tribunal for the Law of the Sea, Mar. 21, 2001, ITLOS/Press 45, Jan. 7, 2004, ITLOS/Press 87, and Dec. 29, 2005, ITLOS/Press 102. Statement by President Wolfrum at the Sixteenth Meeting of States Parties, supra note 14, at 5.

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development of international law.76 According to the United Nations Convention on the Law of the Sea, it has the competence and means to deal with a wide range of disputes, and is well equipped to discharge its functions speedily, efficiently, and cost-effectively. A total of 13 cases, ten of which were fisheries related and 11 of which were introduced on the basis of the Tribunal’s compulsory jurisdiction, may not appear particularly impressive. This record, however, does not compare unfavorably to that of other international judicial bodies in the initial stages of their existence.77 It should be borne in mind that the Tribunal is a relatively new judicial body which has yet to fulfil its potential as the specialized judicial organ of the international community for the settlement of disputes relating to the law of the sea.78 The creation of the International Tribunal for the Law of the Sea has, from the very beginning, been subject to a certain degree of criticism as being unnecessary and risking a fragmentation of international law.79 It has even been suggested that the establishment of the Tribunal has been a “great mistake.”80 It is certainly true that states, under the Convention on the Law of the Sea, have a wide choice of fora for the settlement of disputes, which has been significantly expanded by the creation of the Tribunal. The evidence so far nevertheless suggests that a choice of forum is more beneficial than harmful,81 and that the danger of conflicting jurisdiction has been widely overestimated.82 Fragmentation of the law of the sea has thus far not occurred, and the Tribunal also makes every effort to keep abreast of the developments that take place in other international judicial fora, the ICJ in particular.83 The relative paucity of cases brought before the Tribunal, and the fact that it is thus underutilized, is certainly a matter of concern for the judges, but one over

76

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78 79

80

81 82

83

See also Maurice Kamto, Regard sur la Jurisprudence du Tribunal International du Droit de la Mer depuis son Entrée en Fonctionnement (1997–2004), Revue Générale De Droit International Public 828, 2005, Tome CVIX; Wolfrum, The Tenth Anniversary, supra note 11, at 76. See also speech by Judge L. Dolliver M. Nelson, President of the International Tribunal for the Law of the Sea on the occasion of the visit to the Tribunal by Mr. Horst Köhler, President of the Federal Republic of Germany at 4, Sept. 1, 2004. Wolfrum, Tenth Anniversary, supra note 11, at 76. See also Boyle, International Tribunal, supra note 18, at 120; Boyle, Dispute Settlement, supra note 20, at 37; Klein, supra note 37, at 55; Rayfuse, supra note 38, at 686; Churchill, Some Reflections, supra note 6, at 416. Jean-Jacques Seymour, The International Tribunal for the Law of the Sea: A Great Mistake? 35 (2006). Boyle, Dispute Settlement, supra note 20, at 54. Klein, supra note 37, at 59; see also Churchill, Some Reflections, supra note 6, at 416; see also Rayfuse, supra note 38, at 710–11. Statement by President Wolfrum at the Plenary of the 61st Session of the General Assembly, supra note 23, at 9.

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which they have little or no control.84 It could, however, also be said that the relatively few cases of litigation among the states parties to the United Nations Convention on the Law of the Sea is a compliment to the work of the negotiators of the Convention.85

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See also J. Seymour, The International Tribunal for the Law of the Sea: A Great Mistake?, supra note 80, at 35. See also Andrew Serdy, The Paradoxical Success of UNCLOS Part XV: A Half-hearted Reply to Rosemary Rayfuse, 36 Va. U. World L. Rev. 717, 721 (2005).

Chapter XIII The Tomimaru Case: Confiscation and Prompt Release* Bernard H. Oxman

I. The Hoshinmaru and Tomimaru Applications On July 6, 2007, Japan filed applications with the International Tribunal for the Law of the Sea seeking prompt release on bond of two Japanese-flag fishing vessels detained by Russia for illegal fishing in its exclusive economic zone (EEZ) off eastern Siberia.1 One, the 88th Hoshinmaru, was arrested slightly over a month earlier. The other, the 53rd Tomimaru, was arrested over eight months earlier, on October 31, 2006. In its judgments of August 6, 2007, the Tribunal granted the application for release of the Hoshinmaru,2 fixing a lower bond than Russia had specified, but denied the application for release of the Tomimaru.3 Although these were the eighth and ninth applications for prompt release filed with the Tribunal, they had some novel features. They are the first such cases involving fishing in the North Pacific. The applications were filed by a state that had not historically resorted to adjudication to resolve its disputes, and against a state that, prior to the dissolution of the USSR, was not generally noted for its amenability to compulsory jurisdiction, the Law of the Sea Convention marking a notable change.4 Also, although earlier prompt release cases involved vessels not authorized to fish in the EEZ of the arresting state, the fishing vessels in these cases were licensed by Russia to fish in its EEZ at the time of the arrest; the alleged infractions related

* A case report based on this chapter was previously published at 102 Am. J. Int’l L. 316 (2008). 1 The “Tomimaru” Case (Japan v. Russian Federation), ITLOS Case No. 15 (Prompt Release Judgment, Aug. 6, 2007). 2 The “Hoshinmaru” Case (Japan v. Russian Federation), ITLOS Case No. 14 (Prompt Release Judgment, Aug. 6, 2007), para. 102. 3 The “Tomimaru” Case, supra note 1, para. 82. 4 However, in November of 2002, the Russian Federation was itself the applicant before the Tribunal in the Volga Case, where Russia sought prompt release of a fishing vessel detained by Australia. The “Volga” Case (Russian Federation v. Australia), ITLOS Case No. 11 (Prompt Release Judgment, Dec. 23, 2002).

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to falsification of the type and volume of catch and, in the case of the Tomimaru, catch not permitted by the license.5

II. Summary of Facts The particular facts of the Tomimaru Case are in many respects routine, but have some unusual features because there were separate criminal proceedings against the master and administrative proceedings against the owner in the Russian courts. The vessel was boarded in the Russian EEZ on October 31, 2006 and arrested after an inspection revealed that 5.5 tons of walleye pollack on board were unaccounted for. A subsequent inspection uncovered at least 20 tons of gutted walleye pollack that was not listed in the logbook, as well as other catch whose capture was forbidden. Criminal proceedings were instituted on November 8, 2006 against the master, who was ordered to remain. Other crew members were permitted to leave following the investigation. Separate administrative proceedings were instituted against the owner on November 14, 2006. The prosecutor in the criminal case fixed bond on December 12, 2006. Two days later, the owner sent a letter noting this fact and requested that a bond also be fixed with respect to the administrative offenses with which the owner was charged. On December 19, 2006, the court hearing the administrative charges rejected the petition for bond. On December 28, the court imposed a fine and confiscated the vessel and its equipment. This decision was affirmed on appeal by the Kamchatka District Court on January 6, 2007. On March 26, 2007, the owner petitioned for review of this decision by the Supreme Court of the Russian Federation, and that petition was still pending at the time Japan filed the application for prompt release before the Tribunal. On April 9, 2007, the vessel was formally seized by the government and entered in the Federal Property Register as property of the Russian Federation. On May 15, 2007, a trial court imposed a fine on the master and awarded damages against him. The fine was paid but not the damages, and the master was allowed to leave for Japan on May 30, with an appeal pending before the Kamchatka District Court. On July 6, 2007, Japan petitioned the Tribunal to order prompt release on bond. Oral hearings were held on July 21 and 23. A few days later, on July 26, 2007, Russia informed the Tribunal that the Supreme Court of the Russian Federation had dismissed the owner’s petition because there were no grounds for review of the judgment. On August 6, 2007, the Tribunal rendered its unanimous judgment

5

The “Hoshinmaru” Case, supra note 2, paras. 31, 33; The “Tomimaru” Case, supra note 1, paras. 24, 25.

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that “the Application of Japan no longer has any object and that the Tribunal is therefore not called upon to give a decision thereon.”

III. Legal Setting In considering the legal issues posed in the Tomimaru Case, it is useful to review the legal setting under the Law of the Sea Convention. 1. The Question of Confiscation before ITLOS The Tomimaru Case represents the third time the Tribunal has encountered a situation in which the detaining state challenged the application on the grounds that the fishing vessel was confiscated. But it is the first time that the Tribunal faced that issue squarely. France raised the defense in the Grand Prince Case, arguing that confiscation of the fishing vessel rendered an application for its release on bond without object.6 The Tribunal never reached the issue because it found, proprio moto, that it lacked jurisdiction because the applicant, quite independently of any effect of the confiscation, had failed to establish that it was the flag state at the time the application for prompt release was made.7 Guinea Bissau raised that defense in challenging both jurisdiction and admissibility of the claim in the Juno Trader Case. The Tribunal never reached that issue because it found that the Regional Court of Bissau, in suspending application of the fine imposed on the vessel, removed the legal basis for the subsequent confiscation for nonpayment of the fine.8 2. The Regulatory Powers of the Coastal State Pursuant to Article 56 of the Law of the Sea Convention, the coastal state has sovereign rights for the purposes of exploring and exploiting, conserving and managing 6

7

8

The “Grand Prince” Case, (Belize v. France), ITLOS Case No. 8 (Prompt Release Judgment, Apr. 20, 2001), para. 61. Id. paras. 77, 93. The present author had the occasion to comment twice on the question of confiscation and prompt released raised by France in the Grand Prince case, once briefly in Bernard H. Oxman and Vincent P. Bantz, Case Report on The “Grand Prince” (Belize v. France), 96 Am. J. Int’l L. 219 (2002), and once at greater length in Bernard H. Oxman and Vincent P. Bantz, Un Droit de Confisquer? L’Obligation de Prompte Mainlevée des Navires, in La Mer et son droit, Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec, p. 479 (2003). Readers may be interested to know that it was the editors of the volume who prompted the movement of the question mark from its original position at the end of the title. The “June Trader” Case (Saint Vincent and the Grenadines v. Guinea-Bissau), ITLOS Case No. 13 (Prompt Release Judgment, Dec. 18, 2004), paras. 52, 53, 62, 63, 68.

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the living resources of the EEZ. Pursuant to Article 61, the coastal state determines the allowable catch of stocks and is entrusted with the responsibility to adopt conservation and management measures to prevent over-exploitation and to maintain or restore populations of harvested species at levels that can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors. Article 62 specifies that nationals of other states fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal state. 3. Confiscation and the Enforcement Powers of the Coastal State Article 73 provides that the coastal state may take such measures in the EEZ, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with its laws and regulations regarding exploration, exploitation, conservation and management of living resources. The only specific restriction imposed on penalties for violations of fisheries laws and regulations in the exclusive economic zone is that they may not include imprisonment, in the absence of agreement to the contrary by the States concerned, or any other form of corporal punishment. On its face, Article 73 accordingly would appear to permit confiscation of the catch, the vessel, and the equipment as punishment for violation of coastal state laws and regulations. The Tribunal noted that Article 73 of the Convention makes no reference to confiscation of vessels, but added that it “is aware that many States have provided for measures of confiscation of fishing vessels in their legislation with respect to the management and conservation of marine living resources.”9 Japan did not contest this point. It expressly stated in oral argument: Japan considers the position to be clear and simple. The Tomimaru is liable to confiscation under Russian law. It is held by Russia, detained by Russia, and a final determination of the question of confiscation is pending before the Russian courts.10

This statement was not surprising. The FAO lists both Japan and Russia as among the many countries that permit confiscation of the vessel, gear, and catch for fishing violations.11

9 10 11

The “Tomimaru” Case, supra note 1, para. 72. Verbatim Records, ITLOS/PV.07/4, p. 17. In his separate opinion in the Grand Prince Case, Judge Anderson noted: The FAO’s publication entitled “Coastal State Requirements for Foreign Fishing” (FAO Legislative Study 21, Rev. 4) states in section 5 that: “In addition to fines, the vast majority of countries empower their courts to order forfeiture of catch, fishing gear and boats. In a few cases, forfeiture of vessels is automatic, even on the first offence.” The accompanying Table E, headed “Penalties for unauthorized foreign fishing,” lists more than 100 jurisdictions, most of them States Parties to

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At the same time, we need to consider that Article 73 also provides that “Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.” It is obvious that the function of release on bond is to permit the vessel and crew to be free pending further proceedings in domestic courts, with the bond held as surety against any penalties that may be imposed. Thus, the duty of prompt release on bond is itself a qualification on the enforcement powers of the coastal state. Its practical effect could be to limit the penalty to the value of the bond. As I have had the occasion to indicate in the past, naiveté is not the most apparent characteristic of those who negotiated the Convention.

IV. The Question before the Tribunal Article 292 is specifically designed to facilitate enforcement of the prompt release obligation, and a similar obligation where vessels and crew are arrested for pollution violations, by permitting the question to be raised before the International Tribunal for the Law of the Sea. It is narrowly tailored to that purpose. Article 292 expressly provides that the tribunal “shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew.” The question of whether a confiscation is lawful is therefore not before the Tribunal as such in Article 292 proceedings. This limitation is particularly important for two reasons. The parties to the Convention have excluded the regulation of fishing in the EEZ from compulsory arbitration or adjudication under Article 297, paragraphs 1 and 3,12 and, in any event, the parties have the right to select the forum before which the question could be raised under Article 297. Accordingly, it was not the lawfulness of the confiscation, but rather the question of the effect on the duty of prompt release of the Russian confiscation, that was before the Tribunal in the Tomimaru Case. 1. The Effect of Confiscation on the Duty of Prompt Release France argued in the Grand Prince Case, Guinea Bissau argued in the Juno Trader Case, and Russia argued in the Tomimaru Case that confiscation of a fishing vessel renders the obligation to release it on bond without object. The Tribunal agreed with that proposition in its decision in the Tomimaru Case, stating: “A decision

12

the Convention, that provide for forfeiture of the vessel used in unauthorized fishing activities. Grand Prince Judgment, Sep. Op. Anderson, J., note 3. The list of over 100 jurisdictions includes Japan and Russia. The parties have the right to opt for further limitations on jurisdiction of an international tribunal over fisheries enforcement under article 298, paragraph 1(b).

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to confiscate eliminates the provisional character of the detention of the vessel rendering the procedure for its prompt release without object.”13 In other words, the confiscation extinguishes the duty to release the vessel on bond. This conclusion leaves open the question of when and under what circumstances a confiscation order by a domestic court would render an application for prompt release on bond without object. Analysis of this question was not essential to the decision in this case. The Tribunal’s discussion of that question is not, however, what this common law trained lawyer would necessarily call obiter dictum. Rather, the Tribunal’s analysis elucidates factors that, had they been present, might have led to a different result. In effect, the Tribunal identified what the relevant factors are in considering the effect of confiscation on the duty of prompt release, applied them to this case, and found that they were satisfied. 2. Prompt Release of the Master and Crew In this regard, first of all, we need to recognize that confiscation of a vessel would not render the obligation to release the crew without object. This was not at issue in this case because the master and crew had already been released. 3. Effect of Transfer of Title Confiscation typically results in transfer of title of the property in question to the state. Since an application for prompt release under Article 292 may be made only by or on behalf of the flag state, and since the Tribunal had previously determined that this means that the state must be the flag state, inter alia, at the time the application is made, the question arises as to the effect of confiscation of the vessel by another state on this requirement.14 The Tribunal here distinguished between transfer of title and transfer of registry. It stated that the confiscation of a vessel does not result per se in an automatic change of the flag or in its loss, and noted that Russia had not claimed to have initiated procedures leading to a change or loss of the flag of the Tomimaru.15 Accordingly, Japan remained the flag state. This discussion does, however, leave one in some doubt as to what might happen in the next case where the detaining state, having learned from this opinion, does exercise its right as owner of the vessel to change flags. The answer may be found in the Tribunal’s discussion of the effect of confiscation itself.

13 14

15

The “Tomimaru” Case, supra note 1, para. 76. Indeed, there is authority for the proposition that, in diplomatic protection cases, nationality must continue through the proceedings. The “Tomimaru” Case, supra note 1, para. 70. The distinction between change of title and change of flag was previously noted by Judges Mensah and Wolfrum in paragraph 9 of their Joint Separate Opinion in the Juno Trader Case.

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4. Effect of Pending Appellate Review If the object of the duty of prompt release is to free the vessel on bond while proceedings are still pending, then the question arises as to the effect of an appeal of a confiscation on the duty of prompt release. This question was debated at length by the parties. During oral argument, counsel for Russia maintained that the review powers of the Federal Supreme Court were limited and that notwithstanding the petition to the Supreme Court, under Russian law, the confiscation was final and executed, and therefore the duty of prompt release on bond was without object. The Tribunal did not agree that the duty of prompt release on bond was without object while review is pending in the courts of the detaining state. It emphasized that, “considering the object and purpose of the prompt release procedure, a decision to confiscate a vessel does not prevent the Tribunal from considering an application for prompt release of such vessel while proceedings are still before the domestic courts of the detaining State.”16 In other words, it would appear that even if, under the law of the detaining state, the confiscation has legal effect, and even if it is executed, that does not eliminate the obligation of prompt release so long as the judgment is still under review by a domestic court. One presumes this also includes the period of time available under the law of the detaining state for filing an appeal or petitioning for review. Following oral argument, but before the Tribunal rendered judgment in the Tomimaru Case, the Russian Supreme Court rejected the petition for review. The Tribunal considered it appropriate to take this fact into consideration.17 The Tribunal noted that the decision of the Supreme Court of the Russian Federation brings to an end the procedures before the domestic courts, and that Japan did not contest this decision. In particular, the Tribunal noted that, after being informed of that decision, Japan did not maintain its argument that the confiscation of the Tomimaru is not final.18 Accordingly, the Tribunal unanimously found that the application for prompt release of the vessel no longer has any object and that the Tribunal was therefore not called upon to give a decision thereon. The requirement of a final judgment no longer under appeal does, however, leave one in some doubt as to what might happen in the next case where the detaining

16

17 18

The “Tomimaru” Case, supra note 1, para. 78. Judge Lucky was of the view that “this statement is not necessary in view of the decision in this case. In a case such as the instant case where the merits of the case against the owner of the vessel were dealt with by courts of competent jurisdiction under the applicable laws of the Russian Federation confiscation is a fait accompli. Therefore the Application lost its force even before the Supreme Court of the Russian Federation delivered its judgment.” The “Tomimaru” Case, Sep. Op. Lucky, J. Id., para. 68. Id., para. 79.

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state, having learned from this opinion, acts very quickly to render a confiscation order that either cannot be appealed or that is subject to very rapid confirmation by an appellate court. It is that question which presumably prompted some of the most interesting aspects of the Tribunal’s opinion, including in particular its reference to international standards of due process of law. 5. Effect of the Circumstances of Confiscation Proceedings Immediately following its statement that a decision to confiscate the vessel renders the procedure for prompt release without object, the Tribunal added in the very same paragraph: Such a decision should not be taken in such a way as to prevent the shipowner from having recourse to available domestic judicial remedies, or as to prevent the flag State from resorting to the prompt release procedure set forth in the Convention; nor should it be taken through proceedings inconsistent with international standards of due process of law. In particular, a confiscation decided in unjustified haste would jeopardize the operation of article 292 of the Convention.19

This statement in turn informs the specific finding in the Tomimaru Case that “no inconsistency with international standards of due process of law has been argued and that no allegation has been raised that the proceedings which resulted in the confiscation were such as to frustrate the possibility of recourse to national or international remedies.”20 It should be noted in this regard that this conclusion was, in itself, fairly deferential to the detaining state on the facts of this case given the complexity and alleged lack of clarity in its domestic procedures.21 While the judgment in the Tomimaru Case was unanimous, the discussion by the Tribunal of the circumstances of the confiscation proceedings apparently did not enjoy unanimous support. In his separate opinion, Judge Nelson questioned whether the Tribunal was straying into matters properly before the domestic courts.22 Judge Jesus argued at length that confiscation is a question of the merits excluded from challenge in prompt release proceedings, and that a flag state can avoid rapid confiscation by seeking prompt release before the Tribunal immediately after the ten-day delay specified in the Convention.23 Indeed, Judge Lucky felt that Japan

19 20 21 22

23

Id., para. 76. Id., para. 79. See Id., Sep. Op. Yanai, J. The Judgment in paragraph 76 seems to suggest that this Tribunal has the power to examine whether the shipowner was prevented from having recourse to available domestic judicial procedures, to find out whether the proceedings were inconsistent with due process of law and so on. . . . Perhaps these are not matters to be dealt with within the system contained in article 292. Id., Sep. Op. Nelson, J. Id., Sep. Op. Jesus, J., para. 9.

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had waited too long, and that its application for prompt release was inadmissible on those grounds alone.24 He emphasized that any other decision in the case would have interfered with the due process of Russian judicial proceedings. As for the questions of Japan’s timing, the Tribunal did seem to indicate some concern in principle. While cautioning the detaining state about undue haste, the Tribunal also cautioned the flag state about undue delay. It emphasized that: considering the objective of Article 292 of the Convention, it is incumbent upon the flag State to act in a timely manner. This objective can only be achieved if the shipowner and the flag State take action within reasonable time either to have recourse to the national judicial system of the detaining State or to initiate the prompt release procedure under article 292 of the Convention.

The Tribunal did not, however, base its decision on delay by Japan. In so doing, the Tribunal may have recalled its earlier prompt release cases, in which it rejected a requirement of exhaustion of local remedies before a prompt release application may be made, but was nevertheless confronted with the problem of interference with ongoing municipal court proceedings. Acceptance of the argument made in the separate opinions in the Tomimaru Case on the question of timing could enmesh the Tribunal in even more complex problems of this nature. Even if there is no requirement of exhaustion of local remedies, this does not mean that a state should be penalized for waiting to see what happens in municipal courts before deciding to resort to an international tribunal.

V. Conclusion The fundamental question posed by the Tomimaru Case concerns the Tribunal’s power to consider the circumstances of the confiscation decision. In this regard, it seems reasonably clear that the Tribunal was not asserting a power to review the confiscation, but merely a power to determine whether the confiscation had the effect of extinguishing the obligation of prompt release. It is the respondent – the detaining state – which asserts that its confiscation of the vessel extinguishes its prompt release obligation under the Convention and renders the Article 292 proceedings to enforce that obligation without object. In doing so, it is the detaining state that places the issue before the Tribunal. Viewed in that light, it does not seem at all extraordinary to determine whether the obligation under the Convention was properly extinguished by the detaining state. If the detaining state wishes to avoid the issue, it need not raise the question in the

24

Id., Sep. Op. Lucky, J.

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first place. It is, after all, elementary economics that teaches us that the value of tangible property can ordinarily be monetized. In the Juno Trader Case, the Tribunal stated that “article 73, paragraph 2, must be read in the context of article 73 as a whole. The obligation of prompt release of vessels and crews includes elementary considerations of humanity and due process of law. The requirement that the bond or other financial security must be reasonable indicates that a concern for fairness is one of the purposes of this provision.”25 If one takes into account that the enforcement powers of the coastal state under Article 73 are balanced, in the very same article, not only by the restriction on imprisonment, but by the obligation of prompt release on bond, then it would appear to follow that those enforcement powers, while very extensive, cannot be used to frustrate the obligation to release the vessel promptly on bond. The tests proffered by the Tribunal in this regard – availability of recourse to municipal and international remedies, international standards of due process, unjustified haste – would, in that light, all appear to be pertinent to the question that is before the Tribunal in Article 292 proceedings, namely whether the obligation of prompt release on bond has been extinguished and whether those proceedings are without object.

25

Juno Trader Case, supra note 8, para. 77. Judge Treves elaborated on the importance of respect for human rights in this context in his Separate Opinion in that case.

Index Page numbers followed by n refer to notes. AAT. See Australian Antarctic Territory Abe Shinzo, 78, 79, 103 Abu Dhabi, continental shelf agreement with Qatar, 97 Abu Dhabi Oil Arbitration of 1951, 108n Aegean Sea, islands, 28, 71 Agreement on Straddling and Migratory Fish Stocks. See United Nations Fish Stocks Agreement Alaska Dinkum Sands, 24n, 165–166 Kotzebue Sound, 12 land boundaries, 180 maritime boundary with British Columbia, 180–181 Southeast Alaska Submarine Noise Measurement Facility, 184–185 tanker traffic, 185–188 albacore tuna, 194–195 ambulatory baselines, 9–10, 15 ambulatory boundaries, 9–10, 14, 17 Amerasinghe, S. H., 162 Anglo-French Continental Shelf Arbitration of 1977, 33, 35, 44, 90, 94, 110, 169 Antarctica Australian law enforcement, 249 claimant states, 232, 235–236 continental shelf extensions, 246–248 demilitarization, 238 exploration in heroic age, 232–233 ice sheets, 6, 7, 245–246 maritime zone claims, 247–249 mineral resources, 239, 250 overlapping claims, 232 scientific cooperation, 238, 241–242 scientific research stations, 236–237 territorial sovereignty disputes, 231, 248 tourism, 241, 249–250 Antarctic Treaty freezing of territorial claims, 231, 237 links to Law of the Sea Convention, 231–232, 234–235, 243, 244–249, 251

negotiations, 235, 237 peaceful use principle, 238 Protocol on Environmental Protection, 239, 240, 250 signatories, 242 territorial claims, 235–236 Antarctic Treaty Area islands, 232, 240–241, 242–243, 246, 268–269 marine bioprospecting, 250 maritime rights, 245, 246 Antarctic Treaty Consultative Meetings (ATCMs), 237, 239, 241, 242, 250 Antarctic Treaty Consultative Parties (ATCPs), 239, 241, 242, 243, 245, 251 Antarctic Treaty System (ATS) achievements, 251 challenges, 242–243, 249–250 components, 238–239 consensus decision-making, 239–240 Convention on the Conservation of Antarctic Marine Living Resources, 30, 232, 239–241, 251 institutional components, 241 links to other regimes, 242–243 Antigua and Barbuda, 35 arbitral tribunals, 254 arbitration acceptance, 258 island sovereignty disputes, 22, 47–48, 65, 66, 94–95, 130–133, 139–142 maritime boundary disputes, 94–95, 104, 115 See also continental shelf boundary cases Arctic, melting sea ice, 6n Argentina Antarctic territorial claims, 232 Beagle Channel dispute, 95 artificial islands, 24, 27, 70, 175–176 Asia colonialism, 119–120, 135–136 legal concepts, 124–125 See also individual countries

288

Index

ATCMs. See Antarctic Treaty Consultative Meetings ATCPs. See Antarctic Treaty Consultative Parties Australia Antarctic territorial claims, 232, 236 boundary agreement with Papua New Guinea, 85, 93 continental shelf boundaries, 93, 246–247, 248 disputes with East Timor, 85 Environmental Protection and Biodiversity Conservation Act, 249 exclusive economic zones, 30–31, 93, 246, 248–249 Heard Island, 30–31, 243, 246 law enforcement in Antarctica, 249 Macquarie Island, 242–243 maritime boundaries, 34–35, 93, 117n McDonald Island, 30–31, 243, 246 Southern Bluefin Tuna Cases, 261–263 Timor Gap joint development agreement with Indonesia, 96, 97, 98–99, 101 “Volga” Case, 29–30, 31, 269 Australian Antarctic Territory (AAT), 246–247, 248–249 Aves Island/Bird Rock, 24n, 28, 35 Bahrain disputes with Qatar, 22, 133–135 joint development agreement with Saudi Arabia, 96–97 Bangladesh, effects of sea level rise, 8 Barnes, James N., 241 baselines ambulatory, 9–10, 15 anchors, 5 in deltas, 9–10, 15–16 geographic perspective, 4 history, 3–5 impact of rising sea level, 2, 9, 10–13 internal waters and, 44 law of, 1–2, 10–11 Law of the Sea Convention rules, 9–10, 44–46, 55 low water marks, 4 political perspective, 4–5 protection, 12–13 straight, 44–46, 56

base points, low-tide elevations as, 5, 11, 26, 27, 34–35, 55 Bateman, Sam, 85 bays definition, 56 historic, 40, 56 Belize, “Grand Prince” Case, 268–269, 279, 281 bioprospecting, 250 Bohai Bay, 56 boundaries. See maritime boundaries Brazil, Saint Peter and Paul Rocks, 171–172 Britain. See United Kingdom British Columbia, maritime boundaries, 180–181 British decision of 1939, 134–135 British Empire, 233 Brooks, Robert A., 163, 171 Brownlie, Ian, 126–127 Brunei extended continental shelf, 71 Spratly Islands claim, 62 Calderon, Felipe, 228 Cameroon/Nigeria Land and Maritime Boundary Case of 2002, 114n “Camouco” Case, 268 Canada accession to Law of the Sea Convention, 178 fisheries law enforcement, 189 Newfoundland-Nova Scotia Maritime Boundary Arbitration of 2002, 115 St. Pierre and Miquelon Case, 43–44n Canada-U.S. Albacore Tuna Treaty, 194–195 Canada-U.S. international ocean law relations context, 177–180 cooperation, 180, 189–193 disputes, 179–183, 196–197 exclusive economic zones, 177, 181 fisheries agreements, 190–196 fisheries issues, 179, 189–193, 194 Gulf of Maine Case, 36, 111, 113, 168, 179–180 historic internal waters claims by Canada, 182–183 maritime boundaries in Pacific, 180–181, 183–184 tanker traffic, 185–188

Index CCAMLR. See Convention on the Conservation of Antarctic Marine Living Resources “Chaisiri Reefer 2” Case, 269 Channel Islands, 34, 35, 169 Charney, Jonathan I., 166, 170, 172–173 Chile Antarctic territorial claims, 232 Beagle Channel dispute, 95 Escudero proposal in Antarctic Treaty negotiations, 237 swordfish dispute with European Union, 259, 273 China baselines, 55, 57 boundary agreement with Vietnam, 93–94 Chunxiao gas field, 60, 77–78, 83 coastline, 55, 99 continental shelf boundary, 56–58, 85, 93–94, 99, 151 “equitable solution through negotiation” stance, 78–79 exclusive economic zones, 55, 57, 77–78, 81, 93–94, 151 fisheries agreements, 57, 153n imperial, 125 incident at sea agreement with Japan, 102–104 Macclesfield Banks claim, 27 maritime boundaries, 55–58, 63–64 maritime boundary dispute with Japan, 59, 60, 77–78, 99–105, 151–153 Okinotorishima dispute, 146 proposed joint development area in South China Sea, 75 scientific vessels, 152–153 “shelving disputes and working for joint development” stance, 78–79 Spratly Islands claim, 69 territorial acquisitions, 125 territorial sea claims, 61, 70, 93–94 See also Diaoyudao Islands (Senkakus); Spratly Islands Choi, Lark-Jung, 45, 55, 58 Chunxiao gas field, 60, 77–78, 83 Churchill, R.R., 166, 173 CLCS. See Commission on the Limits of the Continental Shelf

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climate change feedbacks, 2n impact, 1, 8–9, 17 potential for wasted resources in reactions, 12–13 vulnerability of developing world, 12 See also sea level, rising Clipperton Island, 171 Clipperton Island Case, 65, 66 coastal states enforcement powers, 280–281 regulatory powers, 279–280 See also continental shelf; maritime boundaries coastlines impact of climate change, 8–9 indented, 5, 44, 55 See also baselines colonialism in Asia, 119–120, 135–136 era, 232–233 legacy, 119–120, 244 Commission of the European Communities versus Ireland Case, 264 Commission on the Limits of the Continental Shelf (CLCS) binding recommendations, 224 challenges to submissions, 172 continuity principle, 219–220 establishment, 216, 254 Gulf of Mexico extended continental shelf submissions, 219, 221, 222 Japanese submissions, 155, 156 joint submissions, 221–222, 247–248 purpose, 217–218 Scientific and Technical Guidelines, 216, 217–218 submission process, 15, 89–90, 154 submissions by non-parties to UNCLOS, 221–225 submissions for continental shelf extensions, 221–222, 246–248 common heritage principle, 117, 235, 244, 245, 253–254 Conference of Vienna, 129 Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 243 contiguous zones ambulatory boundaries, 10

290

Index

Convention on the Territorial Sea and the Contiguous Zone (1958), 15, 26, 72, 161–162, 164, 165, 233n definition, 3n of islands, 21 measurement from baselines, 3–5, 10 continental shelf boundary delimitation arbitrations, 108n, 110, 111 Convention on the Continental Shelf (1958), 62, 72, 87, 110, 215, 233n definition, 3n, 91, 108, 112 distance criterion, 112, 115–116 extended, 71, 72, 215–218, 219–221 geological and geomorphological characteristics, 111n, 112 importance, 21 of islands, 21 law focused on seabed resources, 82, 117 measurement from baselines, 3–5 minimum outer limit, 215 overlapping claims, 32 permanent outer boundaries, 10 principles for resolving overlapping claims, 80 relationship to EEZ, 91–93, 115–117 silt lines, 56 single boundary for exclusive economic zone and, 80, 84–85, 92 sovereign rights of coastal states, 109 Truman Proclamation, 86, 108n, 215, 233 See also Commission on the Limits of the Continental Shelf; natural prolongation principle continental shelf boundary cases Anglo-French Arbitration, 33, 35, 44, 90, 94, 110, 169 arbitration, 108n Guinea – Guinea-Bissau Arbitration, 111, 169 Libya/Malta, 35–36, 58–59, 86–87, 90, 91, 111–112, 116, 168–169 North Sea Cases, 58, 86, 87, 88–89, 90, 108–110, 113, 168 Tunisia/Libya, 86–87, 89, 110–111, 116, 168 Continental Shelf Commission, 72 Convention for the Regulation of Antarctic Mineral Resource Activities, 239

Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), 30, 232, 239–241, 251 Convention on the Continental Shelf (1958), 62, 72, 87, 110, 215, 233n Convention on the Territorial Sea and the Contiguous Zone (1958), 15, 26, 72, 161–162, 164, 165, 233n cooperation in Canada-U.S. international ocean law relations, 180, 189–193 fisheries management, 53–55, 57–58 management of offshore hydrocarbons, 200, 209–211, 213, 225–227, 230 management of semi-enclosed seas, 76, 213 scientific, 238, 241–242 shared fisheries zones, 53, 57 Sino-Japanese Consultation on the East China Sea, 102–103 Timor Sea Zone of Cooperation, 97 See also joint development Coral Sea, 34–35 Court of Arbitration, 90, 110 critical dates, 124, 140–141 Cuba, 129–130 deep seabed as common heritage, 117, 235 mining, 211–212n, 235, 258–259 See also continental shelf; hydrocarbons, offshore deepwater definition of, 200n ultra-, 200 Deepwater Royalty Relief Act (DWRRA), 203 deltas, baselines in, 9–10, 15–16 Democratic People’s Republic of Korea. See North Korea Deng Xiaoping, 78–79 Denmark drafting history of UNCLOS Article 121, 27–28 Faeroe Islands, 28 Jan Mayen case, 31, 36, 43n, 59, 95, 110 Rockall dispute, 28–29, 50, 170–171 developing countries, vulnerability to climate change effects, 12 Diaoyudao Islands (Senkakus) Chinese position, 78–79, 104

Index conflicting claims, 61–62, 104 disposal after World War II, 120–121n Japanese position, 104, 155 lack of maritime zone generative capacity, 84–85, 100 postponement of dispute, 78–79, 100 as rocks, 50, 62 sovereignty dispute, 60–62, 104 territorial seas, 100 U.S. administration, 61 Dinkum Sands, 24n, 165–166 disputes, 138 See also illegal fishing disputes; island sovereignty disputes; maritime boundary disputes dispute settlement duty of states to settle by peaceful means, 143–144, 254 institutions, 254 international agreement provisions, 255–256 maritime boundary disputes, 93–95 UNCLOS system, 254 See also arbitration; International Court of Justice; International Tribunal for the Law of the Sea distance criterion for continental shelf boundaries, 112, 115–116 for extended continental shelf boundaries, 216 for maritime boundary delimitation, 82, 84, 115–116 Dixon Entrance, 180–181, 182–184, 187, 189, 197 Djalal, Hasjim, 69, 71, 85 Dokdo (Takeshima) critical date in dispute, 142 disposal after World War II, 121n Japanese claim, 61–62 lack of maritime zone generative capacity, 51 peaceful settlement, 144 physical features, 51 South Korean claim, 46, 49, 51, 138 sovereignty dispute, 46–53, 54, 138–139 Dongdao (Barren Island), 55, 57 Dongfanhong No. 2, 152 Dongfanhong No. 14, 153–154 Douglas, William, 147

291

Douglas Reef, 147, 148 See also Okinotorishima DWRRA. See Deepwater Royalty Relief Act East China Sea Chinese scientific vessels, 152–153 Chunxiao gas field, 60, 77–78, 83 continental shelf, 83–84 continental shelf boundaries, 56, 85, 99 exclusive economic zones, 57, 58, 81, 85, 99–100 fisheries, 53, 57, 160 fisheries agreement, 153n hydrocarbon resources, 60, 77–78, 153n Japan-China boundary dispute, 59, 60, 77–85, 99–105, 151–153 joint development area (Japan/South Korea), 53–55, 57, 58, 100 joint development proposal (China/Japan), 78–79, 81, 84, 85, 101–102 median line, 78, 79–81, 82–83, 100 Okinawa Trough, 57, 58, 61, 83, 84, 99, 101 physical geography, 83–84, 101 Sino-Japanese Consultation, 102–103 submarine routes, 153 trijunction point, 100–101 See also Okinotorishima East Sea/Sea of Japan baselines, 44–46 Chinese scientific vessels, 152 maritime boundaries between North and South Korea, 41–42 East Timor disputes with Australia, 85 incorporation by Indonesia, 97 independence, 97 joint development zone with Australia, 85, 97–98 Ecrehos islands. See Minquiers and Ecrehos Case Edeson, W., 240 EEZs. See exclusive economic zones El Salvador, Gulf of Fonseca Case, 47, 65, 70, 74, 96 El Salvador/Honduras Case, 169 Ely, Northcut, 164, 173 enclaving islands, 33–34 English Channel, 34, 94 environmental issues

292

Index

International Tribunal for the Law of the Sea rulings, 265 marine pollution in Antarctic area, 249–250 oil spills, 186–187, 234 equidistance (median line) principle adjustments, 99–100, 115 advantages, 32 applications, 35, 79–81, 84, 114, 115, 116 Convention on the Continental Shelf, 87 distinction from equitable principles, 113–114 as equitable solution, 58, 112 relationship with other principles, 79–80, 82, 86–87, 88–89 use of, 32–33, 72 validity, 114 Eritrea-Yemen Arbitration, 22, 47–48, 114n, 130–133 European Communities, Court of Justice, 264 European Union disputes among members, 264 swordfish dispute with Chile, 259, 273 exclusive economic zones (EEZs) ambulatory boundaries, 10 definition, 3n, 91 distance criterion, 115–116 illegal fishing disputes, 29–31, 266 importance, 21 of islands, 11–12, 21, 29–31 jurisdiction over living resources of ocean, 82, 91, 117, 279–280 measurement from baselines, 3–5, 10 overlapping claims, 32, 57 principles for resolving overlapping claims, 80 regulation by coastal state, 279–280 relationship to continental shelf, 91–93, 115–117 residual fishing rights, 92 single boundary for continental shelf and, 80, 84–85, 92 ExxonMobil, 206 Exxon Valdez, 186 Faeroe Islands, 28 FAO. See Food and Agriculture Organisation fisheries Agreement on Straddling and Migratory Stocks, 73, 256

in Antarctic area, 240, 243 around Northern Territories, 41 bilateral agreements, 45–46, 52–53, 57, 153n, 190–196 Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 243 cooperation and agreements, 53–55, 57–58 disputes, 259, 273 flag state enforcement, 189 in Gulf of Maine, 113 in high seas areas, 73 importance, 21 international agreements, 190 nonflag state enforcement, 244, 280–281 residual fishing rights, 92 shared zones, 53, 57 See also illegal fishing disputes Fisheries Jurisdiction Case, 138 Fishermen’s Association of Ogasawara Island, 160 fishing vessels. See vessels floating, production, storage, and offloading vessels (FPSOs), 206–207 Food and Agriculture Organisation (FAO), 240, 243, 280 Fox, Vicente, 228 FPSOs. See floating, production, storage, and offloading vessels France Anglo-French Continental Shelf Arbitration of 1977, 33, 35, 44, 90, 94, 110, 169 Antarctic territorial claims, 232 “Camouco” Case, 268 Clipperton Island, 65, 66, 171 continental shelf extension, 221–222, 247–248 Crozet Islands, 240–241, 268 exclusive economic zones around islands, 30–31, 171, 268–269 “Grand Prince” Case, 268–269, 279, 281 Kerguelen Islands, 30–31, 240–241, 268–269 maritime boundaries, 34–35, 43–44n Minquiers and Ecrehos Case, 47, 65, 66, 105, 142–143 “Monte Confurco” Case, 268 St. Pierre and Miquelon Case, 43–44n Spratly Islands claim, 66 Treaty of Paris (1814), 129, 130

Index freedom of the seas principle, 73 Free Zones of Upper Saxony and the District of Gex Case, 223 fugacious resources, transboundary, 78, 207, 210 General Agreement on Tariffs and Trade (GATT), 194 Geneva Conventions on the Law of the Sea, 233 See also Convention on the Continental Shelf; Convention on the Territorial Sea and the Contiguous Zone Germany, Treaty of Versailles, 130 Gidel, B., 68, 161, 164, 173 “Grand Prince” Case, 268–269, 279, 281 Greece islands in Aegean, 28 Mavrommatis Palestine Concessions Case, 138 Greenland ice sheet melting, 7–8 Jan Mayen case, 31, 36, 43n, 59, 95, 110 Guinea M/V “Saiga” Case, 267–268 M/V “Saiga” (No. 2) Case, 271–273 Guinea-Bissau, “Juno Trader” Case, 269–270, 279, 281, 296 Guinea – Guinea-Bissau Continental Shelf Arbitration of 1985, 111, 169 Gulf of Fonseca Case, 47, 65, 70, 74, 96 Gulf of Maine Case, 36, 111, 113, 168, 179–180 Gulf of Mexico continental shelf boundaries, 199, 208–209, 215–225 Mexico-United States Delimitation Treaty, 199, 208–209, 221 as semi-enclosed sea, 213 Western Gap, 199, 208–209, 214, 218–220, 227 Gulf of Mexico, ultra-deepwater hydrocarbon resources in boundary region, 202, 204–209, 228–229 cooperative management, 200, 226–227 costs and risks of development, 201, 203, 204, 205, 227 development, 201–204 discoveries, 200, 204–206

293

future actions, 225–230 importance, 199–200 in international waters, 208–209 obstacles to development, 200, 203–204, 206, 209 potential reserves, 202–203, 204–206, 207 Puerto Vallarta Draft Treaty, 226–227, 230 in Western Gap, 208–209, 214 in Wilcox Trend, 202, 204–209, 214–215 Hague Conference of States (1930), 4 Haibin No. 723, 152 hake/whiting, 195–196 Halibut Convention, 193 Hansen, Jim, 6, 7 Hatsuhisa Takashima, 159, 160 Heard Island, 30–31, 243, 246 Hecate Strait, 182–183 Hedberg, Hollis, 220 high seas areas in Gulf of Mexico, 208–209, 214, 218–220, 227 in North Pacific, 190 in South China Sea, 73–74 historic bays, 40, 56 historic waters, 70, 182–183 Hodgson, Robert D., 164, 173 Honduras El Salvador/Honduras Case, 169 Gulf of Fonseca Case, 47, 65, 70, 74, 96 “Hoshinmaru” Case, 277 HSI. See Humane Society International Huber, Max, 94–95, 139–142 Humane Society International (HSI), 248–249 hydrocarbons, offshore bilateral agreements, 225n continental shelf regime and, 91 cooperative management, 200, 209–211, 213, 225–227, 230 disputes related to, 77 exploration in East China Sea, 60, 77–78, 153n importance, 21 international law related to, 209–215 Japanese-South Korean joint development zone, 54–55 joint development, 96, 97–98, 210, 214 joint development proposal in East China Sea, 78–79, 81, 84, 85

294

Index

model coordination agreements, 225–227, 230 mutual restraint, 211–213 “rule of capture” approach, 210, 228 in South China Sea, 73–74 transboundary fugacious resources, 78, 207, 210 unity of deposit, 214–215 U.S. moratorium on exploration, 201n See also Gulf of Mexico, ultra-deepwater hydrocarbon resources IAATO. See International Association of Antarctica Tour Operators Iceland continental shelf, 95 Kolbeinsoy Island, 165 Rockall dispute, 28–29, 50, 170–171 ice sheets, 6, 7–8, 245–246 ICJ. See International Court of Justice ICSU. See International Council for Science IGY. See International Geophysical Year ILA. See International Law Association illegal fishing disputes in Antarctic area, 243, 268–269 EEZ claims based on rocks vs. islands, 29–31 between Japan and South Korea, 45–46 settlement methods, 266 See also fisheries; prompt release of vessels and crews incident at sea agreements (INC SEA), 102–104 Indonesia continental shelf boundary, 93 Dutch colonial rule, 94 incident at sea agreement with Malaysia, 103 maritime boundaries with Australia, 93, 117n Sipadan and Ligatan islands dispute with Malaysia, 22, 48–49, 95 Timor Gap joint development agreement with Australia, 96, 97, 98–99, 101 Intergovernmental Panel on Climate Change (IPCC), 6–7, 8, 12 internal waters, 40, 44, 182–183 international agreements dispute settlement procedures, 255–256

on fisheries, 73, 190, 256 maritime boundary delimitation, 107 on peaceful settlement of disputes, 144 See also peace treaties International Association of Antarctica Tour Operators (IAATO), 241 International Conciliation Commission, 110 International Convention for the High Seas Fisheries of the North Pacific Ocean, 190 International Council for Science (ICSU), 237, 242 International Court of Justice (ICJ) El Salvador/Honduras Case, 169 establishment, 95 Gulf of Fonseca Case, 47, 65, 70, 74, 96 Gulf of Maine Case, 36, 111, 113, 168, 179–180 island sovereignty disputes, 22, 104–105 Jan Mayen Case, 31, 36, 59 judges, 95, 257 jurisdiction in law of the sea cases, 254, 258 Libya/Malta Continental Shelf Case, 35–36, 58–59, 168–169 maritime boundary delimitation approach, 33, 35–36, 58–59 Minquiers and Ecrehos Case, 47, 65, 66, 105, 142–143 North Sea Continental Shelf Cases, 58, 86, 87, 88–89, 90, 108–110, 113, 168 Qatar v. Bahrain, 22, 133–135 Sipadan and Ligatan islands dispute, 22, 48–49, 95 sovereignty disputes, 47, 95 Tunisia/Libya Continental Shelf Case, 86–87, 89, 110–111, 116, 168 International Geophysical Year (IGY), 236–237, 242 International Law Association (ILA), 223–224 International Maritime Boundaries, 114 International Pacific Halibut Commission, 193–194 International Seabed Authority, 73–74, 216, 218, 254, 258, 259 International Tribunal for the Law of the Sea Case of Land Reclamation by Singapore in and around the Straits of Johor, 264–265 cases relating to merits, 271–273 composition, 256–257

Index contributions, 273–274 costs, 257 criticism of, 274 differences from ICJ, 257 dispute settlement, 105 environmental disputes, 265 jurisdiction, 254, 255–256, 257, 260 lack of knowledge about, 270 law applied by, 256 MOX Plant Case, 263–264 prompt release of vessels and crews, 29–30, 31, 255, 260, 266–270, 271, 277–279 provisional measures cases, 255, 260–266, 271–272 responsibilities, 255 Seabed Disputes Chamber, 258–259, 261 Southern Bluefin Tuna Cases, 261–263 special chambers, 258, 259 Statute, 254, 258 underutilization, 274–275 intertemporal law, 124–126 IPCC. See Intergovernmental Panel on Climate Change Ireland continental shelf extension, 221–222, 247–248 MOX Plant Case, 263–264 Rockall dispute, 28–29, 50, 170–171 Ishihara Shintaro, 159, 160 islands artificial, 24, 27, 70, 175–176 building, 24 definitions, 23, 24–25, 145–146, 161–162, 165–166 disputes related to maritime jurisdiction, 19, 27–31, 33 enclaving, 33–34 exclusive economic zones, 11–12, 21 habitability, 25 impact of rising sea level, 11–12 importance, 20–22 maritime zone generative capacity, 21, 51–52, 72–73, 166 preventing erosion and flooding, 13, 165 role in maritime boundary delimitation, 22–23, 31–36, 168 as shared resource, 69–70 sizes, 25, 31, 166 strategic locations, 21, 150

295

sub-Antarctic, 232, 240–241, 242–243, 246, 268–269 uninhabited, 50, 52 islands, distinction from rocks debates on, 26, 163–164, 166–167 definitions in Article 121, 23, 24–26, 49, 51, 162–174 economic life supported, 26, 167, 172–173 EEZ boundaries affected, 29–31 insular criteria, 24–25, 165–166 Jan Mayen dispute, 31, 36, 43n, 59 maritime zone generative capacity, 67–70, 174 Rockall dispute, 28–29, 50, 170–171 sizes, 25, 31 state practices, 68–69, 170–172 sustainability of human habitation, 26, 166–167, 172–173, 174 tidal levels, 24–25 See also Okinotorishima; rocks island sovereignty disputes, 19, 22 actual governmental control, 47–49 arbitration, 22, 47–48, 65, 66, 94–95, 130–133, 139–142 contiguity, 66 discovery criterion, 65 dispositions after World War II, 120–121n, 121 in East Asia, 39, 40–41, 119–121 geographical proximity, 66 geopolitical aspects, 21, 23, 150 international court and tribunal rulings, 22, 47–48, 95, 104–105, 133–135 in Northeast Asia, 77 Northern Territories, 40–41, 42, 96 occupation criterion, 65 Palmas, 65, 66, 94–95, 139–142 precedents, 65, 66 Qatar v. Bahrain, 22, 133–135 Sipadan and Ligatan islands, 22, 48–49, 95 See also Diaoyudao Islands (Senkakus); Dokdo (Takeshima) Italy continental shelf boundary with Tunisia, 33–34 islands in Mediterranean, 33–34 Treaty of Peace (1947), 130, 131

296

Index

Jan Mayen continental shelf agreement, 95 International Conciliation Commission report, 110 island status, 31 Jan Mayen Case, 31, 36, 43n Jan Mayen Case, 59 Japan apologies for colonial rule of Korea, 137 baselines, 45 continental shelf boundary, 53–54, 84, 100, 154–156 exclusive economic zones, 45, 51–52, 53, 81, 85, 151–153, 156–157 fisheries agreement with China, 153n fisheries laws, 157 incident at sea agreement with China, 102–104 International Convention for the High Seas Fisheries of the North Pacific Ocean, 190 islands, 51–52 joint development zone with South Korea, 53–55, 57, 58, 100 Korean annexation, 47 Law of the Sea Convention ratification, 51–52 Law on the Exclusive Economic Zone and the Continental Shelf, 52, 151, 156–157 Law on the Territorial Sea, 45, 156 Law on the Territorial Sea and the Contiguous Zone, 156, 157 maritime boundaries with South Korea, 45–46 maritime boundary dispute with China, 59, 60, 77–85, 99–105, 151–153 Maritime Self-Defense Force, 78, 152 Northern Territories dispute, 40–41, 42, 96 Southern Bluefin Tuna Cases, 261–263 Spratly Islands claim, 66 territorial sea claims, 45, 53, 156 “Tomimaru” Case, 277–286 whaling off Antarctica, 248–249 See also Diaoyudao Islands (Senkakus); Okinotorishima Japanese Imperial Oil Company, 78 Japan National Oil Corporation, 54 Jefferson, Thomas, 4 Johnson, D. H. N., 161 Johnston, Douglas M., 59

joint development definition, 210n of offshore hydrocarbons, 78–79, 81, 84, 85, 210, 214 See also cooperation joint development areas Australia-East Timor, 85, 97–98 in East China Sea (China/Japan proposal), 78–79, 81, 84, 85, 101–102 in East China Sea (Japan/South Korea), 53–55, 57, 58, 100 as solution to disputes, 74, 96–99 joint jurisdiction, 96 See also Gulf of Fonseca Case Joyner, Christopher C., 233 Juan de Fuca Strait, 181, 186, 187 “Juno Trader” Case, 269–270, 279, 281, 296 Kerguelen Islands, 30–31, 240–241, 268–269 Kerkennah Island, 168 Koga, Tatsushiro, 61, 104 Kohn, Tommy, 223 Koizumi Junichiro, 137 Kolbeinsoy Island, 165 Korea, Japanese colonial rule, 137 See also North Korea; South Korea Korea-China Joint Fisheries Committee, 57 Korea National Oil Corporation, 54 Kotzebue Sound, 12 Kurile Islands, 40–41, 120n Kyodo Senpaku Kaisha Ltd., 249 Lang Ning-li, 60 Lausanne, Treaty of (1923), 130–133 Law of the sea, codification, 233–235 Law of the Sea Convention. See United Nations Convention on the Law of the Sea League of Nations, 4, 161, 233 Lee, Chang-Wee, 84 Lee Keun-Gwan, 61–62 Lee Teng-hui, 74 legal feedbacks, 2, 17 legal scholars interpretations of UNCLOS Article 121, 172–174 on island-rock distinction, 163–164 views of East China Sea boundaries, 84–85

Index Liancourt Rocks. See Dokdo Libya, Tunisia/Libya Continental Shelf Case, 86–87, 89, 110–111, 116, 168 Libya/Malta Continental Shelf Case, 35–36, 58–59, 86–87, 90, 91, 111–112, 116, 168–169 Ligatan islands, 22, 48–49, 95 Li Peng, 75 Liu Jianchao, 153, 154 Liuqiu. See Okinawa Long Rong No. 2, 146, 161, 176 Lopez de Legazpi, Miguel, 147 Lopez Obrador, Manuel, 228 Lowe, A.V., 166, 173 low-tide elevations as base points, 5, 11, 26, 27, 34–35, 55 definition, 11n, 26 lack of maritime zone generative capacity, 67 use for maritime boundary definition, 26–27 Macquarie Island, 242–243 Mahathir, Mohammed, 244–245 Malaysia Case of Land Reclamation by Singapore in and around the Straits of Johor, 264–265 continental shelf, 71 incident at sea agreement with Indonesia, 103 Sipadan and Ligatan islands dispute with Indonesia, 22, 48–49, 95 Spratly Islands claim, 62, 66 territorial sea claims, 70 Malta, Libya/Malta Continental Shelf Case, 35–36, 58–59, 86–87, 90, 91, 111–112, 116, 168–169 Malta, Memorandum of, 253–254 Manila Declaration on the Peaceful Settlement of International Disputes, 144 marginal seas. See territorial seas marine bioprospecting, 250 maritime boundaries ambulatory, 9–10, 14, 17 bilateral treaties, 14 importance, 31–32 proposal for permanent fixing, 14–17 See also continental shelf; exclusive economic zones; maritime boundary disputes

297

maritime boundary delimitation adjustments to equidistance lines, 115 conflicting principles, 79–80 distance criterion, 82, 84, 115–116 enclaving islands, 33–34 equitable principles, 32, 37, 72–73, 79–80, 86–88, 112, 113–114 importance, 118 international agreements, 107 international court and tribunal rulings, 32, 33, 107–108 Law of the Sea Convention provisions, 32 principles, 72–73 proportionality-of-the-coasts approach, 35–36, 59–60, 90, 99, 168–169 reduced effect of islands, 33–34, 35, 36, 168 role of islands, 22–23, 31–36, 168 state practices, 32, 33, 34–35 straight baselines, 44–46 unresolved disputes, 39 See also equidistance (median line) principle; natural prolongation principle maritime boundary disputes arbitration, 94–95, 104, 115 in East China Sea (China and Japan), 59, 60, 77–85, 99–105, 151–153 effects of changing baselines, 13–14 International Tribunal special chamber, 259 maritime zone generative capacity of features, 19, 28–31 negotiated settlements, 93–94 in Northeast Asia, 77 role of islands, 22–23, 33 settlement approaches, 72–73, 93–95, 104–105 maritime zone generative capacity disputes related to, 19, 28–31 distinction between islands and rocks, 67–70, 174 of islands, 21, 51–52, 72–73, 166 lack of for artificial islands, 70 lack of for rocks, 21, 25, 49–50, 166 Law of the Sea Convention rules, 67–70 of sub-Antarctic islands, 30–31, 246 See also contiguous zones; continental shelf; exclusive economic zones; territorial seas Mavrommatis Palestine Concessions Case, 138 McDonald Island, 30–31, 243, 246 McDorman, Ted L., 85

298

Index

McKibben, Bill, 8 Meares, John, 147 median line. See equidistance (median line) principle Mexico Clipperton Island dispute, 65, 66, 171 continental shelf extension, 219, 221–225 national election (2006), 228 offshore oil fields, 201–202, 203–204, 206 oil industry, 201–202 Pemex, 203–204, 206, 227–228 ratification of Law of the Sea Convention, 211 state monopoly in natural resource exploitation, 226, 227–228 Mexico-United States Delimitation Treaty, 199, 208–209, 221 Middleton Reef, 34–35 mining, deep seabed, 211–212n, 235, 258–259 Minquiers and Ecrehos Case, 47, 65, 66, 105, 142–143 Mobil Oil Exploration and Producing Southeast, Inc. v. United States, 229n “Monte Confurco” Case, 268 MOX Plant Case, 263–264 Murayama Tomiichi, 137 M/V “Saiga” Case, 267–268, 271–273 Nakagawa, Shoichi, 78 National Environmental Policy Act (U.S.), 229 natural gas. See hydrocarbons, offshore natural prolongation principle applications, 54, 56, 83–84, 110–112 confusion over, 108–110 continental shelf, 85, 88–90 demise, 58–59 denial of use, 109 distance criterion and, 82, 112 equidistance criterion and, 114 extended continental shelf boundaries, 216–217 link to equitable principles, 113, 114 origin, 108–110 supporters, 80, 99 Netherlands colonial rule of Indonesia, 94

Island of Palmas Arbitration, 65, 66, 94–95, 124n, 139–142 Newfoundland-Nova Scotia Maritime Boundary Arbitration of 2002, 115 New Zealand Antarctic territorial claims, 232 continental shelf boundaries, 247, 248 Southern Bluefin Tuna Cases, 261–263 Nicaragua, Gulf of Fonseca Case, 47, 65, 70, 74, 96 NLL. See Northern Limit Line non-encroachment principle, 43 Northern Limit Line (NLL), 42–44 Northern Territories dispute, 40–41, 42, 96 North Korea baselines, 41 fishing vessels, 43 maritime boundaries with South Korea, 41–44 territorial sea claims, 43 North Sea Continental Shelf Cases, 58, 86, 87, 88–89, 90, 108–110, 113, 168 Norway Antarctic territorial claims, 232 continental shelf, 95, 247 Jan Mayen case, 31, 36, 43n, 59, 95, 110 Oda, Shigeru, 116 offshore drilling. See hydrocarbons, offshore oil in Antarctica, 250 spills, 186–187, 234 See also hydrocarbons, offshore Okhotsk, Sea of, 40 Okinawa, 83, 99 Okinawa Trough, 57, 58, 61, 83, 84, 99, 101 Okinotorishima Chinese and Taiwanese questions, 146, 153–154 Chinese scientific vessels in waters, 152, 159–160 continental shelf claimed by Japan, 150, 153–154 dispute over legal status, 153–154 embankment construction, 13, 145, 149, 151, 158, 165, 175 exclusive economic zone claimed by Japan, 146–147, 150, 153–154, 157, 176 fisheries, 160

Index fishing boat detained in EEZ, 146, 161, 176 future status, 176 history, 147–148 importance to Japan, 149–151 as island, 145–146, 159, 160, 175 Japanese efforts to claim island status, 146, 156–161, 174–176 Japanese sovereignty claim, 147–148 location, 148, 150, 151 management, 157–158 observation station, 149, 150, 158 physical geography, 148–149, 174–175 sinking rate, 149 strategic importance, 150 territorial sea, 149 as unhabitable rock, 145, 153–154, 175–176 U.S. administration, 158 Ong, David M., 210–211 Osamu Toyoshima, 158 Osumi Strait, 53 Ottoman Empire, 131 Outer Continental Shelf Lands Act (U.S.), 229 Oxman, Bernard H., 10 Pacific hake/whiting, 195–196 Pacific halibut, 193–194 Pacific Ocean fisheries agreements, 190 fisheries disputes, 259, 273 manganese nodules, 258–259 See also Canada-U.S. international ocean law relations Pacific salmon, 179, 190–193 Pacific Salmon Treaty (1985), 190–191, 192 Paik, Jin-Hyun, 42 Palmas, Island of, Arbitration, 65, 66, 94–95, 124n, 139–142 Panama “Camouco” Case, 268 “Chaisiri Reefer 2” Case, 269 Pan Shiying, 63–64 Papua New Guinea, boundary agreement with Australia, 85, 93 Paracel Islands, 120 Parce Vela (Looks Like a Sail) Reef, 147, 148 See also Okinotorishima Pardo, Arvid, 164, 173, 234

299

Paris, Treaty of (1814), 129, 130 P.C.I.J. See Permanent Court of International Justice peace treaties renunciation of territories, 128–130 San Francisco, 40, 47, 61, 66, 120–121n, 127, 128–130 Spanish-American War, 129–130, 139, 140, 141 territorial cessions without recipients, 126, 128 territorial dispositions, 61, 126–127, 128 World War I, 127, 130 Pemex (Petroleos Mexicanos), 203–204, 206, 227–228 People’s Republic of China. See China Perdido Foldbelt, 205–207, 214–215 Permanent Court of International Justice (P.C.I.J.), 138, 223 Peter the Great Bay, 40 petroleum. See hydrocarbons; oil Philippines extended continental shelf, 71 Island of Palmas Arbitration, 65, 66, 94–95, 124n, 139–142 proposed joint development area in South China Sea, 74 Spratly Islands claim, 62, 66, 71 Prescott, J.R.V., 58–59 prompt release of vessels and crews appeals of confiscations, 283–284 cases heard by International Tribunal, 29–30, 31, 255, 260, 266–270, 271, 277–279 effects of confiscation, 281–282, 284–286 Law of the Sea Convention rules, 281, 296 procedures, 270 proportionality-of-the-coasts approach, 35–36, 59–60, 90, 99, 168–169 provisional measures cases, 255, 260–266, 271–272 Puerto Vallarta Draft (PVD) Treaty, 226–227, 230 Qatar continental shelf agreement with Abu Dhabi, 97 disputes with Bahrain, 22, 133–135 Queen Charlotte Sound, 182–183

300

Index

Ramos, Fidel, 74 reefs as base points, 11, 34–35 fringing, 11 lack of maritime zone generative capacity, 70 Remote Bird Islands. See Okinotorishima Republic of China. See Taiwan Republic of Korea. See South Korea residual fishing rights, 92 Riesman, W. Michael, 133 Rockall, 28–29, 50, 170–171 rocks definition, 23, 25–26, 49, 51 lack of maritime zone generative capacity, 21, 25, 49–50, 166, 169, 171 territorial sea claims, 21 See also islands, distinction from rocks; low-tide elevations; Okinotorishima Romania, 27–28 Rothwell, Donald R., 233 Russia Alaska boundaries, 180 exclusive economic zones, 40, 277–278 Federal Supreme Court, 283 Northern Territories dispute, 40–41, 42, 96 Peter the Great Bay, 40 Sea of Okhotsk, 40 “Tomimaru” Case, 277–286 “Volga” Case, 29–30, 31, 269 See also Soviet Union St. Kitts and Nevis, 35 Saint Peter and Paul Rocks, 171–172 St. Pierre and Miquelon Case, 43–44n Saint Vincent and the Grenadines “Juno Trader” Case, 269–270, 279, 281, 296 maritime boundary dispute with Venezuela, 35 M/V “Saiga” Case, 267–268, 271–273 Sakamoto, Shigeki, 80, 81–82 Sakhalin, 40 salmon, 179, 190–193 San Francisco Peace Treaty, 40, 47, 61, 66, 120–121n, 127, 128–130 Saudi Arabia, joint development agreement with Bahrain, 96–97 Scientific Committee on Antarctic Research (SCAR), 237, 241, 242, 250

scientific research in Antarctica, 236–237, 238, 241–242 Chinese vessels in East China Sea, 152–153 Scilly Isles, 35, 169 seabed resources as common heritage, 117, 235, 253–254 continental shelf regime, 82, 91, 117 deep seabed mining, 211–212n, 235, 258–259 in South China Sea, 73–74 See also continental shelf; hydrocarbons sea level, rising effects of climate change, 1 effects on baselines, 2, 9, 10–13 effects on islands, 11–12 flooding caused, 8 in past, 7 predictions, 6–8 Sea of Japan. See East Sea security, maritime, 21, 77 sediment-thickness formula, 216–217, 219–220, 247 semi-enclosed seas cooperative management, 76, 213 definition, 40, 213 Sea of Okhotsk, 40 South China Sea, 76 See also East Sea/Sea of Japan; Gulf of Mexico Senkakus. See Diaoyudao Islands Seychelles, “Monte Confurco” Case, 268 Shell Offshore, 206 Shen Guofang, 64 ships. See vessels shoals, 27 Singapore, 264–265 Sipadan and Ligatan islands, 22, 48–49, 95 Song, Yann-huei, 64 South China Sea continental shelf claims, 71 disputes, 62–75 high seas areas, 73–74 joint development area proposal, 74–75 Macclesfield Banks, 27 maritime boundary delimitation, 67–75 seabed resources, 73–74 as semi-enclosed sea, 76 See also Spratly Islands

Index Southeast Alaska Submarine Noise Measurement Facility (SEAFAC), 184–185 Southern Bluefin Tuna Cases, 261–263 Southern Ocean, 234–235, 243 South Korea continental shelf boundary with Japan, 53–54, 84, 100 exclusive economic zones, 53, 55, 57, 58, 84 fisheries agreements, 45–46, 52–53, 57 fishing vessels, 41, 42, 45–46 islands, 42–44 joint development zone with Japan, 53–55, 57, 58, 100 maritime boundaries, 41–44, 45–46, 55–58 National Maritime Police Agency, 49, 51 territorial sea claims, 53 See also Dokdo sovereignty based on discovery, 61, 65, 125–126, 140 disputes in Antarctica, 231 factors relevant to establishment, 123, 125–126 See also island sovereignty disputes; territorial acquisition and loss Soviet Union Antarctic scientific research stations, 236, 237 incident at sea agreement with United States, 103 Kurile Islands dispute, 120n maritime boundary with Sweden, 33 Northern Territories dispute, 40–41 Peter the Great Bay, 40 Sea of Okhotsk, 40 See also Russia Soya Strait, 53 Spain Antarctic territorial claims, 232 continental shelf extension, 221–222, 247–248 Spanish-American War, Treaty of Peace of 1898, 129–130, 139, 140, 141 Special Committee on Antarctic Research. See Scientific Committee on Antarctic Research Spratly Islands features qualified as islands, 67–70 Itu Aba (Tai Ping Dao), 65, 66, 68

301

maritime zone generative capacity, 72, 73, 74 sizes, 68 sovereignty disputes, 62–67 strategic location, 21 territorial seas, 70–71 Straddling and Migratory Fish Stocks Agreement, 73, 256 submarines, 153, 184–185 Sweden Gotland and Gotska Sandon, 33, 35 maritime boundary with USSR, 33 Symmons, Clive, 165 Taiwan continental shelf boundary, 50, 62 fishing boat detained by Japan, 146, 161, 176 Macclesfield Banks claim, 27 Okinotorishima dispute, 146 “Policy Guidelines for the South China Sea,” 65 proposed joint development area in South China Sea, 74 See also Diaoyudao Islands (Senkakus); Spratly Islands Takeshima. See Dokdo tanker exclusion zone (TEZ), 188 tankers, oil, 185–188, 234 Tayama Risaburo, 148 Teikoku Oil Company, 60 territorial acquisition and loss authority and legal basis, 126–135 case law, 135 general rules of international law, 122–123, 135–136 intertemporal law and, 124–126 by peace treaties, 61, 126–127, 128–130, 139, 140 territorial disputes. See island sovereignty disputes; maritime boundary disputes territorial seas ambulatory boundaries, 10 Convention on the Territorial Sea and the Contiguous Zone (1958), 15, 26, 72, 161–162, 164, 165, 233n definition, 3n Law of the Sea Convention provisions, 70–71

302

Index

of islands, 21 measurement from baselines, 3–5, 10 overlapping claims, 32 width, 70–71 territorial sovereignty. See island sovereignty disputes; sovereignty TEZ. See tanker exclusion zone Third Law of the Sea Conference, 16, 17, 234, 244 Timor Sea Treaty, 97 Timor Sea Zone of Cooperation, 97 Timor Trough, 101, 117n “Tomimaru” Case, 277–278 criminal proceedings, 278 legal setting, 279–281 question before Tribunal, 281–285 summary of facts, 278–279 Tribunal judgment, 278–279, 281–282, 284–285 Torre, Bernardo de la, 147 Torres Strait, 93 tourism, Antarctic, 241, 249–250 Trans-Alaska Pipeline Authorization Act, 186 transboundary fugacious resources, 78, 207, 210 treaties. See international agreements; peace treaties Truman Proclamation, 86, 108n, 215, 233 Tsugaru Strait, 53 Tsushima Strait, 53 tuna, 194–195, 261–263 Tunisia, maritime boundary with Italy, 33–34 Tunisia/Libya Continental Shelf Case, 86–87, 89, 110–111, 116, 168 Turkey drafting history of Law of the Sea Convention Article 121, 27–28 island claims in Aegean, 28 Treaty of Lausanne, 130–131 UK. See United Kingdom Ukraine, Serpents (Zmeiny) Island, 28 ultra-deepwater, definition of, 200 ultra-deepwater hydrocarbon resources. See Gulf of Mexico, ultra-deepwater hydrocarbon resources UNESCO Convention on the Protection of Underwater Cultural Heritage, 256

UNFSA. See United Nations Fish Stocks Agreement UNICPOLOS. See United Nations Informal Consultative Process on the Law of the Sea United Kingdom Alaska Boundary Arbitration, 180, 183–185 Anglo-French Continental Shelf Arbitration of 1977, 33, 35, 44, 90, 94, 110, 169 Antarctic territorial claims, 232 Channel Islands, 34, 35, 169 continental shelf extension, 221–222, 247–248 fisheries, 29, 171 Law of the Sea Convention accession, 29 Mavrommatis Palestine Concessions Case, 138 Minquiers and Ecrehos Case, 47, 65, 66, 105, 142–143 MOX Plant Case, 263–264 Rockall claim, 28–29, 50, 170–171 Scilly Isles, 35, 169 United Nations Charter, 95 Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 243 Food and Agriculture Organisation, 240, 243, 280 General Assembly, 144, 253–254 United Nations Convention on the Law of the Sea application to Antarctic Treaty Area, 231–232, 234–235, 243, 244–249, 251 Article 3, 70 Article 13, 26 Article 56, 91, 212, 279–280 Article 60, 70, 175–176 Article 73, 280–281, 296 Article 74, 43, 80, 81, 87 Article 76, 71, 72, 82, 89–90, 112, 215–220, 222–223, 224 Article 77, 91 Article 78, 212 Article 81, 212 Article 82, 224 Article 83, 43, 80, 81, 87 Article 87, 73 Article 121. See United Nations Convention on the Law of the Sea, Article 121 Article 122, 40, 76, 213 Article 123, 40, 76, 213

Index Article 287, 258, 260 Article 292, 281 Article 297, 255 Article 298, 255 Article 300, 212–213 Canadian perspective, 178–179 continental shelf regime, 71, 72, 82, 89–90, 112, 215–220, 222–223, 224 as customary international law, 67 deep seabed mining, 211–212n delta baselines rule, 9–10 dispute settlement system, 254, 258, 274 duty of cooperation, 213 entry into force (1994), 234, 253 exclusive economic zones regime, 82 importance, 254 as international customary law, 222–223 low-tide elevations, 26 maritime boundary delimitation principles, 87 mutual restraint in hydrocarbon development, 211–213 non-encroachment principle, 43 parties to, 253 polar areas not included, 233, 244 purpose of adopting, 163–164 regime of islands, 19, 23 semi-enclosed seas definition, 40, 213 territorial seas regime, 70 U.S. perspective, 178–179, 212 United Nations Convention on the Law of the Sea, Article 121 ambiguities, 36, 162, 167 definition of island, 145–146, 162, 165 disputes over application, 167–168 drafting history, 27–28, 29 interpretations, 27–31, 34–35, 36, 172–174 interpretations of rock definition, 49–50, 159, 162–174 lack of international case law, 168–170 legal implications of wording, 164–168 low-tide elevations, 67 maritime zone generative capacity, 67–70 revisions proposed, 167 state practices in application, 170–172 translations, 173 United Nations Fish Stocks Agreement (UNFSA), 73, 243–244, 256

303

United Nations Informal Consultative Process on the Law of the Sea (UNICPOLOS), 250 United States administration of Diaoyudao Islands, 61 administration of Okinotorishima, 158 Antarctic scientific research stations, 236, 237 continental shelf boundaries, 215, 221–225 Deepwater Royalty Relief Act, 203 exclusive economic zones, 177, 181 failure to accede to Law of the Sea Convention, 178, 212, 221–225, 227 fisheries law enforcement, 189 incident at sea agreement with USSR, 103 Island of Palmas Arbitration, 65, 66, 94–95, 124n, 139–142 legal obstacles to Gulf of Mexico hydrocarbon exploitation, 228–229 Magnuson Fishery Conservation and Management Act, 194 maritime zones, 52 Mexico-United States Delimitation Treaty, 199, 208–209, 221 Minerals Management Service, 206n, 207 National Environmental Policy Act, 229 offshore oil exploration, 201n, 203 oil and gas industry, 206, 225, 229n Outer Continental Shelf Lands Act, 229 Submerged Lands Act of 1953, 15–16 territorial sea, 4 Trans-Alaska Pipeline Authorization Act, 186 Treaty of Peace of 1898, 129–130, 139, 140, 141 Truman Proclamation, 86, 108n, 215, 233 See also Alaska; Canada-U.S. international ocean law relations; Gulf of Mexico United States Supreme Court, 15–16, 165–166, 229n United States-United Kingdom Alaska Boundary Arbitration, 180, 183–185 United States v. Alaska, 165–166 United States v. California, 15 United States v. Louisiana, 15–16 unitization, 210–211n, 214 USSR. See Soviet Union Valencia, Mark J., 59, 84–85, 100 Vancouver Island, 181

304

Index

Van Dyke, Jon M., 145, 163, 165, 170, 171, 173–174 Venecia, Jose de, 74 Venezuela, Aves Island/Bird Rock, 24n, 28, 35 Versailles, Treaty of, 130 vessel detentions by Canada, 194 illegal, 176 by Japan, 146, 161, 176 See also prompt release of vessels and crews vessels Antarctic tourism, 249–250 confiscation, 281–282 flag state enforcement, 189 floating, production, storage, and offloading, 206–207 incident at sea agreements, 102–104 oil tankers, 185–188, 234 scientific, 152–153 transfers of title, 282 See also fisheries Vietnam boundary agreement with China, 93–94 Chinese domination, 74 continental shelf, 71, 93–94 exclusive economic zones, 93–94 Spratly Islands claim, 62, 66, 68–69, 70 territorial sea claims, 70, 93–94

“Volga” Case, 29–30, 31, 269 Vukas, Budislav, 29–30, 31, 49 Walker Ridge, 205, 207–208 Washington state, maritime boundary with British Columbia, 181 Wen Jiabao, 79, 103 Western Gap, Gulf of Mexico, 199, 208–209, 214, 218–220, 227 West Sea (Yellow Sea), 42–44, 56, 58 whaling, 243, 248–249 Wilcox Trend, 202, 204–209 Perdido Foldbelt, 205–207, 214–215 Walker Ridge, 205, 207–208 World Heritage Convention, 242–243 World War I, peace treaties, 127, 130 World War II. See San Francisco Peace Treaty Xiangyang Hong No. 9, 152 Yellow Sea. See West Sea Yemen “Chaisiri Reefer 2” Case, 269 Eritrea-Yemen Arbitration, 22, 47–48, 114n, 130–133 Zhang Qiyue, 153–154 Zone of Cooperation (ZOCA), Timor Sea, 97

Publications on Ocean Development 65. Seoung-Yong Hong and Jon M. Van Dyke (eds.): Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea. 2009 ISBN 978-90-04-17343-9 64. Henrik Ringbom: The EU Maritime Safety Policy and International Law. 2008 ISBN 978-90-04-16896-1 63. Maria Helena Rolim, with contributions by Erkki Leppäkoski and Gaetano Librando. The International Law on Ballast Water. Preventing Biopollution. 2008 ISBN 978-90-04-16652-3 62. Maria Gavouneli: Functional Jurisdiction in the Law of the Sea. 2007 ISBN 978-90-04-16345-4 61. Clive R. Symmons: Historic Waters in the Law of the Sea. A Modern Re-Appraisal. 2008 ISBN 978-90-04-16350-8 60. Howard S. Schiffmann: Marine Conservation Agreements. The Law and Policy of Reservations and Vetoes. 2008 ISBN 978-90-04-16385-0 59. David Anderson: Modern Law of the Sea. Selected Essays. 2008 ISBN 978-90-04-15891-7 58. Veronica Frank: The European Community and Marine Environmental Protection in the International Law of the Sea. Implementing Global Obligations at the Regional Level. 2007 ISBN 978-90-04-15695-1 57. David D. Caron and Harry N. Scheiber (eds.): The Oceans and the Nuclear Age, Legacies and Risks. 2007 ISBN 978-90-04-15675-3 56. David Kenneth Leary: International Law and the Genetic Resources of the Deep Sea. 2006 ISBN 978-90-04-15500-8 55. Sarah Dromgoole (ed.): The Protection of the Underwater Cultural Heritage. National Perspectives in Light of the UNESCO Convention 2001. 2006 ISBN 978-90-04-15273-1 54. Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (eds.): Unresolved Issues and New Challenges to the Law of the Sea. Time Before and Time After. 2006 ISBN 90-04-15191-5 53. Rainer Lagoni and Daniel Vignes (eds.): Maritime Delimitation. 2006 ISBN 90-04-15033-1 52. Tore Henriksen, Geir Hønneland and Are Sydnes: Law and Politics in Ocean Governance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes. 2006 ISBN 90-04-14968-6 51. Aldo Chircop and Olof Linden (eds.): Places of Refuge for Ships. Emerging Environmental Concerns of a Maritime Custom. 2006 ISBN 90-04-14952-X 50. Guifang Xue: China and International Fisheries Law and Policy. 2005 ISBN 90-04-14814-0

Publications on Ocean Development 49. Florian H.Th. Wegelein: Marine Scientific Research. The Operation and Status of Research Vessels an Other Platforms in International Law. 2005 ISBN 90-04-14521-4 48. Zou Keyuan: China’s Marine Legal System and the Law of the Sea. 2005 ISBN 90-04-14423-4 47. David. D. Caron and Harry N. Scheiber (eds.): Bringing New Law to Ocean Waters. 2004 ISBN 90-04-14088-3 46. Rosemary G. Rayfuse: Non-Flag State Enforcement in High Seas Fisheries. 2004 ISBN 90-04-13889-7 45. Budislav Vukas: The Law of the Sea. 2004

ISBN 90-04-13863-3

44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21st Century. 2004 ISBN 90-04-13852-8 43. Geir Hønneland: Russian Fisheries Management. The Precautionary Approach in Theory and Practice. 2004 ISBN 90-04-13618-5 42. Nuno Marques Antunes: Towards the Conceptualisation of Maritime Delimitation. Legal and Technical Aspects of a Political Process. 2003 ISBN 90-04-13617-7 41. Roberta Garabello and Tullio Scovazzi (eds.): The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention. 2003 ISBN 90-411-2203-6 40. Sun Pyo Kim: Maritime Delimitation and Interim Arrangements in North East Asia. 2003 ISBN 90-04-13669-X 39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law. 2002 ISBN 90-411-2015-7 38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur les délimitations maritimes selon l’équité: Digest and Commentaries/Répertoire et commentaires. 2002 ISBN 90-411-1976-0 37. A.G. Oude Elferink and D.R. Rothwell (eds.): The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. 2001 ISBN 90-411-1648-6 36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevance for Northeast Asia. 2001 ISBN 90-411-1580-3 35. D.R. Rothwell and S. Bateman (eds.): Navigational Rights and Freedoms and the New Law of the Sea. 2000 ISBN 90-411-1499-8 34. H.N. Scheiber (ed.): Law of the Sea. The Common Heritage and Emerging Challenges. 2000 ISBN 90-411-1401-7 33. P.B. Payoyo: Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. 1997 ISBN 90-411-0504-2